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I 



*.. 



State Trials. 



VOL. XI. 



O ' r 



COMPLET£?:MeO\i4LECTION 



• •_ . • • • 



State Trials 

AND 

PROCEEDINGS FOR HIGH TREASON AND OTHER 
CRIMES ANP MISDEMEANORS 

FBOM THe 

EARUEST PERIOD TO THE PRESENT TIME, 
WITH KOTES AJfD OTHER ILLUSTRATIOJTS 

COMPILED BY 

T. B. HOWELL, Esq. F.R.S. F.S.A. 



VOL. XI. 
A.D. 1680—1688. 



LONDON: 

PRINTED BY T. C HANSARD, PETERBOROUOH-OOUBT, FLBET-STRBET: 

FOR LONGMAN, HUBST, REE8, ORME, & CO. } J. RICHARDSON ; BLACK, 

PARRY, & KINGSBURY; J. HATCHARD; E. LLOYD; J. BUDD; 

J. FAULDER; J. BOOKER ; CRADOCK & JOY ; E. JSFFEIlY; 

}. BOOTH; AND T. C. HANSARD. 

laii. 



1 ''>•'>••' 



TABLE OF CONTENTS 



TO 



VOLUME XL 



%♦ The new ArHcles are mariei [N.] 

Pag€ 
J25. PftOCBEMNes ^g^ltat HERlWkS OP tfifi SfitftEOF FIFE, 
for Absetrcfe from the Kitig's Host, a. d. IBSO. t^ow first printed 
from the Records of Justiciary in Edinburgh] [N.] ^ ;.••« 1 

826. ProoeediBgs against THE 00{U90NS, of Eartestooki, ^itA xStb^ftn, for 
Treason, a. d. 1680. [Now first printed from the Records of Jus- 
ticiary in,l^cot1and] [N.] ...•*. ^ 46 

3S7. Proceedings against JOHN Lord BARGENY, for Treason, a. d. 
1680. [Now frrst printed from the Records of Joi(ticiary in iScot* 
land] [N.) : 6S 

926. Vrocetidings upon a Proceis cff Bn-cfr, rftkad «gainit KkLEXANDER 
BLAIR and eihen, ibr the Mqnktal «€ Jmntii Didc Md others, 
indicted for Treason and Rebellion, a« d. 168L. [Now first 
printed frotn'tha Recofdn tf Jiirfliiehry ki i^inbtirgh'] fN.] •••••• tB 

i^. Proceedings against CHARLES Earl of LAUDERDALE. RICHARD 
Lord MAITLANDUslSoti, and others, for Offlsial Maltvmlbns ^ 
respeciiiig the Boyal Mint of Scotoid^ a. t. l€6a«l6ffS. [Now 
first printed from tiie Prify Cdmcal Books ait XdinbQr|;hij .[N.]... Ibt 

330. Pffooeedtnga agabst SEVERAL RffifiDHB. OF iAtWSKSOHCE, 
tot Treaaon, a. »• 1081. (NM^itt pniled(ftt>tn ill* Secoids of 
Justiciary at £dini>«rgh|| £N.j •%v»4««M«<«««M*«*^«*««v»tf#««v»^*«««A..«« 9i6 



TABLE OF €ONTBNTO. 

Page 
SSI. The Trial of the Lady AUCE LTSLE, at WintOB, for High Tlreasoo, 

A. o. 1685 298 

m. Trial! of JOHN FERNLEY, WttLIAM RING, EUZ. GAUNT, 
and HENRY CORNISH, esq. at the Old Bailey, for High 
TreaioD, a.d. 1685 382 

REMARKS upon Mr. CORNISH'S Trial, by Sir John Hawlbs, 
Solicitor-General in the Reign of King William the Third ••• 455 

333. The Trial of WILLIAM DISNEY, esq. by the King's Special Com-. 

mission of Oyer and Terminer, held at the Marshalsea in Soath- 
wark, for High Treason, a. d. 1685 468 

334. The Trial of CHARLES BATEMAN, Surgeon, at the Old Bailey, 

for High Treason, a. d. 1685 .....•..•• 467 

REMARKS on the Trial of Mr. CHARLES BATEMAN. 
By Sir Jobm Hawlbs, Solicitor-General In the Reign of King 
William the Third * 474 

335. The Trial of JOHN HAMPDEN", esq. at the Old Bailey, for High 

Treason, a. d. 1685 • ., , 479 

336. Proceedings aga'mst RICHARD BAXTER, Clerk, for a seditious 

Libel, at Gaildhall, before Ix>rd Chief Justice Jeffreys, a. d. 1685 49/ 

337. The Trial of ROBERT FRANCES, Gent, for the Murder of Thomas 

Dangerfield, at Jastice-Hall in the Old-Bailey, before the Right 
Hon. Sir James Smith, knt Lord-Mayor of London, Sir Thomas 
Jenner, knt. Recorder of the said City, and one of his Majesty's 
SerjeanU at Law, and <»tbers his Majesty's Justices, a. d. 1685 ... 

338. The Trial of HENRY Lord DELAMERE, in the Court of the Lord 

High Steward, at Westminster, for High Treason, a. d. I686 

339. Proceedings in Parliament against THOMAS Earl of DANBY, Lor 

High TVeasorer of England, upon an Impeachment of High TVe. 
son, and other High-Crimet and Misdemeanors, a. d. 1678-1685 

840. PxM»edings against RICHARD RUMBOLD, for High.Trea» 
A. D. 1685. iNow fint priolwl fw>« the Records of Priry Ow 
andConctiof.JiiiticiaKy.atSdinbii^^J C^O ••*« •••«»•«. 



TABLE OF CONTENm 



345. 



347. 



348. 



349. 



P^ 



341. Proctedings against THOMAS ARCHER, ALEXANDER SHEILS, 

and others^ for Treason, a. d, ]6S5. [Now firtt published from 

the Records of Justiciary in Edinburgh] [N.] .,., „ ggQ 

342. Proceedings agaiiist SEVERAL PERSONS OF GALLOWAY, for 

Treajion, a. d, 1<5b2. [Now first printed from the Records of Jus- 
ticiary at Edinburgh] [N.] „,....»...*..,.., ........*. «,..«. 910 

343. Proceedings against JOHN SEMPLE, JOHN WATT, and GA- 

BRIEL THOMPSON, for Treason, a, i>. 1614-, [Now first pub- 
lished from the Records of Justiciary at Edinburgh] [N.] „„ 950 

Proceedings against DENHOLME of Westshiels, and othert, for 
Treason and Reset of Traitors, a. n. J 685. [Now first printed 
from ihe Records of Justiciary at Edinburgh] [N,] gfff 



Trial of DAVID MOWBRAY, for a Tumult within Burgh, a. o, 
IGB^, [Now first printed from the Records of Justiciary at Edin- 
burgh] [N.].. 1003 

Trial of ALEXANDER KEITH, for Sedition, Mutiny, and Tumult, 
m Burgh, a. d. \f>U6. [Now first printed from the Records of 
Justiciary at Edinburgh] [N.] «•«». 1018 

Proceedings against JAMES sometime Duke of BUCCLEUGIl (and 
MONMOUTH). Sir JAMES DALRYMPLE of STAIR, AN- 
DREW FLETCHER of Salioun, and others, for High Treason 
and Rtbellion, a. 0. ia85-l6S6. [Now first printed from the 
Records of Justiciary in Edinburgh] [R] 1023 

Proceedings against GILBERT BURNET, D. D* afierwards Bi.shop 
of Salisbury, for High Treason, a. d. 1CJ87 [N.) •. 1I03 



Proceedings against Dr. HENRY COMPTON, Lord Bishop of 
^^^ London, in the Council-Chamber at Whitehall, by the Lords Corn- 
^^m miisioners appointed by his Majesty to innpect Ecclesiastical 
^^B Afiiiirs, for not suspending Dr. John Sharp, Rector of St. Giles's, 
^P A. D. 1686 1123 

r 350. T 



The Trial of Sir EDWARD HALES, barf, for neglecting to take the 
Oaths of Supremacy and Allegiance; with his Plea thereto, upon 
the King's diipens'mg with the Stat. 25 Car. 2, and the Opinion of 
the Judges thereupon, A. p. 1635 ••.«t**».4*«**»**«* # U6S 



TABLE OF CONTENTS. 

Pagf 
SSI. The IVial of the Lady ALICE LTSLE^ at Winton, for High TreaioD, 

A. D. 1685 SSi 

332. Trials of JOHN FERNLEY, WILUAM RING, EUZ. GAUNT, 
and HENRY CORNISH, esq. at the Old Bailey, for High 
Treason, a.d. 16B5 S8S 

REMARKS upon Mr. CORNISH'S Trial, by Sir John Hawlbs, 
Solicitor-General in the Reign of King William the Third ••• 45! 

533. The Trial of WILLIAM DISNEY, esq. by the King's Special Coai-> 

mission of Oyer and Terminer, held at the Marshalsea in Sooth- 
wark, for High Treason, a.d. 1685 iSt 

534. The Trial of CHARLES BATEMAN, Surgeon, at the Old Bailey, 

for High Treason, a. d. 1685 ^ 46: 

REMARKS on the Trial of Mr. CHARLES BATEMAN. 
By Sir John Hawlbs, Solicitor-General in the Reign of King 
William the Third # 47' 

3S5. The Trial of JOHN HAMPDEN', esq. at the Old Bailey, for High 

Treason, a.d. 1685 47j 

SS6. Proceedings against RICHARD BAXTER, Clerk, for a seditious 

Libel, at Guildhall, before Lord Chief Justice Jefireys, a. d. 1685 49^ 

S37. The Trial of ROBERT FRANCES, Gent, for the Murder of Thomas 
Dangerfield, at Justice-Hall in the Old-Bailey, before the Right 
Hon. Sir James Smith, knt. liOrd-Mayor of London, Sir Thomas 
Jenner, knt Recorder of the said City, and one of his Majesty's 
Serjeants at Law, and others his Majesty's Justices, a. d. 1685 ... 50; 

SS8. The Trial of HENRY Lord DELAMERE, in the Court of the Lord 

High Steward, at Westminster, for High Treason, a. d. 1686 51< 

859. Proceedings in Pariiament against THOMAS Eari of DANBY, Lord 
High IVeasurer of England, upon an Impeachment of High IVea* 
son, and other High-Crimes and Misdemeanors, a. d. 1678-1685 59! 

840. Proceedings against RICHARD RUMBOLD, for High-Treaaon, 
A. n. 1685. £Now firsfc printed from the Records of Privy CooDcil 
andCoortof Justicisuy.atJBdiabarghJ [N.] ••^•••.•.•••«M«»M«k.» 87 



TABLE OF CONTENTS. 

Pag$ 
341. Proctediogs agaimt THOMAS ARCBER. ALEXANDER SHEILS, 

and others, for Treason^ a. d, 1685* [Now first published from 

the Records of J uiiiciary in Edinburgh] [N.] ggo 

12. Proceedings agamst SEVERAL PERSONS OF GALLOWAY, for 
TreasoAj a. d, l6SSf. [Now first printed from the Records of Jus- 
«v ticiary at Edinburgh] [N.] , 9|0 

3*3. Proceedings against JOHN SEMPLE, JOHN WATT, and GA- 
BRIEL THOMPSON, for Treason, a. d. 1614. [Now first pub* 
lished from the Records of Justiciary at Edinburgh] [N*] 950 

314* Proceedings against DEN HOLME of Westshiels, and others, for 
Treason and Reset of Traitors, a« n. 1685* [Now fir^t printed 
from the Records of Justiciary at Edinburgh] [N.] ggff 

345. Trial of DAVID MOWBRAY, for a Tumult within Burgh, a. o. 
)6B6. [Now first printed from tlie Records of Justiciary at Edin- 
burgh] [N.] 1003 

Trial of ALEXANDER KEITH, for Sedition, Mutiny, and Tumult. 
m Burgh, a. d. 16H(}. [Now first printed from the Records of 
Justiciary at Edinburgh] [N.] IQ\% 

Proceedings against JAMES sometime Duke of BUCCLEUGH (and 
MONMOUTH), Sir JAMES DALRYMPLE of STAIR, AN- 
DREW FLETCHER of Salioun, and others, for High Treason 
and Rebellion, a. i>. 1685-16S6. [Now first printed from the 
Records of Justiciary in Edinburgh] [N.] •« .«.. *.,» 1033 

348. Proceedings against GILBERT BURNET, D. D. afterwards Bishop 

of Salisbury, for High Treason, a. o* J687 [N] 1103 

349. Proceedings against Dr. HENRY COMPTON, Lord Bishop of 

London^ in the Council-Chamber at Whitehall, by the Lords Ce^m- 
missioners appointed by his Majesty to inspect Ecclesiastical 
Afiairs, for not suspending Dr, John Sharp, Rector of St. Giles's, 
A. D. I6S6-... I IfS 

360. The Trial of Sir EDWARD HALES^ barl. for neglecting to take the 
Oaths of Supremacy and Allegiance; with his Plea thereto^ upon 
the King's diipens'mg with the StaL 23 Car. Q^ and the Opinion of 
the Judges thereupon, A. D. \^m «**o. ...*•«.. 1160 



fABLB OF COKlCKia 

351. ProcMfiBgt fBin^ Mr. JOHN PBACHSLt, Vic«4aMMltaf^ tnil 
the UNIVBHSmr OP CAMBRIDGE, fcr sot admitting AHian 
Fraiicit, » Benedictime Monk, to the Dogroo of Maiter of Artt, 
April and May, a.d« 1087 131 

S59. The ProeeediBga agalnft Mn SAMUEL JOBNSOI«, who was tried 
at the King^srBeneh Bar, Westmiialec^ for High Mbdemeaiion 
(and foand gailt^ of writing and pablishing two Beditions and 
•candalooi Libek against the Gorernment) a.d. i0S6 139! 

3S» The Cape of WILLIAM Barl of DEVONSHIRB, oa an Information 
in the King's Bench, for assaalting Colonel Calpepper in the 
Ktng'sPal»ce> A.9. 1687 139^ 

a&i The Trial of PHIUF STANDSFIELD, Soato Sir James Standifield, 
of New-Milns in Scotland, for High Treason, the Marder of his 
Father, and other Crimes libelled against him, a. d. 168« 137] 



1 



C O B B E T T'S 

COMPLETE COLLECTION 



OF 



State Trials. 



325. Proceedings against Heritors of the Shire of Fife, for Al 
sence from the King's Host:* 3'i Charles 11. a-d. Ifi80| 
[Now first priuted from the Records of Justiciary in Edii 
burgli,] 



Clru JusTtcutuc, S.D.N, ^' I ill 

Pneiorio lltirfjri tk* Kilinbu iiiio 

icrtif» die metJNi>i Fehrtiarii, 1-. l\ jjli' ho- 

Icenzietie'^IVhet JuMir 1*"m, 

Thomain Wallace do ^ .iriie 

ClericuiOi Jflrf>ltiuni I'uti,. ni iMutoiin, 
Ri»i>rHmti Nairn iJe Si nM I lunL Jliivid«'«ii 
BaUbur «lc roiret, Daviili^'in I'nkonur de 
NewtoiJti, ol lloi^* runi lfo^rt>^^,» Iliirrairssj 

Regis. 

Curm k'giltiitir aiiiiuiutu, 

■ /ftiv* <»r Bnlliousio* 
Habfft fiitmUton, of KttbracUmout 
' JoTHts Metritis of Cii&s'iufmy , 
jiierantkr Durhamt^ of Liirgp. , 
Captain Gifiam Murray ^ oCPItkeme^ 
Charifii CimtiH, orCorstoun. 
David fiakant^uiN^ of 1 bat llk» 
Aternntfer A'winir, of Nuriif'uunli 
Jumci YoMn4(, of Kirktfiun* 



^ Wodww do 
lecuUon. Him 

ccerliitt'- " 

theK 

M V 



Horn 



oiir i nil, vfhicli till 

iniikr i: i*alti'd U» the 

kiff^N iiit^L a t'rtat tnmt*j and ad tfrrorem 
ptt^rf puniHlinu'iil'i arc by thewr kwg knit to 
It ; but t queiiiioal if for ihefe hnodredt ar 
VOL. XL 



Me,Af' V;..-. ' '" Litlefreirioum. 
John J. 

GtVrgt ,.r, ^ ,- . .l„ 

8ir Jaf«^,* :ihtctntr^ ot Kinnaird* 
J< ) A « J 1 1 uu It , of 1 n r! n lert» ie. 

Brown ^ of Phinnmnt. 

— — Murrtt}/,, of pjtkH''li!e. 
Jfimt* Kynnintnvnd, ot that Hk, 
J time* U^et/mcM, oi*ii\tt\i^\*y\in, 
Robert Khttuil^ of Uv 
iy\v Jitrm,4 litwtf«irmt\ i*». 

John Litid^iaif^ of Do^\liilL 
David Bcatan^ of Dandon. 
WaiUr Latif^ ol' Bnmtouiu 
— Balhntr^ of Baibi rue- 
Sir Joh''''- rr,;^ of FonUfif 
Rohcri <!mtj of WmMlfeild. 

Ihnry .:..,.,...., : urtioner^ ol'lwia{^borfi, 
Mr, John MitcheU^ of Babaixlie. 
Mr, Charier WardifiJiCj of i«gti». 

InDYTED and accused, Tliat wlier, no, 
wUli&iamUojf be tbe laHes and acts of pnrUa- 
meutsof tbis kincfdome and con^ttunt practoit^ 
iberaf, the reinainiii^ aod abiding frae liia 

hundred and (lAv years, tbey were put in exe- 
cution, iiU liovt they aie advanced hhhu handl# 
a^iiiat a great niuuy pcraons, vrbo from dif- 
fcreni roaaoiis came uot out ag-aint^t the U'eat 
cotintry army . 

^* ^!'i tier* were laid last y*»ar for llim pro* 
«f mition ; and, itriU^NH''n. 1 Itf't tluMiii to thia 
jdace» and so ^ Atter 

tbc rising al k ir ^vas. 

made about bcrihir> ultini-j upon th 

army; but now on, i^j resolve up( 






cottfves : and i^Uvu tboy Jiud 



( 



5] 32 CHARLES II. 

in4jf^ti>'« host ftnd royall stmodart be bve 
c.Tyitie^ and KT«Hia piqukiUe; sad be tfce 
4ih Act, 1st ParliaiD^t kiog Jamft 1, it u 
^tfttijt an<) onJaioedt that ifaoy doobejs to 

\«li:it uas to arise from the estates of sach as 
had been personallv concemed in the imingj 
would not answer tneir expectatioof, a more 
genera] oppression of gentlemen and heritors is 
resolved upon. It was presumed, that sach 
who did not heartily join the army, were well 
affected to Presbyterians, and no opportunity 
of brinsring such to trouble was left, especially 
when it was like to brinsf in lanfe sums of 
money. Thus I ftnd 6y tSe council -registers, 
Noycniber 6, < That, at the dvsire of the lords 

* of justiciary, a committee is named to Meet 

* with them, the chancellor, earls of Argyle, 

* Alurray, Gleucaim, the president, treasurer 

* depute, register, and advocate, and consider 

< what shall be the punishment of absents from 

< the king's host. November 8. Their opinion 

* is re|>orted, that the heritors and freeholders 
' {guilty, should be fined ; the most guilty not 

* above two years valued rent, and the least in 

* a fourth paVt of their rent : that those who 
' are fined in the least degree, be appointed to 

* take the oath of allegiance and declaration, 
' and, if they refuse, that they be fined in the 
' hi*; best rank.' The council approve this 
report. Thus no small pcrHecntion for cou- 
scieucc sake, is mixed with thi<* civil kind of 
crime. Those proposals are transmitted in a 
letter to LawderdaJe, dated, 

<< Edinburgh, November 11, 1679. 

<' May it pleaae your grace ; 

" The just abhorrence we have of the lnht 

rebellion, and the too just fears that the same 

principles may occasion the same distempers, 

do obhge as to inform his majesty by your 

grace, that if these who went m»t V} a«ii<it hu 

m:^estj against these rebels, or fleMTtefl the 

king's host, be not paniabed, we CMnnfA pro- 

miie hifl majesty wdl hate any prtprirtir/nal 

fcrce against any fntnra issurretticnfl, «inre 

«« ficC by oqr great experience, that tbew 

who «eR at daily expcnce and hazard m that 

cs^iboMi^ are nneh dbcooraged, when tfi^-v 

^ttc^ben who flayed at Wwie, or d<Mrt#-fl, j 

^-^-^ MthiDg ; and that soch at M^yttl at j 



Proeeedingi agaiiui 



[« 



Us 



yy* *wi a priadpleoT mMnMtem to hi* 
^j^yy^CHMMl, d» trett the doifffiln#^ 

and iin- 

yoor grac^ 

tiMlweanarevdvH 

mwy ikmt f^bMen^ m 

te Urn Mi'nhiuiyl tlMiId be 

brnigM4 




inforce the king against nottor rebells agaiimt 
hia person, when they be required be tM king 
and commandit, they shall be chalenged be the 
king as fkvourers of sick rebellers ; and be the 

offenders have been punished by forfeitures^ 
confiscations, and banishment Theie our re- 
solutions, though taken and formed afler much 
serious debate, are sul^ected with all dutiful 
respect to hia majesty's royal consideration, by 
«( Your grace's most humble SSenrant, 

«< Rothes, Cancel. I. P. D.'* 

« The niiotiona for this heavy oppression of 
midtitudes, we see, caniefrom Edinburgh, and 
were fallen in with at London. AccordinglTf 
I find a letter from the king upon this son- 
ject, recordedin the justidary-registers, of the 
date, 

" C. R. " Whitehall, Nor. 18, 1629. 

'< Whereas, albeit by express law, the de- 
serters from our host he punishable by death, 
yet we are graciously pleased hereby to allow 
yon to proceed against them in the same way, 
and to the same pains and punishments as yoa 
are resolved to proceed against the guiltiest of 
such as did not come to our host : for doing 
whereof this shall he your warrant. 

" Lawoerdalb.'* 

<* By the proclamation issued out during the 
rising, tlie absents from the host wei*e to be 
punished as deserters of it ; but that being 
death by some antiquated laws, and it not 
being blood but iTioney, a good many alK>ut 
Edinburgh were at this time wanting. This 
le ter was procured with relation to deserters, 
who, I suppose, were not many, in the ordi- 
nary sense of the word ; and this was a preface 
to what followed as to the absents. 

'< I'hat same day, a letter is writ to the couo 
cil, approving the projposal in ail points, whic 
they make in theirs of the 11th, and so it need 
not lie insert here. When they are thus war 
ranted to begin their finings upon this hea 
they go rouudly to work, and letters are v 
to the sheriffs m each shire, that they send 
the h*x>ks of valuation, or attested copies 
tliem U> Edinburgh ; and the officers of ' 
army are appointed to send in lists of the 
riu>r% in each shire, who did not attend 
kir^'« ho«t. 

" io fiecerober and January, citatior 
mtWrtsA X/» be given to some handreds c 
ti^'m^^i, fi#:rit/w*,and freeholders, by th« 
eiary • it t/y* vime time before the listi 
be made up, %w\ the witnesses condesi 
on, arid th* rraiisgers themselves seem 
be ffiSiy ftgTMd, and se? erals were for nr 
iywrsM» g«^4km#tks exctises being fow 
f^ ih^tm hiffitlj fswnnMt for not r 
iw < H ftt T<, arid t/M^ttt^ t// the host 
f Mwt party j^*?a«kd. 

" Turn, r^titfy ^1J, • great mi 
Asraf/e g^.fWri#»», fmitnnf «nd ft 
ga»n«iM b^^^ t^ jMtidaor fc 
JLtm tlie t^^-* ^ receive tbetr r 



the ft/eihire tferitors, 

5Tth Act, IStli ParlLament king^ James $, U b 
onlainedf that all maner of men that ban land 
or goods be rcadie horsed and g;eared eOer ihe 
facuftie of his lands and goods lor the defence 
of the realint at the comniandTnenl of the 
king^s letters, and whoso liets not, he shall he 
jlUDisbed ID his person and goods, espectallie 
when they are reqiij^red therto be his innjes- 
tie's proclamation for subdueing^ of traiterous 

|iloyed by the gentlemen, and their deftences 
are longf and pleadings wery l&r<(e upoti the 
mattsr in general, and the uarticnlur oirctitn- 
stances of the pannels. The advocate give« 
hirge replies, and enforces hh rcawmings with 
the freight of the letter from the king to the 
council upon this head, dated November 18, 
which \tas noticed just now, 

** This argument from a resolution in coun- 
ctl, backed vrith rojal approbation^ no douht 
was uuansv^crable ; ami so the lords give sen- 
tence against the gentlemen. 1 cannot insert 
all who were fined now and atVrwards ; only, 
for A taste at this time, James Young of Kirk- 

loan is iined in 1870/. Hcots, of Fit- 

lochic in 700/* Alexander Durham of Largo 
fn 1830/. Darid Bakanquel of that ilk in 50Ql 
Alexander Nairn ol' Saml'urd in 294 /. George 
Moncrief of Re* lie in 300/. James VVeeras in 
Glencoffitoim in 173/. and muUiiudes of others, 

** At other diets of the Justiciary in Fc- 
brtiary, 1 find vast numbers ot gentlemen and 
heritors in the shires of Lothian, the IVlerse, 
and other places, pannellcd, and more than a 
hutidred of them fined in very considerable 
sums ; and, fowanls the t-nd of March, the 
Lords are taktn up in th<? same work : sen- 
tences are pa^tugamstasmany as in February, 
if not more, and diiichargesare produced of the 
paymc^ntof former tiues, tiomeof them several 
thi>usand jiouuds. 

*• Upon the ^6th of July, this matter of ab- 
sence from the king's ho«t» is taken oirt of the 
hands of the joi»tioi»ry, r.nd put in the hands of 
the council* Thih was a more arbitrary court, 
and ^dve not themselves the trouble of lawyers, 
ftod iegaJ del«nces* That day, 1 tiud the ad- 
focafe produced a letter from the king, of 
the dat«, 

«« C* R. Windsor, Jane 1, 1680. 

** Right trosty, Bcc. We are sensible of the 
lall etfects that have followed by the trial of 
who have beeii absent froni our li»jst, 
the justiciary ; and hemg nilbnncd that 
summons are isi^ed out to cite many others 
through the shires for that crime, it h now our 
will nsd pleasure, that they be proceedeil 
against, not criminally, but by Way of finnig, 
hi lo the degrees of tneir gutH, uotad* 

II olous excuses for ubsaiice or deser* 

tJoni HiMcli we look upon a^i preparatives of 
tatfurona consequence to our service, Wv 
i cur e nonp f -""-t** T-*- ^n- troubled with trials 
or cttntiun r. , pted w ho are known 

t0b«iu>ion(j^'*j t,.,^i.^.,4^^ij toour government 
id Hate : tor though we ate at this 



A. D. IfigO. [6 

and sedltioits rebells, who hade most trailer 

ou!ilie assumed and taken the hoUltii " ' eF T 
his niajrstie's law^ and act« ot |i 
at the marcal cmce ot the hur^he *»t ii. m 
glen, tipon the iwentJe-nynth f>f May hsl, M 
day appoinie^l for nm? sidt-nine nnniver^iary 
thanksgiving (W his niai»^stii'*s rest no ration td 
the royal I government id' thli kingdonie, and 
who hade most tressonablic eonvocat and as- 

time gracioofily pleased to excuse them from 
criminal inocejis, yet we will tUft suffer absf u!i 
and deserters to escape without some puiiisti* 
ment by way of fining* which we desire yoi 
to signify to our justice con rt Ho we bid 
you, 6cc. 

*^ How it came to pa$s that such a letter «s 
this, of the date, Jutie 1. was not iutimiitc*d, 
till July 26, I shall not enriuircs rt-rtainly 
someboily or other found their advanlJige by 
it. This letter is intimated and rrcordeil in the 
criminal books, and ftll processes in dependence 
before them are dotted, and in their rooin 
succeed the processes for forfeiture of life 
af^r Airs- moss. 

*♦ When this matter comes before the conn- 
cil, they go closely to work, and their regiMers 
fbr some months are mostly taken up with 
those processes. Many hnnilreds are cited 
before them, the diets of some aie continued, 
others are deserted (not without composjtioiis 
and money jn-ivalely given.) Mulliiuilea are 
fined in absence, and some det^lavtd fugitive. 
I To enter upon particulars would swtfll this 
I chapter too much. Let me give only a few 
tnstauces, < July 13, Dundaa uf Borthwick is 

* tined in a year*s rent. August 1, the laird 
' of Riddel's excuses tor absence not sustained, 

* he is fined in two years rent, which is C,QOQ(, 

* Scots; George Douglas *d iJoryedhurgh fined 

* in ti,000/. Scots ; Ker oC Cherr> trees in 3,(KH) 

* merks ; James Scot oFThitLstiioe in '^770/, ; 

* Francis Hoot of Gieenhitl in H(>0/. Ills uo- 

* ticedj that they nil refused the de« laration, 

* probably otherwise they might have had their 

* excuse* fius*aincd, or l>een tlued vastly down 

* of those sums ; and so they art^pruiurly suf- 

* fcrers for their oiiiniiin in painl ul" pitrliicy^ 
' Augttst 9, the following ptj^onsin nerwick* 
^ fihire, are fined fur ab^t^nce from tlie Imst j 
' l^trlck Wai-dlaw in t.OOijL S*^ots, flglwrt 

* BrowQ of Blackburn l.yoo/. Pmi:?b of 

* Greeukntnv l nOO/. Alexundt^r Flume in 8t, 

* Hathaii nel !!JjH.nce 400/. C'hipper- 
Moun ol Irugh 1,000 merks, Georgis 

* FTnme ot Bi*i>sf iiden 1»000 tnerks.* They arts 
all ordained to pay in six days. But papiicular 
instances woiUdht* endless. Nov. li, I find tire 
council apiKiiul, * Th»it caption be executed 

* with concurrence of parties of SidJiers, for the 
» fines of the absents from the host ; that their 
' escheats be giUcil in nan^e of his majesty** 

* cush-kcej>er ; that in tirnecomingy all found 

* gnihy of absencf shall be kept lu custody till 

* they pay the fine.' Thist obliged many ui»t lo 
compear, and then the soldiers exev^ule llies«u> 
tence pronou need i n absence. ' ' 




yj S2 CHARLES II. 

sr:iiMv(!f not odIv without but as^oeit hit i 
m3jr<U(.\ auihuriue, to thf.- number of t'^'ve or 
fiv liuti'ir. lii, anil took the boMres to luvaue 
Aft-l >c'.t xitfri: ^rtiie troujis ot' bis majestie's j 
L'/.w!ounhilL wbcrr haviri<( killc-iJ ' 
•i.t *'_-f erall of hi.^ majfnilie's subjects : 
:•:-. and bcin:^ th*:rby iaiboliirif.fi, ■ 
« ->^!l a.'ifl «;rowe to th^ number of i 
-: -ri'^iiftari^l, t'l nhicb lilt iiiaje»ii</fe I 
t r> -^ vter noua\«A frfiij;^! ; aud bib 
i »• » .f jf'f:.<^r%Jii.on M" lil<i ri.yall ' 
.' .: \i.i '."Ji- .-.iiij ri', li.t b'lj'jiii-- i 
I. ".A l.->-i»^ i;. :.':, *.l TjiS l"Ki#l aiid 

. ' : .;«j-.t ii^;,'' ' j! tfl out. rc«jij\red 

• . . . 'i ;.- '. '.r »:\ri:»ffr^ in ihfc 
"■ ......: l^ * -^ 'J i:i t;.*- .Aii- 

.:'.-. .: Uoirs* MJi^- 



'-t-.f-i toa.Un^ ibe 



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V''.*2r*^ ^*«i «»4 «h»r WV '^ '■•-■' 
-«U^^^j[T7^te)ttW&4lU^ b>«i^ v{ 






Proeeedhgs against [8 

and conitDaniJf d, all heritors and frechdIderSy 
sensible [fensiblej |)crsun8lher«erYantsand fol- 
low ers, to cunie out uiion horseback within tlie 

lie iititlcT tb(» cnminrjiid of general Dalziel ; the 
^birc of IIaddinL>ii}jn to meet ai BeinstouD- 
ii;iiir the* 1 itli &a\ of June instant, and to 
be under thi* cointuand of i lie viscount of Kingf- 
stoun ; Slirliii<j: and Clackmannan to meet at 
iht town of SiiiliiiL:, and from tlicuce to inarch 
to the links of Ltitli upon the 11th day of 
Juiifr iii.lant, and to be under the (*ommanci 
.if the lord £lphi!ii,'stoun ; l^rw ick to meet at 
Fo'^o-nniir upon the llth day of June in- 
stant, aiid to Ih; under the comniand of the earl 
(•f Htiine, and in his alisrncr, his brother 
Cburles llumt*; Koxhur^^h ainl S:lkirk to meet 
;it Annum-biiiiije upon the loth day «»t* 
Jnnr; instant, and to be under the command ut' 
the lord Eliiiauk, and the laird of Slobs, wlio 
arri to command i-ccurdli^ to the divisi(»n of the 
ih.Iitia troops; lifo to meet at Cowjiar the 
Tiih day of June in>Uuit, and to l>e under the 
coiiiruand of the lord Newark; Perth to luevt 
at I'f rill the i:>lh day of June instant and 
to l»f; iin 1».T the command of ihe niar«]uis of 
MMiir«**.c, and Mich pei-sons under him as he 
shall ap|/>int ; Torfar to mtet at Forfar upon 
ih<: L.tli da\ oi June instant, and to be under 
lb*- co.xn.aiid of the earl of Souihcsk; Riii. 
r,:,.-fj..iar:'! Mar>.'i.oI s part of Aberdeen to meet 
h* A »*.''.*'•'; ii i.iir- iipon the lyth day of 
J'i:.*' .'.-^'xir, -i-ii It ^le iiudcr the command of 
•. ': '-^.ri ,: \h')\h\ li^nilfar.d FrroPs |»art ot 

i.v -'.': ; . *f rn(: i ■:'. '1 i.neffn|jon the l^ih day 
' /.;..;.•.-.;; r.t, >.ii'i i** Ji" under the uoumiaud 
.. '..J? '-...'I ol Ki:.t..* ; i«l;;ini Forics, Nairn 
-i y. r/.. «tMf: \t: ■, I'l MJ(;et ui Forn^s upou 
'•>: ;.•',»», r:..v 'J Jfi;. iniiant, and to be under 
.*-/./. fr.:..^.:;o' 'if tl.r- i.:jil ofMuriay, and in his 
*.-•"/ *..' I'.r-! D.itiii-*; Uoss to meet at 
',...:.'. i>.*i */.;:'\ oay of June instant, and 
.. ■^/•., '-.■ ' }.,'■ '.-,11.(1. and of the tarl of Sea 
;■.'•. >.•.•} *.i .' .1 ..'i tb«- heritors and free 
•A . •■• '.t •■:*■ .. . 'vj Unoith Forili, to niajxl 

- .-■'.«• . \'M' !iii iend«vonz to the bridge 
'.f ••* • / \ .-.kK ?♦.'• liJ'htors and frcfhohlc 
*>. - #■•."*-* '„•. i|i'. "i'lsith side of Forth 
••i- i^ • - < ' r".'i'vouz lO tlie \a\\ 
'.. l^ ;.'•*■ »'■ ". i».<r- till tnilh* r ordt 
- V. *« r *i» tbi in to M-ize upon 
< j..*U/->/, y — - arid in ca-e of res' 
k /y> V. t\ i\\ f-ncinies, wi' 

* I .,v;-r-* 4» • /, .ij,. t,f Kucdi as slial 

' ^.;r--^.: ,- r •/ : -z oiil *»\' llu' sbiiv to 

. . V .4^ i . V t'l^'' to tbi* said C4 

.• ..#v . . /x- - * ^bi'if- under then' 






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hi X* bi ihc rf 
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•. . i'!-.;i to I"- ni:ide h 
* « II''. r ll.i .1' comr 
,. -A ■• .••. , ./'^ «.M Aw ap.iojnli'd f 
I,,,. *.g « •• i«u *v.'/ ''f fb'- immI:'(i tbatt' 
^t^^^.i.j. '.«; v» J. .'.' t-.<Ii> k'-pt; <;er 
irfy».v» • ■ --'i*. '^ •• /'• . '^"* *'•*•• ** "*" 



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tht Fi/ejJtire Hcri(or$, 



A* 0. i6sa 



[10 



ftliyroi fvf Fyff, l^dlnlnin^l^ LinIitl>^oilv» Pee 
blc?s, I! ' ' _ iui, Sui'lin, < 'lackmanan* IS«***- 
M^ick, I Selkirk, IVrth, and others 

tlici'«i(j itit iikiiFiuU ; yvt the pcrsionai ttbuve> 

w^hdt with llieir best horses find orms, with no 
umnv of their servants anil followers ns Ihey 
eiui triiig" imt npim liuTTsch^rk, tUvy sljull he 
lml>l« lo the jiains Jinil [leniilties provided by 
tbe nets of partiamcni iij^auist nnch nn d'> noi 
ntit-nd the knife's hosl, or desei^ llit- samp, and 
looked upon na disalVccU^d p4*rsonii, and 1'n- 
vonrL^m and compilers wiih rehch, und put'sued 
and punished accord in^jflv; And ordttin the«e 
prcMcnis lo Ut- prinlt^d and' pnhlished M lUe mar- 
Lct'cnjsi oi' Kdinburjrh, and other placets^ lore- 
s^iid, ihat lunw preteml i^^'noranec. 

'* Tna, Hav, CL Seer. Ctmo. 
** God sav« the kin§r." 

Wndrow ob«ienrcs, that ** l!je narrative ofthis 

prochination sticus it was fornieil when the 
rctfiil.^r Torcea coming bnck toivartis Cilasytiw, 
thonght good lo return^ since it rf-prescntslhal 
the jti'^urrcclion in the vieslern Bhirr^i is now 
grown to du opin rcUltion :'' uwl he proceeds, 
*• This proclamation was matter of icr\ gricv- 
oiijj rtnmi; to a. ^reat many gcnUcmcn and 
nthcts, who, for di^ercut reasons, eonhl not nt- 
t end the king's host. All or moist part of the of- 
ficers named for that liost, were i\w mo^t violent 
jiei*eeutor<* of Prcfiib\ tcrians, and there were 
lK»t a few among them, fay oureiii of Po|KTy, 
And »on}e prolcKSud l^ipists. This wan [dainly 
cunlmry to law and ihcir own lute procfaniation 
iliis very year» and flowed from the strenj^lli of 
the dnkeuf York'ts part^' in council/' 

lie iil^o ii)?;crl!)i in tlte ^amc Appendix (So* 
18) the foltuwiog^ paper * writ by a v ery able 
* hand* intituled *' A Letter of Advice v^rit by 
a g«'i»tleinan to his friend, on theoccusion of his 
^oini; out to wait nf>on the army contbrin to 
the proclamatiun^ June 7, 1(>79/' 

*' Oppurtnnity i« the life of action, witlKiiit 
which ihe doe(»e»rt and mo r ' 'S deviaed 
counM'Iji prove abortive* i know, 

ibut iiir all d«»i^ais, wlocii jm,.i i ,. i>i mifirht be 
startled at, then' is no op|iortanity comparable 
to that of Boddeu .rm , -i ni^ ul.iilw.f hsppy 
4ir uidkuppy, if t1 cat con- 

ecm: for inrns <j _ set alott^ 

and so rendered iinw»ry and inadvertent, fair 
|>rrtextM are then likely to lake, if ever ; be- 
UM3 at such times, men havo not^ or take not 
sure to i»eareh to iIh* iKittoni of tiling, or to 
a^ider (hcfn on all NHb/v, and uccordinq; to all 
f»r pri'tteol ond futnve titiportance. \ rec«nt 
1^ of the p«r- 
i9iil;tnd« to bin 
^ ' - zm^ 
Uv, 
hiM 

iH: led 

\y I , - ,iiid 

yi tii work 

fci I ^ iihuU; way 

liir tiieiii. i>t wtiicil i fbail only ssiy^ that I 



r namrd, tWd prcfranie to abyd and remain fir 
hi5i iiuijeMie*fi ho»t and royn]' 
tfiey find j!.*; ane of them, nn i an4 

part ihereoi', which l>ein^ fouo<i r^ ...«. .*^%ys 

wish ihcV Tl>!»v ln-HVr li'-i I frr'i'tiialJv TiPOt-firia 

ttir flic rr' y I 

and his km i i to i 

finpjwsc tbt»y wui e aH'ectionately meant tor the 
^iMMf of both. 

*♦ To apply this to oitr p tiona! 

thoti<;:h f cannot positiii ! whd 

are at the helm, ot any nmiLfhaud Luijirniinc 
or certainly conclude tb« tuinie from the ooti 
ward flppcitra ace of their : ' 

sibie that such importni 
now f:i)lcn out, may proriipi uj< ui iv 
themselves in their cominatuU, as ^^ 
our, may be n\ore zealous and foru,.,. 
well advised and really dutifnl obedicint 
as loni^ a^o it wns told me, by a vv'Mnr> 
certain ^eat laan'^ behaviour ut ll 
nient, Anno 1648, that he would i:<: 
all the world, that he Imd Wtrayed them, yell 
be could justly nay, that if he had ^ot a hooa 
full of Kfold to betray tljem, he ciuhl hav*.* don 
no more; so f will not a&sert, with the rhnrcfi 
w state fanatics of this lime, that our contii] 
sdlors are ronlly desi^ninf^ to introducHi up 
Ui, I' " ' (§1 

cutch 

6IUn^ i;t t »| li>>4'( i:U^ II IlKli' <'l ) trtll (I 

may say, that had they the lOOKt real and for* 
waril intention of so doittcf, they coubl hnrdli| 
have t alien upon moi-e hkcly und favournbM 
eouriJes, for that end, than some ot those tbeyl 
are taking. 

•* There is much talking" of a Popisb Plot, and 
if there be sueb a dt'*<ig"n of arlutrary power, i 
being* also a work of darkneJ^^ that dares not i 
Hault Its with open iaee, and m»ct to go 
hands with I he utlier^ 1 may call it anotlie 
i'lot, which tim^it work uoderboai\l aniil he' 
be (irepared to defend it. And t!»cfe two pn 
eiumations, the one for volunteers, whereby all 
the Papists in the king^dom are armed, and 
called nut to the fields ; and the other charging ^ 
nnder lii^licst pains, the whole nobility, crentr? , 
and b^ritom to attend the army, under the 
command 'of otiicerti appointee I hy the conncil, 
lire like two mines t^priin)> ii|K)n the chief W*- 
tions of our liborties and reli*i;ion, and we, likd 
twds, hear the rKuuc, and pijce upon the fimokc% 
but diiicerti not, nor consider what it Imth car* 
hed away with it. 

*♦ For my own part^ to (five yon my jndg"- 
mcnt freely^ aa yon have desirei it ; amongst 
all the iJfHevanccH which we have been com* 
pbiinin^ so muoh of, llie«e yeiirs hv prist, tlier* 
nri' but few, that either bti* ' ' v, 

or arc imlc ed of greater \v 

iherknow I nny onr Hiep« ^viiimuv i ..|ki > ,jijj 
arbitrary' (lOwer have bud occnsion ot making 

*.iiih.i r.r.H, . .. fi»\wuds their *-'"'> Mt 

-by they have j^ r 

, - by ibeiie tw<i%vx 



L 



3i CHARLES II. 



they ought to be panished in ther peraons and 
f^ouds, to the terror of others to comm^ the 
hke lierefler. 

Pertewer. — Sir George M'Kenzie, of Uo«e- 
haugh, our sovereign lord'ff AdTOcat. 

Mr. Robert CoU^ Advocatas Procomtor for 
}Iay, of Uaihousie, alieadges that the imnnall 

** By the constrtation of our goverament, we 
are not only ruled by laws, but also by cus- 
toms, the obligation whereof is many times 
equi^ alent to that of our most positive laws : 
must it then be a custom, uid consequently a 
law amon^ us, that, to satisfy the humour or 
interest ot a court favourite, we may be liable to 
most heavy burdens, and taxes upon our es- 
tates, to furnish him with power to oppress and 
crush all that will dare to oppose him ? and 
notwithstanding that we b^ow such large 
parts of our fortunes for the maiutenasoe of 
soldiers for that end ; ^et, when by the long 
continuance and eztreimty of those oppressions, 
which were enough to make even the soberest 
and wisest men mad, he hath forced wars and 
disorders of the highest nature and conse- 
oueace, it may be, designedly too, for ought 
that is seen, and as by no small politidans is 
reasonably alledged, we nevertheless must be 
obliged ako to come out in person, with our 
lives in our hands, and serve as soldiers under 
such commanders, as the council, being mostly 
his creatures, think fit to appoint: wherein 
these things are noticeable, which gentlemen 
would do well in time senousiy to consider, if 
Uiey l»e indeed content that they go into a law, 
lc«rt afterward they repent too late. 

*' That whi-n we have granted never so large 
taxations for paying of soldiers, the council, 
without a parliament, or our own consents, 
miiy nevertheless command us to serve as sol- 
diers ourselves, though it were but to uphold 
9omc particular interests amongst us, which, 
thus circumstantiale, will be found to be some- 
what more than what either our old custom of 
traiting upon the king snd his host with forty 
«Uys iMiivision, or yet the late <^er of our par- 
liMiwnt of all betwixt 60 and 16, do import. 

•* That they may impose commanders upon 
«»» without or contrary to our choice or con- 
9^U whom if we offer to reclaim, we may be 
^1^ upon our allegiance, to obey, as I hear 
^f% Mi>i dane in the case of the gentlemen of 

imay so oblige ua to serve imder 

■tea, at tl^ have done with 

_„ EiMaidiu and Marshal's part of 

«^ i^wiMgh there are so many 




aftainsitbem, and 
I UMJ areall pro- 




. Jh-oceedingi i^tftetf [» 

cannot goe to the knowledge of ane iaqocist, 
because it is offered to be proven that he was 
actuallie preseut with the heritors of PMh- 
shyre, and hade two or three servants with 
hitu, well apuoynted and keep't all the rande- 
vouzie with the capUine of tlie shire, and went 
aloiigst to the camp with the rest of the gen- 
tleman of Uiat shyre, which defence doea to* 

and kinsmen, perhaps for no other crime, than 
their standing to tbe just defence of their and 
our liberties, against the incroachmenta of SMne 
court iNirasites, or whatever else it be, that yet 
his majesty's will bein^ pretended, or at wlini- 
soever rate procured, it must be presomptioo 
in us, or somewhat worse, to inquire further 
into the cause. 

*^ And after all this, what is ours? and what 
privilege is there that we can lay claim to? If 
we will not think upop these things, when re- 
presented to us, nor lay to heut our great 
concernment b them ; it may be said, wiUurat 
wronging us, that we deserve no kiss than all 
the sUverv and miseiy, that by such prepam- 
tives are designed for us. Are all the nooiUtr 
and gentry St Scotland content to settle tkm 
yoke upon us and our posterity ? Most we he 
the degenerate socoessiun of so noble and y 
thy progenitors, by yidding, without at 
mony, those liberties, which, with such { 
and4:are, they retained through a tract nf ao 
many ages, and transmitted intire into- oar 
hanJs? Were we bom to be the betrayert or 
sellers of our own and our soccessoni birth- 
rights ? and so to be marked as the nerpetnal 
shame and opprobry of the history or our na- 
tion, unto the end of the world? 

** As our readiness to serve our kinijps, to oibej 
their just laws, and to defend their persona 
with our lives and fortunes, hath long time 
been no small part of the glory of our naticin $ 
so hath no less been the native courage, and 
resolute boldness of our ancestors in resisting; 
and opposing to their face, such flatterers, as, 

Ereying upon the ^foodness of their prineoi 
ave at any time, by mi sr epre s entations of per- 
sona and ^ira, endeavouned to abuse his au- 
thority, by forcing or insinuating upon hi# 
faithful subjects, customs different from, or 
contrary to their settled laws, or derogatory to 
the honour, and opposite to the true interest of 
kingand kingdom. 

**The Caba^ who, it seenos, knew well enough 
that their counsels woukl never be proof eitiwr 
of law or reason, and so behoved only to bo 
propagated by authority and force, had good 
reason to obtnide upon the late parliament of 
England, that Test, whereby they were to do* 
dare upon oath, that it was unUwful to reoal 
with arms, any person acting by tho king^ 
authority, which they, seeing the project^ and 
foreseeing the event, found no \em reaaoMblo, , 
far the good both of king and eonntry, unani- 
mously to reject For to say, thu no nan 
actuv by the king's authority oivht to bo roJ 
siatea, ia all one aa to say, tnt it is ImpoiBMo 
that Unga can be ahnsad $ and aB ono oo W 



15] 1*^ fifoihiri Ihvitori. 

tmllie eleitl the iybell, ^ hieb only rvlalei to 
icb as remained tVoiii the lios^t, 
i Wy Lord Athocat oMaudgeSj that the allc- 
"ince oughl to be repelltHl in respect be tbe 



A. D. 1660. 



[14 



iy\ Uiat if a wicked minister design tbe ruin 
both ot king and kingdom, under colour and 

Iirt'textofaulhorilv, Jt is unlawful lo binder 
lim, though it were in our power. If iiaman^s 
Plot bad taken effect Wf'ore Egther's access to 
the k\n^^ who will judg:e it to have been a 
crime, tUou^U tbe Jews had stood to their own 
defence, uuld such lime, as his trtachery, iheir 
itui'icencri and lUe ki«|j*» damage bad been 
I f«jw«s«nle*l ? ibouph Gcul in his mercy and 
I justioe provided a better outgiitc for tbcra^ and 
• worse end for bim ; a dreadful example, and 
which ou^ht to strike with horror all abusers 
of their king's favour ami authority. 

*' He d^ierveth that a tyrant should rcigti 
over himf and is not worthy of the protection 
of a lawi'ut prince, that will not cbeerfully ba- 
yard his liie and fortune for the defence of his 
^r^on, honour, and just laws. But what if 
the king^s name be made use of, to acts mani^ 
tesily contrary to bis interest in aJI these, and 
which, it may 1^, erery reasonable man, and 
loyal subject is bound in duty to beliere, his 
iDi^jesty would abbor, if impartiaJly consulted 
in ibem ? 

** If this be not impossible, I hope our next 
IkarUanat'nt will see to it, and consider what the 
tbmier batb done ; and till then, before you 
engftge yourself too deep in tbe cange, you 
b^ve good reasoD to examine, both what are 
the true causes of iliese poor people's appear- 
ing in arms, and wli«t they would be at; and if 
they be oppressed contrary to justice^ or de- 
mand not unreasonable things, you would think^ 
what may become of you and us all when they 
are broken. 

** They say, the devil shouM hate his due ; 
and to deal no worse with the Presbytcdans, 
though they were bs bad as be; I mu^ coniess, 
that never a {people on earth were dealt more 
hardly, or more unreasonably with than they* 
They stand upon a j9cruple uf conscience, that 
I Ihey must buve no meddling with tbe bishop s^ 
« ajMi that both by scripture, and their solemn 
oath to Goil, which they think no man can 
dispense wiUi, together wUh an opinion of more 
sensible benefit to their souls, they are bound 
to hear none other than those of their owir 
way ; which being granted them, as it was 
once the utmost of their aim, so, no doubt, 
WOitld have as absohitdy secured tbem to 
peace, and obedience to magistTaies, as any 
otlier *-'''' ' italsoeycr: but this not being 

aliowi L >y , lor avoiding public oftence 

and the r^acn oi tbe law, ■secsnbled themselTes 
privsK'ly in houses for healing thfir {ireacheni ; 
wbidi, ail>eit the same be toie. openly, and 
without either cballfiige or punishments in 
J&nghuid and Ireland, yet here was looked 
u^tU u io ndtfiiious a crime, that strict and 

Ctevert acts were immediatelv issued foKh, 



lawes and acts of parliament heritors are to 
assin the king, to punish rebel Is, and are U^ ^ 
enforce the ktnsr s^gainest rebel Is, both which 
tteccssarbe impfys as the nature of their dut| 

bouse, apprehtndeil, imprisoned, eonie in < 
prisons, some tortured for procuring confl 
sions from them, sotne weak or sickly perse 
blocked up, till they died in prison, others 6ne 
in great sums of money, some wherecif paid 
again and again, to the great diminishing ol 
their fortunes, and detriment of their |Kwl«rityy|| 
others not paying were kept still in pris< 
some whereof have been prisoners many yo 
by past, and are yet so, who never saw a neM- 
conventicle. 

'* Thus they wer© constrained to betake 
themselves to the hills and deserts in the tiehli, 
tor shunning of these severitiec, for which they 
were more cried out upon than ever, as pers^mi 
not only disobedient to the king's laws, ba~ 
designing a rebellion against bis person an 
authority by these Bekl-meettngs. Tbey, lika 
so many Roman vindicators of their liWrltc 
and rights, knew that desperate disease 
required dpsperale remedies, and therefor 
thought no Imzard too great for tbem to vn^ 
der^o, for preventing the bondage threatene 
a^inst them and their posterity ; while we 
like so many asses, crouch under tbe burden 
He must see to bis freedom, he to his life, 
to his fortune : and though our endeavourp iq 
those methods befool us never so ofWtt, yel 
we'll sit still and see the public toter^t sinki' 
rather than think of another wav. If our 
wounds will not cure withont pain, weMl ler 
them rot upon us. Hut behold tlie end of thi« 
sure dealing, of this thin skinned and elfemi- 
natc tenderness. Fy unon it ! it looks as if 
this generation were made for no other end but 
to be tramoled upon, then destroy ed, and well 
to deserve both « 

*< Upon this head, the then armless multi- 
tade was pnrsaed from hill to hill, as so many 
traitors; armed men sent against them, bj 
whom many of them were apprehended, aome 
wounded, some killed, some imprisoned in cloae 
prisons, some tormented, some sold as slaret 
to tbreign platitations, though by tbe Provi- 
dence of God, delivered in a strange way. to 
the shame of their enemies. Some of their 
women* both old and young, most barbftrouslT 
used, being stript naked by the rude soldiers, 
their oblb<» carried away, and they lefl in that 
destitute condition in the ones tields. And as 
if all this their patient vnHbrtDg, had server 1 for 
no other end, but to mcense their adversaries 
fury and implacable malice the more again si 
them, as a more eminent proof of their destiiie 
at them, they mised a great army, with % 
sumptuous train of ammunition and artillery, 
to Aghl egainet the very i^^nd of the west 
country* as carrying alooM with it an in* 
fectiottsprf-*^- *— nn air, whereby other places 
might In 1 ; f^r the poor people in 

the mean u,.,.^ ,,^:i» all sittitvq^ '^%jtwb^^ Sa». 

V 



m 



32 CHARLES IL 

[Hie does, not n simple! comin«f to the 
liOet, bu4 «nc rpiimmiittr lill Ihc coL'inies F>e 
defuta ; hut so \i is, that liDthoiisie did not st4i}' 
with tjie host, but came hofiieaud bq is lyahle ; 
will, it' this vttiv allowed, the net ef pnrliamcnt 

*' This their host mainly consisted of b.ir- 
haroua liii;hlanders, by whom, like as ttinny 
•avftges, cruelties, opprcWiotiJ?, pUuiders, an<l 
i»lher horritl ahuses n»Tc exercised npon then*, 
iA)i3 g^reat, villuitirMt^ and sihamerul to be nnmeii, 
hy 'uiy man wfio owns himself a country man 
i^f tho»ie who eomuiUti'id them, or of those slate 
ijiiiiwlers by whom i\wy were siuthorized. 

** In llie mwin time/ by an aft of non-ad- 
ilressesi^and aoothfr otlnlurcommuninfi:, where- 
by tt is unlawful for Ihu son to gfive a bit of 
hrcadi or lo speak to his father, or tlie wife to 
ker husband, thougrli lying' 8tarvin;j at their 
doors, all access by supidicatton^ or otherwise, 
either by ttiiemadTes or their friends, being- cut 
i>ff from them, either to his majesty or his 
council ; and whatever acts of ^rarc his ma- 
jesty w*5 pleased to sicnd in their faiourSi the 
isme bttinf* either so mfnced and clogfped, or 
wholly sappressed by the means and power of 
tl^ebinhops in the council, that they wor« alto- 
gether depri?ed of the benefit thereof, as was 
done with a late order from bin majesty, for 
liberty lo them to preach in houses : and after 
all this, a proctauaation beiog' emitted, whereby 
it is declared treason for them to be found at 
iho&e meetiufjrs with any ajms, and the standing 
forces bafiug' received "orifers of tire and sword 
tgainst all that should withi^tand tbeni; which 
bein^ put iu execution by captain Grahani of 
Claverliouse, to the effusion ol much blo<>d, and 
the same measure being declaredly appointed 
for the whole remainder of that party ; let any 
cober and dLs interested mau judge, if, with 
that wijse and honourable counseller the earl of 
l|»haftsbury, it may not rather be Uiong^hta mi- 
ractilous work of God, that these people, havings 
the hearts of men in them, should have sitten 
and suffered so much and so long- ; than be 
4hau^ht sti*ang«, that now at length they ap- 
pear in arms for their own defenoe from such 
Utter and imminent i-uin ; or yet strange, that 
f ucb numbers should How in to them at such a 
aick of time, when bifih those of our own no- 
bility aud gentry, who ha?e so much endea- 
f oured to reprci>«Dt to, and convince his ma- 
jesty of our grievances, have, by the forgeries 
and iniiouatious of evil couns<^llero« liemi so 
<itleii, and yet are^ not only ti>tally trustraled, 
6ut shghtingly and misre^-iirdfutty ti'«»ated, as 
persona oppo#iile to hb majesty ^s inteit^st and 
fin.-; — .. mj4 also by proroj^Jing '»f *'- i-'-.'j;. 
iment, mensho[»4is of helj , , 

^ . . . ■ . . .^j liberty or reii gi»m, so un i \ - , : .- 1 i 

tbem, and the succession of the crown, as well 
bcrc as thur \s Ki\ Vikt \\ to be dcvolvt:d \ipun 
ji known vt. 

*' Are I (0 bestow your a*iiii»»t- 

mim of alt tbe!»e op- 

_ I link that your loyalty 

•lyagvth y^^u w tZ do f Virt bctofis you go» I 



1 



RhonlJ be eliisoric, the coantrey irtideffefi(lil»j 
and n;bills unpuniMhetK 

8ir George Jjockftart re|dy8, that tlic de- 
fence atandii relevant notii ithfltaniUng of the | 
answcjr, because it ir not contravert<Ml wlial is j 

woujil have you answer me seriously these twc* 
or three questions. 

*^ Are you sure that your loyalty would fortify 
you to suffer patiently all tbose things, if the 
burden were on your own shoulders ? 

*• Have alt these arg-uuifrits, that you are so 
well furnished with, against implicite failli !€► 
churchmeu in church -aff^urs^ no proportionailii 
weight at all aqpaiust iinpliciie faith to states- 
men in state -affairs? Or can you not say thai, 
the streams are muddy, nuless you coticlud^ 
the fountain to be so afso f 

*' Who bad grejLter respect to the king's ho- 
nour, inieresl and laws, tnose, that witlKUil th* 
conilitions required by the law, in obedt(>nre to 
the act of council, found caution of law- 
borrows for his majesty's safety ? Or they, vrho 
in obedience to law, reason, conscience, and., 
their allegiance to their prince, diti altogether 
refuse it, both as a thing wherein the law could 
noi be answered, and wliich they found exceed* 
ing derogatory to his majesty's honour, dignity 
and aovereigii authority, which our allegianca 
obligeth us, * with our lives and fortunes, to 

* the uttermost of our power, constantly and 

* faithfully to maintain, defend and advance _ 

* against all and whatsoever persons, power or 1 

* estates, who ^hatl presume in any ways to prew J 

* judge, hurt or impair the same?' James 0, i 
purl. 18, cap. 1, / 

** In which, by the way, it is worth the od* 
ticing how toiserably Jhose jiatrons ofsupfv 
macy, those champions oftlie arbitrary leli 
law ovei^reacbed and faltred themselves, li 
tliistheirDOtable legal invention for supplj* 
the room, and saving the credit of their il6r 
bond, in that, while they are coniendinf 
much to exalt the king above the law, the 
the mean w hile, not only make him a sr 
cant and defueaucr of himself to the lai 
subject Ikim to so mean and huioble a c 
of necessity of supplicating, a degree so ^ 
suitable to a supreme governor o^r allM 
and in all causes, that not only Jie is m 
of alt kiags, that ever was made, byf 
counsellors, to stoop so low, and likeli 
Ust ; but even amongst bis own subjeq 
are many thousands, that would thiw 
far below tiierii to hiwborrows of aiidf 
majesty, at lea^d Uih council declaf 
ready to take by that act, yea, whtf 
much houour to maintain^ as wr 
them disdain the very thouj^lit of au 
ticc. We may t*"''-"- **'*t> « u.i» 
cuuucil Itatli bed 
thf^ir actmgif, wti' 
their choice* 

** Now this waa a prodami 

t I llOW C41I 

t. and iotei< 

a^d iu tUu;.(^ f uudatneut^Ll oUx^di 



tlie import of itie acbs of parliament Ijpbrtlcd 
upon, M hetbti' lliey be suflhcieat to found aue 
dittay againc^^t ilt'SurtJii ^e^ or not ; but ihc 



by our wbule refireseDtatiTes have unani- 
mously bound tbems^ilves and us, and their 
and our siieeesson*, to the perpetunl and nual- 
terable Enaint< nance of both, is eiideat tu all 
that will not wilfully sliut their ryts, 

** U it for us ib'en, lo take upon trust onr 
kiu^^s mind, honour or mterest from such law- 
c'ivers ? Or if we Jo, may vie not allcri^ard l>e 
found aa culpable in obeying, as they in com- 
loanding- f 

^^ Jfihis prevail not, consider but these heads 
of the oatii of c^oronation, ivherewifh, and 
wbere(i]H)n our kln^s iisceiTe the crown of this 
kin^d«im, *■ that tliey shall rule the people 

* c*rmniiired to their charge, acoirdiocf to ihe 

* houi^nrahW litw> n.nd consiitutions received in 
■ thii* reaUu ; that they shad procure tn the 
' utterini»!<t of their ]iowt'i\ to the kirk of Ciod, 

* and hail ClmKlinn people, true and [H'rftct 

* peace in all time comiui; ; that tbey shall 

* forbid and repress, in all €*sitntes and decrees, 
' reift, omire^sion and all kind of wroi)i>' ; thaL 
' iu all judi^ments, they shall command and 

* procure, thai Justice and if4|uity be kept to all 
*■ creatures w itbout exception, a^ the Lord and 

* Father of all mercies be merciful to them.* 
James 6, parL I, cup. H. Think then ho\v deep 
it may draiv upon their score, not only before 
God, but betbre mau, who presume to take 
upon them to advise or persuade his majcsly to 
act, or to act themselves under colour of' his 
authority, thing^s manifestly contrary and re- 
|)ttSfnant to this sotema oath of God, and chirf 
*uiHlamental hw of our nation ; and of what 
fatal consequence it roay afterwards prove, not 
only to tiiem, but also to their abettore, aiders, 
cucoumgm iu such wicked imlawful cmmsels 
and practiceK ; at least, if erer Scotland be sn 
faappy m to return ag^u to the uabiass^d rr^ht 
use of law, reason or coascieocc ; and yet more 
ca;peci:ill^, when, to the conviction of all men, 
our king- is of hims«lf so naturally projiense 
and inchrjaUle lo all ways of justice; anil cle- 
mency. 

'* his known, that his majesty, at his restau- 
ration, declared bim^tdf resolved not to alter 
the govfr TiriLf f.rihe church thenestablishe*k 
ItiBtkL of late also, a plenary imd 

iinivers . ^ nee was granted by him, iu 

favours ot tiio uonconformi$it«^. Thise are the 
uattTe eiTecls of our kfn<];- s mcli nation, ^ooiJ* 
nets and clemency, by either of which all 
ihcse immineut mischiefs might have been pre- 
vented* Who tlicu were the obstructers ? 
Ought tliey not now rather to be searched for, 
looked upon, and dealt with as the greatest ene- 
Que^ of king, people and government, tlian 
lusinted in the prosecution of such pernicious 
counsels as have oncasioneU so imliappy and 
so uuseasotiabte a bieach in our peace and 
safety ? 

'* Shall I ever believe that bis majesty, who, 
of his own nature^ is so wise and so just a pat- 

VOL. Xh 



only def^tiee is, that ther b no crimiuall ly- 
hcU raised aguinest the patmall as a deserter, 
bul simplie for byding^ trae his majestie's host 

leru of civility and obligingness, and who 
ruleth by compact betwixt him and his lieges, 
would ever have forced commanders upon the 
nobility antl gentry ? ei^pecially at a time, 
when It appears, be oetdeth so much their 
sen ice, and ibey are so willing to bestow it. 
When the French king, who hath no other law 
for his actings but his own w ill, yet dotb not 
so much as propose any officer to the gentry, 
when he caVleth them forth, but remitteth that 
matter w holly lo lot. 

** Can it be supposed, that his majesty, whose 
life, honour and kiugdoms are m bunted for, by 
plot after plot of these bh>ody emi&saries ofSutan, 
the Papists, the greatest and most insolent ene- 
mies ofmonai-chy,and the most incurable plagiie 
and bane of all humnn society, and who there- 
fore commanded lately his proclamation to be 
issued forth, for apprehending or banish irig 
many, and wholly disarming all of them within 
all the corners ot the land, would ever not only 
have restored to them the power of their arms^ 
but have nut great numbers of bis faithful anil 
hoti^ourahJe Protestant sulijecLs under some of 
their commands ? 

'* Can any man think it his majesty's will, 
that Bailie Baird^s son, w ho was never a sol- 
dier» should be cornet of a troop where the eati 
of IjOthian, earl of Dalhoussy, viscount of 
Oxenford, lord Torpichen, Balnierino, hi\ are 

10 ride as troopenai, and where his grace the 
dnkeof liucclcugh, when he arrives, can, ac- 
cording to the procjamntion, pretend no higher 
than the tight hand of the Jirst rank ? 

** And since we haie such ground to doubt 
of these, and it is so well known, that bis ma- 
jesty did not of himself intrude bishopt upon 
us, but only, by the selfish treacbcry of some 
who were employed to secure us from tliem, he 
was perewaded, and made lo believe, that that 
governmenl would best agree with us : who, 
in reason, can, or ought to iniagine that it pro- 
ceed eth from his majesty, that his subjects of 
his tlirije kingdoms should be engaged in bloody 
wars and devastation of their fortunes, wherebjf 
they may be renderetl a prey to foreign ene- 
mies and lurking Papists, and un6i to serve his 
majesty iu n more necessary cause, and of far 
greater concern to king and kingdoms, witli 
the uncertainty of what further ruin these 
evils may grow to, rather than part now witU 
that ffovernmeni of the church, when he sees 
how far he bath* been tnisinfuriued concerning 
it? 

** His majesty^s both mind and true interest 
being thus cleared, this then, in plain terms, an 

11 consequence clear enough of itsetf, must be 
the true state of the aifair, Duk*^ Lawderdale 
is obliged to the biiihops, they helped well to 
uphold him when he was tottering, and yei 
help him, and therefore we must uphold them, 
though we should allfaH in the quarrel. 

'' l& the cause then sufficient? Caa yotL 
C 



I 
I 



m 



32 CHARLES 11. Pr&ceedingi againtt the FlfeMn Haiimr, [W 



\mni\ royaU siaiidiirt. uhich is altogfitluT dtsttnct 

ln>rii liie crime orileiert, und the^r are screrall 

I defences coropetcnt iq tbe one cas^ ihut are not 

Itake }Otir life in your band, aud !£<?curetj re^t 
fyonr conscience upoo it P 1 hniiiph vf>u could, 
)'ou Bure that \m gain fihRil be yours? 
fAnd« prav, wliether was it interest or con- 
Ptenee, trial made that statesman, wbea he ivas 
llast amongrst ns^ cndearoor no much to have 
Istriick in with the Preabytertan i>urly« those 
itebels a^inst tile king and government, when 
Tlie saw tliem growing so fast, and so difficult 
[to be borne down ? Which iikelv Lad taken 
t effect, if he had not been checked m tht^ bridle 
lit hi^ first starting aside, and so ()cbuvcd to 
ITcnpw his cngatfemeols, with fi^esh and evident 
rUmimonics ofhisreahty* not tinding it fit to 
[ tinhinf^e himself of the ouepai-ty, whire he was 
yet unsure of the ulher* 

I ** If Ibis llien he the sum of the matter, that 
I the bishops serve duke Lawderdale-s interest, 
iind we therefure mast ierre the bishops in - 
[lercst ut any rate, lest othen%ise we filiould 
weary of lieiug tre:id npon ; all I can say 
t captain Carstair^, Baihe Caroiichacl, the 
[ town- mnjor and hiii men « are like to come to 
I BO fjumll credit by so noble and nunicrous n 
\ traui (d' assessoi's, as the whute nobility and 
' gentry of Scotland. However on sohie ac- 
counts, ihty must yield to them the prehemi- 
, nence, those only haTingtheadiantage of profit 
for their Ktrvicel bcint^ mercenary n^^ues, and 
^ bavin ^^ others aUo under them to wait ilieir 
• commands, while these hare the hon«»ur to 
1 testiijr their zeal, by far greater condeaccn- 
I dency of serving under command, and some 
under those theyliate, eome under those thmt 
hate them, some under in^igttificant green- 
, lioms, and others under worse tliau some that 
«TC, or have been their hired isenants, and all 
this not only gratis, but to their great ct pence, 
•ml with tlic exposing of their Ures luid for- 

101185. 

*• ir you think this honourable for you, you 
may be doi n g a& m ueh , an d as si I en t as any , a (be it 
€n all the forenamed gruundn you have so jtist 
snd handsome a way to retreat": if not, ] fi-eely 
give you my advice, that, n't 1 doubt nntluit 
you will liotQ be as lorwajd anil cordial as any 
man, in testifying your afTfcdon for the rt il 
tnaiutenance of lirs mR)v^iy*ii authority ; go, if 
you lind not yoursc}f indeed conccnvrd to give 
proof of it in iliis ininrrt^l, you di«enjjngt!your- 
•elfin tiriic; or it otlKTwl^et that yt'i vim go 
0Ot out, nor do any thin^^ withfi ' ^ ^ ii 

©f tahojurt\ upon tht* iorefiici i 
that, by a bud picpanilive, yow .,< ;,,„ .,.,,,- 
cnsion af an irnrparsible dunnige to your coiin- 
Iry ;. which, at snrh a time, wore { nf one of 
those shires that are called out, ymi itjay be- 
lieve me, I wotdd think it my duty and honour 
to do, though Mith the greatest hn /.a rd^ and 
Ciiuugh there were not another to sercnid mc . 
IVhen the public inteiTCSt is like to Huiftr, by 
tJie ignonitjce, neglect or coward ici- of all, hV 
nehtcth double glory, making all Uti uiUioia, 



proper in the other, and cr ht*i\m 

ther own naittre are */ri>/*jA. mh\ * 

not be extend it tiryond the prectue tcmirs Ml 



and all their posterity his debtors, who ^teppetk 
in at such a uick of extreme Deed, with oppor* 
tune help and assistance, 

** Take courage then, and regard n«>t itieeil- 
mour of court sycophants, who live upon tbeir ^J 
country's ruin, and trill l»e crying down audi ^M 
heroicK acts, as opposite and prejudicial to im ^^ 
majesty'^i authori^. But be you confideot* 
that it Ihall always at long run, be found «nd 
seen that lie is the best friend to his king*, tbat 
is the best friend to his country, and ti» tlie 
laws and lilierties thereof, which knh kirig anil 
parliament have declareil to be the birth nght 
and inheritance of the subject, and the security ^| 
of their lives and fortunes, Charles 2. Pari. 1* ^ 
Act 17, and that these two interests are us in* 
dividable in the body politick, as are thoi»e of 
the head and the body natural. 

** For what is further, consult the scripttm 
and your conscience and be fully perswaocd la * 
your own mind. For me you know, how 
much and how often 1 have contended for epta* ^ 
copacv : But now I have considered tlietr ^| 
partial behaviour in the matter of Danby und ^^ 
the lords in tire Tower, those arch enemies (J/foor 
king and gorernment, I see them lioth iliert 
and here so knit to the bias of the courf, that 
they will rather sell their souls, and the wbo1« 
interests of the kingdom, than not swing to iliat 
side right or wrong. 1 see them gencfnlly to 
be men altogether set upon their own proffit 
and advancement, and that, when once they 
can make their court well, they little mind re* 
ligioD, or the care of souls. 1 see they take na 
effectual course for curbing of profanity, atu| 
that, ifa man will but stand for their grandeur 
and revenues, they easily dispense with bis bein^ 
otberwise what he will. I see, that at moist any 
scHodaloits fellow that will own them, antl hatu ^^ 
but an M btfore tiis name, may ha^e a kirk ; fl 
too rauny whereof I know, and 'more here than ™ 
with you. I have considered bishop Sharp, mm 
their head and last introducer, whose rewftrd 
hath Imtu terriUe in the justice of Uud, what* 
ever the actors have bern. And 1 have coo- 
fiidered bishop Patersou aK the tail^ whose re- 
wanl is, no doubt, waiting him also, if he men^ 
not his manners. 1 huwe not forgot their 
rnjcl, arrogant and blood-thirsty stopping of 
his nntjcstN ',s grarious bounty, and keeping up 
of bis n ni!<'(ion afWr the business of Pentlaml, 
whicb^ with their torturing and hanging of 
the p«tor peojdt*, aOer tjoarttrs given them in 
the tiehU by ^ieniral Dalziel, as it was a singit'o 
lar reword to him for hi^ good service doii# 
thc'iTi, so may it, to all |ionet<t hearts, be as 
[lalpiible, as it is an odd example of their faitb 
and ninnnftrs. I see the very oflVscourings of 
thf rj\rth employed by them as their trustees 
nnd hrroes, fiir propagating of tlieir conformity, 
ntid sotiir of thvni, ihoiigh base all over, and 
de%pir«bli* above all e.xnression, yet owned and 
caretntd by them, Qi mav c fellows, and chief 



tl] 



/or Abimcifrom the King's HaL 



A*0. 1680* 



rss 



wliieh tjjey are lybdied, and cemiiilv the 
' <lffet»C4? pr^-iit"' T^ a lotalt dcfenct; ftgtuiiest 
' ihc k^iC!ll r. 

Hy Loy^ ....,,.,.; 4!u|>l3e«^ tbut abytlin^ is 

KproBslie hn|iUett in iishitvhiig and viilurttu^t 

Of no man cane intVirce but be that byds, ami 

pIhh miiji'fii'iti's aiUociit insists, orcordiug to tbe 

tfiiabsuitiptioii^ Ibot be did reiniiirie and abyd 

frno tbe hoii Ibe day of Bolliwei iVijfbt. 

Hit Gear ge Lockkuri^ adbearmg' to tbe de- 
fence, craves a diiititictintcrtoquitor, and farder 
dleadges ibattUo des«^ttin|^iudc bein ly belled, 
. yet the dittay cnnnoi be put to the knowledjie 
) of ane assyse, becaui!»e the pannaU did obtoiiie 
ji V ' .lis of Montrose, cap- 

1 ids, and conunandet' 

c-j ijM' I iniii MiVM -Miiiemen, whtr u[iODthe 
Lconsideraiimieii tberin mentiuued, and parti - 
VcuUrhe that the pantiatl ivns tender and vuli- 
(ftiidntaric and not able to atteud, nnd that he 
^Lade left three vnU apiK^yoled horssetnen to 
iltend his ninjesities 8frviee> he grants him 
lioence and Ubertieto jjne home without trouble 
r HHiUeatatJcm, as thcsnid pns^ at lenj^-th hilars. 



'|>fOmoters of their principles and iuleresit: yea, 

io Uttk choice DitiKe ibey on this bead, whe* 

Iber as to Profanily, Popry, Atheiikm, or what 

.eliie yuu can think on, tiiat» for uug^bt tliat ai>- 

rpears, a.^ many devils out of bdl nould be 

.Welcome to them, to [irop their Dajj^on of pre- 

Jucy, and to be a »coiir|ft- tu the tanatica. 1 

if^i forc<2 and the rigour of the law are their 

two g^{id pillars, the Jachin aud Boa^ of 

[4lieir tctuple ; and tb^ their whole poviert ^^' 

Itlerect and endcavouru are 80 joyutiy ami in- 

f tirely bestouctl upon the auppresfcing of con 

tiTenticlea, and for hindriu{^ the pnachmg ot 

L^tlie ffospeif by thitse of the nonconformist 

j ^party^ which renders it to me dreJidiuiK' sua* 

h|iiciuos» that their cause mu^t be but so and so, 

I M heu themt^lvesjudg'e it tiie tt>ain support and 

|, security thereof, that it ne*«ir came to a fair 

i lieariuif ; for the truth lit, they reckon them- 

^.ie)vc» undone, if ever the pco(deiftt leave lo 

.liear these men, I see, ino«i of them look 

either \vjib allection or indirtWunry ufion l*o- 

[.|)ery, that the PupisU ibtui^eht s labour them 

'ethau any other ^ov^r hsm ■ t \\v-A by ihtir 

line** in pro2*ecnUn|i: t i ;ireiheoc- 

t of much euUo in - and that 

\\mpft much life to uU tbetr imsichievous 

PtlDT tbe hope they find of \et ascending 

I , up on that step of their hierarcby Mmaiuin|!: 

ttinon;:^! us. Whereat, on the Other baud, it 

^^^\«led^^id by all, tUut the 

il it Hill, it is certuinly the 

^bcst iriiiLkJ) Lk;;.iio^t I'otwry in ibe world j the 

total j-ootinj^ onl whereol nmor>;^t uu, now 

ir the diM'ovei'ieti ue have, onytit on many 

ounts to be I'Htcemed the gruml inter<Mil» 

herein tlie powu^r, wit and endeavours of 

every \^i^ui\ subjeci, t^vi-iy i^riod couttuynian, 

and exiiry ^^'k"-! < 'l.t ,-_ii.,:. vlnu.M um i.iujin*-. 

Andt in Hut;, > 1, 

ihefaiai coiifcr^ j 

meat of biahopi amon^t u», ^itk ike apiiear- 



( 



His Majesties Advocat re pi yea, that those 
^entlennin and heriUirv *- i ' 'v the custome 
of ifie mUiou and by *- iticm of the 

coimcdl, nideidfifcd til liu...,. ... lung's host, 
to asciat and enforce as «ai1 is, it nrninoiia 
the power of the marques of Montrose or any 
commandiT whatsoever to relace them from 
this duty, for as they carac not thrr by bis or 
therjmtboritie,so*ej"uaeatoo' ie/ 

and if it wcr other wayes c^ , ab- 

solutely disapoynt his maje^tiii* service, w'he^• 
as they are choised not to dispense but to 
command andtherfortJiey are •> extra <>fficium' 
when they dispense, hu\ if the sicknes waa 
such as necessarilie and certainlie hindered 
tktusie from goeing on, it shall be found r« 
levaQt, which is alTthat any gwd Mibjcct cane 
crave to be done in his taTours ; and this is not 
the grantingr of a pase hot the reroittinjf of ane 
duty which the lawe exacts : and by tlie prti- 
clamation wherby the commanders wer ap- 
pnyntedi it is deelaired that such as oanie 
not or deserted wer to be lyable, so that they 
wer to knowe ther duty by the proclamatioo, 
and lion who commandit (but the councill) 
conid warrand ther deserting. 

8ir Genrge Loekhart duplyes, thatthepannall 
op pons the passe 'and the nctH of parliament M 
I Y bet ted uiKkn ordainittg^ all persons to enfoi-ce H 
his majtstie againest nottor rebel k, bears thst 
exception, unlestie they hare ane reasonable eX- 
cusation* and ther cape be no excuse more 
reasonable then a passe from a commissiunat 
oBicer, tmder whor^e ccmdtict and conmtand tlie _ 
pan nail was requyred to serve* And h^wyem ■ 
were clear aa * Grotius de Jure belli et pacis,' m 
thiit [qu, not! only suprenmc commandcTs 

ance of what is tike to be tbe end of the pre- 
sent ; and that our nation hath drunk in nuch 
ati inbre^l and indelible prejudice against 
them, that thoue^b the&e fourteen men were as 
nmuy iraints, neither can much ifood he ex- 
pected from th»'m, undtL-r that character, in this 
place, nur yi t they ever long settled without 
blooil and coufu«iion, 

*' 1 wish only the pr- '"^ ■ '•- m ^.-ij f^\yf» 
some pithy »nd incot/ of 

their rt^al uffevtion to !»;. .....,.,,, .„ . .iful 

sovereign^ (md to ttie true line, m so far as by 
t*oj>ery it is not interrupted ; with 8uc!i a 
proof of their aljhorrence of episcopacy, as 
mav make tUeni take up an antipathy at their 
prelatical viay of having no sooner power ia 
their hand«, but inttuntly, with oaths, tleclara* 
tion^^and bomh, tiyiui* like as many wild cats, 
in the throat of our consciences ; and that tliey, 
Preiihyterians, would rather lake a more jfos- 
pel wuy of instructing us in love and nifvk* 
ness, at^i m imticrice watt, till by the use af 
means, and tltc»r affectionate canisgo towards 



1 



us, wp be won to the disce 
^ilon of those (hing^ji, ihM ar 
wherein wedilVci% -''"I "t'^ 
say, Amen. Tl.« 
and peace ; and i 
prelacy and ^^>i^\^ S*w 



perswa- 
tnenttls, 
fiij^esty 
V , tmity 



J 






-»4 



Jill iiMi nriiniir iifiina^ '.loiier :lii*r rfmnuuiii 
jiu-r ^-rrtnt luwev. xa\i Ttie ^JiiMuentitnis !::> 
Linibc n im lusiM! ne't'* -iiuii«» l i^-tiiar tiui 
uie nurqiiis ir Htmimife. -T'lti » i TtHTiiii] n 
.r^Kii UiUDur iQJ jfnuuiui juii rurvnn iir ii«v 

SUttSKItttr -r*!™:!!. -nilUU JUi*** n^HUr-.i lU t^H"! 

iiisMS luieaw Her luue -Jeui ^iint:!efii ruus«: 
rur he «iiie. uxu i :aiiiHit jr imu^ruMi ir ji-r- 
juinv*! tuu .ic^' la^ixnr tie luouur n «n'4i ju 
ouut-^e u nmiuuHuimu. niivsRf vniua xranc 
a«aM» 11 Qe ibinmeui uiti ii>^iiiiiL*a if Jis 
aiiiNstXKt -ier*TL'v. su tun ijer « in Hiar Tnm 
*ue DU-JiiTembaL'e ir^*a. inu r aumut w 
«r»nini\-#«TTe'i lui ue iiunmis» n* HiimmsHs ip 
luv "iiniuuHfHiuai »ine?r iiiipr jt;r*2 mifsvHi 

lUll IMHIMi'l IT Ji» TOIUI U Itt -tlOlllcnt ilt. 

JUII -Till \i bk-^- a-; ui^TrumuGUiiiu! m 
ubiW!Ttuit> . nil I r»>r ufuu^c ul laiiiMi liia 
Kift*>«^. rruiici Hr Ufn :u tiivM! lumtsiiaiey 
imttr 'n«r "inuiiaati. ^kihiuu im le *2U»n«r3iir 
.i\i.'*i«*'. tiu N* lie awes uiu .nintunim if ul 
'.uiu<ii>. leiuvT ulow««i ni ^ffr^ rjimniaiMuiiac 
■imirr- uiiiUf inH:aui:uuiu» ii;&i ▼v^'iiiiNii-^lie 
•!utu:iit'«t. liii av lu 'V'sKTaim m :oiiiiiiiMUiimc 
iini'rp*. % i^- at V nurii wi ut n 'Ui» tvm. 
»-u*.r! # I'.'iit t»i*-" writ--. -Ukt lein^ ivUlilUC 
uurK •r»u:iii— Drii or oiMrrvr tini,r!r> u ^rmv 
«QU8«*» *-i!v':i ver i«*er xMiunvHrrc-a hit 
iraivirii u :u«:jfu»n. »n*' ti*-" im i»'» CTcjse 
'Cysc 'J %.iim ntv rer x'^uJit*^- L ■•■?*«» ne 
narrv..-:' -. "U.mr»»'j« »:--^.aiiiiiv lI•-«^'u•J•l"•••ln- 
llaL• .r ■: Ufc -flv^. uxu t> •ifin.»«i -w us 
»r«^'-fl Ltr Kk! '2-jA «r;» IP -■n.^t tiieu 'llt;^* 

n»ii!!r'ut-i ver ■»»*rni»iauu ^u iiu uiiMir iiah 
.t>rr:u.^ . ^^ . i ; *i»^ nnii i /-jmiuiMMvinc 
riv -1 *..-.^u -.yc*:**^ Jill racontr nerKm^r in- 

r.c-; ? i\- •••" r vr i"".l::««* u awtt »av 

Us.- :i :.»•! ■^■*- V- : •. viir«v tis*?, *»- 

■•- :i. . ■ . -^ :. '.: -'"ws.-i 'ti'i:'.r»»>*f. .f— jilur 
I :. - .tj<^. i^«. :::^ LiU I'la lUlcMIbb 

ft'r- .:• "• •: : — '^r ;:.'-»i. Ur!»e w»-ii U'Wtv-utfi 
.'.'7" :. ..^ :. »»■«• ?«uaia«r«i v^ia i_a 



: i-' .' «. -.-.t.- 






u:;:e 



e ii- •■■ ■.. -. r- -r, — . Z r ».. 

