The Lotting of Prisoners
(The Scottish History Society "Prisoners of the 45" Vol. I Pages 7 - 23) https://scottishhistorysociety.files.wordpress.com/2013/06/prisoners-of-the-45-volume-1.pdf
Following the Battle of Culloden some 3,470 prisoners had been taken, including men, women and children. It had been decided by the Privy Council in London that the prisoners of the rising in Scotland should be tried in England, thus demonstrating a total lack of trust in the Scots at that time and the determination to break the back of the rebellion and Highlanders' cause, despite it breaching the Treaty of Union between Scotland and England.
The prisoners were mainly taken to Inverness and on the 10th June, seven leaky transport ships named Margaret, Mary, Thane of Fife, Jane of Leith, Jane of Alloway, Dolphin, and the Alexander & James, set sail for England under the escort of H.M.S. Winchelsea. The Duke of Newcastle first required the Savoy Barracks in London to be prepared to accept the prisoners, and then on 18th June reported that, "His Majesty having been pleased to direct that three hundred of the rebel prisoners which are now on transports in the River should be carried to Tilbury Fort, in order to be kept there until His Majesty's further pleasure shall be known".
The first recorded mention of Jacobite prisoners at Tilbury Fort is on the 11th August, when at least 268 prisoners were landed, a redundant gun powder magazine building in the southeast bastion of the fort being used as the prison. Other prisoners fared less well, as they stayed on the transport ships or prison hulks moored in the river, however, the inhumane conditions brought on cases of typhus and general sickness, and it was agreed the transports could move off station and anchor close to Tilbury Fort so that prisoners could be "daily landed for air and may be attended by the apothecary". By the 11th of September 1746 the number of prisoners in the fort had dwindled to 223, 45 having died.
The Scottish History Society has published, in three well-documented volumes, "Prisoners of the '45", which lists 3,470 people known to be in custody. Some had played prominent parts in the Rising, others were accused of nothing more serious than that they had been heard to "wish the rebels well" or to have drunk the Prince's health. Such charges, however, could mean transportation, even death. Prisoners at Tilbury were selected for trial on the basis of every 20th man, this was decided by 'lotting', utilising a beaver hat containing 19 white slips and 1 black slip of paper.
It is recorded that one hundred and twenty prisoners were executed: four of them, peers of the realm, were executed on Tower Hill including the 80 year old Lord Lovat, who was the last person to be beheaded in public in England, beheading being a privilege of their rank: the others suffered the barbaric ritual of hanging, drawing and quartering. The remainder were dealt with in various ways: 936 were transported to the colonies, there to be sold to the highest bidder: 222 were banished, being allowed to choose their country of exile: 1,287 were released or exchanged: others died, escaped, or were pardoned and there were nearly 700 whose fates could not be traced.
Other Jacobite prisoners, especially those taken at the capture of Carlisle were held in other prisoners around the country, such as Carlisle, Chester, Lancaster, York and Lincoln. As with the prisoners held at Tilbury, the "Lotting" system was used to decide their fate.
Instructions contained in an Order in Council of 1715 which provided for the selection of individuals for trial from among the prisoners taken during that Rising were revived. This selection was effected by the simple process of drawing lots and taking one man in twenty for trial. A new Order (S.P.Dom., 88-17) was accordingly promulgated on 23rd July 1746, the provisions of which were as follows :
"His Majesty this day in Council, taking into consideration the great Numbers of Persons detained in Custody on account of the late Rebellion, and how much it imports the publick Peace of the Kingdom that a speedy Example be made of some of them, hath thought it fit to Order, and it is hereby Order'd by His Majesty, . . . That such Person or Persons who shall be appointed for that Purpose, shall, after setting apart such of them as shall be thought proper for Witnesses, cause the rest of the said Prisoners, not being Gentlemen or Men of Estates, or such as shall appear to have distinguish'd themselves by any Extraordinary Degree of Guilt, to draw Lots, to the Intent that every Twentieth Man on whom the lot shall fall shall be appointed for Tryal in order to due punishment; and, if any of the said Prisoners shall refuse to draw, the Lot is to be drawn for them in their Presence; and the Residue, on whom the Lot shall not fall, arc to be respited his Majesty's Mercy, on such conditions as he shall be graciously plcas'd to think fit."
