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Robert Treat Paine Papers, Volume 4

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Indictment

29 August 1780

Trial notes

Petition from defendants
McGregor,Duncan Roche, John Watt, Robert Lynch, Timothy Hayes, Michael McPherson, Kenneth Hogan, Michael Mann, Thomas Prestingham, Morris RTP
August 29, 1780

At a Superior Court of Judicature Court of assize &c held at Boston within & for the County of Suffolk on the last tuesday of August 1780.

upon the Indictment

against Duncan McGregor, Timothy Lynch, Michael Hogan Thomas Man, Robert Watt, Morris Pressingham Kenneth McPherson, Michael Hayes, John Rotch,

and the said Duncan McGregor Timothy Lynch Moris Pressingham Michael Hogan Michael Hayse Robert Watt Thomas Man Kennet McPherson & Jno. Roch in their own proper persons come & having heard the Indictment aforsd. read, & severally protesting that they are not guilty of the premisses charged in the said Indictment, for plea nevertheless, severally say that they ought not to be compelled to answer to sd. Indictment: because 130 they say that all Homicides & other offences committed by the Subjects of one State at War with another against the Goverment & People of another State while an open War is subsisting between them, ever have been & of right ever ought to be enquired of heard & determined by the Courts Martial in the Country or place where such Homicide or offences may be committed, agreeable to the laws of Nations & the laws of War, & not by the Courts or Justices appointed in any Country or place to enquire of an determine upon Homicides & other offences committed within such Country or place agreeable to the municipal laws, Customs & statutes of the same.

and afsd.. Duncan McGregor Timothy Lynch, Morris Prestingham, Michael Hogan, Michael Hayse, Robert Watt, Thos. Man, Kennet McPherson & Jno. Roche

and each of them severally further say, that they were born within the kingdom of Great Britain & from the day of their birth to the present time have always owed a faithful allegeance to the British King, which they nor either of them have ever violated, & they & each of them further say that on the first day of August last past on the high Seas they were by force of arms taken, by some of the Subjects of the United States of America, fighting under the said King of Great Britain in open War with the united States of America, and they & each of them further say that at the time when afsd. offence in afsd. Indictment contained is therein supposed to be committed & long before that time & ever since they & each of them have been by force of arms imprisoned & detained & in all respects treated as Prisoners of War

and this they & each of them are ready to verify, Wherefore the sd. Duncan McGregor, Timothy Lynch, Morris Prestingham, Michael Hogan, Michael Hayes, Robert Watt, Thos. Man, Kennet McPherson, & Jno. Roche

& each of them pray Judgment if the Honorable Court here will further proceed upon the Indictment aforsd. against them & that they may be dismissed from the Court hereof & upon the Premisses &c.

Dun: McGregor John Roche Robert Watt Timothy Lynch x Michael Hayse x Kennet McPherson x Thos: Mann x Morris Prestingham x
131

And Robert Treat Paine Esq. attorney General for the Goverment & People aforsaid, who prosecutes in this behalf for the sd. Goverment & People, as to the said plea of them the sd. Duncan McGreger Thomas Lynch Michael Hogan, Thomas Man Robert Wat Morris Pressingham Keneth McPherson Michael Hayes & John Rotch.

by them severally above pleaded as aforesaid, for the sd. Goverment & People of this State saith that the sd. pleas & the matter therein contained are not sufficient in law to preclude the sd. Court here from their Jurisdiction to hear & determine the Murder & felony specified in the sd. Indictment & above charged against the sd. Duncan McGregor, Thos. Lynch Michael Hogan Thomas Mann Robert Wat Morris Pressingham Keneth McPherson Michael Hayes & John Rotch.

in & by the sd. Indictment wherefore for want of a proper plea sufficient answer in their behalf he prayeth Judgment & that they may answer here touching & concerning the premisses

R T Paine

MS (Suffolk Files, no. 102707. Massachusetts Judicial Archives, Boston, Mass.).