■ .. ■• ■:« ':■■-. - - ■ ■ : .■ r-'M-v-e 
f.. US' ".i " n ,-;• ,T- . ,r. ... ,1. 

usr.u: . t r'.r*-'! *•■ . . ■^-.•:. • ,.' .mnu": 

»T 2is iiir-t .:•■:■ ... rannrir ■ I-: — -nii 

ain. A T 2i *■-. fill tr. ".e snii'.:. -s '.o- 
■Hnr». -fiin «v ■ .,. •^nn'-s .jznttie .-mr^^s fMjur 
Jr-~ ^B* »niv Tme-i ^*snita •>iii« wines. 



-niOK ::itf L-umir mit uiniBiiiiiff 

i'i. ZiH^ jtf laiiis ii?t3 imt ail irfuflr kLMiiA 
11 "iiiir lar'niw! in* w ih imttflr^iniiit v.ca cais 
■Rjniixiiiiix. *liat :uH iniiiiwiB 'ii; a-v^iilm m^^r- 
istff. uiii tj mr! i«nT-«: mariiey w»r u.»- 
iiiliii ^::(mrvi. r!iH irMrBmannu. Jitc Htsm^ 
•inmuc ic iiH nsmmc •t'ii^s if C«mnar. vtiiidk 
H t'.e ji!3ii nirrnrt ifix»s hi-]"^. li'i c Msar 

Jtt. EiRD lie iii*finiKrf nniiit loiiw 3i die 
'<au«v«tie*iir^ ir' ui ubyvf innn tne '"mi i» OK 
iiuniiic in Iim «u<w luis if mrtmneni^ j^n ifttt 
TT^e if "tie iiuii;iiur ^iH^jf -a :tie pbc'MS rf 
i:n:r rallies iii* ir«r. 31s iiu]irfBe anile nr 
AmiiiniT iirr^s ir jnniKiIe*! vmj . inc jil iiiB 
iUDHwa n yjix if noeiliini itfrvrrzr 'Haob 
uiu iRRcsn. 'V'ltiiiiiT iihain!TXfNi if lenuiraL 
v*sr yiiw"^T!'i 19 Hteait ^luft 3iu{t<!Kii» himc : 
luw ji» nuiesntt m^iiir t iciniuiii; 
IDH iie villi* iHi ikHB ir luriansKiit Jiaiiip datt 
*Tiniiauin] 11 "iiiic le^r ruiHiiniiiuD it'JUi mi^ 
inB. r 'liiipE "u •CEoniflr He iefiHiiitffai Mem^ 
iiM aiiiim mi inuii ^nar •muixps jiui ox- 
leBseK imi :ue na^e if x won !br •^awBO^ 
tt lie n-rTior«. 

w. 3'* lis naii*?t:i-* n-KSTOB jct'if "iBiiBm— 
line, tie imniuuls ur* kk'iqTO» iiiiiiini jbA 
uttiii I rmiaane me ssic^am •ft unvvs. «^ 
He sume s nny if 4Ut.*u » liii SK hhk ou 
DiuvKitr 1 luR.' io iiar -liii in^ «tr jiic nr- 
^uailie ir*"M2n. -tk fucsx n -tiein yi <Kac •mc 
iier -Rfr^^ims mu lur^vs uii tna^y anx *iai 
nuiMQi^ iirst. inu m rmnoi Tmm^ ui ttos 
in«wrTe»is^ li me nunpc -sRwcTailie * ' iin^ 
lu u'^zieniv riiinnumi& ul 11& ;uii^«^iiir^ in 
Durryns ue ^aia ics. 

iiif. 't » irfvrr't jn w irnvfoi. imr linmi ;li« 
"^'ne IT tu uuescm inir*HinanuB. Mr* L^ni 
'.'uov^Iar ixrnc •nsi i ' -Hiai n'i ii ii» niif 
7"s ir?T-»- -jimisil He rimniiiii ir vne raTiv .aT 
7' :*. im! nui Ufef w^r rimimaiei if itiiwii 
:>--: nv-riiu:^ lu mu K>*m, riH-iusr imansjait 
uii-".:r:rTi::r ii.r»««s rr L e«.ter uxma. 11 -ny 
..rn ^.-'TTUTc "»"• 'nYuize *2niT'HMni n tMte^ 
^Iora i» 1UL3 "ht?r ivrn?-* ii'ifMeff:*! ir '•i^ 

u. i.:ue icii ^nazn ue 'rnuxir*'. UM 11 :k 
rai-ie !r'-T ■jL^^-ftowmeai TTfa 'ne -utmif »-- 

127.1 -s»t:r. iiae tm -ncn t "u*- -i«iu:s i« 
vij : L-. -- r.rir i'jj-ws siDilea Trtii: ntdD. 'W 
T»r-» 'cr.Ti-^^.v^ mir: or TTl^•sii '*i^rn p ^^ 
-."=:;:•■ .-•Ttf. tvJ:~^ n«t •HEttr r»»fii i.-* nun 

>^'i- xi' r.ir %.-re"iC2a j« >riM«»#:nj«i, 
ei:" 3C -017 i;!i«rni:i= r-int ,iig^- u-v . 






i-*!*:. ,r . ... t.'.s*- ill u:?s. uai mu »i 
-ns r- ■-u:»*'-'iirii:::ai- -race Q 
•ni"' He —r*ni: 'i ontt iaa.v»-: be 
■t :ae-fjav«< via mx jm* o jui i ii p 1 
jTtnisc -cvptia '•on "^iinik JMm -m 



ft'i] /or Abitnct/ram the King^i 

To tlie fiec«»D<1» it is answered, That the 
proclamation was 90 notii1l^f1f that public ran- 
tk'vou:£f^ did Uici^upon eusewe tbrowe all 
Scotland. 

To tli€! 3d, Tlie militia is not txdiisive of, 
hut canbi*it«i»t niili i\m (eudall aod natiooal 
duty, tliQt lyes u|>on crery heritor, and has 
%'i3ry juiitUc b^en cverfouod so, and is tiatioraJie 
litquiesced to by the people who since thooa 
act^fov the militia have cotiie out, and we see 
that both iiiililia and heritors are litle enoujcrh 
for our deiience ; lykeaa by the 25 act S sess, 
1 par. Ch. 2d, wherein the niiUtia is granted, 
it if* d»<elaired that the kingdoine shall Ije 
reii'M ' St sixtie and mxteiu it' his majestic 
>hvi t der use for them. 

'In the nnirih, it uefds no answer; and, to 
the fytih, it deserves no ans^ver, ejtcept the 
letter wer jiroduced, for private men carmot 
make up the tenor of letters from tlie counciil, 
which must be known and ex(»oncd by the 
context I as to the sense of which private men 
may be uMt*taken ; but to shew his majesties 
juiitire, it is found relevant of consent that per- 
sons wcT unable to trnvell, hkeas it is found re- 
levHut of consent that their horsc-s wer taken 
away, eo that they could not i^oe, they having^ 
done exact dilijjence to get other horses and 
taking- their declarations to ^bow that the 
hor»es wer not taken away by tbeir own con- 
nitaucc, wherliy each Tnau' might fumiJih 
himxt'lf with an defence by causing' his horse 
be taken nwny, and without thistlier is no pos- 
sibir' ' ' low what was counivaucc. 

•^ LiKkhurt duplies for ihe pannels, 

tlj;u rcuces ^tMnd relevant notwithstand- 
ing of the reply e, for as to the acts of parlia* 
tiient Jybelle<l on, they doc not at all concern 
the case of parlies not coitiino^ to the king^^s 
hoiit, which by e\j»ri.-sae and po«iti%e act& of 
purlinment in K. Afejtandcr t2, and K. Hobert 
1, lytue^ IS dHyuedt stated, and iletermined ; 
and lieio^ H stattitorie pufiiidmieut, it cannot be 
C3CC€edit unlcfe^ thcr wer a (posterior act of par- 
ti aiuent im|w»8in^ a (rrrater punishment upon 
lh(? ^inie cryrne, particularlio condescendil on, 
it 1> nripk- %n law Uiut *■ in totojure ge* 

* i> r<!tt.>iii dero^aniur/ and wher laws 

ni' tid defynes and considers cryraea 

pLu it [*|U. and] doc» impose specific 

IHJ ' •" J^"- >^ Mfie, siibse()ue4it general 

as ntieut are nefer uDftor- 

Ax to ihe Kccond, the defence it is most rale- 
▼ant that by thu nets of parliatuctii fotindit 
kU, and ull otlii^TS, it \h e%i'r requyr^ iw ane 
>n*^.f roTjitition thereof that (tcivons should 
l»t' and unlcsse it wer allc<l^ed that 

hi -( pn>i*btiiatiou was intimate and 

p>' Ompar, lb*? head hur^U of ttie 

ah 1% thcr waa 00 ftitlTicient intitna- 

tit'ii ' lion itself does txprt^slic 

ptr ri 1 ;iii(| rci^uvrc intuuatton 

1- lii^paii- 

fiiU .».*. ^*i ,i*^.t.., «ii,.t. ... ..,...,.;.», »iut to goe 

iiAli9SfitbepnK:liiiuitioiis bud been so published^ 



Ho$L 



A. D. l6S0. 



▼am 



An to the third, it is replyed, That the acts of 
parliattieiit establishing: the militia are opponed 
which relate to and are foondit upon the former 
acts of iiarl lament, and particularlie (hat aei , 
of kinvC James 3. lylielled upon ; and althoo^^ 
it is not contraverted, but tliat notwithstanduifif < 
of the establishment of the militia, his nmjestie 
may rcijuyre all fcnsible men, betwixt Mxteia 
an*l sixtie,' torcpaireio his host, ia which jcasdi 
heritors who undergoe the trouble and expeoie'^ 
of the mihtia cannot excuse themseWes; yet 
ther being no such general proclamatioDi can- 
ing- all fencible men, hut only calling heritors ^ 
and their followers in the particular shires men- i 
lioned in the proclamation, the ebtablisbmenlj 
of the militia oug-ht to exoner the heritors, ex* ] 
ccpt iu the common case that his majestic 1 
thoufrht (\i to call all hk subjects conforme ta| 
the old acts of parliament. 

As to the act of indemnitie, oppons the same, 
and referrs the consideration therof to the, 
lords; and the presence of tlie militia forces | 
ought to exoner, and most he looked upon, a«| 
ane a^istance, so as to give the beneOtt of thej 
act of indemnitie. 

As to the last, repeits and oppons the de* 
fence and the lords of prii'ie councill having J 
wreitien a letter of the tenor, mentioned in the J 
defence, and upon the consideration of the ha-I 
7,ard that the rebellion mi^ht break out in thalj 
countrey, the pannalls who are able to fountll 
upon the termes of the said letter, ought to bol 
e?t:cused, and it is positivlic ofl'eretl to b«J 
proven, that as to tlie persons to be condescendil I 
upon ther gY>ods, wer rifled and tber hon»etl 
robbed, wherby they wer incajtable to repair Uki 
his majesties army, and the pretence of ijiniu-»j 
lation is nowaycs relevant, unUifse ti v^er pro«i 
poufHl positive," and offered to be proven, and if 
need beis the pannalU arc content to purge 
themselves by ther oath, that ther wa** no 8i<« 
mulalion, butthat ther liorses were r^tbbed, anilj 
so they have clearlte the br^nefitt of the lords < 
privie councill tb*'r letter, and it will clearlia| 
appeir by the probation, to be led tipoa iba 
exculpation, ami cannot hut consist ia tfai 
knowU'flj^e of such of the lords of justiciarie i 
are upon the privie councill, tlmt the said Irtter J 
w«H ivrf»lt to my lord Newark, and who beiti'* 
called, may be able to produce the same, ai 
by the councill bookcs, it will appeir ther is a] 
warrand from the councill to the chancellor tO| 
wreitt to the lord Newark for securing^ th 
peace of the countrey. 

litterloquitor upon the General Defences 

The lonls justice jrenenil, juslic*e clerk, and 
commissioners of Ju>uciarie, having tonsi*, 
dcreil the lyWIl and dthste, ib*'V r«"pill th 
fip«t, thini, ao'l fourth detrnoci* 

The hnU also repel I the S4 . 
respect of the 1 1 uiao» n-/ me h^rdl 

Newark at Iht^ r of the militia con-] 

forme to the Uhm; ^ 1 -rr"* - • jnd o( 

his appuyittui^ kuf 1 :itormJ 

at Levui, which ac4^^.^*;.^..^. «*«-« ^^<^\ by a 



J7J 



32 CHARLES IL Proeee^gi agMinit tie HfesMre Heriiart, [fl 



As to the fyft defen'^ fouodit upon the 
[qu. Ciiuncellors] letter, the lords superseid to 
give (letur mi nation tlierupoD, as it is proposed 
in gcncrall for all, re&erviag to tliemseWes to 
determine thcrupon as occurs in particular. 

TuE Particular Qefemcei. 
Kilbrachmont, 
Mr. William Monypennie^ for Hamiltoun, of 
Kilbrachmont, alleadg^, That the tyme of his 
majesties proclamation, his horses being not 
only stollcn from him, but his servants deadlie 
sick, yet such was his zeall for his majesties 
service, that he went to Faulklaud markat and 
furnished himself with horses, and did come 
the length of the South-ferrie, and tar^-ed ther 
two dayes, and returned witli the rest of the 
gentlemen efler the rebells wer defate, and is 
content to take the declaration. 

Deserted at to Menttrie, 

Mr. William Hamilton, for Howburne, of 
Menstrie, alleadges, he is past tlie age of sexUe 
years and is not sensible, [qu. fcncibic]] and 
sent out his meu and horse, who attcudit his 
majesties host ull the tyme. 

The lords tiud this detence relevant, and in 
respect of the nottoriotie of the defender's being 
past the age of sextie years deserted, and l)e 
thir presents deserts the dvct simpliciter, and 
discharges the raising or taking up of any new 
letters or dittay agaiuest the defender, iiir the 
cryme above specifit, in tyme comi:ig, wher- 
upon he asked and took instruments and pro- 
tested for his cautioners relieff, which the^saids 
lords admitted. 

Largo adAssisam, 

Mr. William Moniepennic, for Durhame, of 
Itart^o, alleadges, Tliat the tyme of his ma- 
jesties proclamation, his house was assaulted in 
the night tyme by several armed men, who 
threateiic'd to putt Vyre to it, nnd who did nc- 
tuaiiie take away Ins hordes and his furniture, 
anti he did endeavour to furuialie himself, and 
did iidd outune of his own hur^eiii which he of- 
fered to reilcem at any rate, but he could not 
have tliem ; aud he otl't^rs to purge himself, by 
ane soleiiiii oath, tliat thore uus no collusion 
between liiin and the rebells, but that his hoi*ses 
were furcildie taken awny. 

31y Lord Advocai answers, That the doR-nce 
ought to be repelled as to that which may be 
collusion, t:.\'cr|)t the person purge hunself by 
takiug the dec-Iuration, thcr being nothing more 
easie then to disNcmble anil cover this collusion 
by oath ; some friends and relations maj^ all- 
wa}cs cause take away a mau^s horses without 
hisown ex[>n>«i<k; knowledge, so that the event 
should be that only men of lovifll principles 
should as ant- reward of ther loyaltic be ex- 
posed to all the danger, and put to ull tlie trouble 
of opposeing, Iwth by ther indeavours in tyme 
of peace, and by ther arroes in tyme of ware, 
whilst these who are of pernitious principles, 
shouhl Iwve thcr crymes made a protection to 
them, againest all those troubles and ezpences. 



Mr. William Moniepennie raplycs. That ths 
detence stands relevant, uulesse nis Miyesties 
Ad»ocat will positively allead^ that the dts* 
fender diti actuallie collud with the robbsm^ 
which is found relevant of consent to be pro? sd, 
SAd his ofifering to purge himself by bis nath is 
su^cieut of itself without taking the declaim* 
tion, unlesse my lord advocat will poskivelis 
offer to prove simulation. 

Bruntoun ad Auitam. 

Mr. Trt7/iam£ea/on,forLawo, ofBruntoiu, 
produces two testificats, ane under the hand si 
the minister and elders of the parrodi who* he 
lives, and the other ander a phisitiaQ's hand, 
bearing his sickness all the tyme, and bendss 
he is |>ast the date of sextie years. 

Di/et desertedj and Letters discharged againU 
Captain Murray, 

]\Tr. Colin M'Kemie^ for Captain Gidesa 
Mun-ay, ol' Pitkerrie, allead^ he is past thn- 
score years of age, and for instructing theraf, 
produced the indenturs past, betwixtliim and 
William Miiir, merchant in £dinbuigh, dated 
the eletinth of Jaimary, 163r ; and iarder 
allcadged, that he was sick and unwell, all the 
tyme of the host, of a dan^rous sicknes, so that 
he was liker to dye then hve, and produced two 
testiticats for proving therof, one under the 
hands of Dr. Craw turd and liavid Pringle, 
cbirurgeon, and the other uuder the bauds of 
the miuistei-s and eldei-s of Kikeny. The 
lords in respect of the nottoritie of thir defenoes 
deserted, and be thir presents deserts the dyet, 
simpliciter, and discharges all new letters or 
diltay to he taken up or raised agaiuest the.de- 
fender for the cryme forsaid in tymo coming, 
wherupon he asked and took instruments, and 
protested for his cautioners relieff, which tbi 
saids lords admitted. 

BaUanquhill ad Assisam. 

Mr. Alfjander Mnleolme, tor BalcaDqahiO, 
of that Ilk, alleadges, that tlie tyme of dm 
proclamation his horses wer taken away. 

Sawfoord ad Assisum. 

Mr. William Moniepennie^ for Nairn, of 
Saiufoord, alleadges, that he bavins upon his 
majesties Proclamation sent out three mcD 
with horses to sene his majestic, in respect Iw 
could not attend himself, being ane foot cap- 
tain of militia, and having thcrettcr endeavonred 
to convein his comiKUi^, could only raise the 
number of ten men, which being offered to tiie 
earlc of Weymcs, coUoncl of tlie reffiment 
by tlie defender himself, he adjoyned them to 
another com]»auie, so that the defender couU 
not serve his majestic in the quality of ana 
heritor, his horses being sent awuy. 

Glenicston ad Assisam, 

Mr. David Deicar^ for Weyraes, oi* Gle- 
niestoun, repeits the samen defences proponed 
forSamtbord. 

Ily Lord Advocate alUeadgesi the 




fm- AhwnttJT&m ike Kki^M fh$it 



A.D. 1680. 



[SO 



hiide wilnotit 
no m^n (hty 

3 any 

•tj trj 

. .- lyme 



il nowivs f^tevant, for tlie? sbodd hare gone 
to the tost with 1h ' ' " 

collors, and tlioii£rlt 

V(. 

,thal *. , .t.,>. ..^, i, ...... 

Principle of disloqunlitie or <1 

Ofli 

j try^T lid hufifie: g-ooe 

I lome way tu attemlf niHviith^tumlitig^ of her 
indispofiition, heing' \i\^r nith chrfd, >€t she 
did frtllowe hiiD a curv ^* Hy» with wove* 

ml onthit that sIk! ^^ > ^ leave him^ and 

she dyed hrr blooU vrouUl l>e on hii hemd, 
id m aaagerous wai her condition that the 
feW down In ihe i^&y, in n manifest hazanl of 
•hortioD, so that he was neccssilat to return 
witli a resolution, that if the wer any hetler 

I be would repaire to his majesties h(»t, anddid 
iceep his horse for that eff<K;t. 

His Mujfsii^i Advctai makes no answer, 
but that U\% absence appeirs to have bciu from 
dissatistkction, soeiikg he rduses to take ths de- 
claration. 

It is proposed for Mr. Alcirandcr Nairn, of Liile 
Treiertoun, that he was sick fit the tyme, 
which is attested bj ane declamtiou under the 
bund of the arch dean of St. Andrews, and 

F that \m DKither KfFrents his wholl larnJa and 
tiroduceil Xlwr lyflrtnl iiifeftment for instruct - 
jn^ iherof, iind that he lives in the toiiu of Hi. 
AudrewS) and watched and wardit ther, and 
iitrer kct:pt a horse. 

S( rat her lie ad At^isam, 

Mr* James Graham, for Lundie, of Stni> 
He, allead^es, that his horses wer all 
I away, oikI he is content to take ibe de- 
tion for lestitieing hii loyalde, 

Itrdie ad Ai$i9<im. 

Mr. Wiiiiam Mmiepennie, for Georg-e Mon- 
criff» of Re*lie» alleadges, that the lyme of 
ihc Prot Uin»ation, notwith^tandin^f bis Inily 
was extreuiche sick, \et he was i^o '/imlotis to 
* menet his rnajc^iie tfmt he keept the first ren- 
I devouze, and did actualHe send forth ane young- 
I i^ntleniau, im own broihiT-iO'lawe) who was 
f not ivnc heritor InmHelf, and was a trained soul- 
dier, with this condition that he shotdd serve 
id ihe defeijder^s name^ and if he Hhttcitd not he 
l>ccavc-d i\\ lii^ niihHtitutfthat he should return 
the sauH* 111 lit- 111 It \u iiii«rhi q-ne himself, and 
he wa» ;i 

Mr, J . ir James Hinclair, 

of Kirinmii}, in; was sick and in* 

firme .ittU** t\ i it out hor>€ and men, 

and proilurew its, onv from the loi- 

fiiHivnif and i^- m the phisitian, ibr 

provein^ then^oi, aud i» oontcnt to lake Ihe 
declaruti^m. 

It was allevilppeit ' ^ • ■ 

! demie's soil and a* 

I at thctymc, h* wa** - ju htm hi i h-^tiuj ynu luui 
I bis bone was takou £rom his son. 

L 



Phinmont dtscrtt ttnd diickargti Letttn. 

It h alledged for itrown, of Pbinttoitt, tblff 
he IS past sextie years of age. 

The lords in respect of the nottonctie oftbii 
defence deserts the dyet, and dischai-^es all 
newe letters or dittay againest the defender far 
the cry me abore specifit in tyme ooming. 

Pitlochie ad Auinm^' 

It is alleadge<l for' Murray, of Pillochie^ 
^riiat he is no heritor, nor keept he a hnrstt 
this tweke years, anil he is readie to renounce 
his heritage in the king^st favours* 

My Lord Adtocnt nnswers that ane heritor 
by the courtisie of Bcotland is in all respect! 
ane heritor, the conrtisie being a legal I dispen- 
sation daring the lyme, as a comprysing is, 
and therfor seeing he is in fcudohe^ should 
serre upon the aocount of hts feudatortc obli* 
gation. 

It is replyedi that the Proclamation is op* 
pOQed which calls only bentors and free- 
holders, and ihe pannal is neither baitor nor 
free holder. 

The adf ocat dupip, that the courtisic is/eu- 
dum ad lempus^ and consequently he that has li 
is duiing the tyme ane heritor. 

Kyninmond ad Assitam, 

Mr. Jama Aleiandcrt for the laird of Kynto- 
rnonil^ alleadges, be was sick at the tym« 
as ane teslificat upon souU and conscience, 
under the ministers hand testifies, and a decla- 
ration under the phisitians, which is sufficient ; 
lykeas he has raised exculpation and cited 
witnesses, who are able to prote that hs 
hor?!s'd his brother- in -I awe the laird of Karas, 
whose horfses were stollen, and that he s«nl 
another horse and his own mun, well armed 
who attend it this majestie^s bott, ayi and vvbtU 
the rebels wer defute. 

Mr, Dcitid Dettar^ for W«ymes, of Glenies* 
toun, allcsdges alsOi that he was sick and sent 
out his xnt^u and horse armed. 

My Lord Advocat answers the tame is not 
relevant, piTsonall [iresence being requyred, 
and the defender refuses to take the declaration. 

Graingmyn deserti and discharges LeiUrg^ 

Mr. Alexander Maicolme^ for Robert Kin* 
net 11^ of Graingmynfi, alteadges he is a mean 
herilor not excet'ding ane hmidredth n^erkf, 
and nut being abte to furnish a horse, he ther- 
for went on foot The lords therfor deserted^ 
and be their prrsents ['pi, dpsert or de^^erts] ttic 
dvet simplicilor and fUnchHrges all lelfer^ or 
dittny agftiufit the defender for the cry me obofi 
specjfit in tyme coming. 

Dowhiil coniinufd. 

I Mr, n«/ for John Lindcsay, of 

OowhiTI, n! 1 hat at the fvme of the 

• ' ' ' ''» ' T. of 

alt 



* 



31] 



32 CHARLES IL PtocmUngM agaitui the FiftMre Heriion, [ST 



tcntetl Lc hade bein taken prisoner, oat of his 
own boiuc at Culrose, and all his arms were 
takim from hifn, so that when he was sett at 
lil>vrtic, he was putt under the forsaid caution to 
attend all the dyets of the proces, and so was 
under an absolute necessity to wait the coun- 
cil! *n fard«T order, seeing the proces was only 
c«)iitinucd from day to (by, and if he hade not 
nppcired at e?ery day he would not only bein 
declared fufritive, but his cautioner would have 
fuHiiult the 10,000 merks. 

Mv Lord Advocat answers, That 1. He 
should have made application to the councill, 
dosyrein]^ to knowe what should he his cariage : 
'2. The proclamation would have defended 
liim if he hade g^ne, and beings the posterior 
order took off all former restitiint: 3. This 
viiiui be no defence why he sent not out his 
nifu viiice the councill aid not disarme them. 

Thi! lords continues the dyet againest John 
liiuihay, of Dowhill, till the thud Monday of 
June nixt. 

Bandon ad Assisam, 

Mr. WilUam Beaton^ for David Beaton, of 
lluniloii, alluailgfcs. That hiswvHTwas at the 
poynt of death, and he sent out ooth horse and 
liMit, a.4 a testificat under the lievtenaiits hand 
ti'Mtitii's, and be is content to take the de- 
claration. 

Baibirne ad Assisam, 

Mr. James Alexander^ for Balfour of Bai- 
birne, ullrad|(es he was sick at the time, as ane 
Itwtittcat prmloced bears, and the horse he pro- 
vidit was taken from him, and he is content to 
^ Ito the declaration. 

Fordcll ad Asiisam. 

Mr. WillituH Beaton, for sir John Henry- 

IM, of Forilell, alleadges he stnt out three 

hoiw" and three men, and at lh:it tiri.c lie was 

unabW to iravcH, as anetestificat under the mi- 

ttMtna hand bean, and its nottor he was not 

^t ihirthiw years bygone todraweon aiic 

^at ' Ktotf he was one of the ^^entlrmpu a.'- 

wTJiitt ilav al borne by the councill's letter, 

uJSlby the Lonl Chancellar, as a person iin- 

iSllK i^nif totka host, be reason of his cor- 

ttaWnck' ittdi niftnniha« 

Ctumgmy ad Assisam. 
Mf Ditid Dowr. forMdvill, of Cassin- 
Z iSlJ^U»««»«* license for him 
ViTwSS teiiya^*'®'"® lie wanting 



h 
•L 

Ofi 

of y 
wfaiU 
•houh. 
tbem, I 



IVi^rti tad *»*»«« ^"«''- 
W ^ «mM fcr Wbert Cuninghame, of 

4ta«iiwMto«MM 

lb«»ti«MftW^ltairfteBurgh, 



01 to 



the saids Robert Cunninghame and Henij 
Shanks, and diacliaiges all new letters or dittay 
againest them, for the cryme forsaid in tyme 
coming. 

Mr. William Moniepennie, for Mitch^, of 
Balbardie, allcdges. That he being conveined 
befor the circuit at Coupar, he proponed a re- 
levant essoney, which was proven to the jndgct 
so as to him it is res judicata, 

Mr. John Lauder, for Mr. Charles Wmrdkw, 
propons the same defence. 

His Majesties Advocate takes instmmenta 
that the haill pannels, except Hay of Be- 
houssie, do judicially confesse their- abaenoe 
from his Majesties host. 

The Lords continue the diet till the twenty 
fift instant, and ordains parties witnesses and 
assizers to attend. 

Interloquilor upon the particular jyefenees^ 
25th February, 1680. 

The lords justice s^eneral and commissioners 
of justiciary find tne defence proponed for 
Thomas Hay, of Balhoussie, foundit upon the 
passe relevant ; as also find the defences pro- 
poned for Robert Hamilton, of Kilbrachmont, 
Janicts T/dw, of Bruntoun, Mr. Alex. Nairn, of 
Little Friertoun, Lundie, of Strath'eriie, sir. 
James Sinclair, of Kynnaird, Kynninmond, of 
that Ilk, David Beaton, of Bandon, sir John 
Henryson, of Fordell, Rolwert Balfour, of Bal- 
bimic, and James Melvill, of Cassengray* 
lykcways relevant and remitts the same to the 
knowledge of the assize ; as also finda the de- 
fences proponed for Alexander Durhame, of 
Lai'go, Charles Cowan, of Corstoun, David 
Balcanquhill, of that Ilk, Alexander Nairn, of 
Sainioord, George MoncriefT, of Redie, and 
Janios Weymes, of Gleniostoun, relevant to 
alcviat the punishment, though not to elied the 
\y\)iA\ according to his majesties gracious 
letter and rcmitu the same to the knowledge 
of the assize. 

The IokIs repell the defences proponed for 
James Young, of Kirktoun, and Murray, of 
Pitlochie. 

ASSIZA. 

Hamilton, of Ilaploch. 

John Stewart, nf (sairntullie. 

Gordon, of Cairnborrow- 

Mr. Robert lr\in, of Peilsyre. 
Geo. Drununoiid, of Milunabb. 
Patrick Tailzfer, merchant. 
I'atrick Smith, of Methven. 
John Mont^romerie, merchant. 
Duncan MMntosh, merchant. ^ 
John Brown, merchant. ' 
Josf^ph Marjorilwinks, of T^icnchie. 

. liiiird, of Sauchtounhall, younger. 

I Robertson, of Strowan. 

Kinloch, of Bandoch. 

Charles Maitland, of Pitrichie. 

The Assize lawfuUie sworn, no objeetion ia 
theoontrair. 



SS] 



/or Ahiener/rom the Kin^'t Uo»t. 



A.D. 1660. 



r« 



^ 



II IK Mttjtitm AdfiKate took rnstniiticMitfl 
llnMt-'- " \*.,....A. «^'i'— -rieJiiKlc 

lb a .. ,- -,.„., .....^v, ^.. ,.. curling of 

tltcsaiuen. 

Tilt' clcfciiders for proreing oflheirionocHnire 
ami gx*>ui^^s <>i' exculpation, adttuccd the wit- 
ncs^ifs uuti oilier C'fiilence after mentioned, vie, 

Put^kh Murfa^^M of Aiichtertyreragied 32 
Years, unmarried, purg^ and swor ne, depones, 
That he saw Thomaa Hay, of BulbouEie in the 
king^'s host, in summer la§l, and that to the 
b€«t of ht!i knowledge he was tti bade condt- 
tione oi health, and that if he hade stayed be 
Mroutd have heen in danger be rt^a^ou uf sick* 
«, and that he sia^^e ui in coining offiu thi« 



£le condition y and that he liaue him have the 
rquis of Montrose pits«ie^ uho Has bis rap- 
lain , and that he leii three or tbur i?ieii well 
appointed behind him iti the army vuuta ttt* 
tnUa he was present, and this ia tbe^ truth 
as be shall answer to God. 

Sk SulfKnUhir^ P. MifHRiv. 

Hf, T%omQi Ste&tirt^ mn to Mr. Hary Stew- 
art, in Fearth^ purg^ed and tfworne, depona cnn* 
formi$ pri'cedrnfi, except that be did cot see 
the paii^f an<l kno\vt« that he bade two horses 
left bdiiud with the Unsi at least, and did Tiot 
iee him come off ; and that to his knowkd^^e 
ontd have endang 
Sk Suhscnbitttry 



[idfje 
libstayinj^ wontd have endangered liis healtli. 



Mr. Rohert Colt^ for fardcr probation, re» 
Tieatia the tnaiquii^ uf ?^luntn>se pasae, and 
lifjence to thu pririnell to return home. 

David loni Neuurk hein|| irworue, depons, 
that it was the common repuft of the country 
that Uobert ilamiltou of Kilbrachmonts^ 
hciraef were taken away, and that be sa^ve bim 
Qotnini^ on his toot to the rantlevou^e to tell 
tbis, caum ti^mntia'j he is hbuear neiiibbour. 
Sk Sutfucrilfitury Nev^ark. 

Jam^t Mehilif of Cassinofray, beiny so- 
lemnlte sworne, depona, he aaw two of fJamil- 
ton of Kilbrocbmonts* horses to the rebella 
bawbf who robed bun, the foresaid rebelb 
having come to Ins bouse to have robbed the 
deponent's bor^ca* 

Sk Su Ific ribitufy J AM cs 51 ELVUX. 

The said Robert Hamilton producetl lyke* 
ways ane testificate under tbr band of Mr. 
Wra* IJay, muiJstcr uf Kilcoui[uor, testineingf 
that be iit ane orderlie person and tberi'^lTrr cf 
the regular and orthodox i ler^^te, and that bis 
bontes Her robb'd and ser^ant^ sick the tyiue 
of the bo*t, and yet recruited himself and ad- 
vanced some con^ulmMi- part of the way till 
he heard th* ste. 

Jfimti Cti r of V'yiT, depooa 

be uawe L#ft ' Tie sick 

tbf^ day of 1 1 . i n doctor 

who was will I i It was the misles, 

$a /«r, J. CuAiJFoao. 

lU^crl Balfuur^ at Dalbimo, btiof iwome, 
VOL. M 



depons be sawe I^we, of Bruntouo, lytiing' 
aidk the tymeof the bust^ and Ueiii)( bedtait, 
' Sk Sttbtvrihtiur^ ^. JiAi.roua, 

Ti,p ~ii 1^.-^^^ r- r* f' '-ntn^ pro- 
duce'! uich, ani'i 

Dr. A.. .. i..».v..., ., .. .. iiooii bt*i 

being sick of the meaails the tyme «>f fhw bost^,] 

Mr. Wii' v ";hV, for>Ir *^' 

der Nairn, ' », rciuitn i 

ofDunkeir.v x .. -..h.vi.-.i ,,.^ ;,f 

the hfist ufion snal an it b« I 

is ane well attacted jm , ^. , g»i- 1 

Tcrnment, and lykways repeits bita rootber**'] 
lyfTrentiufel^tncDt, 

Jfimcs Crctufurd^ collector of Fyfft dt-pon^t 
That Stratheriie^ii brother's bortie and arm^ wer 
taken away by llic rebells, and Stratberiii 
hiniself was not io use to keep borse. 

Sk SubtcribitMr, J. CftAuronn. 

Jtsmet PKcoirnc^ initter, in Edinburijli^l 
dcpons, That Htratherlie*B brother declared iaH 
Dune that his horses and armes wer taken ^ 
a way by the rebel Is, and that this ^Fai tbi 
oonrmun report of the country* 

Sk Subicribliur^ James PncAiHNE. 

Dr. Andrew Rtilfour depous, that be ^v% I 
constant advise to sir Jnute^ HincUir, of Kyn- I 
naird, the tymeof the host, be being' sick of] 
aneaijfue at that tymc. 

Sk SuOscnbitur^ A. Balfour. 

B^bcrt Maitcr^ of Uur^blte, b<ing sworn e,i 
de)M)n»i be gnwe sir Jauiest Sinclair's mallei 
James Arnot and his horse, well armedi atteoil l 
bis majestie^s host all the tymc. 

$k Subs€ribitur, R, 0ALrot7R. 

Mr, George Arnnt^ wreftter, in Erlinbufc^h^ 
depons sir Janicii Sinclair was sick and un^tH j 
the tyme of the host, and not able to travell, I 
and that he sent out his horse to the bust who^ 
stayed all the tyme. 

Sk Subscribiiurt Geo. Arnot* 

The said sir James Sinclair, in farfJer evi* 
denoc of bis inuoceneie and defence, producetl ] 
ane testificat of bis sicknes {ihe tymeof the ^ 
bi>»i) under the hand of Dr. Alexander BaU 
four, and another under the hand of the mi- ! 
nister and ciders of Ebdie. 

Colin Pitscottk^ son to genera II major Pits- 
cottie, aged Ihretlie years, purged aniTsworne, ^ 
depont, that Ky uinmond ov that ilk wtkR so sick ! 
and unwell the tyme of the host that he wait 
not nh\e to come abroad* and that he sawe bipj 
iiuraesat ihv ho^t at Bothviell-bridtne. 

Sk SttbjicribiitJi\ Colin PrrscoTTii:, 

Jantfi Ahercromhkj of T*och|fellic, swornek] 
depons Ryuninmond of that ilk wai so unvi'ellj 
the tyme of the host that lie o^ftil J not come J 
abroad, and that be sent out bis bon»c to tbi 
host, 

Sk Suhicribitur^ J*mf*i AnEtimoMait, 

Thcdefendei . m%i 

testiticiitaud phi _ Licitin 

unwell ail llv4 v^tsas ^V s.W>aS3ftiV' 

\ ft 



35] 



32 CHARLES II. Prcuedmg§ againit th> FifeMrt Heritors, [9 



John Henrysoa^ in Fordelgrein, defions, That 
Bandon's man and horse, well armed, attendit 
the host all the tyme. 

Sic Subscribiiur^ J. Henderson. 

Colin PilscoUie^ above designed, deponsthat 

Eandon's man and horse well armed attendit the 

bust all the tyme. 

Sic Subscribiiur^ 



Colin PrrscorriE. 



John Dempster^ of Pitliver, bein^ swome, 
dcpons he knowes Fordell Henryson^s condi- 
tion to be such that he was never sein him able 
to loup on a borte, and knowea he sent out 
bis men ami horse to the host. 

Sic Subtcrihitur^ John Dempster. 

Alexander Spitle, of Lencbat, depons be 
knowes Fordell Henry son to be intirme and 
unable to mount a horse without help, and that 
Jif- st:nt out his men and horses to attend the 

aic Huhcrihitar^ Alexander SprrrELL. 

David licatpn^ of Bandon, being swome, 
df'iKMiH tbstt the moneths of May and June last 
Jii/bf-n lUlfour, of Balbirno, was sick and un* 
M»- to K**^ ^" ^''" majesties host. 

Sic Subscribiturj D. Betuun. 

pavtfl Spitle^ servant to the minister of 
Miirkirif^bt df^ivons Balbirno was sick and un- 
■bUi to ifMVfrJl the tyme of tlie host, and he 
orovidit Hn« b'»rsc to send to tlie host, but the 
|ior*#- wan <«tollen and taken away by the re- 
liilU, iirid III: f^annot wrvtt. , ^ ^ 

Sii SuhMt nhilur, CjEO. M'kenzie. I. P. D. 

fuhn DfMf, sn^ant to the Idrd of Bruu- 
biiiii dvMfUv.oni'onni%Ui DafidSpitlem wn- 
•.i/i/zi HiidliiMfloiwilwreitt. 

^''I^UrnbUur, «E0. M<«NZIE. I. P.D. 

f.Miif t M' '"''. '^ ^>«s«*»nff™y » itt ^vindication 
..I 1.1.1 iiiii'H «ii' «■ |ir«Hluf.td ane tesUficat, under 
,|„. b»iHl "I l»tt»"> '''^«* Newark, whereof the 

|4,|iiil IlillilW*'* 

I |i5%lil Lord Newark, doe hereby testifie 

!\ liHHi.ii vuuiufiiif to the nroclamaunn 
* ;. ..no ittiidrvouzc with tfcerestofthe 
?»'*': ; .1 " . vr... »"d he having told nic bis 

II. IuUm ♦«i»" •••«■>'• *'^***^*' beuig well 
"' ;:; : !:: I!;: «...! H.'- .^t ««• the gentTemen, 
\ ^1,,., „,„ .l.«i..iHM-birn,andaHowe am 



horse to have gott them restored, cmua smiifur, 
he was working in the home at the tyme. 

Sic SubMcribitury John Neilsow. 

John Neilson, son to the said John Neilioi^ 
above designed, depons conformis to his father 
and that the laird ofLargo wentwith achairged 
carrabin eller the rebells to have gott back n\§ 
horse. 

Sic Subtcribiturf John Neilsow. 

Alexander Derhum^ of Duntarvie, depoiu hf 
knowes the laird of Largo's horse was taka^i 
away by the rebells. 

George Scotf of Pitlochie, bemg swomey d^ 
pons that the voice of the oountiy was thai 
Charles Cowan of Corstonn's horse waB|ake|i 
by tlie rebells, and within two days thereAer 
the said Charles came to the deponent and told 
him one of his tennents hade taken the said 
Charles horM, and when became homeheoon- 
fest that bis liorse was in the company with 
the rebells. 

Sic Subscribiiur^ Geokob Scott. 

John TFi/Ziamirm, servant to Pittonr, d^bns 
he knowes Charles Cowan of CouratDon'a 
horse was taken awav by the rdidls ; be can- 
not wreitt. 

Sic Subicribilury Geo. M'kenzib. I. P. D. 



I 



li».iii 



u 



George Scott, of Pitb>cbie, depons that he 
heard Balcanqubill's horse was taken away, and 
being walking in the tields be sawe some honea 
witli the rebells, and one of the deponent's ser- 
vants told him that one of these horses ba» 
longed to Balcanquhill as he thought 

Sic Subscribitur, George Scott. 

The said John Williamson lykwayes depons, 
that the common report of the oountrey wi^ 
that the laird of Balcanquhiirs horse was takea 
away bytherebeUs. 

Sic Subtcribiiur^ Geo. M'kenzie, I. P. D. 

John Henryson, in Fordelgrein, depona 
weymesof Glenistoun bade a man and luirat 
armed at the host, who attendit aU the tyme. 
5*c SubicribUur, J. Hensersom. 

-4/€Tflrtflfer Bantkin,'^ servant to the laiid 
otL^wchat, depons conformis to John He&. 
ryson. **«w- 

Sic Subscribitur, Alexander DaKskin. . 
I t^t^^ ^^7^^"^ ^' Alexander NainTS 

;;\;;;;,-7.p.H. hi- lady ;js^^^^^^^ I ^?S^wtt\tr "^' '^ '^"^ -^ ™« 

written, wbertSfth'itiJ^^^ '»** 

Tlicaeare testifidng tbit I ke^ntlh*^..^ 
dcvouzo at Coltoun, of bL^^wSL^MT 
lufct, mnanie of Geoiie MoSTrfR^S- ''""• 
broiher-in-lawe, wSTSrSf C^'&'^ 
cneff. bis servants, J^o;^ ^ 



.., , ^i, Mui ilii- '^••«-'''»** day Of October. 

sl SHhtiubitur, Newark. 

s^Hunhttur. Newark. 










Jf7] fot Akicncefram the King-$ 

TO&rohetl Qitckrr my lord Nevrtrk'i GbtmnaniJ, 
iwd rtlertvArti under the eurle uf BulrarraM 
orminiaud, and i^uUiiued in llic bast tilt it vrus 
dislMiidit by order ; and uU tbat in oh«>dicn cc 
to hisi)iAjt'siiij^8 l^ruclaiuation fur my said Tiru- 
tlivr-in-l&i»e. Iii t^nlitnohie wliCMXHif^ 1 have 
Jiibscjibil tbir presents with my hand «U Aiicb- 
Icnytie, tbis twenlie nynt of Se[ii€mber, 1679 
years, liefof ibir Mritiiesses Joba MoncrieiT, 
nottar iYubUct|i^reitter hertK)f; and 9^1 r. James 
fiibbald, icboolm aster, at Auehlernitio. 

Stc Snhfvribiturt Jg, MoNCRElFF. 
P^THrcK Leni.ie^ (witnes.) 

Wt Cot in enrlc of Bakarrat^ and David 
lord Naeark attests the above wreitlen de- 
clftration to be of ?eritie, as witnessc our sul»- 
■criptinu ut Caupar of Vyii\ Ibc second day of 
October 1679, 

Sit Subicnbitur^ Dam; Alius, Ncwwark, 

David Lord Newark upon oalb, udberes to 
Hnf attustalion s^yen be blni in Georg^e Mnn- 
criedTof Redic^a favours that tbe aaiaeu iabulb 
mid veritie. 

Sic SuhicriHiur^ >i£^wAiiK. 

Jtihn Manvrifff of — — ■ — - — depons Atou- 
Ci lie seut out \\\% bmther-in-lttWfi, to 

tbt ^ i stwith this «Epi-ei4se condition, if be 
^irer not nceepted of he would pro binisclf, cau$a 
$cientitt^ he wast frith him, stnd heard as he has 
disponed t 

Sic Suhicriyuuft Jo. Mo?icREtFr, 

Tkamtts Ciichnitf in Auchlermougbty, de- 

Che know(!S iti^iie sent out bis brother- in- 
to his inujestie's host with lUi* «?xpresse 
condition, that if he wer not accepted id', he 
would t|oe liimt^elf or «end bis aoo, and kuowes 
lus lady was ^ick at the tyine. 

StcSubscrtbitur^ TnouAAGiLcnntwr, 

Tbe Lords ordaines tbe Assyse to inclose and 
retume ther Verdict upon the 27lh inatant, and 
ordaines nil jlortics to attend. 

£7th February 1680,— The said day the 
persons who past upon the absent bmtars from 
IbehOftio FyH-shiref returned tber VenJict in 
mttaoee of tbe sjuds lords, wbei-of the tenor 
lolWeii: Edinburgh 25 Febniary 1&80.— 
The Aatyse fiodn the ly b«U proven, us alaa tbe 
Mivse be one voice lie the m<»uth of ther olmn- 
Mifor Gcorve Drununond, tbiils the defenoc» 
for Robert Hamilton, of Kilbmchmont, Jannes 
! Lavvc, of Hui'moun, Sir. Alexander Nairn, of 

f litldreirtoun, Lundy, of 8tratherlie, 

aur James Sinclair, of KJniuiitl, Kinin- 

Ipond, of that Ilk, Diivid Bcaloo of Bandoo, 

m Jolm Henrysoti, of Fonldl, Robert Baltbur, 

of Dalbirno, James Melvil), of CaMiDfrray, and 

ThomaR Hay, of BolbmiAie, pannalU, contained 

t in the tint claoe^ pniven, except Beaton, of 

I Bamlttii^t McMHs or his n^ylTa sicknea, which 

I |fc# viyse ih4$ noi proveD, bui the rest of th« 

I tii4 Biilim of Budoii's defiBooe they tiud 



5k Su^ri^.f Geo. DMMJiOND, Chat}. 



Host. K D. 15S0« [SB 

The Assyie be ot>c vtiice, be tlic mouf h of 
Georpe Druramond, thcr^''^ ^* '■ ' ' ?. 

defences for AlexandtT li 

Charles Cowan, of Cor«lou»i, , .^. .,. 

hiU» of that Ilk, Alexander Nairn, vi , 

lieor;Te Moncreilf, of Redie, »tu: _ . A , 

^Vt; yiues^ of (tleuMouii , pannalis coataitied m^ 

ihe second class, proven. 

Sic Subicrib,, Geo. Drummo^d, Chan. 

The Assyse all in one roice, be tbe mouth oTj 
Georg^e Drummond, ther Chanecllar, tiudtf 

James Yonn^, of Kirkloun, and Mur- 1 

ray, uf Pitfocbic, t^fuilty of ibcr remaining, and 
abydlng frae tbe king^s ho^^t in June last. 

Sic Subtcrib., Geo. DtiuatMOND, Cbao. 

EOer oppinitkg and reading of the wbilk i 
verdict of Assyse, The lord>i justice gpnenil,! 
justice clerk, and commissioner* ^t •*'* 
absolved and assulyed, and lie il 
aolves and aFsolyiei* the haill pi ■ d 

in the first clB5»se from the hbell and dittii^l 
above mentioned, and discbaire^^oi), and be thir 1 
presents dischanges all new letters or ditt^iy to f 
Be raised or taken up against the dd'^nderti for j 
tbe cryme above s{»eelfit, in all tyme comind 
wherupon they and tber procurators asked ano^ 
took instnimeuts* 

His Mtijetties AdxHtcat produced bis ma- 
jesty's gracious letter direct to tlie lords of hiftl 
most honourable privie council, ancnt tbe pu*l 
nishingf of the absents from, antj deserters of hitfl 
Itynes host, and dcsyred the isaids lords might] 
proceed con forme tberunto, and to his oiajeati*!^ 
other vivacious letter direct to ther lordship i 
the surne date, and record it in the books ol Ad- 
journ hI, upon tbe twentie sext day of November J 
last : followes the tenor of bis majesliea i 
letter direct to bis privie councdl : 

ClLABLES R, 

Right trustie and welbeloTod cousio and] 
cM>uncellor, right trustie and wel beloved cousin 
and counccHors, right trusty and welb«*lovciI ] 
councellors, and trusty, and welbeloved C4}uii< 
cellors, We greet you welL Having setn and I 
considered your letter of the elivinth in&iant t9i 
tbej duke of Laudctdale, our seoretarte, oofi*{ 
ceruing those who did not assist us in actp 
preasiag the late rebellion, and those who de 
serted our host at that tyme: we am fuUiiii 
oonvioced that it would prove a great discou«^ | 
ragement to our faith full subjects, who, in tb« j 
discharge of ther duty, hare bein at a grcali 
deall of expense, trouble and hazard in that cJt-J 
pedition, if they should not see some suita 
punishment inflicted upon those who (vviti 
any reasonable excuse) did not come to our i 
aistance at that tvme^ and upon those who ef\ 
coming to our uosi, deserted the snnic ; 
therefore we *loe readlic approve the rrsolu 
you have taken^ to fyne the most guihy, not^ 
above two years of ther valued rent, \>hitst 
others who aro lease giiiUy are to be fyned al 1 
least in tbe fourth part of a yoar*Byiklu«dfenl|j 
which we take to be so mod^nl (ooniiderin^ i 
Uow« d\%ti!i3AXV NSaa i gw rt a a ^ll ^^s«^ ^=ry(a«.'^&M^F^ 



\ 



4 



.-?)! 



CIIARLF.S IL PrBTMimgn strskui ihs Ffeakire Btritan, [40 



Ivivo Ivm if ^,ft»\ •>!' iiiH .iilinit (f.io«ln#» Hai!*» .Tit 
lif^v'nu-.l ilirni J ihnr hm yan <jiv tp:-#-. -.rAJIy It 
may r.iiln-.' '\u: tlinuiflit i 'vnrnin*; Jh^n % pii- 
iiiqlitn^nt !or •* iln^ •.*'*II know» Miat <iu\%% of- 
|i«Mi!irt ii:iv.. ffirriifrti'^ h^t\ p'iniHlK:rl Sj for- 
liiilinr 'ii'.-'iw^tifins ^rnl Imnmhnn^titR : an«1 
<n -.vt: iiifl iif,-t i.»';kr1ly i3iff.vk*-\\. Oiv^n at 0«ii' 
r .«ir» :it \'. :iit;i;iiL th-- l/Hh d:iy of .\o7«*.mh*-r, 

ii);i|ir<:rif'< ro'iiirrif.d. L«<;r« Eft DALE.. ! 

^■'•mmuiiMifr* of Jjislirlarv, liAvinif fin.^i- 
•IfTfil I In- IvIhII an • v^Tliri f»f sttsjv* aViVf: ; 
^fftiiitn I'l-^itirr ntl.il hw Tri:i'j'«*firH (frimo-n 
Irt*/ r^j. * .J iid^i.';^ 1,;;% \'',y ^!^ wiil siiirl ^;':.-k ,.-i'. 
Sfi^rit liK- •i'liiisitrnr'nU to h»rr i^^iir.U•/l uj^jn ihi; 
.••,4* iiU- fioiM, arwl fi'-<#:rt< ■•'«; of ii;A hvn*^ h^o.r. 
'Irify J>r fl,#; rnr»iitli of Jam#^5l /ff^rirvaor., 
Tty.irjT of r .in't, r!pr^m^fl anil jiirf^H Ihfc aawJ 
.riiii*-K Voij ./, 'if Kirktonn, to b*; in anfr uii- 
Uwv nTj\ ui.tt'.rciHmt'wtnt'Tirif. thoii«and ftijfht . 

liM'.'Irctli niil v:,*r.li': (i<itinfU Scotts, i 

lViiirr.iv, of |'i*ififlii", iij tli.: ^oiimf^ of KTCQ ■ 
liiiiitlii'ilifi (I'Miri'li Scot^, ^it:\'iinf!f:r fliirham, j 
»»f f *'ir:r'>, !'■ lii*- v»'iir»#: lit arK: tiioiiwinr) Hi^ht j 

f :iii'|ii il, '.{ :!i;it lik, in tli'- soiimfi of fyve liiin- 
«Iii«S |»'ini.i!q hs^iJltH, AU ?aii'if;r .Nairnfr, of 
Sjirnf/irfl, in iho. mim of tito hiiri'!r»-t!i nvntift 
f'..:r \t<,uut\A Un filiillin^ Sf:otU, f«f:orgi» 5lon- 
«r'ifr, of fff.'i.c, in Uif; 4<r>n!ri«s of lliri-e hun- 
«li»'Hi poiiriU S*oi|«:, ;infl JanifH Wryrnr*, of 
*il<'.ii< .Jop;-, in ttir-^.»fimft of zn", hiinrinrtli 
«' V. nil J;* w- iioiinfl Switu, and rirdaiiMrfl th«:rn 
lo Iff .If. J Inn. I for p.ijrnn<rnt of tlio frirsai'lH 
«./,iiin* 4 fii Iiii. rnAjf-AtU''!! r:a((}i l:f#'jKT f"'*r |j2<< 
ii>ii««8 ii*#-, ;it fhf tfrm#! of l/i'i.'ir^ nixt, and 
I'l hi 'I f»ii ir»Ti Jor |»rr4f;Tiriri^ Uj':r |if;rson<i, 
Im I'll* I «f I'lr-l-; rfnttiu\HH%f,wrH of hi^ HuijfiSUtm 
ill' ...«*...-, p.<- I;i I f-'riflay of .liry ii.-rt, iin«J':r 
r- ^..tii,< 111- .(/.Ii%(|y n^ifiVfr ffir-hiioiifii, fifiil or- 
fl II,' •• 'In Ml ill If*' f :ii \«;f| |/| |i;i«/»|i, rn«:i': tO TV.- 

II. nil t li tr.i y Ktilixr r^li«: tlif («#kirt Uiri'l, nnd fiiirl 
l|i#- »,'iii rli«-, wliiJ'Ii wHh |iroiiiirir-i'<l ^ir flooin. 
'Ill' ...,.il i|.iv .Ii»!ni .Miuniy, of l'i\\ttf.hif^\ttr- 
I": 
III. 



Th#t >v)nkA of A^ijimnni tor this 
rnntain fc>*r.r,rri< rf th^ pnicewliiia^ airxiiHK 
«e»*»rai other iwntft*^, whn w«rr broaaht 8» 
trjii on th« l.ki» iadictaiMifs. Bat 
th«^m an.l i^t^ c»m h#r« mpmiai there 
not ipp«^r lA be tit!er#nce fmncienr to 
the ia.serti«m of them either interaaag; or 
struct* ve. 



Fonr.tainh.id'f ucTiant^ aniler dates Feih 3S 
an<l 2.:, I'^i-j '1 i>GS.oas, o7j of this pn>- 
cr:H.ir», ia a.« UAloifB : 

*< \r the Cnnrinal Court the ahaents (mm 
the kiotr'i host in June txst, to the oamher of 
.'^.j (yentlrnvn of Fife, are now paooeUeA. 
N^rfa, thU d oot the thifi part of these »bo 
'•vere a^l■ent in tiie shire of ¥\i^^ ami there m 
aootiier indircment raiseti a^iinst th« rest. 

*' Thf:y tint propooefi ^eoeral deteneei: 
and aHeiL'^fj. that tbe\ having put oat their 
nulUia, thfy w err not nlAar^ to attPOil in per- 
ViH, t!.*r p^rLaiTient havia;; consei^tefl to the 
rrni.tia i'l [.lace of that ienizwia. This was 
ir;t ^:.a.xi<>"!. .^. Aitedgfed, the procamatioB 
r:a!!in'/ t-^riv* out vvas oot published at the 
liiindrMli !vfrif'rhr('«';i'.»..iiUHr.ol:»i4, iMvid flal- j HH'^i.f^k tp' .kfA-f.r^'A^es, as it expre«Iy bean 

ftr.d ai*r nnis. Answered, Their privaie know- 
le*!sy#^ .inr.f.:!'-'' ir.at defect. 

'- Their p'^rticuiar defences (banded npott 
flp«:ciaLtiHi, wf:r»f, 1. That some weie »tck. 
liut the I^.rds toiind tesiificates from miai»- 
ters, ph\ sician^, officers of the army, he. not 
sufficient, without witnesses were adduced bjr 
an excnlpatinn, for * testihus noo testimoniis 

* est credendum,' See a pleasant Mnry m 
Philip C.ominieiw* how Lewis llih of Fraoee 
fined <;ome {j^entlemen for fl\ in^f from bis boat 
acr^inst tli^ duke of Bur^indy, and tbej 
ohl-refi to prove others were spared, who fled 
miles fnrtljpr off thin they did. — ^Tbougb 
pli \ sir-i;ui9 prMctiid a privile^ not to testify 
iilKiii soul aud conscitnci-, j>t the justices de- 
cliiiid, tlir-y w.iild reject all tesliticatcs tha| 
iviinU'd it. '2. Ir ivas aiir-di^cd for some, that 
th^y Heio past the kfre oi' oO. This was found 

I lyiiif^ r.iljfdlii li;iv<r #:oifi|K:ipd Mirir I rtrh-vant, they provin;^ it instantly, proTidiiiff 

' • *' ' ' - ' ■ '^ '^ - ''■' they had sent out their best horses, and their 

liest men well appointe<l. 3. Some pretended 
they were ofhcers of the iniiitia, and went out 
With it, or that they had lamts in another sbirOy 
and nnswcretl tliere. These were found rd»i 
vant. 4. IJay of Unlkousie founded bisde^ 
fence on a nass to return fi-om tlie marquis of 
Montrose, fiis su]ierior ofHccr: Answered, He 
not lN;in£( in the kiii£;'s i^iiard, Montrose wa« 
not his officer. Sdn. Commanders have no 
|N)WfT to tr'tvK tlicni liciMiC4j to desert, else the 
iialfof tlif! army iiii^lit be dismissed. Replied, 
Inio, dtrscrtiiiGT is not libelled, but only not 
coining. 2do, (irotius * de jure belli et pmdif 
ifi very clear that other officers besides the ge* 
niTal may i^ive * salviini cunductum de tb* 

• drimdo,^aiid if the granter hare ezoeaded haH 
fluty, then blame him. Daplied, deserting i« 



« fin 



p.- 
I'" 

Im ti 
In 



I'll 'Is lilt I diiy iiiid pl:i<U', in the hour of 
' !•» |i;ii-i- In »rd iind m'iii diKiiri and M-nt- 
, (If >ii'iiiii< III »if»inst liiiri for Lis rinnam- 
.iit'l .il./dirif/ frui* bin iiiap-^tifH host and 
II >»,ii>i| III, iiiid I'l liAVf (granted bond fur 
il' til III !.:-. iihliiuc, ;ind ifiiio'l f'ai:tioti (or 
' niiir^ III III • pi 1 v'lii lo l|uil #-ni'rl f:ontortiif 
• ■ >.' i.h ill r liiuliill iiffic r>f flfiy hidilrn, and 
ii"l I nil riiM'l iitir appfiiiind. Tlitr ionls 



|iivi|. ■ i.ii,r,,|, jii.iir*- fU'ik and roininiKfi- 
«.iMiiii Mil )iM-.l|i-i;n-|i-, tl»M-<-f«ir III- llir riioiitli of 
.linm . Il» I t\ .''11, iiiiiriT 'if rofirl, ili'miicil iind 
iii||iii|.ri't ilii^.iid .I'lliii \(iirrii\ of |*iil(ichi«% 
l»i III oiil!;iiii- mid tii'/ilitr fiai' liiM iiiH|fHtieH 
lii\«i -I, iiml In III- pull to ijif liorni' jind all his 
iii'ii.ilili iriiriili. iiiid (M'lir III III* ifii lii>nl nnil iti- 
lii<iii|rhl III mil i.f»Vf ii|i|rtii> lord's lifu*, for bis 
liv< f'oniiiiipi Iind dpudN-du'iifr, which was 
|iiiininiiiri-d liir duoin. 



* So printed in the book. 




fer Aiancefnm thi King's Hmt* 



A. D. i6m. 



c« 



lUy and * per equipoUcns* Ubelfcd, 
in •» l&r as tli« 4tll n«i v^ > M24, tbuuded 
Upon, UMtimiiuls the oe the king 

aigviost reMleri ; wlu* ' i _.trter» do not : 
Mc act llO, p&rl. 142^J. Silo, Eslo inf«?rif>r 
officers may (^tii turJoof»afid maBies * lem- 

* norc padsV y^ ^^ ' in hello ^tin^oati/ and 
Vf nen tbe army f^ *tnndin|f * in procinciu ;* tor 
attUaniteir m iheir p>wer to dia- 
mkaaU. fu lur Aytoitot Inchdaruic, 
that be Has * m reueati luctn/ his only son 
lta?tng l>i'i-n killeil some fifvr days before, upon 
m miattke as if be bad been one of tbe arch* 
iMsbopor^t. Andrew^a iimfd««nf ivhicb he 
Wta not ; and Hm Jus No? el), say^, * per ooTent 
^ dkfl non iuc^uirtiE^ur qui proakimi funus dux- 
*jaiit.* 6. 8«ifne pfetcntkul that their wives 
were then lyin^r dang^ei-ously sicW, or near the 
lime of llierr delivery ; or that tbeir wives op- 

fiosed ami c«jntradicte<i their ^ing". This in 
mw m not relevout. 7. It was alledged thr 
oiban^ that thptr houses, their horses and their 
arms were plunderetl, and »o they neither 
OOuid, niii were obliged in taw to go on foot ; 
■lid they routd not at that time get other horses 
to bi«y, they beintf all pirked tjp, — Becau«»e 
there was a prei>umptioii ot* simulation in thi^ 
robbing, that it was caused to be done by 
themselves, or at least by tht?ir wives to keep 
tbem ai home ; iberefofe the declaration wiij« 
offeri'l to them, uh a testifrcatton of their 
loyalty if they to»»k it : but sundry of them de- 
chned it, and otTercd to purire tbemsetvps upoti 
imtbf thai there was no collusion. Yeu, some 
apprehended that iheir def«?r>ce of ^ickne^s at 
anrh a lime «« thin imt^til he niinnliite. 8. 
fskniic denied thnt they wi-re bpriton*, and so 
wer*- t\nt ohlii^rd to nttend with the gentry. 
T^^ • craved they miglit then rfnount'c 

Hi J -^sje to the kin*;, * ad reinutien- 

* tintu, \i>svM'red, they Here not ohh^eil. 
Replieil, Where i.ne is 'pijr»ned ibr taxation, 

denies he is ain heritor, then the lords of 
ion johli^ him to renoiiore. *), !S<jme 
riifo-i tk,... *<^*'n* only upparetit heirn, sinil 
l>t n* in ]M)ssession of nothing, 

huL _ , iit«^. Answered, the right of 

apparency lorleiii* hy the 6'>th act of purl. 
154 (^ and m tht' ktoi^ has ri|;ht to wh»t iliey 
miKbt «*ot'eh!t*d u*. to. Alledifrd for some, 
they were only wiidsett^irs, or only pos'»t*satHl 

* jure mariti,* or by the conrtcsie ol Scotland, 
Vhere thev had married an hcretrix ; and fio 
were not Ueritarii. Answered, Since the law 
was so courteous us to ^i\& them thi^ Itti^rent- 
courtPMe* tbfV ouf^tit to ite a* discreet and 
thankfol an to det«Mid the law^ atid their own 
j.,j,.. i ... ...I .. r ■' ^.f,,. ,yas 'jure feudali et 

* (I dliii pro tempore et ud 

* u,i.,4..- : ^.^ .,.i. liable to all i»«frvices. — 

Qnirr. It a blench vjiBf^ul n'ho pays his ^ red> 
^denilopro omni alio onere,* may plead ej£- 
cmiHion from boats and raids ; certainly he 
cannot. 11. It wan alled^ed for some, that 
tliey had no itdieritance but some crofts and 
burrow roods, within 100/. Scou of yearly rent, 
lod so w«r« not bound to go out iii|)ertoa ultb 




the heriioiir» their rent not being M% to sit^lsiit 
ibem as hors«ro«n.-^Tboii^h they should go 
and pmiteel their own propettf , yet this ex-' 
ceptton seencia very rele^at* 1 hea rd t h e lorita 
assfiilzied them nhoss bmfage was withiii^ 
300 merks yearly, as not hein^ able to keep i 
horse on tliat rent : but what if they have m\ 
good fortune aliunde in money P Some malc^ 1 
100/. Scots of valued rent the rtile ; and if they 
have under that, they are not obliged to atlenil ' 
hosts and raids. The old crimtnal iiiljourrial ^ 
books mtrntion sundry excuses fur sitch »s ab< ^ 
sented theraselres from hosts and raids. Anent 
the French ban and Arritfr-ban, see Craigf p. 
213. 12. 8ome alled^ed they were merehanta 
and burgevses within a bun^h royal, and 
watched there. Answered, Since they i»«r«<. 
Iiind%»itrd heritors, tht*v ought cither ' rtfutai^ 
*■ feuduni,* or else serve the kiug for theif 
land. 13, It was contended i\it ai>me, ibat it 
wau * res hactenus judicata/ for they had 
been summoned to the circuit at Couper antl^ 
t be re b ai I ^H absol * i tors, A mw e refl , 11i e d let 
there was only deserteil, and that did not huider 
raising of new letters. Replit^i, It was more I 
than .1 ' , for it proc^eeded upon trial o^l 

the It their excuse ; and beinj^ found , 

just atii ^ir'<\< u, it was admitteil, and (lie^y as- , 
soilzied, 14. Allt<lj^etl for sume that were 
ahscrtt from the bar, that they were lyinjBT sick, 
in thflt they were within 16 years of ag^e j for 
the law condeftoends npou nfi heritors bctvi rca 
J i> and 60 I tait these were tt*pelle<l as not in* 
<.Uinf!v v«n-irit'<t. riuil they were fiiiod* 15,' 
I , <Scc. alleilged, that Ihey 
\ t loyaltv,but wei^yuaMe 

totra^d oit hor»eL>iLck for ttie gout, gravel, 
corpnleucy, '^cc. but that they hftd sent one 
more »umcitnt than themselves. Answereif^ 
Their serving • |K*r sulMiUtutuur did not ex- 
oner ; which nee debated hy CrHig', dia^, 1^ 
lib. 3. 10* F<ir Lindsay of Uonbill it was^al- 
Mged, That, hy a c<mimand of ]»riry council, 
he was ordered to atteud them and tlu ir diets, , 
at the same ver^' time that the heritoi^ w<<re 
failed out. Answered, * Posteriora deroytuit 
' prioribuii/ and the proclamation calling tbe 
heritors out wos after that act of privy council 
anent him ; ami he shtiuld have olieyeil the 
last. Kenlietl, the proclamation u as only ge- 
neral, their order for hi* ap^»e»rdnce, under the 
p^in of lOtOOO merlcM, (Hhich was uncertaia 
when 4h**y nnifht call for him,) was special^ 
nnd * in toto juie ^eneri per speciem dero- % 

* gatur.* — Besnh*«the foresaid nraark-*, having 
gi*t a summarv ahhreviule of the derence*^ and 
debalei with ttie atterlocutors tollou ini*' there* 
u]>on, as they are recorded in tl»e Criiuma) A«l- 
journul bookH, 1 thoinf hi tit also to insert them 

* ex sujierabundanti;r here, Tho Ist general 
defence i«, that the uh set, l*t pari, kingf 
James 1, founded od, anf nt the ret using to en- 
force the king agiilist notour rebels^ must be 
co(i<^rucd and undento^^ only ot rebela^ either 
convict or declared tngitive : and the 2Mh act, 
9nd park J. 9, relates only to weai^on-shaw- 
tng, Sdo, Th«t the procliiitatiOQ wu not iiiti* 



43] 



S2 CHARLES IL Proeudingi Bgahui tkg BfeMre Ueriion. [44 



nate to the heritons and lieges, at the market- 
cniss of the head burif b of the shire of Fife. 
3tio, That the foresaid okl acts were made 
when the king had neither standinci: forces nor 
militia ; but now having both, the subjects 
ought to be exonered, and the said acts not be 
fouuiled upon. 4to, The king has indemnified 
several crimes, except those who did- not assist 
bis host* but they who sent out their servants 
and horses did assist, and so are pardoned, and 
cannot be pursued. 5to, They founded on a 
letter, alledged written by the chancellor, in 
name of the Secret Council, allowing such 
heritors as were valetudinary, wanted norses, 
or had any other reasonable excuse, to stay at 
home and guard the country. — ^The first 4 ge- 
neral defences were all repelled. 

«' Then they came to the special defences ; 
and it was alled^ed for 

« Boussie,--^That he attended the host with 
servants and horses, well armed ; but being 
valetudinary, he procured a pass and licence to 
return home, and Udi his horses and his servants 
in his miyesty's service. 

*« Hamilton of Kilbraclimont,— That his 
liorses were robbed from him by the rebels, and 
his servants were sick ; yet he furnished him- 
self with horses, and followed the Fife heritors 
to have served the king, but they were return- 
ing after the victory ; and he offered to take 
the declaration. 

<< Law of Brunton,— That he was sick and 
bed-fast durin|^ ail that time. 

** Nairn ot Littleftiertown's defence was 
sickness, and that all his estate was liferented 
by his mother. 

<« Lundy of Stratharlie's,— That his horses 
were robmsd by the rebels, and that he was 
content to take the declaration. 

** Sir James Sinclair, Kinninmond, and Bal 
birny's defences were sickuess all the time of 
the liost. 

*^ Beaton of Bandon, — his laily's dangerous 
sickuess, his sending his servants and horses 
to the army, and his taking the declaration. 

<* Melvifi of Cassin^ay's, — a licence from 
the captain to stay at home, his lady being sick, 
and he wanting horses. 

*« Durham of Largo,— his horses were rob- 
bed by the rebels, and be offered to rescue them 
by force, or to redeem tliem with money, but 
could not have them. He offered to give his 
oath that this was not collusion ; but refused 
to take the declaration. 

** Cowan of Corstone,-^his horses were 
taken away ; he is no heritor, but only pos- 
sessor and factor of an estate for his own pay- 
ment, and the payment of other creditors : 
But he refused the declaration. 

<( Balcaiiquhall, of that ilk,»Thathis horses 
were robbed ; but shunned to take the dedara- 
tion for fear of disquiet from bis wife. 

« Nairn of Sandfurd, — ^That he sent his ser- 
vants and horses ; and being a captain of foot, 
he endeavoured to cooveen nis oompany, but 
none coming save ten, his colood sdjomed them 
to aaoiber compwy 



cooveen lus company, but 
1, his colood adjomed them 
$ and so his boiwo bring 



^one before, he oould not get himself timeoudj 
tomished with others : He rehised the ckcfai- 
ration. 

«' Moncrieff of Readie,— That his ladv being 
sick, he sent an expert soldier with his novsas, 
who were accejited of, and he had offered to ffo 
himself if they had not been received ; hoi ho 
refused the d^laration. 

** Wcmyss of Glcnniston's defence is tfasr 
same with Sandfurd *s. 

*' Young of Kirkton, — his lady's dangerot» 
sickness, and bitter curses if he should leave 
her ; and the ap|iearance of abortioB upon his 
offering to go from her: But he refused the 
dedaratian. 

<* Murray of Pitlochie, — ^That he bruiks his 
little estate by the courtesy of Scotland, and 
the heir is on life, &c. 

" Muirhead of Linbouse, — That he wao 
within 14, and so pupil, aud he coukl not gjo^ 
not being fencible : vet some thought in stncft 
law his tutors should have sent out a man for 
the land, even as onethat is past 60 should do." 

Then he gives abstracts of interlocutors. 

*^ Largo,* Corsteu and Bakanquhall wer* 
unlawed in one year's valued rent Sandftud^ 
Glenniston, and Ueadie, were amerciate in half 
a year's valued rent. — ^The diet was deserted 
as ta Holbom of Menstrie, and Gideon Murray 
of Pitkierie, and others, it appearing that ther 
were past the age of 60. So thm is shnsit 
room left for that question, whether annus 60 
inchoaiui (as heing^'in materia favorabili) will 
excuse, or if they must be 60 compleat. The 
declaration was offered to none whose defence 
was sickness, or who had any other defenoo 
that put them beyond a possibility of aUendiog. 

** I heard where there was a liferent and a 
fiar, that the (iar was found liable to attend the 
king's hos^ and be at the expence of sendioflr 
men ; yet it would seem mucn more equitable 
that the Uferenter who posseses should be liable 
for tliir onera fundi realia^ than the fiar { 
* Onus temporariae indictionis ad fmctuarian 
Vpertinet. 1. 28 D. de usu et usufir. lesatot^ 
For it is a real burden, and Uferenter* shouU 
bear it. See Nov. 1673, f. 228. For Physician^ 
vide < Mattheeus de afflictis dccis. Neapolitan* 
< 41 ; tot. tit. Cod. de professor. etmedicM.' 
The lords were inclined to think any eminent 
physicians wore exempted as to personal at- 
tendance, but these who were sahiriat to attend 
the army; only they should have sent" 

He has also another entry respectingjprose- 
cution of persons for absence from the Kinff'd 
Host: • 

<< March 6, 1680. At the Criminal Conrti 
some heritors of the three Lothians were pan* 
neled for absence from the kinff's host. Jamoe 
Ellies of Soothside, Durham of Duntarvie» and 
many others were fined, some in 1000 merksi 
some in 300 merits, some in more, some in' 
less, according to their valued rent; ud the 
loids proceeded with modeaietion enooglu 

«<Iallr.WiiliMnCaiM|y't< 



tS] PrccttdingBagaimtikiCardMtt^fEarltit&m. A/D. iSfid. 



ri8 



ofCowburu, tl - : ue of his bdog a mem- 
ber of die co istu;e was pro|»uDe(l» to 
caUKin liiin Irum personal uttiniaiitice at ihe 
kiog^t host, am) wan repelled, as I hear ; btil 
tt wm neiUiiiir hilly debate, nor the acts in tlieir 
immn shown ; and therefore tlie ctiTnltiiU 
lords Gontioued the diet against Mr. Thomas 
LearmoQt, Mr, James Hunter, and the other 
ftdvocatea who were convaened far thdr ah* 
•cnc«f) and had gt)t iDdictments and citaboni 
for that dTecl, and they forbore to insist agpainst 
tbeiri. It may be alledged for advocates, that 
thev are not obliged to attend boats and raids, 
anci a man in arms for them ; and ought not 
lo be pursued for ahispnce therefrom: Imo, 
ll«ettiae the iU^man law exeems and pririlegcs 
them ^ah ^minibus tunctionibns proviocialihui,' 
II. dp ac 6. C. « de advocat.* diT. jud. el tot. tit. 



it re 1 J Lid MIC I 



<fe«ar« et tMdkk % imino tk ffioo* 
: oth(»tVed there ftAfvna. %^ llirf ^ 
by an GxproHittotof Bed«runl muM 
by the duke of Chattidh«mit governor m 13^4 
3tio. In June 1a«t the Lords tat alt the ttous of j 
the raid and campaign, and ao odi^neales etmM, j 
not warrantably desert their ohenta vi^un qqo* j 
tmry to their oatli de Jhielit nod of atlendnifp S 
the Lords* 4to. By aote of aecrst cofum*^ 
then made, the college of justice were fuKd * 
mto a cotnpany, lo help to i^ard the town of^ 
Ediuburgh, and they chused their captain, 
lieolenaot, and other officers, and got arms 
from the castle, and marched, and «lrew up, 
and usefl ditcipUne* Nota, This makea not 
agKinst the colle^ne of justice, for Mr. William 
Cwsaly IS deprived ftom being a writer to lh% 
sigTkei.*** 



826- Proceedings against the Gordoxs, of Earlestoun,* and others^ 
for Treason: 3^ Cha^rles IL A. n* 16S0. [Now first printed | 
from the Records of Justiciary in Scotland.] 



CoftiA Jv9ncuAtMt 8. D* N. Re^s tenta in 
prelorio burgi de Edinburgfi decimo oc- 
tavo die meosis Fcbruarii, 1680, per ho- 
I liorobilcs viroidorainosGeorgiiim M*kcn- 
^ zie de Tarbel Josticiarium Gencralero, 
Thomam WaUacc de Cratgi*, Justiciarie 
Clcriciini^ Uobcriorn Nairn de Strathiird, 
I>av'iilem Balfour de Forret, Darldem 
Falconer de Newtoun et Rogernm Ilo^e 
de Hurcarss, coinmiaBionarioa Juaticiariie 
dictii H. D, N. Regis. 

Curia legitlime offinnata* 

The isaW day anent our soveraigne lord*? 
criminal letters raised, used and c^ecut at the 
hiatance of sir George M'kcnzie, of Rosehaurh, 
^or soveraigne lord's adrocat for his hyiKS m- 

• 8et* in this Collection, the Introduction to 
the Trials for the Ryehou^e Plot, inserted in 
tol, 9, paiticularl ' t^t 8e<j. 8ee, aluo, 

as to the torture ' i im and some other 

partirubrs, vol. (j, pp. i^'ii, ct tetj» and of the 
10th volmne, pp. 751* et acq* 

It appears fi-om Wodrow, iTtat Oordou, of 
^udr^itouM, haTing^l>een, together with several 
other per^iona, cited to answer for being pre- 
sent at Houte and Field CoiiTenticlcs siuee the 
year 1674, and for reset and conrerse with in- 
tercommunefl ponKOti^i, ami not compearing, 
Ufaa with the rest, on February 18th, 107 9, or- 
id«fed by the Council to ht detiomieed, and put 
iQtliebom. 

Upoti I Fjtb, 1679, the Oocnci! ap- 

fc'i riofa rommittee of Ptibuf? 

lo Uw tbllowing effect : *^ That they 
WtH a letter of thankn to C. Came and 
"fVuiHtm Camiichael, sheriff- depulcH of Fife, 
for their dili^ce in ^csrcliixig after the mm^ 
4eTtri of tb« primate ^ and Ind impowered 



proTc ' 



terest, and also at the instance of lievtenaiil 1 
collonell Edmond Mayne against master WiU 
liam Ferguson, of Kellock, Mr. >VilIiaui aul i 
Alexauder Qordoos, of Earlatomi, elder aud 
younger, and James GorJon, youut^er ofj 
Craishley ; and alao aneut our said soverai^nt j 
lord^a other crimtnall letters, raided at the in* ' 
stance of his majestie^s said adrocat far hip < 
hytiesentereBt, and Uertenant colonellJames 
liouglaes, his infortner agaivest "- ■ Gordon, 

of CulTenan, — Dunbar, of Mnchrimore, 

and I M*Ghie, of Lai^e, mak and men- j 

tion, That wher notwithstanding be the comrooa ] 
I awe, la we of nations, lawes and acts of per- i 
Itament, and constant practice of this kingdume» 
the ryaein 
Dumoer of 



fing of his majesties subjects, or anj 
of them, the joyning and a5semblein|f \ 



them to secure and put under inTCntftrytbt! 
goods of John Balfour of Kink>cb« Maekstouo . 
of Rathillet, the three Balfonrs, in Gilstoun^ 
persomi most suspect of the murder, until thejr 
them9€»lves be brought to a trial : thai they had 
called before them ten persons apprehended in 
the south by the laird of Meldrum, two of j 
which^i^ohort Ncilson and NIcol Story, caii J 
make great discoreries of Welsh his haunti 
mnd reset, Neilson baring confessed that h« 
rode wiih him and Btory ; that he collected 
contributiotis at their raeetingi*, rolls of which 
were found on him. They are neTuittctl lo tht ' 
adrocate, with other four prisoners sent in * 
from Air by caphiin Murray ; and are to coti« 
linue in prtson till they reoeire a hl»ci tor b©» < 
rng at conventicles. That the cautioners of 1 
Mr* Alexander Gordoo having forfeited thdrf 
bond, by not prodncing him, be dmrged M . 
ftre thousand merks ; that Mr« Andrew Ken* 1 
tiedy, of Clowbuni, uptm reftnlng to depoo^ j 
be held •• confess, aud fined hi a iboostli] 
4 



bi 



32 CHARLES II. ProeeedingiagaimitheChrdaMofEarhi&un: [48 

Ucal, are most •detestable, horrid, hynotu, and 
abominable crimes of rebellion, treaaon, and 
lese majastie, and are punishable with for&ul* 
ture of iyfT, lands, beritas^, and escheat of 
moveables ; and be the third • act of the first 
parliament of king James the Ist, it is statut 
and ordained, that no man openlie nor nottoorly 

ceptM'Ghie, ofLarflf, who is coutinaed until 
the second Monday of June." 

Under date Aug. 21, 1G83, Wodrow writes, 

*' Earlstoun's process before the jnsticiaiy 
is very short, upon the same day. They pro* 
oeed upon the former sentence, and only nam* 
the day for execution. ' The Lords find the 

* pannel, Alexander Gordon of £arlestoan| was 

* found guilty of treason by an assize, Fe- 

< bruary 19, 1680, and ailjudged to be exe* 

* culedand demeaned as a traitor, when taken ; 

* being now apprehended, he is sentenced to be 

* beheaded at the cross of Edinburgh, Sep- 

< tember 28, next.' This is all I find about this 
gentleman in the criminal records: 

" In the Council llegisters there is much 
about him, but I shall not enter into any larger 
detail of his affair. He was taken ffoing to 
Holland the last of May, or first of June this 
year, which made a mitf hty noise, and people 
thought a great discovery would have been 
made; every body was upon the scent and 
chase as to the plot against the kiug*s life, and 
the council and bishops hoped for wonders out 
of Earlstoun's papers, but there was nothing of 
that kind to be fuuqd in them. The real ac« 
count of that matter in short stands thus. 

*^ Earlstoun had been abroad very nrack 
since Bothwcl ; he came home this springs, 
andjoyncd himself to the society people, where 
he was safest from falling into the manager* 
hands. In April or May, at one of tneir 
general meetings at £dinhui^h, I fmd, by the 
origrjnal records of the societies, that he was 
pitched upon by the general meeting to. go 
affain to Holland, and joy ned in a commisston 
With Robert Hamilton brother to the laird of 
Preston, his brother in law, for representimf 
the true condition of these people and their 
principles to the reformed churches abroad, f 
nave before me the copies of their commissioa 
and instructions, and several lotters and repre- • 
seutations they sent with him, too long to be 
insert here, but they have no relation at all t» 
the Jilnfflish plot. 

** I nnd by an original letter in my hands 
from Earlstoun to the societies, dated New- 
gate, June 9, this year, that when he had got 
safe to Newcaiitle with Edward Atkin his 8er« 
vant, formerly spoke of, and was aboard a ship 
for Holland, Kome waiters came and challenged 
them being strangers. Eurlstoun fearing the 
seizure of the papers he had with him, dropt 
them into the sea, where they were noticed, 
and taken up, and both of them seized and. 
sent up to Newgale, whence they with the 
papers were sentoowu to Scotland to lie tried. 

*' June 2. The council write a letter to the 



47] 

Cogither in armea without and contrary to his 
tnaiesties command, warrand and authoritie, 
and the abating, assisting recepting«nd keeping 
correspondence with such rebel Is, and supplie- 
ingof them with levies of men, horse, money, 
orarmes, and furnishing of them with meat, 
drink, powder, ball, and other munition bel- 

merks ; that Mr. Robert Maxwell, now cour 
fined at Paisly, because of his great age and 
infirmity, have the diet continued against him, 
he finding caution to appear when called, un- 
der the pain of a thousand merks ; that, upon 
the testimony of the archbishop of Glas- 
^w, Mr. John Law be dismissed, upon cau- 
tion, to appear when called, upon bond of a 
thousand merks; that Bennet, of Chesters, 
continue in prison till he receive an additional 
libel ; and Scot, of Pitlochie, and his cautioners 
be cited to the next council day." 

The Council also continue Eariestonn's case 
till next diet. 