A copy of this Order was forwarded on 3rd October 1746, along with the following letter {S.P.Dom., 88-17), to the persons "appointed for that purpose," one of whom was Captain Stratford Eyre, Battereau's regiment:
"His Majesty, having been pleased by an Order in Councill to direct That a speedy example should be made of the Prisoners detained in Custody on Account of the late Rebellion, and that the said Prisoners should draw lots, to the Intent that every Twentieth Man on whom the lot shall fall shall be appointed for trial, in order to due Punishment, I send you herewith the said Order, and am to signify to you His Majesty's pleasure, that you should take Care that the same be duly put in Execution with regard to the several Prisoners that are now at Tilbury Fort, or on board the Transports lying off that Place. As to the Prisoners upon whom the Lots shall not have fallen, his Majesty is graciously pleas'd to declare his Intention to extend his Mercy to them, provided it shall be their own Request to be pardon'd on such Conditions as His Majesty shall think proper. And that they do, in the Petition they shall sign for this Purpose to his Majesty, acknowledge their Guilt; And you will accordingly take care that an Intimation be given to the said Prisoners, that such a Petition will be favourably recciv'd."
This lotting was applied only to prisoners who were in English prisons or transports, and not to those who were confined in the Scottish prisons. Among these latter, selections for trial had already been made personally by Mr. David Bruce, Judge Advocate of the Army, and by others acting under the instructions of the Lord Justice Clerk ; and about 270 individuals had been combed out and sent to Carlisle in August 1746. The actual procedure in the drawing of lots is described in considerable detail by a prisoner, Alexander Stewart, in a letter to Bishop Forbes, dated 30th January 1749 (Lyon, ii. 236). He had been captured in Perthshire soon after the battle of Culloden, and was sent to Carlisle in a convoy which left Edinburgh for that town on 8th August 1746, and reached its destination on 17th August.
On the afternoon of that day, he says : '"a rascall of the name of Gray, Solicitor Hume's man from Edinburgh, with his hatfull of tickets, and Miller and Solicitor Web from London, presented the hat to me, being the first man on the right of all the twentie that was to draw together. I asked Gray what I was going to doe with that, and he told me it was to draw for our lives, which accordingly I did and got number fourteen. And betwixt five and six o'clock at night Webb, Miller, and Gray, and one Henderson, came all out to the yarde, where we was sitting on the grass, with a verie large paper like a charter, and read so much of it to us as they thout proper, and told us that it was to petition their King for mercy to us, and that it was to go off to London that night, and, as soon as it came back we might probably get home or else transportation, which would be the worst of it; and that we behove to put down our names at the foot of it; and them that could not, and some that would not, Miller did it for them, and told me that I might be verie glad to doe it, for such mercy that was but to hang only one of twentie and let nineteen go for transportation. . . And about eight a clock we was all cairried to the county goal that was for transportation."
In accordance with instructions Captain Stratford Eyre visited Tilbury Fort, the hospital ship Mermaid, and the transports Pamela, Liberty & Property, and James & Mary, accompanied by Lieutenant William Moore and Surgeon John Kirkes. From the 430 prisoners he excluded 52 individuals who were "set apart for Tryal" and 20 as "Evidences" against their fellow prisoners; 3 ladies had already been transferred to the custody of a messenger in London. As regards these 52 persons "set apart for Tryal" the explanation was that they came under the Exception clause of the Order in Council of 23rd July, and were marked down for trial on account either of an "extraordinary degree of guilt," their being "Gentlemen or Men of Estates," their religion, or the fact that they were required as King's Evidences. The list included such men as M'Neill of Barra, John Gordon of Achriachan (Glenbucket's son); five M' Donalds from Bcnbecula, each of whom is styled 'Gent'; Donald M'Leod of Gualtergil 'the Prince's Palinurus'; Malcolm M'Leod of Raasay ; JohnM'Kinnon of Elgol; and five clergymen, of whom one was James Taylor the non-jurant Episcopal minister of Thurso, and the others were Catholic priests. Combining Captain Eyre's lists, the distribution of the prisoners was as follows :
Lotted in Tilbury Fort 185
Hospital Ship 55
Pamela 20
Liberty & Property 46
James & Mary 49
355, of whom the' Lot' fell on 17.
