sent suffice to set the matter now in question | lish so fluently, and by some expressions hé in its true light, to shew how necessary it dropt, became suspected, seized (a large re. is to apply the law to exterminate such noxi-ward baving been offered for apprehending ous creatures. Upon this conviction the Court did direct that process should be issued against Mawgridge, and so to proceed to outlawry if he cannot be retaken in the mean time. The case was, Mr. Cope (a younger branch of the Copes of Bramsel, in Hampshire, barts.) having got a lieutenant's commission in the guards, invited some officers and other gentlemen to dine with him at the Dolphin tavern in Tower street, June 17, 1706, in order to wet his commission; one of the gentlemen took Mawgridge along with him, telling him he would be as welcome to Mr. Cope as any of the company; upon that he went, and after dinner was over, and paid for by Mr. Cope, they all staid a while longer, and had more wine brought in, and paid half a-crown each for their club; then they broke up, and most of them went away; but Mr. Mawgridge and the rest being invited by Mr. Cope to the guard room in the Tower, went with him, and called for wine. Two bottles were accordingly brought; and as they were drinking, a coach came to the guard-room door with a woman in it (of no very modest behaviour), and asked for capt. Cope; whereupon he and Mawgridge went to the coach door, and brought her into the guard-room; where having been a while, she cried, Who shall pay for my coach? Upon this Mr. Mawgridge said, I will, and so discharged the coach; then he offered to salute her, but she rejected him, and gave him ill words; to which he made returns of the like kind ; on which lieut. Cope took the woman's part; and then Mawgridge demanded satisfaction of Mr. Cope, in order to provoke him to fight, &c. &c. and killed Mr. Cope. Upon this Mawgridge was tried at the Old-Bailey in July 1706, for the murder, and a special verdict found, wherein all the particulars are related, as before-mentioned:-But before the arguing the special verdict, he made his escape out of the Marshalsea, where he was confined; and that night went to his father, major Mawgridge, who with his wife (Mawgridge's mother-in-law) washed and rubbed him all over with green walnut shucks and walnut liquor to disguise him, and then all three set out in the night, and walked above 30 miles into Essex, where the father gave 100 guineas to a master of a vessel, near Colchester, to carry him safe to Holland, which he did; there he was concealed above a year and half; for though he was a very handsome man, he was so disfigured scarce any one knew him; he spoke French and Spanish generally and mighty well; but at last being at a tavern in Ghent in Flanders, and a little too merry, he spoke Eng him), and on examination found to be the man who killed Mr. Cope, was brought over to England in March 1707-8, and being brought to the King's-bench bar, received sentence of death, and was executed at Tyburn, on Wednesday, April 28, 1708, with William Gregg, for high-treason. The ordinary says, Mawgridge went in a coach with him (and Gregg in a sledge) to Tyburn; "That he submitted willingly to his sentence, owning the justice of it, though he declared be had no premeditated malice against the gentleman he so unfortunately killed. He said, he heartily repented of it, and prayed that God would wash away the stain, and deliver him from the guilt of that blood which he bad so shed. He owned that he had been a very great sinner, but was sorry that he had any ways offended God and man, and begged pardon of both. That he hoped God would shew him mercy in another world, because he was always grieving for his sins, and particularly for this, ever since he had made his escape; and though he had no apprehension of being brought to condemnation here for it, it was still continually before him, and the remembrance of it was painful to him. He made strong resolutions to live otherwise, and was always praying to God to pardon him, and to keep him for the future. He acknowledged the justice of God had overtaken him, and would not suffer him to live long unpunished for this heinous crime: He declared his being in charity with all the world, even with those who had brought him to this his punishment, and prayed for the conversion of all wicked persons, desiring they would take warning by him. He told me, he was about 40 years of age, born at Canterbury of good parents, and brought up in the Church of England; that both his father and ancestors had had the honour to serve the crown for above 200 years as drum-major; and that he himself had received a very good education, and brought up genteelly, though he was for a considerable time kettle-drummer to the first troop of guards, and was a going with a commission into the army when this melancholy accident happened."-Major Mawgridge, on his son's execution, which had so great an effect on him, could not be prevailed on either to eat or drink for three nights and three days, and raved about like a madman; he afterwards behaved at times like one distracted, drawing his sword, and threatning to murder his wife, obliging her to kneel down for him to stab her, &c. and then relenting. In short, he was never after easy or in his right senses; moving about from place to place, though he lived to near 80 years of age * See his Case, vol. 14, p. 1371. 