The Gordons, of Earlestoun, elder and 
younger, are mentioned by name in the Pro- 
clamation published by the Scots Council, on 
June 2C, 1679 (inserted, N"" XXX, in the Ap- 
pendix to 2 Wodrow) by which the king dis- 
charged and prohibited all his ' subjects, men 
or women, that none of them offer or presume 
to harbour, reset, supply, correspond with, 
hide or conceal, the persons' therein numerated, 
or any others who concurred or joined in the 
late rebellion, or who, upon the account thereof, 
had appeared in arms in any part of the king • 
dom ol^Scotland. 

Wodrow, in relating the transactions at 
Bothwel-brid^ [June 92, 1679] says, *«Whe- 
ther it was this dtky or the following, I know 
not, but at this time that excellent person, 
William Gordon, of Earlestoun, who was com- 
ing up to the western forces, was killed by the 
English dragoons." It seems to be clear that 
the person spoken of in the above passage, is 
the Alexander Gordon, elder, of the Case be- 
fore us ; for under date February 18th, 1680, 
Wodrow writes, " Mr. William Fergusson, of 
Kaitloch, Alex. Gordons, elder and younger, 
of Earlstoun, James Gordon, yoiuiger, of 
Craichlaw, William Gordon, of'^ Culvennan, 

Patrick Dunbar, of Machrimour, and 

M'Ghie, of Larg, are called." 

** It hath been remarked before, that Earies- 
toun elder was killed about the time of the de- 
feat. This ^ood man is prosecuted afWr his 
death, of which we shall meet with more in- 
stances." [See, too, in this Collection, vol. 2, 
D. 707, the Case of Robert Logan, and the 
Note at the end of that Case, p. 722. See, 
alM, Laing's History of Scotland, edition of 
1804, vol. 3, p. 54, where it is said, «< Ac- 
cording to a le^al maxim that no person can 
be condemned m absence his (Logan*s) bones 
were dog up, and in parliament produced and 
srrai^ed at tbe bar "] « The prepared witnesses 
depone as to their accession to the rebellion, 
•Ad they all ire ferfeitad in common form, ex- 



lituaent, ftistttatut^lUatciomem wilfuUie rece|it, 



^nuyor of Kewcasillc u|>oq thts ufiair. * Sir, We 
/ received jour cf^K^rtiiif, wlicrein yuu ae<jiiniQt 

* UA ivitli iwo perKuns aptiri'lteiiikJ ami com* 
tnitU'ii to hig iiinjffttv » gaol iik your toivn, 
with whom arc lound sc:vcTttl M;ditioU9 papers 
anii liHt«r5, utidlbat these' (uMsotiH nere ^ouig 
bej^oml !tL'u» trndtT ilie T Alexainler 
Pi'iiiglo ami Edwaril 1 , but were 
hy voiir T - \<'ntc'il, uuii muir papers, 
U'htch tl : lod to destroy, preserved. 

P Colonel S-, «,,..- ;iUo liaili sent us copies oi 
f some of tlie*e seilltiouij paptrni, the ongitmls 

* whereof yoti have done u ell to send to bis 

* luniesty. We are very senstible of your care 
> arid zeal tn his tiirtjesiy*s service, and return 
~ yi^u thiiuks for nc(]uaiutin^ us therewith, and 

desire you may be [^leased in detain them in 
Aeparate prisoos, ainl continue your care in 
searching for susj^et petsonB, |;mUy of pur- 
suing ju'ditious courses in this kingdouQ ; for 
we liave reason 1o (lelyve that several reliel- 
preachirs, aud oUier fugitives from Justice, 
, do iurk concealed in and alioui your towa. 

* We shall not he wanting to iiiforru his tnajesly 

* of yourzeaJ iu his service. Yours, &Cp 

* Aberdeen.* 

^* At the same timethey write another letter 

coloDel Strulhei-?, signifying. They received 

13 of the tirst instant with the copies of some 

pf the pup4H^, thank him for it, and desire Inm 

to continue hLs diti^ence in discovering^ seili- 

lous aod suspect |»et'Soiis in tin? North of 

"iogland. 

The council were very e^tact in the exa- 
jnatioii of all the papers, when sent down lo 
tcin. They drew up their (|uerics lyid written 
answers from Earlstoun ; he wus mo^t Ingcs 
Ituous in giving accounts of ull he knew with 
fcspectto the paperSi as I find by a copy of his 
«aswer!i to the council r|uencs, and there was 

* ideed nothing in tJiem save fornmi^Hions and 
itruciioDs to htm and Mr. Jlumi1lon« with 

etters to some Dutch ministcrii and >krot^JMen 
Holland^ and papers on civil busiiiesM. And 
ter all their endeavours to find Bomu%^ hat re- 
live to the Plot, they could fix upon nothing", 
T nothiii|2r was to he fouml of that nature. 
** Nevertheless the mana^ei-*, ufWr the jus* 
ary had renewed their (ornier !$cntence of 
lieath n\Mtn him, resolve to put him to the tor- 
re. And liein^ sti aitene<l in point of law to 
c of deaths the 

• Liht honoumbfe, 
I it Lirlstnuu having 
I ; ^ I ri , md examined 

Imri! vxliiMM, It Sterns, 

can he had from all the iuter- 

ro|f;» i^y could propoHc to him, than 

what hath bemt alfc^y put in writ, anil seut 

to his royal liighiMms •tid your Ivrdttiipi and 

VOL. XI. 



orture a ]» 
[.council V. 

^ by liio council and j 
C* tiieir iiijiitlti:i, niul 
' not' 



itaiiie or doe favour lo optn i 
ht*\h agairM<t Ut^ ni jjesiir ;md the commi*vi lawc, 
under the paint: of forfAltuir ; and be the lour* 
tdnt act of the sieijtl parUameuL of king Jamei ! 

the council having had under their c^mKiileni- 
tion what is further to he done anient him, h« ] 
Icing a person under the sentence of deaiJi 
for hijiifh treason, thought fit, in regard ther<i 
are only in town three of the justices, th« 
rest not being' to l»e here till Noirember, lo 
desire your lord*(hi p to take a<l v ice of his ma- 
jesty *s advocate, (now at l^ondon) if by th« 
luvvs of this kingdom, and in thq circum- 
stances he is now in, bchtg under ihe sentence 
of death, he maybe put to the ijuestion by 
toiiure, upon such pertinent questions as your 
lordship and he shall think fit to <liaw up, 
And if he find that he may, hy the lawt of 
tliis kingdom, be now put to the torture, that 
Ibe advocate, as soon as may be, come dowo 
himself and answer any thing that shall 
hapj>en to be objected agaiust ii by the said 
Earlstoun, or send acommifision to some fit 
person to do it for him io absence, against this • 
next council day, September 11, with such 
interrogatories as shall be thought fit to hv 
proposed, that tivc council mtiy do justice in 
that matUT, The justices having met this 
day have given us an account, that they hava 
ap|ioime<l the 28th day of 8epleml>er for 
putting the sentence of death in e^ecutioii 
against Earlstoun. I am, 6tc. 

* Aberdeen, Cancel* I. P. 0.' 

" Ad answer came not t« this letter until 
September 20, whtn a letter froui IMiddleton, 
secretary, dated Heptember li, to the chun- 
ceHor, is read^ and follovvs: * My lord, In an- 
swer to yours of the 2 l»t of August, Iain 
now by the kind's command to aci^uaint your 
lordship, that his majesty in a full Quorum 
of his privy comicd of Scotland now her^ 
proposed to his advocate, wliether Alexauder 
Gordon late of Earlstoun, notwithstanding of 
his being condemned to die, might be put ta 
the que^ition by torture. II is answer was, 
thai though no man can be put to turtu 
upon intemigatories only rcliiting to thecal] 
for which he was condemned, > ct he tnay 1 
tortured with i^latiuu to plots, conspiracies, 
and combinations that have happened after 
the time when the crimes were comuutte^l 
for which he was condemnetl. Aiitt sinea 
it is undeniable that the said Alexander Got* , 
don did accept a treasonable coiiimii<^ion from 
reb«U, and it doth api^earhy a letter direct to 
him from J. N. d>ite<t ai London, i^Iarch 'JO, 
last, that he was privy to the late horrid con- ^ 
spiracy again&t his majesty's persou uud go- 
vern mt tit, and yetrt^fiist'ihto give an acooiml 
cither of those from whom h*? received tti# 
said commission, or such a:, he knows were 
accessory to the said cmispiracy, aii«l boib 
these points beinc of *>> greai c«iii5e(|ueuc^ 
fur the future set ^ majesty's |»er90ii 

* atid g«v«ruiii«ai« /i;for* moliied hy 






J 



5IJ 



3a CHARLES II. Proceedings against the Gordons of Earleitmn; [Mf 



the 2tl it m slatut, that non rebc^il againest the 
kingr'n jiersoo or autboritie, or make warr 
fl^ramni the king's [tfidfjeu, and nlioso does in 
ihecouirAir U be |>itnishefl cHer tlte quuhtie 
and qaantie of siu-h n?belliou ; aod be the 
ti»efity fyft act of his first |)arltumt*nt, h is 
italiit» tfiat if any maa commit or doe trea- 
iOfl a^aiiifst the king^^ person, or rysc in fear 
of we.^r flg^iinest hirn, or recetils atiy 
tli:il hn$ comiiiitUH) tJ'eiunn, or i«uf»|>lies iheiri 
In helji, redd or council), shall lie iiuiiished as 
troitorH ; and be the H4 act 12 pQTlitinieiil king 
Jame^i (5, it is stJitur, thai wherever any de- 
ct&ired traitois repairs m any j^artoflhi^ kinsjf- 
itniiienou of Ut^ ruujestie^s leidf^es shall pre- 
sume to rerept, Rupphe or intercomon with 
Ihcm nrpvetliein my relieti' or comfor! ; and 
that imnieditttcty upon knowleilore of iher re- 
parring in the bounds, alt hi« majesties obetJient 
*ulye<.'t» doe ther exact diligence in searching^ 
' and appreliending- the saids traitors and rebelts^ 
and that with all speed they certifie hin 
Riajestie, or some of his secret councill, or sorae 
permits of anthoriiie and creiiit within the 
«hyre, that surh reMls are wiihin the same, 
tinder the pnine tliat tlie $;aids rebelU an<l 
traitors on^ht to suMuine if they wer a|tpre- 
hendit and convict be josiice : lykeas by the 
fyii act of the Hrsl sessi^m of bis majesties first 

' his majesty, that the said Alexander Gordon 

* shall be put u> the (ortui-e, and tnterro^te on 

* what may jiertinentlv relate to these two 

* he^ds, to Hit, as to those who have bad ac- 

* cession to tbe tjmniing the said commission, 
' or the said conspiracy, of which it fa his ma- 

* jesity's pb'asure you acquaint tiie lords of his 

* privy council. 1 am, <ic. 

* Mu>DLCTON.* 

" In pursuance of the above letter, thecotin- 

eil thai S4)fi»e day noniinate the marquis of 

Douf^bus, earlts of ^'w^ddale^ Wintouo, and 

Ijiulitht^nw, the loH Livin'^touc, E^tneral Dal- 

ziel, 0»e pre«tideui, lord Collingrtonn and ('as- 

tk'hill, or an^ five of them, aj* a committee to 

meet Tuesday next, at ten of the clock fore- 

fiiH>n in the ordinary place, and consider the 

lot* rrO|;iilonL"R to be' put to the said Alexander 

Gordon, and nee him questinned in th« torture 

upon them, and others arii^in;^ fiom theiUi and 

"' , with power to them to do all thmf^ 

to that puqro^e, as they shall see 

)tid ontaiu all the membf^ri of the 

iirt to be present, and Mr Cieorj^e 

<»,i, L ;u;in» ..r,K... • -it^ from tbe 

advoc^iiff* to 1 rrtintmtre* 

]AUn'^ to thL* X . ., ., „,.,* 4ij bo present 

wi h the conmiittte, 

♦* Aor^.n^ti'^/t'/, Sr-:>tni]lipr 2j, the foresaid 
#oiki lu^ witli the in- 

still I : 'ly, but did not 

apply ti^ \iv ytuirftiiU)* Lr would be a« incfe' 
Kmou-« fit*f! nK't e TmII thnrt he could be in tor- 
inrf lid hij( answers 

•rr Sprat, lale bisliop 

«f '^ Li^^'^^c^i*^ J iii« account of the 



parliament, it is declared^ thai it shall be hytt 
treason to the subjects o( this kingdome, or any 
nuralier of them, more or lesse, u|>on any 
t^round or pretext wliatsomever, to ryse or 
continue in arrays, to make p€^ce or ware, or 
to make any treaties or leagues with forraigrne 
princes or estates, or amtJnqpHt themKelvtti, 
without his majestie's specjall authoritfe and 
approbatioa <ir«t iutcrponed thereto; and all 
his majestie^s sul)jects are discbarofed UfM>ii 
any pretext whatsomcTcr to attempt any €>t* 
these thiufj^E^, under the paine of treason; and 
be the eleventh act of the first stsMoooflLif 
maje^tie's second parliament, it i» statut and 
ordained, that in tyme coming in all ca^^ea of 
treasonable rysein^^: in armes, in oppin and loa- 
nifest rebellion, ag^ainst his majestie and hia 
authoritte, his majesties ad^ ocat may and ought 
to insist ag'ainst and prosecute such persons, as 
be shall be ordered by his majestie or his privie 
councill to persewe, and if tliey be cited and 
doe not ap|M'ir, his majetftie's justices, notwiib* 
atandiit^'- of ther absence, may and ought to 
proceed to consider and give ther iuterloquitor 
upon the lybell, and if it be found relevant to 
adniiti the same to the know led ei-c of ane in- 
quest, and upon the verdict of the inquest find- 
ing tlie samen proTen, the doom and sentance 
of forfaullure oug-ht to proceed and be ^reo, 

Rye-bouse Plot, though with some mistakes; 
and so I shall not say any thing' of them here, 
but that neither the IHot agninst tbe king*9 
hfe^ nor the design of risin|^ could be 6xed om 
this gentleman, or the people who sent bia», 
who really knew nothing of the matter. 

** All I find further in tlie He^sters upon 
this gentleman's case is, November 23. ' VpOti 
' a new letter from the king, the council order 
' Earhtoun yet to be put to tlie torture : biit 

* when he is brou£|^ht in, he appears to he in 

* diffraction, and phj^sicians were calleil to 

* consider his case. November 27, thii phy- 

* sicians report he is affected with that distem- 
' per called uUenaiio mentia^ and advi5;e be 

* may be sent to the castle, that by the change 

* of the air his case may be liettcr know n . f>^ 

* cember 7, Earlstoun jK^titions for pious di- 

* rines to be sent to him, thai he may have 

* their benefit before his death, and as a dying' 

* man declares his innocence of any p1otap^Ii0C' 

* his majefty, prays for the kin^, and adherea 

* til the answers he gpiive lo tbeinterregfatories, 

* He is reprieve^l till the laiit Friday of Ja- 

* uuary. January 17. Karktoun's reprieve is 
*■ continued till tite last Friday of April, and 

* his peiiiion for pardon transmiUt d to the ae- 

* cretary. April 11, he is r^--^ • ^"i «'r^iri till 

* Dcceml>cr. And in M\\\ ihc 

* lliis.s for liis hr-ukli. In ^1 ^ : 'uing^ 

* ! r/ 1 bus he con- 
wiih more Uberty, 

vuh bis excellent lai^^ 

tty tbe rcrolution. And 

imps and manBiiners, 

king's person upon 



i 



I 
I 



and MMi»*jti 
until he w 

aUihf^ 
to lix til 



Bcolgi^i^Uyieuuuy, catue to uotbiii^*^* 



SS] 



/or 



A. D. \6m. 



[5* 



^od pi'onuticred iti the same Tnanoer as tf the |)eJr- 
stHMH accused bail coiupeired aud wer pr^seat ; 
uevertheiesMj the saicl^ Mr, VViltiam Fei'^u- 

son, of Keilock, Mr. U tlUam aad Aiexander 
Gordons » of Kartestr^uu, elder, and y 01111^1% 

JaDii'U Ciordou youtig^er, of Craisliley, -* 

Gordcii !il'Cul¥fnaD, — DanbarjOfMaeh- 
i-iinoii^ and -^ M^Ghic, ot Larg^e, and tluT 

relidlious ussociates and accomptirrs, shacking 
ofl'ail tear ol God, conscitiicc aad ^tasts of 
duty, alteg^iaiit'et and lo^attie to hii majc^stie 
tiier sovcraigae and uathc prtoc«, liave inosi 
peHidiuuslie and irt^astmablie presuuied tn com- 
initt, and areg-uilty 0* tTyroei* abo^e meationed 
ID suulkre, as Juiid BnUour, of Rinlock altaji 
capt. Burlidi David HaekitoUf of ItaUiUet,* 
George Balfunr, in Gilhtuun, James Uussill, 
in ketle, Kobf^rt Dine ^ til K a tenants aon, 
ia Caildom, Aodrew liuiHan >V obiter, tu 

Balmirinoch, Henry scms, sons to Joho 

Henry son, in Kilbraclunont, and Genrtre 
Fleyining', mti to Gtrorge r leyinini^, in Bal- 
buthie, these impious and sacraft^ious murders 
and murdering" reftiruiers, who to pn^ate 
cbristiauitie, like Jesuits «ioe ii)iirder<;hrystiaus, 
these enemies of mankind having gone in 
April last tu the ton a of New mi Ins, in the night 
time ibey did murder in cold blood f 

A souldier in captain f compante, 

aad left another of iha saidfi souldiers for dead t 



* See his Case, Vol. 10, p. 791. 

•f- Sic in Orig. 

t Of this transaction the following is Wod* 
row a account: 

** From the paicellinif of the soldiers up and 
clown, and their numbers 11 rid activity, the 
keepers of conventicles were obltpred a iiltle 
to alter their method. Tn»urds liit* eud of 
ihB Laat year, [167B] «ome mi nii^ten/ began to 
withdraw from preaching" wiiii tbeir bre- 
thren, with wbotn they ussed to preach in the 
fields formerly, who were now for entring ei- 
ther upon the indu Igence or cess in their ser- 
mons to vulgar auditories, and drew up with 
the young preachers 1 have formerly spoken 
of, aud continued to preach together witti them 
pretty much on diese pointa this winter and 
spring. Some papers before me, writ by some 
4)f that side, say, Th;it (iekl meetings in the 
beginning of tliis year were more numerous 
than formerly, and many were obliged to come 
with arms to defend themselves, becau^ they 
were trequently attacked by the soldiers and 
garrisons ; and for their safety as well as har- 
mony, the miaistersandiuch who waite<l iipoii 
them, resolved to keep as close together as 
might he. They bad tbund that by preaching 
in separate places, and scatter iug themselves, 
iJiey were very much weakened, und the sol- 
diers got advantage this way against them, 
and sometimes the mioisterfi were in hazard to 
be seised, and several of the hearers were 
taken. Therefore they determined to narrow 
themselves into one meeting iu such places 
which stood most in need of the gospel, and 
where they isigbt gather and preach in the 



iud therefter having conceaved acnminalland 
deadlie hatred agamest his grace the late arch- 
bishop of 8t. Audi'CMs, and U|iou the thiid day^ 
of jlluy li)st, having cruellie, impioiu^lie an«l 
sacralegiouslie murdered him, the\ U* esciipe 
justice utiil iijFoive others in thei ^tiilt (^tiH 
ftilslie (irclcnding pietie and religion, goe iut*r 
the VVestenie shy res, and nnisi trca^onablie 
jtiyue in arfnc^J with Robert HauMlimm, bro- 
thfrrtothe laird (d* Prestou, Mr, John K.ae^ 
and titer accomplices* d<ssoUit and Aagitkiu* 
peraoHii, to the number td' threscore aud up- 
wards, who, upon ihe twenty nynllt <lay of i 
May, a day appointed for a solemn annie* 
versarie thanksgiving for his majesties Hestau-« 
ration to the roy nil government othiskiogdorMej ^ 
did goe to the burgh of Hutb^^rglcn, and tber 
most proudiie end treasonabtie haviit^ read actt*! 
of their own coining, sihackiug olfther atleag-* 1 
ance to his mjijestic, they most treason a btie and j 
wickedlie burnt several! acts of partiafuentt as^ 
sertioghis niajestie's prerogatives, and tsisd>fish- , 
iogthegoverutneot of the church, droivnetlout 
bonefyres sett on in commeration of that doy^ ! 
and therefur they trcusonHblie 4'0nvi»eat and J 
assembled togither, the nmuber of four, rive^^l 
aex or nevui hundrcth, or thereby, and did J 
waylay a small and few company of men under ] 
the command of the laird of Glaverhoiisei J 
and did tnust cruellie murder and kill simie iiCl 

greatest safety* Thus they cimtiinwd lor i 
twenty sabbaths without intermiFsiMn Iroin De*- 1 
ceniber to May. I do not doubt htii this ci»ors#i 
thev took tended to heighten the separation j | 
and when they were uh>ue without cou\ersiny j 
with others, and preaciiint: iviili jicrsons morel 
moderate, severuls who joyned mth them dii'j 
heiglitcn the breach, aucf serrw up matt«'rs tliej 
length they came to. J^Ieanwhile^ ilr, Wetsli'j 
and others of his temper preached in otbe 
places, with whom there were not many itrl 
arms, aad endeavoured to calm matters 
much as might be. 

** lJ|»ou the 30th of Maj'ch tliere vas a ser-l 
men and large tneeling at Cumbeihead, mi 
the parish of LesinahagOj not tkr frotn Lanerk.i 
The soldiers hearing of it, sent a good body nfi 
men to dissipate thctn : Tlie patty undei^itand- 
ing the numbers of the iiR^etiTtg, aud how weU 
many of them were armetl, did not Hnd it con* 
venieot to attack ibem ; but kept at some rlis- 
tanre, and satisHed themselves with nHmn some 
women, who were going to the me* iin;^'', of 
their plaidj«, bibles, and the like, and seizing 
some men. This coming to the knowledge of 
the meeting, a good number was sent off iu 
arms to recpare the prisonei-s, and the womeos 
plaids, Sec. The commander ef the soldiers 
refused both, and a scuflle ensued, wherem the 
offictr WHS woundeil, aud some of the soldiers 
taken prisoners ; but they were soon dismisaed. 
When the account of tfiis came to Glasgnir. 
my lord Bmhs aad the soldiers there^ ma^ch^Aj 
lip towards Lanerk, und the country thercalf< 
was sore harrastsed for some weeks. 

** The accounts of this icuffle catue in to 1^1 



I 



32 CHARLES tl. Proceedings agahiat the Gordons of Edrkiiaun. [6( 

persons who (last upon &e assyieof Oordom, 
of Earlestoan, and others, returned ther ver- 
dict io presence of the saids lords, wherof the 
tenor followes : 

The assise all in one voice, be the mouth of 
sir Patiick Nisbet, of Dean, ther chancellor, 
ffinds Mr. William and Alexander Gordons, of 
Earlestoun, elder, and younger, master Wil- 
liam Ferguson, of Ketloch, James Gordon, of 

Craichley, younger, Gordon, of CuWe- 

nan, ^— I>unlMLr, of Machrimoir, younger, 
^iiihie of the crimes of rebellion and tr^^n, 
in rcs|)ect of ther accession to the late rebellion, 
conibrme to the depositions of the witnesses. 
Sic SHbscribitur^ Pat. Nisbet, Chan. 



6SJ 

fries ; that he sawe Gordon, of Culrenan, in 
armes with them at Hamilton-Muir, as also he 
sawe master Samuel Amot in company with 
them at Hamilton cotiM icientiit : he sawe the 
saids persons at the jplaces forsaids and knewe 
them belbr ; and tliis is the truth, as he shall 
answer to God, and this he 'sawe a fewe dayes 
befor fiotliwelbridge. 

Sic Subscribitur^ J. M'Culu>ch. 

Robert Park, messenjzer, at Sanquhar, 
purged of partiall GoandU, solemulie swome 
and examined, depons he sawe the rebells cuter 
Sanquhar some fewe dayes betbr the feight at 
Both wel- bridge, in armes, with drums, collora 
and ane trumpet, depons some of them took 
free Quarters, and some not; that amongst 
them he sawe Gordon, of Earl^toon, younger, 
Ferguson, of Ketloch, Gordon, of Craichley, 
younpfer, in armes, and that be sawe them 
march away the nixt momine with the rebells 
towards Cumnock, depons &ey came in to 
Sanquhar with ther swords drawen under the 
notion of three captaines, and this is the truth 
as he shall answer to God, and depons be knewe 
the saids persons formerlie. 

Sic Subscribitupj Ro. Parr. 

William M^Geornty toun clerk, of Dumfries, 
purged of partiall rouncill, and soleinniie 
swome, depons that he sawe Gordon of Earles- 
toun, elder, in company with the rebells, 
marching throwe Dumfrcis in June last, a 
fewc dayes lM.'for Bothwelbridge causa gci- 
entia : he sawe him at ane kirk befor, and he 
was called Earlestoun, elder, by those wer 
present, and this is the truth as he shall an- 
swer to Go<l. 

Sic Subtcribitur, W. MArcEORGC. 

Hu^h M^Watler, in Stonrares, being so- 
lemnlie su«»nie, purged and exaniinei), depons 
he sawe Dunbar, of Machrimore, voun*^er, and 
Gordon, of Craichley, in armes with the rebells 
at Haniiltoun-muir. 

Sic Subscribitiir, Htcii M'WATrER. 

The lords ordaines the assysc to inclose, and 

returue ther verdict to-morrow at eight a*clock. 

19lh February 1680. I'he said day the 



Efter oppiningund reading of the whilk ver- 
dict ofassyse, tiie lords justice generall, jus- 
tice clerk, and commissioners of justiciarie, 
be the mouth of Adam Anid, Dempster cf 
court, decerned, and adjudged the saids BIr. 
William and Alexander Gordons, elder and 
younger, of Earlestopn, Mr. William Femi- 
son, of Ketloch, James Gordon, of Craich^, 
younger, Patrick Dunbar, younger, of Macn- 
rimoir, and William Gordon, of Cuhrenao, to 
be cxccut to the death, demained as traitors, 
and to underlye the paines of treason and 
utter punishment appoyuted by the lawes of 
thisrealme, when they shall beapprehendit, at 
such tymes and places and in such manner as 
the lonls justice general, justice clerk, and 
commissioners of justiciary, shall appoynt, and 
ther names memorie and honours to be extinct, 
and ther names to be riven furth and delate out 
of the bookes of armes, suae that ther posterkie 
may never have place nor be able hereiler to 
bruik or ioyse any honours offices nor dignities 
within tnis realme in any tyme coming, and 
to hare forfault omitted and tint all and sundrie 
ther lands, heretages, tenements, annual rents, 
offices, titles, dignities, tacks, steadings, roumea* 
|K»sscssions, goods and gear, whatsomever per- 
taining to them, to our soveraigne lord, to re- 
mainn |>er|>etuallie with his by nes in propertie : 
Which was pronounc'bd for doom, whenipon 
his majesties advocate asked and took instru- 
ments. 



05] Pr0U€dmg9 4|g«ffitl JoAii L^ri Bm^gengf. A. D. H(8^ 



Wi 



327. Proceedings against John Lord Bargeny,* for Treason; 
3S Charlies II. a. d. 1680. [Now first printed from the 
Records of Justiciary in Scotland.] 



CuAU j€tnciARi£, S. D. N. Regici, tenta In 
Praetorio Burgi de £diiiburgb, decimo 
iezto die Metisis, Martii, 1680, per tio • 
norabiles Virot DonaiDos Georgium 
K*Kenzie dc Tarbet Justiciarum Gene- 
ralem, Thomam Wallace de Craigie, Jus- 
ttciariee Clericum, Jacobum Foulis de Co- 
lintouD, Robertum Nairn dcCStratburd, Da- 
videm Balfour de Forret, Davidem Fal- 
conar de Newtoun, et Rogcrum Hogfe de 
Harcaras, CommissioDarios Justiciaris 
didti 8. D. N. Regis. 

Curia legitime affirmata, 

Jntran^ 

John Lord Barganiej 

TnDYTED and accused, Tbat wber not 
withstanding be tbe common lawe, and lawe of 
nations, and constant practique of this kingdome 
and paiiicularlie be the twentie-fyfl act of the 
•ext parliament of king James tlie 2d, It is 
sUtot and ordained, that if any man committ 
or doe treason againest the king's person, or 
bis raiyestie, or receipts any that has committed 
treason, or that supplies them in help, redd or 
eouncill, they shall be guilty of treason ; and 
■ickiyke, be the hundreth tourtie and fourth 
act of the twelth parliament vf king James 
tbe sext. It is statiit that wherever any de- 
claired traitor or rebells repairs in any part of 
this realme, non of his majesties leitfges shall 
presume to recept, supplie or iutercomon with 

* " All the account I can gi?e of the trouble 
of Jo|in lord Bargeny, in the shire of Air, is 
from the registers. He was susnected to 
fiiTour the cause of liberty, and to be of the 
other side from the duke of Lawderdalc ; and 
last year after Bothwel, some surmises were 
raised of his favouring the people concenied 
in that rising, whereupcn he was made pri- 
soner in Blackness. In the council registers, 
December 4, last year, just afler the duke of 
York's coming down, I iind a report from a 
committee who had been appointed to examine 
him in Blackness, that they had taken his de- 
claration, which is read, but not recorded. 
That day the govci*nor of UlacknesK is allow- 
ed to permit persons to speak with him in 
luB own hearing, and to gire him pen, ink and 
paper, providing he see whatever lie writes. 
At the same tioie the advocate produceth a 
letter from the kinsf ordering him to pro- 
ceed against the loru Bargeny, as having in- 
cited persons to rise in the late rebellion. No 
more 18 about him in the registers till January 
14, this year, when their act about him runs, 
** Aoeat the petition of John lord Bargeny, 
VOL. XI. 



them, or to give them any releiff or comfort^ 
, and that immediately upon knowled|^e of ther 
] repairing in the bounds all bis majesties obedi« 
> entsilhjects doe ther exact diligence in searoh* 
I ing[ and apprehending the saids rebc4ls and 
! traitors, ana that with all speed they certifie 
I hismajestie or some of his secret council, or 
some persons of authoritie or credit, within 
' the sliyre, that such rcbclls are within tho 
' samen, under the paine that the saids traitors 
' and rebells ought to sustaine if they wer ap«> 
prehendit and convict be justice, and be tna 
fourth act of the sexteint parliament of king* 
James the sext, whosoever invades, or persewea 
any of the lords of session, secreit eouncill; or 
an^ of hifs majestie's officers for doeing of hia 
raajeslie's service, shall be punished to the 
death ; lykeas be the lawes abd practque of 
this kingdome the designing, contryring, o^ 
hounding out others to massacar and assas* 
sinat his majestie^s commissioner and repre* 
sentative, is in itself the cryme of lese majestie^ 
his majestie's commissioner beings in the con* 
struction of lawe, his hyncs representative, and 
in place and vice of his royal I persob : and be 
the second act of the second session of hia 
majesties lii*st parliament. It is declaired, that 
if any person or persons shall, by wrcitincf, 
printing, or be any malitious and advised 
speaking, expresse, or dcclaire any words to 
stirre up tbe people to the hatred of his ma- 
jestie's royall prerogative and supremacie, in 
causes ecclesiastick, or of the government of 

" that he hath been now two months close 
<' prisoner in Blackness, occasioned by the 
'* suggestions and malicious informations of 
<* his enemies, and he being conscious of hia 
*< innocence of any disloyalty that can be laid 
** to his charge, and that in his heart he did 
" never harbour, far less did he ever practise 
" any evil against his majesty or government, 
'' craving that he may either be liberate, or 
** presently put to a trial ; and tliat in the 
<* mean time, or since his imprisonment, there 
^* may be no process, or decreets of sessioa 
^* moved in, or given out to his prejudice, hia 
<* adversaries at this time being ready to take 
*' advantage. The eouncill ordain the said 
** lord to be brought in to the castle of Hdin- 
** burgh, whenever the advocate hath pre- 
** pared his indictment. 

« This matter is still put off till the end 
of March, wht^n I find him before the jus* 
ticiary . The managers had a mind to have had 
his estate, but their prohution failed them, and 
the crimes in his libell must be reckoned of 
the advocate's framing.'' 2 Wodrow/p. 151* 

F 



67] 



32 CHARLES IT. Proeeedinga against John Lord Bargeny, [68 



the church, by archbishops and bishops, as it 
is now settled by la we, or to justice any of the 
deeds, actings, practices, or other things de- 
claired a^j^inest by the said act, every such 
person or persons so offending and being le- 
gallie convict thereof, are declaired incapable 
to cxerce any pia6eor imploymcnt, civill, ec- 
elesiastick, or militarie, within thi^ church, or 
kiugdonic, and are lyabic to sach iarder paines 
as are dewe by the la we in such cases. Ne- 
Tcrthelesse it is of veritie, that the said John 
lord Bargany having shacken off all fear of 
God, respect and regaird to his majesties lawes 
gnd person, his native prince, and to whom he 
was in ane more eminent way obleidgcd, his 
majestic having raised him and iiis predicessors 
to be peers of tuis his majestie's ancient rcalmc 
and heredittary counccllors tberin, and having 
licstowcd upon hiin and his family extra- 
ordinary marks of his bounty as well as 
favour, yet the said John lord Bargany for- 
gettini^ all these obligations, and the horrid and 
fircadtull effects of that late rebellion which 
did ovoiihrowe the monarchie, and enslave 
and depau|M?ratc the subjects of this kingdome, 
and hoping as it sc^emcsto raise himself by such 
new coni'usions and rebellions tu be a chieff 
ringleader in and disposerof the government 
of the kingdome, from a share in which go- 
Tcmment^ suitable to his fancied merit he 
thought himself excludit by the present choise 
of his majestie^s odicers and servants, he di<l 
theriur most treasouablie in ane or other of the 
monclhs of the years 1074 or 1675, with 
gri-at onthsund execrations, curse some of the 
chic/riiiibiliticof the king<lome, because they 
would not make tlienVselves the head of tho 
phunaticks, and swore that they w onld never 
signifie uiiy thing because they hade lost that 
oportnnitio*; and because hisi grace the duke 
of I .uiulcrduie liadi.', by his extraordinary pru- 
dence,* care und loyaltie, delate the designcs 
tliat he and the said phanaticks wer inanngeing 
for disturbing the government of the church 
and state, he did in aiif or other of the miMieths 
of the \cm-s 1077 or 1678, puUictlic regrate 



that the English or the phanaticks did not kill 
and assassinat the said duke of Lauderdale 
and did hound out* and intvse others to assam- 
nat and fall upon him in his own bouse, and 
particularlie in the raonethsof 
1675 or 1676, he did indeavour to perawade 
George Martin, nottar, in Dally, who then 
lived m this land, that the phanaticks would 
never gett ther bussenes done whill the duktt 
of Lauderdale was alive, and that ane ban* 
dreth men would doe more to assault him in 
his own house of Lethingtoun then all tliej 
could doe beside, and because he would not 
complye vn\\\ the said lord Bars[any'8 inhuman 
and cniell designe, he did still thcrefter dis- 
countenance him, and declaired to his friends 
his bye dissatisfaction with him upon that ac* 
count ; lykeas one Mr. John Welsh, a fac« 
tious trumpet of sedition and treason, and for- 
fault for the rebellion, in a.d. 1666, having 
maile a constant trade of convocating his ma- 
jest ie's snl^jects in treasonable |eild meitiDgSp 
the said lord Bargany did keep correspondencai 
with him, and having direct a letter to him 
whilst he and his complices wer contryviny 
the last rebellion, he did send the said letter U> 
Sauchhill by his own servant in May or June 
last, which Ving read at the said conventicle 
as having come from him, did incourage and 
esti'emlie invit his majestie's subjects to ryae 
in th|t rebellion, to which rebellion he did bjr 
all means invite and drawe in as many of liia 
freinds and followers as was possible, and par- 
ticularllie he keep*t ane correspondence with 
— *— Cuninghame, of Bedlaod ; and, amongal 
other letters, he did wreitt to him one aboot 
the beginning of June last, which was imme^ 
diatlie befor the rebellion, whereby he eam- 

estlie desyrcd the said Cuninghame, of 

Bedland, to rep:iir in all beast to the WesUand 
army, and to move and perswade all gentle- 
men and others about him to joyn witn him, 
wher they should see the said lonl Bargany 
himself snortlie, to which rebellion he might 
invite the [Hjople with gi-eater ctJiifnlence, be- 
cause it was Lilt they allon that sh!)uld counte- 



nance that buhseiiifs, but persons of fare greater 
Ste the Case of tho duke of Lauderdale, I qualitie, win) would assuredlie joyn with and 
vol Ci, p. 1025, of this Collection, and the ad- I own them in that affaire ; and albeit many of 
dilit>nal < luirtrts a;;ainst Laurlc;rd:ik- in ti:*- < the said John lord Borgauy'sown tennents 
»oint'rs Tniti :. 8te also in (h«^ Collection ci" j hmie bein in the said rebellion, vet he did not 
State TuiL'ls fioni the year 1600 to 1603, pub- give notice of them to his raJijostie*s privie 



iislied in 169'2, pp. Q3, 0C\ * JSonie pa/ticiilur 
matters of fact relating to the a(!niini:.!iaiiou 
of affairs in Sf.oiland undti* the uukcofLnu- 
derdalt',* and the impeachment ol' the duke 
and duchess of Lauderdale, witji I'ueir brother. 



couuoili, shirriffs or other officers, hut did in- 
tertaine those that wer nottor rebells in liia 
liouse and 8i?nico, and particularlie ■ — 



Mitchell, nephew or cousin to 3Ir. Jamea 
, , BiUchell, who hade bein execut for many exe- 
Jiiy lord Halton, presented to !iis -Majesty I y ! crable treasons againcst his ni^jestie, an<l who 
the city of Kdinburgh. In private, CharU's I himself was in the late rebellion in a.d. 1666, 
acknowledged that mi;ny detestable things had j and Andrew M*Clarkin, whom he keopt in hia 
been done by Lauderdale against the Scots, | o>vn house and service elUr he hade returned 
but that nothing against his service had ap- from that rebellion to which he hade houndil 
penrcd ; a sentiment not less dishonourable than 
nalnral to a sovereign, who, when he s; i»arates ; 
hiv ow n intoi-€St from the people, Ibrgets that ' 
he creates an interest in opposition to the throne. , 
Sec 4 Laing, lo^^ edit. lUOl. j 



him out ; and also in the moneths of 

or ane or other of the dayes of the 
samen, the said John lord Bargany did pub- 

■ k 

* See a Note to vol. 10, p. 1048. 



Ik'tlit' TTi^iTilnin*? thf? prtnnT>l<?« of Nepthali , JaS 

lu. f all miii'iler fttiii 

irCiiaon^ <iri ilAwl would never 

he well till ii icie^ or ttie present 

gtifprnttierit uj mc tunrrii wer destroyed m 
uotlti (or ilie riation ; and in the nionctli<} of 
Or'"' ='" '"* No\*eniber last, lit did oppinlit* d«- 
cl L si the ^crcd order uud function 

.,.. ^ ., ,.jie, Rwearinjjf tlial wc would ne^er 
m peace till the currtt* wer routed out, 
pid that they wer oil but knaves and it)|;^K\f : 
lierthmHe the said John lord Bargany has 
pmtniU4.'d» and i^ i^udiy of the tr^asonaltle 
iirymes and otlicra aUcne TTiontionrd, and is 
actor nirt and pnrt tlieruf, which being found 
lie aiie aasjNt.^ he ou|rlit to be punished with 
fi^rfanlture of lylf, lund and i^nods^ and other 

line* above mentioned, to the terror and ex- 

Dpte of others to com mitt the like hereiler. 

Perjfa>cr.^8ir George M*Kcu/Jc, of Rosc- 
haugb| our itoverai^i lord'^i Advucate. 

Procuraion in Defence. — Sir George Lock- 
hart, sir John Cutiini^huine, Mr. Wni. Hamil- 
ton , 1^1 r, John Elies, 31 r. Robert Stewart, Mr 
Roderick Mackenzie. 

Sir George Lockhatt^ as pr«>courator for the 
defender, craved he tni^ht be putt to the know- 
ledge of ane assyse^ or that the dyet mig^ht be 
deM-rted and he set at lihcrtiet 

His Mnf€%tle*i Advociile alleailges, That he 
cannot l>e ohleidi^-eU, nor can he in duly to his 
inajcstie's iiitcrciit, putt the pannall 1o the 
knowledge of anc lussy^c, bcc4iuic he did not 
jfett a coppie of tU^^ first and «?cond humtnondes 
of excnlpulioo, witlmut which, theli^lufthe 
vitnci^vs sii^uiiU'd nothin^^ bt;cau^e it is the 
rcoMms in tlic cxculputiun that inf»1i-uct» hini 
toMhut end the witne?«e* are adducetl, ana 
ron<^piervi1y by which he b only hiistructcd 
howe to cast these wilnc^cs with relation to 
thii*«e poyiitH for which (Iicv art; to he adduced ; 
and be tuc elcvinlh act of ute late aclf of pur* 
lifinirnt, ic^^^^uliainj;;' the justice court, it i.s most 
clear, thai Mh lyLwlUand e\cul]jation» should 
he cxccut in ihe nuuie way and inanutr, and 
tue jure para ttimnu 

8ir Gcurgc LackAari answers, That tlie oh- 

ion proptined be the kin, ^ * ' ;a is not 
in pe ten I hoc ioca m iin/i ..^ but is 

[|y competent apiincJit iht |Fi-.r m« -n, :ind the 
reftMm is most evident, iM-fausc thooi^'ii ihe ob- 
jirii .n ti**r founilit in lavvc, us the paunall 
hi ueuics ii in not, \i^ it tends only 

to ^ lite pannalt of the lH;ne1ill of ttte 

exeuipatjon, and whcrby hiii mujestie^s aUvoeut 
han un pn pidtce nor dii»uilvanti}^-e ; hot on the 
* ' I he wer Jibic to uddocc any relevant 

pi I the lybcil, it uootd reinuine un- 

|)ri;^udg4id by tlie excul]ia!ionf it bein^ the 

* T' -r piddrcatjAna on the part of the 
i» The title of that heieitnit incu- 

I Bo io llic Urij^ual, 



^Sj 



A.D, 16S0, [70 

mxtm case ia lawe as if the exctilpation hade 
not be in raised nor ^xet*nt. 

2d. Though tlie 4tt«te of the prcteea conM 

adrailt of the objection, as certftinUe it cannot^ " 
yet (t has no ground fitmi the act of parliament^ 
J and it is impossible to infcrre any such thitjfl 
from the act of partian^ent, that ane pammll 
havcing anc just and relevant defence in \hwe 
for defending- his lyflT, honour and reputrnionp^ 
and ofTerintr to piH»Te the ^an»c by witnessc%| 
ni^atne^tt whom thcr \h no law full objection|J 
that such a defence cane be repelled, and con-* 
set^uonllie ane innocent man condemned^ and 
the true import and sense of tlie net of parlia* 
mentis only thiii, that w her a panndl thinki' 
titt to raise a Jiummond!4 of exculpation, anil ^ 
to have the benefitt of dilltgenccs, in ease hif' 
witnesses doe not cotnpcir \u that case, he 
most obsene the foriualit) of the act of parlia- j 
meut^ but w hi^r the panu.dl will uud«^ri(f>e the 
ha^iirtl of a try all, and subject hifl inuocencr 
to ane assv?»e, w hilhcr the w ilnessc^ he cits foL 
provcing" fiis defence comj>cir or not, or woulj 
olfer to (irove hi*i defrncc, either be his jtidcfei 
or he members of the impie<;t, or any other 
persons present, it ix tlicr thi* irrefrattuSle opt-, 
nion of all biwyers^, and practise of utl ciinimalt 
tribunalU in the world, tliat such a defence and 
probation cannot be repelled, and thereby ani 
itmocent man condcimird, and \^ hie h ii6 suit 
able and consonant to the practise of the bird 
of justiciarie, ther bdiiig- nothiUi^' more ordi- 
narit' even nince the act of pailiamcnt, then to 
sustinnc relevant defenctiti pro[ioued prr modm 
except lonh, and noi pcj- modttm ucttvnts^ jir th 
nature of evculpations are ; and the acl of pap 
tiament as to the poynl of allowing i^unimondi 
of exculpation to pail null ^ being mtroduceil id 
ther favours^ cannot b*." detorted lo ther preja« 
dice, es(>cciaVlic lo prejudi»;ii them of the lK'n<2-i^ 
lilt of the lawe of nature, and nations delences 
l>ein|> (/c;w;c na^ur^, and most pn)perlie, and 
of ther o VI n nature proponablc be way of ex- 
ception, and as the pannall hunddieconccaveii 
the pounds ftbo\o mentioned to be foundit 
upon the clear principles of lawc, so lo con- 
vince tfie lord'* of justiciarie hovve mnieeesiiaryJ 
this debate is, it is o^ercd to l»c ni'ovcn by J 
William Ghvcr, the pursevanlS outh. that he 
delyvcrcd a list of Ihe wilnessen to my lord 
adiocat, and whicli docs fuUie saiisfic the act 
of parliament, which does not reqnyre the 
«unvmonds of c.vculpuiton to Ih* exccnt, but 
only thul a list of the witnessi's be cfivcn ; and 
this the paunalt pmpons tu thiselfoel, that if 
he think tilt, he m:iy have the full l»cncfitt antl 
privilepfc «d' his exculpftlem in case any of the 
materhkll wiln»*s*e« for pro^einaf Ihend' hi- ah- 
sent ; lykea.s the exculpation ujw produced the 
last dnVf and pubhctlte read, and bear'* no 
warrauil tor gmnij a coppie of the rea^utp 
thcrof to my lord a<tvocat. 

Ills Mil Hi tics JJrot<^if replyes. That asto 
the t ' ' * ' n J 

the n 

IS sxiost compytcnt hut liKtf^ «mcc he wats tlicrq- 



n^ 



32 CHARLES tl. Procee£ngs against Jehn, Lard Bargeny. [71 




by in hon& 
dyet being 

•0, but he ^ ^ 

ignorance howe to manaire the pruces, for his | cutt off a pannall from a just det'euce and wit- 
majestic and tlie kingdomes interest, in suae I nesses, because he wanted aiie exculpation, 
fare, as he could not knowc which way to find | and as the justices have verie otlen, and veiie 
out the strentfth of liis own probation, not justlic allowed ane new dyet, to ane pannallj^ 



knowein^ howe his probation might be eleidit 
by the exculpation, and tliough he gott a list 
of the witnesses, yet he 0(ipoQ8 expresslie the 
act of parliament, which paralclls the sum- 
monds and the exculpation, and therfor as upon 
the whole matter, it would have bein a verie | 

rd preliminarie defence to the pannall, why 
c*ould not goe to the knowledge of ane in- 
queist; that he gott not ane coppie of the 
lybell, and that he hade gott it, but ther is no 
execution againest hiui, or that he gott not :^ie 
list of the Witnesses, subscribed by the advocat, 
as it wouUl be tor the advocat that he gott 
not a list subscrybcil be the pannall, because 
upon either sydc this is the only check to 
koowe what true %vitnesscs wor trulie given 
in list, so ought this to be a sufficient prelimi- 
narie defence for his majestic, who, without 
this, could not knowe what was the import or 
strength of his own probation as said is. 

As to the second, his iMiyosties Advocat ac- 
knowleilges, that Ijcfore th<? late reafulation of 
thejustice court a pannall might have at the lord (Jochran, and to sir John Cochran,* who 



whcr his exculpation was not deulie raised, if 
his was proposed before : the proces was al- 
tered upon as here, so it wer as great injostioe 
and cruelty to the common and publict interest, * 
not to sustaine Uiis as a preliminarie defence, 
in favours of his majestic, and would in the 
event, upon the paritie of reason, prove greet 
cruehie to the people, since they behoov^ to , 
gctt the same measure; wheras in equities 
fair and eouall tryall, and what may tend 
therto, is ttie common interest of both and of 
each apairt. 

His Mitj€itie'$ Advocat adds, that the ]mg 
having doue exact dillig^ence, and returns of 
the dilligence having bein showen to the jus- 
tices againest witnesses which are knowen to 
be necessary ; the dyet ought to be continued, 
especittllie seeing Craige, a witness, coining in 
upon a warrand fmm the justices, he was ap«. 
urehendit in his way by Alexander Crawfura, 
balyic dcput,of Cuniughamc, deput to the lord 
IV]ont<romet'ic, who is bruthcr-in-Iaw to the 



bare caused cxainin witnesses, even as, and 
because witnesses might have \w'm adduced for 
the kin^ at that tyme, without giving them in 
list to tiie pannall, and it wer just that the pro- 
cedor sh«'Uld have bein equal! upon lifith sides, 
for as it is the interest of the pannall that his 



innocence should have hem dclendit, so it is the ^^ „,^j.^ ^-^i^, ^^J^ ,,^ ^^ ^ necessary 
much greater interest ot the common wealth ^„j jj, knowen to his majestie's privie 
«e cruinna n.aneant inipunitH ;» and yet. not- ^j,^ ^^.^^j ^^^^ deposition. 



withstandini:: ot this great and important rea< 
son, it is uii(U':iyul)le that nowe the king could 
not prove the rifarest and most im|>or;ant 
crynic ii. tiie Horld, except the advocat hade 
given in to the pannall a hst of the witnesses 
to 1)0 adduced, and therfor since the late act 
iias taken aua\ this just priviledge from the 
kin<^ : competent to him formerlie by the lawe 
of all nations, and by as strong reasons as are 
now alleailjj|;ed for tin? pannall, the saiil act and 
article did jiisilie allowc the king the same la- 
vour that it did to the pnnnall in eqiialUng 
both ' aci s, and the reawin inductive of this 
fnoiir cravjvd by the people did militut as 
stron^lii' tor the king as lor them, viz. that it 
was huid that \«itiiesse.ssli(.'Uld he addiired who 
might ha. e l»rin parlies, or ly. hlu to just ex- 
ccjUionN, it l.< .riir iiiulrnyalde, that the king 
aiid ihe j.niilct interest may l»o as mucli pre- 
judi,^d \t\ J(-.tit)n£^ c.\i'e|rtif>n*d)le \fitnes!»es for 
eleMhntj il the ti\me, as the pannall Uiay be, 
hy SnvAx l»'.iMdlie evposed to the mearsofane 
iiiireitaiiie a^id mikntrvven probation, and what- 
eiei- UMkrhi l»i: said in this case for securing the 
panniH's Ivtf, in tie not ntlinitting a u itness 
vher Iher is the lea^t hazard, yet there cane 
be no sliaddi?ue why this sho dd not be receiv- 
ed, when tlic itn[>ort is oiil^ that by a delay 



are now u|K)n pannall with the lord Bargany, 
the said Alexander Crawford being advertised, 
that Craig was coming in upon a securitie 
given be his majestie's Advocat, which be ooo- 
temned, and said he would take that on his 
ha^eard, and his majestie's Advocat is content 

witness, 

counciU, 

depos 

Sir George Lockhart repeitts, and oppons 
the former debate and the act of parliament, 
and alleadges, that it wer a preparative of most 
dangerous c()Usequenc*e to lay any such fun- 
dcition that )>annalis accused m criminall 
processes should be prejudged of ther defences, 
whatever way proponed, either bti way of sum* 
uiouds of exculpation or be way oftxception, 
it being a certaine principle in lawe, that as to 
defences and probation nunijuam concluditmr 
contra reum^ aiid that ther defences may be . 
proponed at any tyme befor encloseing of the 
assyse, and ther is not the least collor from the 
act of parliament to tyethe pannalls, to propone 
all ther detieuces by way of exculpaiion. As 
to the second, the pannall repeiits and oppons 
the nature of cnunnall pnK'csses, wherin tlie 
flyets are peremptor, s|ieciallie u|>on the part 
of the accuser, and all that ever was allowed 
was in case the witnesses did not appeirat the 
first d\ ctto grant a farder dilligence, and which 
aceonlinglic has l>ein indulsred, and the 
lords of justiciary, that some of the witnesses 
wer formerlie ahicnt, ilid continue the dyet 



* ISec his Case in this Collection, vol. 1% 
p. 989. 



r 



till t1i)« ^ty, uitl tberfor lii>i mAje^ttu*i ail- 
%ovatl oiijyftit to have conw lullie instructed noU 
I Di> prt'teuce of tlie ahsente oi any oi' the wit- 
I BMR9 oa^l in justice to b^ any j^fround Tar 
^^aew pfOfOf Atioiis, >Mid to keef> tt)e[*&uualU wlin 
^^b wtw reiuUe «t tbe bare, to subject \m inoo- 
^^Hhici^' to the iitrit:tc«(it tiiquirie mid tryall uucter 
' 1^ iod ittiputatinti i»f fet* hyt* and at- 

li . nKf*i, and to cootintti! Liiii in wurd 

dtcr tyvf^ tiionethii imjtrlsuiiment, and ettcr he 
has bein at rxtniordinury expense und trouble 
tocite tbrescore tfn \%\ Ik his e\cu1pa- 

tion^ nii>sMil ibem i'riM y» and iriiom 

it b iniftosMble tor ttii* |i^ijuiii to bnn^ still 
lien.' to aitcbd iiDccrtaiue dyeta at'cnnunall pro- 
€«*»**»» and riM ' -^ .. f - - nisidertd the i:uce ol' 
puiuiJiilt^ i^H t ouviciion, and a& it 

were iuipo&b. , , . ,. ,.„,,. .^Jl t4) pretend or have 
allowed any tknlar dili^eure tor producring* 
hia witnesa in une exculpation, ho iber in tare 
lf«arf reaaOD lo altuv^'e pruro^ations ol'ilyets in 
lafonr» *>f accusers, aud as to Ibe pretoncc tliut 
one of the maieriall witnesi^ey f i;t» bein deti^iined 
by the bttlyie d<*pu(, of Cuniitgbame, it is ab- 
soiiitlie dcnyed, and it cannot iu tbc least be 
|ire^arucdf that any person cloathed with 
AUthoritic tlnn^t have advci»lured or prexMined 
10 slope or liJuder any witnei^sc^s ubo \ier cited 
for his tnajcMie^ii intereisl and ser^ice^ ^rt 
tliougb any HUcb I h in y^ could be (jUiilifitHl^ it is 
not in tbc Ipust reJeviiitt. itntes»e it cuuld be 
made appeir that tbe p»inhull hnde accession 
tiicrto^ wliich tsubfiulutehe refused ; und on the 
contniir, tbe pannuH an<l \m friends bave u^ed 
ail indenvour^ to brin^ tliiii matter to a trvull ; 
it beidi; txinH^ribuM) tiard ibnt be shouhl 
continue in tMipri>u»niiu-nt, and under tbe 
fitmini: Hod intpmuLton of mi bye crirurs upon 
pretence *d the ubiruce of \f itncn^e^, and an- 
pc<litiMtibi *d tho» kiud may Ije nuU obtnidit, 
aud tberet'or the ptt»itinM rrave** ihe beniHt oj' 
1 1 V iohdde pi^eedor ul 
'cat having- ^ottal- 
•iires biHtf imd the 
I milt olp an4l if the 
sucli nialver^arion 
udvoeat by tbe se* 
-,. .,,v. » prevf'ttt tbe dunffer 
i'S^ iind bti!i iiiiijextteH interest 
iin- dyet wcr de!<ei'led, sinee 
utiieieiit ground lo in- 
it for any of tbecryuies 
lilirlJedf tt tv but uinitlutii tib inttuniia, and 
«afinot preju4ij,::Ct and tbe punnuU i:^ a pei'son ot' 
it rhiiriicler and iptuiitie, and of that eouf^ide- 
jion, a»i t<i foriouii, that tber is no fear he will 
Ittthdru^ve himtielf. 

The lonJn m reipect that his majeiitie^s ad- 
V' ' woiiie of hi!< mulerial vrilncsfces, 

li* hu^ tbai he bu*( used all pos»iUe 

dilir^i 11 u»r adducein^ i' I alw iit 

reaptrct that the pannaU bail- A to jfive 



'f?« SFJ" f^w^Wr 



' of them on 

and ttie v\ 1 

L of three bij 



liivie;&iiii ju 
thn» courts d 
n ' 

b 
as 

Ot 

C.! 

il 




ad'. 

hv. , 

iiW thcst^ond i>i 

Mne the aasyierb 



■ ^t i*,,,..i.i.kj, and a 
i'§ b>r pioveuig" of 
eontinoo lli«» t\yrt 
iune nixt, and or* 

I utdiat lyinei i^ch 



^'^ ^f^ine of ane thcroaand merlca, 
yU of tbem, under tb e paioa 

I Uifit ftluje^iiica Advoeat takes itiiiirunieiil 
I upon the lord Straibuavcr, tlie h>rd Coijif.iiijl 

1 ail- John Cochran, Baly ie, of L^ i 

I Ketmeily, of Ciilzean, and'lla%id D 1 

I brother to BI^Kany, tber entering^ the |»4nuaU 
%vith the lord Bargany* 

l^thJune, 1680. 
Jut run J 
John lord Bargany, 

Indyteil and accused for the eryme of trea* 
fion, sedition aud others mentioned in hit 
diltay, which i^ reconlit in the lunfks of ad* 
jodtnal upon tbe siCxteint of March tai*t ; as 
also indyted and at^cu&cd for that, upon ane of 
other of the dnyes of May, June, July, Aa- 
guul or September, he hearirii^ that his grac 
the late archbJ5»hop of St. Andrew 's wm mur* 
dered, be said that it was w ell or happie, for he 
was a ^oat enemy to tbe caute of God, and 
bis people or thekirkof Chrisf, orsonie such 
words ; lykas he, or f»omc by btscouHitand, or 
whom he r^itihabitcM}, did orfer armes it^ Jame 
Kennedy to goe to the late rebellion, at lea 
he wrcs offered armes in tbe said lord Bar- ' 
gauy'i* h«>use for that effect, 

Penewers — 8tr Georg-e M'Kenzie, of I 
lianght our S'lveraigne lord's Advocat* 

Frvcurtttori^ ut ante, 

Mr. Willwm Hwftilfoun^ Advocat as pro* 
eouiutor h»r the lord Utiivany, prmlnced in 
presence of the sarrh lords, ane at^t of his ma- 
jt^iie^j* priTK' council* vibeiof the tenor fol* 
|otv#*: ** i.dinburgli, ibe tbirtl of j!H»e, lOBO;^ 

♦ ** rhe kniiii « Letter, upon which tbii 
pnicfxjs fs stop|>ed, bears, * That be hud re* 

* ceivetl a puuoii from ttie lonl Hiir^.^env, re* 

* presenting Uis \ irher*a loyalty and suiTerin^i^! 

* aBscMtiu^ his innoc<-orr of th^ crimes he is in* 
^ «l<cted for, and attebini!^ Uoil thereupon, and< 
' his niaJ4'sty itemn unwiltiui^, he, or any ttub* 

* jert should r*M?eive prejudice by loiij^ iuipri* 

* sonmeut, until there u}»pear etident proofs ol 

* their |;;iwh» retpnres him to be liberate, uncfcr' 

* fiurhcietil cuutmn to appvur in onler to trial, 
^ j1 hereafler sufficient piuof&t of bis uuilt be 

* lounif* And that this letter be conununi* 
*" C^ucd lo tbe juitice-couit aud advocate.** 

*2 Wodrow, 153. 

** March 16, 1680. The lord Burjfnny wai. 
both tlje 1st *Uy of ]Vlarcli, and I his i\»y on 
the pannall, and waa, after niueh delnitc, con- 
tinued and sent hack to tbe castle, on pre 
ihal the advocate wanted Bottie of hh malenal 
witiicfcws against him ; as alvi he gave li 
aonic additional articles, anent bisi furniKhinj 
men witli arntes to tbe later rebellion, 

** June 5d. Ai pmy onioeill Uml Bar]E;fa! 
W}|« liberated, fintiin^ cautmn to appear 
calkd uud«r pam of 50|00U mcrki/* 

FofiotttiiMI* 



wbemi 



3 



75] 



33 CHARLES II. Proceedings against Alex. Blair and othtrs, [70 



the lordi of his maji«tie*s privie counciil, in 
obedience to his majcstie's commands, signi- 
fied to them in a letter, under his royall band, 
of the eleventh of May last, gave ordor and 
warrand to tlie governor of the castle of Edin- 




privie counciil that he shall compeir befor the 
lords of counciil whenever they shall call for 
him in ordor to. his try all, as to those cr}'mes 
for which he stands mdyted befor the lords 
commissioners of Justiciary, under tlie pe- 



nalty of fyftie thousand inerks Seotts money Uk 
caice of faly ie. Extract by int'. 

Sic subscribitur, *» WIluam Paterson." 

The lords justice generall, justice clerk and 
commissioners of justiciarie, in resjiect the 
kinff*s Advocat (because of his majestie's letter 
to the counciil and the act of counciil intimat- 
ing the same to ther lordships) does not insist 
against the lord Bargany, therfor deserts the 
dyet simpliciter, wherupon the said lord Bar- 
gany 's procurators above named asked and 
took instruments. 



328. Proceedings upon a Process of Error,* raised against Alex- 
ander Blaiii and others, for the acquittal of James Dick 
and others, indicted for Treason and Rebellion : 33 Charles 
11. A. D. 168 h [Now first printed from the Records of Jus- 
ticiary in Edinburgh.] 

and inviolable practiq of this kingdome, and 
spcciallie be the 61th act 8 parliament kin^ 
James 3rd, It is statut and ordained, that if 
any of our subjects choiscn upon the assyse 
of any criminall persons doth acquyt them bs 
temcraritie, or wiltullie be favours or parti- 
alitic, they shall be put to the trvall of ane 
assyse of twenty five persons, and being con* 
vict thereof, shall be punished efter the formd 
of the auld lawes contained in the book of 
Uogiam Majestatcm, and be the Uth chap. 
1 Book Re^. Majcst. the pain of them that 
comniitts wilfull error upon ane assyse is de- 
claired to be tinscll, and forfaulture of all ther 
cattell and other moveables, to be inbrought to 
tbe king's use, imprisonment be the space of 
ane year and day at the least, and that in all 
tyme coming they shall tyne the benefitt of 
the law and of the land, and shall incurre the 
paine of infaniie, shall never be heard as wit- 
ness in probation or in acquytance (or purga- 
tion) nor to make ane oath befor ane judge nor 
in any other kind of matter : Nevertbelesse it 
is of veritie, that the saids Alexander Dlair^ 
■ Lewes Johnstoun, and the other persons above* 
named, beinijf in ane court of justiciary, liolden 
within the 'j'olhtiith of Edinburgh, u|>on the 
Itith day of ]\lurch hsi by past, by the lorde 
justice clerk and commissioners ot justiciary. 



CoRiA JusTicMRLi, S. D. N. Ucgis tenta in 
Pretorio Burgi de Edinburgh, decimo oc- 
tavo die mensis Julij, 1681, per honora- 
biles viros llitchardum Maitland de Dud- 
don, Justiciarifc Clericum, Robertum Do- 
mmum de Nairn, Dominos Jacobum Fou- 
lis de Colingtoun, Da\idem Balfour de 
Forret, rt Davidem Falconar de Newtoun, 
f 'Ommlssionarios Justiciaritc dictij S. D. N . 
llegis. 

Curia legitime affirmata. 
Intran, 

Alfxandfr B!air^ merchand, 

J^rucs Johnstoun y merchant. 

Thomas Nohfe, merchant. 

Captain John liinnhic. 

Alex. Hot hu elf, of Glencorss. 

Jo met Baillic, merchant. 

Mr. Andrew Temple^ of Ravilrige. 

Jowts liaird, of Suucktounhall. 

Hnbat Sandicfand^t merchand. 

Hobcrt Elliot Wiifht. 

A/cr. Ilenrj/sout of Nowchavcn. 

/// mts G ray, < >l* W arics! oun . 

John Dunuitj!, of Han'iestoun. 

InDYTED and accused, that whcr, notwith- 
standing be the lawes and acts of parliament 

■ ■ ■■ ■ • 

* "C)fold, before inclosing the jury, the 
Lord Ailvwatc or prosecutor used to protest 
for an Assi/c of Error at^aiust the Inquesf, if 
they assoil/icd. [Sec an iustance of such a 
Protest iu this Collection, vol. 10, p. 790. 
Sec, also, vol. 10, p. 855.] This Great Assize, 
as it was called, consisted of twenty five noble 
persons, though alWrwards, in practice, landed 
men were sastained : [Act of Sederunt, 7th 
June, 1591] who were to inquire, if the jurors 
were Gfiiilty of irilful error, in their verdict ; 
and the DiuuihaieQt was escheat of moveabla;. 



infamy, and one year's imprisonment. [Iteg. 
Maj. I. 1, c. 14, ratified purl. 1475, c. 63.1 
But the pannel, who was ac({uitted, remained 
so, and couUl not be brought upon a new trial. 
Assizes of error were justly complained of as a 
grievance at the revolution, and are now obso- 
lete. By such assizes, persons who attended 
trials as jurors, were greatly put in fear of beioff 
punished, instead of being rewarded tor their 
trouble, and the sulijects were unsecure in their 
lives and liberties, by the prosecutors, in many 
casesi threatning the juiy with an Asuze. St 




^rcctis 0f Error, 

dioi^n. recfAveil* sworne mid atliiittteil u|i«]i 
%h' f Willtani Dick, in Liintrk, Janie* 

I' ' jlm HunrLIe ihcr^ Tbo. Hinsful- 

wotHl rljgr, llu((li fSouienatU, o( Urnil*, Jaiiitrs 



Mrror Itihty " f thciiaunelby their ver* 

dtct; and, i i^ lhi^)»c a;;!>ize€, sucb 

fears arc fv.. ,,v... au«l people* riglitsi and 
liberties are iI^Uverc<l fVmti luch danger." 
Lombmrrs ** Ponu uf I'll »ce?!s More the Court 
of Juaiciary in Scotbnd/^ &cv. p. Ud| edition 
0^1752. 

In tbe " Acts and Orders of the Meeting' of 
the Eslftte* of tbe King^dom of 8t'otlaml," 
ActlStb, April 13, 1689, entitted, ** The arti- 
cle of erifrancrg repre*«;cnled liy Ibe vetiit*^** 
of ^ iSemlnnd, to tbu* king's most 

ex . to be redre«"jL*<J to parUa- 

tnent, uu^ .>m repR'jsentalioti is» '* I hit Assizes 
of Error are a irrievance, noil ihni juricb be 
considered b- ■ ' • ' " t Idonottind 

way pavhdMii ist ifie Assise 

of*Error, s<» ii... .... ....,......,.i ^jj^riirs to rest 

upon desuetude corroborated hy that rej>ro- 
traition. 

*• The Asjiize/' ms M^Kenzie (Criminals 
part 2, tit. «3, fee 5,) ** is either an ordinary, 
or ^eat aasize. The g^reat assize is thdt 
^thereby an ordinary is tried, if they do wrorij*", 
Mid I Itiid aocne foundation for tbir terms* 

• par la cuslume de LaDg^uinais, act 4, et deia 

• llochaJ, art. 1, la grand Assise est dtisenpshal, 

* la petit du juge prevestal/ An «irdinary 
•4eii*e wfe» lo consist of tiAeen pei'snns, but 
tbev ntivr cooaist of more, or fewer, if the 
ntinil>er fie unequal; and thus, the penult of 
Juiiij 101 4, Ronald was Irird, and CHntict for 
«]iim]cmbenng' Donaldson, by an hs^'itl*^ of thir- 
leen peraons. The reniion why the assize 
tnust be imc«|ua1 in number, is, lest by equality 
of voles, affairs be not terminated and broug-ht 
to a sjieedy issue : for which cause likewise, 
lib. 2. iiig. Maj. cap. 5, and by the 87th act 
a p*rL king James l» it b appointed, * That 

* iiHfiter» flibouid be apjjointed in an unequal 
^ iinmber,* and yet I lind, that in the civil 
brieve of ri;fhl, an assize should consist of 
twelve sworn men.*' It is observaWe, that 
II J' ' »ys^ *♦ As the defender may «lee!ine 
*h* be any reason tbr it, so they are 
«i/vuuj , jiur Hi it presumable, that any will be 
«o improuK to eondetnn a man to ilie, ht plc*a.se 
oth. ,^ M. <ii> %. h.^ I. 'n^sumptton our law \l\\u% 
•o I i*^i£i*st fHifidenm un* 
JUM A^ to tto A»^izt' ol\Ermr, 

I n tt»id» (iee^ * A Guide to juries 

iM*ttiu^ iVniii their antiquity power and duty 
from f^^ rnmmon l^nw nnd St^tut^'x/ pub- 
lic I ^ ^, and ibt' - -r cit4*-d*) 
thu >ii ubvfh 1 lies not 
in ^Jf^O ^i^^ ^ Iklseter- 
di< i J at the conviei^H iruilt 
litter Toiinti riMiu Willi at leusi 
jurors (viz. wrtb the Iwehe of lb- 
iind with at the fewest twelve ui ii>t j^r^uu 
inqu«at) but ai Ua^\kiQi tays (Pl«ai of the 



1681. [79 

^l^Qubanie, of Scorieholme, WHlimm Park* 
fowar, of Lairiml, John llutehteson^ of Har 
lawe, Luke Grciusheills, of Uugfscaatle, 
othei*s, nottoriouslie and manih^tlie guilty 

Crown, Book 1, chapter 72, seci. 5)» ♦' it 
to be certain, that po one ii liable to aoy p( 
cution whatsoever, iu respect of any ^^crdii 
(pren by him iu a criminoi matter, either U(h>i|i 
a grand or petit jnry. For since the safety of^ 
the innocent, and punti>hment of the guilty^ 
doth so much depend upon tbe fair and upright 
proceeding: of jurors, it is of the utmost eotise* 
quenci'i (hat I bey should be as little as possibly 
under I he icBuence of any passion whatsoever* 
And therefore, U^t ihey e'lmuld be bia^^ed witll 
I he f i ; V ^sed by a v isjtatious su itt 

for Ji J to their conscience, (th€ 

danger ui ^vduu imght easily be insinuatedi 
w hrre poirerful men are warmly enj^Mj^^ed ifi 
a c:msc, thoroughly prepossessed of the Justice 
of the side which they esrouse) the law will 
not leave any possibifity for a prosecution of 
this kind. 

^^ It IS true indeed, the jurors were for^nerl^f 
somvtiuH's cjueslioned in the Htur-rh amber, for 
their pailiahly in dnding a manifest oHcndof 
not guilty i kut this was always thoiighi a 
very j^eat grievance ; and surely aj the law is 
iiovv itctlled by Bnshers case, there is no kind 
of proceeding ag^aiti&t jurors in respect of their 
verdicts in criminal matters allowed of at thf# 
day. As to the objection, that an attaint lie*. 
against a jury lor a latse verdict *' iu a civil 
*■ cause,* and that there is as much reason to 
allow of it in a crimii»al one, it may be an- 
swered, that in an aUaint, a man's properly it 
only bn»u>jVil into question a second time, and 
not [its liberty or life ; and also it may be ge- 
neruUy presumed, that a jury is likely to bet 
equally inliuenced with the tear of an attaint 
from either of the conteinhng parties, whereas 
if any ^ch examinations ot their proceedinga 
were allowed iu criminal causes they might lid 
often in ^reat danger of one sidci by incurring 
the resentment ol a powerful prosecutor, and 
provoking liim to call tlieir conduct mtoques* 
tion fur their sup|K)ied partiality ; but they 
could have iittle to fear from an injured crimi« 
nal who \vould seldom be in ciroumstaoccs to 
niike his protiecution formidable.'* 

8o, too, ftlr. Barrin^^ton (t>b«. on Westntiu- 
ster the Ist,) ^ays, ** It is to be observed, thai 
attaint lay only in civil cases, either by th« 
cujiiinoii f»w or by this statute. The rea^u 
of which seems to have been grounded ii\*on 
the strong presninptioh. rliai no jury wouUi 
londetnn H eriuiuial <> tbe evidence* 

and that it would be < a wiih princi* 

pics of liberty* to pcijuit ili.* trn'vri, when il 
might intend oppresjijon, to cs^H *n 'pitfiion* 
verdict ofncqmUid. liifi foril' >mo» 

when a crime ih prosocutcd by ■' ' re* 

rwon, and mu in indict* 
I uf the crown, thj»t thera 
I', ir* tiK-^ritwuvii u? u grand jury t* find Ut« 
biU/' 




79] 33 CHARLES If. Proceedingi against Aiex. BMr and othrs, [80 

the cry mea of high treason and rebellion, and wer dcfate at Dutliwel -bridi^, as the said 
who wherindytea and accused for ryseing and i dittay produced be his niajestie's Advocatas per- 
joyning-in amies with the blood ie and sacra- j sewer therof, against the tbrsaids|>erson8abo?e 
Jegious murderers of tlie late archliishop of St. [ Daiiicd, indyted, and accused judiciallio,therbyy 
Andrews, under the command of Robert Ham- i of the crymes forsaids therin contained, in 
iltoun, brottier to the laird of Prestoune, and \ presence of the lords of justiciary i^ittand in 
most treasonablie burning his m:ncstie*8 lawes ' judgement, in itself at length nroiiorts ; «f\er 
and acts of ]>arliament, at the mafcat croce of! reading of the whilk dittiiy, the lords justice 
Rutlierc^Ien, upon the 29th day of May, 1679, ! clerk and commissionera of justiciary being 
procUiiming and publishing acts of ther owne j ryplie, and at lenth adwised thcrwith, ifiind the 
coy ning, drowning oat bonefyre8,sett on in com- samen relevant, and remitteil the same to the 
memoratiou of his majestie's hap^iie restaura- knowledge of the persons above named as ane 
tion to the royall gOTernmrntof thiskin^dome, assyse thereto, etler pronuucing of the whilk 
and for assaulting a |)artie of his majestic*8 intcrloquitor, the saids Alexander Blair, Lewes 
forces at Loudounhill, under the command of Jolinstoun,and the other persons above named. 



the laird of Claverhouse, upon the day 

of June, thereller, killing and Inurdering seve- 
ralls of them, and marching to the tonn of 
Gkisgowc, upon the day of the same 

moneth, :ind assauhing and attactqing a partie 
of his majestie's forces therin, under the com- 
mand of the lord Hosse and laird of Claver- 
house, and for marching up and down the 
countrey tlirowe the shyrcs of Lancrk, Aire, 
ilcnfrewe, Dunbartonn, and others, in warlike 
and military poustcr, with ther accomplices, to 
tlie number of ten or twelve tliousaud, robbing 
and pilagcing his majestie's gotnl subjects, 
quartering uiK>n and oppressing them, printing 
and publishing declarations and proclamations, 
bearuig the treasonal>le grounds of ther rebel- 
lion, modelling and furmeiug themselves into 
troups, companys, and regiments, nameingand 
appoynting commanders and officers over them, 
healing parlies bo drums, sending commis- 
sioners to the general! of his majestie's forces, 
requyreing the subvention of the government 
of the church, and continuoing in ther said 
desperat and avowed rebellion till the 122nd 
day oi'thc said moneth of Jime, 1679, that they 

8eo, also, sir Thomas Smith's Commonwealth 
of Englaiid, book 3, eliap. y, • What remedie 
is, if sentence bee thought unjustly given.' By 
a passage in Wodrow there is reason to think 
that Charles the Second designed to publish this 
trial together with some othi-rs ; but whether 
such publication was ever made I know not. 
Tlie nassage is as follows : 

" In March this year, a letter comes down 
from the king to the council, and one of the 
sameiniprt to the lonis of justiciary, ordering 
extraets to he made out of the registers, of the 
trials of such as were condemned for rebellion. 
The letter will best speak for itself. 

'* C. R, 

" Right trusty, Sec, Wherefts we have 
thought fit to appoint extracts to be made out 
of the books of adjournal of our justice- court, 
of the trials of some of the most notorious reliels, 
as also of the trial of John Niven, and those 
persons found guilty by a great Assize of 
Error, and likewise'of all papers whatsomever 
relating to the trial of Archibald late carl of 
Argyle, and the process of forfeiture led against 
Uie end the sanoe may be digested and 



being called upon, receaved, sworne and ad« 
uiitted upon the assyse of the fierscns abure 
named fbrtr^all ofther guiltiness oti he crymes 
above specitit, his majesty's adiocat for ve- 
rification and clearing to mem of the forsaids 
persons ther guiltiness, adduced the witnessce 
efter named, viz. againest the said William 
Dick, (Javin Mont, in Lanerk, wbode|)ons that 
he sawc the said William Dick in Lanerk with 
therebells in armes, in or about Glasgowe, 
betwixt the first and twentie second days of 
June, 1679, an<l that he knew him particularliey 
as also ^Irchibald llinselwood, in Lanerk, who 
depons, that he sawe the said William D^ 
ryding aut of the totm of Lancrk, with annes, 
tde tymethe rehelis wer in armes in the West, 
and likeways William Heaste, in Lanerk, who 
depons, that he sawe the said William Dick on 
horseback with a sword al>out him ryding with 
the rebells, and James Whytt, in Lanerk, who 
depons he sawe the said William Dick, in 
armes, in his returnefrom Both well -bridge, the 
day the rebells wer defate ther, and for provmg 
the saids Jume^ Park's guiltiness, adduced the 
said Gavin Mont, who de|ion8 he sawe the said 



methodized by Charles Hanses of Gray's Inn, 
esq. and publlbhed tor the satisfaction of oar 
good tiuhjeets : we have hereby thought fit, lo ' 
authorize and ref|uire you to transmit to oar 
secretary of state, to be delivered to the said 
Charles true and exact copies of all proclaroa* 
tions, letters, examinaiions, confessions, trials^ 
indictments, declarations, and others, since tbm 
decrease ot our royal "randlather kin<r James 6, 
of blessed memory , thai relate to public matters, 
our prerogative, the former and lale rebellions, 
the rebels thiir suppressiim or c4iption, the 
security of the pea(% HliKher in church or 
state, or the ad ancement ot the interest of our 
bishops and their ri>gular cler^^y in that our 
ancient kingdom, and of all ititornntions, rela- 
tions, or petitions, sent to our |>i ivy councfl 
fnMU time to time, about any thing of this 
nature, as convrnticli*s, insurret^titius, ins«>len- 
cies, or cruelties of faiiaticks, and such other 
pa{H.Tsof any public concern, uliich youjudgv 
most proper to Ih* luiMishcd, for the satisffac- 
tion of all good suhjtrcts ; which are to he al« 
tested under the hand of our chancellor. Gireq^ 
at Whitehall, February 21, &c. 

(< MlDDIXTOX.** 







>r jQoe, 1679, and 
\ SHiilIer, in fla- 



|« twcuUfi sccoii.l 

ibe touu ot li.iiiiii :ii 

Druincluge auil tI ;e, 

*n<) ".".-♦ •1..^ ,...;,.^, /. Wipi. ♦of 

£4 'iie'a ailvocale ai!diKiti 

Juij 1 n .iiiilioim, ^vho^^e- 

Uuns^ ii p , of Scorie* 

pime, n , at Uamil- 

|M1 nntl lliifuikuun^mtur, betwixt Iho iirMt 
P mrenh' tfffmd <1nyt ? nf June, 107 9, aut! 

that he ' >e with tbian 

amt \V il .'^TT, ^*-bA fit*. 

pcmii, th4t hi: SilWu tiiu- 

m anncii wttli the ril 

JtiiiCf lo70, *uid Ihe «iiiii Jmij* v^iumiM^ 
fiko iif7t*ou9, llial he «a^« the lOid Jamr^ 
VOL. XL 



Jftmct Park, in Lunerk, in ftrmes with the re- 
belht betwiKt ihc (irijtnad tn«rilic sen>niltlaye3 
«f Juiuv 16?y, AiiiJ that lie kuc^ve hitn (mrlJ* 
Cttbrly, and thr ^iil WiHiAin Hea&tic, who 
fiepotist he sawe ihc aaid James Fork with the 
rcU'JU in af t ' , 1679* ^vithin 

the louii of ' ;ivH \Vil|ia»ri 

Wauteito , >t.:ij u«-i>onjB, Uiat he 

Siiwe tK l^ark in company with 

HP 

the :■ 1 J'^.:. .:■ ; ;... . ,, ,..,,. _ .■_,.._. 

adtlncoci the said Guvin Mont^ vihodepons he 
iMwe the «atd John Biuicte, in Hrmes with the 
v^betlSi htftHixl the tirsi and IntTilie wcotid 
d»y*«*»* *^""^7 1fi79, and thrtt he JcDev*chim 
pni • 'ie, who 

dc[ ickle, m 

•rnit's ^Hlii Ibc rthclii* njilno [he touii of L«i- 
nerk, id Juiic^ 1679, and Ukewnys the said 
iirchibiild Hins^i-lwood, who depmis tlmt be 
Wkvrc the snid John Hun':klc ];;oiiig fruui (he 
t<Hr- ' ' ' ^viih arnuSi the t}itie forsuidf 

All ,4l Thomas 11 iuseiuood^ ad- 

duce,. ,;._ ...... V, jlliam iioastie» who dqKKifi, 

lie sttwethe snid 'l'lto»0*is HiuseUvodif, in armew 
With thi^ r^ltt'lliif within thetouiiof Lniirrk, in 
June 1679, and the mid Giivin j\Ioiit, who de- 
^ii:i, thai he sawc the kaid ThoniJis Hin!fcl< 
I ill arm*:» w iih the rcMK and knewe hint 
iicnlarlti^ ; atid al^o Kobeit ]VI*ttbie, in 
ocrk, who de]>ons, he gawe the 5aid Tho- 
mt^s IijiiSL7iwo<Ki \ro^f uloiigst With the rehoUs 
wad a biatf iu his baiidf and likewa^esjohn 
Lindsay, «lioc;- maker in Laoetki who dep^jns 
he jawe the Kaid Thomas Hiuselwoiid in eoni- 
j>ttny wiili the rebi'Us, with a swoi'd, and 
ligaincst the said Hugfh JSon»in*rTille of Uiir- 
rata, his inajesiie's advoealk* addurfnl Jaiiiea 
TikI in liamiUtKiii, wh" .1. i^.n^ that he sawe 
the sfiid llug^li Sotum ah tymas in 

arini-!* with tlir il- hells Ir : 6rstof June 

and the twentie seeond day thereof the forsaid 
car, and that he knewe bioi iiarticutarhe, and 
cr Cleitandj in Laneik, who depous, he 
p the naid thi^h ^HmuTvail), cf Urrats, in 
(e* with ilie lebtlla, at L4ii\erk, Hamiltoun, 
llamiltouii-miiir, b<?twixt the first and 



A. D. 168I 



rss 



M*(iiiharneT in armei, wiUt the rebels, withfn 
thelonii of Harnihoun* hctwjxt the f 1} 

Di'wiiK-loife, and the defate at Coth\^ 
ajid a;,'^»ine!it >Vilhain Pirk, fewer, ci ljiialad,i 
hin miu^*$tie's advoout adituceil Johu AHaTi, itfJ 
I* M), wUo ^iepont?** he s:»wo Williiim! 

' I, of Lairfiid, in ni"me« with tlie re- 

lrMi>, V. iiiiin the Laun of Ilamiitotvn, Uol^i'Cij 
8cot, if) nuniiltoun« who depons he bAwc the 
^!'''' Udliam Park, severall tymts lu t-i)jii«-J 
with the rt^belfa, at tlie dqH>UL!)t'tf| 
A\ betwixt the first of June and tin 
twentie-secoud day thenHtf, ami Johti lUhA 
hertson, in Earnocb, %*ha dtpoik* he saw t* tlt^S 
said VViltiiiut Park, fcwnr, ofLairfad, in urine»1 
with the rcbella, in llamtUoun-Muir, in June*i 
1679, and ae^ineit John llulchiesoni <»t Hare- 1 
Inwe, adduced James TmJ, in llarnihotin, wbcil 
depons he sawe the i^aid John lliitchrtfsou se«f 
vcrall tvnies in ajuies with the rebel Is. at Ila»l 



in Lan* (U, who dt^pori^ he nawe thi< Ftiid John] 
Hutehie&'on, in anncs with the rrhedjt^ i^i 
Joiu\ 1670, the tyiTve of the late rebellion, audi 
Archihdld liin^^lwQod, in Lanark* whaj 
depoDS he suwe the wud John HutcliieiioAl 
ryditig with amies from the west home- J 
wurde, the tyme th<p rebells wcr in nrmesj 
and against ih^ «aid Lnke Greinshdtis, htl* 
mjijrstie'fi advocat, adduced the said CafiU 
Mount, in Lam^rk, who depon*; he sawe hltu Iff 
armcs with the rebelU^ and kuevie hint parti- j 
cularlie; and Andrew Uobertson, in BHshiir^^ 
who depons be sawe the said Lnkc Gretnsbeill^l 
in armes, with two tronpa ol* the nbtUsj a4J 
the Hhawfdieadmttir, on Sundny befor the bieak 
at Botbwel-bridg^e; The w bilk wifnesses abovi 
named, wer receavcd, sv^n " ^I'lrfr^d and ad- 
mitted, in prc!>cnce of th< i^uw com- 1 
pleaned upon, as?<y!iers rec- _ ■} sworue ial 
the said cause for Iryali of the persons above | 
named, thtr guiltiia&b of the rryme.s alor* 
Bpecifit, wlijcli was moat clear and manifestpj 
ther bcMng" not only one but three and four wit* 
uesses deponeing pogitive therU|M}n, in respect | 
wberof his majestie** nilvocate then protected ] 
for wilful I error, atrainest them in case they 
should acquytt or cleuf^ the dttfenders abf}v« 
1 d of I he crymes I ^ ' ' r 
\' ; yet true it i 
;in(iiie named lieinc" * ' juuvrti mhih of j 
eourt, end inclosi-d iii«sy4ie-hoHNej 
and ha%i»ir '-'"•''* 'v-' »"-"> *^"Pi 
poyntsof tl • 
ther know 11,. .... 
tered at^'atne m court 4: of j 
the eleiir vcrificalion i i>er-» j 
j»on» alMive mimed« llier jj^udht ntfeof the cry met 1 
nlwve tipecitH*, led and adilnrrd in thrr pre* 
s^nce, be the mouth and jr T 
the ««:^id Ji»m<*^ Baird, ^d 

U'd and ehoibcn bt' tlitui, ii; vii 
, wilfuU be favour, paitiahtie, ' 
i lull ii)eaiieft,ii8lolvied tho 
kmu l^k, fttid the oth«t 



33 CHARLES II. ProctedmgB again$t Alex. JB/tftr and others, [S% 

Robert Sandilands, merchant. 

