Cui incumbit probatio of intention ? Is innocence to be presumed ?
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The Duke of Cumberland having led an army into Scotland in January 1746, in pursuit of the rebels, a party of soldiers in the road to Aberdeen having got information against John Strachan, tenant in Redford, that he had been concerned in the rebellion, apprehended his person, carried him prisoner to Aberdeen, where he was put in goal, and continued there a prisoner till after the battle of Culloden. At the same time, they carried along his cattle and sheep, and delivered the same to the commissary of the army. In the year 1749, John Strachan brought a process of spuilzie against Lieutenant M'Lauchlan, who commanded the party, and Laurence Dundas commissary of the army. The defence was laid upon the late act of indemnity, by which it is enacted, “That all prosecutions and proceedings whatever, for any matter or thing done during the rebellion, and before the 25th July 1746, in order to suppress the rebellion, or for preservation of the public peace, or for the service of safety of the government, shall be discharged and made void, and the persons concerned in such acts shall be indemnified against every person whatever,” &c. It was answered, That in every case where the benefit of the indemnity is pleaded, it is incumbent upon the defender to prove that the facts complained of, though not justifiable at common law, had an immediate and direct tendency to suppress the rebellion, or to preserve the public peace, or to do service to the government.
The dispute resolved into the following point cui incumbit probatio. It occurred to me, that the indemnity reaches every case where the fact is done in order to suppress the rebellion. Ergo, if a man does an action which in effect tends to suppress the rebellion, but without intending it, the act does not protect him. On the other hand, if the action be done with an intention to suppress the rebellion, the action is indemnified, though in fact it does not tend to suppress the rebellion.
The intention then is the governing circumstance, which in all cases must be gathered from circumstances. And with regard to M'Lauchlan, the two circumstances of putting the man in prison, and delivering his effects to the commissary of the army, infer a presumption that the facts libelled were done by him with an intention to suppress the rebellion, unless the contrary can be proved by more pregnant circumstances. And accordingly the Lords sustained the defence upon the act of indemnity.
But, queritur, What if there be no circumstances to discover the intention by presumption, or what if the circumstances in either scale weigh equally, must the presumption lie in favours of the defender and for his innocence? I think not. It is sufficient for the pursuer insisting upon a spuilzie, to show that the action was unlawful by the law of the land, for this founds an action at common law. If the defender plead the act of indemnity, it is incumbent on him to show that his case comes under the act.
Sel. Dic. No 5. p. 7.
*** The report of this case as in Fac. Col. is No 57. p. 4726. voce Forfeiture.
