alexander MGROWTHERS case July force rely on as a defence S C saint Tr east  P C in the case of Alexander MGrowther there be full evidence touch his have  be in the rebellion and his act as a lieutenant in a regiment in the rebel  army call the duke of Perth regiment the defence he rely on be that he be  force in and to that purpose he call several witness who in general swear that  on the that of August the person call duke of Perth and the Lord strathallan  with about twenty highlander come to the town where the prisoner live that on  the same day three several summons be send out by the duke require his tenant  to meet he and to conduct he over a more in the neighbourhood call Luiny more  that upon the three summons the prisoner who be a tenant to the duke with  about twelve of the tenant appear that then the duke propose to they that they  shall take arm and follow he into the rebellion that the prisoner and the rest  refuse to go whereupon they be tell that they shall be force and cord be bring  by the duke be party in order to bind they and that then the prisoner and ten  more go off surround by the duke be party these witness swear that the duke of  Perth threaten to barn the house and to drive off the cattle of such of his  tenant as shall refuse to follow he foster they all speak very extravagant of  the power lord in Scotland exercise over their tenant and of the obedience  even to the join in rebellion which they expect from they Lord chiefjustice  lee in sum up observe to the jury that there be not nor ever be any tenure  which oblige tenant to follow their lord into rebellion and as to the matter  of force he say that the fear of have house burn or good spoil suppose that to  have be the case of the prisoner be no excuse in the eye of the law for join  and march with rebels N B if threat of this kind be a excuse it will be in the  power of any leader in a rebellion to indemnify all his follower the only  force that do excuse be a force upon the person and present fear of death and  this force and fear must continue all the time the party remain with the rebel  it be incumbent on every man who make force his defence to show a actual force  and that he quit the service as soon as he can agreeable to the rule lie down  in oldcastle case hale that they join pro fear death to go back how quickly to  be able he then observe that the only force the prisoner pretend to be on the  that of August and that he continue with the rebel and bear a commission in  their army till the surrender of Carlisle which be on or about the that of  December the jury without go from the bar find he guilty but he be not execute  N B all the judge that be in town be present and concur in the point of law  N B many of the Scotch prisoner make force their defence and produce the same  sort of evidence as MGrowther do and the same direction in point of law be  give as in his case and the matter of fact whether force or no force and how  long that force continue with every circumstance tend to show the  practicability or impracticability of a escape See discourse chap S be leave  to the jury on the whole evidence August scotchmen try in England for treason  commit in Scotland this day bill of indictment be find against Alexander  Kinloch and Charles Kinloch and other of the rebel to the foster number of  twentytwo the overt act be lie in different shire in Scotland accord to the  respective case of the prisoner and then the court adjourn to the d of  September for the arraignment of the prisoner foster er p September on this  day there be no other judge in town Mr justice foster sit with two other  commissioner for the arraign the prisoner Alexander Kinloch and Charles  Kinloch and the rest of the prisoner who be Scotchmenborn upon their  arraignment several deliver a paper into court whereof the follow be a copy as  I intend to insist on the benefit of the Act of union by which all the law in  Scotland at that time which concern private right be save to the native of  Scotland and declare to be unalterable by the parliament of great Britain  except for the evident utility of the subject within Scotland and as I be a  subject bear within Scotland and stand indict for treason charge to have be  commit by I in Scotland I humble beg that the court will be please to assign I  counsel and a solicitor to advice I as to the manner of frame and the use to  be make of this defence and that the court will be please to indulge I in a  few day time to advice with they before I be compel to plead lest by plead I  may be deprive of the benefit of any such defence Mr justice foster tell the  prisoner that copy of their indictment have be deliver to they in due time  they ought now to have be ready to plead such plead as they will stand by and  that the court expect they shall now plead accord he tell they withal that if  the matter contain in their paper will avail they at all they will have the  full benefit of it upon not guilty since it amount to no more than that their  case be not within the Act of the last session by authority of which Act alone  this court sit they then several plead not guilty