Robert Eliot Wright. 

Alexander Henruson, of Newba?eD. 

Jamet Graiff of WariestouD. 

John Dundatj of Harriestouo. 

Indyted and accased for the crime of wilfid 
error ut in die preccdente. 

James Buird^ of Sauchtounhall, who waft 
chancellor to the said assyae, declaires, tbal 
ther came but aboni sex paonalls to his rote, 
and he fand them guilty according to his know- 
ledge. 

His Majettie's Adoocaie dedaires, he in 



83] 

persons abore named, though they wer bound 
in lawc, b^ oath, and conscience, to have judg- 
ed according to the depositions of the witnesses 
and probation adduced be his roajestie's advo- 
cat, receaved, sirome and admitted in ther 
owne presence, which is a most clear, manifest 
and convincing probation of the persons above 
named, and ilk ane of them tber guiltines oi 
the crymes above specitit. In doemg wberof, 
the persons above complained npon, have most 
wickedKe committed and incuTRd motft wilful, 
manifest, partiall, perjorioos, at least temera- 
rious error, nyn several! tymes againest the 
light of thee own oonsidences, and against the 
most clear prot>ation that ever was or cane be 
adduced in any caose, civill or crimmall, in 
hye contempt of his majestic, and his autho- 
ritie, the wliilk being suae found be ane assyse, 
^ey and ilk ane of them ought to be punished 
■IB tber persons and goods, with the paines 
-above wnniten, which ought to be inflicted 
upon them in most examplarie maner to the 
terror of others, to commit the l^e herefler. 

Pencwcr.— Sir George M'Kenzie,* of Rose- 
haugh, our Soi'ereigne Lord's Advocat. 

Procuratort in Defence, — Sir George Lock- 
^art, sir John Cunningham. 

The lords in regard ther was not a compe- 
tent number of assy sen present, continued the 
dyettill Monday next, and ordaines the pau- 
nulls to find caution for their appsirance at 
that dyet, and the assysers present wer cited, 
apud acta to attend ilk persoQ| under the paine 
of two liundreth merks. 

CuRif Justiciars, S. D. N. Regis tenta in 
Pnetorio Burgi de Edinbuigh, 25 die 
uiensis Julii, 1681, per honorabiles viros 
Kitohardum l^Iidtlaud deDuddop Justi- 
ciar] urn Clericum, Dominos Jacolium 
Foulis dc Colintonn, Davidem Balfour de 
Forret, Davidem Fdconer de Newtoun, et 
Rogerum Hoge de Ilarcarssy Commis- 
fiionarios Justiciarice dictii S. D. N. U(^. 

Curia legitime affirmata. 

Intranf 

Alexander Blair, merchant. 
Leu-cs Johnstoun, merchant* 
Thomas Noble, ino'chant. 
Captain John Binning,' 
Alexander Bothwell,o£Gkncom^ 
James Bailifie, merchant. 
Mr. Andrew Temple, of Ravilrige. 
James Baird, of Saucbtounhall. 



* lu sir G. N«Kenzie's treatise on the Cri- 
minal Law of Scotland, upon several occAnions 
assizere are mentioned, slightingly, if not con- 
teropUiousJy ; and the same work exhibits a 
atrong bias in the mind of the author, in ta- 
Tour of the authority and power of judges, 
rather tlian those of assysers. Of his treat- 
Aent of the latter, see two mstanoes in this 
CoUwIioUi vol. 8, 8«3| Tol. 10» p. 9T1« and 986. 



primo loco, affainst Alexander Blair, AleaKander 
Bothwel, John Binning, James Bailtie, Mr. 
Andrew Temple, and John Ihindas, of fiar^ 
viestoun, and James Gray, of Wariestoun. 

Sir Ge&rge Lockhart, for the pannalls aU 
leadges, that they cannot he put to the know^ 
ledge of ane assyse becaoao the process itidf 
being a prooess of error, and that the pamalli 
were * temere jurantes super assisam,' as it » 
extraordinar and vrithont any precedent npoa 
record, so it is only foundit upon the 63 act, 6 
iMurliaiuent king James S, and theifo canm* 
be farder sustained then in the precise termci 
and cases mentioned in that act of parliament ( 
and the expresse case stated in that act b 
only wher mdyted persons are showen befhr 
the assyse in the accusation of a trespassor 
nottoraiid manifestknowledge of the trespassor 
being bade it happins the persons that passe tm 
the assyse wiUnUie be favours or partial meanek 
to acqu^tt, that such assysers neing convMA 
de temerario juroj/iento may be persewed as 
guilty of error, but that act of parliament doe9 
not in the lest conseriie the case of these paa^ 
nails ; in respect it cannot be subsumed thai 
the persons iudyted wer showen and prodooed 
to them, the pannals then called befor the fi^ 
syse not being sisted, but the prooedor ody 
against them as absents which albeit warrand* 
ed by the late act of parliament, in suae fart 
as concerns the legalitie of that procedor •• 
to any sentence, cooderoniiigthem, orfcr&ul* 
ture, or contiscation of ther estates, yet doea H 
not at all concerne the case of the act of par* 
liament king James 3, which m tlie clear aisj 
distinct woras therof, proceeds and reqnyre$ 
that the persons indytca should be shpiren and 
prodnceif, and by the common principles of 
law in materia criminale, ther cane be no ex« 
tention of lawcsand acts of parliament ' de casa 

* iu casum etiam ex paritate et identitate ra- 

* tiouis,' although ther is no paritie or identitip 
in the case wher pannalls are absent, and wher 
they are present ; in respect wher pannalls ar» 
present, assizers have oportunitysof mora&U^ 
more evident, and convincing convictions, by 
the cariage, answers and composure, and inte- 
rogations, which in ther own presence thew 
may hear made, or may make, to the pannalls 
themselves, and therfor this case being of so 
high and extraordinary importance as to the 
lives and fortouns of his miyestie^s 
and whcmpon all assyzen may be 



«6] 



ijpcw « Pr4fC€99 of Errc^ 



A«D. V6tf]* 



[86 



question by great nmyvie%, ftnd these great 
assyses dra^ven in qu<?slion agAitie beioiT a 
imrtinnierit; llji* prucoe uf crmr not be\u\r in 
ibe leifues of the act of |mrliainc:ut kin^'' Jiuucs 
3, wbtuujHiu it Ls foumJit, cannot be susuitiieiJ, 
or the pannnls put to the kaovvletlge of uiie 
Bsty%c tlierujH)!!. 

2, Although the c«se wer in lite exprcsse 
femics of the act of parliament, tiiat the pa«- 
nails hado bein sisted luid produced, the con* 
frair wherof ia ooitor arid known to tlie lordis of 
jtisticiarie^ ^el no pcTbon cau bo fH'rse^red as 
guilik of perjurie, and couimitting^ wilfull 
error, ei^cept wlisr the? are relevant aitd special! 
quali^cali4m8 cofidesceaded upon and offered 
lo be proren, that the assy sera did assolyic the 
trespassors be favour or partial itie, and the 
reaaoD t» most evident, because the assysc bein^ 
hj the lawcs and inviolable practice of this 
fijnmlom, the sole and absolute judges of the 
|ifoQation according as they shall he convinced 
tberaf, iQ ther conscieooes, and who in the ua* 
tufe of their office and duty^ ha%e it in Lher 

?ower to con«$ider *■ momcutuni probationes 
<}liantum iidei e^it te^tibus adhibenduin,' it is 
noway es sufficient to persewe ane assjse ' super 
* hoc aolo medio,' thai tber was a probation 
adduced, hui it most be made appt ir that the 
ijisyse hade no re^aird to the liaid }>rohation 
II Don other extrinsic grounds and consideration 
Of parltaliUe and favour, such as brybrie, cor- 
ruption «nd other qualitlcatioiiK of that kind, 
but if no iiuch favour^ qualifications or g'vatili* 
CAtiouscane be coodescendit on and quahlitil^ so 
as iLe assyse have proceefht upon the sinjjjle 



ric for principles paasen for a christian duty and 
h«*roic devotion, holU in this and our n«;i^hboiir 
nati^m, uhichas it mnkestliedebateinir idiliese 
two [• I ' ' . unnccc4J>ary, t^ \ 

mall' » clear* yet foi . 

sako, Ins iiuijout-h dtlvocat answers: 

Tothetin$t the act is op poned, i I 

who arc guilty '^' ' " - -ojuramcui.'^.^.t.^i.i^i 
distinclion) tol • 1^ vihich if it should 

hohl inanyca-.-, il much morr hold In 

treason, and against persons who ar v 

as tbe\ dare not appcir, and ihojn y 

consider what wise men our lawyers had ijcm, 
if they hade punished these who hade a.vsolytd 
a man for petiie theitt, or mutilation, and yet 
would liave allowed inipunltie to oppiu Rbclls 

{►erststing iu retwHiou, nor does tlie words 
bundit upon in the act of purliament any \^ay 
weaken tiie tybell (those words shoucn to ibo 
aasyse) meaning only that wher pcnKHJS arc 
designed and spccJfieil to the assyse in a ly bcIT, 
and not vi tier tlie iKMlies lov pruducetl, for 1 may 
show e a man to be a rebeU, and ^et not showe 
hm persOD to be at the hare, and it is verie 
eftraing to thiidc that rcbells either to he foHUult 
in absence or efter death, or if the la we should 
yel otxlatne other })erson8 to be forlault m ab- 
sence (as probahlie they sbortUe will) ther being 
greater piohabiliiie of assoiyeing these be par- 
liahtie then any others, because of the identitie 
of priuciplesi law should not have protidcd a 
remetly wtier ther was greatest temptatiou and 
hazard, 

'id. The act of parliament ordaining persont 
to be forfjulied in absencei appoyuts the pro- 



oonviction of ther onn reason and consciences, i bntioti to be led againiit them as if they wer 
no such procedor cane fall under the act of •■-^—•^ '—» *u««*\.- .i.,.„:-, ..„ ,u. *:.,.>#.«.* *^ k«. 
]»arharoent to ibund against thein ane process 
of error, and that lliey are * temcre juraute« 
* fuper oMisam/ 

Hts Mmeniics Advocate replies lo the firii, 
That the law having forsein the great arbie- 
trariencs and villainies that might be com- 
mitted by cleogiojf persons guilty, wherby 
not only tlieprmcipUs of govcrnnieut but of 
human socictie would be disoKcd, in re*(i/ecl 
that the grt^a-test malefactors might exfieot 
iuipunitie, r.htrcby not only government but all 
focuritie wouhl be cast louse, and every privut 
omn luive power to reuiitt and indVinaific 
crymes, though never so great and horrid, 
they therfor made this excellent and clear law 
which tloes very deartie ordaine all ' tern ere 
*yuraiit«s super assisaDi^ to be puuisbed with- 
out distinction, and which act could never be 
put in execution in a case of greater moment 
then is the aK*olyeing of nyn oppin and nolto- 
rious traitors, who hade ubsolutehe disowned 
tJhe king, declaircd him a tyrrau, and burnt 
&ts lawes, nor in a case so clcarlie proven, the 
pro^tJan being an to all the tiyn, most clear atid 
ooovbceifig, and the pari i«*>< a^^nylieil haviug 
not only b^m titer to the kuov^ledl^e of wholl 
^rrei and oountrcys, and who durst not com- 
ir wheo cited but arc vei rvding in nartics 
^bnatming nnd murderuig tue king's uoncstt 
■id Uf »il 8iil{|icla, nor in a tytne wlmrio perjo- 



pi t*btnt, and therfor U»er is no distinction to be 
made but Jhliant jurin^ the lawe makes lliem 
to be present, nor does the reason of difference 
condt^cendit on militat any waves in this casc^ 
for tile assyse are not to consider what might 
have beiu said if they hade bein present, but 
are to proceed * secundum allegata it probata/ 
aud theHbrif the probation l>eiug incontraverted 
(as iu ibis case it was) they should have eou* 
demnetl, aud if the pannalls hade any thing to 
%^y for tliemselves sibi imputent^ that did not 
com pet r l>ei}ig citexl, and they may htfve a re* 
medie if they Uiereller compeir and ofler them- 
selves to a tryall. 

To the second the act of parliament lyi 
opponed bearing that persons assolycj ug nilif] 
JMstlie are to be accused, not only of per- ' 
verse and partiall assolycing, but ot * temere 
' jurantes super aasisam/ aud the taw could 
not distinguish whither men did by par- 
tialitie or wiifulnoss assolyie, or if they as- 
solyied only rashlie by error for utalice and dof | 
signe, being latent acts of the miud, the Iaw0n 
could not know them but by tlie etiect, for aue 
assyser may be of those peruitious princijde$ 
that thinks Bothwelbridge was no rebellion; 
and yet no iu:in knevve it but God Almighty^ 
and tliertbre the law has tixed upon most cleac 
grounds which is to know the cauae by the elW* 
iect, nor cane ther be any other pt' 
fiilneft and partialttie ii' it w«r to be <;f i 



U 



87.1 



33 CHARLES II. Proceedings against AU». Biair and others, [8S 



on and proven, then that efter a clear and con- 
▼inceing probation was led of the guilt they as- 
solyied, and this is the same probation tliat 
could 1)0 led of 130 witnesses wer led, for in the 
c(»nstruction of lawe, he does wilfullie assolyie 
"Who assulyics contrair to probation, that the 
)awe allowes, and the probation of two or three 
witnesses in a palpable matter that falls under 
sense, such as I>eingin amies with the retells, 
is as coRvinceinjr a ]>rubation as if 150 did de- 
pone, and if this condescension wer requisit, 
this law wouifl be absolutlie overturned, elludit 
and made useless, since it will be impossible 
for the king to prove partialitie and wilfulnes 
otherwayes then ex re ipsa, so that this inter- 
pretation being inconsistent witli the designc of 
the luwe, and the securitie of the common 
w&hh, this sense cannot at all be sustained or 
fastened upon it, for that wer not to interpret a 
lawe, but to abrogat it. 

Sir John Cunningfiame duplyes, Tliat the 
punishment which is to he irrogat in case the 
pannalU be found guilty, l>eiug no lesse then 



viz. 1604 and 1635, which took no eflect, nor 
was the assyse put to ane assyse. 

2d. The act of parliament 1669, which flip- 
poynted probation to be adduced in presedca 
of ane assyse in absence of a traitor, in crymetf 
of treason, cannot be extendit to comprehend 
the case of ane assyse of error, for as thtf 
cr}'me of error is altogitlier contradistinct from 
the crimes mentioned in that act of parliament,' 
which was the only subject of the parliament's 
consideration at that time, so no law cane im- 
port the punishment of error ; but tbe act 
foundit upon in the pro|>osition mider which 
the pancalls fall not as aforsaid, nor in so great 
and important cases to the loidges whichSawa 
equiparats to ther lyff, must con5e(|nentialI in- 
ferences and illations from posterior lawes be a 
ground to irrogat so hye punishments, eape- 
ciallie wher the disparities are so urgent antf 
pi-egnant as are adduced in the defence. 

3. That notwithstanding of his maje8tie'» 
advocate's allegeance, the lybell ought to bear 
and should bcqualitied upon parualitie and fk- 



infaniic, that thcv shoultV have no ri;;[||t to stand I vcur, is evinced first from the expi'csse 



injuJgijiiicnt, 

and this being so great a 



i; 



tfie tinsell of tlier*^ estaies, Sec 
conceriic of tho 
leidges, they <»u|L,ht not to pass to the know- 
ledge of an assyse in order hcrciO, but upon 
a clear, positive, and express law, and f-n* a 
crime subsnmed upon in the tonnes of lawe, anrl 
thcrforc seeing i' cannot he contiavertcd that 
the pui1ic-s clenged wer not showcn nor pro- 
duced ber<»re the assyse, the assystrs who lie 
pluialitie clenged, cnnnot upon that act be 
[)f;]*scwfd for error, and as to the replye made 
l)e his :n:ijcstie's advocat, that these word.s in 
the act ol p;irliament, viz. the indyted person 
pliov.j.'n and prodisced, imports notding else but 
that tlie ]»rrson he spociallie designed, the act 
of p;nTianit*iit is opponed, uhich requyrcs the 
showcing oltlie ind\tcd person, and it is most 
ccrlaiiic, and cannot he contravcrted, thnt the 
act re«jU3TiKl the production of the person on 
the pannall, because befor the late act of par- 
liament, never person past to the knowledge of 
ane inijucist but wher he was present on the 
paimall, and as those are the expresse words 
and clt ar import of the act of parliament, so 
in ord'T to the clearing of ane assyse, tln-r is 
ant* al>so!ut \ast diH'ercnce betwixt ane assyse 
clenging or convicting parte audita et present c 
et pii! ft inaudif/i, w her the conscience of the 
assize i^ to be convinced of the pannall's ac- 
cession to the guilt, or iVeedome from the 
guih by the moment of a probation, against 
which a pannall may object, or by the 
riionicnt of the pannal's delcnce or excnlpa- 
ti»>p, o;-f| r..it\vithstautling of this act of par- 
liainciil. r.iil tliat now in the space of 200 
\cars since the niakcinLT thereof, ther could 
Ii4»t ln:t^l:ave oecurred cases uiierrin ther was 
much more cn'1'.Miee and elearne* to indvt ane 
assNsc of error then in this Cf se, ytl his ma- 
jesfie's adxtuat cannot make appeir by the 
Journnlls of Justiciary, that ever ane assyse 
was convict of eri-or, and so fare as is knowen 
iMVAF aiie anyse accuaed of error but t^vicc, 



oftheactof parliament; S2dlie, from the na-' 
tore of a verdict wherein assyf^ers proceed upon 
tlie motion and conviction of ther own con- 
sciences upon ihu poynt of probation ; Sdlie, 
from the qualitie of *|»ersons who passes upoa 
the assyse, whom not only the law of the kin^ 
dome pVpsumes to be probi hoiuinei terra, but 
being Jici-sons culled and uominat by his ma- 
jestie's advocat, ther integritie and fidelitie 
cannot be dmwen in ijuestion mearlie, becauie 
of ther verdict, wherm they are supposed to' 
have served ther consciences, being under thai 
Magnum sucramcntum which assy sere give 
when th oy are choisen, and the tords of justi- 
ciary would be pleased to consider ho we im- 
portant ane case this may prove wher ther is 
so frequent use for assyners, that if tbe assyser 
serve his conscience and elenge, he most then 
rune the hazard of ane great assyse, and yet 
serve his conscience he most in regainl of nia 
oath, and his convixtion, and it is uiion thia 
consideration that the lawe has expresslie re- 
quyred partialitie and favour, because it is not 
to be presumed that a man upon oath would 
damne himself either to assolyie or condemne, 
unless it could be made out by these qualifi- 
cations of lordes or hr3 brie, or dounright la- 
vour from kindnes to the partie, which cannot 
be pretendit in this case, wherein non of tlie 
parties insisted againcstdid so much asknowe 
any of the parties cleoge<l, and the pretence 
that it was done from a principle is a worse ac- 
cusation then the dittay, and absolutlie unjust, 
because those verie assysers concurred in the 
cx>nvieting of eight and fourtie at the same 
tyme. 

Sir Gein-gc Lockhart adds, that it is most e?i- 
dent by the act of Parliament, king James 3d, 
and by the inviolable practiq', and records in 
the books of adjournal, that the penrons of 
the pannalb) ought to have bein sisted and pro* 
du(;e«l, and it is a glosse aUogithcr inc opsiatept 
with the act itself, that these words the per^* 



f 



89] 



upon a PracfMs of Er%*or* 



»oii indjt^ ihmren to the aiisyfir) is to be iin- 
*kn»t#HMl only of a de^ig:nation oi] the ^innunlK 
be QAiiie anJf(iretiame,or the )).k«^anil ibe rcfi- 
%on tsmo&t clear, for i^hiiber the paniialt tie 
lircseot or abs4:nt, all criininall I)'b«llH| and 
<:i^ill rctjuires »iuii ' hniis, aiul ihcdor 

UiG ^howioLC tlic [ led Yvaaaststin^ 

and [irmhimn{rthe |m jvun, und vvliidi not only 
IS rcfjllyrc^d by the suid act ot* Parlianu'ut, but 
V/SKi uls<> retjuyrtnl by the couitnan law, uttd 
^itj lawt* of all nations, utid the canlriirv 
whcrof was nerer iiretendit or beard of till 
the late a«*l of (jarliutnent \ni9* Aod as to 
that ai^iiinent tb»l the late act of parliament 
hoc i^wtbat it allo^res a procet^dor agaiue&t ab- 
■enlij and d<*c1airts the sentence and d(M»m of 
Inrtanllurr^ fulloweijtg' tberenpon valid, does 
also iiiferrc that assysers, if they should as- 
golyie tijcraiust a clear probation nnay be per- 
«cwcd for error, it is aDswered, the argiimcDt 
IH aoe absolute inconsequence, and on the eon* 
trair the same is retorted, because his ma- 
jeaiie and estates of parliament makein^ a 
liiwc in mtitaid connexa and dcclairing: tlie 
ipeciall eflViis of that prucedor, that it should 
Ikt valid as to ilie sentence condemnin;^' and 
the doom of forfaulture, and beiD|f let lurvcc^ 
taria oa to these poynts» it is impossible that a 
lawe decfairin^, as to special! effects, and being; 
both ft corrurlory lawe, and * in materil 
' mitxime odiosa,* it cane l)e extend it t<i ai»y 
other effect then these cxprest, and the com- 
fnt>n rule of lawe takes place that '^ casus omis- 
* stis habctur pro onitsso/ and the lords of ses- 
ajou are iti usp so to interpret law* and arts of 

{uirliainentt fVen * tn materiti civili/ wlier the 
ane itst^lf allowps a ju^ and rationall exten- 
sion * ex firesuniptfl nipnte lefjijilitoris/ ns tor 
example in tho>;e sUlute*relatio|r lo r«»rnpr)se- 
hng' fLiid aitjudiraltonHf bei^aime the stiitut as to 
adjudications d^ies not InMr that sp«»eiall eflert, 
thai lite udjudi;rr8houUI pay a cuuiposilion to 
the anjienor, Ibe lord** iifMin the corirnton 
grounds of lane, that statuts wcti* itrtctuntfn 
jun$, and could not be cxtendit, thouyh iher 
was the saire pari lie of reason^ yet ivould not 
eic tend ibe : taint of ir'tmprymuijlti the case of 
tidjudicfltion, unilll by the late act of ^»ar)ia* 
nient, tiiat particular case was providit (or, but 
it werane absnlul ovi-rttirniflg^ of the fundu- 
lioo of .1' )lt h«es, that a posterior act 

of parlt k ^ '*'«' torrrrlorirt, as to spe- 

cinll ertV'i t> mrn )u mentioned, and proceeding 
upon a siieciall narrative that it wtr unjust that 
ptrsou^ by tlitr ub^fiice and contumacy sliould 
reap any ad^aniutfe, nhirh narn*tive, tho it 
lie verie just, a» lo tlie imntmlb themselves, who 
did not compeir, yet dots'not in the least mi- 
ll tat a^ifist the aM3'<(e, that such nne act of 
parliniuent pmce«-dintf uj^m such speciall con- 
dci'atinns, and only innovateing* the former 
W.fare and cu»tome as to the speeiall tacts tberio 
PwPntioned, should b)* ane interjiretation be ex- 
JH»nH to lay ane fun da t ton of a proces of error 
■guinst the ansyaef iv|\^n the pannatls wer 
not pri*!5rnt, and by i*hose presence they iiiig-ht 
ktve beiu cleared in ther cooicifQcefi, of roaoy 



A. D^ldSl. [90 I 

doubts and questions, whereof it was impossible j 
ihey could lie cleared beinc" absent, and tho ihef . 
wer any reason to extend ine wt of parliament J 
ktn^ Jumea Sil, that it should proceed in tha ; 
case of asi^ysers wher panoalls are absent, iti J 
cane only be done by act of parliament, J 

!?do, Assysers by'the lawe of the kingdomr^J 
being' ab^olut judges of the probation^ as they] 
may eondemne without any probatioo at all ] 
up«m the single conviction of iher own con- 



sciences, so • momenta probationmo sunt lit 
*arl>itriojudici** •/ and to convince the Lords of 
justiciar)', that ther is neither absunbtie nor 
any unwarrantable streatch in this |K») nl, ther | 
is not a more famous (question in tne canooit \ 
lawe» then whither * judex contra privatam , 
' couiirientiam teneatur sequi allegata ct pro- 
* bata,^ whcrin there is great and euiinenl au* ^ 
thurltes upon all hands ; Hut the lawe of tbis^j 
kin^dome has clearlie datemiined the case as to 1 
assysers, that ihey are to proceed and deter- < 
mine accordinjf to"^ the conviction of ther own 
conscience, which most be presumed, nnle««#j 
his majesties ndrocate wer able to qualitie tiitl | 
instruct such fjualitications against them, m 
would make it appear that they did not pro* 
ceed upon conviction of ther consciences, buf 
upon other unwarrantable and unjust ground! 
which if they wer coDdescendit upon and 
proveu, wer a clear grouod lo a great asayst I 
to find that the foraier assyse were * temerd 
*j«runtes super assl«am,'and it is stroins;^^ doc- 
trio to think that ane assyse who ^enerallie ar€^ 
not lawyers but called as * probi et tideles ho- 
*■ mines |tatrite;^ to jmiceed according to that 
measure of li*rht and conviction, that God hai 
endev^ed thern vvilh, and eiter tliey have taken 
tlier great oath to proceed without unrtialitie 
or favour^ that such ane a^^sy^se upon the sinj^tft 
pretence that a prtd>ation does convince others, 
which did not convince iliem in ther consci- 
ence^, sboubl be a^j^uod for aue unsy se of en'or, 
unlesse ipialticntions of brybrie and corrup- 
tion, or aniCf Client pactions to aeipiyt parlies 
whatever should be proven could be oualiOed, 
and pr«iven a^^nist thetn ; And as to that pi^e- 
teoce tliat if nucIi <jiialificati<»os wer requyred 
the net ot parliami-nt would be elusorie, and 
that It is not i^tM^siUe tor bis majesties advocat 
to prove the same ; 

It isansweieil, the pretence is most ifround- 
les and irrelevant and i|s most mijiiMt and in- 
cousequentidl» that lens e qualifieauotis »hould,J 
be recpiyreil to convince ane assiysc off 
trror, * et de temeran jmnmento^ then the 
lawe re^piyres even in civil cslscs to re!»cind 
sentances; attd yf t such f^uabtications of cor- 
ruption, brybrie, and partialitje, are leqityreil to 
l>e made appetr atraintit witneasesi in any re|»ro- 
bator of titer testi monies, and without whichg 
such repn»liaiors never was nor cane be sus- 
tained, and therforanc htmdreih instancy caae 
be g'iven that such quabfications bo^th have 
ticcurred and bein proven, so ihaftKerja 00 
reaKon lo pretend, but these both mi^hi and 
ou^hi to l»e proven in the ease of a^vvsera^ 
and without wbiehj it is tmpoisible that in' Ian t^ 



33 CHARLES II. ProeeeitHgi againa Alex. Blair and taken, [9t 



91J 

or justice they cane be found goU^ of ac- 
quyttinf^ paiinalls wilfullie, temeranoualie, or 
by partialiiie and favour, wbicb are the expresse 
tenues requy red by the act of parliament, kinff 
James 3d, and if such a fundation war laicl, 
there is no man, nay scarce lawyers of tlie 
greatest reputation, could adventure to be 
members ot assyses, notknoweing howefare 
tliey may be chairged or overtaken. And 
the lawe of the nation putts assysers upon 
no such racks or difficulties but only tbafi 
as honest and well meaning men they 
should proceed according to the integrietie 
of ther consciences to condemne and as- 
tulyie^ and it is beyond doubt, and the bookes 
of adjoumall make mention, as the persewer 
protests tor error, so the pannalls may doe 
tlie same, so unto what inextricable labyrinths 
ahould assyers be involved in by such pro- 
testations and hazards upon all hands that ther 
estates and reputations may be drawen in ques- 
tion as guilty of perjone upon that smgle 
pretence, that they ought to have nroceedit 
otherway s upon the probation adduced ; men's 
reasons and apprehensions, being as different 
•8 ther faces, and that which seems to be 
clear and convincing to one being dubious and 
debatalile as to another, and thcrfor the case 
being so high and of such extraordinary im- 
portance as to all men's securities, a pro- 
cess of error cane be no farder sustained then 
according to the act of parliament of king 
James 3u, and even thougli the pannalls then 
indytcd hade bein sisted and compeired, his 
mqjcstie's advocat should prove and qualifie 
bryhrie, coiTuption, and otlier grounds of gra- 
tincation. 

The lords justice clerk and commissioners of 
josticiarie having oousidred'the lybcU and de- 
Inte, they repell the defence and duplie in res- 
pect of the 1 yhell and replye, and remits the 
lybell to the knowlede of ane great assyse. 

As&ISA. 

TVilliam, Earle of Dalhousie. 
Robert, £arle of Roxburgh, 
C'oliii, Earle of Balcarras. 
llie Earle of Airlie. 
The Viscount of Oxfobrd. 
The Lord f uviotirstoun. 
John, Lord Elphiogstoun. 
The Lord Elibank. 
Andrew, Lord RoUo. 
Capt. Alexander Livingstouo. 
The Laird of Gostbord. 
IMlt. Henry Maule. 
Capt. M^Ceiizie, of Suddie. 
Alexander Murray, of Melgum. 
Sir Andrew Bruce, of EarlcshaU. 
Mr. William Livingstoun, of Kibyth. 
Sir Mark Carss, of Cockpen. 
Sir John Why turd, of Mdntoun 
John Skein, ot Halyairds. 
Henry Trotter, of MortounhalK 
Adam Urquliart, of Meldrum. 
Ur. John Bayne, of Delneys, 
Wiiliam Graham, of GurtiiiDioir. 



Sir Wm. Binning, late provest of Edinboigh. 
Capt. Andrew Dick. 
The Assyse kwfullie swome, bo objeetioD w 
the contrair. 

His Majettiet Advocate^ for Probatioo, ad- 
duced the Witnesses Deposition, led and ad- 
duced be him againest the persons whom tho 
pannalls have assolyied with their verdict ibl- 
towiug therupon, as also the Pannalls Decla- 
rations emmitted Jliefbre the lords of bb ma- 
jestie's privie council, whereof the tenor ibi- 
lowes: 

Edinburgh, 16 June, 1681, in presence of Ina 
miyestie's privie council*. 
Jamet Gray, of WariestouD^ being examined 



* If the verdkt had been taken with perfect 
regularity, there would not have been oocasioD 
to resort to any other proof of the votes, wbicb 
had been given by each of the assizers. Thia 
will appear from the following passages of Mr. 
Hume's Commentaries, *< respecting Trial for 
Crimes." 

<' To pass to the last article of the doty of 
the assize, the return of their verdict into oourt. 
For this purpose an hour is appointed by or- 
dinary style of the interlocutor ordaining then 
to inclose ; though if they be still sitting wbea 
that hour comes, the court may adjouni anew^ 
and appoint them another hour. In the or- 
dinary case, the verdict can be received only 
in the presence of the {lannall ; for, as men« 
tioued formerly) if even at this period of tba 
process he maxe his escape, or withdraw hia 
appearance, no farther step can be taken in tha 
trial, but sentence offugitation only be pro- 
nounced, in like manner as if he never haa ap^ 
Scared at all. Like other rules, thb one may 
owever be departed from in extraordinary cir- 
cumstances, wnere, without injustice, or great 
inconvenience, it could not be observed. JaaA 
such a situation occnrred in the trial of Peter 
Glasgow, and others, in October 1797, for rioC 
It happened here, that Glasgow was taken ill 
while the assize were inclosed, and beoauM' 
unable to attend at the appointed hour for ra- 
ceiving the verdict from their hands. Never- 
theless, af others were under trial on the sama 
indictment, it was held that these had a rigfat 
to know their fate, and conid not on hb account 
be subjected to farther anxiety or confinemcat. 
The verdict was received therefore in absaooa ' 
of Glasgow, and he had sentence afterward^ 
in pursuance of hb conviction . 

" It is equally true, that in the ordinary caai^ 
the verdict can be received in the preseaoa 
only of all the persons of assize. And the ra»> 
son is, that they may, in open court, hear ihm 
verdict read out from the record, and dim 
own and acknowledge it, as the very verdiol 
which they have found, and have committad 
to the keeping of their chancellor, to be dall« 
vered by him, as their act and decision to th* 
bench. For, as the writing b anthenticaiad 
with thenameaonly orthecbanceltorand olerfc, 
it wo«M otlmrwisa ba io.tha powar of ttca« 



9S] 



tftm a PfQCtH 0/ Errm^. 



A^D. \6ni. 



c» 



caiilS»MS he Hid Msmy}y\t tome ahA conflemned 
olKei^, hut docs not remetnljer t le 

whom^ fuiil declnircs be k notr.M of 

twh •wearing^ huLwlU stand t>y bi^ lutiict. 
Sic Subtcnbitur^ Ja, Gbay, 



Alexander Biair, merchandp dediurefl ecm- 
formis la James Gray, 
^ Sk Siihcribitur^ A» Buiiiu 

AUrander Bothmelly of Glefu^firas, decdarce 

lie aisolycd some of the pan nails, and OOQ* 

detODied others, but docs not remember whither 

lieaiaolyted any of the nyn or not ; confesies 

' his ftuh and comes in the king^'s will. 

Sic Suhscrihtur^ A. Bothwell, 



twop^TVODS, in concert vviih tach other, tomip* 

E:e9stb« true Terdict, and subslilule anotlier 
ill place, Ajs long therefore as the persons 
of ttBnze are all snrrtving, and able to attend, 

i ^e court will not readily recetre the verdict in 
the absence of any of them ; bnl will rather 
adjourn that business to another time, and 
take order for compelling^ the obedience of htm 
who is refractory, or negligent of his duty. 
Such an adjourn ment seems to have taken 
place in the trial of Alexander Cunningham for 
tire-raising, July 31st, 16T7. But, like the 
former, tliis rule'is suitable only to the ordinary 
case, and is not observed so much for necessity, 
as out of scrnpuloasness, and bAcanse in such 
niatten the Uw is desirous of having the best 
and moBt loletnn evidence, if it can easily be 
obtained. It ti» not therefore to be imag^tned, 
that the verdict is Irtst, if one or more of the 
ttsige, or even the chancellor himself, happened 

, l» die, io the interval before the hour appointed 
Ibr returning it. Nay, if any of th em be Uk&a 
with a long^ and severe illness, such as disables 
liim to attend, it seems probable that here too, 
on pccmint ^f the ponnel, who ouffht not to be 
kept in suspence. and has right to hjs immediate 

, I'reedom in case of acquittu, the rerdiirt sliall 
be received in the presence, and under the failh 
^d testimony of the other members of assize, 

•* The names Of the bquest being called over 
In presence of the court, they are asked concer- 

, fung their chancellor, which of them he is ; and 
from his hands the verdict in receiveil by Ihe 
|ice«ding jud^; who hanng unsealccf and 
penised it, delivers it to the cletk of cpurt, to 
te hy bini traotf^nYed into the record -, after 

' which, and a C4ifefu] comparison of tlie record 
snd original writing, which takes ptace under 
Ihe eye of the court, it is annonnced and read 
out aloud. The veolict is then sealed up, io 
C'>mpliance with the rcgulstlons of 1672 
JNo. 9) which declare that it shall never agitin 

I oe opcnetl, but by order of the judge ; and that 
Ifthe elerk inf Vrngc this prahibitioD, be shall be 
mmMied with the lus^ of his oflioe, and other- 
wise, at the discretion of tlie eourtp At that 
lime, at appears from the way in which ttiis 
article is iutrodur^d in the statnt ICTt, it was ihe 
main object of this ordrr, to prevent any all*'- 
rmiiott by the clerk or others, of those marks 
lMi4<?b wcra tbi^n subjoin*^ tv the ti%W9B of the 



Jvhn Binnhg dedntres be oanolyed some of 
the defenders, and ooodesntied others that wer 
paj^nallcd, confesses bis fauH and oomes in th* 
king*a mercie< 

Sic Suhcribiiur^ /owjt BnwfNO, 

Jawct Baiilte, merchand, dechirrs he does 
not remember whom be condemned orftssolyied 
of the persona eondescendit on, and «MUMn to 
his veroict. 
* Sic Subseribitur^ Jasubs Baiuje* 

Mr* Andrew TempU^ of Ravilrige, declairei 
for the most part he condemned all ♦ and as- 
solyied some, and comes in the king's mercy. 
Sic Subscrtbitur^ Andrk w Tkm PtB * 

several assizers, for tJgnifytng bow tbey voted 
and which served as a direction whom to ar* 
raigni in case of a prosecution for wilful error, 
on assize. Though nut at fir^ intended; thii^ 
practice serves however the far more useful 
purpose, of hindering all alteration of either the 
substance or the form of the verdict, on th# 
part of the clerk or others, whereon to found 9 

flea of disconformity of the record and verdict, 
f any question of this sert shall arise, the vei^ 
diet having remained sealed all the while, and 
in the custody of tbe court, will, on bejn^ 
opened in their presence, stand free from all 
suspicion, and testify for itself. In the trial of 
Alexander Blair and others Ivy an aisijse of 
error, on the ?5th of July, 1681, the lords or- 
dained the verdict of assyse against the nyno 
persons assoilzieil to be oppined and broke up, 
and given in to the great assyse as u tneau of 
probation. The verdict was opened and com- 
pared with the record, and again sealed up, rii 
the case of Gabriel Cnnningham, July t?8fh, 
IT 30, who inaisled m sns|ieiisten of a capital 
sentence, prononaced in an inferior court. 
The like revision seems to have taken nlace in 
the case of Livingston (Madanrtn, No, 55.) 
%vhere tbe verdict was remitted for considera- 
tion, by the judges who had received it on a 
circuit. Intbec*aae also of Hog and Boutur, 
Jidy 24th, 1738, on a motion for the prinnels, 
*^ 'f hat there was Bome variation in engrossing 
the verdict of assize in the record from tb# 
principal verdict," onler was given to unsc«l 
and compare it ; and, being fouiul ri^t, it wai 
again sealed up.'* Vol. 2, p* 266* 

" The form fof the v^erdict] inost bi^a wreit- 
lea form. UTierein the first thintr that is 
marked, is the Sederunt^ or the names of th<i 
persons of assize ; which serve'4 the iIoubl# 
purpose of vouching tliat they were fully met, 
aiidof applying the verdict to ihe parUculAr 
case or trnif. Frurinerly, ibis wm neeilfid for 
a Ihiid reason, in vrder th»t each luiio'v vole 
might be suhjoiacd to his iinmc, whereby to 
distinguish the persons who might 1h^ liable to. 
trial for wilful esHVOO assize : in which view 
tlie ix*gulatio&a of 167% |iaiticularly ordered 
the chancdlor of a%size to attend to that mat« 
ter,'' Vol 2, p. ?78. 

* This wt»rd itlt apptars to bf redoodatt. 



95] 33 CHARLES II. ProceedingB again$t Aiex. Blair and others, [96 

' with the proDoancinfjr of doom and s«nUiioe 
agaiucst them till Thursday nixk. 

The anid day the lords with conaifiit of hii 
majestie's ad\ocat, deserts the dyel agaioest 
Lewes Johnstoun, merchant, Thomas r^oble, 
merchant, James Baird» of Saucbtounhall, 
Robert Sandielands, merchant, Robert £liot 
Wright and Alexander Henryson, of New- 
haven, who wer |iersewc<l for error cooforme 
to ther dittay booked the 25th of July last, 
Simpliciter, 



John Duudatf of Har?iestoan» deelaircs he 
condemned and assolyied some, but does not 
nowe remember he assolyied any of the nyn, 
and holds by his renlict. 
Sic Sub. J. Du*NDAs. RoniEs, Cane. I. P.D. 

Sir JohnCumnghatnet for the pannalls, takes 
instruments that bis majesties advocat declaires 
thut he makes use of no other probation 
againcMt the pannallsr, but the depositions k<l 
ugaiiist the persons assolyied, ther verdict and 
declarations above wreitten. 

The lords justice clerk and commissioners of 
justiciary, ordained the verdict of assyse 
against the nyn persons assolyied to be oppined 
and brock up and ^ven in to the great assyse 
as a mean of probation. 

Follows the verdict of the assyse. 

The assyse, all in one voice, elected the earle 
of Airlie cnaocellor, and A. M urray ther clerk ; 
The chancellar and wholl assyoe having porticu- 
larlie considered the several depositions led 
againest the nyn persons contained in the lybell, 
assolyied by the pluralitie of the assyse, finds 
all in one voice the pluralitie of the sdd as* 
ayze guilty of error ; and as to the sevin im- 
pannalled they find James Grey and Alex- 
ander RIair, guilty by pluralitie of votes, my 
lord Balcarras, my lord Oxefurd, Gosfurd, Mr. 
Henry Maule, Rollo, Alexander Murray, Mr. 
Livingstoun, Mortounhall, the laird of Gart- 
more, sir William Riuuiog, find them guilty if 
the councill dcclaire that those nyn wer the 
finly |»erKons proposed, and they confessed they 
absolved them. As to Alexander Both well, 
of Gleii(»rss, John Binning, Vintner, Mr. An- 
drew I'emple, of Itavilrig, are found guilty 
by the assyse all in one voice ; and as to 
James Baillie, finds him guilty by pluralitie of 
votes, niy lord Balcarras and tlie rest betbr 
uaiiMMJ iiualifieingasformerlie in the case of Gray 
and Blair ; As to John Dundas, finds him not 
ICuilty by pluralitie of votes ; The earle of 
Airlie chancellar, my lord Dalhousie, Karles- 
hall, caiitain M'Kenzie, find him guilty. 

Sic Subscribiturj Airue, Chancellar. 

John Dundas, of HarviesMon, takes instru- 
ments upon the verdict. The lords continues 
the pronouncing doom against the jieisons 
found guilty of error till the 27th instant, and 
ordains them to be carryed to prison, and con- 
tinues as to the other pannalls till the said day. 

Jtt/y 27, 1681. 

The lords continups the dyet againest as- 
sy sers for error, till Wednesday nixt, and or- 
Jaines that are found guilty to be detained 
prisoner till then, that in the mean tymc the 
saids lords may a«lvise with the councill ancnt 
the punishment of such who came in the king*s 
mercy. 

August 3, 1681. 

The lords continue the dyet againest captain 
John Binning, Alexander Bothwell, of Glen- 
corse, and Mr. Andrew Temple, of Ravihige, 
wha ara found guilty by ana assyse of error, ; 

4 I 



3Ir. Waller Pringle, for Alexander Bhir 
and James Bailyie, merchants, James Gray, qf 
Waricstoun, protested againest tlie verdict, as 
the ground of any sentance againest them, 
in res|>ect that ther vras a former verdict, and 
the doors oppined and the samen broke np, * 

* <* One thin^' says Mr. Hume, Commen- 
taries ** Respectmg Trial Ibr Crimes," vol. 9, 
p. S73, **• is now matter of uniform observanoe, 
mdeed it is a necessary conseciuence of the sta^ 
tute 1587, c. 92, that the decision of the assixa 
is transmitted to the court through the medinm 
of the written verdict alone. Wherein if there 
be any thing obscure, or defective, or even con- 
tradictory or unintelligible, this cannot be ex- 
plained, supplied, or amended by the assize in 
court, on the question or suggestion of the 
judge ; neither can the judge remand them 
mto a stale of iuclosnre, privately to reconsider 
and correct their verdict, for themselves. It 
must be taken from them as it is, aud receive 
the judgment of the court, with all its imper- 
fections, how gross soever these may be, and 
without r^rd to the prejudicial conse- 
quences, which may sometimes attend anch 
an issue of the tnal. It is true, instaocei 
are to be found of the infringement of this 
rule. Such as that which is recorded by Foim- 
tainhall, in the trial of James Learm<^tli 
i!)ei)tend)er 10th and 1 1th 1678, where, as thai 
judge relates it, the assize were repeatedly re* 
inclosed, till they found against tlie pannel. 
Such also as that in the case of Marion Wcir^ 
December 3rd, 1678, reported by the sanie 
judge, where the assize, *' after they had beea 
abroad all night, were the next day, by com- 
mand of the criminal lords, and instigations of 
the king's advocate, reinclosed to mend thoT 
verdict." As*far as 1 can judge from the 
record, though expressed somewhat obscurely, 
the like had liappened in the trial of Alexamler 
Blair and others, August 3rd, }681, convicted 
of wilful error as jury men in a trial for treason. 
It was objected, that no sentence could paae* 
ap:ainst the paunels, " in respect there waa a 
former verdict, and the doors oppined, and the . 
saiiiiii brock up, upon which jMr. Thomafl 
Skene as procurator for the pannalls, took in« 
strumeuts." The rccoi-d dues not say that puj 
answer was made to this challenge ; nor n « 
any notice taken of it in the doom which pasaed 
on the verdict. Let me mention too, tuat ^ 
an advanced period even of tlie present cen- 
tury, a verdict seems to have been sustained bv 



^pem « Proeeu of Err9r* 

tipoo wbicb Mr* Tbarnas 8kene as procurator 
fiirlhemiDnaJU took infitniintniU, to which in- 
uruiiient ihc tfaidsi (innnulls .idbenfAiid pro^sls 
Ibr reoieiil of law e, and ilmt this thcf protesta- 
tion migliL be iiiiertio tbebookee of adjourn ul I. 



A. D. 168I. 



P<»j 



the Lords, notwitbstaudm^ an irregpiUrity of 
thitittoft, t allude to the sHs^iensJon, pttrsued 
. bv GubricI Cnniiin^hamf of a capital sentence 
I of the regahiy court ofGIasqpow Aagust 17^0, 
»ne of this m4n*8 allegations wai^ (but it was 
mentioned ta passing oohs and wan not insisliK] 
on as a reason of AUS|>cn9ion,) that^ fmi 'm\^ made 
up their ferdWt, the jury separated fur the 
ni^rbtt and next duy rctnrncu it into court ; 
aud that aAer a ha*ity and not very audible 
reailing- (as was said) they reinclosed by order 
of the jud^e, Mr. Orr, and a^ain found a ver- 
diet, to tlie same or nearly tlic same purpose. 
On ih rth of November 17:30, *' the said Tho- 
inai Orr being called to the bar, the court took 
notice, that he bad tailed tnuch in his duty, in 
auppreiiiinfr <>r refusinjf to ally w the first ver- 
dict returned a|;aifiRt the said Gabriel Cunning^- 
hani to be openly read in iMJurt, tvliich was 
the pannefs rijjht» and Uie right of every sub- 
ject ; and Uiat he pronounced sentence of death 
a(ratnst Cunuinkrbain upon the tccond verdict ^ 
although the tacts libelled were ibund con- 
junctly relevant, and that the jury had found 
one ot these facts not pmven ^ therefore the 
liorrls K-eoranocnded to the lord justice clerk 
lo rebuke the %iin\ Thuu^as Oi r for the^e pro* 
r '1- s, nnd he was accordin'^ly rebuked ta 
i>ri," Sec. Yet the lx»rds hwd previously 
fyi- I •' ■;; verdict as warnuil i«»r sentence 
of ( 'ioo. Notwitli8randJni( this pie- 

cedt :.il cannot help entertiiioini^ an oni- 

bion, that where the final and urdy venlict 
which passes ou record is prooouriced after 
rc-eniry into court, the regular cou^iefjiience is 
the lull uhiM>lritor of the panneli as fordo in^ 
frinjjrmcnt of the %iatutti 1587. 

** It is true, tluit In n-poriioK the sftid case of 
ITur , Ifyrd Fountain hall seems inclined 

to I .. an thii bend, according as the 

mmuK 1ju» e or have not disperjted, at the close 
of their first siitiuj?. Liird Royston too, f «• 
presses h': . ' . tij^t to Uie same elFect ; 

and noil* I also, of the authority 

ofatlean^ ,. , where this doctrine 

seems to be r I 1 v dehvered, 1 allude 

In tl»f> trial ot L...... . -r Cuiuiai|<hatn for fire- 

luly 30lIi, 1677, where the iiilerlocutor 
"l<>n>: '^ 'I'll* L'lrdM, Sec. having" con- 
sul' rptviroed upon the 
iao tj that the ^rne is 
t)Ot cWikf in sua iar m liiey iind him g'uilty of 
the pfe*tifU(thort'«, and nave not fund him 
guilty of wiM I »fme to the 
dtttay and ih the same to 
them; and i vi taict was tint 
aflfircd, at| th* tmt pnsent, some 
of thcu) haf n I Ml d(»i.|o?«iii^ i^oue 
outoftoMu, iiavirt\f thereafter 
pust before tin > i:a.iit' n» tit all pre5*ent at the 
^nmt> 1T1 of the rcrdjct^ * sa thai tliure has 
YUL. XL 



\ 



Mr. PringU also allcadged that the rertUct L 
did bear them ^lilty but not of error^ and^j 
therfor the justice's' ronhi not proc4^(fil tft*\ 
sentancr ajfainest them upon that rerdicl. Th« 
loi'ds justice clerk and cooitnissioners of justt- 



* hein 0€Ca<>ion for the assizers to meet ami- 

* speak wkh the persewars and defenders, f*r j 

* some persons from them, doe thei^tbre find 1 

* that they cannot a^in inclose the assiJu: i* I 
hut considering the venUct as it stands, with < 
the peliiion t^rven tn be the pannel o^ering' him- 
self to banishment, they therefore, by the 
mouth of Adam Auld, &c* Dempster of court, 
decerned and^ adjudy^e^l the said *^ r 
Cuuniug^ham to be banished,** &e. 1> , 
for my own part, I find great di^culiy ut 1 e* 
concihn^ a rcincloaore of the ass^i^e, in anj 
case, wilh I he injunction of the slat* 15B7, 
c. 92, which does not dikting^uish b£tweeo com- 
munication ivith thi( judi^es, and vvith others. 
And especially directs the assize, if they hare 
any duubt of which they wuuld be resolved* io 
propose it openly, before inclosing or r«lilovin^ j 
forth of jiid^mcot ; and forbids them to be j 
removed from their state of custody, till they 
be finally agreed on their answer. [** It is sta- 
tute antf ordained, that bow sDone the hnill 
Dersute, defenses, and answers thereto, ar fuUjf 
heard he the assize, gif ony of the saids kssh* 
sowrea hes ony doubt quhairof they wald he 
resolvcj, that they propone the same openly^ 
in presence of the parties, in faceof the judg«- 
tncnt before they passe out tlienisclves, atid 
immediately at^er that the said assise hes 
clio&L'U tlieir chanodlit, the clerk of justicinrj 
sail inclose the said assize them aikme, or in 
an house he themselves, and suffer n a pnrsoa 
to be preaient with them, or repaiie them in 
ony waies, naiher clcik uor uthers, under pre- 
tense of furder inlbrmaliun, resolving^ of ony 
doubt, or i>ny uther cuUouv, or occasion 
c|uhatsumevc/; bnt that the said house he 
balden fast, and tia man present therein but 
tile said asbisoures, and that they be tioi snf * 
fei-cd to come out of the said bou^e, for 
ouhsitsuaiever cause, or to continue thegivinjf off 
their sen tine e to another time ; but that they 
he inclosed as said is, * unto the time they ho 

* tnlty agrteed,' and return their answer t>e the 
mouth of the said chancel lar to the judg-e/*) 
Whereas, if they he rctnclose*t, their tinal an< 
sner is not given until after the du^^dution of 
their sitting', and a conference with the court 
concerning their deci^iou. ami tuuU r the mtlu- 
ence of the seniimeais, in and per- 
haps censures, which have ! wi out Ott 
that occasion. It ii true, Uim coult-reuce takee 
plm-e under the public eye* ; but then, it fot 
certain has relation tti the trial, which may not 
always he theciiKe as to intercourse viith ih# 
jury while iucloiftd t and jf it wer« no more* 
than this, it is an objt^tion, acoonJini^ to tho 
spirit of the statute J5H7, that the assjite are 
vvitiu^i»es of the reception, whether favourable ^ 
or otherwiM% which lh<>ir verdict meet* Witl^ 

I rum the audicAcc, and the cuui L'* 

u 



»] 



39 CHARLES II. Proeeefrngi agam^ Aka. BUAr and others, f 100 



ciary, be the mouth, of James Henrvson, macer 
of c«)urt, deceraecl and afljud^ed the saids 
Alexander Blair, Jamei Baiihe, and James 
Gray, of Wariesloun (as beinff teund guilty by 
aoc assyse of error) to have roriault ainmitted 
and tint all ther cattell and other moveables to 
be inbrotight to the king's tiae, and to be 
earyed to |irison within the Tolbuikfa of £din- 
burgh, therin to remaine for the space of anc 
year and day, and till they be liberal by tlie 
juaticee order, and that in alityme hcrefter,they 
bnvc tint the bcnefitt of the lawe, and of the 
land, and hare incurred the paine of infamie, 
and shall never be heard as iritnes in probation, 
or iu acquytance (or purgation) nor to make 
«ne oath lirfore ane judge, nor in any other 
kind of Blatter, vrhioh was pronunced fur 
4ooiu. 

AuguttBih, 1681. 

Captain John Binning, vintner, Alexander 
Both \i ell, of Glencorss, and Mr. Andrew 
Trmple, of Revilrijif, who wer found guilty by 
ane assyse of wmfnU error, and imprisoned 
within the Tolbiiitii of Edinburgh, and the 
eentancc and doom against them continued till 
this day, being sett at libertie by thelonls of 
his majcstie's privie councill, the lords justice 
dork, and commissionera of justiciary, did 
continue to pronounce sentance againest them 
till tlie councill should giveonler thcranent 



Wridrow.aftor mentioning the hard measures 
whirh wrn; received by David White and 46 
ftUiLTH of Ijtuierkshire, whose names were in - 
fcirtvd ill the I'roclamation of October 8, 1681, 
(of wImhii he says, <' these had nrobation led 
•{(ninNi tlicm in nivsence, and all that is proven 
auiiiiiNt most of them is Converse with Kebels, 
%» lien tliiry were going up and down tliat shire, 
and lying in camp there, in which the whole 
•hire \vas necessarily at that time involved ; 
and tliey are all forfeited in common form, and 
ordt;nMl to bo executed as traitors, when they 
shall bo apprehended,' ) proceeils thus : 

** A few otiiers are brought off by the ver- 
dict of the assize, as not having their indict- 
nieut proven against them; indeed the pro- 
bation against them who are forfeited is abun- 
dnntly lame ; Init, it seems, the advocate would 
hiive all, who did not resign their lands, to be 
conchulcfl under the same condemnation, and 
threatiicd the people on tlie assize, with a pro- 
ces of error ; and I find, August 3, a process of 
•rror raised against those who had been upon 
tlie nfisize in March la^st, and had liberate some 
df ^e heretors of the shire of Lanerk, notour- 
iv known to have been at BoUiwel -bridge. 
There are in the Itecords verv long and learned 
debates, by the lawyers, in (fefence of the as- 
sizers. I'he matter is very intricate, and turns 
upon quisquoiis points. At length all the as- 
sizers except three come off one way or 
other. iSome of them decline their de- 
tviices, and come in the king's, mercy, the 
ftdrocate deserts the di«t against oUmts. Tii« 



tliree whom he insists against, ore Alex- 
ander Gray and James Baillie, meroliants ia 
fidinburgh, and James Gray of Warristouo. 
The court decern them to have amitted all their 
chattels and other moveoj^es, to his mi^eaty's 
use, and to ly in prison a year's time, liiis 
was done in terrorem, and to fright all others, 
who should be afterwards on the assizes of 
persecuted people, heartily to fall in with the 
measures or tlie managers." 

Of this proceeding Fountainhall writes thus: 

**Junel6. Atprivyoouncil,apreoo^tionwa§ 
taken for prepann^ a dittay by an assize of enor 
against James Baird younger of SaughtonhalU 
Mr. Andrew Temple of Ravilridge, Dundass of 
Jervieston, James Baillie, Thomas NoUe, and 
Robert liSaudibinds, merchants; Robert Elliot, 
Hugh Johnston, John Binny, Alexander Blair, 
and others ; the assizers, who had on the llith 
of March last cleansed Somervile of Urat, and 
sundry other heritors, who were pannellcNl for 
being at Bothwel bridee, though there was 
clear probation against Uiem. 1 he 15 assisen 
were called in one by one before the coundli 
and interrogate to declare Hrat not upon oath, 
which is a new method,) wnether they voted 
Ales and condemns, or cleanses and assoilzies ; 
(for it was not marked in the verdict how everj 
particular man voted, as should have been done 
by the regulations of the justice court, and ni<- 
ti'lied by the 16th act p. 167S). Some four 
of them had found Urat, &c. guilty, which 
they declared, and so were freed: Others 
craved pardon for their deansing him, aad 
came in the king's will and mercy: Some 
said, they did not remember how they voted t 
Others more stoutly adhered to their verdict 
abtohitor, and that in so doing they had served 
both their light and conscience. The couneQ 
remitted them to the criminal court, to be pan- 
nellcd there on the 63d act pari. 1475, ^ tan- 
* quam temere jurantes supor assisam,' and to 
be judged by a great assize of S5 noble persona 
id esf, gentlemen at least. The libel uses to 
be in Latin, and under the quarter seal. This 
was a strange trial, contrary to the natore of 
all other precognitions taken at privy oonncil, 
where they were ever designed in the pannel'a 
favours for mitigation, and never to his preju- 
dice, as here. 

** There was never any of these assizes of 
error that ever took, effect before this, in Soot- 
land : But see one learnedly debate in Deoem* 
ber 1635, p. 318, of ray Cnm. Collections. 

«* On tlie 25th of July 1681, the libel agamat 
them was sustained as relevant by the crim. 
judges, and after much difficulty was found 
proven by the assize of 25, (though ther liod 
packed them, making the m^or part of theim 
officers in the forces, and other dependera^ 
against seven of them, (the rest having come in 
thekini^'s will,) who ad lerrorem of oSienwefm 
imprisoned, fincd^ and declared infamous on 
the said old act in anno 1475 ; though geno- 
rally this sentence did not beget Uwn anj ra». 
praach." 



mpm « PraeuB a/ Err§r. 

** Jftnii^ ir, 1685i Jiiini^s EaiUk and Mine 
ef the assizers, wfto in 10^1 v?erc conTicteci tt« 
guthv of givtner an rrroneous f erdici in Ho- 
ilMrrile of Ur , h&mg been sei ai li* 

bertv iipoa bo i 1 1 exjininitied to pruon, 

tiU tliey ahouifi [my ihKir (incs,^* 



A. D, 1681, 



The Case which FuuntiLluhall menliotis to 
have occurreil iti 163.^, is in the Records of 
1 ustidar^ , as fu) 1 a w« : 

CvJUA JusTicuiifE, 8. D, N. Tiegis tentaia nre- 

I lorio de Etlmburgh, tecundo DfH?om6ri5^ 

Anuo d'ni I635t [wr magVos Alexander 

Collide cU acohatn BoberUiUD, Juitkliuios 

Diajititaios. 

Jntrmi* 
Mkt under Iriiin^^ of LetittlA, 

A' U\k, 

J he, 

W ithyn, 

il 4 fVtter-neir, 

C. ■■■ - '-ilie, 

J-: le, 

Mr. Math(m Lummisdtn, 

Asaysoffv Ferscwit for Error* 

Ditaitiit of ye error comroittit f>e ihRm« in 
<tHe porlialt and if illfull claugein^ and acftuit- 
Irnj^ ol" Jameii Qordttun aon* to Oeorg;* Gor- 
flotm of Logyaltoan of resettling and intercora' 
fnf»nm«' of and with Alex. Leilh and Natha- 
p . 1 .'oun rebcUfs and fuptmes for dyo*i 
, .chip* rcof« thiftis and oppre««rHmes 

i^mDJtmi Bfmm ye Laird of Frcndraiicht and 
' Ms t^MMIllS SfieMt in ye taid Janir^ Goi- 



I pmitj tflit And smime vpone bi^ 

a^ys^ x^ _^ ,„.. . a^ tlmftif>of ye cryine fbirsnud. 

I iVsewarr-Sir Tliomas Hope of Cralgball, 
I kttif kl barniufilf his Mti^ues iduoc^t for his 
I hieoet iotrifs. 

• Pro/oftt<tfr» ^ ''If, Jamea Bain) 

Bflr. Tliomaa N < r Mr, John Nis- 

bit Mr. WiMJam l'oii>e«) aauoeates. 

The fenoom vpone fMnoal naktt instrumen- 
lli ol yair Hktrit ftnd pm^stai for yair aaaikNi- 
«ds relet t 

ily Lord Aduoeat prodocel ano Wtrrand 
of ye lofdia ofoeGrail eMttmall of y« do if the 
fyH August iasi 1635 for parsute of yeiitui- 
Dol for the error abotic; wriiciu Uolmiroff ibe 
tciiiior folio wis ^c. togiild«r wMi tlie tmut' 
mUis Act* dniiit ye sasl day of ye said mofieth 
4f Aofilit t6S5. 

IMniteraiy lord idtiocat produoet ye dit* 
tftd didairat ikat be had gtrin aae )7op|ne 
'of to Mr. John Niabet f|uiba was aduoeat for 
I Gordmm in } e iwai urooet Olf ye nii- 
Mm tiittav tbe iaiiior tbUowii^<»-^« AlesauiiW 
itiviiif MLealyfli Q^etgia Debpiter is H«ir» 
9 



loim A1e3cander Banennan frf FJmfc JoUn» 
r*sfiivie of Gbssacbe ^V ' uloufi of , 

Schcat by n Alexander Abt i IW^rktu- 

boiif Ueilof AbercroniT 
aotier Keith of l>uj 
TuUlefbotidio Geon^e tiomovni (n 
Mr. Mathow Luu\i6deii burge» of 
James Heatone buries yair" Charh^ ..^,..4 
Letsler barges ynrr J olio Caddell seruilor 
to RallnmlaUoch' and Ctcort^^ Rriiit* iuirii^ 
fr\ zeand ilk nne ^ uod 

n* H^amekilt as br i-* of 

parhamcnt and inviolable praciit^uc ot ibis king-« 
dobif? And jipccittiiie be ane art maid in tb^- 
reg'neofoitr souerane lordis prcdec^^s&or king^ 
Jatopji ihe ibrid of guid mt^mi^rif* It in statute 
HP t tbatgil ot i'ctii' 

< n^ the AS |'«?r- 

^< liL tharn* Ik in, wil- 

f fiarliahtie Tli put 

iuyti Ltjci of auesssyir of taenti« niea. 

Aod being ooayi^ed y*of sal ' hod 

acpoirding to the lawis of y^ ki * 

the suid Miil r»1 pHrliament at letj t^i 

Nocht withstanding qVof it is ot . .i ill 
ze and itk aoe of zow bt?ing in ane rourt of 
juaticiarie bablen within ibe tulhutb ot Edin- 
burgh f pone the fvti day of August Isfit by 
post in Ibis instant zetr of Gt»d J^m^vi, c. 
tbreiiie fyve seiris he Bit. Alexander Cnluile of 
Blair his ma'ties justice depute cbotsei ng res- 
siiuit sHome and admiHit rponc the as^ysc of 
James Oordoun sone to George Gordonn of 
Logyaltonn quba wasbrocbt filnb of waird and 
that day presentid vpone pannell hetbir th# 
^id justice depute as ana noitoar nialdactour 
and treapassonr indyttit and accusit be dittay 
ui the crymes dter spe'it at lenth mentiooet y • 
infill Tiz. flbr reoepting stod intercomonitig of 
anc Alexander Leitb and Nathaniel 1 Gordouii, 
baith rebelled and fugitiues for thifl alauohter 
and burning of the lainl of Frendrauchts coirnetf 
ami vthcris hearschips and opprcftstones com- 
mittit againes tbe said lainl of Freodraucht 
and bis tcnocnte^ speriallie for recepting of ib« 
said Alexander Lcith and Nalhaniell Gordoua 
rebelles tbirauda in ye munetb of Mercbe laai 
W&6 zeires And intercomrooning ivitb tbams 
within the said James Gordoun bis duelling 
boim^ in Knoklvttb at ye leist within bia cksio 
y*of As also tor ioterconioniog and kcjping 
c!Ofnpany about aiich dayis y%ltir ^viih the 6aia 
Nathonieh Gordoun and Akxnndrr Leitli 
ivitbtbe diidlinsT house of Mohcrt LolUtje in 
f Iss4ie Walii* quhair ye i»aid Jar* 
and the Katdis rebel hs soup pnl < 
ny'C and coinmonod and eoiiif^rr 
tbar splice of tbrt!c houroi 
tbmy went to year Iteddis 
Gordoun and thay lay altugidder 
mer Ihat ny't the «skl NuttianuM Goitloun 
Altasuder iJeithr being in one betl and thf said 
Jantsp Gordoun wiUi urn? tii^ben llcmpiii^frof 
fiiitebnie ir^ v htnl ond that fxpres 

agniois the n < 1 1 1 the cunLrair sprciath^ 

the 97 oetot tlt^" 't vmt |]arbaujL*nt of our !(oiie* 
rnn^ lords darreal graudfV king Jaiii«« tliv 



,. . 4.ori{i]l||1 

:hat 

. bo 

I L>elbir 

nt JfinK-a> 

111 Ltue cbal- 



TO3] 



3S CHARLES IL Praceedif^9 M^mnH Alex. Bhtrani oiher$. 




^ftof etcmall mernorie (jiihiilrby it istxpreslic 
prov^'tlit statute ami onlnmit that na oiauer of 
pf rvme wtifnUie or wiltluglie recejit supplie 
maittefiie lietend or do Fauor to oiiy of bii ma- 
jesties rebellts beinff tit ibe home wiibin yair 
hoQse laudis bouiuTes ur bailzeries vnder the 
jKuie of tiaiih to be intiicted vpone the t.>ontia- 
Tcncr with cvrifisaiitoun of his haill liioferble 
jTi'idis and iijraiiss the teonor of bis nm^ties 
jiniclumationesmnid and publelst mye cotitrair 
111 ya fiionfth of Januarla^tat ye mercat croeea 
4jf Abci'df ne Bantf and ¥*thevis mercat croces 
?«f the north purts of yb kio^ome diMhar|reing 
aJI rpoepting' aiitl intercoutmnaiii^ with ye saidi^ 
rebftlis r nder the pains foirsaidis »peU in ye 
ftRid act of parliament As the Mid dituiv pro- 
ducet he air Thomas Hoipof Crai|fhall knyt 
Wrrm«t advocat to otir souorane loni as per- 
se war y'of for bin hienes iotreis uganist the 
«nid Jamen Giirck»tiQ than iod} tet and accnset 
j«rdit'iaUic y'rby ot' ye crj-mes forsaidis y'in 
ountentt in p^us of ye said justice ile[>ute tban 
•itand in judgfinetit in ye selff profMJrtia Et\cr 
acfU!»atioti of ^e quiiilk James (iortiouti be ver- 
teur of ye said ditUy <il ye cryiues foirsaidis 
•|>e^il y'lntill it was alle^t be Mr. Jtihne Nisbett 
iMhioca* as prelo^- for the tiaid James Gordoun 
thai y e dittay in that p*Mnt y*of atient intercom- 
momn^ was nawayis relefant be inferring ca- 
pitall puneichmeot y^upoo beeaus the said 
Uittay was not:ht fouDdit %poue the act of par- 
lianteni nor uponc the commoun law Nnther 
was it releraotlie subsumet y'intill that wit- 
tini^'lie or withtiglie the pannetl intereomiuoned 
iknd that ane occasionall run countering' could 
nochl iiupotrt ane acccssioun to yair rebellioim 
quhajr p'teis ar sarpryset with y* earning to 
yair awm bouss or to other places qubair they 
are And cannocht desinfrauge thatnesclffis of 
yair compunte for feir of irritatmg^ of tbame as 
mne in««noe of Walter Hay and J ante Grant 
And in the present caice as ye pannell hes de- 
pooK That he bad bene iii Hobcrt CoUenes 
lion^ in Hassiewaltis with Hobert Forbes bro- 
ther to the persone of Aachterles Robert 
Bemptter of CiucbDie and Robert Cotlii^one 
burgfs of Abenlene. All vnsuspect and honest 
men half ane day befoir the relielli« ciiming to 
ye house quhtik coming ol^ye reb<>!|iis to ye said 
liousc wa« at nyne ho ores* of the nv*t ijuhan 
the pannell could nocht gae elis quliair being 
benichtted. And the rebellis for yair securitie 
b«iHog srhote and tnaid taat ye durris of ye 
flaid house And as to thai ^vord * coofereoce' 
mentionc't in ye dittny Tl»e samen is nocht re- 
]#vtint to impoirt JntcrcouimuDinr^ rales It 
iMd b^'nr subsumet y'in that ye paanell horl 
tfdttrt Willi ye rdbelUs cottcemiDg y* rebellion 
th^ir relH'ltioiui practizes and desi^i^s off pur-» 
pois to Inn 
act of i> 
<#ptti\cr 

an I' 

•lUEtUuUU^ 

tm Num. 



I) iuid favour tha me conform to ye 

quhtlk probibdUis all re- 

: unA m&ntening of rebellis 

I or Alul the law 

()te« cum banuitig 

^i| I Uuiiti^ji r Phar, quest. 

17 ^« L4Uit ' H «t tractatiti 



mtm rtJittUibus auAt v«rha tr i^ututaUiia . * * Aitd 



y'foir caoiKfcht be vuh««met releianMie »pf»1 
ane at ye maistluaficcaisioiiall fortoite mirpry 
qubair mto anitueir being maid be his ro^i 
teis aduocat as perse war of ye dittay A\ 
namelie to that pairt of ye said alledg^ii 
proponet agiunis the secund pairt y*of Th( 
the ^amyn tuchl to be repellit in respect of y 
dittay quiiilk is foondit upiiie the aetes of jMif- 
liament and nocht upon tlie commoun law* aad 
ye particuler alleijatitjoes adducet imi of ys 
mw and doctors hes only place in bnimitiji toi 
ane periicular cryme committit agantst »W 
subiect But nocht in tliame quha or biiDiiil 
and proscryret for ane publictrcbellionn as th' 
is And the occultatiouD of yc deiiouuctil 
q«ibilk is vrjjet in the deliffnce is uuly in frag- 
ranti crimine and q*r ye committer of tbi 
cr\ mes is persewit hett fute in qiibilk CMioa 
(^cruliutioun hes some respect hot nocht ryer- 
wayis x^nd lor the poynt of knowledge in aoe 
iJuLlict rebellioun the notoritie is sufficieni 
bot to mak the patinell iucxcuscable his nieit- 
ting- with the rebellis at ye tinu^ q^tenit in the 
dittay As in M*che 1635 efiir publict inhi- 
hitioun maid be bis roa^ ties Trez in Jdmiarof 
befoir And the excuse of chance m meiitiiig or 
of ye inteotioun aud purpose is frit 6k>us Wo€ 
than everie man sould be excuset vpone his 
intentiuiin And the crynie of recept and inters 
commoning (quhitk in so publiet a retielliouo is i 
equall to ye crvme ikielf ) sould be vn*punet8ifl 
but the panneli catio'icht be hard to preteii^| 
naiher accidental] meittinfif nor excuse of tutiat«* 
tioun Becaus at the first tyme thay auM 
to his awin bouse and in taikin of y' familia- 
ritie tbay socht ane lane for him of ane pif- 
tolet and within aucht uays y Vfler, thay mett 
at tlie house of HassiewalUs witliin ane mylt 
to his awin house q'upotie inbtrumentis wis 
tan e be his ma*ies ad?ocat that it was erantift 
be the pannell that day in judgment that y« 
said house of Hassiewtiliiii was within aoe myle 
to his awin house quhilk raudtn i^ the panneU 
to be altogidder inexcusable speciallie iu re^ 
Bpect of ye actis in ye parliamentis 1^67 
1681 1592 quhilk commandis all sublectis 
rnder the pane of daith to follow and reveill re- 
bellis with hoy and cry And to have na cou< 
ference with thame without command of yi 
s'reflTof the tcbyre. 

To the quhilk jioynt of my lord advo 
ansV concerning his Tps distioctioun de bon< 
nisii. It wai y*efter doplyit be the pann^ 
and be Mr. Jon. Nisl^t his prelo'r That y 
samyn is altogidder without warrand in law 
quhilk speak is indi^nctlie et fipeciHce etiam 
tie bannitis et pri>f^cripti« locis supra citalis 
Fanler it was duply it that occult alia being es* 
senti^il in the cryme of recept quhairby recept 
is only defy net in the law most be lybellit non 
solum in fragranti crimine Bot in all dittay is 
cijncluding tne receptm^ and puneiscbinenl 
y'of ft was also duplyit b«t ye said James 
Gordoun and his prelo^r that the notorietie of 
yc rebellis reMhoiin and prose riptioun cai 
nfK'hi be obtrudit at leist sa ag^^vatlie tlie sai 
ailegit ciyms of reosptiog betng sa s«hun«' 





upm a Praetn of Errcr* 



A.D. l6fii* 



flOff 



dYer y* pTOtcriptiotiD And last it wm duptyit ; mainslaf tdaocat be the maothetnd judtctmll^ 



Ui«t ye fortune raLic»»tiiit*r of Telieilis most 
|iur^e mtercf>nitiKiiUn|r or iflitet^ull he irbi< 
tr&rie t«i mak ye km^i^ li>)all Hntiipclis ijiter- 
C4»mti]0DeriB as is in^taticefl ol lufbir be Walter 
Hay And sp*?ciallie in tliis caice qr* ye tor- 
tuitnes jLtid occiilf-mall uu'ttin;^ %«itti the snidia 
itsbeltis h nocht only a%erred be the |»ant)ell btit 
may be ckirml be thre or foutv unsuMpect gen- 
ttlmen ijubilkif uar preiicnt with the pantidt 
und violentlie detenit and keipit in the-liQtiie 
with him. 

£<\er ihe proponcin^ of the qnhilkls alledge- 
mtioea ansVis and duply is aboiie writtin The 
justice be! Tig' ryplie ;.Dd sit length advyss^t 
y'with be his mteHiHjiiitor gevin and pro- 
fiuQcet y*antdl repellit the toirsaid alledge- 
arteea and iknd and dechiiret That ye said 
James Gordaun than vpoue pannell aucht ta 
pa« to Ihe knawkdge of anc assyse fur inter* 
commaning and remittit that pH of ye al- 
ledgeance wittin^lie or udlluglie to w cog- 
nocest vpone be ye said assyse As the pro* 
cets with the intcHo*r ahoue written pronuncet 
y'io al lenlh proportts. 

Ltkiis etter ye proounceing of ye quhtik 
if]terk>'r be the justice ze and tlk ane of 
zow being^ callii vponc resaauit aiiome and 
admittii ?pone ye said James Gordoun 
Ilia asiyfce aa said is for tryell of his guittte* 
nea of ye cry roe alioiie* writtin ape'il in 
bis dittay And his mai'tcii aduocat askand 
inslriinientia y'upoun and for veri6cattoiin 
and cleiring to zow of the pannelles guiltines 
of ye suid dittay in sua far as did consist in 
facto tjrVpone ze war only to cognosce pro- 
duce! judicial lie the said James Gordotin than 
i^pftne panuell his I>epositioun quhilk was than 
judicallie rctd in soV pn's and audience sab- 
scry nit with his hand As also repeittit vnto 
aow the notorietie of ye rebcJles rebellioun 
The hoirniogis and Tres of intercom moaing vset 
and execute in Jaouar last Efter ye q'lk 
poblicatioun and inhibitionn yHn eirpremit 
I be pannell tneti iwyce with the rebellis s'ranea 
in nit awia house And within aucht dayls 
Vcfter within ye house of Robert Collie in 
HtHiewfllhs quhilk is only ane myle from 
the pannellia a win house cotife&sit be him ju- 
diciailie And thnt he aoupet and co^lerrit 
with thame thrt hoVe y^ett^r and Jay with 
tlianiie in ane chalmer alt that nicht his house 
being within ane tnyle yairof And in respect 
ol'soa cl«rir and manifest probiitioun hii»tnaiesteis 
aduocat than protesUt tor wiltuH ern»r ai^uines 
sow in caice ze sould acquit or ctancfe the 
itid Jamrs Gordoun of ye crynie foirsaid con- 
tetiit in his dittay And trew itia that ze 
all being yairetiir'remoyet ftirlh of court and 
ioicloaet within ye assize house of ye liaid tol- 
Nithe and haiftng coosultit and reasonet 
vpou (ha fK»yii1ea of dittay aboue writtiil re- 
firrrit to zor kaaw ledge and del'^rnituaiioun 
And re^eniering agane in court ze nocht- 
mthatandiiig of ye cleir verificatioiin and pro- 
^balUmn of ye said James Gordoun his guittiues 
9^ ye cryiaa foii-satd raat and pi^ducet be his 



L 



declnrutimin of ye said Alest* Irring of I 
Lenturk chanctllef eleciit ami chooaen be zokt ] 
Tponc the said ;issyse all in ane voice land 
prontmcet and declairet wilfalUe be favor par- ' 
tiallic teroerariouslie and be partiatl meaaei^ I 
The said James Gordoun to be cltiane innocenCJ 
ami acijuil of int<brconimooiug with the re^f 
bell is speci6et in his dittay and depositione^^ 
wittingiie or willullie at ye tyines nex*ine men- 
ttonet yUntill In the doing qnhairof zcand ilk ' 
ane of'^zow hes commit tit wilful I and nmnife<it 
at ye teist temerarious erroV and auch'flfi 
and sould he puneist in zur persones and guidi#' 
conforms to ye bwis and actis of parliamenC ] 
of this kingdome llecaus efler the alteadge^ 
anoe« olioue wxitrin maid be the said Jaiueg 
Gordoun and his said prelo*r and ans'ria 
maid y'to be his m.iiesteis aduocat nathing 
being referrit to zo^r cognitioun and tryeU 
bot allanerlie the panncllia intercom moning 
with the rebelJis at ye tyoMs contentt in hia 
dittay And ynt p*t of ye alledgeance anenf i 
wittingiie or wilhnglie to be also cognoscet 
and tryed bt zow Quhilk intercom mooing 
with the qnalitie y^of tiz. that ye sarnyn wa^ 
wittingiie or wilfuUie done was cleirlie provin to 
zow be ye pannellis a win depQsitione#i ] 
Quhairby he granted and confesset nts inter* 
eammonmg with the rebellis at the tymea 
q'tenK in his said dtttay and in maner cleirlie « 
sett down y*inUll And as for ihe qufllitic «*f | 
wittingiie or wilhnglie (}'rof aither of thame 
is sufficient of ye law to mfer the puneishment j 
abrme writtin* the samyn And speciallie 
that member y 'of wittingiie was cleirlie proriii' 
baith be the said James Gordoun than im*^ 
pannelht his depo<rttione$ and als be ye do«^ j 
tohetie of ye rehtllioun q*rof yc said AXvai^t I 
Leilh and Nathaniel Gordoun war special I ac* 
to^ris And they denuncet rebellis and put m 
ye hornc in ye moneth of Januar prececding; I 
(.iuhairhy they war denuncet at ye m*cat cwc& \ 
of Aberdenc being ye mercat croce of v€ ] 
held bur* of the a'refdorae within ye qnhtlk' I 
the said James Gordoun intercommonet w*| 
the saidis rebellis And als be the Trez direct i 
be the tordis of aecreit euunsall inhiheittinf' 
and discharge! ng all hiK maiesteis le^s and sub* 
iectis inlercomniune w't tlie saidis rebellit 
Quhilkis war deutie execute and publetsi af | 
ye said m*cat ci-oce of Aberdene vpone the' j 
saxt day of Januar last Quhilkia depo- 
sjtiounes Trea of hoirning Prez of intercom- 
moning ane executiooes y 'of was producet and 
red to zow And quhUkis did evidentlie prove 
and cleirlie vcrifie that ye intercommonin^ 
was wittingiie done in respect that member 
of ye dittay wittingiie respectis onlie the 
knawlege of yc subiectis coraroittJUjj againist 
the lawis ana actis of p'kament be inter*' 
oommonin^ iriiB. that they knew of yt rc» 
belliouu And that the persones w't qubome 
thay intercom mot i«d war rebellis The quhilk 
is cleirlie provin fimt be the said James Gor* 
doun hi»awindepu«itioun« Nainelie be that arts* i 
cle y*of bearand that ye satd James being de» *J 



lOT] 



33 CHARLES II. Prautdimgi cgaimai Ak». Blair and otiers, [ 108 



mandit be ye lordii bis examioAtore quhat 
ooDfereoce past betuix bim and ye brokin 
men attbat tyrae of y' being in Robert CoJleis 
bouse in Hassiewallia He deponeC tbat be bard 
thame say tbat tbay bebovet to leave ypooe tbe 
laird of Frendraucbt till ye marqueis bame 
cuming becaus tbey wald be forced to lea?e 
the couDtrey As abo hard Natbauiell say tbat 
he bad cbaiset ane of Frendrancbtis men tbat 
day tbre myles And tbat all tbat tibay had 
tane fra Frendraucbt was spent, and bad nevir 
done tbame gmd &c. And als is deirlie provin 
be tbe notorietic of ye said rebellioun, and be 
tbe Tree of homing and intercommoning pro- 
ducet. Qubilkis Sk* tbame selffis ar sufficient 
to prove knawledjgfe of tbe rebellioun and of 
tbepersones declaired rebellis and of tbe danger 
of tbe law be intercommoning with tbame 
and as to the vtber member of tbe dittay and 
actis of p*liament ar'vpone thesamyn is Ibundit 
oubilk beiris wiffuliie, Tbat member (albeit 
the said James Gordoun bad bene frie y'of as 
he is nocht) coald nocbt baif fred bim Irom 
the cryme of intercommoning. The vtber 
member of (wiitinglie)qabilk per $eia sufficient 
of ye law beinir sa deirlie vehfeid as said is: 
And of tbe qubilk poynt of intercommoning 

iwittingbe) zethefoimamet persones of assyse 
les clauget the said James Gordoun baith wit- 
tiuglie and wilfoUie And Eit to convince zou 
and ilk ane of you assysors foirsaidis of sa 
oppin manifest and inexcusable proceiding 
^anis law and justice and of zor solempoe 
oatlie gevin be zow at zor ressaueing and sneir- 
iiig vpone the said assyse It is certane be 
the proces and course vairof, and writtis and 

Srobatioun pnNlucet for verificatioun of ye 
ittay That the said member (wilfullie) was 
also deirlie verifieit to zou and everie ane of 
zou assysors foirsaidis ; and tbat in the daoge- 
ing of ye said James Gordoun y^of ze nocbt 
only bail committed wilfull and manifest error, 
bot also to ye great contempt of bis majestie 
and of bis nienes royall autboritie hes done 
quhat in zou lyis to foster tbe said publiot re- 
bellioun in the nortbe, by prodameing libertie 
in sa far as in zou lyes to all his maieaCeis sub- 
iectis to intercommoun with ye saidis rebelles, 
in sua far as be zour said verdite ze baif fund 
in eflect all intercommoning with the saidis 
rebellis to be lau'll vpone the sole dedaratioun 
of ye iutercommoner that the samyn was 
nocht done wilfullie but accidentallie, albeit be 
the lawis and actis of p'liament, all intercom- 
moning with rebelhs (speeiallie be sic aae 
oppin rebellioun) is nocht only prohibeit vnder 
the pane of death bot also his maiesteis haiU 
subieclis ar commandit to follow rebellis and 
trato'rc with hoy and cry and to present tbame 
to justice And that all his maiesteis subiectis 
do thuir vtter dilKgence at the vttermost of 
yair power in searching seiking taking and 
ai)prchending the rebellis and following of 
tbame and to mak intimatioun t» tbe magis- 
trattis and to |)erMne8 of power and authoritie 
for aDDrehendmg of tbam to be broght lo ju»- 
4 iial natM interacNDBMiu wiita the 






rebellis vpone ony pretext without tbe 
warrand and knawkdse of ye s'reff and judge 
of ye contrey sua that aU intercommoning 
most be wilfull Qubilk is done aganis the«xpres 
ordour prescryuit be ye saidis actis ofo'liameolip 
And spedallie aganist ye actis in December 
1667 October 1581 and June 1593 quhiDcis 
war quotted and alledffit to ye justice and to 
zow as assysors and uie samyn deirlie verifeit 
to be so be the said James Gordoun his awin 
confessioun in so far as in his depositioDea hm 
grantis and confesses his intercommoning with 
the saidis rebdlis in his awin dose at quhilk 
tyme he was obleist to acquent the s'reff or 
some judge of thecountrey of yair being im 
that part of ye s'refdome Ami as to his in- 
tercommouinr witli thame in Uassie-wallia ha 
hes deponet That about aucht dayis after hk 
mdtting with the saidis rebellis Nathaniell 
Gordoun and Alexander Leith with tua fata- 
men come to Robert Collds house in Hanie* 
wallis the marauds of Huntleyis landia q'r 
the said James Gordoun (impannellit) and Hu- 
bert Forbes brother toye peraone of Auohterlea 
Robert Dempster of Cfuschnie and Robert Coi- 
liesone burges off Abirdene war the tyme and 
had bene yair half ane day of befbir And that 
Nathaniell and Alexander Leitb come to this 
house about nyne ho'rs at ny't and that he 
(viz. ye deponer) and hiscompanie soapped 
witli tliame that ny't and remanet with thamo 
about thre ho*r bdbir tbay went to bed And 
that tbe conference that past betuix the de« 
poner and the brokin men at that tyme wee 
that he hard thame say that tbay behoreC to 
leave vpone the laird of Frendraucbt till ye 
marqueis bame cuming becaus tbay wuld M 
forced to leave the cuntry than And that he 
bard Nathaniell say that ue had ehaissed ane 
of Freudrauditis men that day thre myles and 
dl that they had tane firae Frendraucbt wa» 
spcndit and had never done thame giiid And 
deponet that ye cause qrTore Nathaniell chaaei 
Frendrauchts man as he affirmed to ye da- 
uoner, was becaus he was the s'reffis spj 
Deponet lykwayis that Nathaniell Gordomt 
hau tuo lang pislolettis and ane gwn And that 
his roan had ane pistolett and yat Alexander 
Leith had ane gwn and ane pistolet Deposit 
also that the ny't tbay war in Robert CoUiee- 
boose the deponer auu Robert Dempster lay m 
ane bed and Nathaniell Gordouu and AleOLander 
Leith lay m ane vy' bed in the same chdmer 
as ye said deposilioun beiris Lyk as ye said. 
James Gordoun than vpone pannell gprantit hk. 
judgement qV vpone his ma'teis aduocat tnik 
instrumentis that ye said house of Haaaie- 
walliB was within ane myle to his awin bouae 
duhairby it is evident that ye said inleroin»- 
moning was wilfullie and in grit contempt of 
his ma'teis lawis and au'ctie necaua this waa. 
tlie secund tynse of his meitting with thame 
efier the first, and was within ane myle to bia. 
awin house Sua that he my 't baif retired him- 
self to his awin house that ny't and schwuncd 
y' coaspania qMk be did nocht hot be the coa- 
tcair aoapped with thaiBe and dlir supper eot^ 



mp4m a PrcuM of Err$r, 



A. D. l6at* 



[!!• 



» 



fomd with Uiiffi^ llire hoV And yVAir ky 
in atM3 cihuliiK^r wttK thftmequhilk if oU eon- 
femi in hin abtnif writtin depcinitiuun Aiitl qV 
Bfl il [fTiiv a|»|icir ttui the aII^o maid fur 

ye Jiaid /utnex Gordauo titien t I of in- 

tMVOI^unociitig will'iiliie wm refumeil he the 
JuitilM lo J* ftstyte that can be na cuHoV nor 
^feltst to firii sou or anv of Xfiu as tuis^sors of 
MfiuNe tmd eool^mpi of his ma'teis autboritie 
Becaiis all that was altegii he the paondl and 
be Mvr John Nishet hit* preloV was that the 
ditiay was nawayis relevant inferriiifi^ capital I 
jiwiiebchiiieiit vpotie intercomaiootritr because 
II m ttocbt foujidit vpone the act or parliament 
moit rpone the commoun law Nather h it re- 
JstaotNe mbitiniet y'intiJl that wittiDgUe and 
willinglie the panQeU intercom mon^ And 
miie occasotiall rancounterin^ ean nocht itn* 
poi8t aoe aoceBioun to yair rebeltioaa qu'hao 
|i^teis ar surprysed with lb air cuming to yair 
awin housii* or to vtber places quhnir tbay ar 
and can nocht clisiogadge thumsclHis of yair 
eova^nh hr feir or trritatine of Lbame as is 
* b^ Walter Hay anil James Grant 



And ID v^ present caice as the pannell hea de* 

ponettBat he had bene in Robert CoHeis house 

in UiBtie-v%allis with Robert Forbei$ brother to 

ik0 pcfioue of AuckterTes Aobcrt Dempster of 

CiMOhoie and Habert Collif^fone bitrges of 

Abirdene all rnsaspect and honest men half 

ane day betoir the ret)etliscuTning to the house 

<|ubi]k cuiiiiiijBr ^^ y^ rebellis to ye said house 

wai^ at uyne ho'r at ni^ht q'n the pannell could 

BOcliI goe els^ q'r bemt; benichted And the 

ivbeltit l«ry* securitie baiting schota and maid 

fittt ye durris of ye said bougie And as to that 

woru *■ conference^ mentioned in the dittaj the 

lyn is nocht relevant to impoirt intercom- 

iog vules it had bene suhsumet y * in that 

nell had treittet with the rtWUis con. 

