he was in company with Bartholomew about | two years ago, at the Blue Anchor in Hastings; when be told him, that the eldest sons of freemen had an undoubted right, and that he was admitted upon that right, though he had before declined it, by reason of the taxes.

Mr. Dodson was also present, and he says the same.

Upon this Bartholomew was confronted with Dodson and Broadway: and he said that he was not with them at such a place, and that there is no such sign as the Blue-Anchor at Hastings. He denied he said the eldest son had a right; but owns he said, he thought they came to pry into the secrets of the corporation. Upon this evidence, gentlemen, it will be proper for you to consider,

First, Whether you believe there is any posi tive right in this borough for an eldest son to be free? As to the right that has been set up for the defendants, That all is at the will and pleasure of the mayor and jurats, and that there is no right at all to be free; it is such an extraordinary custom as I hardly ever heard of, and know no such instance any where. Some right there must be, although the magistrates may have taken it into their own hands. Therefore the question will be, Whether you believe there is a right in the eldest sons to be free?

father, by laying it in respect thereof.' And as to that, the ancient Customal says, "Uno modo, per nativitatem infra libertatem suam, si pater suus, tempore nativitatis suæ, fuit liber:" That every body has a right by birth within their liberty, if his father at the time of his birth was a freeman. This the ancient Customal mentions; but this is not conclusive. Therefore, gentlemen, you will consider it with the evidence of the living witnesses, and none of them have made that a necessary qualification. One of them said, that the father must be free before the birth of his son; and another said, it made no difference, whether born before or after: But none of them said positively, that he must be born within the liberty, after the admission and swearing of his father. Therefore you will consider, whether these two qualifications are proved essential to the right to be made free.

In the next place, it will be proper to consider, that the Customal supposes that no man has a right, unless he be resiant; and it tends to enlarge the freedom of the borough, to let in persons not resident: But very little positive evidence has been given of that.

The defendants' witnesses have sworn positively, that the mayor and jurats can admit none but resiants; and yet, that they may admit honorary freemen who are non-resident: Though the ancient Customal has an express

And here is one method laid down of an admission of freemen in right of a purchase, and that, they shew you, has never been complied with.

But they have read many instances of persons who were admitted upon the first right; thirty-five they have read who were admitted as eldest sons, or sons: of the first species, they read eleven in number; and you must take it together with what the living witnesses tell you, who all say, that they have taken the custom to be so, that the eldest son has a right. | What Boykett swore is very material, that, when he applied to be admitted, Waller the town-clerk asked, if his father was a freeman? The mayor said, No; to which Waller replied, Then do what you please.

Gentlemen, for the defendants, the witnesses have sworn, that they know of no right to freedom in this borough, but at the pleasure of the mayor and jurats; and that during their time, and though particular mention is made in the entries that they are sons, in respect of the difference of the fine, and that they are admitted for paying 6s. 8d. they tell you it is not at all material being the son of a freeman.

Gentlemen, in the next place you will consider, if you believe there is any right for the eldest sons of freemen, then whether it be necessary that he be born in the town, and after his father was made free; because the plaintiff has made it necessary for him to prove that he be born there after the admission of his

be free, a man must be resident. They swear to pay scot and lot, and to maintain the liberties of the five ports, and particularly of the port where they are commorant; which implies, that every freeman should be commorant. And the counsel for the defendants have mentioned, that every freeman is to take an oath to maintain the rights of the five ports, and especially of that port where he is commorant.

You will consider therefore, gentlemen, whether this imports as a necessary qualification, that in order to be free, a man must be resident? The counsel for the plaintiff did not ask the witnesses as to this point of residence.

The witnesses for the defendants all swore, they took it to be so; but yet that honorary freemen, who were not resident, might be made free.

It will be proper for you therefore, gentlemen, to consider,

First, if you believe, on this evidence, that there is no right in the son of any freeman to demand his freedom of the mayor and jurats, but that all depends on their pleasure:

But, if you believe that there is a right in the son of a freeman, and that the mayor and jurats cannot deny him his freedom: Then

You will consider, whether the two qualifications, of being born in the borough, after the freedom of the father, are necessary, or no?!

