1705 Henderson, writer in Edinburgh, and the deponent, were in company together at Burntisland, and had drunk hard. Haines fell into a melancholy fit, and Henderson inquiring the reason of it, Haines said, 'It is a wonder, that, since we did not sink at sea, 'that God does not make the ground open and swal 'low us up when we are come ashore, for the wick⚫edness that has been committed during this last voy.

age on board of that old bitch,' pointing to Captain Green's ship. After this, he went a walking in Burntiland Links with Haines; and the deponent happening to mention to him, that Captain Madder's uncle was burned in oil for attempting to burn the Dutch ships at Amsterdam, Haines answered, • If what Captain Madder had done, during this last voyage, were as well known, he deserved as much as his uncle had met with.'-John Henderson, writer in Edinburgh, deposed conform to the preceding witness, in every thing save the conversation that passed between the said witness, and Haines the prisoner, in Burntisland Links.—Ann Seton, in Burntisland, confirmed the preceding conversation, except that which happened between Haines and Wood in the Links.

Besides these depositions, the prosecutor produced in Court Captain Green's journals, from which it appeared, that the most anxious and minute instructions had been given to Captain Green by his owners, that no letter should pass between them but in cypher, and that even these should be addressed to a third person; and that, during the voyage, no letters whatever should be sent by any of his crew to England,

The jury returned the following verdict: They, 1705 by plurality of votes, find, That there is one clear ❝ witness as to the piracy, robbery, and murder, libelled, and that there are accumulative and concurring presumptions proven for the piracy and ' robbery so libelled: but find, that John Reynolds, second mate of the said ship, was ashore at the time " of the action.' The Court, on the 21st of March, sentenced Captain Green and four of his crew, to be taken to the sands of Leith on the 4th of April, and hanged till they be dead; four more of the crew to suffer in the same place on the 11th of April; and five more to meet the like fate on the 18th of that month; and they dismissed John Reynolds from the bar.

As the factions into which Scotland was then divided about the depending treaty of Union, did each of them take up this cause as a matter of party, the faction which favoured the Union maintained the prisoners' innocence, and on this ground solicited a pardon for them. The party, again, that opposed the Union, which was much more numerous, and fully more violent, held the evidence of the prisoners' guilt as equal to demonstration, and resented the attempt to obtain a pardon for the prisoners with the highest indignation. Three of the convicts, Captain Green, Madder his first mate, and Simpson the gunner, suffered on the day appointed. The rest were reprieved from time to time, and finally pardoned. Green and Madder, some days before their execution, published a paper which they called their last speech. In this they maintained their innocence; a circumstance which makes no impression upon me,

1705 when I consider, that not only the Queen could par. don, but the Scottish Privy Council could reprieve them, and that they entertained hopes of pardon till the last hour of their lives. On the other hand, three of the convicts, Linstead, Haines, and Bruckly, emitted, after sentence of death had passed upon them, judicial confessions and declarations, acknowledging that Captain Green and his crew were guilty of the piracy and murder libelled. And I must acknowledge, that I look upon this confession as entitled almost to as little credit as Captain Green's denial of guilt; for, as the latter built his hopes of pardon from the English faction, upon the declaration of his innocence, so the former might ground their expectations of mercy from the Scottish faction, upon flattering them, by confirming the guilt of Captain Green and his crew.

John Maciver and Archibald Macallum, Merchants in Greenock, for sinking and casting away of Ships, and piratically relanding and selling their Cargoes, after Entry in the Customhouse, for the purpose of Defrauding the Underwriters and the Revenue.

1784 THE prisoners were prosecuted before the High Court of Admiralty, at the instance of Ilay Campbell, Esq. his Majesty's Advocate, and John Monro, Esq. Procurator-fiscal of that Court. The indictment sets forth, That, by the common and statute law of this

'realm, the wilfully casting away, sinking or otherwise 1784 destroying of ships, for the purpose of defrauding the underwriters, or the revenue, and piratically relanding and selling, or otherwise disposing upon the cargoes of such ships, after these had been entered in the Customhouse for exportation, are crimes of a heinous nature, and severely punishable.* Farther,

any

That, by an act of King George I. an. 4to, cap. 12. and by Geo. I. an. 11mo, cap. 29. it is declared, that whoever shall destroy, or procure to be destroyed, the ship of which he is an owner, officer, or mariner, to the prejudice of any person who may have -insured the goods with which she was loaded, or of merchant who may have goods aboard, or that of any owner of such ship, shall suffer, as in cases of felony, without benefit of clergy: yet, that the prisoners, upon one or other of the days of April, May, or June, 1781, being owners of the ship called the Endeavour, then in Greenock, did freight the vessel for Halifax in Nova Scotia, loaded her with a variety of goods for the said port, and insured them at London and Glasgow for a large sum upon the said destined voyage: that the prisoners did form a design of relanding the said goods in whole or in part, with a view to defraud the underwriters and the revenue; and, accordingly, did reland part of the said goods before the vessel left the Clyde: that the prisoners also formed an intention of destroying the ship, gave directions for that purpose to James Robertson, the master, and Neil Macallumn, the first

*Records of Admiralty, 19th May, 14th, and 15th Jene,

1784.

1784 mate; and prevailed upon them by money, good deeds, or promises, to accomplish their wicked purpose. In consequence of this combination, the mas ter and mate bored holes in the bottom of the ship; and, upon her being taken by an American privateer in the course of the voyage, two holes were found in her bottom, the one plugged up, the other open, and every thing ready for the final completion of the prisoners' purpose: notwithstanding all which, they sought and recovered from the underwriters the sums insured on the ship, to the amount of several thousand pounds. The indictment also charged the prisoner, Archibald Macallum, with crimes of a similar nature, in relation to a vessel called the New York, bound for the ports of New York and Philadelphia. And, farther, that he did receive drawbacks and bounties upon certain goods which he had entered in the Customhouse, as part of the cargo of the said ship, for exportation, but which goods he did fraudulently reland, and dispose of for his own

use.

Counsel were heard at great length, and informations also were ordered upon the relevancy of the indictment.

It was contended in the information for the prisoners, that the acts 4th and 11th George I. upon which the indictment was laid, did not extend to Scotland. Many acts of Parliament, it was said, have been passed since the Union, which neither were meant to extend, nor could be construed to extend to this part of the united kingdom. This must be the case where an act is grafted upon statutes passed in England before the Union, and where