\ng y * rebcUioim tbair rehetlious practizes 

rnf>' of purpois to help and liuio'r 

ine to ye act of p'l*Hment qiibilk 

II reception snppUting and man- 

i«iung of rebel lis and ^eneraliie all doing of 

liuoV And the law jovne? ** conversantes 

tractantes euro baunitiM ve prestaotcs 

complexe" Pbar. <[uesL >ti. 172. Last 

I •* conveniatjo el tractatio cum icheliibus ffunt 

» f«rlm frfquetitmioH'* And y* loir can nocht be 

LflbAumet rfi^ caist tua 

K^kftsiouall HI ite said 

^^■■cptioun b«'iri<^ i^ Ka> y ^'i ' !in 

^Hpftssnid exceptioun it w ^)tf 

^IBld Mr. Jabnne Ni^ibel to liiL im^ i uiuiu b*f 

bis .MttieMriH Aduocat Tliat the distinctioun 

tnatd be hi^rpi/f ^,.,r...>ti.r w^^ .,ii,»,T,,i4,T. with- 

I oat warranilm Uu tUe**et 

I SlM^'itHT- rlinrn *!*■ is, loCIS 

1^1 iiat OC' 

ctii't' i recei»t 

qVby i\: 




most b' 
Lot 



h« tilt: 5.*U!i ,Mi, Juhaai; Lliiit Xhti iioloricUL' ul 

Itic ccbcUU f^bdlioua aud prgscnptigau (;ouid 



nocht be ohtmidit at hist «b ft^fgrnraflie th« it-* 
ledpt oryii»# of yair rcceptmg; l^ng' mi sehorti 
et^ir yair proscnptioiin And loi^t the fortuit* 
rancounler of rebellis moot purge intenooin* 
inonini,^ or elUs it sail be arhitrarie to malt th« 
kinf^iH loyall tiibiectis intsrconifnoiivTis av wat 
instaneetbe Walter Hay And especiallie lA 
this caice q^- the fortuittK-s ocddentiuJie of yai^ 
mdttin^ is noclu ooly Hv^sired be the panneU^ 
hot micht be cleired be th re or fnire msuspect 
gentilmeti quha war psesent with the pannell 
and violcntlie keipit and dctettit in the bous* 
with him as at lenth is coatent tn the sRl<f 
dittay. 

Uuhilkis aUedgeanoei gifand the Ktimyn \m^ 
bene Feleiraot, as thay war nocht t)k as tike 
jad^fes in effect hes fund the samyn oochC 
releraot In sa far as they repellit the aU 
ledg^eance ifi jtir« And referrit the fnict an<f 
deid to ssor ci^itioun as assrsors and judg«f 
y'to Nather was yair ony thing producci b« 
the psDoel tiz. James Gordoun or be bis pro'n 
before the sweiring of -zou as assyKors or t^ 
and befoir yon efter *e %rar sworoe befoir zor 
remofeing out of judgement to rerifie thai 
poynt that he was compeillt or that y« 
durris war 9cbote and made finrt Sec AncI 
tbairfoir ze and ilk ane of zou as assysor* 
was iu law aath and conscience bund to bav^ 
judged acoordbg to the d«po0ilii»oea ami 
veriticatioiica producet bo bis ma'ties ad«, 
uocnt Quhairby the said James Gordoun hia 
wilfull intercommomo^ waa aufficientlie w€ji* 
feit to zou as saldis nor zit was it ^lossifal^ 
to ye said James Gordoun than vpone paanfll 
or Uh prelo're lo produce ony vertticatioutii 
for cleiring of that [M>yot or g^if he hadi 
producit ony (quhilk was not done) his I^la'tieci 
Aduooatas per«ewiu- wald baif cleired thai thtt; 
samyn could nochl had verifeil that j>oynt i^ 
that ye said James Gordoun wa« furcel o^ 
compellit becaas it is (^ranted in ye said J 
Gordouu's de|>osiiiones that yair wat fviti 
by the g^idoiau of ye house and histerr^ 
thre vtberis persones viz H^jbert Forbes bro^ij 
ther to ye persooe of Auchterlcs Robert J 
ter of Cuschnie and Robert CoUusone _. 

Aberdene Q,uba being ane number of persones 
about six or sevin, or mais accainlln^ t# ye 
nuoibcr of the servamlis of ye houM the naiiK'' 
berqVof was wdll knwvria lOfxiirtol'jcou that* 
war vpoce the said aasyse eovild nocht hail* 
betie forced be ye saides ttia rsbeilis <:>r gijti 
tbay bad forced tbame i» eoliMttinjBr o^ Y^ J 
durris and keipmi^ the kreto y'awin handie>y 
The said James Goidoun and remanent per* 
sooM beings with him warobleist in law as Ipui4^^ 
and fakbrull tfubwotis te hatf aent out ana ( 
be tpe privat way or wieddw and le hi 
y^by f^evm adrerteismeut to tho lycntl e wi ei i 
ve cuntrv neirest abc»u« olT yo taid<l 

Ik my't haif henet^iHalie dotift' 

.;,^ to bed nnd mmr ejwjdic eftir 

^vttr tn yn ' ' y*in 

V war buiJ tifUr 

rcbellis yuir nvrav , y^ 

\ : , fui tb of ye tM hou A* 



nn 



35 CHARLES IL Pr&teeiing$ against Alex. Blair and others, 



t«rTed tiie way quhair tbay weol and to hnre 
raised the counirey and tjr> have follow it thame 
be boy and cry» quhilk thay did nocht liot its 
is granted be ye said James Gorfjoon Id liiii 
depoaitiouD thai he tuik na heid of ^air pairt- 
me or away paflsiog In the rooirDini^ Be the 
quoilk dednctioun circumsiancei deposuionea 
sndftfaeriB befoir deducet it was maist cleir 
«nd manifest to zou the saidU persones ressauit 
auome and admittit ifioae the said James Gor- 
douB his iiitercummonin^ aboue written wilh 
tlte saidts rebel lis was wrifuliie done be him 
expres aganis the (awis and actis ol pMiament 
and prt)cramationes publeist in the cootrarr 
And thairfoir yefoiroamet persones suoroeand 
admlttit ?poiie his asayse tii sa tar as ze baif 
clanget and acquit ye said James Gurdoim of 
yejiaid poynt of wiUViIJ tntercominotiiD^ bes 
OOeht only incnrrit u itfull and periiirious error 
affani!»t the Ucbt of zo'r awin consciences bot 
ft wo hes com mitt it aue grit contempt ngiinist 
I his nia*l^e and his bienes au^ctie And y 'throw 
hes incorrit the pane and puoeisbmeDt sfie'it 
and set doun in tbe autd law is and actis of 
p^Iiament of y is kingdome Qubilk auch*t and 
60u1d be execute aguuist zou and ilk ane of zou 
in maiat exempkre maner to the terror of 
Ytbcris. 

Thaireftir my lord Aduocat producet an Act 
©f yeLoTtlis of secreit connsalJ of the daitthe 
first of December W^5 no'iatiojjf and appoyol- 
mg John eric of Tr'quair Archibahl lord of 
Lome Williame tord Alexander and sir John 
Hay kny't clerk of reg^s^er or ony tua of 
Ihame to be assessore to his maiesteis justice 
in this proces of eiTo'r p'sewit a^nis ye per* 
sone^ on panoel at ye instance nf his raa'ties 
aduocatflbr tbe erro'r committit be thame in ye 
temerarious and wiJfull clangeing of James 
Oordoun of tnterconmioning' with the rebel I is 
q^tenit in his dittay Lyk as tbe saidis John 
erle of Traqaair Archibald lord Lome and 
Wm. lord Alexander being judiciallie present 
accfptit ye said charge as assessors vpon 
tbsune to his matestels justice in ye niatter 
alioue writttn QVrpone my lord aduocftt askit 
iastrumentis. 

Tbe said Mr. Thomas Nlcolsond adwieat as 
aoe of ye prelo'rs for ye pa on el cotnpeml also 
for Alexander Key't of Dnffiis as proV for 
him and orotestit yat ho my*i be hard lo pro- 
pone bis lau'U defence vpone the order [ire* 
scrvuetbe tlieactof pNiament vii. Tliat ve 
said Alexander KeyH of DnfTus can nocht (for 
his nocht eompeirance Ibts day w4 ye rest of 
ye i>eriQlies of %mym) he laulie domet nor 
adiildji>^t to be put to ye borne hi rt'Sjiect he 
was niK'bt charget nor ceittetl to com|>eir Ijefinr 
yc lor^is of secreit couiuuiU as ye rt^t of ye 
asij 6or cumfieirand war diet and rharget, 

Tlmird^ir the panne) and ye prelo^rs befoir 
' «l betoir 



no 
kd 
yair 



drij^r 



rony 1 



' proc^ 



better 



this cans that ye aii)di!» preJo'rs for 



jiaratiouu 
' '^ ^bttay [iraducet ami red may baii^yo ooppie 



to anH r to ye poyntm 




y'of atid ane tyme afTixt to thame to 
y'to My lord Aduocal decJairet that in 
of ye productioun uf ye dittay and publt^ 
rcimn!,' yairof in judgement in sudieiiceof m 
lord justice and j>ersonea vpnoe pan n el ani 
that v*eftirthe pauuelis preUVrs schwnc» pre- 
sent disputatioun and craves line c«»p|)ie of y< 
dittay My lord Aduocat y'loir and to y 
effect the preloVs tor the panoel may be pre 
pareti to aosweir without farder delay nor ibn 
ciuhilk ye justice sail be pleiset to L^mnf r 
tua me at this tyme produces th 
crimioall q*r in James Gorduun is i / t 
to^ddcr with the haill urittift qVvpone tbi 
fTttoinall dittay is foundit and .vpet iulhe lli 
said James Gordoun bis depositiooea Tli 
tua l*rez of hoimeng qr'by he was dcnuiiei 
rebel I Tlie Trez of mtercomruoning qr'by a 
ye subiects war inbibeit to iniercomiuoiin will 
the rebelUs And y'ut repeittis the actis 
pMiament Ja. the (yt^ parbamento 7« cap, 9r, 
Jacobi sexti: par. l, cap, 21. And par. 19|] 
cap. 144, in anno l/iOi ^Quliilk war tin 
groundis qr' Tpoun James Gordoun was pan 
nellit and accuset and nocht w't standin; 
y'of clenget And y'foir desyrct that my loi 
.justice wald oyer grant present proces or 
he gi-ant or int^lyne to on^ continuatiami t1 
it may be with this certiticatioun that yai sail 
baif iia farder delay Tpone Che sight of j% 
writtis now produced and rejKittted. ^ 

Thejustice contioewis this dyet to this da) 
aucht dayis qlk is ye nyntof yb nisiant monctli, 
of December Ami ordanit ye nersones euteril 
?^*one pannel this day to fynd cau'un tor 
entiie that day ilk pcrsonc viidcr ye panetl 
q'tenit in the former act viz. of ane tboiiBiiji4| 
merkis mooey. 

The persones of assysesnmmond to this day 
wamit apud acta ilk persone vnder ye pane i **" 

s^m m'kis money. 

Compifired Mr. Wm. Gordoun appeirai 
of Strain che and become souertie for euirie 
ye said Alexander Irwuig of Leniurk. 

Mr, Robert Reid bur£^ of Ab*d' for enti 
of Alexander Ranerman of ELsick and Mr«j 
Matbow Lumisden. 

Haiie Gordutm in Glassach for en trie of 
John Ogilvie of Glassacbe. 

Mr. James Cheane wryter ffer cntrie Hf 
Goorge Gonloun of Tilliechowdie and WiDj 

beaiounot' 8c!»elhyn. 

Adame Abercrcmbie fcr entrie of Hector 
Abercromhit» of Fetterneir his brutlier 
J4ime& Seatoun burge^ot Aberdene. 

Robert Banermafi in Elsick for entrie of 
Slid tJhairk'S hteivu) buige.«4 of EdmlMStirli [i 
Aberdeen] the &aid nynt day of l>eoeiiiJ 
lostant* 






^ 



US] 



mpon a Procem tf Error. 



CuRU JusTiciARiE S. D. N. Regis Tenta in 
pretorio ile EdV nono Det^bris 16.05 
Per Maflr'ros Alexanttrum Coluile de Blair 
eC] Jacobum Kobertoun adnucatum As- 
Bfcjsores Justiciario John Eric of Traqiiair 
Dauid Erie of Soutbeak Arcbiiwld lord 
Lome. 
Iniran* 

AssYSE OP Error. 

Alexander Irwingy of Lenturk. 

Alexander Banerman, of Eisick. 

BIr. Mathow Lum'uden^ bnrges of Aberflene. 

Johm Ogiivie^ of Glassiche. 

Wm. Seaiflun^ of Scheatliyn. 

George Gordoun^ of Tilliecbondie. 

Hector Abercrombify of Fetter-neir. 

James Seatoun^ burges of Aberdene, 

Charles Stevin Utster^ burf^ y*. 

Alexander Abercrombie^ of Birkiaboig. 

George Gordaun^ of Newtoun. 

Alexander Le'Uhy of Duffus. 

Dilaitit of ve vilfiill errors committit be 
Ihame in ye clangeing partiallie and wilfullie 
of James Gordonn sone to George Gordoun 
of LogyaltouD of intercommoning with Alex- 
ander Leith and Nathaniell Gordonn rcbellis 
of je north. 

JPerfAFar.— Sir Thomas Hope 4i Craighall 
kny't his Maiesteis Aduocat. 

Prolocutortfor thepanntl. — ^Mr. James Baird 
Mr. Thomas Nicolsoue Mr. John Nisbet. 

My lord Aduocat producet ane act of spcreifc 
counsall qr*by Dauid Erie of Sonthosk is 
no'iat and adioynet to the asscsso*rs fiirineriic 
appoyntit for assisffiig the instice In the prorrs 
of error dei)ending befoir him daittit thciucht 
dav of December instant vpone the pn>diictioun 
qr of .and of my lord of iiikiutheaik his persoiiall 
p'na and acccptatioun his uiaiestcis aduocat 
atkit instnimentis. 

^' The persones enterit ypone pnnnel befoir 
nolat askit instrumentis of y' entrie this day 
apeciallie Alexander Abircrombie of Hirkin- 
Doit; George Gordoun of Newtoun and Alex* 
ander Keith of Duflus and protestit for ye cau- 
tioneris relief. 

My loi-d Aduocat befoir ony fanler di8])utft- 
tioun vpone the dittay nrodncrt and red, pass* 
fra that pairtand article y 'of* wilfullie' » pro 
'Jocoet tempore' And dt'cl.aires tli:u he insist!:* 
only yjionc tliat vther pairl of y o ditfay «|r'by 
the itersones that war vpon James G<»n1on('s 



A.D. 1681. [114 

Mr. James Baird for himself and in name of 
ye rest of ye pannellis prelo*rs protestis that in 
cnice my'lerd aduocat vse ony fanler prolKi- 
tioun be writt aganis the paniiel for proveing 
of yV errors nor qu hat Mas producet at ye last 
dyet that ye samyn may be sene and consid- 
deret be ttiame befoir his Tp propone ony thing 
y*iii)0un. 

My lord Aduocat declaired that he vsed the 
writis producet the last dyet of yis proces and 
now repeilted be his lo' with the actis of pTui- 
ment q'rvi)ouii the dittay is foundit, for ye fall 
verificatioun of the dittay. 

The pannel declairis that yai accept the as- 
sesso'rs no*iat to his maierfiteis justice w'thout 
ony objecti(»im that may be propooet be thame 
in ye contrair. 

it is alledgit be Mr. James Baird for ye 
pannel that ye dittay is nawayis relevant to. put 
the pannel to ye luiawledge of ane assyse for 
ye enour lybeilit Because it is nnther snb- 
sumet in tlie dittay nor proven that the pannel 
now stamling in judgment hauc acquit the 
former pannel for private respect be faTor 
or be partiall meanis w'tout the qlk war sub - 
sumet and provcin the dittay is nawayis rele* 
vant bcsydis that the act of parliament maid 
be king James the thrid of eternall mcmerie 
gois vponn the same groundis viz. the ancht 
parliament evin so the same rewle is kdpit 
and hes bene keipit fhir many zciris by gane 
w'tin the kingdome of England Albeit for j-e 
maist pairt ye Kamyfi dois oecure in civde 
buflineH as is* rioir be yo t\ientie ane statute 
-maid Iw kinjr Henrie ye sevint in the cllcvint 
/.?■>! r of his re^ri'nie .^nd be ye thrid statute 
maid be king l-fcnric ye aueht in the twentie 
thrie 7%-'ir of his rigi me and be ye twentie 
Hve statute maid be ^uenc Elizabethe in the 
threttenc zeir of hir rigi'mc be all thease actis 
and statutis the grand jure hes only power to 
try and cogtios* give any of ye first jure had 
ressauit any sowmes of money rewairdis or 
promeis ot guid dead done to yame setfHs or 
to any vther to yair beliuiff for ye verdeit and 
na vther wavis This is Ivkwayis clear be ane 
statute maid in thedayisot'Edviarde thethride 
in the threttie lour zeir of his rigi*me that ye 
gi'and assyse q*l!v is our fyvc and tuentic hes 
only power to cognos* and try giue ye first 
assyse hes \ytne br\ bit as said is q'lk being nay' 
qualefeit nor prcvcin is nawayis relevant 
igitur, \-e. 

It is aildtl be Mr. John Nisl)et that ye dittay 
sua far as it sultsuines 



IS nnwayiv rrMcvant ni 
assyse ar pannellit for clangcing yovuiil Jsmics ; g'nVillie that yrpnnnall lies acquittwilfullic and 
of intercommoning and conference Mittinglie i te[nfTnriouf;li(; be partiall mennis or favor And 
vith the rebellis and insistis ng::nls thame us - condL'scv-ndit not vponn any niranis or niotivi.'S 
haifing clanget the said James wilfullio par- i of pnrtiuiiiie nrf:i\or nor vpoun any practizer 
tiallie at the leist tenicrariouslle and takis in- i or rorrujitcr and iiidr.cer to partialitie nor be 
strumentis of the reiding of yo dittay and of Iqnhais favovc th;«y have bene misled without 
the writtis producet be his h/ at ye last dyet ' yoqiihilk t-onduHcendiiiir ye gfntTtilitie of 

for verificatioun of ye same viz the act of par- •-' *' -■ *■ ■■■■ *-.-:.— 

liament king James the tift par. (!, cap. 97, 
Jacobiti, par. 12, cap. 144, with ihe drpnsi- 
liones of James Gordoun and the I'rcs of in- 
lercommoning. 
VOL. Xi. 



ye 

IS inatrpt qiiiu accMisatwrius Libellus 
ceitilndin" •i()nnni!t!-. ( t It-.indus venit. Battan- 
der regain sj'\tji ; ctoiuiips liMlistas de forma 
libell cviininaJis ; vi le|^e in cnnsis criminalibns 
Cod. dc accusationibuy ; ct eximiaglossa sccreta- 
I 



115] 



S3 CHARLES 11. 



f ium ?bi forma libelU criminalis proponitur ; ct 
in crioiiuibus non vaj^andum : Lege decima ff. 
tic* flolo malo ^* et accusator non debet vagari cuip 
eAistimatiuDC alia iu discrirnine, sed certuin di- 
cere. Lege si in reum ; ff. de rei vindicatione et 
in criuuiiibus coiuplexis et coirelativis vt adul- 
terio >bi adulter et adultera et repetundis et 
barratria et corruptione judicis per sordes vel 
^ratiain uberiorum |ieue et comiptus correlata 
aunt, uon tautuiii locus et tenipus ezpriiuide* 
U.'nt ill lil)ella, sed et persous cum quibus com- 
niunioiie criiuinis compUcantur rei Lege li- 
bcliuruni tit. de accusationibus ut io Ibrma li- 
belii de corruiitioiie judicis. Amideus — De 
Custello ostcndit in tractu de Indicatu. Thairf'oir 
Being ye crime quhilk. is the subject of ye law 
is not errour simplie quhilk is incideot to ^« 
uiost iniioceut and iu law and seoce importith 
n.'¥f;uilt bot yewilfuU depravatioun of assys'ors 
be favor anu partiall meania And ye assys'ors 
ar to cognos' and delyuer not so much of error, 
as of ye qualitie of it qubither partiall or wilfull 
be lk?or or partiall meanis A g'nerall as- 
aumptioun of fa?or and comiptioun cannot pas 
to ye knawledge of ane grit assyse And the 
pannell cannot be prejudget of ye defence 
quhilk wald result pregnantlie vpoun ye con- 
descending of yc practizeris and meanis of 
partialitie and motives qr'with ye pannell hes 
bene misled viz. Thai ye pairteis consescendit 
vpoun be partiall meanis or practizes and favor 
to hauc corruptit ye pannell was not of that 
estait as to have corruptit yame nor of yat pre- 
dominant favor as to have iuvaigled fyltene men 
in wilfull inniquitie and to haue maid tbome 
conspyre in the most attrocious and impresa- 
mable cryuienixt to that a^nis ye Uoly Gost 
quVith It is alhnost coincident viz. a wilfull 
opposcinp^ God and conscience quem Cicero 
an{)ellat ^' Drum Tel sultcm doroumDeiquonibill 
divinius'' ]>c OtBciis libro tertio. And all de- 
vynes ^* vuluntatem Dei revclalam si non mate- 
naliter saltern formaliter ct interpretative quia 

iuud cuuscientia dictat fcub ratione voluntatis 
^ei dictat" Amesius de Conicientia cap. 4. 
Ai^auist ye quhilk it cannot be presumet nor 
rclevantiie aftsumct that any man erres be fa- 
vour or partialitie without some apparent or 
lybellit motive And the cousonancie of our 
biw with ye statuttis of Ingland vrgt^ be Mr. 
James Baird is constant lie }eact of parliament 
anent ye uuth uf uss\ s'ors that they suU nather 
luk bud nor mcid 'J'lie cuuiravencing of ye 
quliilk tiiilic lu'c-aicry vit be ye act uf parliament is 
tiiiu/ar'tum juramtiilutn and not q' a man 
del}uc-rilU accoirdiug to his knawledge albeit 
et-roiiiouslie Ik'caus in luw and the cnstome 
of all UHtiutit-s the cunciptiuun ami ineaneing 
of ye o:irlii' of juii;^-esis only ** (>uo(! jtsdicabunt 
U(»u quuil jusiiiis ci iiiulius austiticie, sed quod 
justius et mdids ipsis visum fuciit." Lege 
J 4. Cod. de JiKhciisi.— " lit jud<*x tcuetur 
tantum bi scii nttr I'uliit, (|iiia in bciontia nmlta 
versutur iu \ita.'^ Ciceio Lib. 4. Acadeuii- 
caruni quL-ktionum. 
Secuudo, the dittn y is nawayia relevant iusna 
'^i^'uii^ru tit* ^iil^ul2 aud timerarious 



Proeeedingt Bgaimi Ales. Blair and otheri, [1 16 

delyuerance and depravatioan of aasyseowria 
be the material! error and allet' inniq^uitie of 
y' verdict Becaus in law it is a paralogisiDe to 
argue from errour and ignorance to cry me and 
from the inniquitieof y e sentence to the iunii^uitie 
of yejudge ** quia aententia potest esse Iniustm 
ex ammo ^roferentis, et justa ex online etoansa ; 
et contra justa ex animo sed injusta ex caosa: 
Decret: Causa secunda quest tertia" CanoiM 
62. And error argueth ignorance in inielUetu^ 
and not in justice in wfmi^M et voluntate, qa« 
maleficia distinffuit non autem exitus et Te- 
ritas. Lege Divi Hadriani ff. ad Legem Cor- 
neliaro de Sicariis: Et non omnis injuitum ali« 
quid dicens vel fadens est iniustus. Arist Lib. 
5. Ethicor. Cap. 6. Et qniupiam ex iaten- 
tione et electione iniustum tacere reddit aln 
quem injnsturo non autem facere preter inten- 
tionem et per accidens sed ignorantiam Con* 
clusio Divi Thoms in secunda quest. 59» 
Articulo secnndo. Et cum Judicium ait ag- 
gregatum ex actu voluntatis inclinaotis ad 
recte Judicandum pnidentie autem seu Fationit 
determinantis. Thomas in Sa Sdce quflBsL 6. 
in couclasione articuli primi. The fatalitie of 
errour quhilk is incident to ye best and is ana 



naturall eclips of reasone occasioned by ye in- 
dispo»tioun of organes ouia aliqui habent iIp 
tionem depravatam ex mala habitudine nakura 
Thomas 2f 8doe queest. ^4. qualefeis not releraDi- 
lie wilfull perversues and partialitie of ye will 
Becaus in law and be ye universal practiqua 
of all natkmes and tymes the error of judges ia 
not a cry me bot sordit and partiall depravatkron 
is only pnneischalde Lege 12 TabuWum xe- 
poirtit by Aulua Gellius liiiro secundo noctiinn. 
Cap. ]. Lege Julia repetundarum ff. et Cod. 
ad Legem Juliam de repetandis. Le^e Con* 
stantini Cod. de piena J udioB qui male jndicabit 
Novella Justioiani et Litigatores in exordio 
Litis Indicium § Si quis autem ex Litigato- 
ribus, et alia Novella ejusdem, ut judices aua 
quoque suffragio dant $ '* tii (j^uis autem gqok 
stitutione Valentis et Valentiniani Lege Tni*^ 
versis Cod. ubi cansoifiscalesagauturcousti- 
tutioue Gratiani, Valentiniani et Theodoni 
Lege Judicis Co«1. de dignitatibus. In all 
quhilks lawis corrujUM depravatio deprtd^tm 
J'urcu ichelcra and iu the cannon bw simonim 
passim ar ye crymes duiy puneisched in judges, 
and abjured be* thame \\ ith solempne concep- 
tioun of oilhes at yair lulmissioun. NovelU 8L 
'* ut Judices sinequoquesuH'racfio" Cap. 17.ft 
Novella 9. Jusjuruiithnn quod prcstatur & 
his qui iu Adiiiitiistr.nioiic sint, Demostiuea 
contra Dcniocritoin de Junmient' Judicuniy 
the contravening of quhilk aitlics inakis yania 
lyabte and not a involunter ina/Tectat error 
quhilk baith in law dlvinille and philo'fUiia 
is excusable, and without a gros^ absurdititt 
cannot found ane dittay Arist. Libro quinto 
ethicorum, Cap. 8 *' Divut; Thomas, Amesiiia 
et omncs casuists de coiiscicncia crrante quia 
judex tunc litem suum facere iutclligitur cuna 
dolo malo in fraudem k^is senientiam ducH 
Et dolo malo videtur hoc facere. Non cdib 
sententia iniusta est sv;J ki euJtus arguatur 



I IT} 



UjioH/t Prteu of Error. 



A. D. 1$81. 



[IIS 



eiu* rel gnitia vcl InimickrcE vel sordes*" Leg*. 
15. IT. de JuUieils *' Et pejeriU tHnttim cnit 
•cien« fiiUil ^* Lege 26 ff. de Jureiurandci," Kt 
formula Jurifljuraadl otini erat. 8i sciens fiiUo 
<lie»{)iter me boni» ejimt. Armochiiti! Consilio 
891. **• Et Jurtices debent omxinie p^mnrc 
eonsctentiain meiilift »up/* Cicero pro Mibne 
ttjiassim: et conscienlie Hiam erromtn di- 
€4iilur sequi quia ohli^nt ; otiities causuiste de 
conscientm errante adfu tI voluntas disfordai is 
a cofiscicntia eUurit errante nmfa sit et iniiiftA. 
duia quirqtiid est contra c(»n»cnentiain et rum 
«r fide peccatum est ad lloiitano« CMp. 14. 
Thomas 3 quest, 19 articalo 5. Be the whilks 
alleg^ations it is constant that itrnomncc and 
error in judges is nocht ane cTyrne Kt Im- 
perilia et itfiprudentia f»er quani judicen litem 
iuam^aduntnonest inaleBciuoi In^titutionlhus 
De obli^iionibiis quag ex qua&i delicto nas- 
eumur, ^. de oblig^atiDnibiiR H actionibos. l^ege 
6. ^ si Judex. Et leg^e 6nali de variis et 
•Xtrmordinanifl judiciis and thatformall iniquitie 
Aod partialitie cannocht be aubsumet vpone 
aentcnces maieriallie erronius. And speciallie 
aganist the aasysors quba or nocht judges 
profiteiites MfitMin ct qui idco tenentur as- 
•uoiendo officium ex quasi delicto. Pbarina 
foeat. J02. Num. $89* Bot i>edaneous and 
HfitneiBuiif Judges require! to serre the king 
iccoinling- to thair conscience '^ non ha- 
bentes Jurisdiction em sed cognitionem tantum 
camque facti taiitum cuius iguorantia non €St 
bta culpa nee temeritaa nee quasi delictum et 
interpretatio prudentissiina etiam tfallit'*if. De 
Juris et lacti tgnorantia Hot speciallie in Ibis 
ciice the alledjTct ioiquitie of the seatence 
fllM fl ttl lit eaiinociit qualifle u ilfuU error agnni^ 
ttfi raitilroeii now panne 11 it bein|r all hottest 

Sentilmen aclcno\^lpdi^it be rne lord aduocat 
inuelf quha hcs gevin pruife of yatr loyaltie 
ia y« lait disordourev of ye count ne And bes 
Ithes^reifaDd Tiber com mission eris for 
J tharoe And cannocht be presumet 
" iodangcrit tharr honor and est ait be a 
wilful! acqaitliuop of ane poore inconsiderable 
man in quhouie ihay had no interest and 

2abome for the maist |it* thay had ne?ir sene 
Q respect v^of s^ing ** in dubio dolus non pre- 
sumitur scd ex itidictis perBpicuis probari coo- 
venit^'Ub. 6. Cod. de dolo malo cheitlit! aganist 
Judges, 'Phari. que«t. 89 Num. H, Et omnes 
docUircs in Lege 3. Codices de officio Civthuin 
Jodie uni tn verba non artritramur. And in 
the present caice all presumptiones exclu^ 
«!*• of dole ar ooncumng to the qua- 
Utic of ye pannell baiting bene hitherto 
hotieat and uuMU^pert g^ntiJmcn The qq^htie 
of the imirtie acquit quha could nayer pnie- 
tize nor dc^enre fauor The number and pod- 
aonancie of the haill pannal in ymv acquit- 
ting a man in quhouie tuay had no interat and 
j*loir can nocht be nresumit tn have conspy red 
wHIiout oity cause m wronging y^r coiiMn«uoe« 
^tliev hail fyM t ' vine moir 

II rnc of sliucht : quhilk 

'the taw and in allMiM>ii..tLnii i* uue maiirt 
prlgtiiuit prcanjiiutiottn ** quw ccnAuiv causa 





^essnt delicti pm umptio ; et dolus non pr 
irnintritr vbi non adest Yucrnm.'^ Crtivettt 
Concilio 175 et Concilio 319, Baldiis Coneili 
25, volumine secnmlo. *" Multo ininus fh 
damnum sentireinr** Pl^an. quest. Hi. mi 
44, H is y'ftnir conehidit '* qund fran« p<ite 
esaefine pena sed penn non sine fraude ne 
of>c*!tBc debet iis qnonim seut^ntla fuerit solut 
et resrift«^ nisi Cfmvinei potueriut vel iniqn^ 
animo jndic«<sse vel aliqimjtrmtia et rupiditaU 
dcpravari." Decretal, Cju J sn ^> quest, 6» canon 
3 k ** vbi glos^a *,{ couvinci ar^umentatur quo 
contra judirem malum non prestimiturquan 
vh sententia iuiqua H rescissa n\i Wm con- 
vineatnr et propterea qui dirii judicem dotd 
aliqiiid egisse probare debet,** Phari. quest* 
Un. num. 3«1. vbi ex vertio evident 
I^gfe siifilus, ff, de juiliciis cf»lti^tt quod ad 
judiciH dolum prohandum non ftuA^icinni pre 
sumption^*^ nisi sint evidente* «•« concUidente 
et non presumi ev tacti qfiJilitjite nisi sit 1 

Tt nulla paUiati<me exeusavi po&iit." 

Num. 35. ** Kt judex errando eiinm in jup 
non in dolo sed lata ctilpa esne diritur le^** 
ff. de verborum signitir^atiooc. Phar. que 
111. num. 473. '* Vhi astrurt sententtituti 
suura innumerifi testimoniis dnctonim ussoren-' 
tium quod licet ex jiidicts ignnmiitia arguattif 
lata culpa IS on taroen arguiiur iloias «*t quo " 
nee etiam dc^los presumntus itidiiciuir niulttl 
minus punitur quia in cnminalibus lata culp 
non eq^iipai-Htur dolo. Phar. quest. R4. § I 
nali. Num. 21. Phar. quest. SO. Num. Ifl 
Et omnes doctores et de jure el tyinsuetndini 
judicis non sic iudicantur desententiis per im- 
|>eritiam legis sed de dolo et l>arratrm. Bal« 
du8» in lege observari § nrofiacisci ff.de oBioil 
pro consul i> -i i-.r^tr. Ilyeronimu*; Jachimu 
Coucilio i\ u vbicitat Batdum Ber 

lasium et or : stores in materia si iudicatiil 
tenentesjudicemnonteneri de imperitiaet control 
judicem siju«Jicandum non sufticete presumj*- 
Clones sed probationes sole clatiores precipue vb 
cessatcommoducn etftilitas. duo ca'?u senterttii 
iniqim non dioihir doliMui: ibidem num. 
Quia in qualibct materia considerari ileb 
potius causa facti quam factum. And llti 
act of parliament 1475 puneisches only fals i 
sy^rs as the nibrik beiris And {{rtioranee iti~ 
law can never impoirt falsett " ipiiii tnlsum 
non potest esse sine dolo." fr.de dolo malo. 
And the act of parliament cmly puneisehcs wjU 
full acquitteris be favore or paiii^il meanest 
and temeraritie in the ad of parliamont i^ takei 
copnlatiuelie with wiltullie as the dif;iunctiv#lj 
* or^ it ever interprejt quhair yair sould eiisevf | 
vtherwnyis ane inhumane ahsurdHie aujj 
temeraritie is only puneischablo quaiulo 
veuit H dolo malo. Phar. quest. 0<J, nun 
63. Alioqui temeritas faeilitatis venmrn eoi 
tuiet et peiia nou potest irrogari C ad «enatua 
consultum m Tnrpilianum et ori 
siMuper c^nsideranda est si enu Ao% 

lion f«t delictum. And (t 
mniestie «|r*nitO the act 
Intive i|»tmeisc^c0 only p<iiu 
d^eravit ct dig«rai(M» {ivrcouvK 



33 CHARLES II. ProceedingB MgmnH Alex. BUiir end others, [190 

foundit quiiairin it is said that natie presume 
or tak v|>oiie hand to recept or intercoramoun 
&c. For heir * or' does not seperat wordifl of 
dyu's senn* in sua iar as to presume and totalM 
▼pone haud ar all aue And in the strict accep- 
tatioun of ye wordis ancht to be interpreit da 
dolo prcmediuito ct apjiensato non dedolo flim- 
plici. As gif ony man knawingfthal inter- 
commonin;^ with rcb<>llis war a cryme Bochl- 
with;»taudingy 'ofhe wald attempt to committhe 
said crymc thinkiu*^ hy i»ome vtlier e?asiouii to 
eveit thepuneischment of ye law and to schaw 
clcirlie that y^e said word (temeraritie^ in the act 
of pai'lianicutmost be that same with witfali 
error and partialilie The act of parliament ia 
allcad((ing the caus of the |freat assyse vi|pe» 
only tills that gif ony sail haif acquit he wiii'aU 
error or partialitie and speikis nathing of teme* 
raritie Uuhilk wordis of the act being strenth« 
eiied be therubrickof this act and the corooaomft 
law auchtto stronthen and interpreit any sub- 
sequent wordis of the act ordane<l be thesainjia 
in respect of thaise wordis wilfuUie or partiauie 
meines conteined in the first end of the act. 
Tertio it is allegit lie Mr. Thomas Nicolioee 
that the pannell cannocht go to the kaew- 
ledge of ane assyse vpone the dittay m 
mpect the samyn is nawayas relefant as 
it is declairet he my lord aduocat '* in in- 
gressu Litis*' viz. that his lo'insistis only vpone 
this dittay as it Ivbellis the |)annellis as temere* 
rioiislie or wilfullie to haif danget James Gor- 
doun the pei-soun first pannellit frome wittingp 
intcrconiinoning Because the dittay does nocht 
rdevantlie subsume fra the act of {t'liament * de 
*■ pen a tcmene jurantium super assisam' in sua 
far as the said act boiris That in ye accusatioiiB 
of ane trespassore nottour and niaiiilest knaip* 
lcj;re beinpf had of ye trespassour Than gif it salt 
happin the assyse to clenge the tresjiassore and 
gif it sail be Terified evidenced to ye assyse. of 
error that ye p^tie acquit was ane trespaiMe 
that than ye acquilteris of him sail incur 1^ 
pane of * tciueri jurantium super assisam' Bel 
sa it is that ye tUttay subsumeing that ye pae* 
nehs assoilzf ing James Gordoun fronie witting 
iutercommoning dues nocht subsume that thay 
assoilziet ane trespasser and cheiflie such aee. 
trcspassor as qr^by nieanet be ye act of p'l»» 
ment And y'lbir it is nocht relevantlie su^ 
Kumet fra ye act of pMiameiit de ptna temer^ 
jurantium That James Gordouu being ane 
uaiked wiitintr inlercomnioner is no trce» 
passor It is cleir out of ye dftinitiuun of wit- 
ting interconimonin|i;; allegit be my lord ad* 
uouat in ye dittay viz. that allenarlie kna«r« 
iiig that the p^icis with q'm he intercommon- 
(id warrebellis lie intercom inoned with tbame 
iior to niak ony intercomiiioning a eryme 
and such a cry me as be the lawis of the cuntrey. 
ar puneischable be death Nocht only moaft 
ihay be prcsupponet that ve intercommooer 
knew the rebeJiis to be rebellis hot also that 
knawiiig tlianie to be rebellis befoir the aft of ' 
intercom moning cif the tyme of ye same he 
had a frie will and intentioun to iniercomniona 
with thame For of the law of all 



119] 

y'foir in respect of the cubrik beiringonly falset 
and that in law ndirica dat interpretationem . 
statuto. Mascardus de generaii interpre- 
tatioue stalutornm et ostendit mentem statueii- 
tiom dicia conclusione. And that statutes ar 
to be interpreit nc»n secundam rorticeui ver- 
borum l>ot accoirding toUie rubrick and vni- 
uersall strayne of law and reasone precipuc 
quando se([ueretur absurd urn. Mascardus ibidem 
<Sadem questione temeL*antie. Thuir can never 
be interpreit ignomnce qolitlk in law and sen's 
can nevir iiupoirt ane cryme quod consistit 
ex voluntate et ad'cctu et dolo malo. As is 
constant be all the cnmiiud edittisofye law 
in the 27 and QQ buik of the Dip^csts q'in the 
hiiili matter of crymes is contcined and almost 
in everie title and everie paragraphe dolus 
mains data opei-a cnimus affcctus |)ro|}o&itum 
volunlas i'raus ar re qiiyret and repel tit, 

Itistiket be Mr. Thomas Niculsonc to the 
last alleil^eance proponct be Mr. John Nisl>ett 
andchietiiciu furtiiicatioun of that poynt y'of 
ancnt the interprctiitioun of the particle (or) 
to be vndei-stuid as ^i\' it war the particle (and) 
and that temeraritie in the act of 'parliament is 
to be conioynet with wilfull error and partialitie 
It is allcii^et that nuther in law nor cvin in the 
actis of parliament thamesc^ltEs is the saniyn 
ane impropriat signilicatioun stran^^e or nucht 
fiudabic nut in l;iw hot in. ye contrair for es- 
chewing of civill danf^eris in matters of guidis 
or heritage 'i'he particle (aut) or (vel) is in- 
terpreit and tane for the particle (and) et As 
chicflic in Ltge 57. s. 2. ad TrebL'lli.'mum se- 
natus-coiisultiim |Kn*peto de te vxor charissima 
turn inorieris hereditateni meam rcstituas 
filiis nieis vel vni rorum vel neputibus meis 
vel cui volucris rcspondi (inquit jurisconsultus) 
inter iilios siilistitutione commissa factum 
videri. And yit be ye woirds y'of to witt * vel* 
thair was powm" gevin to l eve the heritage to 
aue of ihnme us also Lege CAh ff. de verb^rum 
significHlione in e\)»res tornies sepe ita com- 
juiratuni est vt coniiincta pro disiunctis rccipi- 
nniur et e contra disiuncta pro coniunctus nam 
cu^n dif'itur apu<l vcteies ai;-natorum <^ntiliiim- 
(juc pro separatione accipi ac cum dicitur 
super {K:cunia tnlela ve sua. Tutor sepa- 
rutim sine ps-cunia davi nnn potest, iind also 
liege 't. Cod ice de vcrbdruin el rerum sig- 
iiiiioatione ilii in«liiis itaque nobis visum est 
inquit imperator omni huuismodi vorbo citato 
coniuiK'tioncin aut pro et accL'pl vt videutur 
copujatiuo inodo esse pn Inla qucmadmo- 
dum in iiiterdicto quod vi sut rlani coniiinctio 
(aut) fM-o (et) apjKTtissiiii;^ est pouita. In q*ik 
cait'ts for civile res}H?ctis ll.-c inipmpriatioun or 
the w ord (aut) is in vse Ai;(l \ airfoir far rather 
aucht ye samyn to haif place in this caice 
qr' wiUiout tlle!^anlyn the act of parliament in 
the wordis of ten sera ritie can nocht reosaue ane 
iiiterprptatior.n accctiniing to law and cqnitie 
And yat ihe wt>rd (^r) cvin in sindrie aciisof 
p'liamcnt dois not so sep<rat the words bctuix 
quhilk it is put as that thay snuld have (htitrent 
sens' in substance Jt is cleir oat of the act of 
^'i;a.n<mft ^^^ qf» ^^^^^ ^q g^st dittay waa 



ISl] uptm « Pr&crn of Eirer* 

coDtrollablie observct and inaiitcnet l»e aU 
'i* wry ting ^potie the caicc rif comuiis* 



A.D. \6%\, 



[ISt 



of crytnes autl luvw tiie same are pu 
BewcJKwble ' It k cletr iliat in cnmes ilie pu- 
B«]«cbliient qr^of is corporali quhld<ler capitall 
or not l*liat i>c»/t^ that is ,the frie will and 
itit«uttoart of ye eomroittcr ia r«qi»iret As tfi 
the grittesi of all crymes in Crimiiie fese 
iiiaie«Uti$ per totum tituUim tf. ud Lep^fTn 

» JuJiam Maiestaiiit ihair is ever mtuiiuim 
maid of Dole Bot chicflie Lt^re 4 . foc/mi tUuh 

' BDeut supplting of reirellis q1k caice in the 
same ivith oures And rnair iVi ciusve opera 
dolo main Uostes popiili Hnnmai couicatu armis 
tdis eqiiis pccunia aliave qua re adjuti erunt 
ct nisi iniervenerti doJus in cofiinu»&icne cri- 
mrnis reos onlinarla pena non est punicnduij 
Julius C'larus Practica Cltoitiiilifl f . tinali quest. 
8-1 nutn. 1. Antonius Gonilsius variaruin resO' 
lutionuQi Totno. 3, De lioraicidio nuui. 13. 
€*rimen eiiim commimutu «iae delo quanq^m 
itl sit materialiter quod revefa es§et erimeu si 
ad fuerit dolus in quo consistit forma et essentia 
criiiunia cosiissi qua enminis Me tamen doli 
CDmmissum coaiuittieiiti uti'quam imputatur 
dnUm attteni adeiie dicitur si voluntas eonimit- 
leodi cniiieti vel d^ietiim reus Jiabuerit, Lege 
^.Cod. dcHicani$ ibi Ri quis sine animo occi- 

^IpMli occiderit eum nun puniri. et Lege 14. tV. 

^^nr/i 11)1 Divus Hadrianus in hec verba 

HBRripsit in male ficiis voluntas spectatur oen 
txitiis, Tbe reaaoiib qr^of is ge\iii lie Fhart. 
que«t. 87 inspeciione prima num. 5, Quia 
sine dolo et tinimo di liuqivenrli delictum tion 
Qommillittir et^ ne€ pnniturf non commi^lUur 
iiiquit quia animus et proposirum distin^uunt 
mabilcia et in dtJictis et malefk'iis vttluntav 
•pectatur et non exilu"i. And uTuiidis bimselff 
vpone expn^'s JrnTis*as Lesfe 1. § 3. If. nd Legem 
€ioroiiliAm de Hicariis Ibi cum qui liominf^m 
si non oecitlcndi animo a<Uiiistt absoh i 
k*et \f^^^ ^I3a, in priudj»io f^^ furtis. 
ibi qui iniurie causa jaooaiii elftcgit qnanivii^ 
iode per alios res amoti gust oon tcnetur furti 
nam maleficia totuntas et prepositum delin- 
quentis distingutinl; et capile ebm voluntate de 
Miitentia exoommuniiUktioum cum vohmiate et 
pfopof^ito mrilolicta distinguuntnr excommuni- 
cationi.4 senlentiiKm non inciirrit qui e\commu< 
nieuto in his qui ad a1i«ohtti(mem vel nhas ad 
ammse »«dnrrni pertinent in loctitioue pai ticipai 
Licet etiam alia %'ert>a inridentc!r intrrponat. 
ita sentii* 3iiutM:hiu>« de Arbrtrariis Judicium 
t'iiHui^ii. num. t» l>um ait veram ei divinam 
«Kie omnium sentontiam iletirtum *ine dob* non 
puniri And th.it mvca du rrquixitione duli in 
«fimmibu«i is so inlair^^cd be all tlie doctors 
that Ibay IkjUI it mm quhtifr it is protiitit l»e 
ooy statute simplV 'I'bat \e eommitter of the 
cry me saH bc> puneisrhc-t m.* death. Etsta- 
liunm intf^lbi^ecidum si delictum sit dulo com^ 
Iftissum qnii* sitatuia reeipiunt intiTpretaiionem 
passiram a Jure communiuequis damnum in* 
liebitc patiniur. glosea 10, l^ge. 2 Cod. de 
Nox. act. Jas. Lib. in actinmbua num. ^6, if. 
l>e Litem jurantia Ibi tent,. n!e cou- 

lrarimi» Idem Jas, in ru^ tie lege 



nam. 19, el iO. Ant. Gom. Varioniiii reao- 
lutionum Tom. 3, Cap. 3, onm. 15. Paul 
de Cas, in rubric. Tit. ff, dc lege num. J9- 
Alexander ConsiJio 140 num. 4, toIh. £» Et 
per tolum consilium vbi congnJuit eum qui 
[josuit oHendiculum ad feiie&tram c&iiaa ca* 
|)feiMli fbrea noctu aecedentes non teneri de 
ocdso fd contigerit ahquem vol en tern per so 
vestram ingredi mediante oflVadicitlo precipi* 
lem Irtpisum in lerram et mortuume&«»e uoqiioA 
qui oliendiculuui posutt anuiium occidendj \ 
habuit. Lt coui>jUo 38, ti>I lo uht con 
Itiit locum case Jure repr^ > in suo 

e^^iiiuihuH uoo olmtante - 'taute ad 

sueoes!»iouem cognatos proximtores in grado 
quia per hoc non excluditur Jus rfpreteDta-> 
liontK. Tira. de Jure primogenilorum quear, 
40, num. 2^, el B9. Pbarioa. de dehctta 
carnis, quest. 345, num. QJl, et num. 159. 
Alias SI statuta interpretarentt»r sequere- 
tur maximum absurdum : Nimirum quod esor 
homicidio casuah quod sine aliqiia cul]ta con-^ 
tigerit quis decapitaie deberet quod ecset vaidd 
Injquum. Idem Paiilus m Lib. 3, €3od. d^ 
£pi.s. Audientia Jure secundum iua com- 
mune statuta judrx interpretare potest quainq'ia 
ea serfarejitiuverit per eius emm Jutamenluat 
uon loUitur arbitrium quod ei datur a Jure muk 
muni dictus. Pauhta in lib. 3. Cod. exqui 
Caus. in lamia irrogatur vbi ait se istani causain 
habtii^e de tiioto et i|uendam evasi^ise a pcB» 
mortis imo verba skituta smit potius impropri* 
and in civilibus et etiam aUquando pro super* 
liuis Liabenda quam lerant sensum jure com* 
muui contrarium et pafiatiir quis damnum in* 
debite, Joannes Tugona singular, suo 16 mini* 
7, Hipp, de Mar. singulnr. suo 640 num. 5^ 
Ergo niulto inagiii in criminalibu^ ne quia 
damnum vite indcbitum eiusquc dispeuditmi 
pat ia tur. 

Turn autem maxime stati^ta crimifiibtifl 
|jcnam capitalem imju^n'^n'm viinnJiciter sine 
vita do!i meutione i » a Jure 

comrautii teeiperedt^i , i»"llii:antur 

mode crimen dolo sit commissum, quando sta* 
tuta hi^ verbis vtnn tur, ne quis audeat vel pre-* 
liiunat, verba autem audei^ vel presumere no* 
turn animi et voluntatis presupponunt, PhaH. 
in quest^e 87« num. 33. et audere vel pr«- 
»uriiere ex alicno ^ecunda t>arte pru^sump* 
tionum Num. '^ nihil aliud stgniHeant 
quam prt*«»um|»4ive et suprrhe aliquid agere att* 
ihoritate pi .:< niptn sujKTtom amho- 

ritatem ; * clium et supercilium ia 

animo et lo.iiinuit iiiibtnt. Ita AlexV Coa^ 
<filio l!23. num. 9. vol. 4. ifor ony stafule er ncl 
^9 fxrmpt* e,rQtta The act nf nulJuiTaeiit ini 
anno 1592 aganiH inter* . bt'iring*^ 

tliaiseword^ That naue p i iik'Tpone-' 

hand ayer most be u'idenitand to speik of'^ 
crymej* committed an mo tt pntpoUlo tom* { 
mttteutii or ell is the said is aetis sal be eoa« 
trair fo the commoun taw that puneischet 
na ci-ymes capilallie bot crymes eommiltit off ^ 
wilK and tniiutioun And also ye saidis actiy 
sail be conlrair to thameselms and imply 
aue oontradiottcmii m tlie commitler of the 



Hyj " 5$CnARLlSn. Pt^etedhgiagdhntAteM.SUiraniotheri, [Ifl 



€ryme ^f tbfty tta\ he vnAlnUud of theaee 
^uha coitiDiittis aay allegit t^r^me " ffiDe 
proposito et animo dttincjueuJl'* quimo zit thay 
a^ieik only of ibtas« quba sail presume or tak 
rpone h»nd to commit the crynie That is quha 
conl#mpniikijf the ^upreame amijoritic in vair 
myntJis Qttempllito doein the contrair or ye 
■ame and ta (wrtietrat ye «ii^rae forbidden 
quhilkis lua quatiteis Ttz, to commit any alledgit 
ei'yme ** sine ajiinji> commiiiendi,'* and to 
cominit the same ** animo presiimptuoso et 
legeiii spernente** ar oocht compaiiWe "' eotlem 
tempore el actu." And nocht only of the law 
is this intentioun callit doin* he the doctors 
naikedlie requiret to intervene in ye comuiis' 
fioim of ony crime l»ot the same is so stricllie 
ezmctii and link it to thai gif be s<ime gross 
i>eg:gUgt^nce el lata com mitten tis culpa quod 
crimen ridetur committJitur, |>cDa iameu oriii- 
Daria com mittens puniri no n potest quia puni* 
endiis venirct si ex propositoatlmittniiir crimen 
^uanqnam enioi in ci%ilihu& bita culpa doio 
eqtujpareiur non tamea in criminal ihii^. Lib, 
T* n. de sicarits. Ant. Gom. dicto capilulo 3, 
Num. 15 versii ; iroo qucMl ma^iu est quamrili 
hotnicidiitm sit comoiissum lata culpa, ifan. 
titulo de homicidio quest. 1^5 § 1. Num. 92 et 
45 Lata enim culpa non est dolus verus 
Bed presumptus. Julius Clarus y dc homicidio 
Nutia.4. Minochius de arbitrariis judiciis eas. 
352 Num. 12- li'arin. dicta questione 125, 
Num. 45* In the ^\hi1kii places the doctore 
a.6irmes Crime^i sine dole rommissiini non 
ordinaria sed iniliore pcna pleclendum etiamsi 
mrlstt lata culpa, dolus enint in tlubio in de- 
lictis non prelum itur scd semper vrget pro 
reo genemlis presumplio^ ft ea actiia in- 
lerpretatio fiat ne quis incidat in delictum 
Math. Matbei sing, suo 110, Ja9, in lib. hoc 
Jure Col. peoa vltima versa S. fallit ff, de 
»ctiaoibus Bart in L. 7. ff> de sicariis et in 
Lib. ti adultenuro turn ince^ta § iidem impe- 
ritores, ff. de adulteriis tenet abquando in 
delictis nollo modo puotri lataiD culpam et 
difitiuguit iuter chmina et ddieta quis prtnei- 
paliler in altermn committuntur vt bomicidium 
ua quibu5 ait Latam culpam eirtraordinaria 
puniri poese pena, et inter delicta que per- 
•oiiam aiicuius principaliter non respiciimt vt 
est stuprura incest urn et Jn nVo cast) ctmver* 
satio cmn bauito ; in quibus delictis ait BartoK 
L^tam culpam nulliitenns puniri. QucMiauteni 
de delictis capitaliter punieudus dictum est re- 
qoiri voluntatein et propositiim delinqucndi 
sauo sensu est inCelligeiidura ; lia vt voluntas 
•it libera et nou caacta neque vi neque itietu 
iufcto; justo nitnirum qui in constautiiisrtnum 
nomtnem fadere pHest, voluntas enim est 
mavr oogente ad aliquid non irai- 

Un uduui.hoc est non faciendum 

vel tacitndum : Cnp, 10. Cas* 15* qu€»t, J a 
Uccreti 2 parte Pn>inde si quls vi co«mHus 
f^ ti "' iiti jiuitn aJiiTuid tecerit vel per- 

«ttr riau tuuto hanetur in civihbut» et 

in cuiMitii«iiii>a« } precipue in ils criminalihus 
altaiyi pcriNIOftm principaliter non res- 
|pn> ttOtt crimine ii«hbetur 




vt in civilibas passim baWri est : per UHtoi 
titulum fi\ De eo quod metus eau^, ei qu< 
vi et vi armata; »ed precipue in L^ege Cics 
tf. de publicis vbi cum Cetsar insutai 
Creten locarcl Legem ila dixerat : tie qui 
preter reilemptorem [tost i*tiis martia*^ cDtcm e: 
insula Crete Ibdito neve ejcimito ueve avellito j* 
cuiusdam navis ante idus martias et»tif 
ouusta ex porti? Crete pfoferta vento relata in] 
portum eiTit, dein iteruui post iduj* l^larcir-^ 
profecta erat, coniudebatur ntini contra Le;^ 
factum quod post idus Martias ex uisuta C 
cotes exiisise viderentnr: Hesponsum socuil^' 
dum casum propositum viiieri non contm 
Legem factum; ideo quia relatus erat niiutx 
ternpt^tate, et sic in Lq^era latam commits 
coactus involuntarie autem hoc*, est concts 
voluntate commissa non punicntur. Gl 
Gotbofred. in dictam Legem. Ergo intil 
raagis in criminalibus quoequis vi relju»to 
c^Hctus ill Legem cominillit vel statutuns non 
puuiunttir quasi contra statutiim facta : sis 
statutum prohiliens rem mobilem alienari sub 
pcna in forensem Lacuna solum habet in alienn- 
dcme vohintaria non necessaria, Clarus 
tiuali quest. 82. staL 2. Num. 4. sic 
reccptatoribits coaciiSf recipientes banitum noii 
voluntarie sed coacte quia plures sunt banii " 
simul et eis erpellere non potuissent sine 
periculo pena aliqiia non punitinlur. Ita 
Barard. in add. ad Clarum quest. 90. Num. 46. 
ibi ait tales receplatores non teneri bamlo« 
in doiJio relinqtiere et recedere, Justus autem 
niettts ^ est et talis qui in constantisskmom 
boniineift eadere pot^t : Est terror armomm 
etiatn absque eu quod arm a habentcs iis wti 
fuerant. Lege 3. \ qui armati 3. ff. de vi eft 
vi armata. Alexander Consilio Lib, 5 coa^ 
si ho 156 Num. 3. et Lib. 3. Consilio $8* 
Num. 2. etiam absque ulla comminatione vel 
percus^ioue ^ufiicit terror armorum. AleiC^ 
ander diet. Consiho 98. Num. 3, Kt 
quamvi^ qui cutn armis accessit amja de|K»*^ 
suerit : Glossa in diet, § qui armati, et Alax ^ 
ander diet. Consilio Num. 5. Sufficit eiiim^ 
inquitdictus Al^^ifander Num. 4. et 6. ibidem,' 
solus limor violenlie infereude ut sit iusti 
raetus modo subsit Justa causa propter quacn 
futuram violentie impressionem timere de- 
bemus licet violentia neque fuerit secuta Imo 
tiequecomminata ; non enim debet quis periculo 
extremo sese subjicere: vnde Barard I 
supra cilatci receptatores banitorum eos 
fie 11 at coactoa qui banitos cunti plQre« 
simul receperuot eos expellere non valentf 
sine periculo. Item de Jure deterii>iu»tum 
est, qutMldicatur metiLs Justus, hoc est viri con* 
stantiasimi quando subest metus mortis vel 
met us cruciatuB corporis Alexander Lib. £1, 
CO nsiliorum, Consilio 99. Num. 3. L, sed el 
fii 3ff. ad Legem aquiliam, Ibi et si metaEA 
quis mortis furem occiderit. L. 3 § d«cimo C 
quod metm; causa L. 4. Cod,4.odem L. 13 d« 
trunsttctiouiljiis * tbi set) talem metum prubare 
oportet qui salutif Hrel perioulum vel corpus 
cruciatum cgnhneat, L. 7. Cod« de lits qut» 
^i mctusuecau^ gesta iaQt» ibi tovtruineiiium 



si 

id« 



iricuio 



■ 



upom a PtactMi cf EmiT^ 



i^. IX. \6%u 



[lia 



rnetu nioHit ¥«! cructatu corpom eitortum. 
ilftrthdua diet. L. 3. § an i , tf. de vi el 

vl amiata. A nd y'foiV klx s din^ lo llic 

lawis and ti^tittioaeis oi liaclo'rs addiicet 
heirtoftiiir nil n^ifn^uig wilb e(]uitie and rea- 
aotie 110 ij!i - >« And thiiirfuir uochH ye 

wftling II Flinty lyheUit agnnis Jamei 

'Gordoun \\\v Tust |Kmncll can b« eatiinatto be 
ano crytiN^ (Mini'iKrlmf>le l»e death or to cuni 
vutler ye a^nipus of the act of p*Iiamt*nt 

f^uist mtercoininonem itiflictiujj;' vpunc thame 
bo pwnisrhment of deathe cicepl it be Iv- 
heWti und vtider^tuid that a6 be wa*; anc vvit- 
liiig iotercnmmoiier so he was aae^vilful inter- 
eonimoner Tbat \k qubanr be intercom moned he 
I hafle atie ire wilt and lutenttonn Fncuactit in 
Iha doi n i^ of the eaiiie The p» iin rl lis assyscria 
ia a9(ioy[z4jing the said James Gdrdoun from 
WttJiig interoomiiioiiing lies naitayes acquit 
■oe tf«8{Hiiaouf« agatnca the act made 
'againes intercommoutQg and thairfoir are 
I not sdcbe asHysouriii a^ftiaes quhorue anc 
relevant dittay f pone the act of parliament 
'* dt: pena tetuere litiganttiim snper assysam'* 
Icstt be rdevantUe lyUelUt for acquitting 
Itlie said Janit-a Gordonn of ^jttiugr in- 
' tercomnionin^ The said qualtfie of witting 
being vndi^rstuid aa in the dittay distinct frutn 
the qu.iliite of wilftill intercomtnoninKT "nd 
I i^ittiout the samyne vnless my lord aduaca.t 
would conjoyne the aaidis tua qnulitieii lu 
ihcy artobe conjoynit in the act of p'linment 
for albeit they be conceived in ihe same dis- 
junctive zit ttey ar to be vuderaiuid copulative 
oe atalututn feratsensiimjure c^mmuni con- 
^^tratiutii et fubi ipsi. In quhilk caice gif the 
' act of parliaipent i$ould be vnderstuid co- 
pulative ns of c<{uilie it aucht to be and the 
dittay confiuiue thairto carift wiUing:Ue and 
Vrilfi!" - '? » hf Heini thai the quulilie of in- 
ter< ' uiUuHit? was njiutiye^^ proven to 

the ^ . - - .> James Gordo unes depqcsitioun 
and circunjsNii»ce.s thairof producit to thfc said 
BMynB But on the coolratr it utiuli \n' schawin 
cleirbe, tbat out of the aaid u and 

n^yV waye« out of the g-emt i inptiua 

cariadire of the refielbs viz. tbiit being' despar 
I Atlie diiHirdoarit men and haiveing schakiu a(f 
the feir of G<mI and bi^ ma'iies lawis and 
liaivein^ tntrrt^rysit ane desperat cours' of 
' pf»\ 1(1 doune the cuiintrie be publicl 

iiost it !£ rncr to Ixi presnmit againea 

thaiiii' uijii !ii tuvo*re of tin* l^idrrea qubome 
they acddentalliesurprvst That j^if the letcl^res 
doe ni»l haivt! conff r*""^ ■ '''■ ^'-^'ne at limir 
tticiliiijf lK>t preioe i< i \ tberwayet 

thairinal;i is 

'ty attetiipl!; ., ^ ir 

l>fe Ami also l>y the rel»elliM thaircariudge and 

' Aair ttm nrt-idttntail «urpryi>efi of Jmnes Gor* 

doiii ' » the uayse it lall be veritietthat 

the GordouD foraoy thing that waa 

m Jo the at^jadrii waa trcwbe fomt and 

irllit to nay mterooQimoniR^ he had with 

le rrbeUix and tbat Iw? anejuxt fcir of the 

ibunifiT of bm lyfe i|iibiik trewbd xntgbt kaive 



bene ane laftit dainffer gif he had p^reieeit ajr'r 
to refuis^ to heir thair discourse or to abvd» 
with ibnme dureing tbair pleaa^r ©r gif *(he 
bad preiccd to haite gone his way or raisii any 
hoy and cry to ad? ertyse neighbouris (isfif anjr 
was astrewtie thair was nane) to hare appre- 
hendit ihe ri*bellis In respect of thv quhilk 
alledgance the dittay aa it is declairit la na* 
waves relevant. 

Jt is alied^t be Mr. Jo* Nisbett aa prolo- 
quiior for the pannell that the dittay h nawayi# 
relevant couciuiding penam temere jumnttum 
soper asaiaom, vpone the alternative concep- 
tloun of the act and assumptioun y*upotiu 
unles it be vndcrstuid joyntlie and copu* 
lativelie \'tr. that wilfaUie be fauo^r and partiall 
mtianes and temerariousUe this pauntll ■■ 
aasysor' hes acquit James Gordoun agatiist 
noltoV and manifest knawledge Beeaus in law 
temeraritie is nocbt ane cryine ralea it be tu- 
dersttiid with a preauppositioun of wilfiilnea 
and dole q'lk is asseotiallie requyret in all 
cryinesi aa is at lenth enncet in law and rea* 
sooe and w^thouttbequhtlk teraerahtie resolre' 
i|)g' in ane iiivoluntarie ignorance iucidenl to 
the liest^ can nalher be schwnnet nor pvvnei^ 
in ajs^ysors quba one yair aitbes ar nocbl 
obleist to vindicat yair judgment from error 
hot trom depravation n be partialietie aa at 
length is schawin in law and la constant b« 
the 33 act parliament d Jaoo. primi Q^nhair 
the oath precsry vet to all judges is That thay 
sail determine all canss^ acooirding to thair 
cwnning and skill, absque favore odio frauds 
vel roUire aUquo juxta suas scientias. And 
y^foir gif yis pannell have delvverit accoirdiog 
to yair conscience (aa my lord adao<:at hea ac* 
know leg it) albeit i^orantUe—thay cannocbtbe 
indytit de teoienirlo \el illicito juramcnto. As 
the law in the ma'tie spciketh seinp tbay btif 
done all that was incumlient to thame in yair 
deutie vpone y' oathe And gif thay had dona 
vtberwayia without res|iect to thair awb knaw^ 
lege and conscience, albeit yair delyueraoce 
war sDppoaet mateiiallie just thay aotild b# 
teyntid with tbnnall perjurie qMk is only the 
cry me pwneiBchable in judges in all 1awi« 
und in the law of ye maiestie k emphatic&llie 
qualifdt w't the word dtjerant aAd ilhcitum 
* juramentiini de pena temere jtirantiiim sup«r 
asfiiaamq'ik an nocht quadrat to ignorance al- 
beit nevir sac gros' Because no nan is ao bias- 
phemons as to aw ear tbat he tall not err ign<>- 
rantlie And thair is ^reatdiiference betuix ana 
ignorant assyaor and ane fals- assyseorf betuix 
ifjfnoranceand flilset qlk being the adequat sub- 
ject of ye act and rubrick being concearcd 
tbua (anent fds assysores in criminaU cans*!!) 
nr'iu ihe alternatives ar jovnet, erinceth that 
they are to be takin copufativelie for other- 
wayis temeraritie or erroV w'thout wiliuhiet 
could noobt iinporte falaet in aaiysors becauae 
ill law nemo tenetur fattti ni^ «ciena et dob 
malo tl\ ad legem Corneliam De Falsia L« 9 ^ j| 
et per totum. Et non nisi dolo malo falaom eom- 
mittenteai crimini aubiungantur. Co^K eodem 
L. %<>* And b« lbs 17 act of tbe 6 pMrtiamcnt oC 



187] 



S3CHAULES II. Proceedmgiegainai Alex. Blair and aiher$, [128 



long James tbe secund officers ami jadges 
irespassintr in yW otHees wiUuIlie or only 

{iwneiscliable et imperitia in sc non est de- 
ictuiD. L. ftiiali fl*. de variis et extraordinarus 
judiciis: vU per Improdentiam in- 

ter pretaiurjusticiaiu juris qiue dicitiir stukitia 
L. si per. imiNTudeutiaiu de evictione et lata cul- 
pa, c|ualiB est error iuris et iatua-temeritas, iu 
crimiualibns non equiparatur dolo. Clarus 
quest. 4. num. 1. precipue vbiagiturde pena 
cor^iorali, vel infamia. Glossa in L. ac- 
tionibus in verbis oon etiam ob culpaoi. ff. de ju- 
ramento ut litem et quelibet causa et le^is I'a- 
tua temeraria imo bestialis excusat a duio et 
peoa intamie. Farin. quest. 9 per totura : et 
Ofunes decores, et oona fides etiam ex 
rationibus irrationabilibos et tcmerariis cau- 
ntur : Non solum in iis que sunt a jure per- 
missa sed etiam que sunt de jure prohibita vt 
homicidio falso periurio crimine lese maiestatis, 
ibidem. And tbaiifoirtemeraritie in itself can 
pot be ane cryme vples it be takin copula- 
tivelie witb wiUulnes quhilk is snbioynct in the 
act of p'iiament not alternatiTelie hot exigeli'. 
icklie as the 27 act of king James ye tlirid p«r. 
6 partiall malice or iqniorancie is'takin copii- 
lativelie and ar joy net l)othe in the rubrick, be- 
ing conceavet wiltoll and ignorant error of as- 
^sors and in the body of ye act notwithstand- 
ing the designatioun befoir in thaise wordcs 
partiall malice or ignorance falset or ignorance 
ar y'eAir joy net in ane word the said falset 
qubilk is subioynet ef\er the alternatiue of ig- 
norance or falset and repoitting l>oth et idences 
that ignorance is taken copulativelie w't par- 
tialitie and iuipoirtcs only wilfull and partiall 
ignorance and falsett and noclit simple ignorance 
end temeraritie quhilk in na law is pwneischable 
in respect qr' of the dittay can nocht pas to the 
kaawlege of ane assyse becMie in ane alter- 
native sense, disjoyneing temerariouslie from 
wilfullie it is absurd and irrelevant to infer 
the payne of infamie, against honest men 
quha hes done consciensciouslic albeit (gifand 
and nocht grantand) erroneouslie and in 
ane copulative sen's my lord aduocat will 
nocht sueir that he nes iust reasone to 
persen it since he bes dyu's tymes acknow- 
{egit that (in his opinioun) this panneli 
hti done iuuocentlie and accoiding to y'r con- 
science, 

It is alleilgit farder that temeraritie is nocht 
relevant] ie qualifeit be the allegit iniquitie of 
ye panneli is sentence because in law non 
qucvis ignorantta aut iniquitas temeritas est, 
sed quando jud(>x rcsistit jurt, actum a jure 
diserte prohilntuin faciendo, vel eius precepta 
sine ratiuuabili caua»a negligendo : doctores in 
cap. dilccto de sententia exromunicationis in 
sexto i*tqaundo judex constitutionis temerarius 
^t violator. Cap. 1. eodem, Et quando 
sentcntia fertur contra jus constitutionis, non 
aotcro contra jus litigatoris Cod. quando pro- 
focare non est incease. L. S. Nee quando 
enratur in facto et ex causa probahili, quo casa 
prdato Bun irrogatur pena, et si fulmco gra- 
Tissimam excommqiucationis ii|iustt strioiieEit. 



Decretal. De sententia exconmnicatioDis, cap. 
48, vbi glossa in verbo . prvhabili affirmat 
errarc ex causa probabili, qui errat in proba* 
tionibus dubiis, quhilk the law intorprctis, 
quando reus non est plene convictus per COB- 
spirans ti>stimonium aut onmimodam oonfes- 
siouem facti ct qnalitatcm. Cod. de penis. 
L. IG. And in the act oi' parliament 1478, 
q'lk is the grund of the <littay — ^nocbt cverie 
acquittal of trespassors is qiialii*eit wilfuH and 
temerarius hot qnhan thair is noCtor nr ma- 
nifest knawlegeof the trespasser; and noobt 
with standing yr!of assysors temerariuslie and 
wilfullie acquittis tliame Qabilk can non qundnrt 
aganis thir persones impannellit becftus the 
verificatioun adducet be my lord aduocat wm 
nocht of the evidence as importeth in tbe k« 
notorietie lieing only ane qualifeit confrMiaia 
q'lk cannot be captiouslie diigoynet and ia moir 
a deny ell than a ooniesaioun acknowtedging 
the fatal itie of the fact, hot denying* the forw 
malitie of intentioun. For in law, Notorim 
est quod set»e aperte in ocuUmi iagerit et noHa 
tergiversatione et causalione celari potcat. L. 
sed etsi uu pill us. ff. de institoria et actione. 
L. palam, ft*, de ritu nuptiarum* L. 
if. De verborum signincatione. £t 
doctores ad eas leges : ^t notorium cat euoa 
oianes sciunt qiuindo nuUus est locos inocia* 
tioni ct cuius vniverste vicinias populusteatia apt; 
cap. cum delictis filiis, s. presertim. deorat. dt 
purgationc canonica : cap. cum scelus caoa 
prima. Quest 1. Dammoderius in praxi cri- 
minali, cap. 10. speculator de notonOi per la- 
tum. £t quando reus ita iu obiecto flagitis 
deprchensus est, vt vix ca que comiserat Be| 
suliiciat. Cod. dc penis, L. 16. Et 
suflicit quod factum sit notorium nisi 
etiam siut qualitates. Et non suflicit quod eon- 
stet lejum occidissc, nisi coustet etiam qiml 
nulla discussio vtl excusatio cotnpetit leio %M 
minus punii>ndus sit, potest enim- fieri vt ( 
dtTctM sui defcnsionem. And y'rfoire 
ye quahteis q^rof the cryme cousistis, viz. . 
James Gordoun intercommoned wilfullie i 
wittiuglie of foir knawlege and set pur[ 
knawing the meittin*^ of the rebeUb ana tiyil* 
ing with thame for toat efiect was nocht oqa* 
staut to the assysors be the paimallis oonfts* 
aiouu or vtherwayis Bot in the contrair Iks 
panneli James Gordoun excused his material 
confereuce with the rebcllis, affirmeing pse^ 
bablie that it was nocht wilfullie Bot as sin- 
drie vtheris knawin to thame selffis- in the 
countrey quhair they duell that he was anv* 
pryset and necessitat be just fieir qui vaimi 
cuderB in constanlem virum it cannocnt he 
said that this panneli lies acquit him agahsift { 
nottor knawlege and evidences. 

It is lykwayis alledgit be the said Mr. Ib'e 
as pro'r tor the panneli that the dittay is ea- 
way is relevant as it is dcclairct be my loid 
aduocat insisting only against this panneli iir 
acquitting Jam(» Gordoun of intercommoBiHff 
wittinglie because y'r can nocht be a dittay i 
error bot ibr acquitting ane uottor tresps 
of a cryme as the act bciris quhilk is the | 
8 



129] 



Up«m a PrMtti of Error. 