If you believe they are not necessary; but that whether he be born in or out of the borough, or before or after he was made free, makes no difference; in that case you must find for the defendants.

out any just cause or occasion, and without lawful warrant, more especially when committed in the public streets of a city, by a person lawfully commissioned by the magistrats thereof, to command such band of armed men for the preservation of peace and order, and for the defence of the inhabitants, and others resorting thereto, are crimes of a high nature, and severely punishable: yet true it is, and of verity, that he the said John Porteous had presumed to committ, and was guilty and accessary, or art or part, of all and every, or one or other of the foresaid crimes aggravated as aforesaid: In so far as, upon the 14th day of Aprile last, or one or other of the days of the said mouth, when the deceast Andrew Wilson, sentenced to be hanged to death by the high Court of Justiciary, was to be executed at the Grassmarket of the city of Edinburgh, he being at that time one of the captain lieutenants of the town guard of the said city, lawfully commissioned by the magistrats and town council thereof; and in the ordinary course of rotation with the other officers of the said guard, being ordered to attend at the said execution to preserve the peace, and support the executioner in the vancy; upon which he observes as follows: "Nothing is here said of the conduct of the mob, the true and indeed only ground of justification on the part of Porteous; but his defence is inade to rest solely on his behaviour at the time. There was, indeed, both in the information for the prisoner, and in his petition afterwards to queen Caroline, too much said on his supposed conduct at the time (his not firing, or giving orders to fire) and too little on the general argument in justification, arising from the conduct of the mob, and the consequent plea of duty on the part of the soldiers. It is plain from the interlocutor of relevancy, and still more from the sentence following on the verdict, (which last expressly found, that the pannel and his guard were attacked and beat, and several of the soldiers bruised and wounded) that the Court were influenced by the circumstance, of =Porteous's conduct at the time betraying symptoms rather of a revengeful and malicious purpose, than shewing that he acted from a sense of duty."

He adds, that "in the Case of Sullivan and Black, two soldiers, tried for murder before lord Auchinleck at Inverary, in Sept. 1763, who had been assisting revenue officers, the interlocutor seemingly narrowed the prisoners' defence, since it finds the murder relevant; but 'allows the prisoners to prove that the same was com *mitted in the just and necessary defence of 'their own lives, and when they were in the • execution of their duty, and all facts and cir'cumstances tending to their exculpation,' as if the 'periculum vita' was deemed necessary to exculpate in such a case. The jury found not guilty; the fact being, that a rescue was attempted by persons armed; and the soldiers first fired over their heads to intimidate, before they fired ultimately."

discharge of bis duty, having under his com mand a detachment of about seventy men, he did then attend in the said Grass-market accordingly, and after the said Andrew Wilson had hung upon the gallows, erected for his exe cution, until he was dead, at least for a considerable time, and so long as there was ground to conclude he was dead, he the said John Porteous, shaking off all fear of God, and respect to his majesty's laws, and conceiving a most wicked and malicious purpose of destroying, wounding and maiming numbers of his majesty's subjects, the inhabitants of the said city of Edinburgh, and others there assembled at the said execution, without any just cause or necessary occasion, ordered the said detachment of the guard under his command to fire upon the people so assembled at the said execution; and the men, at least severals of them having fired, as it seems he apprehended, over the heads of the multitude, so as to avoid doing them harm, he with threats and imprecations, repeated his commands to fire, calling out to them to level their pieces, and be damned, or words to that purpose; and at or about the same time, he levelled the firelock that was in his own hand, taking aimh at Charles Husband, servant to Paul Husband, confectioner in the Abbay of Holyrood-house, and most wickedly and murderously fired at him, whereupon he immediately dropped to the ground, having received a wound by a bullet or large drop of lead on the left side of his head, which pierced into his brain, and another large wound likewise by a bullet or large drop of lead on the left side of his neck, and a third wound in his body, and a fourth wound in his left hand, at least a mortal. wound, or wounds, whereof he died in some short space thereafter; at least, he did so level his piece, and appeared to take his aim at some one of the innocent multitude who happened to stand directly over against him, and he did fire, and upon bis so firing, the said Charles Husband, at least one or other of the persons particularly after-mentioned, or more of them, did immediately drop to the ground, having received a mortal wound or wounds, whereof they soon after died. And by his said example and command, severals of the said guard, to the number of twenty, less or more, did at the same time with him, or soon after him, fire upon the innocent multitude, whereby all, or one or more of the following persons received mortal wounds, whereof they soon after died, viz. Archibald Ballantyne, son to John Ballantyne, younger, dyster in Dalkeith, received several wounds, with bullets or large drops of lead, which pierced into his body, at least a mortal wound or wounds in his head or body, whereof he died a few days thereafter; and John Anderson, son to George Anderson in Craighead, drover, received a wound in the head with a bullet or large drop of lead, at least a mortal wound or wounds in his head or body, so that he died in few hours thereafter; and the following persons were grievously maimed, hurt, and wounded, to the great danger of their lives, viz. Margaret