Besides these there were "set apart for Tryal or further Examination, and for Evidence, who have not been lotted". 75 Making a final total of 430
Captain Eyre's report, dated 11th October 1746 (S.P.Dom., 88-60), gives details of names, ages and regiments of seventeen groups of 20 prisoners
"in the order they lotted ; and the lots being drawn, fell on the several persons whose names are expressed in Red letters, and opposite to whose names the word " Justice " is wrote."
Being a soldier he naturally divided up the prisoners as far as possible in regimental groups, and the results were that the lot fell on five men of Lord Cromarty's, four of Glengarry's, one each of Lord Lewis Gordon's, Lord Ogilvy's, Lord George Murray's, Lochiel's, Clanranald's, Lord Lovat's and Glenbucket's regiments, while the seventeenth man was William Mavor, aged fifty-one, an aleseller of Turriff, against whose name no regiment is shown, but the remark that he was "accused by James Paterson of having occasioned M'Leod's defeat at Inverury."
In the unlotted list three individuals, Murdoch Campbell, Alan M'Donald, and Neil M'Aulay, have the marginal note against them that "Capt. Ferguson reports these last men to be guilty of many acts of Barbarity, and the last two to be employed by Barrisdale to undertake to murder him."
Similar action was taken successively at Carlisle, Lancaster and York. Thus, on 27th July 1746, Mr. Philip Webb visited York Castle on the same instructions, and submitted a report of the action taken, in a Memo rendered to the Duke of Newcastle (S.P.Dom., 85-122). There were at the time in York 109 prisoners "Confined for High Treason, in Levying Warre," most of whom had formed part of the Carlisle garrison. Out of this number Webb says :
"I sett apart for Tryal pursuant to the List sent me by his Grace the Duke of Newcastle, 25 ; I sett apart for witnesses as appears by the annexed list, 8 ; the remaining 76 were thrown into 4 Lotts . . . and, the Lotts being drawn, fell on the 4 following persons, viz., Angus Campbell, William Hunter, George Saunders and Andrew Youl."
Angus Campbell as reprieved and ordered to be transported but died in York prison. William Hunter pleaded guilty at his trial in York on 2nd October 1746 and was executed on 8th November 1746 at the Tyburn on Knavesmire. There is no record of what happened to George Saunders or Andrew Youl (Probably the Andrew Scotts listed in York's records). Neither appear on the execution or transportation lists and they may have died in prison.
Folios 64-67. Report of Philip Carteret Webb [Solicitor to the Crown] on the drawing of lots by the rebel [jacobite] prisoners held at York Castle [Yorkshire], some female, resulting in the following being selected for trial: Angus Campbell, William Hunter, George Saundersand Andrew Youl [Yovill]
SP 36/85/3/64
Description: Folios 64-67. Report of Philip Carteret Webb [Solicitor to the Crown] on the drawing of lots by the rebel [Jacobite] prisoners held at York Castle [Yorkshire], some female, resulting in the following being selected for trial: Angus Campbell, William Hunter, George Saunders, and Andrew Youl [Yovill].
List 1 of witnesses set apart: Henry Cheap; Walter Leverock; John McDermot; William Johnson; John Marr; William Ogilvy; John Stewart; John Taylor.