469. The Trial of JAMES CARNEGIE, of Finhaven, before the Court of Justiciary (in Scotland), held at Edinburgh, July 25, for the Murder of Charles Earl of Strathmore: 2 GEORGE II. A. D. 1728. CURIA JUSTICIARIA, S, D: N. Regis tenta in novo Sessionis Domo Burgi de Edinburgh, decimo quinto Die Mensis Julii, Millesimo septingentesimo vigesimo octavo, per ho norabiles Viros Adamum Cockburne de Ormistoun, Justiciarium Clericum, Do minos Jacobum Mackenzie de Roystoun et Gulielmum Calderwood de Poltoun, Magistrum Davidem Erskine de Dun, Dominum Gualterum Pringle de New hall, et Magistrum Andream Fletcher de Miltoun, Commissionarios Justiciariæ, dict. S. D. N. Regis. Curia legitime affirmata: Intran' James Carnegie of Finhaven, prisoner in the Tolbooth of Edinburgh, pannel. : of Forfar, within the county of Forfar, you did, with a drawn sword, or some other offensive or mortal weapon, without the least colour or cause of provocation then given by him, invade the said deceast earl, who had no weapon in his hand, and did basely and feloniously murder and kill him, by giving him a wound therewith in the belly, some inches above the navel, which, by following the thrust with a second push, went through the intestines and the back, a little lower than where the said weapon entered the belly of which wound, after great pain, on Saturday immediately thereafter, or in some short space thereafter, he died; and so was cruelly and barbarously murdered by you. At least, at the time and place above-mentioned, with a drawn sword, or some other mortal weapon, without any just cause or provocation, you gave the said deceast Charles earl of StrathINDICTED and accused, at the instance of more a wound in the belly, which reached Susanna countess of Strathmore, and Mr. James through the intestines and back, wherethrough Lyon, brother-german and nearest of kin to he soon after fell down, and died at the time the deceast Charles earl of Strathmore, with foresaid. At least, at the time and place above concourse and at the instance of Duncan Forbes, described, the said Charles earl of Strathmore esq. his majesty's advocate, for his highness's was with a drawn sword, or some other deadly interest, for the crime of wilful and premedi- weapon, feloniously and barbarously wounded, tate murder committed by him upon the person and of the said wound died within a few days of the said Charles earl of Strathmore, as is thereafter; and you were art and part in his more fully mentioned in the indictment raised murder. By all which, it is evident, that you against him thereanent, which is as follows: are guilty, art and part, of the crimes of wilful "James Carnegie of Finhaven, now prisoner and premeditate murder and homicide, or one in the Tolbooth of Edinburgh, you are indicted or other of them, at the time and place, and in and accused, at the instance of Susanna countess the manner above set forth. And which facts, of Strathmore, and Mr. James Lyon, brother- or part thereof, or your being art and part of german and nearest of kin to the deceased any of the said crimes, being found proven by Charles earl of Strathmore, with concourse and the verdict of an assize, in presence of the lords at the instance of Duncan Forbes, esq. his ma- justice general, justice clerk, and commisjesty's advocate, for his highness's interest: sioners of justiciary, you ought to be exemplathat where, by the laws of God, the law of narily punished with the pains of law, to the ture, the common law, and the municipal law, terror of others to commit the like in time comand practice of this kingdom, as well as the ing." laws of all well-governed realms, wilful and premeditate murder, and all murder and homicide, or being art and part thereof, are most atrocious crimes, and severely punishable; yet true it is, and of verity, that you have presumed to commit, and are guilty, actor, art and part, of all, or one or other of the foresaid horrid crimes: in so far as, having a causeless ill-will and resentment against the deceast Charles earl of Strathmore, you conceived a deadly hatred and malice against him; and shaking off all fear of God, and regard to the foresaid laudable laws, on Thursday the 9th of May, in this present year, 1728, or one or other of the days of the said month, about the hour of eight or nine of the night of that day, or some other hour of that day or night, upon the street of the town Pursuers.—Mr. Duncan Forbes, bis majesty's advocate; Mr. Charles Areskine, his majesty's solicitor; Mr. Alex. Hay, advocate; Mr. Patrick Grant, advocate; Mr. George Ogilvy, advocate; Mr. John Ogilvie, advocate; Mr. Hugh Dalrymple, advocate. Procurators in Defence.