KH. ifiSl. 



riao 



wi the dltf^: Bot sa it U timt int^rcotnriKiniii^ 
wit: ' ' ; itiiQi takitt abstrecUie ironie >ei|ya- 
tit: [»A9t Ira is nut a cfjnie ftnd id 



144} vtrha mmt. That tuuie presume or Ulkl 
vpoDe band to recept !fuppli« or iDtercoromci 
Ciueae Marie: pari. 1535* act. GO, tcrba tunt^ 



iuckucii4 Lu dio betvl being Htirpr^^ci ^vitb a ) tending to fiteir liie ht^arti^ of subieclis to 



iBUitilutle ot rebiHIiaqiiliimie Umy ktitw : And 
noiwitltfcttiniling ihn^ knew tliame may inter- 
teioe with ^eiterHU dbcourse and ar nocLt 
DbleLH tn imtot tliaine wilbisullaitnes and si- 
lence and be a ftKilisb nyccfirs to tentor yair 
Ivves And ni la^v wilfumes beiog-lheessennail 
AfacAce »f all crynwa cannot be sttp^ieat 
A^Ome thattie without irretevancie and absair- 
ditie. Ciiifii lualHicia propo«itiim ot volunUi!9 
di8tin«(Uit : L. ({iii tntnrie* fl'. De furtis In- 
•tittUioiijhus de obli^ttonibtis t And in :i)l llie 
rrimin:dl cdtcti^, and iDtordictis of the law nnd 
prmj^matikis and itatuiifsof all nationes dole and 
wilJ is evir requyret and pwueinhct in crymca. 
I>e furtis, L* 1, ». 3, f bi iVaiis. L. 5J vbi Toiuntaa 
et prmtoattunif L. 47, s^ 7, L. 2d, •. *l. librani- 
la, L, 5, s, Q. Vbi dolus malus. Titulo, si is qui 
nenti) Liber jusaus erat corapissc abquid 
liminarm rerba sunt si dolo [italo. ff. 
de y\ Ixmorufy raptonim vbl dolus mnliis pa«i- 
•im. l^% «. 8 ct % L. 4^ a. 4» ff. De in- 
cetKliis el roinaf vbi didtta inulua in fronte 
«dioti ; et liluji ibidem. L. 3, s. 7 ct 8, vbi 
Mientja tt priidentini et L. 19, b. 1, vbi data 
opera, fT de ininriis. L, ^^ i. vbi afteetus ex 
quocrimeD conutslit, L. 11, vljt do|ii!4, s. do 
esli-aordinaniscrinHiiibua %'bi ilaU opera. L. 4, 
9i miDius. L. 7. tf. De sepukhro vj^daiu, vbi 
d#liia tnalua in Fronte edict). fH. i>i? prevarica- 
tione, vbi notio verbi importat doltim. i\\ ad 
Lii^em JidiMin tnaiestaus. I>. 1, vbi dolus de^ 
litiitionem uiKreditur. L. 4, vbi quater rejie- 
titor. ff. ad Legem Juliam de odulteriis vbi 
acicrttia et dMu nmio jiin^untur. L. 14. vbi 
Cunvilinna et dolus raaUis: ad Le^em C'ornc- 
liBm de fiic^ariia vbi tlolua nia]tii» in iniuo; ant- 
muB, s. 9 ; vobuitas, L. 14t fiiH>nk% L. 10. ad 
Legem Cnmeliani. d« folaia, per totals g, ad 
Legem Juliani d« Annona. £t ad iJfmtx Ju- 
liam de peciiflatOi ct ad Legem Juliam de »a* 
critopiiis, povtm. Et ad l.x><^em Juliara di* pla- 
gianw, vbi srieiis et dob mailo. L, 6, t. 9, Et 




I iuniu 



aid ienaitii9-rmisultuni Turpilianoriim. L. 1 
vbi mm^% »emper apectantbi, 9. 3, el 5. et in 
mmmib^Bm iot«nticriadc»lfisantintelligitiir,aiit ex> 
fntelllir : *r qnnrum bononini ne vis *iat, Stc, 
^d Aeliumat q'lk is rrimen gcmerkum H mlu 
mpm^m^ ^hair ye occurence of ane stmnge 
caioB qaadtvtis not to ony perticular faw i« 
defyntft <* pea- dolum.'* ff. 47. »it. yO. de stel- 
lioiMtu, et eodice, iiadera litulifl supra citatift* 
MarcvM Otafiiaf- Cooalio 88, wiinc«»<«9 that ye 
^j% «f |nngraietlce» sgainti crymes, et a/r- 
€^€t the recTeptingof baukf},issp^l4Jt30a menU^ 
Of frtlflillie. And in otire awin aetis of p^lia- 
:««nt doilfia or \\dfu)Bea li ayer ejq»re9sft or 
iinplyit in woii^is, deaotttiig it aa (ihat nane 
presume or tak vpone band) ** qusc veHia sup- 
[«oniint doltt)0»/' Ginrba C-on!*trio 28. Quest. 
m\ Far riBi y m i i . S8. V ' ' c«dii fi, 1667. 
act. 5U Tliat naneiY-c or monteine 

«r tryst tfi rtjfrt e#t«et : thu u-niu la ^mpbalick 
iJiipoirtiog wiU'iilaca, J<iUi. e, par, l&»i, act 

VOL. ; 



haitred qubilk implyi? ane wilful inttiulj 
Jacob. Ct 1364« act 'l29i verba mn(^ cod ten 
tuouadeclyneing of bis bienes judgement H 
that nana sail presume nor take vpone band 
And in tbe act 130, eodetn parliamento verb 
oadem et act 134 eiirsd pariiamenti veH 
6. patliatiieoto 10. act 10. verb 
^^ 54. parlia. 6. act 17. verhu j 
ttHieeiiitJBHaaBmg^ trilluHie: Jacubi i* par. 
Cap. 54?%rlm sunt that oane raifie ane fray in 
tlie hoiA wilfulbc: J9ci»b« 1, Parlia. 3 Cap. 37*/) 
That nane recept or doe fauor to rebel I is wil* 
fuHie: Jucobi 5. )«r. 3. cap. 5, Anent willul^l 
tyre raising : Jacobi sezli par. primo actii vi«I 
ttmo verba eadent: Jacobi & par. 7- octu 97, f 
That nane recept or doe tauor to relieltiti wit*»l 
tin^li^ or wilfiillic: Jacolii. 6. par. 3. Aelu 4.6* 
Agunitt wijfuli umnteyneris of erroniusdoctrioes ' 
111 lirif* Jat obi 6, par. IS. Actu 164. verba suni* \ 
' Ml* that recepts or interteneia lilting* 

ij' piene jesuilcs : be all qubdk allega/* j 

Ifooes It is evident that ncknUa sine doio tt \ 
htniatein nocbt an eryine £t accipit-nda i 
semper ^cientia eias qui piH>hLberi piJit^t ; ft d^l 
nuiiiabbussectiuuibus ; L. in dilictiii; Caitfluii; <1# 
aii\ilinin prestante ^lost delictum ubi sinemer et j 
dolose, ar qiiaJitei^ necessr'lio requyret im\ 
criinine receptatiums. And v^lbir it is cottstan^l 
tiT.tt miercommouLD^^ willinglie without ye qua«* 
bte wtifull caa^ uucht be tbe ground oi* an 
dittay Nor the ^eqi tilting of i 
wttiio^Hef the ucquitttLig of ane trespassor, ani] 
\it€ u[TOtiiid of tbe diiiay of ern)r jlnd the al- 
tei native coneeptioun of the act cannr^citt ito<* 
[lorrt thai lulflipminonin^ wktinglie uithoufj 
wrHullie issiJM^Ktt to lyle p^teis of ansea-- 
pitall cryirie becaii«:tlie quabieia witttngfie in^ ] 
wiifullie ar to be takin compicxe as tliay 
taktn in all criminall atatutis, and the impro^ < 
priatioun of ye disinnctiue is mair vsnale aitd J 
to]lerab)e Ibau the barbarua ab^urditie that j 
aonld tnsew vpone ye takin;,' of tbarne separ*] 
ateHc viz. thai ane cryme sookl be niiboat iti}| 1 
and iotenttoun and tfiat Wahn* Hat and otbet 
gutd subiactis, becaas ihay hati intereoitt* 
moned witttiiglie being tsurjiryset am) lorcet m 
to doe for feir of yair lyvcs sou Id be lyable ii| 
eafHtall gitilt and puueischment aeetog aliitiilei 
ptmientm facta capitaliter requh^nl «k>litni| \ 
vtmm ii eius naentio non fiat : £t multo magii ^ 
qnando impoaitur pena pro eo quod de Jura 
comuni mm est pttnibile; aa intereommmiinjf 
with rebellis ; Et quando de dolo aliqiio moflo rit , 
mentio. As in the act of parliament be way 
of altenmliver Far. quest. 90 Num, ^'2. vsqn^ { 
ad. $a. Et inteUigenda sunt statula pe* 
cundum meutem atattientium. IViascant d« 
generaltslatutoraminterpretatiorie; concluston« j 
3a. Num. 4. q1k \& argued be (tie motive and 
end of tbe legislatonr e\pre«!s»ei io Ibe alaiateft 
As in tbe present caice, the reprcsaing of re- 
bellis be taking' from th&me all manteoance and 
comfbrte qnhuk is not prtiiMifct be iorr 
k 



33 CHARLES II. Proceedings against Alex. Blair and others, [132 

that he was violenced ia his stay with thanM 
Quhilk asseveratioun of the pandell beios^ pro« 
bable in the generail and in the particular se- 
cundit widi tlie declaration of some of y* 
number ancnt the violence vset be the rdwlni 
in schootint)^ the durris and kei|iiDg' in James 
Gordouu sould haue preponderat ony slender 
and remote presumptiones adducet be my lord 
aduocat to infer the qualiteis foirsaidis. Quim 
in criminalibus probationes debeant esse luoa 
meridiana-clariores L. iinali : Cod. de proba- 
tionibus qus reperitur canonis causa 2. quest. 
vltima capite sciant And some of the best 
criminalists maketh scruple to condempoe 
vpone presumptiones albeit yaur war nevir so 
niony and pregnant Etiamsi essent mille } 
Paulus. de Castro : quia presuroptio non en 
Veritas sed veri similitude And q'as the 
dittay qualifeis the error of ye senteooiL 
be tne notorietie of the qualitie wittiuglis 
and that James Gordoun confernt with 
ye rebellis knawing thame to be rebellis and 



ISlj 

occasirmnH intercnnimoniiig'. £t iutelligenda 
sunt statuta uiagis secundum intentionem 
quam funnalitatftm verborum. M ascard. Con- 
c'hisione prima. Num. 9. Et secundum jus 
conimune,Consiiio 2. per totum;utrationabilem 
seusum cuutineant et ne videantur statUentes 
ea ex abnipto siatuisse, etiamsi essent verba 
impropriand : ut ne absurdum contineant et non 
Judaice secundum corticera verborum, sed 
))otius secundum veritatem quam rudem fig>u- 
ram statuti. Et ne quis inda>ite daroaom par- 
tiatur ibidem et nulla juris ratio aui equitatis 
Iteni^itas patitur vt quoe salubriter pro vtilitate 
honiinum introducuntur duriori interpretatione 
contra eonim commodnm producamus. ff. de 
lecribus ]. 25. Et |K>steriores legfes ad priores 
pertinent vhi ogitur de interpretatione. L. 25. 
ibidem. Et in le^jem committit qui verba am- 
]4lexus contra leges nititur voluntatem. Cod. 
de Icgibus. L. 5. et exempio graue est ita 
l^troncs requirerc et innfx^entibus liat pericu- 
liim : Cod. de his qui Latroncs &c. L. 2. in 



ilnt;. And y'foir since the common n law anjij that thay could nocht half acquit him of in- 



roasone rcqnyrrs willull dolll and omre auin 
law be aue act of kii)S>: James the first pari 3. 
cap. 37 puiieisches will iill recepting of rebellis, 
the nileruative conccptioun of the 97 act of 
king James the fiflt his 7 ]>arUament cannot be 
takin striollie in a Judaik construction as the 
law spcikis dcboirding from the commoun 
straync of law and of all crimmall statutes 
Aiitt the dittay iiassini'i' frame the qualitie wil- 
f iillie is altonriddcr ii-rorefaiu and may quadrat 
alsAeil aspunis Walter Hay and the maist 
hrivnll suliiectcs in the land as against the most 
gdiirio inlorcoiiimoneris. 

It i^ fHnler cikit for the pannell be Mr. John 
NisIk t thiit the diltay is nawayis relevant qua- 
litt'in<r the pannell tu half acquit James Gor- 
doun wilt'iiiiis and tcmcmriowie be the al- 
ledgot iiuqultie of the sentence Decaus thair 
verdict is iK^cht fals and temerarius hot weill and 
warr.iutablie ddy^erit In sa far as the ciyme, 
y'of James Cordoun was acquit being inter- 
commoning consisting nocht only of confer* 
f'nce with rebellis hot of a wilfull associatioun 
with thame of foir knowle<1ge be try sting or 
Ttherwa> is as is constant in law and be the 
itraine of the act of parUament and it being re- 
mitted to this pannell to try quhidder James 
Gordoun had intercommoned wittingUe or wiU 
linglie thay delyuerit that he was free of inter- 
coinmoning wi&ullieorwittinglieoffoir knaw- 
ledge of yr' meittin^ or cumming ffor ony 
thing that was provem My lord aduocat to 
quhonie it was mcumbent to prove not only 
conference witli rebellis hot thequaiitie y'of the 
cryme ccinsistis baveing adducet nathiug to 
astruct it and it nocht being constant to thame- 
sclflis in yair own knowledge but the contrair 
in the generall that many guid subiectis in the 
places qr' thay duell hes* bene inveglet in con- 
ference with rebellis without ony disloyall 
intentioun or practise and ye first pannell viz. 
James Gordoun disarowing vpone his greiC 



tercomnioning wittinglie In respect of ya 
verificationes aducet by my lord aduocat and 
that it was not deny it be James Gordonn that 
he spake'wilh thame and at that same tyma 
knew thame to be rebellis It is answeirtt that 
yair meaneing in' acquitting him of intcrcom- 
moning wittinglie was not that tliay said that 
ho knew nocht the rebellis but that thay fand 
him ftie of intercommoning wittinglie aa h is 
takin in the-act of parliament in ane copuli^tiTa 
sens' with wilfullic and as it impoirtis a vdiiii* 
tar ingadgeing in the companio of rebellis of 
foir knawledge knawing tliame to be rebeHia 
And the occasioun of yair meitting qlk is tba 
only meaning of the act of parliament and of 
v' delyuerauce conforme qr'vnto the coonsdl 
jies dismissed without censure sindrie chal* 
lengit for reccptinff knawin rebellis Aad 
namelie ane Prat and his assolzeit thame of 
y 'r reoqiting wittinglie or wilfuUie becaus tfaey 
war Burprysitand could nocht resist thame And 
^'ras the error of ye sentence is ag^praraled 
in respect that vpone the sole declaratioun of 
ye pannell they naiff acquit thame and oon- 
sequentlie done quhat in thame lyis to infeil 
and emancipat all men to intercommoun ypoiit . 
hoipe of passing frie vpone thair awin deda^ 
ratiouu that yau* intercommoning was fortute 
and against y'r will It is answerit that albAt 
the pannell had nodit dedaret and asserent 
bis innocencie thay micht haif acquit him The 
cryme and the essential qualitie of it BOcfai 
bemg provin vnto thame. Quia actore mm 
probante ahsoluitur reus. Aod nothing baiog 
vset to verifie the cryme hot bis awin dopo- . 
sitions quhilk he qualined confessing intetcom* 
moning with the qualitie of fortuite and na* 
cessitate quhilk exniattis ye cryme and impltoet^ 
lie denoitted in nis depositiyones be thaiit 
wordis that they come to him to his awin riot 
and was yair liot half ane hourflb' and had bo 
discourse hot of ye lane of ane pistolet quhilk 



Mthe in his depositioncs ony oommerce with . he refuisetand tliat they come to ye hoasaq'r 
Iktme and pobnctlie in judgement afirmeiiig* he was at nyne iio'is at night bodin botlit >ttM 






upon a Proceu 0/ j 



t5fm:*;\vltli ^TTinnnnM and ivith the iiumWrthiit 
K» ^lioutdiinrrer oppose iKame All 

<J'ii uices iih|K»rtetli surprysi? aiul 

rioltiwcii i el iiuius nif'tus qui poleiil liilere m 
oolistaiitem virum : q*lk hequalitie»J^'Vfk'r ex- 
firesslie in judgment nffirmeinqf vpone Uh ^rii 
aatlie that ye lUtrris wjir schoit anti y*ihir 
txmi'csisii) qi)ftl»fica|JH hod Mhh ^cinili, Balet. 
L. 1. DurtK 43. Coil, rie confessio. FariQ. Qufst 
iW. iitMti. 149- et 16a. Mt precipu4» in ii^ 
vpee noil ftirii jurccomnnirii prolitbita ncc Jia- 

Cent contra sejnti • ■ ■• ^ -f qnando 

^dlilas atite j bus vel 

(Ifesiimptiombus ; 4.^,.. . ..u,^. ;.,>ii conKtal 

*le ddictifiqiiafii per conlHsioneni. Q'lk co«- 
diliones qtjjKJdraiUs jire^uanttie to thf» present 
caicc the qualitin of the surprv&e litin^' i>ro- 
Imble in the ^^encrill, tind kimwln to hoirt* ucne 
incident to n; ^udiectisuud in tlibcaice 

ihecrymcbi . nl no vrhrrwayis against 

the pRnndt nor he hh awio conr«i^imni ami 
the iledar:i(nKiii of puinie!; vponc oalhe fnay 
lie Riit^ ' ' . .' and informarive to as- 

sy sonj <'d waiTanlnble be judges 

i.d ijn*b'iiniuri) innncentiam OHe in aninio 
<5onsiseit. Be ibe law oi God Exodi. cap, 22. 
vt*r-'' - ■i-^-tino de furtis Hcfutcr. cap. 21. de 
c» r cap. 6. verMi 1% ije uxorc kus- 

jK<-,_ l» Mk? t'ivilelaw per tertwm in L, 

tbrtr. ?. /T. de his qni nntantnv in- 

Jamia ', • crbn innoccmiam : et Decins 

16(S ; nil; :::,• i,i -•':r,;.|M;ii iJ ;.•',., r:i (iinil ITei 
€Uni jtlf,ii:r Lit'" ; (jinu tlrju'insrsil iny s ,ib ariimo 

ttatuf juramentu vm% de cuiu» anirno dnht> 
tatar; L. 1. C'od, <le iirani<i et ahis ah eo citatjit. 
ICt GfrvttiB Lib. 2do obnTvatiouum cntp. loo. 
Im m cafnerd judicatura rcrerl, Anrl 
fjuhair as the painmtliR inlcrconimon'mfr ^i^. 
Sumr"* Uordoun is ng^ravatit in thai he advt»r* 
l*risrd nofbt the wrXrol' ye scliyre of y' being- 
in the cunt fit' that he hiui nn licence to inter- 
mm mo u n u I » ' • • ' — f f Vn m h i m e an d h e folhi\red 
thnnie not vi -I ery It is ans*rit that 

the viarrnntl , . ut-e of ane s'reffis i*e 

quyrit quhen ane pai'tie <br *iome caus intend - 
etb ill riMjfer with rebellis and the irant of nne 
^f jot be impnte*! to pairties isnrprv- 

«it w:ir no necessjitie to odvertis* \\\e 

niAgifiirtidM ot ye fet»elhx being in the cuntrlc 
becailA tt WM nottourhe knnwiu that tliey war 
maTin*^ up and dmm the cnntTie and the fol- 
lowini^r with hoy and try ik incurabeul tn g^uid 
jiidg'c« qnhen they ar of that number and 
pou'fT as they may oTcrtnk thani Lastlte the 
not ' ' ' " ' ' of rebeltis ar 

<4ii I'tniu^' quhnir 

l^t*MM> J.iiJir , S, .,; **;♦ ^^^1 ,j(;_ 

fjuitt Amiquhnirn*^ luih vittin^-* 

lieand ot iit.r I u .^^ I ,) .,....,. ikbeeou- 

■tont Iw and tobtrvidi'ncit 

frtirii 111 ^ 1)1 the rebellin ai»4l 

*Vr. I ourH^ he had with thame and hiK 

iav ;t K'iir)jiiiiir m\A ios.tavintj with 

thj !xr, and 

Ui« ,ir*to hu 

mi^iit I bo prc- 

•umit til jctctg' so 



Fd. 1681. 

neir home hot of inlcntiouo to interc 
fhiefiic In the house qr* he utayil hcini; ^nfpe 
to haive bene the haHwur and ramlcvnu^^ 
nhvllis. It is ftus^rit that \m 1! i^l 

bcirin^jtheoccasionuoflhairmeitiny, el 

and subj^^rt of his oonferenre^ thctuJiu'it r ul the 
relieihs and ihair eqnijipadLje and funuior with 
armes thcit^ U»ot hia intcrcommr t 

lliame was fortuite and |>assitie 
- ' *' ConsiUo 36, in 6oe Lib. 3, ^ mwiv. 

Ntini,«4. lU'belluH did non | 
u^i -jin i»cT nicLuin ant coacte aliquid fadt 
talis dicitur rebellio psissiua, \i qnando aliquis 
recppit rebelles qui sunt pinres ut non p««6unt 
expelli sine pericido. Bald, in L. deHcliii : 
(F, de Noxialtbos. Fortheoocasinun of intercom- 
moning^ with thame bis depoailioun bein 
That it was nocht wittinglie hot he was myt 
pryset inexpectedlie with yair cumminar wt4<i 
that thay come to hts close and the house 
qnhaii he was and the subiect of his conference 
ileponet U^ him aneni the lane and refui^ of 
I it the first tyme arg^uesthat he inter 
I DOcht wittinglie and knawing that 
iii IV vvLu- to meit and to cum to his close ¥cia|^ 1 
It Cimnot be prtsumet that he %VMkl haif tndHti^l 
^ered himseltf to no end and vpone no in teti«| 
tioun of irenttie or accessioun to \air pmcJ 
tises and the discourse of the rel»eliis th9^ 
«ecound tyrae in llas«jiewallis overbard b» 
tlie panncil impoirtelh nocht iniercommoning 
in the stihiect lei be ye quahtie of wilfullie 
or utttin^lie For James Gordoun depones 
'inly of bi^ liearing^ tliame relaile some of \air 
doitiMis and deAig'nes hot not of ony intercora- 
mnort'TititHin of discourse and it was nevir* 
hard tbnt heirinjj'was ane rrymc, qiihen p*tei0i 
dar 1. Its* the dislykin/BT of discourse, 

if til ur nioir poweifuU and insolent 

and boMiii vviui airmes asi the rebelhs war And 
the bcini^ w'l rebeJIis impuirtiK nocht conTer- 

siaiionem itiicitamt w^- -.-♦.' - .,..,.( ....^ 

et stricia ^ al ioq u i si s 1 ^\ 

non facit judicium ......... 

Farin. Quest. 52^ num. 19. Item, the plao 
of the second meitting qr^in the dittay phicetl 
anegritt presumpiiouu ufthe interrounnonin^^ 
«?ilfullie and consequent tie \vjtlins:lie It its r<*»| 
tortit that most of uti the places iHutiir so ncifj 
hiti awin house h\» May thair from nyne ho^ffl 
in ye moirniog till nyne at nv*t the compantvi 
qr'm he stayit his going to 6ed liefoir tlie re« I 
bellis and i ignorance of the tyme of yair ryse* 
tag eiinces, that his meitttui^ was not witling"* 
lie foir intendil aeiiig it can nocht be prei^wrnel 
that l>einj^ iio neir his avt in hon!«e he iv}dd half 
appoyntcil a mcitUnj^ in so puhlict a place qr 
his practi/es with the rebel I is iny*l havt* bene 
iltM'Overed and that he sould haif Htiiyil ko fotnj 
betoir y^ cumiug' in the com panic* of honest! 
gcntilmen and etter y' cumiii^r ^oold haif bensj 
•o Strang* as not only to atlord na svtpplic unit 
not to l»e maid previe to yair way is and corre*l 
ftpondenec nod con^ious of yair randiTons and 1 
plaoes of recept ns he hcs ilepotiet Bfit to b«] 
i|pior«nt of yair jfoinjf ^ ^»ed and ryseing" 
quhitkiacomuiaun^uid fcllowsdiip cau no 



iS5] 



S3 CHA.RLES II. 



be fiCfiimet iroles be Uiil disl^'kit the com* 
janie uul mraoget bifustlfF iVonie thame 
l^m ibQ Iyii44^ in one c*Ua liner u't rebel lis 
fji^m not 8o mui--l» intt^nit h iuh\ f;iuuli»riiit^ 

, w't thtttne lu tlie si roftme^ kn^^ii) 

441 Y^ tiftatysu'rs tuu tmc^ ciin uul l#e 

#g)^iivvtiUU trtifii llje {lincii ii^ ^us^ifct to U*^ 
bttirU>ur iif reljejtis becjitiis it w«» iio' \m vfun - 

I iKitid to lite paimrjlis lUa Vi: Ituilfr 

' lniili» was !^4.i a Miu^ .1)1 1 II not b 
to Ibiiiuesf'ltfis inay c^uld not hiui ik 
ground ui prt>tiiiiii(iito«a iiofne it i 
vdag the ^>uonel iW^uutt vpuii Uh 
Iba* iic kjiL'W uot q'r tLe rd>flli> 

tllftt tUc ilOUSC Ol UUn-M*^- 

pTf*: .ou^e qr'iltav u««i tu belmr- 

'■ tci«|:s ti4^ilk»nMI«*3i 

uoir vi'^oit a& ttne 

vin (juilt lM.*!ijijs thair 

- i'uHt iisaysii* itoi lun 

^Hnc M man («)'lk 

) and tliiit bf melt 

I A lid t \tc A>s V t^' c<^ 

bmudii ^s m%e 



PraeeeiiagM aguiiut Akj. Blair md oikert, [191 

boy over quhoroe James Q^wdoiui Ind pilvcr 

ntnl qubumtf be micbl liaif Arot fiirih «t aoe 

Htnilow nr |n'irat way whence hr niii^i baif 

s«*nt him the relndbs niadtrrtan«r#' -vjuI lAiriiii 

«>< c-iMuic iir iuiprolmbht* supptmol i ' 'i^ 

ovMc^mit that yftir uas any wuy in ^ mm 

Uvv iii:a iu»e boy niy't Kaar bcor Ivt ibitta « 

thrJ lluiir T^ us ony Ikiv ^uboaMr JacU4» OonbllUI 

Atui a Qocbl beiti^ f«rc>i»uiiie- 

lis who liad »A li^reai rcAsona 

ivc* and quhu lor ^mr awM 

Hch«>oLe durridt, wokl Uiicbl 



uud Ui> noUor cxtn i 

and (av*.M.n... .,♦ , 
pri 

^vriu conlesN'Oun ii 
'Wasdouc m iiw avu: 
occasionaihc wilii lit 
ku«^vv bini out vi. 
fuFQurar and camplici- i>l i*,Ulli& as tiiay wiU 
depone %|ioney' great oalht.' and inaisi of ibiiiue 
Md II* ?ir twjiie or bard of him JieiA qr' ui 
\m tntLrconjiaoniauf u iitui;rhe M^jtiH actie oi 
yi^vV tjviMie qaal«;itad in thai 

tif" r.oi'ye, bouse aad the 

eoiiij^vii -J .1 I he was to 0]»[ki«s43 the 

Fcbfib!* Ami < I oi a«e boy lurth be a 

privf'i Lvi.i V aiid qu'by gaue Dot 

ad I .'ijis \mau^ yiurq'lk hv 

my ._ :t.iir goiug lo titnl or eitir 

qnhen (bay w«r a&k>i)i at lei«t my't Iiaif oli* 
aVau the way (bay hciU and raised I lie mm* 
ti-ie It is atis*itt tliat as bis coai^i^ticc ie» juKtIie 
excuifrct (jb ^^u^iimi luelutn 4]in p^esi et 
debet cad ere in virum otuiatatiteiii ; lii^creV. de 
ii» (jui %if metusve cauMi : Cap. 4. And in Uie 
laiir ctiamsi dod sit vi^ de facto, aec tiiitiB;, 
timor eliatD violentiie iut'ereiMkis jtistuiu iniert 
iueUim, et vihub aniioriun, «t^i deleieiia lis 
nou viatur. L. a, ff. de viaritiata; Giarba 
COD8. SB DUO), 20. £t co{tstiUJ«i trlr eWj^t 
jfrudenler luiuus iDaliim, a^l ini^j^iris uinti peri- 

culuui evitaJidum: €*?% t "■ ■ ' n in ma* 

triinofiii coDiractu inicr 1.4. lie 

^riticr roa&uue U\s n a^aitiiiL 

thaiiiebe way ofdeid t^ !c Be- 

cans ibe iimtgmarie it di<ii.v 

is uol in law rtqiiyret ot ^ymd *' 
ure nol obleist to titntit God and 
lyves a-^Ttinst rcbt-Um rolvij vaiv wur i;ru«a- 
tiiiauce ot advaoiaicr! qubdk uas not Tonr 
disperaiUc resolirit and lodoublit men ri/, 
Alexander Leith and NathaiiiiU Citirtjoun w't 
yatr tua men bodin all w't }(wa«rs aud pis- 
iutettidlKfin^ loo Mi'iin^' for fuurt? honest meu 
w:; nim and unc fiUiinnit trew of sicr- 

V. albi'it Janu-9 OMrdoiin bad bene 

Iuk ' tt is tiwt c<)u*»!ftntilat be bmi 

pii\^Ki ii» winkthamej/irTifcw*! bim 

And bj.i.,,. : <.jie mad lo expose tniuselii Ui 

fmiii/eae UiG buto of jJiadokttbi i||atie LVem aoe 



timd b« 
i I iKit^ >%**ybiiii aaa 

1- ..u^«M< ..^^it^etitbe ibei 

ii rey tti ibilow tbaiuiu %i^lia 

i^ti, ., cMf 001 quhat%%"v ih.iv ha^i 

La&thi' q> «u» tb« aanyfio'i s ujbtv 

tcinv'funoiis proci;doV is c , ao- 

quiti'UjL; Jam«'S Ciordoan connair tu yc ert- 
fkncre'^ re|}re.s«aUit be ii^y hitd AdtiiHHii aad 
vrgtft frame biii a\%in depoiiitioun oo^iorisuf ^'f 
\nUi Ukay %iar obluitft ti» bate jud|f«>d uotlnag 
boiiig prcidiioei to Yeriti*? that be waa Ibroii 
aad ftioaflyfat and that the durrta war i^iooia 
It ta :ii I n'r^Lr not i^o injioii 

jUil^^L^ n'lrUa. !>♦ act TO* 

t iiitnii the KML;li&cbe U«^ 

1 itifidil not lu ^strict atid 
*»M II iJn-1 ijii^uuiL uied^il tte hmi lor b'ia> do 
fence be otiy fiber testiiuunie nor tlie kna wr- 
it^ ufane a«&yse qr^ vulo he was remitted 
and quhan thiy war iuclobet the in'Shiiionir of 
tiia t}r thre of yair outu^H^r ud^bt liaiie b^Dt 
aiip gfuid warranfl to the rest to acquit tiiio aa it 
WAS souie of ihame baveiu^ \«it)i' s-vc-d toyf 
Tvsi that they knew pi^obablie of ^it |f 

durris ivar scboote and tliat J 1 > iloM 

wabi have reteire<l himM^lIf bot u<^ KUiycd bf 
ibe tfchooteii4Sf of the durris Aim! idh*-ii ygir 
te«ii lUQQie \T aa only ^ audU n ai 1 
of tbaise qubo war pra^eot tii 
EDay bequarrdlit atKWcil a» Jait 
uiilfbt baif bene aue iiiidicienl 1^ 
1! " - since tbase thai wur pruw u* tj 

1 only ^viiqi^' and was 
|*uMt...iui, iaiawlegebr-^- '^ ■'■hooy 
of asMciaUoun or 1 *niQ^ w, 

n^baUis and in the Lv. l^^.^imTuimi 
di(u tacit preaumptiofit^iD, quo: opomliir 
fiiiii:^ i:»!i?ite probiiiiiU traiisectt in adiMii 



in uaifiUBfl 
u ewet biic«ip 
iuitur. Uia^ 

a 47^, Viquaad 
ie!»tibU!i. 




dKiM'iiifi probduonitf, ' 
mniicntmn Jtid«' js 
iibiu!! de a 



pi<»i);iiiuMu tiiai. !«i wirtKS^' audi 

tet^liinonio of !•< number waai 

nicled with tbi> vtkiwiv ^im* 1 ■ 'v ' rebeUts 1 
scbo<»tein'^ ail iba 4gc»n:^ liny 

knuwm to tinfcm^aelffiii i.'-v .m.. |Moceiilel 




M 



157] upoti a Proce$$ (^ Errar^ 

^ftir-nuiiiber AlUeit lhayt>e oibi iyed id law to 
yu\gc wUiQiHie MecHudum aliefiutioae* et protu' 
iiowt boUi (lecaus lUay nr wjtneis' anil Uecaus 
&lbeit in tlii^ caice uuty tbe law n^iikjji a ilb- 
tincuoun oi* conscU^ncse oq publicl ixirorfDCt l>e 
»Ue^atume!» ami r^ltivftiit pr^ili^tion^ as the 
ik|>u*iliuna of tua witness' of a deld aud ane 
vlXu?r privai iufurtpet be aoc propper and in- 
iBStin^ koavitege tn tcriuio pcctorit As quIiHti 
liie juilj^^e knowetU il^t uiiueBs* de|M>DL't and 
the ctiutiaii- \& www Ju tiiequhilk caice be is 
t^bleiit lo judge iecundum cmtscuniium piM* 
^ftm ei alUfiUia in auiHbm ^cveryvies iu crt* 
winuitbiii the ItMf is an le^tdvr a^ iiot ti> vrgc 
nnyjiid^ U)4klyii«r u{;;a'Hi^t yair c^u^'ieuce 
aecitriduiU venpoj|)ioiii'«, m»i mnt tiptoiii 
jurM vt conresiiMt tjit-ri irt qurdiUitum^* Ami 
thaii'tbir Ui<; i^iuuialbn delyu/er4i)<.'e ia nm^i 
ju#t, aud f}roc3c:idis %pone aU posnilUe aiul war- 
raatnl^le |[i;;i-iiridi£ qubiiic can be iiiiaj^ined in 
anc caice of ilila uiUire :fijfi.^l||p Aual Li icitiouo 
of the imnt^lis t^rmi\tmi0fm fgMk m i^L^v^ i« 
lodiviiMbiL'— ibe |uiiuie(liB p99ev^^ t ; i m i . t viwmt^ 
liiti ;;ni o»tUe— ibc* U^tirnouic of 
Uiiciiber admifjicled wiib yV au. 
in the t^enemll au«ut the fHt^ti^ 4if ye r* beiiis 
and iJj uocbt 4>nly omUiMraie |p ye general! 
ipouu^J!^ ^t'Uw bot to ye decisWses of ye niMSt 
IWutJtis judicMitfifeiii and juritiC4Misi litis in the 
Jyk caice ** de reC4fptati£i»e immt/>rmtC' .qlk is 
f roquiaitjie occurreut in Uaiio Maritf^ Guiarba 
iofitsmea aoo tauQe at}, itMbilk will berve tu 
viwlioat the panti<^llis delyuerauce frome bei^g* 
io Fniu^tjts is i^beUit JSjK^cies facti vmii 
Hier. iiaro in area caropipi uuimni trabeus ctiin 
ux^c t't iiUiS bauuitoruiu udventu pcrculbus 
cuui fuerit f>biirm4iti* arcis Q^Uo,bauniti lutein m 
liortuiu itj^r(j«^^i tiUain butoni^ cum nu^ice da- 
|]ftheiidiuit. Hart! abducts infantis metu per 
eoisuB bunuitosj uccvi-f^in jub«^tf a qnibus, rt's- 
tiiuta liliHt obuixe ri><(»iii^ est vt eos qyidatici 
iienuiicio itonaret quippe id euin facultatis a 
prorev;e abtitiiiiaie se ce rto «>ctre cbcebant* Ne- 
gautt baro bauc lie potestateui A^beri* ; veriAOi 
iie ea re »e ad prorei^tjii litcras daturnm polli 
cetiir : tuiu deinde eus bref i ciuiia reiiectoii di- 
iitiiiit, Cmu in qticfttione crimlnisa tisoo Vi)raiu.<i 
^ssfjl, conversation is ni milium cum baDniti^ iaita^ 
el auikiUi iis^ prf^ttti, pro eu Rrguit jurkci^DfluU 
lug tp lull all«>oiiiiofitiu tiavlica cum furaaticiiL* 
contarsa^) d^^tuin non indicat, cum ni^i 
4imnit tuoplex etacciditfiUilia conTersatio mere- 
atnr peuiiii, oec csdtsm »it ratio que iu teceo- 
latiniie favore vci aiuaiii;. St^aiindo, recspiatio, 
quoi doktta ei vd oittluia fiaann aoq est ; f jcnam 
von ipenilur«(qiioiltt«l£iiil4aiiititieris tostitnoriis 
let vfif iiig (vripnaii * auikat el prwiumat' qg^ ftop 
^nupt. dolum ^ tJt-€ilelinc|uenlem ai>socia^epcr 
li•dtbctlUll iMvUi^i :id luaUiQi sit; proindedig^- 
lMSfitllaudet|«iiiuali vitcuidi causa banniiDui rc- 
O Bi ft ati pix>ciitioa oTimqiie qtiicquid probibctur 
oon prQptercei>edad eviiandiuiituahmi uoaiUa- 
qucat traoagrefliionctfQ ad iJlius penam,i^i finis 
iliiusDon violalur TertioquibaoDitoseoacle re- 
ocptat punieiidus non est&iexpellereeotinan po- 
liutfdKK|U£iiui penculosquod^innliter contirinat 
llMUmotiis, cum uec teacaliir fkiiii(» ced^se el 



A«D. 168K USB 

illic eotfi reiinquere ; cjuod astruit testlcnooiia e( \ 
duraute filiuc cartjeratiane : omn' , r - 

Hioneia presumuntuTt et justiw < ^ 

hi iiborubi per^ona^ iicc lis de lacu* rM.t: tu-i^ti, 
sed miuit sufticiunt »t cuacte rcceplet, Tiuvpf 
nimiruin viakruiit! in fcrendtv infer t iii^lmn mer 
LuiHt qtiiu aroiurnni vii»usjimuni ujlcrt inic^u^ti"< 
ti si defcreiui ii!»U(m vtatui' et paria »uut coacte 
acta a^it tiiiiore Ciiactliinis. Bald. L. ttovissf^ 
tr. qiickl MiHi tnture. ^Iks gryndls quadr^tti^. J 
uppusitelic iu yc present caice and tuore preg* 
najitlie becauii tbe cr^tne of intjprcomiuouiu^J 
in ifot so gi'cat as the cry me of recept q^lk ^ ] 
probibeit in ye comuiin law and iu tbc cuic9 i 
rdatcd tU^ir >va!> {ine voluutm* act in ^eiidtii^ 
fur ibe rebelJls and intertt*nein^ and ^uppbeiuif> j 
of tliucDc qiiHuir u^ in the pvej»ent caice ibair 
CU1I be nQtltii^^ qualllcid bot tiurpryi>c and iia 
tbt^ former caice tTatberlie tetidei-nes is not s#'J 
ij|)pr(^s$iu£^ C* tbc feirfoi" ane maiiK uvvio lyic, 

it it» al6o fardel" alledtfil be Mr. Jam- '^ m<". -1 
Uiat a«ing tbe pannell did convict J i 
iliinn of Sbinobter qubilk is auc h< i • 

iiKerconirooniniT And y'i * 

)i*kiy to tuk bif* lyfc, ite;t[, , ^ 

suuH*t itat wdfallieaiid jq coninopt of bi9' 
aia'Lie tbir geniibnen wald baif claoj^et iiiiH^ J 
of inlercomn^unintf q'lk i& & ^^ cry me uqc , 
sluuchttT girtbcyTmct not bene rewled vviihib# | 
liebt of y^^ awiu cotisicieuces and vpouc tiulB-r . 
ciept inibrmQlious of UU inuocencie. Qnbiik ! 
iiitorTi);il:iuiin h tbat tbe bail! asby^c at ye ie^^f j 
th*' iffittest pairt y'of war inform et be ii^bert 
( " V ' ' i^ordwun Jindl||# ! 

« • 1 1 and be R^oberl j 

Jii'iiijjHRr <i! * uHLiiui^: uc jtMiiLit Forbes Jln"Q* 

tbcr to ye pei-h^^wp of AueliUnh^ be CoI« 

\ ieso u e bn rg-t s o f A In r^ 1 > ' * m = 1 I Hi ce rtanc ? tber 
y:ciit«linciiquha >v;u < ; t (Jolkfi*i lum^i 

llie ty me of the ranr.^ i ad bcing^ ail got ' 

ing* to supper at uvf^ bouriv at 6?ia in m 
itormie wynlernyU tie r^sbelliti beiwg" airu^iil ' 
men boddui feir of weir with bagbuttis pLato<T 
JetUji and bit^laui) durkis and all vtber \vappou«if 
iava&iue ^terit tbe ho|i$e and tmmediallM 
eftii- yair£Atrie scbote ike durris sa that y V J 
was MatJ»er e^ess iivr ii»gvess And in taikMl 
y'«i* ane aerfaiid *d' Bobf 1 1 Celleis being witb- 
out v^tm not ^uilet'it to enter ye bouse ibat ^ 
Di^kli Natber fva& yair onv et llobert Collin 
Jm v^rvnndid ^offerit so epqmII ^ ^^ goe out 
tityJ mi^te yn>r s^uidis Bol t>e ye contrair tbe 
l^id*^ Ti^'i- n »i" r f-^' f"..' ^ i- 1." v%i|fuU Ui- 
IwcHu l^t only i« ] 

ibi$ pi i,-v,u. ..... .. . ^ i- -, tbat.ny 

l^tfd Aduncat <Ud fudicialtie accuse iUe>iBiiJ 
Jaii^e!^ (fordcHin Ikii^j ilian ^mi ve pannell KfMmtel 
,tbe,p> t all ibut I buif*] 

now , tne his ^lva^u 

I ut'o'i kbui be v%aJd bt^il' l»eoe i 

k khe reb<'llis t^emg* tbat he couid ] 

41oU>>u oiit (thay being, mai^terriid of ve durrts) 1 
ibnlJiie $taw quveilie to bis b^ii and knew not j 
qobati liie reUiUi^ hy doun nor qttbaa thum \ 
went a M", ay in ye muirnini;' qubilk ifaga||nti 



v 



1S5] 



35 CHARUBS II. ProceedingM agaimi Akx. Blairand othen, [IM 



be presumet voles be had dislykit the com* 
name and estranget hiniselff frome tbame 
Item the lying id one chalmer w't rebellis 
argiies not so much internes and famiiiaritie 
w*t lliame as the straitues of rovi mes knawin 
to ye assysoVs Item bis nieitintif can not lie 
•g^ra^attit from the place au suspect to be 
harbour of rebellis becaiis it was nocht rcpre- 
sent'id to the uannelh's rliut yc house of Hassie- 
walbM was :nc a plau: juul it not b&n\^ knawin 
to tiiameseltiis thay could not haif had any 
ground of ,presum|>iioHn i'rorao it Chieflie 
Being the pannel depunet vpon his grit outhe 
thar he knew not q'r the rebellis war recept 
And coQs«*4Ucntlie Uiat the bouse of Hassie- 
vallis was notane boose qr* thav uiet to be har- 
bourct Nathercaii theuanneliis&igitiousues 
and hi-« not tor corresfionUencc witli tlie rebellis 
and fa\ouriiit|r of tliame he now-vr^^et as ane 
pre.^umutloull oi hys awin guilt beeaus thair 
was luitninrr jnuvin to the first assyse' hot his 
awin coutesNiouu that he had slane a man (q*lk 
was done in his awin defence) and that he mett 
oocasionalUc with the rebellis And tlie assy so'rs 
knew him not vtherwayis brandit as ane 
favourar and complicv: of lebcllis as thay will 
depotie vponey' great oathe and maisi of thaioe 
iiad uevir senc or hard of him IteiA qr' as 
his inti^rcomiiioning wittiiicrlie a{(;ainH actis ot 
narliaiiieij; is |>irt>siiiuptivelie quhleieid in that 
tie joy 11 eil not w't thaise of y e house and the 
conip;iuie w't quhome he was to op^Kise the 
rebellis And convoy it not ane boy furth be a 
privat way or window and (|u*by gaue not 
aduerteisiiient of ve rebellis being yuir q'lk he 
my H haif done befoir thair going to bed or eftir 
quhen thay war asleip at leist my*t haif ob- 
ftVuct the way thay went and raised the ciin- 
trie It is ans*rit that as his conference is justlie 
excuivct Ob Justum metum qui potest et 
debet cadere in virum constanteni : Decret. de 
iis qui vi, metusve causa : Cap. 4. And in the 
law etiamsi uon sit vib de facto, nee minie, 
timer etiam violentiee iufereudui Justum iniert 
inelum, et visus annorum, etsi deferens iis 
nou vtatur. L. S, if. de vi arinata : Giarba 
cons. 2B num. 20. £t constans vir elegit 
pru(ler.tt;r iniuus malum, ad majoris inaU peri- 
culuni e\ itandum : Covaruvius dcmetu in ma- 
trimuuii cootrac^tu intervcnieiite : Num. 4. Be 
<Xrittcr reasuiie his not atlemplintr against 
thauu' bs way of deid is moir excuseable Be- 
eaus (lie iiua{;uiarin n^solutenes of the dittay 
is noi in law it quyret of giiiil subjectis qiiho 
me not obleist to tempt God and laveiwh yair 
lyvcs a«.;iLinst rcbt-ll.s voles vair war grit us- 
siiiauce of advantage quhilk was not Four 
disperallip resolvet and ledoubiit men viz. 
Alexander Leith and Natlinnitll Gordoun w't 
yair tua men bodin all w*t gwnes and pis- 
tolcttis huiti'T Loo htronc^ f(»r foure honest meu 
wantii.g til ami! aud ane vnairinit crew of ser- 
vandi*! Ai;<l albeit Jaim» Gordoun had beoc 
fuii-laulic-biouie, itis nut cnu^tant tl at he had 
power o: ilie le^t to maklhamej;.'^»Mew't him 
And soiild lihTbene inail to expose himselli'to 
baif beue the butc of pislokttis iijione Item ane 



boy over quhome James Gordoun bad _ 
anil quhome he micht haif sent furth at i 
window or privat way whence he micht baif 
sent him the rebellis loadvertaooe and cauiea 
securitic ar iraprolmbtie sopposet it nocht boi^g . 
con sunt that yair was any way or window sua 
law that ane boy my't naue bene let doun or 
that thair was ony boy quhome James Govdouo 
m^ cht have sent Anil it nocht being presume- 
able that the rebellis who hafl so great rcasoua 
to be apprehensive and quho for yair awan 
s<u:uritii} vset to schoote durris, woki nocht 
advert that yair was no privat way or uiadov 
qr*by thay micht haue bene surpryset and be 
could not haif observet the rebelhs wayiain aiitf 
dark inoimiug, thay haitiug gone away befinr 
he uas awarris and conseqiientlie tberaiaeiiig 
of the cuntrey to follow thaime was no i dlo a 
seuig he knew not qiihat way thay had takia 
LasSie qV as the assyso'n y'y vuwarraiilaUa 
temerarious procedoV is exaggerat fibr ao- 
quitting James Gordoun contrair to ye efi- 
dences rpprescntit be my lord Aduocat and 
vrget frome bis awin depositioun conforoae 9'c 
vnto thay war obleist to have judged noshiyg 
being produoet to veriiie that he was forctt 
and neot's&itat and that the durris war acbooCa 
It is answerit that assy so* rs ar not tK> mucji 
judges as witness' Jaco. 6, parlia. 6» act ?0, 
ci puisim in our law and in the Kngliscbe law 
Aud y'ioir the pannel iieidit not to aatrict and 
ver.lid the qualitie alledgit be him for bis de- 
fence be ony vther testimouie nor the knaw* 
lege of ane assyse qr' vnto he was remitted 
and quhan thay war incloset the testimonie of 
tua or thre of yair numlier might haue bene 
aup guid warrand to the rest to acquit him as il 
was some of thame haveing witnessed to ye 
rest that they knew probablie of thase that ye 
durris war schoote and that James Gordoun 
wald have rcteired himselH* hot was stayed be 
the schootinug of the durris And albeit yair 
testimonie was only de audUu and of the repoiit 
of thaise quho war prsseut thameseltiis and 
may bcquarrellit alsweil as James Gonloun it 
might haif bene ane sudicient inlbrmatioun to 
the assyse since thase that war present thame^ 
siitiis could only witncs' and was nott to thw*' 
panoellis knawl^e brandit with ony suspilioqa 
of associalioun or intercommonio^ with the 
rebellis and in the law Testimotiiimi de au- 
dilu iiicit presumptionem, quie operator lit 
onus plene probandi transeat in aduersariwn, 
et si deuide aiiquod adniiniculum acoestent 
plena resultst prooati'>, prircipuo in iis quie sunt 
ilitfioilis prubationis, quaiu uutem esset hoc ad- 
miiiiculum Judicis Arbitrio reliquitur. Mineii 
chius de arbitrariisJudiciis, casu475, vaquead 
num. V2, et omnes doctores de testihus. And 
y Yuir spring assyso'rs ar not tyed preceialieto 
the strict rculis of probaiioun Beeaus yai -ar 
probatioun thameseltiis and witness' and Ah0 
testimonie of some of yair number was irhwi- 
nicled with the vsuule practize of ye reb^Ua ip 
schooteing all the d<M>re8 qubair thay < 
knawin to thameselffis thay haif 
wanantabUc .vpone the tcsliuooie pf j 




upon a Prucnt af Error i 

inl^rcomtnonct wiib tiie rcljflliii at tua s^ucrmlt 

tytiies b^ bis it win confessbun did nalher gcve 

ftigne of EiriscaDl£tilaieat the t>me of Im 

eumiagf nor made ony wairaeiiit; to his lua'ties 

Id^es And zlt tins James Gordoun quhm 

waapnunellit^ith fmrenianent iuLlovvis Vfione 

the tbtirt of August and contioewit lo the 

morne All the rest were convict and fyltt, 

tnd this Jamefi Gordoun was be tUe iiaroe as- 

ivs« (f|idia in>ijvictit all ye rest) clangtt For 

the *iu]iilk the cotinsall did oirdanc the assyue 

Vt he perse wii to the efiect be y'r puneiisch- 

lut ht or terror hiH maicstms subieclL<? sould not 

presume to jntercoinmoun with the rebellis 

1 pone exp€ctatioun of the 1) k ifupunitie As 

J a nie^ Gordoun fund !i€ tlie temeraiious pro- 

reidjDg Qf the said assysc and quhuir it is 

ailedget tbnl the said James Gordoun his io- 

tercommoning i^ith the rebeUis was not spon- 

taneus hot foi'cet in respect of ye schuitting 

of ye durris he the rebellin It is nnsVit fir^t 

That this w as proponet in the firfct proces and 

• rcpdlit Secuudo thiB elyddis not the first inter- 

commoningat his awiii houst- in KnokleUhe 

' quhilk per $e was sufficient to infer his fnttT- 

comnvoning wiitinglie with the reheilis, thair 

bein^;: na sic ailed g^ca nee of force of ^chuititig- 

of the dut:^i* at the first tyrae Tt^rtio the 

farnvn h ^^trair to James Gordoun his asiln 

f\ev< hainthe sctondinterroramoninn; 

i in i Us grantiB his conlijri'nce witli 

I the rtklliij his soupping with the rehellis his 

I lyine^ in ane chalmer with the rebelfis hot 

1^ D«ver tk word of "his coaciioun or schooling of 

[ ye durris in all the deposit ioun and the assyse 

? VfikT bund to eo^osce accolTding to bis aw in 

t, confestioun produce! and Tsct agauist him be 

bis maiesteis aduocat spectallie seeing* ye said 

schuiting' of durris was proponet and repellit 

I be the judpfe And quhair it is allcd^ei that the 

I assyse hes liliertie to judge accoinJing to thair 

«:onscience And that some of yV awin namber 

I did atlcBt to thame that thay did heir be ye 

repoirt of thaise that war tn the hotise that tne 

I rebeHis did schoote the durris It is answeirit 

i that albeit qV na probatioun is the assyse 

' may judge accoirding to their pnvat con- 

L*dejiccs» zit quhair probationes ar vset to the 

■M|yse in judgement Thay ar tyeil to judge 

HBiDirdiiig to the probatioun led and producet 

^in judgement andean pot judge against the 

ajmyu vpone pretence of privai knaw!edge or 

ioonBcieiice ffor that war to destroy all justice 
■yofiiUe 8eeing be the I a wis and adrg of par- 
Immcnt all probatioun in criminal canss^ 
i is or dan it to be vset opponlie ^nrl in fac« of 
judgement and the privat knawkdge cpihilk 
! they allcdgje to haif had be the depositioun of 
! some of yair number can be no excuse iQ ihatne 
; first Becaus it is ^raotit that they deiK>nit only 
I «r (tufiiia et non f j- risu Nixt becaus the»s 
' 4]tiha defionet ti nuditu declairet yat they hard 
the samyu fronie Kobc^rt Colhe quba was 
maister of the Inne^j Hnb^^rt Dempster o4* 
Cuschnie and Hobett Forbes brolbtr to ye 
persone of Anchterles and fra Robert Colliesone 
i^urg^rs of AWrdene und certain Tthcr gentiU 



A.0. l681. in% 

men i|uha war in Robert Colfies house the ly m« 
of the rebellis incuming qr*iipooe bis ina'tei^ 
ailuoeal takis instrumentis and ansVis that Uie 
tlecla rationed of ye said is peraones being lub 
todan renin be intercom muning with r^ielli* 
could not be ane wammd to the assyse to 
clang e James Gordoun As it could nocht be 
ane warrand to clange thaq|CSclfliB gif they ^ 
hade bene pann«lllt spcdij pptipg tlie said 
house of Tlasfsiewallis q^rof IfliVtd Uobeft 
Collie wQs maister was ane verrie suspect 
place the samyn being grantit be the deposi- 
tioun to liane bene vnderuie raarqueis of Hunt- 
lie within i|uba is boundis tlie rebellis presumit 
to find fauor Lyk as the said Rob it Collie 
maister of the bouse and Robert Dempster fra ' 
qubomeit is deponent thay hard the said at- 
testation n war both denuncet with the said 
James Gordoun rebellis at the instance of ye 
laird of Frendrancht for not compcirancebeloir 
the justice to vnderly the law' for soirning and 
opprcssioun committit vpone his tenentes quhilk 
the said assyse could nochi misknaw thav 
being denuncet robelii(» be the same IVez of 
hoiming quhilk was j>roducel to teriHe thai 
Nathaniell Gordoun and Alexander Leith war 
denuncet rebellis And farder the h&n\ James « 
Gordoun snd all the remanent geotletncn 
being in the Innes at that tyme war altogidder 
inexcusiible because it is granlit that they war 
to ye number of fy^^ gentlemen nominutim. 
by Vther geiititmen qutui war in the housse and 
double number to ye rebellis And sua soulU 
haif concurrit togider for rcFerence and obe- ' 
dicnce to his ma*teis kwis aitber to haveappre- 
hendit the rebeJlb or to baue made warneing to 
the cuntrey to apprehend thame The place of 
HassiewaUis bemg within the parochin of 
Aucbterles quhilk is ane inland pairt of ther 
cuntrey and populus, and ane number of gen- 
tlemen within the samyn quha aucht and- 
sould haif concnrrit with thame for that effect 
jyk as bis ma'esteis aduocat acceptis that p^rt 
of the alledgeance quhilk beiris that a servand 
of Robert Colleis being without was nocbt 
sufterit to enter within the house that ny't 
quba beinif fric of ony violence roy't bane 
bene dircctit ayer be Robert Collie maister of 
the house or be James Gordoun or ooy ane 
of the rest of the genttll men to haif maid 
waiming to the cuntrey Lyk as tlie 
said James Gordoun and all the rest of 
the gcntillmen being w*tin ye innes that 
ny't ar altogidder m excusable because al- 
beit they pretendit the schuiting of tha 
durris zit efter the rebellis went «o bed in 
ane seue-rall chalmeri thay war obi cist to tsc 
exact diligence cc»n forme to the act of par- 
liament Ik some meains or vy Vtn hulf ceasezed 
irpone thair airmoV quban they war sleiping 
or to haif ramforced the cb aimer durr with- 
out till the countrey fsould haif beine ad« 
verteised at the \cht sould haif waimet the 
cuntrey in the moirning quban they went frirth 
bol nane of tliir was done And qV as they 
pretend Tiolenee thay can not be hard * Quo* 
* oiam nuJluni fuic lignusi resisteticie' and.* 



14S] 



38 *C M ARLBS 11 . Proceedings a^ainai Ahx. Bhirand othcn, { 1 44 



0f ttie Jaw * Mctu« nwi e3rt?u»at niai mefiif 
' sit jostoimus, noi ettitn probnndu!i est/ 
Aod ill the crtmitialtfts tmtdes ^* quod conctiio 
«tiftm prubula nmi oxctisnt niii slatifii pofet- 
<]iiani qiiifl liberiilii* «st t» vi coAeliVa denuri- 
cmvcrif* An U hn^netWxe c<mdu*Ut be Fario 
qiit ' r.3J*, 39. -10, ntifi 4t 

«Ai* r'i na moir pnnlr>neutile 

Hor ' ^'1* \iQ^ uf 

ib^r :ir*reof 

tflt^%CJT «fl |r iriJi-v •■• kjHtlilk out 

of ifiicfstiouri yak will nntl uf ane 

tift^> f.t,fl .li^^! Am! 7\t <urhc as i« 

pi J 2iDd a(!lis uf 

p'h I iL ^ of all tf>ir 

pretcnccfl JamcB Oontonn wns tnnist t^iiltie 
add ecrald net hatie bene clatig^t be lb<' satd 
a«T$e Nuther uf his tirst iuteirunmjonin^ 
agailist ye ijohilk yalr in nathing' alled^t bt* 
iwahl i^'foirknawled^e q*]k can uocht ^cuise 
liim of the law qnhilk only ref(nir«j knaw* 
hi]' r* vR seciftid inter- 

eiiL vvitliin ane niyl« 

to I ■:-■,■.:-], lU<? 

•ftrr <;r rnairl ni takirt of resistance 

bot idl u^i^.. . - L wi!lin|;^i{?« fatniliaritie ami 
. ttfectionn and mnin\ na intematioun or vndr- 
9ien\r t(i the coaatn^y and Iveing a pcrsmte 
aitspectcd and cakin he the marqueis comniU- 
tjoun »8 suspect iMM nocht haTcbene clanget 
^f mtercomraoninjsf qlk he himseW cotifesait 
with all the cpinliteie and circtira '-lances aftnr- 
Wd And {Tit the wilfiiH and tememrinns pro- 
Aiding ctf ^le aaayse in clangeing' of him be 
tmi pnnenfched lit alloi^ed and appnyvio it 
Willimpo^rta heaviepreparatire to the tirein- 
dice df ye ptibhct p€ac« and to hh Imdett^rs 
amtnjfiue and oah'eie with it a prfK^lamtttioun 
6f a fieirftdl lit»ertie to all his nm'l^ts subiectit 
to fmenvQinniotlin ^iih oppm rcMIes in the 
Bfligt ^blicit rebelliouD qMk eYetierad aqbiect 
imild Mktt and dt^taist m re^piSt iv'«f aU 
ilf» itidif fllMireinces cucht to be t^lH aad 
Htm dMgr ItMd r«leirant and proven Le the 
Wflll (iMtucei^ttd yeaamjii dtttay reft^rrit to 
Die kiKWl^dg^ df tivenlib |lersoric« accoirdhii^ 
to ye a^ of pariiainefit And that allanerlie ana 
Ikr IB iii« mmkytt o«n]»iatia inf^cto quhilk is this 
duly poytil?]^. Ttm the ^ rttih y' probatioun 
iiledgfd in ye dfU^ to half bane proriucet in 
the first proces for verifiootmuii of that dittsy 
a^inst Jamca QtmliilD was dr J net a prodiiast 
at thift i> iw agfthls ym\ for that effect* 
Tii# >o^ioe evMAewia thia dyet to ¥M^J 
iMnir t)ie]c?ui of DflDember 



cHinft the [If rtooes an pamidl la ifid wm*- 
kmn fcr y> re^trioy^ aaiM Iff iday of Dtt* 



mat j\ 



etmiher imtant rik mfmmw 
•he tliou!iand tnmia For «ibf«fi€im ^t'iif 
iSdfitptiint James Ch^ne of Aniad|^ mad }m- 
«tfti« catftioiin fnr ye htirdsa of Lf^ntork Birkin* 
W^f Pctt<'m«:if Mr. Mnffjn^ Inniif!T*den tbe 
pVfd Itiaii <' f(k<i erf 

Elstk and h. ^ywtttc 



GeOTBfc (iJordtnin of Netrti 

O^JItie of lilas&iche V*^ i 

AWxiMitXer Keith wf l>il4Fii« and ih«? ^ 

under Kc'ith of Dufltitc betvime eh^ 

yeeulri^ of yc aaid John Os^ilvie ui»«l lujll 

remanent paiwiftea vpon paniicU t nder ye jkum: 

fo'rrsQifl* 

The ppnsonea of aaayse wamat apud acta 
ilk |»c'P0One vndar the pabe uf ana tlioaaaaid 
pundts. 



ClRU 

prf'fi 






D. N. 



Iteipa tents ia 
*^tnbrr» 1635 [•er 
uW et Jiicobimi 
iifatos. 



Uiran' 



Amjw'^t^ acxmael «f ErroV ContitMnrit tA y a 
MorHethe IQlfistanto. 

AUtamhr Irwing^ of Letitfirk. 
Alcjrander Buneruwn f^^* Kkirk* 
AUxundtr Abercr<fi i i kiaU«ig« 

(jcttr^c Ggrdonn, ot ^ u. 

TT7//d«ie Sattoun^ of ScheathyD. 
Ororge Gordotin^ of TuUiecho^vdiew 
itiArt Ogilvie, of Glassache. 
Jiimet Scatonfy burges of Aberdeen* 
Chnrl^t Steven Lixter, hurges y\^ 
AtcTfiniierKcUhyoT Duffus. 
JIfr. MaUto:o Luuwiiiden buries of , 

deen, ^ 

Hector Ahcrcrumhit of Fctter-neir. 

Dilatiit of ye error oomniittit be thaiiH; id 
temerariua acqutttitijt of James Gor^miti 
to Ooorge fTordocin of liOgyaltonfl in 

5pe*itio ycdittay. 

PcneicQr,-^\T Thomas Hope of Ci 
knight barrouathis MaVis ^^li^^^cat 

Preio^n in tkfenrti.'^ Mr. iames Bairrf — Mr. 
ThofiBos Nicoltoae ytmnfor^^^Mr John N r«het. 

The panndlis takis mstrunAtHtis u^ 
Hfttrie and jf'lesiis for y V cautioneris relicC 

Itisdnplytthe Mr. John Nisbet » prola> 
fifT ye mnineU^tlie reply maid be hk piaias^ 
ti«« adiioGat lit the last dyet of jis proeet 
Tlcgtya Aitt«yis tiatker rdevMit ritw piori* 
ttnTm re^mmm Mredi^ AtMueet Atid i|*r ii is 
replyrt be my lord atbocac tJict maibing is la 
be rvmitttil t* ye a^f'ora bot cnty to cag^ 
tinsea dll/^fo <|oKidd(^ ^if ^iicti wrhtis ail4 
nratotioim xrwt ^bai^m to ilie 6rsl insym ll 
bdsplyH that Hie Aetmetng of vg estttttlf in 
Hqmmng t«i ninvrofis and noMe uuBwmfrym 
h ooot tb^ flMnr io«M *mW eogsoiii «r iW 
i|*ik h Tndenyable «tid is oWiniia m^ }txlB«>^ 
br wKy fam B«rt tlait lb ay aonld try <fii1]i<mr 
llbedrfdiaitfiaiMooat fa tbe irst aaVr-^ v- ^f 
Ibii cNw iH ta ypona tbame matttlt t 
Inanrfwti^ of *n minr»f>ll hu irtiMt <p.. 
ofeiuis' ^ofie ta 

rict »i . it uh^^umi 

and r|ii^hi< 
thf kiranki 
pfT99ifteg gift paouaU ait 'ii€<)iui Wuit^turi 



>* 




mpon a ProeM cf Error* 



A. D. 1 



[1« 



mlftilliebefaiiorftnd purtmll mcatics For 
iJUbeik vpone the smme evidences sctiawin to 
ibe fir«t BM^ff? It sMkl be fnml lliat ttiey Hni^' 
•isquilati * it tliey finil tlmt 

tbiiy hail iie ami tetncrari- 

if Mnt poantobct lie ihe lun ni 

gif ttisy beperswai ' ' *' ' i!«ey Imu n.»: f. us- 

noerntlie and «c^ ynir conscience 

aii itiy lord aclni>c. *^s af'kiK»'Al^*!i;^f f 

For gif tlmysoiih) ^ mi 

excuse ii ^^^ i'/tHu 

nochtco 

vpoaetlt 

excuisei 

ol^ tile u* 



slrnvne 



re ot tern 

r l»u the 

iiuatinqr tl«al iIk- 
gniBtof igouraui en or h Doclit yc j^rmrjt oC 
tm^oryaut ooil fault f>f ascyaV^ seVingf aocht- 
wlthstiiuling the t' > ''y nxay Ijc 

|iat to Hue If fit irns purticji 

J^Dling yV fault ar i«- It |i lit :ii : ^ v/- 

ted|fe Ami qtihalr as it iK iTplyeii w 

«Au I'res et' inlerccjrarnoniutr prtHi"! ri,- iiH 
iniii^ witliout di&tiiKiiotni qiiliiildfr 
foir knawlecl^e or be Kiirpryi*e And 
that ye law reqnyrins^ icimiiam it is imperti- 
ncQt to BOperad pretcujitiam $ioce ibir kuaw- 
ledge IS only probable be oath of partte i|uha 
wald ei$te rodeftme thanieseltlis with ane 
Otlh And be y*r impuuitiij to incurradge and 
inlioldfn ftheris to ye lyk prartbes And 
*ft»tr iUe justice repeliet the <leience pro* 

for James Grirdoun that he w«s J*ur- 

fryivd and occiuiidfiaihe a^dg^ ivithout 
foerknowlfd^? or trystitia^ It is snt'rit y*to 
thai ' rlinmetit i5ti7 is expres of 

try.^i lo fbrtliie rtbellis And most 

intcrpri'ii nu- re:u of the aetis and Vtez mmi 
y'lipoiiit seiog without absurditip thny con 
tiocht be undenitMid viherwaylg Aud scitrttia 
in sens* can not impnirt a cry me ivirhout uiil 
and ttiC«titioDti (juhilk ia argued ho foirknaw* 
ADd tiocht be suq>ryses of tbea^^e rpilio ar 
|M>wprful] Ajad with quhome puirteis nr 
ntat to interteyne discourse or ioconsidp* 
ratlae or TntihristianJie to be yVawin TnnrtJur* 
aha lie imtalinsr robellis and pri*' 
eiwiadeatit And the impWDitie f> 
tiocht KtiA coiiftitlcrnhle &s the danger i4^^^ati 
stibieetk qiiha may be invoWcd Ue surprp^oT 
nMlis Its thousandia of thamc has bene in \e 
Iftit disorderis Atid yair is not only heir Iht^ 
of fbe pairtie acciisft hot a pregnant 
Bptinun from the rclicllis koawin prac- 
^lort-T>'--- '-•-" --».— <is AndyepanneU 
co[ti< ihtiv come to him 

5» '^ — - , . ,!i;it he could noclit 

■>'.' being bodm wiih pi%toUctUfi 
< <ntf it is ye only ground of dit- 
ii|(n«nf)i bim iiithout ouy vtbc^r eui* 
lid nocht ha if lit^ne tati« mm 1 la t lie 
Ing^ adrainided with the former pithUiiip^ 
tiouii And nJi cbrimtiaue juclge can candenine 
A pairtie <H)fif«'«aiD{^ intfixtiinmonuig^ a^n^ 
ypouc 




CQtildMiouii Kun qualifci 
I flitliklad m hia fay or v 
VOL, XI. 



^nantUc ad- 
1; prcsump* 



tiouti and his great oaihe And the jtirf<r<^ ^n* 
terlocutoV reprlling tbe foirNaid d»tr 1 

l)C ohtruidet Bcvaits the justice b+ 
jiropper judjje of the rclcv. 
ye lelevuncio qi]biddcr or n 



ditl^y albeit releiaitt in lh<* 

ildcr 

s ■ - • ' 

dyttit of t-i fin 

iiilcd^iog' ti ia 

his j«ist dclenee and the justice sould remit 1 
to ye knawtcd^e of ihe an^ise thea^ qualtteis j 
It war absurd to think that he had repeTlii 
thaine m irrelevant in law het'an** Ue h^a re- ; 
ferrit thame to Ik; try it br ti 
And qV as it ia reply it be to 
ye quaUteis * wilfullie' or * >nr 
takin altematiue confirme to t!i < 

of the act of parliament or vtherv^ jms i^ imiui** 
imply incr wUlinghe Tbe repetilioun of wit-* 
tiiighe war ane 0^'="^' ♦"i»«r.i..<rv> Vr^.i tii^t y« 
act of parlia m en t e i ti 

dilaitiDgc of ye relj _..:.. _„ , ^. ^ 1 arao 

in accidcDtall surpryaes as 10 roeittings pur|«j« 
and that ye Urst dittay waa alteniatiue and 
thaiae evasiones nocht alled^t and in ane at- 
ternadre aense admittit to &e knawledge of ] 
ane assyse and conforme jMyrto thair dely- ' 
uerance wiis altematiue 4^ duplyit for tlia 
pannell tbat we repeil v> former oxisV evince- ^ 
log frome ^n&^ law ainl rcasone the ropulattuct 
sens* of the act of pari iani ' ue takiflv 

of witiinglie as it presuppo IJie Aoa - 

we vrge my lord ailuorat i^u uv muik** in con- 
science That parteis kuuwin to half bene stir-* 

pry^tand vtolenced f'>r ■• • *- ■ '^ ■* Is evident 

tbat mony in ye bit fl ^le force! 

to g-eve y> purser; to . -u.. . c . .. sould bo 
puneist capitallie for upeiking' wuh him wit* 
tinghe albeit it be constant that it was ;tgnini<t 
yaif will quhilk is ordtn^ in statutes and in tlio 
nctH of jnitliatncot And the tautologie and 
'jiitie of wonlis q'Ikia ar nochi con^' 
le in wnsidcTatioun of yre cruell ah- 
li^a'ditte or jaw sould vtherwayis he bmndit * 
with and tlie exact dilligenco requyret be tli^ 
ui HiaTnent argucth net that ye qunlitin 

<i .lid irapoirt tbe cryme utimercom- 

li iiout will and intenlioun And the 

^ I ne^hgence ami oniissionn of pair- 

tii^ ..i.i ♦lib not relevanthc commissioun and a 
i:T\me qnbilk cannocht 4io without a wilfull 
ftpri vnu vfrrui* intentioun previous and inier- 
I te act of cry toe ChcilUe seing th^ 

«u , J the rehi'lli,^ waft fmiecci«ar elilof 

protcriptjoun and yuir recept and randievoua 
HI Rolhiemay waa nottoV to >e magistrtiitii 
And coii5(« quWitlie yair being hi the cuntrey 
ncridit not to he tfvtiiiiul hxhtWe the aUematiuo 
conceptiomi of the jndgcs ' ijf and of 

ih^ abyyacss delyuQran^ be u** t/i iha 

act of parliaineiil reuJht^fc 1 
lioim / * 



"as' 



147] 33 CHARLES II. Proceedings agalmt Alex. Blair au J oiherM, [148 J 



conscience tliay thopflit thamesclfiis obleist to j 
conceive it And vpone thair conceptioiin of it 
to ucqnit James Gordoun of iutercomniouinj^ 
uittiu^iie as it im|K>rlcs a crymc and the noclit 
pro()oncin(|^ of the foirsaid defence v|K)nc the 
disiunctive* sens* of the act of parliament can 
not he obtriiidit Becaus the (littay ^vas con- 
ceavcd of intercom moning g^DcraUie without 
thease qualitcis And it was vr<^ct be ye said 
Mr. John Nisbct as prolo'r for ye pauncll that 
it was imtlnvant nocut expressing thease qiia- 
liti'is proj>oscfl be hiiu copulatiue as (ho proces 
will schaw and it was nevir doubt it that it 
could be takiu vtlierwayis And (["r the dispa- 
/itie of Waiter Hay his intcrcomnioiiin«i^ with 
James Grant is reply it frome the difturent <pm- 
liteis tiie aiic beinj; ane passen^^er the vthcr 
resident in the cnntrey anil a Gordoun pre- 
sumet to i'auour the relrellis of his name and 
IV'alttT Hay bein'^' ane honest vnstispect man 
and knauin vnfreiwl to Januts Grant and James 
Gordoun knawin to be ane ilai^^itious man fylet 
be thnmcselftis of slauchtcr and pcrsewit be 
the loird of Frcndrauclit and put to ye home 
for non vndcrlying ye law for soirniiig and 
denuncet rei>ell and c'tcnit in the I'rez producet 
to vtM'ifio the rebellioun of the rebellis with 
wliomo he intci*commoned and tane be my lord 
inar«picis and sent in choyncs vpone dilatioun 
inaifl of him as ane perturber of the coinitrie 
It isduplyit y'to that ye parrallcll of the tna 
caices is i'nstancejtix) evince that the best subiectis 
may be necessitat to intcrcommoun wittinp^lie as 
>\ alter Hay without incurrin*f ony j;u;it or 
pwnischment and y'foir the (jualitie wittinglie 
without ^lillinj^lie cannot reJevantlic infer a 
cryme and thaisc disparitels was nayer vrj^tt 
nor constant to ye assyse And as for the dis- 
purilic in the poynt of aboid the ane beingf bot 
^iie passinirer the vtlier ane resident it is not 
considerable tliease that ar resident i)cintj^ als 
obnoxius to surprises as vtheris and the lust 
fcir of residentis beni'j^ moir impressiiie and ex- 
ciiv:tab!e Not only in respect of the imminent 
\ iolence ^if thay had untymouslie bewrayed vn- 
towardnes bot in respect thay souUl haifexposcd 
lhaii!r«:e!flislolliediiyl:epray ofreliellis And lor 
the dispwritic uf yair lyfc ar.d probilic it was not 
vr^^rr ai;il liie panneiliscoiivictioun of slauchtcr 
as it v.'i..!i( atis the assy so is frome partialitie 
in rrspi ot thyy coiiviclit him of ar.e mair ca- 
jiilall cryme than intercominoning sua it can 
found a presnmptioun cf ane cryme altogidder 
diO'erent seiisir the reuiibsiuun'of the pairtie 
interest and letter of slaucs producet to yeas- 
s,> se seliew tliat (ke slauehter comittit lie him 
was rather be fatnlilie and surpry^e in liis de- 
fence as it was \T:i^et be the sui.l y.lt\ Jo'n his 
prelu'r than vp^nf^ toirihui.'.il fellotiie Ani his 
former l\ie beiu^ vnknawin to thir geutilnun 
Jiow i^ipannellit as they will depone vpone y V 
couscieiiees and nocht iK-jnjy traducct be my 
lort] aduoc it couhl not vncharitairiilie be pre- 
suniet to be ilai<:itious and the IcUcr of lioirn- 
iii£; .conteniiijT James Gordoun liis denuncca- 
tioun was not vrtret and coateins na sic thinpf 
uatbcr cau Walter ilay bis fgibaequeat loyallie 



and dini<^nce in conVooating people to persew 
James (inint expiat his witting^ iDtercom- 
u)oning {^if it be a cryme as it is not nor Jamei 
Gordoun his ne£r!i]crence to doe the lyke be tna 
ag^ravat seint^ intercommohin^ with tbe re- 
bellis and uocht apprchendiDSf of thame ar dif- 
ferent crymes And James Gordoim was only ' 
indytit ot' intercommoning' and his omissioaa 
in noclit deluiting caii not be rcspectit dler 
notto'r kuaw ledge of the rebellis being in ye 
cuntrie and harbouring^ in Rathiemay And 
qnhair it is replyit that the defence proponet 
tor James Gordoun that bis intercommooing 
was not s|ionianeous bot forcet cannot be re- 
8[iectit becaus it was repel I it in tbe firet pro- 
ces and because it (luaurattes only to pui]ga 
his secund metttin(>; othair bcin^ na act or tio- 
lence condescendit vpone at hLs first meittin^ 
and becaus it is contrair to his denoaitionei 
qualifeinjnr pre^nantlie nocht only tiis will- 
in^ies bot iamiliaritie in bis conrarenoe stay 
souppin^ with the rebellis and lying w't 
the rebellis in ane chalmer without ony men- 
tioun of \ i (deuce It is duply it as of beroir that 
it uas re|iellit as inept to stay the pannell Itoiim 
going to ane assyse Bot nbcht to vindicat tbe 
pannell beinqr fundin eiler tryall to bait* bcaa 
violenced seing in law and nature Ju$lut waiu$ 
is ane irrefragable defence admitted in the 
most bluidio inquisitiounes and amangst bar- 
bares And his first meitting was purgct be ye 
said Mr. Jo'n Nisbet bis prelocutor in respect of 
his surpryse and iustfcir quhilk in law and 
conscience '* non solum potest sed debet CA- 
dere in constantem virum/' Decretalibus de iit . 
qui metus cansa ca|).4 . Itequires not neceaiairilie 
a present act of violence foot is defynet in law 
'* nistantis vel futnri nericuU causa metus trepi- 
dctio" L. 1. if. quod metus causa As h at 
leuth evincct in' our former ansV and in tbe 
pi*esent caice Ifonre rciloulttcd men armct with 
pislolcttis micht haif quelled the maist coo* 
stant and loyall man being alone And lastlie 
the pannell *his last meitting is at lenth tIb- 
dicat frome being wilfnll as is cleir be our ana'rie 
And quhair it is rcplyed that the assysoni ar 
tyed to judge accoirdmg to ye probatioun de- 
ducetbe<bir thame and not according to yair 
prifat knawlep^e seing the act of parliament re- 
quotas that all probatioun sould be vaet op- 
piulie and it sonld convell all justice gif judges 
vpone pretext of yV privat knawledge souldba 
licenciat to judge at randome and that the 
testimonieof sonie ofy'rawin number being 
vpone craleit et ex auditu frome tliaise that war 
teyntit with ye lyk gui(t could nocht baiff bene 
sntiicicnt informations to the assyse aeiif 
Koliert Collie and ilol>crt Dempster fitt 
ipdiomc tliay had knawledge was denumxt 
rebellis in the same Trez producet be my lofd 
adnocat to veritie Nathaniell Gordoun and 
Alex'r Leith y air relK'llioun It is duply it that 
quhan ane fact is only proven be the vertficn-i 
tiones adducet and the qualitie purgeing Ibn 
fact and cryme as that of necessary dmnce 
in slauchteris constant to assysourea in j> 
prirat knawledge tbay sould judge aceoirdi^f 



p' 



J49] 



upan a Process of Error. 



A. D, l6BU 



fI50 



to yair awin |»rftppcr kuai»le«lge since lliay ar 
atlestet »s witnehs* anil lUair leHtioiuuie is 
€omp;ail4e will* itje verilicatiout^ aclUucct To 
atlii'ini: lliaL tjit a jiairtie convict be ijie depo- 
•itioneiior witnes* of slauctitcrsaulil relbr liim- 
■elflo ye knawkd^e of ane as^yse viz. that 
W iiad eomitiitlcd it being luriuus or in bis 
jiwiii ilefence it war absunl to afliraio iliat aoe 
assyse in»y nacLt a^quitt vpooe yair avrtn 
knaulcil^e of thcase cxpiatorie tiualileis And 
the act of parliament ref^nyremgp |>robatiaun to 
be diMl licet ojijiinlie disbatjfes nnl assysoures to 
tiitncs tliair knnwledg-e qulian tbey ar in closet 
bot ^irovydes only that all inlbrniulci ies to ye 
assyse aitdncet be yair paifteis souUl lie rfeducei 
pubiictlie Item llie teslininnip of the assyson* 
albeit super nnilita my't haif ane ^u\d and 
warantuble informative be ibeassysoni consci- 
ence quha :ir not tycdtn extraneous probalioun i 
And ar [irolialionn yamesclffisi aiuHtie rebf lliouo 
«f DeifijistcL- anil Collie cpiliilk iny't liaoe rao- 
dered yair tLiilimonic sospitious was not vi^et 
to ye tirst assy^ lie my lord adtioeat and ye 
dispute be ye panncfl his pr*j*r bcires tlmt 
tbey war vnsnspect iiicn and Ibaii war not 
braodit (o ttie paiinifbis kna>vk'dL''eant) yclVez 
ibaii prodnuei bdoir tJtanit' boirnubic tbin^ 
And qiihair as James Gordoun b!»Todetitifu]ije:( 
is atj^f^ravat in respect be joy nil with ibaoie of 
ye bouse it is at It-oth ansv**eirit M'oir and i|*r 
as it is vrgel that aii^ sen and of the house be- 
ing scboie furih iny*t liaue bene direct it be 
iames Goi'donn to aduertr-is the eimtrey hh 
«hijdyit th:il beintr detenit u'lin he could not 
haif penetrut itic durto ^e\(Mlirectionn .Ind 
CoUiet^nnm bis fait can iiocht be imputed to 
James Goidouu and tf r it is reply it tbaf*- nul • 
luiii fuit si^niim viokucie et' resistencie et 
qnod coactio uou libtftat n'lsi denuQciaito se- 
ijtiaiur'* It is ans'rit that in law nocbt onlie 
viz* (]ulvilkiE> relative to ret^istnnce Bot ^* Jnstus 
luetus e^cusat quod metus caum*^ qubilk is 
not only ** oh presens nericulom setl foiurom*' 
And tlie instance of blak itiaiti in rbe paying' 
qr*of oaiitciy albeit violenced ar eiccnset isooclit 
€onhidemb!e bec;ius ibepayerisof bbk niajll 
inaketh ane illie^a and voluulai fraciioun with 
rebelbti quhair a*i tbey may schelter ihanie 
selffis IVome yair viuleuce be a retftit ia ike 
cmitrie xlntt implore the protection of the king- 
and counsel! and tbair is great oddls behiix a 
pi-eseot surprymnjr and imminent violence 
atid a vohmlar li^ witU relidlis and a *>ufferring 
of thauie tn reave herrie and oppress tbair 
nichtbor*s with yairknawlc(f;:c and m tbair si^lu 
w*lbout resisiancc or contrudictioun as ibe act 
of pariiament anent blak maill btirls and payeris 
of bbik maill ar lyable as suppliearis ot rc- 
beilis be aue has' tribute In respect q*i' of 
it hi evident that the diltay k nawayis relevant 
oocbtwitb standing of the replyis maid be the 
lord aduocat and the f|ualilje v^'uiiigbe wiiboul 
viJfullic cannot impoiri a cry me Kpeiriallie se- 
ijilj' wiuiny:lic is liot anes meniionat in ye aelis 
of parliauient viz. the act of kin^ Ju. the 6 
par. 7 id anno 1540 Qnbair tt is joynel with 
the wot'dts reccpt defeud sapplie maateaxie or 



due fiiuouris, and not with intercmnmornDt; in^ | 
the actes |jrohilicittin^ inlercommonins;^ q'lk 
re<|uyres wdliilnifs and iutentioun be ye woriU 
presume to take vpMin haniL as is alreddifl 
scliawin And the act of pitrliament of king 
James the fu'st his third [iMiuisient qubilk i>s tha 
ground of all the rest of the actis a;»'uiuj>t i 
ccptcris and manleiaeri« ol rebeliiii iM^jres tha 
ua man sail i-ecept or manteane retirllis wilfnllifl 
and makis no meutioun of wi(iiii«i|ie And 
y'foir seing ** posteriorcs Ie;;es ad prinres |»er«-|J 
linent vbi ag-itur ile interpreiiitioue^' ft', de I 
gibus L. 28. The foii*<aid act of necessite n»o<fJ 
tnler|)reii all the subsequent actis of that na<^ 
tureiii a sen's consonant with the commou^J 
law iriid reason e. 

Tlie J nstice c*tioewis this dyet tn ye morn* 
the 11) instuutis and uiditnis the pannell to tin4 j 
cautioun fur y' reeiiliie vnder the panes Bp'cit 
in ye former actis set doun hL-ir<aneut. 

'I'lie caiilioneris foirsaidii« t noil be ye panncll 
ilk the hisl act beings personiiallie pr'ot becaui*! 
cautionciis tor ye pannelli* re -en In e ibc saiil'j 
xi\ of Dec^ember inataot inder ye panes futr* 
said is. 

llie persontis of assyse watnit apnd act^ 
vnder ye panes foirsadis qrSpoue my lord ad- 
uocat ask it innlrvmenlis. 

Curia Jlstiljarie, S. D. N. Rej^is lentaiu Pro-.J 
toiio de KdV decimo nono 1 let'em la i«! 
lo33t l*er Mai^ros' Alexaudi inn Cnlnile et 
Jacolium Rubertoun JuslicianosilepnUtius. 

Contiaewit to the saxt of July nixt 1036. 

Iniran, 
Alcvander Irteing^ of Lenturk:. 
AlcjiiHiicr Bancnmm^ of Elsik. 
Atevantkr Abetxroinbie, of Birkinlioi^. 
Hector Abcrcrmnbic, of Felterneir, 
Alcxutiiter KeifftyOi iJiiffus, 
Witlinme. Seatoun^ of 8cheathyn. 
JohtvlfgUyir, of (f lassache. 
Gcorgr GorJtmn^ of Tilliechowtne, 
Geor^f' GordoitJi^ of New toun* 
Mr. j\Ia(how Lumwkdcn^ burgees of Abcr* 

dene. 
James Seatoujjf burges yair. 
ChairlcsSlevin Lit^fcr^ biirges jair. 

DilajtH of yeerror commiltitbe tbamc in tba j 
temerariMs and uiU'nll acquitting of Jamtj t 
Coi<l(iun of 3e wilfull and wittin|jf intercom- 
iiionin<^ with the rebi'Uis c^tcnit in bis dittay. 

PertfTiur, — Sir Thomas Hope of Craighallf 
knyi^ht, bis ma tics ad uocat, 

Pmhculon in Dejlncc, — ^Ir, James Bainl, 
Mr. NisLiel, Mr, Thomas Nicolsone younger. 

July 0. The justice with advyse of ye asses* 
^rsaiid ofi'oiisent of ye pei'sewur cciniinewis 
this matter (ulhe tirst \Veduesday of July nix to 
cum lieing the saxtday ofyesabl monetli and 
ordanitthe pannell to find cautioun lor yair re- 
cntrie and comprirance that day in the toU 
buib of Edinburgh in the bo* r of caus^ to vndci ly 
the Uw tor tli& cry me ibirsaid Ilk persou« 



35 CHARLES IL ProeeedingiagainH Alex. Blair and others, [IS» 

Curia Justiciarlb, S. D. N. Regis tenta in 
Pretorio de Edinburflrb octmoo Jalij 1656 
per Ma'eros Alexaa£rain Coluile et Ju90« 
Dum Robcrtoun. 

Intran^ 

Assyse of Error c^lenewit to ye XT instantif. 

Alexander Irwingy of Lentuik. 
Alexander Banerman, of Elsik. 
Alexander Abercrombie^ of Birkinboi|f. 
Hector Abercromkie, of Fetter neir. 
James Seatoun^ burges of Aberdeen*. 
George Bmcct saidTer burges y'r. 
George Gordoun^ of Tilliec'boudie. 
John OgUvie^ of Glassak. 
Alcrandtr Kcyth, of DufTus. 
William Seatoun, of Schethyn. 
Chairlei SUvin LilsUr, burges of Aberdeo. 
3Ir. Mat hew LummitdenthurgcB y*T. 

Dilaitit of ye errour committit be 
ye temerarious clangeing of James 
sune to George Gordoun of LogyaJtoun. 

Persetcar. — Sir Tbomas Hope of Craigiiall 
koy't barronet bis ma'ties aduocat. 

Prolo'rt in Defence. — ^Mr. James fisird-* 
Air. Tiiomas Nicolsoun younger. 

The Justice coDtineviriB iQterlomiitor tp js 
fyftene of this instant moneth or July - Ami 
ordanis ye pannellis cauteoneris to stand ob* 
leistfor yair entrie yat day Tuder ye 
c'tenit in ye former actis. 



151] 

▼nder pane of ane tliousand merkis for obe- 
dience qr'of Compeirit James Cheane of Ar- 
nnf^e quha l>ecomc sou'tie for ye entrie of the 
said Alex. Irwing of Lcnturk Alex. Abercrombie 
of Birkioboig Williame Seatoun of Scheathyn 
and Mr. Mathew Lummisden—Lykas William 
Gordoun of Tulloche compeirand personallie 
become souertie ibr ye entrie of Alexander 
Banerman of Elsick — Compeirit lykwayis 
Alex. Abercrombie of Biikinboig and become 
st>ueriie for the entrie of ye said Hector Aber- 
crombie of Fetter-neir — Compeirit in lyk nia- 
ner George Gonloun of TuDiechowdie and be- 
come souertie for entrie of the said Alexander 
Keyth of DuflTus — Lykas ye said Alexander 
Keyth of Duffus become souertio for entrie of 
ye said Georgre Gordoun of Tulliccbowdic 
And siclyk the said Alexander Banerman of El- 
sick become souertie of ye said CJhairles Stevin 
And lyk way is compeirit personallie Johnne 
Gordoun of Inner-markie and become souertie 
for entrie of ye said George Oordonn of New- 
toun And last compeirit John Seatouu baxter 
buries of Edinburgh and become souertie for 
entrie of ye said Jiunes Seatone burges of Aber- 
dene The day foirsaid vnder ye pane abouc 
spe'it Quharvpone my lord aduocat askit in- 
fitrumentis. 

Curia Justiciarije; S. D. N. Regis tenta in 
Pretorio Burgi de Edinburgh sexto Julii, 
1636. Per Mag'ros Alexandrum Coluile 
et Jacobum Robertoun Justiciarios de- 
putatos. 