List 2: Robert Adams; William Bell; George Bean; Alexander Cattenach; Dugall Campbell (x2); John Cameron; Alexander Campbell; John Campbell; Alexander Cameron (x2); William Dickinson; John Donats; Alexander Davidson; Andrew Edwards; John Gordon; Angus Grant; Alexander Goodburne; John Grant.
List 3: Alexander Grant; Joseph Hinchcliff; John Johnson; David Joiner; John Kennedy; George Keith; William MacClean; Duncan McPherson; Angus McIntosh; Peter McIntosh; James McPherson; John McCloud; Duncan Monro; Alexander McLeod; Angus McLeod; Charles Morgan; John Murray; John MacDonald; Thomas Ogden.
List 4: Donald McGillis; Angus McDonald; Donald McDonald; Allen McDugall; Angus McDonald; Daniel McKoy; Daniel McGillis, the father; Malcolm McCormack; Alexander Marnock; George Nicholl; James Nelson; Thomas Ross; John Robertson; Daniel Ross; William Robertson; Charles Sheldon; John Stewart, the father; John Smith; William Sharpe.
List 5: Isabel Chambers; Elizabeth Grant; Isabel Hamilton; Mary Kennedy; Jane McKenzie; Elizabeth McFarling; Elizabeth Rob; Margaret Simpson; Daniel McGillis, aged 13; James Lackey; Hector McGillis; John Scott; John Stewart; Adam Sutherland; John Thompson.
Dated at York Castle.
Date: 1746 July 27 Held by: The National Archives, Kew.
Disposal of Prisoners "Excepted" from Lotting.
As shown above, a certain number of prisoners were debarred from the privilege of drawing lots for their disposal. The selection of many of them was made by the Duke of Newcastle himself, and was based, no doubt, on the reports of informers, or of the military and legal authorities in Scotland ; in addition, a supplementary list of such persons was prepared by Mr. Philip Webb when he went round the English prisons to superintend the lotting.
SP 36/92/1/81
National Archives Folios 81-88. List of rebel [Jacobite] prisoners on whom the lot has not yet fallen and who have petitioned His Majesty for Mercy [and transportation]. At York Castle [Yorkshire]:
Robert Adam William Bell George Bain
Dougall Campbell Alexander Cattanach Dougall Campbell
John Cameron Alexander Campbell John Campbell
Alexander Cameron Allan Campbell William Dickinson
Jean Donnatis Alexander Davidson Andrew Edwards
John Gordon Angus Grant Alexander Goodband
John Grant Alexander Grant Joseph Hinkley
John Johnston David Joyner John Kennedy
George Keith William McClean Duncan McPhearson
Angus McIntosh Peter McIntosh James McPhearson
John McLeod Duncan Munro Alexander McLeod
Angus McLeod Charles Morgan John Murry
John McDonald Thomas Ogden Donald McGillis
Angus McDonald Donald McDonald Allen McDougall
Angus McDonald Daniel McKie Daniel McGillis
Mark McCormack Alexander Marnoch George Nicol
James Neilson Thomas Ross John Robertson
Daniel Ross William Robertson Charles Sheldon
John Stewart John Smith William Sharpe
Isabell Chambers Elizabeth Grant Isabel Hamilton
Mary Kenedy Jane McKenzie Elizabeth McFarlane
Elizabeth Robb Margaret Simpson Daniel McGillis
James Lackey Hector McGillis John Scott
John Stewart Adam Sutherland John Thompson
James Shorrock Richard Leather Barrow John Cottam
Hugh Johnson Thomas Bould Thomas Charnley
Richard Procter Patrick McIntagart Alice Pinmozough
These "excepted" prisoners were, as a rule, of a class apart from the ordinary, and represented the leaders, or those who had taken a prominent part in the Rising; and they were usually sent to London. They were often accorded differential treatment in so far as their place of confinement was concerned, and were ultimately sent, according to their social position, to the Tower of London, the New Prison, Southwark, or to Newgate; from these they were often transferred to the custody of messengers —notably Mr. Dick, Mr. Money, and Mr. Charrington—who were responsible for keeping them safely in their own houses until a decision was arrived at regarding the action to be taken on their individual cases.