-Mr. Robert Dundas, advocate; Mr. James Fergusson, senior, advocate; Mr. John Forbes, advocate; Mr. William Grant, advocate; Mr. James Paterson, advocate; Mr. George Smollet, advocate. The libel being openly read in court, and debate viva voce, in presence of the lords, they ordained both parties to give in their informations to the clerk of court, in order to be recorded; the pursuers to give in theirs against Saturday next; and the pannel's procurators | lowed with a second push, which was a mark to give in his against Friday thereafter: and of inveterate and relentless malice; and that it continued the cause till the 1st day of August was sufficient to charge a previous quarrel in next to come, at nine o'clock morning; and general, which would be made appear by the ordained witnesses and assizers to attend at that proof. Nor will it be found, that in libels of time, each person, under the pain of law; and forethought felony, it is usual or necessary to ordained the pannel to be carried back to pri- libel all the circumstances from which the son; and granted second diligence for the pur- forethought may be presumed, especially when suers against the witnesses. the species facti is charged in that manner, as affords the presumption of forethought, setting forth, that the wound was given without the least colour or cause of provocation on the part of the defunct at that time. Neither can it be thought unfair with regard to the pannel, who if he had any relevant ground of exculpation, would have access to prove friendship with the defunct, to take off any charge of precedent quarrels, whereof he could not be ignorant. And still there must be less ground of complaint, where no good reason of exculpation is offered, whereby the pannel can be allowed to adduce proof, which it is believed is, without contradiction, the case upon the first branch of the libel. INFORMATION for SUSANNA Countess of STRATHMORE, and Mr. JAMES LYON, Brothergerman to the deceased Charles Earl of Strathmore, and his Majesty's Advocate for his Highness's Interest, against James Carnegie of Finhaven, Pannel. The said James Carnegie is indicted and aceused as guilty, art and part of wilful and premeditate murder; at least of murder and homicide: in so far as, upon the 9th of May last, upon the streets of Forfar, with a drawn sword, he wounded the deceased Charles earl of Strathmore in the belly, some inches above the navel; which wound went through the intestines and the back, a little lower than where the said weapon entered the belly; of which wound he died soon after. The indictment, in the first place, charges the fact as proceeding from a causeless ill-will and resentment the pannel had conceived against the defunct, who, at the time the wound was given, had done nothing that could be pretended as a colour or cause of provocation: and a circumstance is noticed, from which it may be inferred, that there was deadly hatred and malice; namely, that after one push there was a second, whereby the wound went quite through his body. As to the two last branches of the indictment, it was alleged, "That several circumstances attending the fact complained of were concealed, which, when opened, afforded the pannel plain and obvious defences; and therefore it was informed, That the pannel, a person disposed to peace, and in entire friendship with the defunct, chanced to be in company with him about the time charged in the indictment, with one John Lyon of Bridgeton, and others: that Bridgeton gave him the highest provocation, not only by words, but by proceeding so far, as to throw him into a kennel, where the pannel was in hazard of perishing, being extremely drunk: that getting up, heated with There is a second branch of the indictment, liquor, and so extremely provoked, he drew his in which the circumstances of premeditate ma- sword, and pursued Bridgeton, and that the delice and forethought felony, needed not to be li-funct thrusting himself between them, casually belled; and he is charged only with murder or homicide, as separately relevant. And, lastly, art and part is charged upon him. received the thrust aimed at another." From these circumstances, it was pled for the pannel, "That if he did kill the defunct, it was a mere misadventure, rather a misfortune as [than] a fault, and in no event could subject him to the pana ordinaria; for that, 1mo. In these circumstances had he killed the said John Lyon of Bridgeton, the pain of death could not At calling before the lords of justiciary, against the first branch of the indictment, it was excepted, "That the indictment was too general, particular circumstances not being expressed from which the causeless ill-will or resentment mentioned, and forethought and pre-have been inflicted either by the law of God, meditate malice could be inferred, whereby the pannel was deprived of the benefit due to all pannels, when tried for their life, to exculpate himself, by shewing, that if at any time, prior to the time mentioned in the indictment, there was any appearance of grudge or quarrel between the defunct and him, there was an afterreconciliation and entire friendship :" And it was said, "That general libels ought not to be sustained." To this it was answered, That a previous grudge is charged, and that the deceast was invaded without the least colour or cause of provocation; which is the strongest evidence of forethought, especially when joined with this other particular, that the first thrust was fol the common law, nor by the municipal law of this kingdom, neither by the laws of other wellgoverned realms; particularly by the laws of our neighbouring nation, in regard the fact was done of suddenty, by a person in drink, and highly provoked. And And, 1mo. As to the law. of God, chap. xxi, v. 13, of Exodus was appealed to, where it is said, "that if a man lie not in wait, there was to be a place appointed whither he should fly;" which