Assyse of error coutinewit to Fryday ye ?iii. 
Julii. 

In I rah* 

Alexander Iraing, of Lenturk. 
Alexander Bannermnn^ of Elsick. 
Alcxundt'r Abercrowbic, of Birkioboig. 
George Bruce ^ satdler burges of A'b'd. 
Hector Abercrombie^ of Fettter-neir. 
A Uxa nder Keil A , of D ufTus. 
Wm. Seatoun, of Sitheathin. 
JamfsScatounj burges of Ab*d'. 
Chair its Stevin Litstcr, y V. 
Mr. jMuihozo Lumisden, 
Gtorge Gordoun^ of Tilliechowdie. 
John Ogilvic, of Glassiche. 

Dilaittit of the error committit be thame 
ill the partiall and wilfull clyugcing of James 
Gordoun, sone to Gcop^ Gordoun of Logy- 
altoun. ' 

Pcrxmar. — Sir Thomas Hoip of Craighall 
kny't barmnet his ma'ties aduocat. 

The justice with aduyce of his lo' assesso'rs 
continowis interlnqnitor vpoun the alledgances 
duply is and triply is and ans'ris maiilyr'lo 
in this proces of befoir to Friday nixt and or- 
danis the i^au'rs fund of beibir to stand for the 
defenderis Tnder the paine contenit in the 
former act. 



Curia Justicurie, S. D. N. Regis 

pretorio de Edinburgh decimo qmnto Jolfi 
1636 Per Mag'ros Alexandrum Coloile de 
Blair et Jacobum Roltertoun aduoeatnitf 
Justiciarios depotatos diet. 8. D. N.Rqgit.* 

Intran* [as before.] 

Error cHinewit to ye sncii Febrnar. 

Dilaittit of ye temararious and wilfull cirbr 
committit be thame in clangeing of James 
Gordoun sone to George Gordoim of Logyal- 
toun of ye cry me cHenit in hisdittay. ^ 

Penewar.^Sir Thomas iloip of CrughaU 
kny't baronet his ma'teis aduocat. 

Prelo^rg in defence, — Mr. James Baird Mr. 
Thomas Nicolsone younger. 

The paunell takis iustrumentis of yair entria 
and protestis i'ur yair cautioneris releiff. 

The Justice continewis interloquitor zit as of 
befoir to the xxii day of Februar nix to con 
Anil ordanis the pnnnollis former cautioneris 
fund be thame sf befoir ?iz. vpone ye 19 day 
of December last ^OSo to stand obleist for 
ye re- entrie ye said xxii day of Feb'r niz 
to cum \'nder ye panes spe'it in ye said act 
And declaires that ye compeirance of John 
Ogilrie of Glassach and James Seatoun m' 
name of ye rest of ye patmeli that day sail to 
admittitj&c. ' 



Curia Jvtenanum H. D. N. Regit tetita In 
pretomde Eilinb'r acxii Fi-liruafii i»37 Pef 
Ma^'rum Aicxiiiidrutt] Cotuile de Blflur 
Juiiicmriutti dcpulaluiiii 

CoDlrair the Assyso^n of Error contioe^it to 
the xjtii Junii Dixi> 

Aaeot Ve criminall dyct and (tronuncemg' of 
interloqurior y^intiU vpoue the aUcadga^cfs 
and uii(i*ri6 midd in ye actioun and caus per- 
se wit be his maiesteis aduoctit for his bet ties 
intr^s aganis AleJKiind^r Irwing^ of Lenturk 
Alexander Abercruinbie of Birkinboig^ Wil- 
liam 8caloua of Sc I leatbyn iind Mr iMathow 
Lnmmisdea burifpa of AI»crdeeii Alexander 
Baiicrinan of Elsik Hector Abercrombie of 
FetteT*neir Alexander Kcy^l of DufTus Ueor^i! 
Gordoim of Tilliechoivdie Chairles Htevin 
George Gorduan of Nevrtonn George Brtico 
tiiidler burgca of Aberdeen and James hSea- 
lone burccK y^ Ver ye ailed yfit error com- 
luiitii Ijc tbaiue in acquittini^ and clang^eing of 
Jtine* GordouD sone to Geoi^e Gordouo of 
(ilKyaUolm of 3 e cr^ mc cUeait in his dittay 
they being suarne and adtnitlit vpone bis 
MByte a» ye suinmond and dittay of yr* wil- 
fulf error y^ aueni in tbu sehf proportis 
Quhilk intenuquitor and pronunceing^ y 'of was 
vpoue llie XV day of July last 1636 coniinewit 
|h to thir day And eautioun funds be 

y> i ' n*fmes ddenderis for ye entrie antl 

com|»eiraiiee iU'iH day and place to ye effect 
and vnder ye |>anes spei*t in ye act maid yr* 
TDoun cofiijieirit jiidiciallic sir Thumas Hope 
hiacnaiesteisaduocat for his hienes intres as 
pertewar on the ane pU and on ye vther p't 
thejsaidis per«oDea defenderia being oRytoes 
calht to haif compeirit perHonallie and enlerit 
Ibametdffis vpooe pannel at tbay that fatjd 
cantioun for ^t re -entrie and coropeirct this day 
and niiice to ye tWect aboue uritteo, cornpeint 
]^r.l^)bert !*«'•,,. ivryter in name of ye haill 
defenderia ;Lt u And nruducet ane act 

ofyebrdis v, _l coimsall daiitit at £din- 
byrgh the liaxt day of December last by past 
ordanio^ and commanding his maiesteis jus- 
tice cl«frK and y^r depuUiti to coulinew ye aaid 
dvet to ye tuentie tua day of Junii nijc to cnm 
of ye q'lk act of couuaell the tenuor folio wis : 

** At Edinburgh the saxt day of Doeerober 
sceir of God 1 ra. vie, threttie tax yeirea 
anent theiiiippUcatiouu presentit to ye lordi» of 
1*^ LSidi be Alexander Irwingof Len- 

in ^selffand in name of ye remanent 

^* ijiMiirpi wbowarsiimmond rponethe aasy^e 
tit' ei'tor cttncerning- JanitH Gordonn foakand 

€ntioun That qnhaii- it it nocht vnknawin 
the Miidis lordis <|ubat great and heavie 
ble ft?»it expend* the anpphcantcs hes sua- 
tcnit besydc ihe nt'glect ol yair adocs at home 
by ^-air lang attenttance vpone that pmces 
And llow ut \Afii efter mony cxintinuHtionen it 
WM COnlmeHit to ye liiriHic tua dny tif Fe. 
Imiir now approachjng c^Mk ia > me 

And to ▼nMsaaannable for tmvelt ye 

IKkrtho hdr that it will hr^ ms<m ,^ fg^ |{te 
•npplteantit to keip that dyi l i : ^' ct of ti)e 



VOU^a 



of the zeir q'tk it ever mott Tttteaaoo- 
ablo at thai tyme And the far distance of tb 
place being abooe four tcoir my lea thmn tb 
bur^h the way being 6o delp and fonle wid 
tuo itrrreyia and ane number of watt«m and 
tnontanen tnteriected As all travelling at that 
tyrne will be at that tyme almoat impotBtbl^ 
and the ait seid begynnc& at that name tyni« 
an<l seasrme the ne^lectrng qr*of wilt Tndoelhe 
maist puirt of yr supplicant is and aetng tbay 
hu»i nevir^'bwQued yr* tryctl but erir oStred 
yaniesettiif y'viiut iM ane legal! tbrme and 
incLncr allowable l>e the law is of this kiBgdOHM 
bumldie dc?syreiug y^foir ye saidis limlb •• 
giue oonmiaud lor present procca or vthcrwayf 
10 prorogat tlie said dyet till the tuettiie tu 
day of Jnnii nixt lyke as at n^air tenth hn 
tenit in the said sitpplicatioun Quhilk 
re<l hard and cotiaidilerit \h* the satdis lOfd^ 
and thay weiH ad^ysed ySvith the kutKii wf 
aecreii coiinsall ordanis ami * ' V's 

ma'teiii justice justice clerk i t 

to cmtinew thccrimlnall dyet aoum: ^^ <.iu;ii rdi 
tht^ tuentie tua day of Junii nixt ami to di»« 
pence wiiii the satdia RopplicanttM ihair 
peirance rponc the said xxii day of Febnu 
fhay finding new cautioun coniorme to ofd< 
quhuir unent thtr preseutessall betothamaane 
warrand And the saidis lurdia dedairet thai 
sail nu prorogatioun be ufUrwardH gran tit m 
this matter ordaning in ye meane time hit 
nta'ties justice and his deputti^i with the lord 
heigh thejMiurer of this kingdome and rema- 
nent attesio*ra to his maiesteis justice to 
[>ei*Tse aiMl eonsidder ye pmcet And to get e 
furth yair interloquitor ibairaoeot— >Exlra<?tiiin 
de libris actorum secreti consilii 8. D. N . Itcgia 
per me Jacobum Pryttirois il^ w'^mj 

sub meis sigooet subscnpliooe k». 

"* Sic SubicnhUmrf J AcoBi>» i m ..i kuis J 

Accoirding to the quhilk act and ordlnanrr^ 
of a«cret oounsalt the said Mr. Ilobert Patrie in 
name of ye person es defenderis ulvoue writtin 
ik^yret that the dyet aboue tnentiontd ap* 
poyntit to this day mychi be eotittntwii beve 
justice to ye aaid icacii day of Junii nixt lie 
justice tor obodteoce of ye taid act of coaotall 
and ordinance spc^rt y'intill continewia tbia 
dyet witli all pronune4.'nigof ioicrloqmtorin the 
premi&Mia to ye aaid tuentie tua d.i i 

lilx tu c u m and ordan it ttautiou n to U. i 
dcfenderis aboue fi[}e*it that yai and ilk ^lul ut 
thame tall compejr befoir hi^ marcAlief ju». 
tice and Wis deputti's in ye tolbuith of EdiQ 
burgh the sajd xvii of Junii nixtmnim ut y 
houre of cans to heir interlmpniour pt ontmcc 
iu the nreiuiasis and to vnderly the law ^or the 
eiroralmMe writtin taduriha patust^pecitiet in 
yc former actii owid Itt tkliB ff90m Cm- 
{M ii il \ utri'tler ya p«rfiouL« r#*j»utictiua fotlowtllC 

MlMr.ltV ,df ^ 

' ttoun tor \i uwia 

of Leniurk aod Mr« Muihut* l^imtuHdatt ] 
entrie and com|>riraiH^' ye aaidtaday i 
to ye effect and vnder the pane aboue 4 
CVm|»eintaliO Mr. James CJieyne i 





1531 



33 CM AllLES II. ProcealitigM agaiiut.AlfX, Blair and others. ^ISG 



caxxdoMT for Wm. Leatoun of Scheatbyn and 
George Gordoun of Tilliecliowdie and obleist 
him to enter air'er of thame ye saidis day and 
place to ye effect and vnder ye pane foirsaid 
And siclyk compeirit Mr. John Abercrombie 
wryter and become souertie for ye entrie of 
Alexander Abcrcromlue of Birkinboig And 
llectur Abercrombie of Fetlemeir compeirit ii 
iyk manor James Keytb writer and become 
cuiitiauer i'or tJie entrie of Alexander Keith of 

Ditfius And siclyk compeirit Alexander 

aaidicr bi]r;>:;>s of Abenlcne quha l>e h[» band 

1»roi!uctt \-o Mr. John l*ai 
lis proV daitit ye xi 

souertie for ye eutrie of George Bruce saidler 
And Mr. ilobert Vdnic of I^nkming;toun com- 
peirand be his obligationn [iroducet be himself 
daitit the tuentie day of Fehruar instant, be- 
«ome caution for ye entrie of tlic said Chairles 
8tevin Litster the snidis day and place in the 
boure oi' caus io yc effect for ye causis and 
Tnder ye pauis aboue expncuiit. 



wrangus acquitting^ and clanpfeing of James 
Gordoim sone to George Gordoun of Logyal • 
toun of yc wilful! recepting of ye rebellis callit 
the licht horsemen and intercom moning with 
thame contrair ye actis of parliament. 

Fcrsewar-^lr Thomas Iloip of CraighaU 
knyt baronet his maicsdes aduocat. 

The persones on pannell askit instrumentis of 

ye entrie and conmeirauce and protestLs for 

ye cautioneris relcif. 

The Justice be warrand of ye lordis of secreit 

o - _ , ^ counsall conforme to y' lordshipis act and or- 

..IWzouuger aduocat ,,i„^„^^ insert yairin of yc da\t xxvil day of 

of *ebr mstaut become j^„jj j„^^^„^ j^^^^j, ^^ j^^,^^ ^^^ j^^j,,^, 

minall proccs led and deducet in yis matter 
anent ye error simplicitcr Quhairvpone the 
pannell askit instrumentis off ye ql'k act of 
connsall the tennour foHowis : 

Apud Edinburffb vigesimoseptimojanii Im. 
vie. xxxrii — ^The lordis of sccreitt counsall hare- 
ing hanl his niaiestcis justice justice cleric and 
justice dcputis, and the assessors appointed to 
them be the saidis lordis for advysein^ the procei 
led and deducet at the instance of hn maiestics 
aduocat ajranis Alexander Irwing of Lcnturic 
and vtheris gentilmen ivho war criminallie 
convened for anc assyse of error And liarcing 
considcrrit the opinioun and judgement of the 
said justice and assysors foirsaidis tuiclieing Ibe 
relevancie of the lybell, and of the pxccptiones 
and answeiris maiii y 'rto in behalf of the pan- 
nell And being weill advyset yairwith the 
saidis lordis being lothe to (f^ve forther in this 
bussines ordains his maiesties justice justice 
clerk and justice deputtis to desert the dyct 
appointeil to ye said laird of Lcnturk and vtheris 
mentionct in the crimiuull Prez and nocbt to 
proccid ouy farder thairin Dischairgeinc'lieirby 
the justicre clerk and his deputtis of all directing 
of only Trez at yc instance of his maiesteis ad- 
uocat againcs the saidis personis vpoun this 

ground and caus iu tyme they re* 

ceave ordour thairauent be a publit.! delyvcr- 

ancc from the tabill rpihairanent and 

the haill prcmissis, the extract of this 

l)c to the said justice justice clerk and thair 
deputtis a suOicicnt warrand — Ex'tractain ds 
libris actoruui secreti consilii S. D. N. Regis 
per me Magistrum Gilbertum Prymrajs de« 
riciim oinsdom sub mcis signo ct siibifcriptione 
niaunalibiis. 

Sic Su bscribit iir^ M G . I*R Y m rose. 



Ci'RiA JusTiciARLE S. D. N. Rcgis tcuta in 
Prctorio Bur^i de Edinburgh, vige&imo 
sccundo J unit 163 r. Per 3Iag'rum Alex- 
anulrum Coluille ct Mag^rum Jacobum 
Kobcrtouu Justiciaries deputatos. 

Intran^ 

Continewit to yc 28th of Jnnii instant. 

Alexander Irzoing^ of licntiirk. 

3\Fr. Mat how Lumisdail/^ hurgesof Aberdcne. 

William Scaloun, of Schithiiic. 

Alexander Abercrombie, of Birkinboig, 

Hector Abercrombie^ of Fcttonieir. 

Alexander Keiths of DufTus. 

James Seatouu, burgcs of Aberdcne. 

Dilaittit of the error comittit he yame in 
fl^ngeing of Jamrs Cvordoun sone to George 
Ciordoun of LogyuUcun for yc rcceptiug of yc 
rrbcUis callit the light horsmcn specifeit in liis 
ditliiy. 

Vcrseicnr. — Sir Thomas IToip of CraighaU 
knyglit baronet his l\lu*tcis aduocat. 

l^rdocutor in defence — 3Ir. Thomas Nicol- 
sone yoiiMi^or. 

TliVjn St ires with advice of his ma^teis ad- 
nnt^t cuiitinrwit the interloquitor vpoun the 
alloflf^anccs and answens maid in this proces to 
^Vc-dncs'.l.iy next the tuentie aucht instantis 
the personis vponu pannell ilkane cautioner for 
vytli( ryuir rcontrie that day vndcr ye paiucs 
spccifeit in yc former act. 

Intran^ eodcm 23 Jnnii 1637. 
Assyse of J'>ror Dessertit be warrand of ye 
Icrds of secreit counsall. 
Alexander Irrring^ of liCnturk. 
Mr. Mathow Lumisden, burgcs of Aberdene. 
Jamei Seatoun, burgcs yair. 
Alexander Abercrombie^ of Birkinlioig. 
Hector Abercrombie, of Fetterneir. 
William Seatoun, of Scheatbyn. 

Dilaittit of ye error comittit be thame in ye 



[AUhougb this CASK of .VSSYSE of ERROR 
is not, under the apparent abolition of that 
process, likely to fornk a prcci?dent for future 
prooi'LMlings, it seemed to me to be on several 
accounts a \ery curious document of Snots 
legal antiquities. I ha\c endcavouixN] ex- 
actly to exhibit the strange orthography (if 
I may so say) of the Record, not only as to 
the vernacular language, but also in the au« 
thorities mentioned and passages cited of fo- 
reign authors. As to the incorrectness of 
the antient Scots Records of Justiciary, see 
a Note in vol. 10, p. 881, of this Collection.] 



157] Proceedings agaimi the Earl of Lauderdale, 4 c. A. D, 1682, 3. [I5S 



329. Proceedings against Charles Earl of Lauderdale,* Richaku 
Lord-MAiTLAND his Son, and others, for Official Malver- 
sations respecting the Royal Mint of Scotland : 34 and 35 
Charles IL a. d. 1682—1683. [Now first printed from tlie 
Privy Council Books at Edinburgh.] 



XHE fullowing Narrative and Reflect'ons con- 
cerning this Case, which occui* in 1 Fonntain* 
hair« Decisions, throw much Ught upon it : 

November 3, 1681. 

*< A commission came down from his Majesty 
to examine the accompts of the treamry, how 
the King's puhlic money hath hcen spent, and 

employed these several years byiyone. This 

was principally levelled against Ualton Treasu- 
rer- Depute, because the most of these who 
were named auditors of their compts, were none 
of his friends. 

* lie was brother to the duke of Lauderdale. 
Sec his Case, vol. 6, p. 1025. Lord Halton 
appears to have activelj^ co-operated in the 
mal- administration of affairs in Scotland under 
his brother the duke, as is set forth in the fol-, 
lowing two articles published in the Coltectioiv 
of 8tate Tracts from the year 1660 to the year 
1665, published iu 169'i : 

•• Some particular Mutters of Fact relating to 
the. Administration of Affairs in Scotland 
nnder the Duke of haudtrdate. Humbly 
offered to your Majesty's Consideration, in 
Obedience to your Royal Commands, 

" 1. The duke of Lauderdale did grossly 
misrefirescnt to your mayesty the condition of 
die western countries, as if they had been in a 
gtate of rebellion, thongh there had ne^er been 
«ny opposition made to your majesty's autho- 
rity, nor any resistance offered to vour forces, 
nor to the execution of the laws. iBut he pur- 
posing^to abuse ^our majesty, that so he rois^ht 
carry on his sinistrous designs by yoirr author 
rity, advised your majesty to raise an army 
ai^inst your {leaceable subjects ; at least did 
fnunc a letter, which he sent to your majesty 
V) he Ki(;nc-d by your royal hand to that effect ; 
whirl) bi-ing sent down to your ci»uncit, orders 
was thereupon given out for raising an army 
of ei;^hf or nine thousand men, the greatest 
port whcnM>f wcrp Iligiilnnders; and notwith- 
atanding that, to avert threatening, the nobility 
and tjrcntry of that country did send to Edin- 
burf^^li, and for the security of the pence did 
offer to cn^iisre, that whatsoever should be sent 
to ]iot the laws in execution, should meet with 
BO affront ; and that Uiey would become hos- 
tages for their safety : yet this anny was 
narched and led into a peaceable country, and 
did take free quarters according to their oom' 
t 



May 8, 1682. 

" A commission having come down for try- 
ing the State of the Coinage and Mint, to duke 
Hamilton, Perth, Tweddale, Athol, Soutliesk^ 
the Chancelk>r, Register, general major Drum- 
moad, Gordonston, Balie JSaird, $cc, allenemiea 
to Halton, general, and to sir John Falconer, 
master of the Mint; they proceeded, while 
Halton was yet at London, to take cognitioit 
by the declarations upon oath of all the mem- 
bers and officers in the Mint ; and it is nid sir 
John Falc^er in hopes to liberate himself, at 
least on promises that it should extenuate bia 



missions, and in most places levied great sums 
of money, under notion of dry quarters^ anc} 
did plunder and rob your subiects ; of which 
no redress could be obtainetl, though com- 
plaints were frequently made : all which wert 
expressly contrary to the laws of the kingdom* 

*' 2. In their quarters it was apparent that 
regard was onlv had to the duke's priTate ani- 
mosities ; for toe greatest part of tnoae |ilacefi 
that were most quartered on and destroyed, 
had not been guilty of the field com^enticlea 
complained of, and many of the pWoet that 
were most guilty were spared upon privata 
considerations, 

*' 3. The subjects at that time were required 
to subscribe an exorbitant and illegal pond» 
which was impossible to be performe<l by 
them ; that they, their wives and children and 
servants should live orderly according to law, 
not go to conventicles, or entertain vagrant 
preachers, with several other particulars ; by 
which bond, those that signea it weremaifa 
lyable for every jnan's fault that lived upon 
their ground. 

*< 4. Your ipajesty's subjects were charged 
with laborrows,denounood ridels ; and captions 
were issued out for seizing tneir persooi upon 
their refusing to sign the aforesaid bond ; and 
the nobility and gentry there who have evt^ 
been faithful to your majesty, and had appear- » 
ed iu arms for suppressing 'the last rel)ellion, ^' 
were disarmed upon oath. A Proclamation 
was also issued, f'orl»idding them u|>on great 
penalty to keep any horses above four pounds 
ten groats pric<». 

** 5. The nobility and gentry of the ahine 
of Ayre were also indicted at the imtanoe of 
your majesty's ailvocate of very bi)|rlici' 
and misdemeanors : whereof some did ^ 
tre:ison. These indictments wen 
them in the afcniog, to be woawmadhj tlN 



1591 



94 CHARLES II. Proceedingi against the Earl of LauderdaTe [ 160 



•WD ff\n\tf did ifo great lengfths to load HaltOD 
With misdemeanourii and lualventations, by in- 
Tcnin^ihe king's part of the emolumenta of 
tlif> S(r<)ts Mint to his o«vn private gain. 2.^ In 



the next morning unon oath : and when they 
did demand two or three days time to consider 
ni dieir indictments, and crave t)ie benefit of 
lawyers U| advisi* with in matters of so high 
coucemment ; and also excepted to their being 
put to sviear against themselves in matters that 
were capital, which was contrary to all law and 
justice; those their desires were rejected, 
though the like had never beeor done to the 
greatest malefactor in the kingdom. And it 
was told them, they must either swear instant- 
ly, or they would repute them guilty and pro- 
ceed accordingly. 

*' 6, The nobksmen and gentlemen knowing 
themselves innocent of all that had been sur- 
mised against them, did pm^e themselves by 
oath of all the particulars that were objected to 
th«n, and were thereupon acquitted. And 
though the committee of the council used the 
severest manner of enquiry to discover any 
seditious or treasonable designs, which were 
pretended as the g[rounds of leading in that army 
into those countries; yet nothing could ever 
be proved : so false was that suggestion con- 
eeming a rebellion then designed that was of- 
fered to your majesty, and prevailed viith you 
for sending the aforementioned letter. 

** 7. The onpressions and quarterings still 
continued. The noblemen and gentlemen of 
those countries went to Edinburgh to present 
to your council the heavy pressure that they 
and their people lay under, and were ready to 
ofier to them all that in law or r'^ason could be 
required of them for securing the peace. The 
council did immediately upon their appearing 
there, set forth a proclamation requiring them 
to depart the town within three days u^mn all 
highest pains : and when the duke of Hnuiilton 
did petition for leave to stay two or three days 
lunger for some very urgent affairs, that was 
refused him. 

*< 8. When some persons of quality hnd de- 
dared to the duke of Lauderdale that they 
would go to represent their condition to your 
majesty, if they could not have justice from 
your ministers ; for preventing that, a proda- 
roation was set forth, forbidding uli the subjects 
tu depart the kingdom without license ; that so 
your majesty might not be acquainted with the 
liaid condition of your subjects from making their 
appUcation to your majesty, no less contrary 
to your majesty's true interest (who must at. ^ 
ways be the refuge of his people) than to the 
natiirul right uf the subject. 

*' The turmer particulars relate to the inva- 
sion of ihc rights of great numbers of your 
subjects all at once. What i^iiow, have in - 
deed only fallen on some single persons; yet 
are siwh, that vonr whole |>eople apprehend 
they may be all upon the slightest occasions 
brought under the like mischiefs. 

<* t. The council htth upon maDy occa* 



making the fineness below the standard. 9. 
In coining 17,000 stones of cornier moneys 
beyond the quantity contained in ins Majesty's 
two warrants for the copper journeys: 'all 



sions proceeded to a new kind of punishment, 
of declaring men uncaimble «f all puUic trust ; 
concerning which your majesty may remember 
what complaints the said doke made, when 
during the earl of Middleton's administration, 
he himself was put under, and incapacitated 
by an act of parliament. The words of his 
paper 8g[ain8t the earl of Middleton are [an- 
capacitating] was to whip with scorpions, a 
punishment to rob men of their honour, and to 
lay a lastmg stain upon them and their poste- 
rity. And if this was cononlained of, when 
done by the highest court of parliament, your 
mi^ty may easily conclude, it cannot be dona 
in any lower court But yet notwithstanding 
it is become of late years an ordinary sentence 
in council, when the least complaints are 
brought :^in8t any, with whom the duke of 
Lauderdale and his brother are offended. 

** Instances of this are : 

** Tlie declaring thirteen worthy citizens of 
Edinburgh uncaj^le of public trust, against 
whom no complaint was ever made to this day, 
as your majesty will jierceive by a paper mora 
fully concerning that affair. The true causa 
of it was, that those men being in the magis- 
tracy, that duke and bis brother could not get 
a vast bribe from them out of the towns -n 



which was ailerwards obtained when they weia 
removed. 

*' The provost of Glasgow, Aberdeen ani 
Jadburg[h were put imder the same sentenoei 
for signing a letter to your majesty in the oon- 
rention of the boroughs with the rest of that 
body, which letter was advised by him who la 
now your majesty's advocate, as that wliieh 
had nothing in it which could bring them nil- 
der an V guilt ; and yet those three were singled 
out ol' tlie whole number, and incapacitated^ 
besides an high fine and long impruonment, 
as to your majesty will more fully appear by 
another paper. 

" Sir Patrick Holme, of Polwortli. btioff 
sent by the shire of Berwick to complain M 
some illegal proceedings, and t'^ («btain a leffil 
remedy to them, which he did only in Vbm 
common form of law, was also declared un- 
capabie of public tru9t, besides many mcHitha 
imprisonment. 

*' The provost ofliLuIythgo being complunad 
of for not furnishing bome of your forces witk 
baggage horses, was called beVore the council^ 
and because he said they were not bound m 
law tu furnish horses in such manner, he. was 
inimeiliately declai-ed incapable of public troati 
and was both fined and imprisoned. i . 

«' There are also tifty of the town of'dBfc 
Johnstons incapacitated u|>on a very slig^ 
pretence, so that its very iutpossible for them 
to find a sutiicient numncr of citizens fiur t||% 
magistracy of that tovn« 




and atkers.for OJfn^I 3Tafvcr8ntionB, 



A.0. I 



t!61 



wtiidj iitruckas machjfnotmore, njainsthiro- 
*e]i'n» nm^tcTf than against Halloa ; yet lie pre- 
iiuiiu^i biHopeontssaiid iiigffuwty woulih>rOfure 
him favour. Wbeu Ilatton came from Londop 



" 5. Your subjects are 8oin dimes upon 
fttight, and lonietimes upon na groutuN itti- 
jiriioncd, and olkn kcjit prisoners many niontlis 
and jear«, notliing being objccte<! to them, and 
r lire I'eijiiirt'd lo enter themselves prUoiicTS ; 
which is contrary to law. It wiis "m die former 
article cx|iies*td, that many of tliesc inrsons 
declttrod incajiable of public trnst, did ^Uo 
DulftT iiiipri»otiiiient I and besides these in- 
stances, lituicnt^nt general Drunniiond (whose 
eminent loyaUy aiul t^rcM sevtices an; well 
known to your majtsty) wasrequind to enter 
liini»elf prisoner in tfie cjstle of Dunbarton, 
where lie was kept one year and a bnlf ; and 
vr^A made a close prisoner for iime utontbs of 
that time, anil yet notluniif vias evi>r objected 
to him to thii» day to justify that u?^»iye. 

** The lord Cardro^s was for his ladies^ keep* 
ihfif two conventicles in her own bouse (at 
Mnich lie was not present) fiocd 110/. and 
hath now b4>cn kept prisoner four ycum iti 
Ibe castle of Kdinbur^, wbcix? he still remains ; 
ahlioui^U he hath often pftitioned fur bin li< 
berty ; and hW Patrick Holme hath been now 
a xeofiud tmie ahuo«t one year, and nothinf^ is 
yet laid to hi6 charge. 

*^ licside:; ttie^e illegal impri.*!oni»eiit^} the 
oncers of your fiiaje?jtie« forces frequently 
'carry warrants with them for apprehending; 
persons that are under no legal censm^t i**'*' 
' luira been so much im cited lo appear ; wbich 
I hmth put maoy of your subjects an<ier ((reat 
' fan), tspecuUty upon what was done in council 
tbfve years agr* : ca|jtain Carstair« (a man now 
wdleDougli Known to yaui- majf&iv) clid in- 
IrapocM Ktrktoim, an onted mioitierf into his 
chamber mt Edmburgb, and did viulentty abuse 
I him ; and desi^cS to liavi; extortetl some 
I jnaiiey iiroin btm : the noise of tliis eo(uin§: to 
tbeeanofone Bailey, bi-oiber-in-bw to the 
■aid Kirkton, be came to llie house and bearing" 
I bim cry Murder, murder, force* I open the 
chamber door, where he found his brother-in- 
law a4id the captain ^plintf ; the captain pre« 
tended to have a warrant o-^ainsl Kirkton 
and Uaity desired him tofibew it, and promised, 
that all oixHiicnce should be ffiven to it i But 
Ibe captain refusing to do it, Kiiklon was res- 
cue<l, Tbi»i wa« only i!e1iv**niig^ a man from 
Ibehandiiof a roy. ' * naluro *»tihi,'eth 

all men to do ; esp* ' u joyncd with bo \ 

Tic^a relation. Tiie i,ii>iim compltiined of 
tbii to the council, and tli*. lord Halt on with 

others were apiKiiuttd t ■ -' n^^ tbe wit- 

I neaacs: and when it w; licfore the 

t-onr,<-il the duke of Ila;u..> ..., . . ; is of J^rcre- 
fri^ce and Kinkarden, ihv. lord Coche- 
; sir An I»i!^^ld I'riLiiroM', then 

kli0r<! hat the rcjiort of the 

lemu d ; but fbrit tiot >rr- 

UlO^^ r : ■, ■■.,,■.,■.,, .^, v,-/e 

VOJL XL 



in the beq^inatDf^ of July ^ they proceeded very 
summarily with biui^ and ur;^cd him to depon«i 
as the rest had done ; he refused, seiing na | 
man is bound jurati in projtriam iurpitudinem 1 

Carstares did not shew any warrant, nor wa 
cloatbed with auv public chnmcter, it was no j 

"- waa ^ 

I«'" lui>i iiiiwi iiJ yj^\jy."'j iiiai iv^ •4Um *\'-i'k. 'OOtf % 

piisouer. 

" Those lonls were upon that so tiBpre^cnted I 
to ynur majesty, that by the duke of Luudcr- 1 
dale's? procurement, they were turned out of 1 
the council, and all couimnnd of t!ie militia.? 
And it can be made appear, that the captaia 
had at tlmt ttnic no warrant at all against 
Kirktou, but procured it aiU?r the nolence cjm- 
mittL*d : and it was ante-dated on design to j 
serve a turn at that time. This manner oif | 
prt<cc€*liugs hath ever since put your subjects 
under H;id apprehensions. 

** There is one particular further offered (» \ 
your majesties consideration, concerning their 
way of usinjj pmoners. 

*"* Tb ere were 14 men taken at a field coa- 
veatich', who without being" legtilly convict of] 
that or any other crimes, were secretly and 
in the niixht taken out of prison upon a ^vanaiil 
siy:ned by the enrlc of Lynlyth)tyo, and the lord 
Uattftn and Collioglon, and Were dehvered to 
cnfitain Maytland, who had been pa^ to th« i 
duke of Laudenlitle, but was then a Frencb 
officer, and was making his levies in Scotland, 
and were carryed over to the service of tbtp ( 
French king in the year 1616. 

«* S. The council hath upon many ocea^ 
sion^f proceeded to most unreasonable and ar- 
bitrar}' lines, either for sbght otlences, or for 
offences where the fine is regulated by Jaw, .1 
whu h they have never ixmsidered, when tho 

{jersons were not acceptable to them : so tho 
oi d Cardross was fined in 1, 11 U, for his ladies 
keeping' two cotiTen tides in his hou^ and 
cbristmng a child liy ao outed minister without 
his knowledge, liie provost formerly men- 
tionedy and Baily with many more Were al^o 
fined without any regard to law, 

^* The conned Lath at several times proceed- 
ed to the taking of gentlemenii* dwelling-bouset 
from them, and putting garrisons in them* 
which in time of jjeace is contrary to law. lo* ' 
the year 75) It was designed against twelve 
of your m^^esties subjects, and was put In cxe- 
ct it ion in the houses of the earl of Calendar, 
the lord Cardrosse, the lady Lumsden, Slq. and 
was again attempted In the year 78, tlte 
houses l)elonging to the leirds of Cosnock, 
Bhigati, and fcowal, and were posse^ned by 
souidier^, and declared garri^ouH, TNor did it 
rest there, but ortlern were i»ent fmm the coun- 
cil, requiring tl»e countries alx^ut tbo^ohouscn, 
to funuih them for the sunMii i^^ u>r. ynd to 
vutipty them with ni < try 

lolaw. It was again uck 

Holme came to desin? a rttutxly ; ami v Jin- 
mon juitioe being denied hiiUf he tisei a k^^if 



34 CHARLES IL Proceedings agaiiut the Earl of Lauderdale • [164 

the rest, that he might knotr what tliey bsd 
(Ie|ioneil ai^ainst hiin ; but craved that he might 
prive liis juramenium purgationis that he waa 
free uf these luisappl ications which the fmup^CM 



163} 

w1:orc the case may he criminal, Dor to accuse 
hiinsi-H*; hut he guvcinareprescntatiunof the 
biate of the Sliiit ; they refused liim a heai'ing', 
or a si^ht of the process, or the testimonies of 

pruteslatinu in the ordinary ferni of law, and 
. \t as thereupon kept for manv mouths a pri- 
soncr, and declared incapable of all publick 
trust, '^c. 

**■ There is anotlier particular, which because 
it is so odious, is unwillingly touched : yet it 
ifi necessary to inform your majesty about it ; 
for thereby it will appear, that the duke of 
Lauderdale and his brollier have in a most so- 
Icnm manner broken the publick faith that was 
given in your majesties name. 

'' One Mitchel being put in prison upon 
great suspicion of his havine attempted to n^ur- 
dor the late arch -bishop of St Andrews, and 
there being no evidence against him, warrant 
was givrn by tlie duke of Lauderdale (then 
3'our majesties commissioner) and your coun- 
, cil to promise him his life if he would confess ; 
whereupon he did confess, and yet some years 
after, that person, who indeed deserved many 
deaths, if there had hcen any other evidence 
af^aiust him, was, upon that confession, con- 
v.'cted of the crime, and the duke of l<auder- 
dale and his brother being put to it by him, 
did swear, that they never gave or knew of 
any assurance of life given him : and when it 
was objected, that the promise was upon record 
in the council book's, the duke of Lauderdale 
did in open court, where he was present only 
as a witness, and so ought to have l)ecn silent, 
threaten them, if they should proceed to the 
examination of that act of council, which, as 
he then said, mifjht infer perjury on them that 
swore : and so did cut off the proof of that de- 
fence, wliich had been admitted by the court 
as <,^ood in law, and sufficient to save the pri- 
soner, ifprovcd. Thus was that man hanged 
upon that coiiifsbion only, though the promise 
that drow it iVcni him, (loth appear upon re- 
cord, and c^n be pro\('d by good and clear 
evidcrn-c. Antl from tliis your majesty may 
jad;^* , ^^liat cTtdit may be j»iveu to such men. 

*' >V»' do not at p.-tsmt enlarge on other 
j»arl!c-'ilars tliough of great importance; such 
Its inoL('.p<>lios, s( llingplac rs uf honors, lumi/ig 
men of known int«>gnly out of tlieir imploy- 
int^nts, to which they nad a good and just 
right during their lives : the profits of one of 
the most considerable of these, being se(]uestered 
for i:ome lime, and apply ed for the dutchess of 
I^uderdale's use : the treating about, and re- 
ceivin«,»"of jrroat bribes by the duke and dutchess 
of Lauderdale, and the lord Hatton, and par- 
ficularl}' from the touns of £dinboroug[h, Ab- 
berdeeu, Lynlithgo, and many others, tor pro- 
curing: from your majesty warrants for illegal 
im))Ositinns witliin these towns : the manifest 
and |)ublick [KTverting of justice in the session : 
besides the most signal abuses of the mint 
and copper coin, that are most grievous to all 
jour subjects. But the uumber of these is so 
fi^ *4 the J will require so many wit- 



nesses, to be brought hither for proving them, 
that we fear it would too much trouble your 
majesty now to examine them all : but your 
majesty shall have a fidl account of them af- 
terwards. 

" One thing is humbly offered to your Bla- 
jesty, as the root of these and many other oppres- 
sions, which is, that the method of governing 
that kingdom for several years hath been. That 
the lord Hatton and his adherents irame any 
letter that they desire from vour Majesty to 
your council, and send it to the duke of Lau- 
derdale, who returns it signed ; and this is 
brought to the council : upon which if at any 
time a debate ariseth concerning the matter 
of that letter, as being agdinst or with law ; 
and when it is proposed, that a representation 
of that should be made to your Majesty ; then 
the lord Hatton in his insolent way, <^ls to 
have it put to the question, as if *it were a 
crime to have any warrant either debated or 
represented to your Majesty, which is procured 
by the duke of Lauderdale or himself; and 
this is 



echoed by his party, and by this i 
any further debating is stopped. 

*' There are some other particulars relating 
to these heads, that are to ne offered to yonr 
l^lajesty in other papers, w liich are not added 
here, lest 3'our Majesty iihouid now be troubled 
with too long a paper.'' 

" The Impeachment of The Bake and Dutekeu 
of Lauderdale, with their brother my Ltrd 
ilatton, presented to hit Majtsty by ike 
City of Edinburgh. The matters affmci 
particularly relating to the town qfJSdim' 
burghf humbly offered for your Majestm 
information. Before thematteroffaethe 
spoken to, it is necessary that your MttftUw 
be informed of one thing upon which tkm 
whole affair Itath moved. 

*» The citv of Edinburgh had at several times 
given con^idei-able sums of money to the duke- 
of Lauderdale, amounting to upward of twelft 
tliousand pounds sterling, and tne lord HattOQ, 
brother to the said duke, being inraged by tint 
their former practice, and hein^ arrived to 
great height and influence in the administralMia 
uf your Majesties affairs in Scotland, did thera- 
upon resolve on a design of getting nHoiiej 
for himself also from them, as will appear to 
your Majesty by the following narration ; bat 
the magistrates at that time, and such others 
as had then the principal influence in the de* 
ministration of affairs m that town, being ho- 
nest men of good fortunes, and not to be 
brought to comply with his design^he be» 
thoug^ht himself of all ways to vex them ; end 
knowing they did much value the prosperity 
of the town, be thou^it that the first meeae 
for promoting that ms design, was to have 
them threatened with removing your Miyealial - 



165] 9ni alheti, for Official ^Mvfrsatlcns, 

prohatio loaded him with. His i»bjecli*ms 
a|;aiitst sir John Falcoiier-s df^poninf^ against 
hirn ar<j 1. InimtcUia 2. lie is comciui 
€rmini$que sticiu$, 3. lie depojit^!; to liberat€ 



A. D, 1682/ 



flS 



, ^uhliqttc Jttflicahira from iliat city tr>8tcrlin, 
and pers evaded hU bi-olht^r the diiUe of Loiiiler- 
dtkle to move ynm Majesty to that purpose j 
but belo^ disappoiril<^d of that firoject by your 
Majesties royal wisdom, your Slajcsiy looking" 
tipOD St as IT it were to declare to t!ie woild 
tnat yon were jealous of so great a part of ihat 
jour ancienl kingdom, he br^lhoui^lit himself 
of new ways to accomplish his dcsljijn, f\i\r 
which he judged nolhiup^ so proper and cflec- 
tital, as to distuHithem in the choice of i!ieir 

,iiiag:islrates and tovva-counsel ; and hy nil 
meaos possible to get some of bUown cbu'siiiiM;, 
lit for his own ends, brou^htiu to the admmis- 
tration of the affairs of that crty. Tti order to 
which, being^ impatient of any longer duhiy, 
he laid bold of what follows, beings the first nc- 

j cosion tjiat offered, though a veiy frivolous 

' one. 

** At Michaelmas 1074, The said city of Edin- 
burgh beinsf to go about the election of their 
magistrates for the ensuing year, there was 
procured a letter from your majesly to your 
jtrivy CMunsel commanding theni to tbibid the 
iiiajjist rales and town counsel to proceed in 
their elections, !)iit to continue the magistrates 
thai then were, till yrwir Majcsty^sfiu-ther 
plcflsure should be knovin ; tbV reason su^- 

I Ifcsted to your majpsty for it, was taken from 
this circamstancej Tfiat the elKction ou^ht to 
he made upon the Tuisdny affcr Michaelmas, 
sud (it happening this year that Michaelmas 
fbll to be on a Tuesday^ they were resolved to 
proceed to their etecti<uls w^Kyn Michaelmasj- 
day. 

** Though this was a very saiall maUer, and 
upon Tcry g'oinl and prudent ronniderations 
resolved, as will afterwnrd appear, yet was 
it represented la your majesty &£ a factious de- 
iriy^, and an innoratioo of dangerous conse- 
f|uence, tending' to create and maiotairi facliori 
in that city, contrary to your inajpsties service. 
Your majes'lies foresaid letter Ix-in;^ inti mated 

* to the magistrates and town counsel, they did 
Immediately give e%act ohefhcnce to the same. 

r •* They did also represent to your majebties 
privy council, the rights thai ihtry had lor 
c busing their own magistrales, which httd 
lieeo granted to them by many of your majcs* 
ties royal aurcstors, and confirmed by many 
jiarlinments ; by vertue of which they humbly 
conceived: they ought to he suffered to pmcceiJ 
iu iheir **le<"tjons. 

** They did also represent to your majesties 
imvy council, the reasons which had moved 
theifi to resolve of making their elections on 
the said Ttiesdny, being Michaelmas day, 
whicti in short were, that liy their constitution 
they were obhj^t!<l upon the Friday bvfoie Mi- 
chiielmns, to make if^e list out of which the Ma- 
gistnttcH arc to he chosen ; aftor tin? doing of 
whicli there is a surcease and vut::tUon of all 



and exoner himself. 4t To elicit ilii» deposi- ; i 
lion from him ae^ainst Halton, tht^re were pro- * 
mi»es of personal favours to hiinself ; which ii , 
the highest degree of bribery and corruption. 



ordinary courts of judicature within the l^mTi, 
and the whole time is spent by the commuu 
j>eople and tradesmen of ibc town, in rioiiu^ .1 
and drinking, uotil the elections lie finished^ \ { 
which in I his case would have been twelve ' 
ilays ; which they did in prudence think they , 
ought lo shorten, not conceiving it eontrarv iit ^ 
the least to the established rules of their elec-j 
tion, , 

*' On these things ihey did humbly cnivi* 
your Majesties privy council would be pleased 
io represent lo your'majesty, that thereby they 
might be freed from theauRplcion of any fac- 
tious design, with whicli they were charged 
by the said letter. 
' ** This being, through the influence of the^ 
lord Hatton, refused by the jtrivy council, they 
dispatched a gentleman lo the. dtike of Lauder- 
dale, with letters and instructions full of res- 
pect and subniission to his g^race. 

" The gentleman at bis first arrival found ^ J 
duke Lauderdale very kind, and was mad« , 
believe he should he quickly dispatched with ^ 
answers according to his desire ; hut soma ^ 
delays having fallen in, the duke of Lauder^ 
dale felt likewise upon thoughts of getting mo- 
ney tVoiD ttie tov^n upon ihls occaiiion, audi 
therefore pretending still more and more kind- 
niina to the said gentleman ) hu did first by ' 
some insiQuatiims let fall to hito his expecta- ^ 
tiou, and at last flatly asked him if he hati not' 
brought a heavy purse with him ; whicli 
when he understood he was not to expect, ho .1 
changed his method, and grew haishcr ; and ^ j 
having dctaincn! him live or six weeks*, he th^ ^ 
said duke entered into consullallon with his old 
friend sir Andrew Ramsey, how to order the^l 
affair. By his advice he did write a ktter and /j 
sent proposals to the said town, That they^f 
should give bond and security, that tba 
to\f nsmen should lire regularly us to all mal- 
ters ecclesiastical in the largest extent, as thO|l 
same is determined by the late acts of parlia- ^ 
ment ; and to keep the town free of all sorts ^ 
of tumults, either of man or woiuau : Judging . 
that this was impossible for them lo perform, J 
and uofavoui-able to attempt, and that there- 
fore it would oblige them to make offera of. 
money. 

** This letter was all the gentleman could 
obtain, and having gone back to Scotland and 
delivereil it to the magistrates, they were so 
far fi"ora lieiug carried in the design,"tbat they.] 
were glad of that ojiportunity to witness their'] 
zeal to serve your majesty ; for they did very 
heartily comply with what was proposed con- * 
ceruing the bonds and securities iteomnded;. j 
and immediately urged that your majesties' 
officers and lawyers would cause draw sucU 1 
bonds and securities as was fit for the purpose ; 
uffenng good security for great summs ofu 
ney for lie performance. But thii ll^i<. Wvcq 



16T] 



34 CHARLES IL PracudingM agaimt ike Earl of Lauderdale [ IQS 



Tbea he gave in bis defences why he was not 
liable. 1. Because be had exom*ratioris and 
discbarg^es from his Majesty. 3. Because he 
was pardoned and included in the general act 



the tbinff truly intended, their ready coni(>li- 
ance with it, set them yet farther of! from their 
desired settlement, an*! served for no other in- 
tent than to cause the lord Hatton to double 
his diligence to find out new means to mollest 
them ; to which end it was alledged by him, 
that tliey hud of old forfeited Iheir privileges 
and liberties by some great misdemeanour, aud 
that therefore they had not right to cbuse their 
own rj.kgistrates, for which he would needs 
have tliL'ir ni-ords searched ; and accenliugly 
they thL-mse!i es, with their books and reconls, 
were in a most unusual manner brought oitcn 
before him •mm\ his friends, though they had 
not authority for it, to the great di&turbance 
and aanoyuuce of the citizens, by beuig abun- 
dautly j<'J;ous of their liberties, were with uo 
smallcare kept within the due bounds of mo- 
deration, by the loyalty and vigilancy of their 
inagi>traie9. 

<* Thcv the said magistrates, finding how 
they were used at home by the lord Hatton, did 
again appiv themselves to*^the duke of [jaudcr- 
dale, both by private lettcra to the duke of Luu- 
derd.ilu aiidhLs duchess, frum some of the most 
eminent of them, full of assurances of particu- 
lar i-espcct to their graces, and by a public let- 
ter to him from the whole town council, ofFer- 
ing bond and 8ccurity to him in tlie terms pro- 
posed by his fore-mentioned letter. But this 
could not prevail, it being c4)jected to tliem, 
from some frivolous things the lord Hatton had 
scraped together out of their old records, that 
they bad lost their liberties, and that the riglu 
of ch using their magistrates did no more belong 
to them. 

** Then did they produce their charters, and 
did convincingly clear all mistakes, and evi- 
dently make appear that the right of chuulug 
their own magistrates did remain to tlicm un- 
doubtedly aud'intirely. 

*• All tliesc things being cleared and open, 
they expected to be restored to the free exer- 
cise of tlicir election in their accustomed man- 
ner, 'riiey were still kept off wiih delays, ru- 
lil the lord Ilntton, in pursuance of his tJebigo, 
fell a praeti^ing with some few of tliemseh es, 
wha did undertalLe witii his assistance* to get 
such eleote<I as were fit for his ends ; where- 
upon he writes to his brother the duke of Lau- 
derdale to move your niajesly for a letter, and 
accordingly the fetter was procured from your 
majesty u|>ou the 7lh of August l(y7o ; wherein 
your majesty, all.'T rcciling your former orders 
in that affair, did declare, that you were well 
inforuu'd t-f their obt^licneo to your commands, 
and of their dutiful carriage in 3rour concerns ; 
and therefore ordained them, the next day afcer 
the receipt of the letter, to convcuc thcir*wholc 
council, ufier their accustotiticd manuer, and 
oat of the lias already made, to elect the lord 
ilies, and oSiher officers. 



of indemnity past in 1679. — ^Tbis was i 
as a decliuing of them; and they repNellcd 
them hoc loco^ seeing they could not uindcr 
them to enquure and proceedper modum inquid- 

« According to wliich letter, thay ^d the 
next day proved to theur elections, but instead 
of those whom the lord Hatton expected they 
would have chosen, they did elect some men « 
good fortunes and integrity, not at all fit for hia 
purpose (these who had eng^aged to him not 
oeiog men of that esteem or inflheuce as to be 
able to carry his design as they had under- 
taken). 

*' The new magistrates and council, did in- 
mediately af\er their election, acquaint yoor 
majet*ty with their procedure, and gave yonc 
mayesty great acknowledgments and assuraucea 
of their care of the peace of the town, and oC 
your majesty's service in all natters, both ec* 
clesiastical and civil. 

" The said lord Hatton hein^ ezoeediiigly 
enraged at tliis act of theirs, did by advice of 
sir George Mackynge, now yoiir majesty's ad- 
vocate, send a letter to the duke of Laudmlale ; 
to which he procured your majesty's hand 
upon the 25th of the same month of Augos^ 
by which your majesty ordered your privy 
council to intimate to the magistrates and town 
council, that it was your royal jdeasure that 
there sliould be turned out of the town ooancil 
and deciared incapable of any public trust in 
the said town, twelve* of the most eminent of 
the same men with whom your, majesty had 
expressed yourself so well pleased, an/i whose 
actings your niajesty had approved, hy your 
letter of the 7th of the said mouth. 

'* This was accordingly executed by the 
privy ci uncil, without ever so much as calling 
before them the said persons, tliough great 
crimes were laid to their charge, as being fac- 
tious pei-sons, and misre])ic*sentin«j|' your oioi- 
jesty's proceedings, without mentioning any 
particular fact of theirs w hich could import any 
such crime. And though the)' be threateaed 
by the said letter to be pursued for these gnat 
crimes, and that your majesty's advocate is 
commanded in the same to nisist against thauiii 
yet could they never obtain from your maipi- < 
ty's privy council that they shoultlbc triedmr 
these things, though by a petition signed by 
tbc whole twelve, they did represent tlie great 
prejudice tliey sustained both in their reputa- 
tion aud trade, by being kept under such 
tbrcalcniugs ; and> therefore did humbly oflsr 
themselves to the strictest and severest tiiaL 
To which petition they never received any ai^ 
swer. 

" To make appear to your mijesty 

tliese things were done for private ana a 

trous designs, and not upon account of tbaill 
affocteduess, or factious dispositions of the jsea, 
as was pretended: your majesty is hanUK 
prayed to take notice of these particolan fiC 
lowing : 

<' First, There are three of the most 
deraUe of these very penNuui n^ hadil 



WS] 



tind^iertf/pr Official Mahirmikm, 



Tken being soniewtmt tlifiidcut of Uie 
1lLiti{j*s luJTCicJtte, on the pretooce li<5 was 8oui«^- 
limea ottt of tv^n, tliey cuu^oiued »ir Futrick 
Hume advoc^iie to hiuit wliu Hiiisa^i^orn enemy 

eliftrt^Cil wilii so (^reat crimes, admitted since 
tlmt time, hy brilun^' llie thicliess of Lauder- 
lUtc, iutoauu&t iji youi' majesty's affairs iu 
HcoLl^nd, more emiit^nt aiul considerable thuu 
iiy Iryst ttie toivu of Cdiubur^ti can coufi^r, 
itie paying otf your lutije^ty'ii foroeiv moA. 
^nuioj,^ in yonr uiujc-sty 's excise » 
♦» NcL'oudly, Na siiufier were these twelve 
ea turned out ol' the tov^n council, but atier 
limay ip-eai aiMl cssenu.ii infonaaliiie.^ (with 
tbe reciuU of. which it v* ncedlejis to trouble 
jottT mjijcsty) tl**y lUx-li'd lor luagistratew 
ineti of no ri*|»ijUation, cither tor [nu-ts, eslaiet or 
JiOQcfitv : mui though thest: bonds and secun- 
lias, which had been demamied from ih« olhi^r«, 
and ctin^eiUeiUto^ by theiD> was furtnerl} prt • 
lijjidcd to he of grtat iiiiporl.ioi^ Iw your ma- 
j^y^i» jjcr\ice, yet they were nut no ntncU as 
omx; dernimdcd, k'ith<:r oy the duke ol* Lawkr* 
dak?! or l\w lord Haiton, troai Iheia men who 
were now ehoacfi. 

*♦ Thirdly, These new magistnles were not 
long io theit seats, w hen otf comes the luask, 
HJuTtbtf trtic desi^ of i^etting money appears. 
For by an act of 3ie town council tht^re ii; about 
5,000?. ^tefhug* diHfiosed on auiongst tlieir 
nameless friends, whidi were the duke of Lou- 
dL'rdair^ tlic lord Hatton, and some other of 
Ihuir frienih. A ^reiA sum tn be got from that 
«Mty, con&idcrtn^ tliat the duke oi Lauderdile 
tio^l {Tui bttons thai about Xt^OOQL slerlio^ 
from ihcni. 

'* The duchoKS of I^ii<!erilalef did also since 
that time eutltavouf Ui \fiti more moni^y froio 
I w raih threaieu the 
tor DoC i^iviiM^ htr a 
i 11 11 the good sho s«id 
liiMiK M. ' .V"ujut^ the fa%ours 
: h .M Avr, tuau been pleased to 
I, I , <Im L' hy hertitilf. 

[ j>our towQ becA abused, 
f< > lo^ magtstratea witliout 

« iL^e, ia a titiMi wl|«ii the 

' iienfiods 10 

lit . ..■ liv and ca^ 

[laciU lu i>uw your ni4jw»ly," 

Iti tbe ** Aecmmt of y^otland'^ 6ricvances 
by fwBwm M' the duk«? of Lauderdale's Minis- 
trv" iiisf rtP'f \u ilir- <' Siiit,- Ti-ids" (privately 
J harles the Sc- 

- 169-^) p. '?i>0. 

MT^t •*""•'■ ^'-" i^smtje is, tli« ' corrupurin 
'*4fe/ IV hereof iny lord 
w. LaiMiordale'n brother tf 
Ibi* mmigimmik wu gvoundcd m tlie 
tnveNiJ itairHiUr of tb« pg^lg ; iKJba bare 
f v«#rftl ymm^ tW ilie 

^ - "T coiu ia aiMisiMy dimipiiinit, 

both m Ai4i H«i|(bt oodrAiitMMi to liiii noiion'it 




They 





to IlHiton; thii disflatUfled Ui« advoCAt^. 
frame the report niiliout allowing' ' < 
sight of it; luid sent rerihamltli \ 

With It to London ; and though the duke of 



add to the resentmenti that tlie Kante tofd 
itattoti havini; some years a^o tiUed the coun- 
trey with a !i^! ' i ^ coiu^ without ohs^^rv- 
in;4 either the *\ ' the weight and valtio 

pix^ifiliLd, vvu., ii. . . ,i,,t it!a^ hv --i- )• trl Laub- 
dirdftlf's mciuis secured and ud r it 

i* iiJao rvrn. ni1k*M^-l, tlwit thi :„.... .;; enables 
luua to t aion of our iiitvcr coia, th« 

ftmcli dii I ^ J d the LeggdollorSf usually 
imi*orted by our merehanti^i and current 
amonyfut «» at ACt^ per picce» were cryei! 
down by tbe duke of Laudc4*dAle'« procurt- 
ment to 56(/. for no better reason known, than 
that tiicy mi^lit be brought ui lor bullion to th<f 
3Imt-hou9efor his brother's benefit : but though « 
tliat uU demanded in |iarliament about thiit 
mitUY was, that there might be an exaiMii- 
nolioa of the coin appoiatied, and an accounl 
i^ivcu ol liie bullion which hath been loi^ IM|^- 
Heted \ yet tbe nu^monal given in far that 
el}«ctwaa Qol regarded: it is true that my 
lord Lftuderdale after the I>eceniber adjourn- 
ment of thi» parliament, did move hin majesty 
to write n kftter, and thereupon bring the bum« 
vi^%H to a tryoj Ldbre the eooncil % but iu a 
manner m partial^ that I profcv it is my a«l- 
mii-ation how iiny man $iioukl have a ivinUl 
deuce Ktmn^ ennuj^h for such pructice$. 
sidiject of our complaint in the Ati»ck of our 
current mony, and all appointvd by his loa- 
jestiea h*ilLT, is that there shouUl be a try at 
made iij^ofi tile e»!iay boxe^ and the piefee 
thti lined: 1 shall not Kay, that the 

ov* I tiof hath been altegHbiT in nijr 

lord 4JU10HI H „wt, ywmer and Iruiit theaf* yeap» 
hyt*tt«l», y«i so certain it i«, that tXm box or 
|iixie hatb been of late ae greatly n^kcitdi 
that one of mv lorda nonmiimoiieni fl^da ap» 
^utad for the exatnen, eoeld oot forbear to 
say, • Tliat they were niet to see whether the 
' oScerskei tlii: JUint were ae iBuch IbiiWae 
' tbey west suape^ed to ha knareat* but not* 
withstanding^ tbiti tbe tryal goes on, and mora- 
o% er the pieces are not brought to the esaay 
sercniily, but the whole (wiili what mixture of 
finer pieces coined and conveyed in on purpose 
to compense the bascc who can tell P) is melted 
down together in one mass, and thereur^in tbe 
easay made, and the report thereof with some 
wraall hrigots sent up to the king \ which, 
pnjfing (10 be sure) according to ihr dp*ig:0( 
r the confrivance, his m^esty v\ ' *ci 

days M»ndH down a second ^ m 

'.viiuiril,js|niilytag htssaliafiMtieii, »tiu vmung 
UaCtiHi.anS. i4t real oi' tie aftam to {w ex^ 
oikemied : bnt wben this letter is fead, it is op. 
po«ied Oiat tbe gnevaooe of the l^lint had been 
I lublf^I iti u»rh :^ in. «nt, where the tryal sb^ 
t his lOi ytti M fin 
i%la>Neiiia4^ aftte 
tllf«r tall^6ed er 
c a iprtMittd af ntaaa li' 



Oi CHARLES ir. Proceedings against the Earl ef Lauderdale [17f 

and put a stop to the coinage till farther order S 
aod ordaioed his adrocate to insist against them 
either criminally or civilly before the council, as 
he saw just. And now since the King has ordered 
them tu be pursued beibre the session for restitii • 
tiou, of what tliey had intromitted with more than 
they had warrant to coin, Halton, on the newi 
of, his brother the duke's death, parted that 
same day fur London that his sentence was in - 
timate ; and a committee was named to go and 
close up the Mint- house, and seal all. 

November 7, 1682. . 

" At Privy Council, his Majesty's Letter 
was read aueot the officers of the Mint, bear- 
ing, that where he had formerly orderered them 
to oe pursued for their malversations before the 
Privy Council, or the justice court ; now he 
had altered his puqiose, and ordained his trea- 
surer and advocate, to insist against them, before 
the lords of session ; and in regard John Falco- 
ner, late warden of the Mint, was omitted iathe 
former order ; and yet from the report, it appear- 
ed, that he was as guilty of malversations as 
the rest ; therefore he ordained him also to be 
pursued with tlie rest. — John Falconer, on the 
news of it, died suddenly of crevc'tenr at Uii. 
house of Phesdo. And on the S4th November 
1682, the treasurer caused put up the ^ifl of his 
moveable escheat, upou a report of his having 
bexnfelo de se, and g'lUed it to lingh WaUace, 
for his Majesty's behoof. 

January 19, 20, (J'C* 1683. 

His majest}''s advocate against the enri of 
Lauderdale, lategcueral of the Mint, sir John 
Falconer warden, and the officers of ibe Blint. 
To the first article of the summons, bearing, 
that they were liable to rcfound the quantities 
of the copper coin wherein they had exceeded 
the warrants his majesty had given them for 
coining turners. Answered, They could not be 
made accountablcfor this excess, because his ma- 
jesty not only by two exonerations produced, but 
also by the general indemnity in August 1679^' 
had discharged and pardoned the same ; 
neither could the exonerations be termed suIk 
repiitious or obreptitious ; and that in law all 
such writes and rescripts do tacitely bear thie 
clause in their bosom, * si preces veritate nitan- 
*■ tur ;' for though the doctors make a great- 
noise of the efficacy of that condition, ' si pre- 
' CCS veritate nitantur,' yet they teach us that 
any of the following clauses take it off, tis. 
either to insert in the write the words *• mota 
* proprio, ex certa scientia, ex auimo deliberato,' 
or *• ex plenitudine potestatis ;* or even the ge^ 
minatio actuum do evacuate it ; and with us, 
by our style and practice, the docqueting of 
writes to pass bis majesty's hand, the passing 
them through many unices and seals, the 
presenting tnem to sundry courts and indi- 
catures, the recording thein in their books or 
registers, the obtaining declarators upon some 
of them, are far greater checks and controuls, 
and more fit to purge and obviate fraud oi*- 
obreption then these alore meiflioiied inventioMbS - 



I71j 

York had promised to Halton tliat no deter- i 
raination should follow on it, till he were beard 
bcfurc his Majesty; y^H a Scots Council is in- 
stantly called, who on reading the said reiiort 
of the coniinissiou fly very high, as they had 
l>ccn tune«l, (Halton not iVing yet gone up), 
and procure a letter from his Majesty depriving 
him of all his places. Halton, to preVent all ha- 
zard from the extremity of their malice, fomi- 
ctl an ample remission of colonel Lock hart's 
and his brother the duke of Lauderdale's cxon- 
erution ; but the duke of York said there was 
no present necessity for the passing of it by 
his Majesty. 

August :i\j 16^2. 

" At Privy Council, his Majesty's letter was 
read, against my lord Halton, and the other offi- 
cers of the 33int, bearing, that he had considered 
tlic report of the commissiop named by him to 
try the case of his Scots Alint, with the advice 
of hh Scots council at London, and found that 
th;;y had malversed grossly in tlieir trusts; 
and therefore suspended and deprived them all; 

Mint officei*s so long as it was manifest, that 
almost the whole ot the current -coin is defec- 
tive and debased ; and lastly, there vras offered 
a bagg of uiony lately received out of the 
3Jint office, scaled with tlie officers seals, 
which they could not but still acknowledge, 
and it was desired that there might be a tryal 
made on the species therein contained. Not- 
withstanding all which, my lord commissioner 
and the plurality of the council proceed and 
vote an exoneration conform to his majesties 
last letter. Now is not this a noble way of re- 
dressing grievances, to purge the author and 
leave the thing untouched ? Nay to make the 
greatest aggravation that can be of his felling, 
viz. The corrupting or frustrating of the 
chequer tiie lK>st ground of his clearing, and 
all this contrary to the reclaiming evidence of 
almost as many witnesses as there are pieces of 
his maji.stii's coin ininte<l in Scotland ; it being 
ct^iiain that amongst hundreds that have been 
(rycd, very few iiave been reported to be 
standard." 

And under the head of the eii^hth grievance, 
^vhieh is ' The mal-ad ministration and profu- 
sion of his majesty's revenue* it is said " My 
lord lliitlcin hiith got in donatives to the value 
of I ;>,nO()/. stti ling ; and hath moreover yearly 
1,19(;/. sterling: beside ho hath the profits of 
the Mint and liullion which last did render in 
king James's time, 1,000 marks Scots weekly, 
amounting yearly to 2,500/. sterling." 

It may here be noticed that Koger North 
(•ivcs hii^h praise to the duke of Lauderdale for 
his ^^oveniment of Scotland. ** It is well 
known" says he, '* that by the prudent con- 
ituct of the duke of Lauderdale, Scotland was 
iu a {Misturc not only of safety but (if needed) 
i»f giving assistance to the king. No barm 
could get in or out there while he was commis- 
sionc^r." Ezamen. part 1, chap. 3. sect. 90. 



r 



anit)(kert,Jitr O^cial Malveritttiont, 



173| 

vf Uie dodors; and as Ibis proven t|jc vnll- 
dilv of tUe exotunilionH, ^o the indcmuily 
CfrtAini^ cut* iirt' ihi» pniiiUtt : Fcr ttUHieslieA 
of all Ibuipp* Ai*c mtrst sacred, l>ctng land marks 
aud s«?ruritifN * rmn lanccndii, lioii utovcuda/ 
unless hti \y>' uiih tliat blooily Roman 

€m|rt?n>ir C: it the whole pe«(>le of 

Jloinc roiglii ntire out one nrcU *■ ut wnito kin 

* pcrcutrrct.* — See ihc (3 fib act oV paHiuinenl 
J 663, and act 10, Parliament ICC'2 } wbicli 
are arin i»f iiuJtMtjntl y, and exempt from it the 
rueddk-rs witb the public nioncy : B^i' lliis ob- 
livion and iad^mnity in 1679/b more ample 
tb«n any of tbenn/ being" drawn in tbe most 
ample and coraprehcasive terms dcviseable as 
moioly dciiignea to secure Lauderdale and bis 
party for the highland army that tlicy sent in 
wi»oo tbe west io 1678, Sec, and the pardoning 
ilie rebels who roB<; at Both w el -bridge was 
but a sbam and colour to draw on the other. 
The lords in Fairj^ and Klf's case 13lh Feb. 
168*1, and in 51r. Jolin Kincaid's Ist March 
1683, fovnd that tfie f;aid indeinnity did not 
defend against restitution, and the civil effects 
of damage and interest, but only from punish- 
ment, and that tbe • vindicta j»rivaia ct publiea' 
<lf>^^' ""'' 'I by the indemnity diflercd from 
1 because i\ie rindicta priritn was 
lliL __.:..^,^iion of goods, and I ho puhika waa 
the inflicting tbe pergonal punisbment ; which 
Iwij w^re only remitted by the net of indem- 
nity, but nowise simple rcRtittition. A dis- 
*'barge that sir Walter Seton bad got from 
the king of hh intromissions as collector, did 
not hinder but the exchequer forced him to 
compt again ; apd none will affirm that tliis 
indemnity in 1679 would defend the treasurer, 
ireas4iFer depute, or sir William Sharp as casb- 
ket^per fi^om accomptlng. The lords Ira- 
ni' ^ ' ^- -.. , Uie parties, advised this 
y MformatioiiS( andrepelltd 

tU uL.tij,.^,, .» liiid tbe superplus of tbe 

coinage more than wa^ contained in the king^s 
warniDts, (though it could not be iostrijcted 
from the exchequer rolb, or otherwbe, that 
tver Ibat superpma was accompted for in tbe 
exchequer, or looke«l upon aa any part of his 
niajesty*ii revenue,) did not belong to the offi- 
cers oi the Mint, but io the king; and that 
the cxonenitiT>ns in tiieir narrative were but re- 
latireto the wamiflts* and so c-ould not excee*! 
them and that tbe act of indemnity did not ex- 
tf I ' * procffjs, which was not penal but 

/ o onlvt and for restitution. Tbe 

^^ ' were ; ' The lords 

founded on l\w act 
ut ?>j ,iiiiiii-^ V. and t '* ' ' nds 

* t ; as also repel tl nee 
i ,1 it,r> ,..Mfv» .,» ♦!..-. j,j,. , ,« ., jitr- 

, as a part of 

?vnrnte insiiits 

'■ ' I >f copper 

^ < I lie war- 

^ rmts ; and repi i thiit aliedjreance ioundcd on 

lb*- f xunrrTHirni", and Ihid tbtJtp exonerations 

^^extend n'^* in lutbi; (pjuntity allow- 

t^ r^ . . . .1 V . H .ud MOt ^ iba tiuilvcnia' 



^^^.extend 



^^\ 




* lion in rtlailon to the quanliiy rx^eedcd; aii__ 

* repel the ailed geanoe founded on the act of 
^ indemnity « and tind (he •^finitr iAtuior srcure 

* the defenders froth i*lc in rextitntioo, 

* * in quantum loci M;h sunt' by tbv 

* profits of the (pi niiiiy ot cop(ter Coined 

* more than was contuiocd in the warraiMs/ * 

*' Tbe king's advocate repitscnled Io tbe 
lords, that !iow fi»r tiny Itud rnadc prolli nnd 
bencllt could not be the i ule ; for what if it 
were not extant, but sptni in livitjg bigb, 
or in playing and drinking? when on tba 
lords expuniitd these words out of Ibu in- 
terlocutor, • in quantum sunt Iocupk»tali j* and 
made them simply liable, whether * in rem 

* versum' ornot. 

** Tbougli tbis debate and it& interlocutors 
took up se^^raldays from tbe 19th to 26ih Ja- 
nuary, yet it will not be fit to divide it, but to 
give it here altogether. 

•* It being further allcd^cd fur Lauderdale, 
and the i;Uier o^Hcers ol the Mint, that no 
more of tbe copper coin coM be adjudged to 
belong to the kingbutatwelvth pari, (which is 
tbe propot ttoii be has of the Bilver) and tliit 
also with dciluction of the price of tbe cojipvr, 
the expcnce of working, and the fees oi' the 
workmen ; wiiich beiu^ dtfaJked, tbe free 
excrescent and superplus profits, over and 
aliove all these abatements, will be inconsider* 
able. Notwithstanding whereof, tbe lords (bund 
the whole copper coin made and lituintx^, 
more than the officers of the Mint bad hii 
lnaJe^ly*s warrant for, did intirely and in 
solidum belong- to the king) without any allow- 
ance to be deduced for the metal tnatter or 
tbrm« Imo. Because they esteemed it *rcs 

* ftiriivaet peculatus pecunite publico?.* — But if 
so, then if not penal, yet it was * mixta, partim 

* rci persecutoria, et paitem no^oaliK ;' and so in 
part pardoned by the indemnity : \Vhich forced 
them to run to a secoud ground, viaf. that it 
was tbe king's ^'zirf specifitutionU ; the king'i 
^anip and character being impressed on it, ne 
became * domiuns totius tam maieriie quata 

* formie.' But here maUria being poUntior 
aud predominant, ^ ct reducibilisadpriorein for- 

* mam, dominus materiai* became dominui iQ* 
liux, 2do. By the R^mian law in that *• modus 

* acqutrendi per speciticatioDem,* the owner of 
tbe matter bad an action competent ' ad esti- 
*■ mationem et pretium num materieconsequeo- 

* dum.' This swcm\' i the prior mter- 
locuior, and not beii ^ible in Uw ; tti« 
next day, the <^iise iKMUg again called, it fiaa 
insUtod for the earl of Lauderdale, that ha 
l>elioovetl to have deduction of the mattpr of 
tlie copper; for atn^ tbe induction of the 
kijig'n irojis and impriMs Inmi^mitted tbe pro- 
perty to the king, so that it might not do Jur^ 
m prejudice of the ^ !"* i* im!m* ♦ d * ud pri- 
*orem materiam,' 'uuita iioa« 

* pms «t poteutialr' u! sr ma* 

* icriam bic* yet it was i\ u 
of the price and valtjr i,jr 

* rot non dtl>et lorv; ' :% ulu^rtu* ^' 
ami tbe tndcmatiy j^- . ^ , . , . rimini^l dtj^ 



I 

I 

I 



175] 34 CH ARLfeS II, Proneilngs tt^ainsl the Earl of iMuderdah [ iffi 



lint^uency in it. The kiii'/s adn»cate being" 
beiiteu troiii Ihe notion of «p<rciticalian, ran to 
tbat uf Bcce«»ioUf that \\ became the kin^^s 
/ure iicceMfOfitf, like a biyat^ j^ieMing to the 
picture drawn ibercupon; and he being in 
doh to tipply the kii^^ii irons to tnorc metal 
tiiaf) he bud warratit fbi% he ougiit not to reap 
fecoefit • exsuo delicto.* KepU^,Thai decision 
id' Justinian'* wassini^lar * in picturaob prae- 
' stanttam artis,* and yet it still went cum ♦ onere 

* pr^ii tuhulae/ Vea, bvthe Komanlaiv, * eliam 

* in per&oiia praedonis bent^tus vvsum e«t dc- 
*4iicere iiiipcii»;u8 lam olile^quam necessarias* 
Mri he only lost the Titlnptunrtns ; 1. L 38. and 
99, U. de baeretl petit. 1, ^^i. c. derei vimlical. 
— TUii lords bemjr straitened, altered dow aright 
iheJr Ibrmer intcHoculor, and found the utficers 
c€ tW Mint out^ht to have allowance of all 
ODpfier stamped by (betu before tlie act of in- 
deniity 1679, (for aiter serious coosidcralion 
Ihey durst not make loo btdd wUh the loosing^ 
vi' this act of mdemnity,) but found what- 
e?er copper waa coined since the said indem- 
liily was the king'a conjiscationis jure^ without 
may defalcations ; and ordainetl tlic oBicers of 
the Mint to condescend on the auantity 
prior to the act of indemnity 3 vhcreby they 
designee) to chcit a confession that timy had 
exceeded their allowance, which would Ijold 
tbeiD in a probation ; as also to prove the va ^ 
lue of the iK»und or stouof copper ; and would 
not allow ibem the current prices it was then 
givin^t bnl only what it really stood them ; 
and for the expences in coining, alloHetl them 
to defalk whatever wagies they were yet resting 
to the arlilieers and workmen, but refused to 
allow them what they had ahready paid. To 
the |vrejud»ce« arising from a supeilctation of 
coplter coin marked by me alibi^ we mov add, 
r That foreign commodities cannot be bought 
with it ; for strangers will not take it. IL 6e^ 
ingama]) and caretetsKly kept, tlie half of it m 
lew years comes to be tost, i,t> that the half of 
the turners coined since the king come in, if 
Ibey were called in now, are not extant. Ill* 
ibe tmr h i ci or sixjiennj pieces force and tempt 
Hite^uy more of fimall commodities than we 
wed, anil they who formerly bought a turner's 
ivortb of pins, spice, Jtc. are now in a manner 
forced to buy a bawbie's worth, the turners 
hifing ht com e t ery sea r ct» . A m ongst th c V e - 
otliajif, 1 find it is <leaih to apply one penny 
of public money to their own private stock or 
Hie, 

** Then the king'a adTocate inaistfid 00 the 
•econd article of the libel anent hi^ refonnding 
Uie proUt of the buihon ; and thous^h louder* 
dale ajledged. tliat the master of the >jint, by 
hum n^oe, gift and bond of catttiou, was liable 
fbriltat ; yet i* ^ '^ found th* ' :' 

llieMiott«aci of all the f 

Hti negligpasce lum 4>[ui^;sion,eqaalU rmu nnu- 
cipaUy to the king^ and not only iabsidmri(\ 
fe5Pr-'T"* *''tu bia rehef, as accoH- — .j-.t* 
Ui' and for this there v 

^j«Qt 1609« anaiit the l^ 



I, 9. § 8, D. * de admin, rer. ad civ. (»rrt.* T«thcre 

*carator tenetur nomine collegas si prohibere 

* eum poterat* Vet I Hnd, LI 11- 12,*ud 13. 
D. ad municlpai, make him only liable * ortline 

* discussionis prius ser*^ato ;' anil all tautiotiera 
for administrators have the privilej^e not to be 
couveened in prima instantia^ till the pmicipikl 
be iirst discussed. This interioculi>r fiudmg 
the general liable for all the malversation?* and 
omissiuns of the inferior officers of the Mint, 
was grumbled at, fur they had not their com- 
missions from him, but from the king; and he 
could lie in no worse cnse than a tutor or over* 
seer, ^ qui teneriiur tanlum de do|r» laio et Uu 

* culpa,* Yet I Hml mandatarii, amonp t%!i«mi 
also are contained those who Imve coi 
for offices and l rusts, are lialile in hu^^ 
kvttiima; but tliat must only be undttMooJ 
of their own, but not of the culpa Uiwtma iti 
these under him, though they be auswerobto 
also, ci- i/ua&i delicto^ for iheir faults: And m 
this rule, masters are made liable for tilde 
teuiinlB and seifrants, and sberirta for their de* 
pulies; see Statula Davidis 2. cap. 30. parents 
and husbands for their children aud wives ia 
some cases. The general is made llalde for 
the inferior officers malvcrsatlous, not only be- 
cause his knowledge, connivance and command 
is presumed, hut Tie should have impe*icd and 
discharued lb era to have coined more tljan wa* 
in the kfiig*t^ warrants, and two copper jour- 
BCySi nnd Bhouk! hare rcvenled and not con- 
cealed it and divideil the spoil betwixt thero| 
and * per tit, c. de Iklsa moneta, cliara cunstt^r 

* puniuntur.' As to the point of rdief amon|^ 
themselves, if they be all pmven to l*e delitt' 
oueuts and in dolo^ and to have malvcrpeil i 
their tnist^ ; this ought to cut off all relief, 
is elegantly decided in the case of tutors, I, i, 
§ U. D. detut. et nit. distrah. and if one 
ibem be dead, (as here in Mr. Jsmes P:il: 
cooer*s casc, wht> is convccned for his fatki 
the wardens malversations,) «ucb actions ' de' 

* dolo qutp factum puninnt, non dantur cootra 

* heeri^des,* where it was not established, «f^ 
litis cou tested aguii^st the defunct in his ow^H 
lifetime. Vet 1 find capers, though decerne^H 
to restore ships or goods unwarrantably sei»|^| 
on and taken, have relief among tliemse!ff%^ 
though all tfccerned in $olidum, 

*' Then the lords, after the debate, adrts 
the seventh point or article of the libel, abou 
thd profit they had uik)ii the exaltatioti 
Crying up of the merks in 1680 ; and it 
for aU bullion, silver coined or uncoitiedy ] 
had lying beside them in the Mint-liouse { 
time of that act, there was due to the kha{^ 
eight pennies they gained on each merk oT 
and ordained litem to restore it ; and for wh 
I 1 Tin they got in since the said act « 
4 they gave the merchant fifty 
\iw;;^s and ten pen ' ! ' 

they brought in 

*' : eight |>tHJhrv-< :*in« r vu.n. »<tt, 

' accomptiiblfi to the king for no mocn 
•>am of ux\las ihe kinj^sl 



• 'j«m jTOV«aaiUHiue i;^i.. ;., <^L .; , ^ut- ^am 01 y4utu(,>[t lue kuij^s^ 

^«si«ri)i M Will M Che toflitcr I snd 1 vocate can prote ihey compounded i^ittith 




Bmdifthfrs.for €>fficial Mahtnaiian^ 



16BQ. 



banU, for \cm thnu iIm* sM fi% tt^^lit 
fwliinir* atifl rvjUt peinHCM^ anil whfUevef ihey 
gol Jowii of it. tin»l it belonjjs to \Ue kinsr. 

*' Then ilie kijijj *s advocntc ant] sir Pa! rick 
Hmni* iiisiHti'il on ttie er^itih iiitk'te, ani'iit the 

mal^i* iiuUiun of; Uip lottl?*, t»f*twiilistan«linp 
ftet 519, [mrtMiikent 1507, (which they found 
in clesutflinh^ na to the current coin, 'though 
foreign «) found, rhai tliV inviting: Jowii nf <1<J- 

• liirs, was unuaiTatitahtp u6 in//(<>; utid of du* 
catnous, on) y »inre thev were <Tied un, as p&sa> 
ing money* in 1080;" and timt the king- mnst 

• hate the same jiwHt on them, as he vroiihl 
IHto'e had of im parted hnllinn* tiz. the l!?lb 
npN; though Luuderdftle nlleii|;j:od it wa& only 
] the ;iOth iiofl: And found, that not only the 

coin bearing the king*i» impress, hut that no 
foreign coin that iiassei as current, ought to bo 
melted down ut alL 

•' Then al>er <lcbjite on the articles anent the 
remedies of Hnes tind wei^lit, the lonk found a 
^imin aboTe and hchiiv the Mandiird of weig-ht, 
" and two |2^ruiii!>i above and btlow eleven penny 
' fioe^ as tiie standard of the inlrin<!ic value and 
fineness, were albmed only as a latitude "^to 
' work on, where cAsually they fell ab'ivc or 
under, because it would'lie «n'i(i>snjH'rahle la- 
i>our to be precise ; hut found thtni culjwible, 
the ktns;*« advocate provinw" they wroucht on 
li»e remedies In^ncath standard^ as a coniitant 
iidvanta|;e, so that wheti they came to trone, 
or weti^i a mcrk piece, if ihcy found it exact 
weight, they would part, raie, ur scrape a 
^ratn off it, till it came to the remcad ; which 
frandulent prachte Ix'ui^ known* the lords 
found them liablu fur restitution of these g^-aios ; 
and finding the article of John Fjilconer*^ Invnd 
to Alexander .^laitkind, was made up of tlur 
renieads, tii*?y re«oheil to cmdkcate the said 
tnm to the king. 

" 'llie krng*s advocate thcreattn' insisted 
i AgniuHt Mi\ James Falconer* that he, ns suc- 
' cesser * titulo lucrati^o ^MistconfrsKium dcbi. 
* mm*' must be liahle for hi» father^ part; 
irbich he did urge not only ibr nil deeds done 
by his father bm warden, before he gave him a 
^ disposition to bin estate, but even for all deeds 
lifter, because he being introHtctl by th^i? king j 
with his money, he became debtor from his I 
firitt tiitry to hm office, and uny di^sposition he i 
n^en^ardHtnirkeMorhi^ estate to his eldest son» i 
repute ffauilnlfot, and otigbt not to 
the kinjj's tacit hvpotherk,t!ll he be I 
jNjKj r^i Ins own» which is ogrctuide to la^v, Hnil I 
the Fi»ik*« privrlegw; ride Antoii. Peregrin, hh. 
G, dejurc Fintn, c, fl. Yet this will exceedingly 



decerned already, than all the genefnl atid the- 1 
other officers of the Mint, thctr estates are Me \ 
to pay, if this rigor be not soniewhnt rcmittedf ^ 
by his mnjesly ; so that they need not insi-^t ] 
for atinualrciits, unte!^!% it 1k' fi»r example, anti 
to strike terror in other.^ j atui it is impossible i 
that any can miinuge the I^Iint office, if they i 
he 80 strictly searched. But it will be theeari 
of Stafford V case, who wa« found guilty, yet 
with one breatli it was declared it should not 
be drawn into a preparative. However, Id j 
this ca^^e of Halton's stand us a great instancf* 
and beacon of the i^iix and inconstancy of all 
sublunary greatness. 

" The Lords, upon the Cnd of FebrnarVp 
168:j, found my lord Muitland, then newly 
come home fmra London, liable as ctmjnnct- 
general with his father, J hough be tiever loed* 
died ; because he ought to have supervised^ 
and his being adjoined when he was so young 
OS not to be able to officiate, was allenarly hitf 
fatluVi fiiult. In this case, Halion^s tni> 
much debute and opposition, made tlie decreet 
tiie stronger ; for, they thought to have hooked 
htm in the debate, whether sir John Falconer , 
was Ixiund to relieve him, and to have freed sir 
Jcdjn ; but Ifalton smelhngit, declared he hud no 
process of relief against him as yet, and would 
not insisit no;v. It may he doubtetl, if the chancel- 
lor or other lords who were tm t he first com mn?- 
sion, and had already given their opinion there 
againiit iThn, tnight not in law, have been de- 
clined as prejudicjite and pre-engaged, 8omG 
of the votes aqiiiniit Halion, were carried only 

by the exlniordmary l/jrds, Quiiritur^ ff 

such inlerlocutors umy not he suspected as not 
nitoginher consonant to Jaw, the extraordinary 
Lurrls not hcing bred lawyers? Inthis process, 
the Lrti'ds followed the ancient sutnmur way of 
advising prrw^esses^ by debating and discuiwtng . 
the rcleviuicv of one point, befon* they hcar<l 
another, aufl removing the pnrtics (jrescntly, 
wit bout wrrtten inf5jrmations, and giving theni 
a distinct interlocutor on eac h of thettr. 

