Page:Account of the trial of Captain John Porteous.pdf/6

(6) support the Execution of the Sentence against Wilson, and in Case of a violent Rescue, to repel Force by Force, amounted to a flat Order from the Magistrates to fire when it became necessary; and that the violent Assault by the Mob with Stones, in order, as the Pannel believed, to carry off the Offender, in Hopes of recovering him to Life, made it necessary to repel Force by Force which ought to be sustained as a total Defence against the Indictment, at least as Circumstances fit to mitigate the Punishment, and restrain it from the pæna ordinaria, since the Pannel being versans in licito and engaged in the Discharge of a lawful Piece of Duty, if any Excess was committed by him, it ought not to be attended with capital Punishment, but ought to be corrected extra ordinera, according to the Degree of the Excess &c.

To these it was answered, That tho' it were true that the Magistrates upon just Apprehension of a violent Rescue of the Criminal, had ordered Powder and Ball to be distributed to the Guard, had directed the Pannel at all Hazards to support the Execution, and prevent a violent Rescue; and had even told him in case of Necessity, he was to repel Force by Force, it will not in the least follow that these Orders could in any degree justify him, exccept in case of Necessity, and an Attempt made towards a violent Rescue; That no Order from any civil Magistrate whatever, could justify so horrid a Barbarity, and that tho' the Magistrates had ordered him on the Spot to fire upon innocent People, it could not in the least acquit him, since he was not at all bound to obey such illegal Orders. That the Pannel does not pretend to have had any Orders to fire, except in the Case of a violent At-