seemed to require forethought. the xxxvth chap. of Numbers, ver. 22, where it was said, "That if any one thrust another suddenly without enmity, the congregation was to judge between the slayer and the revenger of blood;" from which it would seem, that slaughter of suddenty was not punishable | punishments are allowed, such punishments are by death. Jawful: But the argument is not of equal strength, that where the powers of the law were suspended by the jus asyli established by positive precept, that therefore, in countries where there is no such privilege, either by the laws of God, or the laws of the land, that there the punishment is not to be capital, where the ju asyli could have been claimed. To this it was answered, that in the law of God the general rule was, "Whoso sheddeth man's blood, by man shall his blood be shed: And at the hand of man, and at the hand of every man's brother, and at the hand of every beast was the life of man to be required," Gen. chap. ix. That by the law of Moses, death of a suddenty was plainly capital; nor had the manslayer the benefit of the city of refuge, but where the slaughter was mere misfortune, and casual, which was plainly the meaning of the words in Exodus, "If a man lie not in wait, but God deliver him into his hand;" which could not with any propriety be understood of slaughter committed, where the intention and designantecedit ictum licet non congressum.' And this matter is clearly explained in the 35th chap. of Numbers, where he who smites with an instrument of iron, is called a murderer; and where it is said, "That he who smites with a throwing stone, or with a hand weapon of wood, wherewith a person may die, and he die, the murderer is surely to be put to death." And then the law proceeds plainly to treat of cases, where death ensues from strokes | or thrusts of a weapon not deadly, and there it requires indeed hatred and enmity; but if it be done suddenly and without enmity, or (which is remarkable) in the 23d verse, "With any stone wherewith a man may die, seeing him not, and was not his enemy, nor sought his harm; then the congregation was to judge be-theless not without dole. tween the slayer and the revenger of blood." From which it is plain, that slaughter upon suddenty, even without forethought or previous enmity, was capital by the law of Moses, if the wound was given with a lethal [deadly] weapon, except when it was done by mere chance, as by throwing a stone whereby a man may die, the person who threw it seeing him not, and so at no time was his enemy, or sought bis harm. And this is the case mentioned, chap. xix, ver. 4, Deut. where it is said, "Whoso killeth his neighbour ignorantly, whom he hated not in time past" (which is limited by the example immediately subjoined to homicide merely casual), "shall fly into one of these cities, and live." Now, in the present case, the nature of the weapon and of the wound are such, as clearly exclude founding with any colour upon the disposition of the law of Moses, though the question were of the pannel's claiming the benefit of the city of refuge. But neither is it an argument of any force to plead, that where the benefit of the city of refuge was granted, that by the law of nature the crime was not capital; for the revenger of blood could never have been tolerated to kill without the city of refuge, where innocent blood was spilt, whereby the land must have been polluted, and the subjects were permitted impunè, so notoriously to break in upon the established laws of nature; and therefore, though it is an argument of unavoidable force, that wherever, by the law of Moses, capital 2do. It was contended, "That by the com mon law, not only dolus but propositum was necessary; and that slaughter committed impetu et rixá were not to be punished capitally." And to this purpose, the authority of the learned Voet, was cited, who seems to say, That in rixá, if the person cannot be discovered who gave the deadly wound, the ordinary punishment should not take place. But when this matter is considered, it is plain there arises no good argument for the pannel from the common law: For though there is a difference to be made between propositum and machinatio præmeditata, and sudden passion and heat of drink, determining the will to commit the crime; yet as laws were made and became necessary, chiefly from the depraved passions of mankind, they cannot af ford a sufficient excuse against the ordinary punishment of an atrocious crime; and there is dolus, when a crime is even committed of a sudden, although there be no forethought: So it is commonly said, that opportunity makes the thief, and theft is committed impetu, neverNor is it necessary to prove or libel a forethought in the commis- 'condemned to the Death should not be redeemed, "It is statuted and ordained, gif any man, in any time coming or bygane, is con. vict or attainted of slaughter, reif, or any other crime touching life and limb, common justice shall be done upon him, without any ransome." Here slaughter in general is mentioned, and justice was to be done upon the person convict of it, and the punishment by the title was plainly death: so that, at com. mon law, slaughter in general was capital. The next paragraph does indeed save the king's power (which must be the power of pardoning), and the liberties granted