ment of seventy armed men of the city guard, and having conceived a most wicked and malicious purpose of destroying, maiming and wounding numbers of his majesty's subjects, the inhabitants of the said city, and others as sembled at said execution, without any just cause or necessary occasion, ordered the said detachment under his command to fire upon the people so assembled; that the men under his command, having probably, in his apprehension, fired over the heads of the people, he, with threats and imprecations, repeated his commands to fire, calling out to them to level their pieces, and be damned; that at or about the same time he levelled the firelock that was in his own hand, taking aim at one Charles Hus band, and fired at him, whereupon he immediately dropt to the ground, having received wounds, whereof be instantly died; at least, that he levelled his piece, seeming to take aim at some one in the croud, and fired it; and that upon his firing, the said Charles Husband, or one or other of the persons in the indictment mentioned dropt, having received wounds by ballets, of which they instantly died; and that by his commands and example, several of the city guard under his command, fired upon the innocent multitude, whereby the persons particularly mentioned in the indictment, were killed, maimed and wounded.

The indictment further charges, that not contented with this barbarity, the pannel, after he had marched off his detachment towards, or unto the place or street called the West-bow, again ordered the men under his command, to face about add fire upon the people, and at or about the same time, fired a musket or firelock that was in his own band, having either reloaded, or caused to be re-loaded the piece for merly fired by him, or having taken another out of the hand of one of the guard; and that several of the said guard did, upon that second example and command, fire upon the multitude, whereby the persons described in the indictment, were killed or mortally wounded: and the indictment concludes in common form, that the pannel is guilty, or actor art and part of the crimes aforesaid, or one or other of them.

The charge in this indictment is so beinous, that one should have imagined it would have been decent in the pannel, to have made no objection to the relevancy, and to have founded upon no defence for avoiding the effect of the libel, if true, but to have contented himself with a flat denial thereof, reposing himself upon his innocence, if he is truly not guilty of the facts alleged, without any other desire, but that of having a fair examination of unbiassed witnesses, to be produced by him as well as the prosecutor, in order to discover the real circumstances of the transaction.

But his procurators, it seems, thought it their duty to move every objection against the relevancy of the lybel, and to offer every deVOL. XVII.

They informed the Court, therefore, on béhalf of the pannel, That the magistrates apprebending, that some violent attempt might be made for rescuing Wilson, the offender sentenced to be hanged, had ordered the pannel to attend the execution, with the greatest part of the city guard, to support and protect the executioner in the discharge of his office, with directions to repel force by force; that to make those directions effectual, powder and ball were by the town-treasurer delivered out of the town's magazine to the city guard, the morning of the execution, with directions to load their pieces: that besides this precaution, the danger of the rescue appeared to the magistrates so great, that they desired of general Moyle, and obtained a detachment of the regular troops, who were posted near to the place of execution, in order to support the city guard if there had been occasion; and whose commanders were told that the lord provost would give them authority to fire, if it should prove necessary; that the pannel with the town guard attended accordingly the exe cution; that when the offender was hung up on the gibbet, the magistrates retired from the scaffold, and repaired to a house over against it in the Grass-market; that after the offender had been hung up for some time, the multitude became unruly, and began to fling stones of great size, and with great violence, that some of the guard were thereby hurt; one had his shoulderblade broke, others were bruised, and the tim. ber of the drum was beat to pieces; that the insolence of the mob growing still greater, and they pressing from all sides upon the guard, the pannel, who apprehended they might have intended to carry off the criminal, who by this time was cut down, in order to attempt the recovering him to life, found it necessary for him to keep off the multitude by threats and menaces; that to this end he presented his piece, first to one quarter, and then to another, calling to the people to stand off, and threatening if they did not, he would fire; that nevertheless, be neither fired himself, nor gave any orders to fire, but, on the contrary, when some of the guard, provoked by the hurts they received, had without his orders or authority, presumed to fire, whose example was followed by several others, he did all he could to prevent that mischief, by commanding them to desist, and actually did beat down the muzzle of one of the men's pieces, who was presenting it in order to fire; that finding he could not be obeyed, he endeavoured to march off his men, and prevailed with several of them to follow him some small way up the West-bow, when again some of those men who followed him, provoked by what he did not know, faced about and fired towards the Grass-market; that the first notice he had of this firing was by hearing it, 30