A good example of the method adopted in dealing with these "excepted" prisoners is afforded by the proceedings of a meeting on 13th February 1746/7, between Newcastle, Sir Dudley Ryder, and the Hon. William Murray, at which Mr. Sharpe, Solicitor to the Treasury, was present (S.P.Dom., 94-41) :
'1. Mr Sharpe to attend the Attorney & Solicitor General with the Evidence against the 66 prisoners at Tilbury who were not admitted either to Lot or Petition, and to report their opinion whether there be sufficient evidence to proceed against them, and in what manner these Proceedings should be had. Query.—Whether they should not remain till discharged by due course of law, the Evidence being strong but not sufficient to convict them.
'2. The case of the Prisoners in the Custody of the Messengers, from Ranald M'Donald to Anne M'Kinnon inclusive, to be referred to Attorney & Solicitor General. Pattison, who carried the Letter to Lord Buttevant, which was destroyed, to remain in the Messenger's House. Dr Burton . . . refer'd. [Held in York for three months] St John to find Rail or be committed. Aeneas M'Donald to remain in Messenger's Custody, till examin'd by the Secret Committee. William Parsons, notice to be given to him that he will be discharged. Andrew Cockburn to be continued in Custody. John Gray, Lieutenant in Lord John Drummond's, to be pardoned and sent over.
'3. New Gaol. No evidence against them. Law. Cushnie. Duncan Gordon. James Moody. Kenith M'Kenzie Wm M'Guire. Query.—Whether to be discharged.
'4. In Lancaster Gaol. To be discharged immediately. Thomas Jones. James Hulley. Peter Donell. Henry Painey. Thomas Gornall.
'5. Edward Barrow, Mr Sharpe to enquire into this Man's case ; and to write to Justice Dukinfield to know what evidence he can procure against Jeffrey Battersby, John Tomlinson, Daniel Meller.
'6. All the prisoners (most of them women and children) in Chester Castle to be discharged except John Kent.
'7. Mr Sharpe to inquire into Mr Buck's Memorandum concerning those Prisoners in York Castle who are not able to find Security, and to inquire whether the said Prisoners will not petition for Transportation. Query.—Lord Mordington.
'8. A Return to be made of the Names of all the Gentlemen now under Sentence of Death in the different Gaols in England who are not order'd to be transported, when condemned and distinguishing their Ranks.
'9. All French Officers, the King's subjects, to be pardoned and sent away. All others to be exchanged. [Nb. John Denatis & Louis Foure held at York,
'10. The list of Scotch prisoners to be made perfect. 'These lists, with the Attorney and Sollicitor Genl's Report upon them, to be sent to Scotland, with directions to Ld Albemarle and Major General Huske, Lord Justice Clerk and Ld Advocate, to meet together and to consider the said Lists ; to return forthwith the Names of those against whom there is no sufficient evidence, [and] the Persons whom they think most guilty and most material for the Government to bring to Justice. As for those against whom no Evidence is to be had that they should be discharged. ' As for those qhom they think most culpable and most material for the Government to bring to Justice, to bring their Names hither; and such Proceedings to be had against them as may prevent their being Discharg'd on the expiration of the Act for the suspension of the Habeas Corpus Act.
'11. The names of the French Officers in Scotland, natural Born Subjects of His Majesty, to be sent up, that they may be pardon'd.
'12. Clanranald to be excepted.'
Throughout the year 1747 and the first half of 1748 further enquiries for evidence were being carried out by Mr. Sharpe, with the assistance of the Law Officers of the Crown: and at intervals reports were submitted to Newcastle. Meanwhile the prisoners concerned remained in confinement.