by the king to the kirk and kirkmen, and other lords; which must be understood of special immunities in the case of manslaughter: for no privilege was to protect against murder upon forethought 3 and the exception confirms the rule. passage cited from the learned Voet, rather confirms this doctrine, That if in rixa, which must suppose suddenty, the person who inflicted the mortal wound was discovered, he was to be subjected to the ordinary punishment. And the same author, § 9. of that title, observes, That though such as commit slaughter, calore iracundia, may be said impetu delinquere ; | yet there, "neque judicium, neque assensus animi, neque voluntas deest;" and says, That a person provoked by verbal injuries, how great soever, was not free from the pana ordinaria. And the truth is, if passion and provocation were sufficient to excuse slaughter, it were in vain to lay down the rules so anxiously conceived in the laws concerning the "moderamen inculpatæ tutele," where the slayer must prove that he was "constitutus in periculo vitae." And had the case stood otherwise in the Roman law, it could never have been By chap. 43, of the statutes of king Ro doubted, when jealousy was the rage of a man, bert 3, it is statuted, "That na man use any and adultery the highest provocation against a destruction, herships, burning, reif, slaughter, husband, and a real injury; the question could in time to come, under the pain of tinsel of never have been stated to be determined by the life and goods:" whereby the pain of death emperor, as in l. 38, ff. § 8, ad legem Juliam de is clearly made the punishment of slaughter adult. Whether a husband, "impetu tractus in general. And in the immediate subsequent doloris, uxorem in adulterio deprehensam in- chapter, the sheriff was to take diligent inquiterfecerit," was liable to the pœna legis Cor-sition of destroyers of the country, or such as nelise de Sicariis? And who, by that decision, had destroyed the king's lieges with herships, upon the peculiar circumstances of the case slaughter, &c. and was to take bail from them, was exeemed [exempted], and nevertheless if arrested, to compear at the next justicemade subject, si loci humilis, of being condemn-ayr; and if bail was not given, the sheriff was ed ad opus perpetuum, and if honestior was to be condemned relegari in insulam. But as the case must be determined upon the law of Scotland, it is unnecessary to dwell too long upon the arguments drawn from the Roman law. Stio, It was contended for the pannel, "That by the law of Scotland, slaughter and murder were of old different species of crimes, and only murder committed upon forethought felony was properly computed murder, and punished as such; but that slaughter committed upon suddenty, or chaud melle, and in rirá, was deemed only homicidium culposum, and not punishable by death." And to support this position, several acts of parliament were appealed to, by which it was statuted, that murder was to be capitally punished; but chaud melle, or slaughter committed upon suddenty, was to be punishable according to the old laws: and that in this case, if the pannel had even killed Bridgeton, at whom he aimed the thrust, in the circumstances above set forth, it was not murder upon forethought, but upon suddenty and high provocation. To this it was answered, That this doctrine, so directly contrary to the received opinion, had little countenance from the old laws and acts of parliament, less from the constant practice before the act of parliament king Charles 2, in the year 1661, and stood in plain contradiction to this last law, and the constant practice and repeated decisions of the Court of Justiciary from that time down to this day. By the old law, particularly chap. 3, of the first statutes of king Robert 1, intitled, Men to put him to the knowledge of an assize: "And gif he be taynt with the assize for sic an trespassour," it is said, " He shall be condemued to death" which seems only to relate to manslaughter, and not to murder upon forethought felony, which was one of the pleas of the crown, to be tried only before the king's justiciar; as is evident from chap. 11, king Malcolm 2's laws, and chap. 13, and 15, whereas slaughter might be tried by the sheriff, where there was a certain accuser, as appears from book 1, of the Regiam Majestatem, chap. 1, § 7, 8, 9. There are sundry others of the old statutes, that seem plainly to pre-suppose that slaugh ter was capital, and particularly these of Alex. ander 2, chap. 2, § 3, 4, 5, 6. And so Skene in his Treatise of Crimes, tit. 2, chap. 6, says, “That slaughter in rixá, or chaud melle, is generally punished by death, and confiscation of the moveable goods pertaining to the trespassour; but with this difference, that the girth or sanctuary was no refuge to him who commits slaughter by forethought felony, but he should be delivered to the judge ordinary, to underly the law:" which plainly appears from act 23, parl. 4, James 5, whereby masters of girth are ordained to deliver up such persons as are guilty of murder upon forethought felony. And it is in vain to found upon Law 90, parl. 6, James 1, which says in the end, "Gif it be forethought felony, he shall die therefore;" because the act relates to all manslayers; and though that particular and most atrocious species be mentioned, as |