A typical list of prisoners whose cases had been enquired into by Mr. Sharpe and reported upon by him (S.P.Dom., 107-28) was as follows :
"A List of the Rebel Prisoners under Sentence of Death referred to the Consideration of their Excellencys the Lords Justices." The following, upon the best information Mr Sharpe can get, appear to be really Gentlemen.
In York Castle
'9. Sir David Murray, Bart, was a Captain in the Rebel's Hussars. He is a Youth of about 17 Years of Age. His father was a Merchant at Leith and was second brother to Sir Alexr Murray of Stanhope. He is a distant relation of Lord Hopetoun, and had his Education at Douai. He has no Estate, Sr Alexr having left his Estate to Charles Murray his third Brother.
'The following prisoners in York Castle were Common Men :
William Crosby George Miles Matthew Matthew
Angus Campbell Archibald Paton Alex'r Goodbrand
John Barnaghy (15 years old) David Ogilvie William Farrier
(S.P.Dom., 107-28.)
A second list was submitted by Mr. Sharpe a few days later, dealing with 16 individuals omitted from the earlier one (S.P.Dom., 109-14) ; and 46 ' common men' in York and 47 in Carlisle who were under sentence of death. The second list submitted by Sharpe, which is undated, is as follows :
' A List of Rebel Prisoners under sentence of Death, with some additions given below.
In Carlisle Gaol
William Sharpe Esqr was one of the Gentlemen in the Pretender's Son's Life Guards. He is a Youth of about 18 Years of Age. His Father was a Merchant, and he is Grandson to the late Arch Bishop Sharp. He is said to be a Young Gentleman of very Modest Behaviour, and His Majesty's Council (sic) who Attended the Tryal and Mr Webb the Sollicitor all Join in representing him as one whom they hoped his Majesty would pardon. He has no Estate. [He was held at York before being returned to Carlisle for trial.]
Mr. Sharpe's lists were considered by the Privy Council on 20th August 1747. The Proceedings (S.P.Dom., 110-65) are detailed below :
I. The Lords took into consideration the cases of the Rebel Prisoners remaining under Sentence of Death in Southwark, York Castle and the Gaol at Carlisle; and agreed humbly to advise His Majesty, That all the Common Men viz, 46 at York and 47 at Carlisle, should be pardon'd on Condition of Transportation for Life.
' Their Lordships agreed humbly to recommend to His Majesty the following..... Persons, for a free Pardon viz:
' 2. William Sharpe, recommended by His Majesty's Councill, who attended the tryals of the Rebels. The Privy Council, then, on 20th August 1747, having considered 135 cases, agreed to advise the King to adopt the following measures in regard to them :
93 Common men, to be pardoned and transported.
21 ' below gentlemen but above common men,' to be pardoned and transported.
6 Gentlemen, to be given a free pardon.
9 Gentlemen, to be banished.
6 Gentlemen, to receive conditional pardons.
Total 135
One of the most striking features of the lists submitted by Mr. Sharpe is the classification of the prisoners in four groups, as follows :
a ' really gentlemen.'
b ' not properly gentlemen, but above the rank of common men.'
c ' a lower degree than the preceding.'
d ' common men.'
It is not easy to deduce exactly, from the information given, on what system the classification was based ; it appears, however, to have been on a combination of landed property and social position. There cannot have been a very well marked line separating the classes, as two brothers, Henry and Robert Moir, are shown in different classes, the only essential difference between them being that the former was a surgeon and the latter an ' under tenant' farmer. The important point in connexion with the classifications, however, was that on them depended largely the type of pardon recommended by the Privy Council.
Of the 21 ' gentlemen ' 9 were simply banished, 6 received a free pardon, and the same number a conditional pardon ; on the other hand, the whole of the 93 common men, and 21 belonging to the intermediate class, were transported.
These State Papers show also that, at this stage at least in their prison career, the prisoners depended for their classification and consequently for their disposal on Mr. John Sharpe, Solicitor to the Treasury ; he was the man whose advice was taken, apparently without criticism, by the Council; and his recommendations ultimately materialised in the pardons already stated.