*' 1 be Act of Lit iseon( est at ion jn this Mrnf- 
cause being extracted, the I^ird^, on the yoth 
of* February, I68^i, appointeil Cnstlcbill, Boyn 
and Onimcairn, to receive the probalion, and 
to nernsM» and to prepare it to the whole Lords, 
anfl therein to t>ilce the lulp of heutenant* 
genenil Drummoi d, tionbm of Gordon<«tt n^ 
atid rtadie Bnifd. This was thought oUd, to 
adjoin asuscssurs to the Lord*;t but the matter 



♦ Should Ik* Stratlonl. Slc vol. 3. p. 1519. 

t Mr. Hume (Contmentaries on th<f De* 

scription and Punishment of* Crimes, vol. 1, p. 

man- the commiMce with mich puhli»* olTicers, | 4L) siiys: '^The JuNtice Court bi«run to iv 



utid iH on the matter an interdicting of them 

•* Then h« in»i*ted for the aimualrcnts of 

^^tr sum* arising irinn their tlehnfjuency, utid 

' El in not pavinjr what they wer»-' owing, and 

efore uunuulrcnt was due here, nmnine 

nni €i interrsyc^ tbougli there were ocUhcr 

^jjH» nor paction i** infer annualreut ; and this 

' K» anotbfvf pri% il(*ge of the tUk ; fide Pere* 

, ibicL But there are more piuicipaJ stuns 

roLu XI. 



cover fffim that ntate of depn*Hsioii into which 
it had ftdlcn, and to aspire to the like indepet!* 
dence in its prot»er d£*partniei»t, %thicl! the 
other stipremc jndjcttturcfi matntnined in theirs » 
'['he rcgnhitions of lti72, without <xprts\Iy 
furbi4hhng the np(>oiiitment oi a&sessurs, had 
in their pi^amble uUudedtolhc inconveujencies 
of that wrt of interfercncpr The eotntniKsion 
too» of i071, tklWr iuvi'iltug the new cvatt 
K 



179J 



34 CHARLES IL Proceedings agaiKst the Earl of Lauderdale [180 



was sonicuhat out of the road. This tedious 
f«ruces8 was at last advised by ihe Lords ; and 
u}>uii March 20, 1(383, they found it |irovcu 
by John Falconer, warden, bis deposition, that 
tfifre was 17,000 stone weight of copper coin, 
thoui^h there was only warrant for 10,000 
stone, ()et it was objected, that John iinmeih- 
atcly retracted and amended his deposition, 
but they would not write it ; and that he was 
only icalis sin^ularis, and that it was not taken 
in judicio ordinario^ but in snmmario on the 
kiu{4''s couimission ; but it was alled^e<l, that 
he bein;^ a party « knew best wliatwas coined ;) 
and found, that llaltcui had UiUen (300/. ster- 
lingf, from sir Ji»lin FaJconer, to ^et sir Johii^s 
accompt of bullion past and cleared ; which 
tliey decerned him to pay back to the king* as 
caductun^ being' a bribe, unless he condescend 
upon another ca«ise of bis ^ivin|^ him it : And 
Ibuud the sum they were all liable in to the 
kiuj^ conjunctly, was 72,000/. sterHug, for 
which they decerned them all in solidum.** 

Ma^ 10, 1C83. 

" This day there is a letter from his majesty 
read at privy council and excheouer, bearing' 
the Bnul sentence and determination he &^ve 
forth against the oiiicers of the mint, viz. That 
whereas his advocate having obtained a decreet 
against them before the lords of session for 
72,000/. sterling, and he mindintr the eminent 
services he hath rccei\ed from his late general 
of the mint, now earl of Lauderdale, theraforc 
he miti^^ates the sentence against him, and 
iinds him only liable in 20,000/. sterling for his 
part of it; whereof 16,000/. sterling the king 
gifts to his chuncellor, and ^,000/. i»terling to 
Graham of Claverliouse ; with this declaration, 
that if Lamkrdale and his 8(»n the loni justice- 
clerk shall dispone the lands and lordship of 

wit'j all iho powir;; and privileges which had 
Uloii<;i.d to the jusiic-c-gotKial, justice cleik, 
*ihI jubilee- deputes of r!ii, liiiu proi'^eded to 
declare, * qiiud anted seta curia jubticrlariu', 

* proul per prti'sentes t-st stubiiita, est el erit 

• nostra siipren:a curia jiisticii:riu', et ordina- 

* rimiM liuiinalc jtidiratorium :* aiidcs;i<.ci:illy 
it had pro; Idinl, ^ (|uod nulla causa ad illud 

• sptctiii.s ahstralKtur ali eodom. nei: adduca- 
' tiiiod ctiodvjs a!iud ordirs.rium jiidicaturium 
Miit :>.<!\i.culiunis prcco^niiionis, scu super' 
Mpuivis alio prtetexta <jm:cu:j(]ue.' On the 
pait (»f tl.u privy council, tiicrefoic, sume of 
ll.r abovf-niciitioiiui irn'gului- iiiK /jn -.ition. , 
■ct-lt.-iN tiic naminc of ass;':>'«i'r:u, and il.e re\i- 
■a! < 1 ;ii(; procceilings of c«..iirt, wtTf imuK^di- 
atilv »ii»-c()!!liiiu(.il ; ui.d iiio>.t oi" the other 
hbw:.t. „■' I 'i III." p'ivy co;:(:cil, boucvcr, named 
o.-,.'.i.S;«iis ■^» 'it viiili till' ju«!g'v' ;i<ii:iiral, in the 
i!(*tr..l tr; .1 '..t (Jnen and olhri*, for piracy and 
inunlti, in 17l)oj *Mhon;rh not at onue laid 
asiilo, \unv [.ratii.scd howi'ver, afii r this tiine, 
villi r.iore k-i i vo, and in a ma.nncr k-ss olfcn- 
■ivc to th<' foiirt at least, than IcrmtTly ; and 
af\er the UwvokiUou they vamc to b« eotircly 

dMUbVd." 



Dundee and Dudhope (of which the king had 
gifted him the ultimus hitrety ward, marriaffi 
and recognition 11 years ago) in ftivoan of tha 
chancellor, then he shall be free of the foresaid 
sum of 20,000/. sterling, providing he give real 
warrandice out of other lands, and ogaiost all 
the late earl of Dundee's creditors, or their 
consents ; and that it contain all w ithin two 
miles of Dundee ; so that Glastory and Inner- 
kiething iall not under it ; and that Claverhouse 
shall have power to redeem the bouse, yards 
and parks uf Dudhope with the constabulai^ of 
Dundee and all its emoluments from the chan- 
cellor at 20 years purchase; (which somt 
valued woith 30 years, because of the g^reat d^ 
pendance and superiority.) A!i to sir John 
Falconer late master, the king fined him in 4 
years antl a half's full rent of his whole estate 
iiolh personal and i*eal, besides the bullion in his 
hand. — He was made so easy, because they 
had privately forced him to give his brother 
David Falconer a l)ond of 9,000 merks. — ^And 
decerneil James Falconer, the late warden's 
squy and Alexander Alaitland the late coonter- 
warden, in 6 years rents of their whole iiir- 
tunes; tliough there was no passive titles 
proven against the iirst, and not so much as a 
decreet against the second. This way was 
taken with thir two, because Mr. James's father 
having hangeii hiinself, as was ro|K>rted. his 
son refused to pay any composition for his 
eschcat,shewinga right* he had long prior te 
life rent and all, df-nudiug his father, and much 
debt Qnon it : and it was to furce the second te 
demit his place of macery. It was said, the 
fines of thir threb la^it were given to the two 
Scots secretaries. — t)n roadirg of this letter, I 
found it likewise connnanded the earl of Lan- 
der4lalc to discharge any relief he clainieil or 
had against sir John Falconer as master, or the 



And in another place (1 Comment, cap. 1, 
pp. ^$, 4.) after noticing tliat in Scotland, it was 
part of the king's prerogative formerly to 
judge in person if lie pleased, he nunitioDS, 
"That by statute 1(381, cap. ia,the 3rd parlia- 
ment of Charles 2nd, it was attempted tu re- 
vive this principle, and carry it into practice.'' 
The statute was as tbllows, * Act asserting his 
majesty's pivrogative ia i»oint of jurisdiction. 
Spptend)cr loth, IGJjI. The estaies of parlia- 
mciit (onsiduring that all govtruiTient and ju- 
risdiition v^itliin this his niijesnes ancient 
kiii!;(li)ui ofS^'otland, dovs originally reside iu 
Ills sacri-d mHii.'Liy, his Lawful hei.s and snc* 
Cc-bsors: And although liis majesty, and bis 
rryal pndeccssors, have bestowed offices and 
jurisdictions, upon sevemi of his well desert- 
ing snl>iv.cLs, ytt tliese are not privative of hia 
jurisdiotiun, t.'icy dotherribrc, in a dutiful,»DMl 
humble recogni/ance of his majesty's royal 
right and prerotrntive as to this p<)int, declare. 
that notwithstanding of these jurisdictions and 
oiiiccs, his sacred majesty may by himsell^ 
or any commissionated by him, take cogni* 
sance anddecisioD, of aoj^ cases or cauaetlM 
pie - 



181] 



m^i oikeripfor Ofieial Mtdwersationi. 



A.D. 168?. 



[182 



other iDierior ofBcera of the mint. This was 
a miserable reverse of fbrtyne upon my lord 
Lauderdale, ibr all his services, and a flpreat do- 
cument to all statesmen of the lubncity and 
instability of their offices: and it was no won- 
der to see the lords unwarrantable and illegal 
decreet restricted, they having decided supra 
ftome very odd and irregular points in it In 
August 1683, the cl^incellor and Lauderdale 
agree J and he accepts of the half, viz. 8,000/. 
sterling; or 10,000/. Scots, and '20,000/. Scots 
farther when they shall be able, and whereon 
they gave him sir William Sharp, Cockbum, 
9c6, cautioners ; and having gotten an assigna- 
tion to the chancellor's right, they offered to 
Claverhouse (who resented the chancellor's 
transactini^ for himself, and deserting him, and 
•ntering mto friendship with Halton,) the 
house, yards and old park of Dudhope, with 
the constabulary of Dundee for 90 years pur- 
chase, as he was to have paid to the chancellor, 
in whose place they were come. And they 
being debtors alternative in 4,00Q/. sterling, or 
that offer, they elected this last ; which he de- 
clined to accept." 

July 4, 1683. 

<* An act is made anent the mint, closing it 
up, till the parliament sit to give it new regula- 
tions ; and ordaitiing the Spanish Ryals of 14 
drop weight to pass at 66 pence. Some mer- 
chants think this way of crying up and serving 
ourselves with foreig^i coin, is an easier way of 
furnishing the country ; which custom Poland 
and some other places use ; but it is not so 
creditable." 

November 7, 1603. 

** The earl of Lauderdale upon a bill to the 
lords gets a stop to the charge of horning given 
him by Claverhouse, the high-treasurer, and 
Hew Wallace cash-keeper on the decreet aucnt 
the mint, in regard he offered obedience to the 
king's tinal determination in May last, and so 
ought not to be charged for the whole 72,000/. 
sterling contained in the lords of s^sions 
decreet. 

December 13, 1683. 

«< There is a letter from the king to the chan- 
cellor, stopping the procedure against the earl 
of Lauderdale on the decreet anent the mint till 
the 15th of January next; and recommending 
to Claverhouse and him to agree about Dudhop 
and Dundee, and each of them to nominate two 
privy counsellors to endeavour an accommo- 
dation between them. 

January 1, 1684. 

** The juncto of the council met on Argyle's 
letters, and have got Gray of Critic, and Mr. 
Geoiige Campbell to decypher them. , They 
first touched the earl of BaWarhoute, as he 
who was touched with the hieroglyphic of D. 
and «s above the head of the D. and of H. i^ 
— When the lady Argyle found her own son 
tbas touched, she then said, that she now re- 



membered that D. ^ was only a relative par- 
ticle in the key betw^n her husband and her, 
and so roeaned the L. M. [Lord Maitland] im- 
mediately mentioned before; which inferred 
against him that he was corresponding with 
and receiving lettoi-s^ from Argyle, a traitor. 
The juncto upon this sent fur the earl of Lau- 
derdale, and sent with him captain Graham, 
and sir William Paterson their clerk, to seal up 
all my lord Maitland, his soii, (ihen at London) 
his papers, trunks and cabinets, till they should 
sight them. 

January 24, 1634. 

*< Colonel Graham of Claverhouf^e insisting 
against the carl of Ijauderdale, upon the king's 
letter, to dispone to him the house yards and 
parks of Dudhope, with the constabulary t>f 
Dundee, he paying 20 years purchase for it to 
the chancellor, to which 20 years purchase 
I^auderdale on his transaction with tne chan- 
cellor was assigned. It was alledged, Esto this 
were the king's 'cause, yet not being called 
within 48 hours after the returning of the pro- 
cess, he behoved to have 15 davs advertise- 
ment, conform to the 16th act or par. 1679, 
ratifyinfif the regulations; which he had not 
got. The lords repelled this, in regard the 
kingf's letter mentioned supra 13th December 
1683, recommending to them to agree' was a 
medium impedimentum ; and there %vas but 48 
hours between the up-giving of the tryst and 
the calling, which satisfies the act of parlia- 
ment. Then alledged, the sum of 4,000/. 
sterling of the Mint decreet being gifted to 
Claverhouse, the king was denuded, and it 
came to be in the case of a common donator, 
who had not the priirilege of a sumraar railings 
but behoved to abide the course of the roll. 
The lords find the letter made it still as if it 
were in the case of one of the king's own 
causes. AAer repelling thir dilators, then 
Claverhouse insisted that lord Lauderdale 
might either purge all the incumbrances that 
aftected the house and yards, or else give him 
real warrandice out of' his other estate • the 
lords delayed to answer to this; seeing the 
offer of absolute warrandice may satisfy ; for 
by an inhibition served upon it, it may be made 
more effectual than real warrandice, which is 
restricted to a particular subject out of which it 
is given ; whereas an inhibition stops the dis- 
posing upon any lands within these shiree 
where it is served and execute. 

February 28, 

" Claverhouse's cause ajjrainst the earl of 
Lauderdale, was called ; nnd th(» I^rds found 
they might advise it summarily without inrol- 
ling, it being a part of the king's cause ; and 
that tHey cannot obhge sir John Maitland to 
consent to his father's disposition to Claver- 
house; but ordain the clerk to mark on the 
process that he was cited ; and find by tbe 
probation that the twenty years purcha-e of 
Dudhope, «Scc. comes to 6,000/. Scots-; and on 
his paying thereof, ordain the dispoiitioo to ll» 



183J 



34 CH ARLE8 II. Procuiingn agaimt the Earl of Lauderdale [ 184 



delivered up to bim before tlie SOlb of March ; 
betwixt and which time Lauderdale may obtaia 
uiv loixl Maitland and bis lady's consent; 
otlierwi!>e ordain the decreet to be extracted. 

March 29. 

*' Tlic king's remission to the earl of Lauder- 
dale and his son came down ; but a letter 
clogged it with two qualities ; Imo, That he 
should perfect his disposition to Claverhouse, 
2do, That he should discbary^e his 'recourse of 
relief afpiinst sir John Talconer, and the other 
officers of the Mint ; and bore |>ercniptonly that 
thir should be performed within ei^it days af\er 
Bi\g\it ; and if they were delayed, (which his 
majesty -would riot believe,) then the remission 
not to be past the seals.*' 

Much collateral liti^^^tioii issued from this 
prosecution, as appears from passages iu 1 
rountainbull, p. 337.353. 3(30. 394. 409. 

With respect to the sealing up of (he papers 
on January 1st 1684, it may from lord Foun- 
tainhnlPs roprcsentation seem that Wodrow has 
not expressLd himself with his ordinary exact- 
ness. His words are *• 1 find an orJcr Irom 
the Secret Committee to captain Patrick Gra- 
ham and sir AVillinin Patcrson to go and seal 
all the lord Maitlaud's papers in the late Lau- 
derdale's lodgings. It seems a little before 
this that once great man the duke of Lauder- 
dale died ; and notwithstanding his bright 
parts and long favour with his master at length 
lie fell into the utmost neglect and contempt : 
and now it seems the present manaeers resolve 
to canvass his papers." History of the Suffer- 
ings of the Church of Scotland, vol. 2, p. 451. 



DECREIT His MRJestics Advocat against E. 
Lauderdale and officers of the IMint. D. D. 

Att Edinburgh the 20th day of March Im. 
6 c. and eightie thrie vi'ires anent the sumonds 
and ac'tiono raised ancf perse wed liefor the lonls 
of counsf>ll and sessione at tht^ instance of sir 
George M*Kenzie of Hosihau«:h his nia*ties 
advocat for his highnes interest iu the maitter 
hundr written ngiiinst (.'haries earle of Lau- 
derdaile and Richard lord Maitland his son 
laite gencrall of hus nm'tios Mint sir John 
Falconer laite master thereof AltxanUer Mail- 
land one of the \\aiidens thereof Mr John Fal- 
coner sou and aire to the dccii^t John Fal- 
coner the other wairden his fiUt'ier at the least 
behaveincT himself as aire to hiui he intromis- 
sione with his airship goods at least ex'er to 
him at least successor to him in his lands and 
hen t idges *■ titulo lucrativopost contractum de- 



that his tna'tie since his happy rraturatioiie 
was pleased to allow six thousand stone- of 
copper to be coynied at two several! limited 
tymes Yet notwithstanding the said Chariet 
earle of Laudenlale and Richard lortl Maitland 
laite generall of the Mint sir John Falconer 
laite master John Falconer and Alexander 
Maitland lait wairdens and Archbald Falconer 
laite counter wanlen di(( most wnjustly and 
wuwarrantably under the pretence and sbaddow 
of the said six thousand ston alloived to b6 
coyned at two several I tymes did coyne above 
foiittie thousand ston of copper which wasther- 
tie four ston more then was allowed wfaerciif 
twentie thousand stone dureing the first copper 
iumay and fourtie tliousand stone dnreingf the 
last copper jurnay to the great losse and prgn- 
dice of this ancient kingdome And they bar- 
ing uswally coynietl threttie six shillintfs oat 
of every pound of (K)pper of tlie said thretlie 
four thousand stain that was coynied more nor 
was allowed by his ma'ties warrands which did 
amount to the soume of nvn hundreth aiventy 
nyn thousand and two fmndred pounds ftr 
which the said Charles earle of Lauderdale and 
Richard lord xMaitland as cheiff officers of the 
Mint who hade power to supervise and oontroll 
tlie other officers and punish them if tbey 
coniitted any fault who hade special trust from* 
his ma'tie and als the oy' officers of the Mint 
' singuli in solidum' ought to be lyable to his 
maHie with the a'rent of the severall soumes 
coyened at the severall juruayes more then was 
allowed by Uic warrands from the tyme of the 
expyring of the rex've jurneyes. 

And alse all)eit his ma'tie and ro^all pre- 
decessors have alwayes hade a speciall caird 
to provyd buliyone for the incressine and 
roantinance <»f the stock of coynadge of 
this kingdome and that it is expresly pro- 
vydit by the act of parliament that the goods 
and marchadise imported by the marcbands 
should pay soe many unce of bullione or 
oy*wayes pay twelve shilling Scots for ertrj 
unce therof the generall and masters of the 
Mint by the inarchants the soume of threlia 
thousand siven hundreth and twentie poumb' 
yearly as the twelve shilling for every ounce 
of bullion with which they should havebou^ 
two hundred stons of bullione yearly which 
from Caudlsinis Im. vi c. and siveutie which 
is the daite of the act of parliament by wbidi . 
marchants ware allowed to pay in to the Mint 
twelve shillings iu place of every ounce to 
Lambas lin. 6 c. eightie two being iwelva 
yeares and aiie halfe ainounfs to the soume of 
three hundreth and eightie four tliousud 
pounds And yet notwithstanding the laile ge- 
neral's and masters have rcceaved the soume 
of three hundreth eightie four thousand pouadi 
dureing the forsM tueUe yeares and ane balfil 



* bitum' at the least unv^rsall intromitter with > from the marchants as the twelve shilling 
his go<Mls and gear And .Aindilmld Falconer laite place of every ounce of bullion and sboaU 



counter wainien Uiakaud mentione that wher 
albeit by tie lawes of all nationes and acts of 

Eu-liamcnt of this kiugdonie the cuneying of 
ar> »>'*»v without wairand is discharged and 



have imployed the samin for buying of 
y't they might have coynied the 



they have inverted the said twelve sliillingmm^ 
the use ffor which it was destiuat and Sd aol 




and others, fcr Official Maha'mihm, 



A. D. 16S2. 



[186 



imploy it for buying of buUione but apply etl it 
to ihcr own |mvat use Ami thedbrtliey ougbt 
to be lyahlc lo his uiaUie for the smf twelve 
stulling' payed in liy the mareUants in place of 
biillione extending to tbe saiii s«unne *if iliree 
likindrellk ti;;li»ic four thousand pikundslhe yeirs 
above mentkiuBl ivitli tlic a'n ni iif tht) said 
threrie thousand si feu hiindrcth and tweniie 
|K>un4 they received yearly from the first 
tertiie the sumcn l»€4 ame due to hit* out mn^tie. 

As also bis nia'iie of his prinely care tor \he 
j^oo*l uf liiei ^kithjeois increbiiiag of luouey wilhiii 
this kin^rdom and for advaneeiuif his rev en e wen 
arrysiug by the Mint <lid allow the generalls 
anil master and officers of Mint ihe yearly | 
a*rent of the son me of three ihonsiuiil three ' 
buodrcth thretie three peund six shdling- eight ^ 
pennies yearly as a stoek tor hnyioj^ in of 
huJlione tnMiie tynie to tynie which mtj^lil have 
bought tweutie sigas of Uullione at every tyme 
which mig:ht have been coynmJ and exct»ao»je<t 
ia ifuUl and tnony twenlie tymes in a yejire tlie 
jirofeit therof arrysintr tn his ina'tie beinsf i*iy:ht 
tliousaud anil six liutidrL'th pounds in the year 
which for twentie ane y^ars by |»ast since his 
tna'ties happy rt^uratiotie woiild haveumouot- 
ed to the simrae of ane hundreth and eijjbtie 
thousand aud six hiUMlred puunds notwith- 
standing: the i^eueralls uvaster and oy* otHcers 
of the 31int hes not im ployed the'^stoek of 
tnooey soe that the runtrey hes been exiremly 
|»rejiidged and bis ma* lie ilefrauded of the be- 
ue^te that would have arisen iherby if the slock 
of ftiony hade bein im ployed and the bulyone 
imported coynied anil exehani^ed so many 
lymes m tlje year as it 004* hi to tiave Ixren ac- 
cording to his mantles appointment and y^r for 
the geneiMb ra aster and (nher officers of the 
JViint ought lo be lyable to bis nm'tie for the 
*»amc wilb the a'rent of the said yearly profeite 
from the lir«t terme that the same becam due 
%%.* hin majestie. 

As al:io albeit by severall lawes and acts of 
parhameot the mony of this kinjjdome k an- 
|»ointed to beof equall weiifhtand fmnes with the 
lotniy of England And y*t bits ma^tie baveinpf 
litter the example of his ruyall preilecessors tor 
Uie advancenifcnt of the mony tred aud com- 
merce between the tw» kinjfdomes* that the mo- 
tley eoymed in iMJih shfiuld he i4* a like weij^ht 
ami tinnesand tor ihateffect in iheyear Im. wlc. 
Btxtie two havein^j^ cause*! frame" ane indented 
silver Htandert plate of sterlinjBf liniies and ue* 
eiired bv hin ma 'lies seal Is a part wberof was 
pent hither to 8eotIand as the rule wberby to 
make cssyses of the fineness of silver in all 
tyme hereafter yet noiwiibstanding' the mony 
of this Linifdome since that tyme bes l>cen minted 
farr below the fmnes ot ihe standart plat and al- 
lieit the ofhcers of the mint ware only allow- 
eil to work upon the remedies in caice ca- 
fiualttie that the sime all over wndei and noe 
oy'wayes yii notw ithstandioLC they did not 
work upon but even below the remedies soe 
that ihe Scots c^yne bein|j two grains less then 

• ^^ iQ the Original. 



the indented staudart pbte they wswaUIe work* 
ing upon the remeches of fitines and ther Mng 
two bundretl «tons of bulbone y^t was eoyniea 
yearly the profeit arry&ixij^ to the otiicers of 
ilie Slidt by the diflTerance of the coyn from 
ihe tiitnes ot the indetiled sstimdart plate with 
the benetita vjf the remedicti being twelve sbtl^J 
ling upon t lie pound ol' sdver wilt extend to 
the sotiriie id ane tbonsnnd nyn hnndreth and 
twenUe pound.>4 yearly wliieh from Caudtgmis 
Im, vi e. sivcoty yeai-s to Lanibai» im. vi c. 
ei^htie iwa year fong twelve years and ane 
lialfe W'ilJ extend lo the fH>tmie of twentie four 
tliousaod pound for which ihe generalls master 
Hinl other otHcers of the Mint ought to Ix 
I y able to hi'^ ma 'tie sin<^uti in ioiidum with tlu 
aVent yearlj after the first termes thai the soma 
became due. 

As also albeit it be contrary to the 
tnre of all mints thai any silver thats coyne 
should pass tbe kings yrons without ane esse} 
therefd iirsi taken yU it may be found of iinnei 
deliu^nible yet noiwitbstaniling the half of tha 
coyn or this kiugdome wilder the pretence of 
silver called elush heads sucips and scropes hetf 
beiii melted aud printed without any essey 
thej'oi taken soe that ther being two hundred 
sttms of hullione coyned yearly aud ane half 
y'rof coynied wiihoui aneeasey will extend to 
the wiume of sivenlie six thouj^aiid and eight 
hundreth pounds yearly wlitch from Caiidlsmis 
lin. vi c. sivenlie to l^tnUas Im. vi c. eij^btie 
two years being twelve years and ane halfe 
extends to tbesoume of ane hundred and sixtie 
thousand pi>und» which beitig coynied without 
ane essey as said m eontiscat to his tna'ties use 
and the ofKcers cd the Mint are lyable to his 
Tiia*tie lor the sanune sin^w/i ia niUdum with 
th« u^renl thei of yearly after the same becam 
due to hisma'tie. 

And in lyke nianer albeit by the eomou law 
and laws and acts of parliament of this king* 
doui It is expresly prnvydit that noe man 
should have ditferent weights and that the 
wsers of false weights should he severly pu- 
nished and for the security of tliii m eight of 
mony coynied in this kingdom his niaUie havo 
ing al waves a pyil of weights in Ihe cunzic 
bouse with which the olhcei*s of the Mini 
ought to have receaved in the bullion with tlie 
dean of Guilds weights of Edm burgh which m 
lour of th« bundreth heavier then the kings 
weightis ROC that (her being ane tbouiiiund and 
(i\e hundred stun of bullione receaved by the 
general! and master of the ftlintfrom the mar- 
chands to be coynied for his luaHieii wse these 
twentie ane yeara by past since bis maHies 
happy resturatione will extend to the aoume of 
fourlie thousanil pounds for which thtv are 
lyable to Ins ma'ttc &inguU in ioHdum with the 
a 'rent yearly frae the tyme the sameu becam 
due. 

And sickly ke the coyne of this kingdoms 
being cryed iip the probi of the exaltatione be- 
ing three sbimng two pennies upon the unce 
wbicb is fourtie pound ti^n sbilbng upon the 
stone will be upon four buudretb stoos which is 



I 



I 



187] 



94 CHARLES IL Proceedingi Mgaimithe E&rl of Ltuierdale 



eoynied for a year and ane half since the mony 
was cired up will amount to the soume of six- 
teen thousand and two hundred pounds and 
the profit of two huudreth stons lyin^ in the 
Mint the tyme of the exaltatione by the same 
rule will amount to the soume of eight thousand 
pounds for which they are lyable to his ma'tie 
with the a'rent yearly after the first terme the 
camin bpcam due As also the yearly interest 
and profeit any sing by the bullione payed in 
to the general Is and Mint by the marchanu and 
not eoynied within due tyme seeiig it appears 
by the books that ther was a'wayes three huu- 
dreth stone of bullion in ther bands yearly 
and not eoynied for the space of sixteen years 
ever since the year Im. vie. sixtie six that 
they began to coyne being twentie thousand 
marks yearly will amount to the soume of two 
hundred and therteen thousand three hundrcth 
thertie three pound six shilling eight pennies 
lor which they are Ivablc ' singiili in solidum ' 
to his ma'tie with the a'rcnt yearly at\er the 
first terme the saroen becum due. 

As also albeit by many laws and acts of parlia- 
ment of this kingdonie It is declaired that in re- 
spect the silver and gold put in a fire to be made 
bullione to other new mony is diminished 
wested and distroyed in the translationc by the 
fire and procures great skeaih and hurt of the 
king and his leidges Therfor it is statued that 
nethfr silver nor gold that bears forme and 
print of coynie be any waves meltetl or put in 
the fire by the kings *coyniers without speciall 
licence of the king but all gold and silver that 
is coynietl and lies print to be (»bserved and 
bolden huill amongst the kings leidges As he 
ordained it to have course and the contraveeners 
of the law to be severly punished yet notwith- 
standing the genenitl master und uiher officers 
of the Mint hath melted doun the number of 
ane hundred and iiitie thousand leg and rex 
dollers twentie thousand ducatdouns and other 
moni-'y by which a great part of the current 
mony ui the kiug<loine hes been wested and 
distroycd to the great ruiue of tred and impo- 
▼erishiiig of the kingdome which ane hundred 
and fiftie thousand leg and rex dollars and 
twentie thoiu«and dovcatdouns and other mony 
that lies hein meUed douu these sixteen years 
bypiuit will amount to the soume of fyve hun- 
dred and i'y\c thousand pound for which the 
ofiieers of the mint ought to be lyable to his 
ma^ie ' singuli in solidum' As also the said 
Charles carle of Lauderdale did receave twise 
payment of three years sallarie as generall of 
the Mint being four thousand and nyn hun- 
drcth pounds viz. one out of the excyse of Edin- 
burgh by a precept from his m*atie and ther- 
efter did most wnjustly take payment from sir 
John Falconer laite master upon his maHies ac- 
compt of the lykc soume for the said three 
years sallarie and therfor aught to make pay- 
ment to his ma'tie of the forsaid soume of four 
thousand and nvn hundreth pounds with the 
%*rent from the first terme after the said double 
piymeDt. 

As also albeit Um common law and acts 



[ISS 

of parliament of this ancient kingdom It is 
statute tiiat if any iudge or minister of the 
law take buds or bry bs they shall lose ther ho- 
nour fame and dig^itie and be oy'wayes pu- 
nished in ther persones fame and goods yet 
notwithstanding the said earle of LAodercfale 
ane of his ma'ties laite generails of the Mint or 
thesaurer deput apd ane of the com miss' rs of 
the thesanrie and exchequer who by his offices 
is obleidged to comptroll the master of the 
Mint his accompts hehaveing a speciall trust 
and sallarie from his ma'tie for that effect yet 
did take from the master the soume of six hun- 
dreth pound sterling as a wnder brybe to 
procure allowance and payment from the ex- 
chequer of his most wnjust and exorbitant ac- 
compts relaiting to the Mint and coyne pfre- 
ceeding the year Im. vi c. siventiefour staiting 
his ma'tic debitor to him in fonrtie tbousana 
pound Scots albeit his ma'tie was not due to 
iiim a sixpence but one the contrar the roaster 
and other officers ware debitors to his ma'tis 
preceeding that tyme in great soumes of mony 
upon the grounds above mentiond As also bj 
the common law and laws of all nationea tns 
illicitintrnnd extorting of lands and soumes of 
mony especially by a superior officer from 
these in office wnder him is manifest and gross 
oppresione and severly punishable Yet not- 
withstanding the generall of the Mint did rex 
and trulde John Falconer the laite wairden to 
call him befor the privy counsill wnles he 
would grant u band to Alexander Maitland 
counter uairden for the soume of twelve thoo- 
sand marks upon the accompt of third of the 
reme<lies that ware allcadged to be due to him 
since his entrie to his office which remedies 
did truly belong to his ma'tie Yet notwith-* 
standing the uairdin was necessitat to grant 
band for eliven thousand marks and grant ane 
dischar&re of a thousand marks which was dus 
to him for his iies And albeit the band was 
taken in Alexander Mait lands nameyetitappeirs 
to have bcin to the generails behott they h«iire- 
ing cau(«c<l wse dilligence upon the )>and and 
put the wairden in prysone whill he was neoes- 
sitat to compone and transact the same with 
the generails for the soume of siven thousand 
marks which was imployed and payed for ther 
wse and behoove And therfor the said Charles 
earle of Lauderdale Uicbard lord Maitland sir 
John Falconer Archbald Falconer Alexander 
Maitland and Mr. James Falconer as air to the 
sM deeesst John Falconer his father laite wair- 
den at least liehaveing himselte as aire to him 
by intromission M'ith his airship gpoils at least 
ex*er to him at least sueces^or to him in bis 
lands and hcritadges ' titulo lucrative post COD- 
* tractum debit um' at the least wniversall in- 
ti-omitter with his goods and geir aught and 
should not only be decerned be decreit of tli« 
saids lords of counsel I and sessione * sinffoli in 
< solidum' to make payment to the high the- 
saurer thesaurer deput and Hugh Wallace his 
ma'ties cash keepere in his ma'ties name and 
for his wse of the rex'ive soumes of monw 
rex'ivie above written due by them to lui 



189] 



htrt^fw Offieial MahtnaHcni, 



A.D, l68t. 



lor 

i 



Hi»'ti(^ lur tlie caiutGS rex^irie aboTe in«Btionecl 
mill of ihe a*reul9 therof of all byj^ines since 
tiic rex^ive tcrnics fthnve h%*\X duua tb&t the 
taitic bectmie flue to Ins ma' tie as afors'd and 
ynirly and temily in lyme romeing dureiriff 
xiw not payment tlu'rol' Hut also they haveing 
cuifiittiHl siu»ti itiai)iiV'!>t j»TiJHs ucts !i«vl uial^r-r* 
^ ' " to the Mint and iher 

J Mj^lit to be remitleNl to the 

iiti,,, .,, ^., ,. j^ »...Mn>^il or lonJ?« of iusticiarie to 
be punished' aocordiiij,' to law in Ther pernones 
nnil *:oods to the terror of otbei-8 to cotnitt and 
i\iHf the lyLe In tymecomringf As is alleadped 
aud aiirnt ihc chnL'^f ^/wrn to tiie said Charlts 
earleof Lau(lei> «| lord I^Iaitland hts 

•on gruemH oi i «if John Falconer 

Alexander Maitbnd 9k\u\ 3Ir. James Falconer 
eon h\\\ iiirt' to the toiid wnqMI John Falconer 
hi^ Ifatbcr at least bcbai^ein^liimselle ai aire to 
liirii or oySvayea reprcieuting him upon aneor 
oy' of too nas*ive titles above sett down and 
Archbatd Falconer defenders to have eoropeired 
befor the $aids IoiyIb at ane ceiiain day now 
bygnine to have heard and seen dccreit and 
sentence given and pronunced a^t them 
in mainer wnder written and tberin mentioned 
AS in the priutt sunionds raised in the «aid 
majtler at more Icnth ts contained The s'd sir 
George Mckenzie \\i^ ma'tiej^ advocat compeir- 
and pt^rsoually with sir Patrick Home ndvocut 
lor his nineties interetft and the miid Charlef* 
rle of Lauderdale and the bM Richard lord 
aitland gcnevulls of the mint X\wo of the s'ds 
fenders abf»>4-nanied compeirand be sir 
eorge l*f>ckhart sir John Dairy niple sir John 
IjHuder Mr. Walter Prinsjie and Mr. Thomas 
Skeen ufhocat^i ther proVs who produced in 
presence of the saids lord«i ane g-il^ and cnmis- 
sione g^ranteil by hisi ma^ie wnder hts httrhnes 

freal Heah to and in Havuurs of the sM Charles 
iaitland of Hatton (now en rle of Lauderdale) 
daitit the li>i.Hi. a^x iS ^^^'^^mYyet \m, \lc. 
•ixtie year - and ordaJniug- 

the Maid Ch ' :>!f thedayea 

•f hi«i [ift>^Tue ^enerijll or Mint and 

kffice of c<vvnii)L' \s\\\\ all ii ^ dijrneties 

privilcd|;i* nod casfialeties iJierto be- 

«m^in«^ an iini^^ione rrmrr fii*h" liearit 

witli ane other j^ifi uiid corni^- 
bis mn^tie wnder his hitfliofs «' 
the twentie third day ot 
9ixtte eitthl yrurs raliticiii 
. couiih^ioue ktid of ni'W m, 
latid ordaining: the sM \ 

ialtoti nty\ -•■ 'T Lnutl* » u.^n i 
Iklaitlund li Wfull son non 

Ifcnd and L>..., . *.,( "♦ -i -. .i...:^,.. ..ti 

ti»e dayes of ther 1 
nu^lii-H y\\u\ :i(id (M 

Itbch 

ndc;. , : . • ^ ^ ,^, . 

} extract forth of the books of privy a»un- 
of anc htjnd p*rantcd bp Ilavid e*rle of 

Kilii«lib ^ ' M GeAi*|;e lord 

•r K <;of BaJnunooit 

itr Ah'xiiodci . if flmikertouu 

iidiir^ilutgiiU- - :r Ibtfwf daitii 



dbe 

l^ted 

lui. vie. 

r rrift and 



m Uiriiiird 
lord Mait- 



titie sixt day ■ 



the fourth day of Augttst and twentie sixt day 
ol tlctoWr Im ri c. ihrelie siven years Wherby 
they are bound as cautioners and sorertie for 
Nicolas lir^at and John Falconer that the s'd 
Nicolas liryat and John Falconer shall fTaith- 
fnllie and trewly ererce the office of niastere 
ofhisma^ties conzic bonstc and shall loyallia 
ptrforme the duety incnmhcnl to ther ciiar^ 
ake will in what may concern c his tna'ties 
interest at the good "of (be leid^es And ia 
special 1 1 1 tat they i« hall make faith lull payment 
and delivciauce to the nmrclionts inhringers 
of the bnllione and forraigne coyne be ex- 
ch-iiH^L' i\i I tie stocks p¥en into thera by tho 
siM win his ma' ties coy ne in manec 

and . '.■ 10 the t>'me accustomed and setl 

donn by the orders of the cunzie house as th# 
s'd eictract wnder the hand and subscriptione of 
sir Peter Waderbunie ilsirke of the sM privy 
counsell bearing' the samcn to be reg'rat in 
the books of privie counfiiU u|ion the tenth day 
of J ally Im. vi c. siltly two years more full J 
bears Toj^ther with ane'act of parlian>ent daited 
tbetwelvth day of June Ira. vi c. lixtie ane 
years order! njr and ^ommaadins^ Charles Mait* 
land of Hattoa general I of his majesties l^lint 
in Scotland and sir John Falconer maister of 
the cunzte house joyntly and equally to coyne 
or cause be conzied in turners three thousand 
stun weij^fht of good peuther coj^per whicli waa 
to be provyded and iurnisht by the saids offi- 
cers equally betwixt them without any mixtur 
of brass and the samen turners to be of the 
same eictrinsick value the lastjurney of turner* 
was viz. ane turner weighting fine drop ano 
halfe (four grains less) of troyes wein^ht as 
the said act of parliament wnder the hand of air 
Archibald Primrose clerk re|reater Ivtars togi- 
theralso with anc act of hit*.toa*ties priry 
<!oiinsill daitted the twentie day of CIctobcr 
Ira. fie, sixtie three years ordaining the tw<> 
mark peices the one mark pcices and the balfe 
raark peices to be coynedin roaner therm spe- 
cified viz. to pass iii'li^^l.tncK-* through a mrlne 
to be ciitted by cutters to be troned weighted 
and justed pevce by pfi^-e and to be nrmted by 
peices that goes by swey and scrned and that 
the irapr^inone of the «iid two mark peices one 
itiark aad Halfe roarit peices bearc on the one 
syde luH maHie« fece and etB-^s cxprosi m the 
povnj«ihes thwn ment' And the superscrm- 
tione thenn exprest and one Oh^ other ^y^^ the 
coat of armes of Scotland witli ane eftcutchjon 
byitselfe in maner v'in specified «nd ordam- 
iiV the two nmrk peices to be ten deueirs thcrr 
teen jrrautis nvnteen proim^ and the woirht of 
H- . .. nrk peice of fyve denires mx ifittineK 
ant^ prouns twelve »cco!>d« atid \\m^ 
i^f thp half markepeice to be twodcntrrt 
crraios ten protmes eiq:htccn secoudt 
1 rvvitii three graines uf remedie iipof^ 

each t%vQ mftlk peice aise weillliKht a^ li^^f 
with two jjruifies of remedic ujwi eacli c 
mark poioe and half JJ^^ *W*** 

heavietJie saidjsspeci UiiMrttlwsyi 

troned weighteil and Jn^^l^ i^^? ^f 
as afbrs'a ir»d ordaining flit 



i 



191J 



34 CHARLES II. Procetdings against the Earl of Laudtrdalt [^19t 



mony to be of aoe exact finnesand aci*nrfIjii{^'to 
Uie trae stUndert of the kinf^dutne which is eliven 
deaires fynne out of the tire and two grains ot 
remedie ulse weill aboreas wnder as the said act 
of the dait forsaid ^rnder the hand and sub- 
scriptionc of Mr. Alexander Gibsone one of 
the clarks of secret counsell bears to^ither a^so 
with ane extract furth of the books «)f secret 
counsell of ane band <rrant^d by John Falconer 
son to sir John Falconer ane of the masters of 
his ma'ties Mint as princinall and James earle 
of Southesk Robert lord Carnegie Alexander 
lord Falconer of Hackerton sir Alexander 
Falconer of Chalilk Mr. David Falconer of 
Glenqnliarq*r as cautio'urs and sovertics for 
the said John Falconer daited the twentie two 
day of February 1m. Yic. sixtie four yeares 
wherby they are bound and obleidged con'llie 
and se^rallie' that the s'd John Falconer shall 
failhfullie and trewly ' exerce the office of 
master of his ma'ties conzie house* and shall 
totallie performc the duety incumbent to his 
cbarfi^e alse weill in what may concerne his 
ma'ties -interest as the good ot the leidges As 
the sM extract wnder the h^nd and subscription 
of Mr. Patrick Menzies ane of the clerks of 
secret counsell bearing the said Itaiid to be 
reg*rat in the books of priry couusill upon the 
twentie third day of February lin.\ic. sixlie 
four years l>ears And alse produced ane Report 
of the officers of his ma'ties Mint in the Tour 
of London to hir ma'tie anent the silver 
monyes of Scotland daited the twentie day of 
February Im. vie. siventie three yeares Item 
ane extract furth of the books and recorcls 
of privy counsill of ane order and warrand 
from his maHie daited at Whythall the fyftcentb 
day of May Im. vie. sixtie eight years pro- 
rogating the Coynes of the copper money till 
the first day of August Im. vie. sixtie eight 
years terminat And concloude<l probation an<I 
for the said earle of Lauderdale therin de- 
signed Charles Maitland generall bir' John 
Falconer master John Falconer his son and 
John Falconer wairden there further innur- 
radgement in his ma'ties service i*atitieing 
and approveing all and wliatsoever quautities 
of copper then already coyned by the said ge* 
Derail and maistersor that should becoyoied 
till the said first day of August sixtie eight years 
And bv the said ordor authorising the same and 
declaring the said ordor to be a valid and sufii- 
tient exoiKM-atione to them of ther wholl actings 
ip ther rex'ive offices anent the premisses and 
commanding theutid warrand or unler tobt* re- 
corded in the books of privy counsill as the Kaid 
extract wnder the hand and subscripone of Fa- 
trick Menzies ane of the clerks of his ina'tirs 
privy counsell daited the sixteenth day of Jully 
Im. vie. sixtie eight yeurs more fully bears 
with ane act made by the lord comibsiont r 
his grace and lords of his ma'ties privy cuiinsiii 
upon the thretie day of March Im. vie. 
nventie four years finding that the commis- 
Moners apfiohited by them for compairiog the 
haitl esseycs of silver witbia the cunzie house 
"d 4or Dieltiog all the sud ^ipey peaces of sii- 



ver and trying tlie fiiiness of the same have 
proceedit orderly and circumspectly with good 
deliberatione And allowing and approveing the 
report made by them theranentand interpoDiDg 
therautlioretie ther to and drclairing that the 
geiierall master coyncr wairden counter wairdeD 
sinker asscyscr and all other officers and werk- 
Dien of hismu'ties coyn/.ie house had dewly 
faithfully and uprightly wsed and exerced 
ther offices ilk ane of them for ther own pairta, 
con forme to the acts and ordinances made ther- 
anent in all points and exonered them ami 
every one of them for ever as the said act of the 
daitc forsaid wnder tiie hand and subscripone of 
Patrick Menzies dark of counsill more folly 
bears Togither with ane other act made by tlie 
lord's of his ma'ties privy counsell upon the 
twentie fif't day of February Im. vie. siyintie 
fyve years commanding tlie said general! master 
worker the wairden essey maister compter 
wairden the graiver and other members of 
his ma'ties Mint each of them in tlier aeyerall 
stationes and diarges to proceed to the working 
and eoyning of the four mark two mark one 
mark lialfe marke and fourtie pennie peaces 
according to the tcnnor of the wamuMl moi- 
tioned in tlic said act And that the sinker or 
graiver of the Mint doe maik graive and sink 
yrones agreeable to the circum8cri|itiones anA 
impressioues of the severall spedes theria 
mentioned withall dilligence wheranent the said 
act should be to the officers and aJl others 
whom it concerned ane suffitient warrand as 
the said act of the daite forsaid wnder the hand 
and subscriptione of Patrick Menzies ane of 
the clarks of counsell more fully bears Tog;ither 
also with ane prot^lamatione containing bis ma* 
jefnicjs gracious pai done of indemnitie daited at 
U indsor Castle the twentie siventh day of Jully 
Im. vie. siventie nyn years togither Lyke« 
wayes with an exlioncn^tione siipersCTyToi 
be his ma'tie and subscryved be tlie duke 
of Lauderdale secret'\ric dcclairing command- 
ing and ap;»ointing ilie coynings of all cop|ier 
money in six pennie and two pennie peaces 
within the kiiigdoine of Scotland to be at and 
upon the tenth day of February Im. vie. eight* 
years terminat and concluded pro hac yice and 
for the said earle of l^uderdale therin de- 
signed Charles 31aitlan(i ^^laicrall sir John Fal- 
coner master John Falcon .-r and Alexander 
Maitland wainlens of the said mint and ther 
sul)stiuits ther farder incurradgement in hv 
ma*tit*s service His ma'tie by the said 
ratiticd and approved all and whatsoever <_ 
titles of cop{>er then already coyned be the i 
generall and maisier since 'the tirst day of May 
Im. vi c. siventie siren or that should l>e coyned 
till the tenth day of February uixt thereftir 
Im. vi c. eightie years authorising the same aad 
dcclairing the said writt to be ane valid aad 
sulHlient exoneratione to them of ther wholl 
acting in ilu^r rex'ive offices anent the pn« 
misses and farder commanding the said writt to 
be recorded in the books of privy counsill as tha 
samen exoneratkine daited at Whythall tiM 
fourteenth day of January im. fie. 



and&thei'S.for Offtcial Mahtnaiionn, 

TCflfs recorded in the bonks of privy couiiRill thrsniffT 
n^ n Hclivprftnce n\vw (he back Vf*of upon the 
•ivcatrenth day ol F*Miruflry Im. vi c eightie 
\eiin* «nd aue net extra citni ifwitipon wmk*r the 
nand and suNscriptione *d'Mr. Alexander Gib- 
■one cirrk to ihe privy eaun^ill tot* tliu tyme 
beans Toffither nfso Cviih one proclaraatmne 
conceruin^ llie coyn daitcd i\\v. fifth day of 
March uii. vi c. eii^htie one yeani ordaining 
und ''■-'' in.r that m tyme y'rafterthe nnce 
of I iihl he ill value ihreejiound four 

^li I : mooy aod for ibnt eifect ordnin- 

the four niarU peit*es which then ware 
at fitlie fhrcc sliilllnp four pennies 
should hi» current iherafter nt tiAie aix sluUin^j 
and the inferior specie? uf thnt'COyne pmpor- 
tiontahlc us the s'd proclamalione of llie diiitc 
loused more fuJly henrs And the »aid sir Jcdm 
Falconer compeii-and lie Mr. George Uftu- 
nerinan und Mr. William Flcicher advocats 
his i^ro'ri* who produced in preseure of thesaids 
Jordsi nnc gift grantei\ he liis nia*lic wnder the 
the priry seaM to and in fivours: of thcfiM 
air John Falconer daitcd the last day of l}^~ 
.-,.., J, r.- ini, f i r. and sixtie years ratificini'' and 
w)^ two former Fifls jcfranted hy his 
... i .iher to the said sir John of the office of 
master of the conie house of Scotland in swn 
far 05 concerned him in the hutli tcnnor and 
contents and of new piveing and cranting" to 
the s'd sir John Falconer and after to hi* de- 
ceSse to John Falconer his son the gM office of 
ii!B<?ter of hf'« Ttm'tie* coynic house In the 
^md to he eflTCeii hythem 
:tr anc other dureing all the 
^uycs ft iliiji' liletyme and lo t'ue lonjjent Ijfcr 
o** them tvro tis the sM ^if\ more fully l»ears 
And the sjiid Mr, James Fal< 
}*en»onalUe who d eel aired he 
Archbald Falconer and M - 
other defundcTif Him >; 1- 

lepionaof all the smf. ,^ ; -^ 

it;in! is wriit^i abovL iccil by them 

Alleadgtince* and r« V ex'ive made 

and projHjMcd for tliem in maner wnder written 
rrptvrs d'tplyes triply es <juadrt!plyc» qunio* 
/ivi? wilder \% fitten made therto witli the 
umniondi comptccmpt hook^i missive 
IrtK't:* ctmlracts hands tickets aod'wy' writts 
atW mmtioof'd pmiUiri'il ntul d^ |"i*Ui'»nes of 

A 

nJt^Hiu \\\ II iogiiiier 

M ith ihi: eirt I me against 

lll«. ...k ,1.. ..y..:rp upon 

tht ttecf to 

th nrctll 

!ie 

ry ply ativyned liie iiaKU lonis of counwll and 
a«-«naiie decern en jiiid ordtnTtr-; the snid 
Charle* carle of Lauflerdak' ! id 

Mr, J amc« Falconer as repi mI 

deeeist John Falconer Initc v. ;ardcu hif» farther 
Upon anft or o^ of th»* paKHiv** Itllps ahoip 



A. D. JG85. flOl 

John Drummond of Lttndie hi$ 
ma'ties rhe^aurer depnt and Uu^'h Wallace bit 
ma'<i«.-<t ea«th keeper for his highnc«*?\Tst* nod 
lirhove uf the fiounie of twentie shill 
of free profeit upon ilk ptnmd ot 
thousand Rton of copper Wfnlk thcsfiuN lortU 
ffinds to l>e coyned he the saiil gcneraU anil of- 
ficers of hiK UKi'tifs mint in ine tir^' r 

jurnay more nor was i\] lowed he ttie 
extendioHf to the soume of two hnudrti V, , ,» ^ ,,. .^^ 
four thousand pound** Scots mony and alsethe 
■aids lords deceniit .in.f mriniu-t the saida 
Charles carle of I liard lord 

Maill and general Is mi . ritasii r 

Mr. James Falconer as n f 

deceist John Falconfr his ; t 

upon ane or oy' of the ; Is above 

mentioned and Arehhahl 1 - so counter 1 

wairden definders (whom the &;iitis lords (indi 
Tyahfe ^ ^in^ulos in fwiidum^} to make payment 
to the saids lords high thesauror thesaurer de* 
put and cash keeper alcove named for hit 
rua'ties wkc and hehoff of the 5:oume of twentit 
?fh»llmc Hcots of free mony upon ilk pound of ' 
fyvethoii«anil four hundreih fourtie lour ston^ 
ol' ropf>cr Whilk the saids lords fHndt more nor 
was allowed he the M' a rrand«i the second copper 
jurnay befur the art of indemnitie extending Ifi 
the soume of eightie Rivcn thou^sand oyn hun- 
dretli and four poimd Scots mony with threltt 
two shjlliner Scots for ilk ))ound of three Ihous- 
antl nyn hundreth nyntie nyn slon of co^pef 
Whilk the Baids lords finda to he coyned olW 
the act of indemnitie extending' to the soum# 
of ane hundred and two thous^tid threi 
hundreth nynti« eight pound cig-tit shilling 
mony forsM And lykcwayirsto make uayitioMi 
'^ ' fiaid lord hig^h th e Jan rer lord the?saaref 
and ^a^h keeper nbore nametl of tht 

.'t' of nvn thousand fyvc hundreth threttt 

two pound lour shilling- Scots Ar the ditferenet 
found be the «aids lords of Uie finnes of tfjt 
mony coyned be them from the fi noes of tht 
indented atmidart plate appointed bt* his ma^tit 
from February Iro, tJ c. ku ventie lour lo Au- 
trust 1m. vi e. ei^htie two years and of tht 
Boumeof ane hundreth fourtie three thousand 
siven hundreth twentie six pound mony fors'd 
a» the value of ane hundreth and eig^htie lwt» 
j St on two nnces'two drops of ClusitcHs headt 
tweejis and scraps Which the saidii lonls flindt 
to be coyned he them without any nssey since 
the act wf indemnitie and of tlie souniu of 
fyve thousand Ihree hundreth eighlic six 
fKiuutl mony forsM as the profeit arysioif hy 
the difference of the dean of Guilds \vci|t,diti 
made use of by them from the Scots jjyll %<ii%i 
doun hy bin maHie and of the soume of si^ 
thousand and six hundreth pounds fot tlk; re* 
medirs of weight of the silver coyned frorif 
rhe fjr«t day of 53eplemher Ihk viC. seventi^i 
three veers' to the first day of Sej^temher 



Im. vi c* eightie two 
maintT the itaids loni 
RHtd C 'Imi-h-H V7\v\i of ' 



\'tMjr'* and 



m fykt 
laini the ^1 
itanl tor4 
ih r laif 

-oK:tuU\* 



lUl., Af» 



i} 



\ 



34 CHARLES II. Proeeedmgi Mgaimi the Bnrl ofLamierdak [196 

tterliDgr contained in the ticket g^rantd beiir Jobs 
Falconer to liim with thea'rentstberof firom the 
first dny of January Im. vi c. sixlie nyn yevt 
extending to eight thousand nynf hinidreth 
tiventie eight pound mony fbrsaid And tht 
saids lords have remitted and beirby remittt 
the second article of the forsM ly beJl mnent the 
twelve shilling upon the unce of bullione and 
the eijght article anent the profVita arryiiDg to 
the king by the bullione given in to the offioen 
of the Slint yearly and not coined to the lord 
bight thesaurer the officers of the Mint beiog 
rcgullarly and in course lyable to oompt to him 
for the samen And als the s'ds lords have as- 
soilzied and lieirby Sbsolzies the said Ricfaaid 
lord Maitland and sir John Falconer ffom the 
points of the fors'd lybell in so i'ar as coBoeniCi 
the first copper jumay And assoilzies ij» s'd 
lord Muitland from the a*rent of the kingf 
stock of twentie thousand marks and the 
annual therof for tiie years preceding the twentie 
third day of September im. vi c. sixtie eis[bt 
years and lykewayes the s*ds lords aaeolnss 
the s'd sir John Falconer from the s'd a'rent 
of the K*d twentie thousand marks and an- 
nual Is thereof for the years preceedinff his 
entrie to the office of the master of the Slint 
And in lykemainer the saids lords have as- 
solzled and heirby assohues the haill deleiidcn 
above named from the a'rents of the souma 
above decerned except as to the a'rent of the 
s'd stock of twentie thousand marks appointed 
by his ma'tie and four thousand nyn hundreth 
pound of douUe payment and the six hundreth 
I)ound sterling contained in sir John Fakouer 
ticket to the earl of Lauderdale and decencs 
and declares the s'ds defenders quy t therof and 
free tberfrae now and in all tyme cominff 
Becaus the tyme of the first calling of the s'd 
action and cause in presence «f the saids lords 
the said sir George Al'ckenzie his ma'ties ad- 
vocat and sir Patrick Home advocats for bii 
highnes interest haveiug repeated the Brsi 
article of the fors'd somonds bearing that albeil 
by the comooe law and laws of all nationes the 
coyning of mony without warrand is dis- 
charged especiallie copper or black mony and 
by the laws of this kingdome and particaHaii|y 
by the eighteen act paiTiament the third king 
James the third and that tlie kinss ma'tM 
haveing since his resturatiun granted wanand 
for coyning of six thousand stone weight ef 
copper at two severall limited tymcs Yet tka 
generall and master and other officers of tha 
mint have coined iburiie thousand stone weighs 
of copper and every pound weifirht of copper 
haveing yielded to them thrcticvix sluUiitf 
Scots of advantadge they most be lyabie 
*' singuli in solidum' to refound to the king Ifaa 
some ly belled and declaired his ma*ties ad* 
vocat insisted tor the fors*d the thretie lonr 
thousand stone of copper coyned by them si 
the tymes above mentioned more nor the siS 
thousand ston allowed be the warrand extSBd- 
ing to nyn hundred seventy nyn thousand wmk 
two hundreth pound Scots Against wbioh il 
wasallesdged by thss'dearle of LsuderdalsaaA 



195] 

to make payment to the said lord high the- 
saurer lord thcsauier deput and cash keeper 
above named for his ma'ties wse and liehoove 
of the soume of twelve thousand three 
hundreth sixtie eight pound threttin shilling 
four |)ennies Scots mony as the profeit of the 
cxalta'ooe by crying up of the mony arrysing 
from the bullion payed in by the marcnands 
since the daite of the proclamatione and not 
compte<l for And als of the sonme of twelve 
liundreth twentie eight pound tberteen shilUng 
tour pennies Scots as the profeit of the exalta'one 
arrysing from the bullion and current mony be- 
longing to bis ma'tie and lying by them 1 he tyme 
el' the exaltatione And lykewayes of the soume 
of fourtie three thousand two hundreth uglitie 
six pound Scots as the twelve shilling upon the 
unce of two hundreth and eightie ane stone 
twelve pounds fyfU^en wnces and ten drops of 
doUcrs and doucatdouns meltcil doun from the 
siventeen day of January lin. vie. slvenlie 
throe y cares untill the first day of January 
Im. VI c. eightie two years And lykewayes 
the saids lords decernes and orduines the saids 
Churles carle of Laud(^rdale and Richard lord 
I^Iaitliind generalls and sir John Falconer laite 
master of his ma'tics Mint sin^ulosia solidum 
to make ]mvment to the said lord hig^h the- 
saurer lord thcsairer deput and his ma'ties cash 
keeper above namc<i for his uisiHies wse and lie- 
hoove of the value of the ordinary a' rent of the 
fors'd soume ofiwcnlii* thousaud marks allow- 
cil and payed he Xxva inu'lie to the saids generall 
and maister of the jVliut I'or buying in of bul- 
lion (und which uas not accoirdlngly done) 
and of the ainniul oi' the aVentpro ra/a as 
followes viz. the said C'liarles earle of Lauder- 
dale of the said aVent of twentie thousand 
marks and aimiiall for the said a'rent yearly 
aUer it becom due from the year Im. vie. 
six lie two yearK And that the stock was ap- 
pohited by his ni a' lie untiU September Im. vie. 
eightie two years extending to the soume of 
twentie lyve thousand six hundreth pound 
The said llicbard lord Maitland the other ge- 
nerall of t])e Mint of the said a'rent of twentie 
thousand marks and a*rent of the said aren't 
yearly after it becam due since the twentie 
liiinl day of September Im. vi c. sixtie eight 
years that he rceeavcd his commissione And 
the said sir John Falconer laite master of the 
samen a'rent of twentie thousand marks and 
a'rent of the said a'rents aller it becam due 
yearly since his entrie to the office of the 
master of the Mint Ami als the saids lords 
decernes and ordaines the saids Charles carle 
of Lauderdale une of the saids defenders to 
thake payment to the said lord high thesaurer 
\o\\\ thesaurer deput and cash keefier above 
named foi* his niaHios use and to his behoove of 
the forsuid souiue of four thousand and nyn 
humlreth pounds rceeavcd be him in double 
payment of his said tliree years sallarie with 
the value of the ordinar a'rent thcrofi'forsaid ex- 
tending in all to the soume of siven thousand nyn 
hundreth twentie ane [lound ten shilling Scots 
And of the forsaid soiune of six hundreth pound 



fffirf other $, f&r Offtdal Mi 

lord Mnitlflmi iher pro'n* above nnmed Primo 
tfiat thcr coiilil be tich* proc*'a snstained a^H 
ibe lord Mailland bccaus he b^ing out of the 
tdogJotiTe itii* t^rnr of ilif* raising of the 
■mnomh was cpitleJ upon siitie it;tys atid ihe 
rfny of coniperranee> is not yfteome Ami for 
the carle of Laiiderdiile and oy' dci'tndm's 
*l»<j\i , , " ' _ ihequantiHr ^ ^s 

<if 1 lit iiiPiistt'd I ^d 

thhi i'nv lit/itrnii rs iMJ:;iiL tO lit ASSwI/^uni i ninO 

becatis the act d' purliament founded one dis- 
ell«rg€tonly thecoyniiig of black money hy pn> 
▼at pH«one$ or incorporations the same havting 
been practised by some touties wlierof ll»er aie 
peaeea yet extant And iJie act was made for 
tlie remedie of (hat abuse aod wat intended in 
fftTOurfl of the officers of the Miut and not 
agaiati them and it can not be instanced that 
ever Ihe officers of the Mint ware called to 
queatiotie for auie qiiantitias of copper co^ ntetl 
nor did they coHipt tor any pro6t and eicre^ 
of the copper coy ned the same hcinpf alwnyes 
l»ooked one a perqniffft of Iher ot" mIo 

Ibe king hes gra ntcd exonerations '■ - 1 * 

TBllanifoy* officers of the Mint inru fn the 
first copper jariiay and the second Terlio Uie 
defc^n are sccnretl hy the act of iudemnifie 
siTentie nytie wherbjr not only these are in- 
dcmoified who ware in the retiellionc hm alaoe 
allperaones tn pdhlict tru4 nn to ther tnalver- 
sationes or roisdimanrs and any persuit a^inst 
them aither adrendictam pubhcnm or priiraiaiti 
is di^har^ To tvhicli rt wus n^plyed lie the 
said sir George M'Kenzie his ma^ties adrocat 
and sir Patrick Home advocat for his highnes 
mterest perse wers that his maUies adrocat 
insists primo loco agH the earle of Lauderdale 
and the other defenders called and as to the 
I other allcad^ances the lybell stands relevant 
notwithst ' " 'icrof Becanse :s~ ' ■' '^rst 
alled|[rea;, wer and priviU n- 

ingbint^. ,,-.4,.,iand the same ,- ^. ^,^1-^1 
lin|>orlaiice both as to the kin? and the sub 
jeclA atid the act of parlia't niaks uoe diNttBC^ 
tionc hut generally prohibits the coymnsj of 
black money without warrand And it is the 
publict interest of the kinLfdome the cop(»er 
mony should not he coynd hy the officers of 
theoffictirs M' tlie Mint at ther pleasure seeng 
by hovi^ much hiack tuoney is incresed so far 
l^ttlie !(tlvcr coyo shbaited and it wold be of 
JBfctter danger to allow hbertic in this to the 
i^Dcers tif the Mint then to other persones 
who wmler that pretext alight coyne alse 
I much black mony as they pleased to the pre- 
judice of tred and riiiue of the countric And 



it is a fVi 
act of* I* 
or inctK,.-. 
filQiiv ieeng 

simpV and -. 
far*! 

Ttni:' 



..11.--r|; 



c that the 
tiu to toiuii 
t o yne black 



nig ot black mony is 
I it ^c barged And a* a 
ers of the Mint 
;. wahoiii unrrnnd 
'Ulehtm^elte as gene rail of 
lire iitie act of parliament \u 
the year iin w c. sixiie aue to warrand him 
iM tb« i€$t^t ilie olBccij of tho Miat to coync 




three thousand stone of eop|ier the first eoppef 
jurnay And ane act of Cfiunnetl tn the year 
Im. VI r. siventie three ior coyning other three 
thousand stone the second coj^er jurnay Ani( 
it can net er be instructed that ibe li»nner otfi- 
ceriof the Mint did coyn anie coper wiihout 
warran^l and the reasonejs why they **are 
never petsewed for l. ' i ' ruid*- 

beeaus they ware al« ; I dul 

not betray ther trust nuii amuhL-ii tin uhilj and 
cuutrev bycoyning of moiH? copper mony then 
was allowed by the warrantlt* as the la do 
olHceni of the Mint hes done And efco tho 
former officers of the Mint dii) not pretend to 
hare tlie benefite of the copper coyne a* 11 
pertiulslt of ther office hut only by a parlicudar 
allowance or donatione from tlieltinsj And ih« 
earle of I*auderdale himselfe knowing that the 
copper coyn was not a perquisite of there offict} 
he proci»r<^d n particuUar gift from ihc king of 
the lienefite of the ane halfe of the copper tha^ 
was allowed to be coyne<l by the warrandd 
And Ihcrforthe 'I" ' in swa farr as ibey 
liavc ex'ceedeil 1 1 1 I > aught to he tyabtu 

to the kin^ sini^uii lu ^uHiium and cannot be- 
long to them as a peniaisite of ther office Ami 
as to the second alleadgance founded upon the' 
e.vonerntiooes it was replyed that the exoner- 
ation es cannot liberal the defenders from the 
abuise and mahersatione committed tn re- 
latione to the copper coyne at the last as in 
what was coyned more then what wa« al-» 
lowed by the wanauds becaos the exonera- 
lioncsrelats to the severall warrands grantetl 
for coynifig of copper money the ane in the 
year 1 m, vi c. and sixtie six years and the 
other in the year Jm. »ic. eigbtie years thd 
first in the ^id year ]m. %i c. sixtie six re- 
lailttig to the act of parliament in the yeare 
Im. vie. sixlie ane for coyneing" three lliou- 
s&nd stone of copper and flie other in the s*<f 
year Im. vie. eightie rctaiting to the net of 
codnsell forcoynmgoy' three thousand stmte 
And albeit his ma'tie did nttit^e atid approve 
the quanbties of copper already eoyticd or that 
should be coyned betwixt and the day theria 
mentioned and exhoner.'i the officei^ «i* the 
^fitit of ther wholl actings in iher rex\ve 
<»i i! the premisses Yet thai cane ntily 
U Hid of the coyningof the qininUtic' 
of coppfji" contained in the acts and warrand* 
grantef) for ih»t eHeet to which these warrand* 
«l ' :ie hut can never be ex- 

ti rat them from the abuise 

uiitj HI tiiLoauntiev Lu coyning more co|»er 
mony then they ware alloweil and which is soc 
liirr contrar to h' -t--t'ft of the great pre- 
judice thai the ' uiint^ by soe much 
copper mony i-. l . „_^vJ by many acts of 
parliament even wnder the paiue of death And 
u is %ery wei 1 knowen to such exoneriiiionei 
tmiy Iw* procured upon a mi«rcpreeieniati<uie by 
the laws and customs of all uattooes nf»c i^ucn 
gilts of exonerate one are sustJ«inf>d * nise pre- 
♦ ii('n veritate in tanium* and therfor untetf 
t t.vtioneM did bear exprcstj tfae 
ti ocaand mftlversaitiuiiei 



J99J 



34 CHARLES Li. Proceedings against the Earl 0/ Laudardak [100 



Aud that Aoiwiibstandint;^ tlie kinffs ma'tle 
had exoDred them * ex certa scientia' no such 
gtineraJi exoneratione cane be sustained to up- 
perat any furder then to exoner thein as to 
ther acting in relatione to the six thousiand ston 
allowed to be coyoed by the warrands And in 
the caise of sir Walter Seatoue uho was lurks- 
ruan of his nia'ties custonie house ulbeiihe hade 
coupted to the excheqV and obtained ane exo- 
neratione and discharge from the kiujr under 
tlie great seall yet therafter beiu^ called to ane 
accoiupt by vertue of a cumissione from the 
Kiu^ and it being found that the king was 
prejudged in the accompts made notwith- 
»ta..(!iijg of the dischargi' he wtxn necessilat to 
pay in to tlie king fy\e thousand pound sterl- 
ing At nhich tyiue the lord thesr dejmt 
in as sent ns ane of the commissionevs and this 
same defence being proponed before thecom- 
uiissiouers appointed by his ma'tie for tryall 
of the Mint They jTand that these exonera- 
tionesdid only relaite to six thousand stone 
which was allowfni by the acts of parliament 
and counsill to be coyned within the ty me con- 
tained in the war rands and prorogationes 
nien*t in the exonerationes And therfor was 
not ane exoneratione as to what copper was 
more coyned then the quantities contained in 
the warrands to which they particullarly re- 
laite as appears by the report which is ap- 
proven by his ma'tie And as to the third al- 
icadgance founded upon the act of indemnete 
it was replved that the act of indemnitc can 
oot secure tnc officers of the Mint agaiust the 
abuise and malversationcs committed by them 
Prinio becausit appears by the narrative of the 
act that the occatione of the makein^ therof was 
twofold ?iz. The tresonable prinri|des of some 
pcrboncs ag't the goVinent both in church and 
state and the rebellions and disorders that enswed 
u)>(»ii the same one the auc hand and one the 
otiK r tlie hiimorons factions of discontented 

Iinii.Lcs uli:» wndcr the pretence of gri^auccs 
jaii i;iisi-c;»ri'senlcd the pnblict judicatories 
and hail tlicrby waikueJ his rna^ties aiitho- 
retie reiirchcuted in the same and that his 
ma' lie was gratlously pleased to reclainie and 
M'cnre both TliHrforhis ma*tie u\m\\ the nar- 
rative forsM allenarly doth by the sM act 
seciirr btith the persones dissatislied to the 
govortnriit and the governors and ministers 
uud«.r lii-> ma^tie in iiiuiner tl.crin mentioned 
And Ivkwayes doeth indcninilie and secure 
bis ministers and pcrsoucsinti'iated hy him in 
relatione to any tliiu^ (lone by t!iem in his 
majesties service and |K»rsewanee of the same 
and asserting his ma'ties authorety as appears 
Inith by the <«M act and a pap^r printed about 
til at t/me intituled The Narrative ut his 3Ia'tIos 
IVcceediiigs and Privy Counstilj I'rocccdini'b 
in Scotland whitih bcHiir the only rl .i^i^neuf the 
fc'<f:ictaud hisnia'tieiindthecownov'! i.avin;: noe 
iithtr thing in ther conteinplaliune it is wnjnst 
and inconsistent with hunour ofthe counsell 
afid ciiunselloi-s that it should be strcached and 
•xtt'iided to any othi-r crymcs and deeds that 
i^u nut bti kaiJ to havti baeu done upon gcca- 



slono ofthe ti'ubles and out of zeal! a^ost dis- 
satLstied persones for mantaiuing hia maUiei 
authoretie and which he liad connexoue with 
or in relatione to the trublcs But by the con- 
trary was done against his ma'tie and to abuise 
him wnder trust such as the malversa'uo in 
the maitter ofthe Mint which being a part of 
his ma'tes stock and soumcs for defraying the 
necessnr chargts of the ^overment it at any 
tyme aught to be most faith fullie and honestly 
manadg^ in tyme oftrubles And therfor the 
statu torie part of the act cannot be extended 
beyond the narrative and premiss* thereof 
which was the causa inductiva of his ma'ties 
granting the act of indemuitie 2. These words 
that persones in a pnblict statjone and trust 
should be indemnified and generally all such 
as are lyable to any pei-suite for any cause or 
occasione relaiting to aniu publict adraiuistra* 
tionc by contriveauces actings oppositiones or 
oy 'vvayes preceeding the daite of the s'd act ar 
< verba hanonima* (sic orig.) and such wohli 
aught to be interpret and restricted secundam 
subjectum (sic orig.J materiam And therfor 
seeng in the latitude of the s'ds words they may 
be comprehensive of sh'rifsshirriff deputaclarki 
comissars and all such persones ^fhich cao not 
be denyed in some sence to be in publict sta- 
tiones and trust And it ware absurd to say 
that such persones were indemnified for tber 
unfaithfulness and malversatione in ther sta- 
tiones and trust the saids words cau be na 
waves understood but to secure officers of stale 
andf such persones as are in ther statiooe as 
counssellors and officers or as members ofthe 
armey be questioned as haveing an^r wayes 
overacted or done amiss in the tyme oftrubles 
out of zeall and for promoting his ma'ties 
authorety and service As also persones in 
publict trust according to tlie ordinare accep- 
tatione of the word are only to be wnderstood 
such as are under his ma tie and his interest 
and trust in the adininistrationc of the gover* 
inent of the kingdonic civell ami militarie as 
the judicators aud specially the counsel! and 
ofiicers of state and commanders of the 
forces se^ng such persones lies only such 
publict adininistratione as the interest of his 
ina'tic and of the wlioU kingdome directly 
and immediately and vet the officers of stals 
who are indemnified by the said act as to ther 
publict actings in capacity of counsellours ars 
not indemiiilie<i as to ther privat actings and 
malversations if they ware guilty of any relait- 
ing on lie to his ma' lie and not to the trubles aod 
publick And it cannot be said that either ih$ 
commissinnei-s of the tliessaury or thessaurer 
depot or sir William Sharp cash keeper or any 
haveing interest in the Exchequer are by th9 
act of indemnitie secured and exempted from 
counting and nialversa'one in their trust if 
any should appear S. The act of indemnity 
bears this express clause yt' it should not Iw 
extended to such crymes as never wses to hrn 
comprehended under generall acts of indenmitM 
But 80 it is the crymes and malversationcs com* 
milted by anio of the kings servants and offi« 



301 



and otktrt.for Official Matetrsationt. 



A. D. 1682. 



laok 



cert eepeciiJiy in relutJoDc to hib iii&'ties re- 
Teuewes aud jmhlicl moucy such as the Mint is 
are not in wse lo be conmi ebemleil under ilie 
acts i>i* mdetunilie For tlie act ot'obliirione and 
iiid^mnitie by kin^ James the fift parltanieni 
MJCt caput iiyntie two and act wf tndeinuity 
be ijueeu ^\\xv'y paritameDt Dyiilh cliapler tbe 
maventbb !»esivt^u reloits oufy to crymes ca- 
uiilted dumu^ tUe truMes in the counirej and 
rttK'lJionv but not at alt to abuses or iiiahersa^ 
tioLies cunintttterd by the kin^s ofiicers and ser- 
Yttntsiti tyuitf of pt^ace especially in relatione to 
I he kint^ s nvenew publict mony or wbut con- 
cei'des the ^lint And the laU act ot'indeinnitie 
in the )ear Im. vi c, sixiie two bears aoe ex- 
press exct:pttoue of all publict moneys iutro- 
milted *^ itli he any of his majebties officers tor 
whii'li they bade not dweiy counted and re- 
ceared discbarg^es tlierrif by such as pretend lo 
iiare authoriiie lor the tyme to doe the same 
J^y wbich it Is evident that the crymes and 
DialversatioDcs committed by any of his inu'tie!« 
ijtBcers or servants in relaiioue to bis 4na'lies 
rcrenncij and publict nion) such as the 3Iiutis 
are never comprelif tid it wuder the general I 
acts of iDdeninity whtch doe only properly re- 
laite to the trableii in the cuntry 4" The s'd ac-t 
of indemnity as all former acts of indetiiuity 
bears ane express exceptioite of all privat 
crymes and albeit ilie officers otthe Mint may 

{jreteiid to be pei-sones in publict statioties in a 
airge sence au all persones wndcr his ma' tie may 
besMas customers collectors and such Ivke 
yet it can not be said to bo in a publict statione 
relaiting- lo the government and a pnhhct atU 
inini^rutionc of the kint,^dome wnder bisma'be 
and to have been persewein^ and promote 
ting his ma'ties service is onlie meaned and 
Intended bv the &M act seein|; the said Mint 
and Mini house and officers^ of the same does 
not properly and imcdlately conceroe the 
|yovtrnmeut but only consequentially as to 
ult bis lua'ties other concerneti for it is a par- 
licnllar interest of his maHies belonging' to 
hltn by his prera|rati¥c and the officers therof 
iher malversaiiones in thtr respective stationes 
are not malvej'sutiones in any publict statione or 
trustor admini^tratione belont^in^ to tlie wholl 
kin^donie but prirat delicts ami such as have 
no relatione uather to the government but con- 
sequentially or to the trubles soe that they 
irould have been vvbitlter tber bad been any 
Irnbles or not and ci^nsctjuenlly as to all other 
privat crymcs which are not occasioned 
by thy trublts was ever excepted out of acts of 
iiidemnitie And in speciall out of the %\\ kite 
act the ireacbcrie and malvcrsatione of the 
officers of the Mint in so' sence reasone or 
justice can be tbou^lil to be iudeniifietl y'by 
5to The same defence being proi>oned by the 
officers of the Mini befor the commi^ione'rs ap- 
pointed for tryall of the Mint a^ to wbicb the 
(;i>inmi«^ioners ware of tlie oj^pinion that the 
act of indeinnitie being only ^raatcd to those 
that bad acted in or against the publict gover- 
itient of the kingdom and not the deeds of mal- 
tarsatione in iny pirlicullftt or pecalliitr statione 



ubicli hade no connettione with of in relation© j 
to the trubles or disorders of the countrey iik I 
maitters relailiu^ to the publirt govermeat of] 
till* kin^dome as ap[)ears by the report whicU I 
itt appro yen by bis majestie H herein lo if waft J 
duply ed by the s'ds earl of Lauderdale hiftl 
priors above named that this proces is not onli« J 
of great mifiort as to the p«i^sones ccnreene4;J 
but also as to the preparative if the kings re«' 
peaCed exonerationes and ane act of iodemottjT ! 
doe not secure persones in publict offices as to^ j 
tlier maber£atioue in ther offices Ami ss to tha] 
act of parliament founded one Anss^t» it con> 
c ernes not the subjt'ct of this article for Uie 
was a kind of black luony which was not [ 
per money 2o Albeit the act ware to be wnder* [ 
stood of copper nioney yet it does not eoncerD# J 
the officers of the Mint who are the king« w&rm\ 
vunts in that office hut only pri vat persones oiij 
incorporationes co>iitn^ black moiiy without f 
warrand as is clear from the words of the ac^j 
and from custome which is the best interpretee ] 
of the law For it cannot he instanced that anyi I 
officer of the Mint was ever drawne in ques-»^j 
lione aither as to a civell or criminall effect for f 
exceeding in the qnaotitie of coynadi^^e And; 
the fors'd act of parliament graufs power t9 j 
shirriffs to coovecu the transgressors beibc 
them which inaks it t*vident that the act is i 
applicable to the officers of the Mint and the 
Mmt of this kingdome is also exact in its con* 
stilutione as in any oihcr nation for tbtT artf J 
juruayes made of the silver coyn ;uid accump%] 
made therof lo the exthcqntr But as to thcfl 
coynad^e of copper iilbeit ilvur be nece-ssity o£ j 
a war rand for the peaces to Iwj coyned the eha^*. J 
racier and impressione the cjttrin sick value a|1 
which the same is to pass and the tyme XomX 
coynadge yet tber is noe litnitatlon as to thft [ 

3aantilie except the kiDyfdoine he overbur^^j 
eued with copper mony And in tins caicethfti 
copper mony and iptanulic thei^f coyned ii|l 
the Hrstjurnuy was fouud too litle for the ws#1 
of the cuntrey insof^furas the warrand {^ranted ] 
by the counsell for the last copper jurnay pro- 
ceeded upon ane re pre sen tat ion e from thi 
royall burrows who ware most concerne<l i 
ibc coynndg'e of more copper money was foC | 
the acfvanta^e of the kingdome as appears ' ~ 
the act of counsell Terlio the general! oft 
Mint lies right to the half of the benefite of the 
half of the copper coyne by gift from hiii uia^tiol 
and the rest of the officers of the 3Iint bnv^J 
rirrht to the other hallb as a perqnisit of iheftj 
office and since ever the king hade a MinM 
Uiey never compted for tlic bcuefit arrysiagj 
from the coppex coyne Secuudo albeit thu 
coynadjEfe of more then was contained in 1 
warrand ware a cryme yet the defenders ar^l 
secured by two exonerationes And wheras it i 
all cadged that the same can not be extende 
beyond the warrand s to which they relaiti 
Anss^rs it is necessary that the exoueratioD^I 
should relaite to the warrand because the kin^ 
in the exooera^one was to tenuinat the lyraeof 
coynadge But after relatione of the warrand and 
terminatiotie of the tyme the exooeratioae rutfi 



3i CHARLES 11. Proeeedmgs mgamsi tke Earl of LimArMe [904 

liable to any penotte for any cause or ocisasione 
relaitingf to any publict adiDiniatratione by con* 
tryveances actings ^:c. And discbarginj; them 
either to bepersewed ad ▼endictam publicam or 
privataiD and all judges are ordained to inter- 
pret the same with all possible latitude and Ak- 
vour And wheras it is alleadged that albeit 
the defenders be secured be the act of in- 
demnitie as to any punishment yet they 
must be lyable for damnadge and interest 
Anss'ris this persuit not beini^ founded one any 
right the king bes juredebiti but upon a cry me 
be excess of coining of copper contrarie to war- 
rand which inters ooniiscauone as the crymeof 
malTersatione is extinguished by the act of in« 
demnitie so that the damnadge and interest ar* 
rysing therefrae is also taken away To which 
was triplyed by the s'd sir George M^Kenseie 
his ma'ties advocat and sir Patrick Home ad- 
vocats for his highness interest That they 
oppon ther former reply as to the exoneratioiie 
and act of indemnitie and it is cleared bv the 
act of 'parliament that the coyning of black 
money witliout warrand is simply and abao- 
lutely dischaived and that wnd«r the paiae of 
death And Uie law make noe disunethne 
whither the same be done by the offioera of the 
Mint or oy' persones but all personea what- 
soever are discharged to coyn black mony and 
* non est distmgueudum ubi lex non distinjifiiit* 
And thereasone why non of the former ofimn 
of the Blint hes been called in questione for ex- 
ceeding the ouantitie of copper mony allowed 
to be coyned hes been because it seems they 
ware alway es honest men and hes not exceeded 
the warrands Neither can it be instructed that H 
they did exceed and being conveened that they 
ware assolzied upon that pretext that they ware 
the kinjTS officers of the Mint who certainly as 
they hare the greater trust so they ough( tha 
more to be severly punished if they transgress 
And albeit sliirriffs and baiilics of borrows bjr 
tlie act are appointed to make inquisitione if 
any such striking' be made yet it does not fol- 
low that the act should be therrrtbre understood 
of prirat persones or incor|>oratioii(.'S Uiut strides 
black mony but because the co> uing of black 
mony is so' great a prejudice *^to the cnntrey 
and tread Therfor the sliirriffs and baillict 
ef borrows are appointed to take inquisitione 
tberof that the stnckers be broghtto thekin^ 
and punished whither thoy be officers ofth6 
Mint or oy' persones And in swa f'arr as the offi- 
cers of the Mint exceeds ther warrands they 
are but as private persones and aught to Ml 
punished accordingly and the reasone why 
ibrmei'ly ther hade been no coinpt made to ibe 
exchequer of the copper coyn was because pri* 
rat persones nlwajes <fott a right to what was. 
allowed to be coyned wjjp durst not exceed ther 
warrands but certanly if they had exceeded 
ther warrands they ware alviays' comptable tit 
the king for the same And in the coynailge of 
copper ther is an essey for a warrand of the 
peices to be coyned charecier impressione and- 
mtrinsick value at which the same is to paai 86 
much more as to the quantity that the cantregr 



MS] 

OD a distinct narrative vis. the kings ma'tie 
for tarder incuradgement of the officers of the 
Mint in his service ratifies and approves all 
and whatsoever quantities of copper that ware 
coyned or should he coyned betwixt and such' 
a day and so the excesse albeit it had been con 
trar to law yet being befor the exoneratione and 
the same being conceaved in the terms afors'd' 
does fully secure the defenders ther being noe 
necessity to express the quantitie coyned And 
as to what is alledged that the exonerationes 
ware procured by subreptione and obreptione 
Anss'red obreptione is not presumed unles the 
same be proven and subreptione is not relevant 
otherwaves not only this exoneratione but 
many other gifb granted be the king might be 
evacuat and wher grants from the king bear 
these words * ex proprio motu ex certa scientia 
or explentudine iK>testatis' or wher ther is * reite • 
ratio actus' as ther is in this case tlier is no 
ground to allead^ subreptione or obreptione 
and ther exonerations are not of ane unuswall 
atile but run in the ordinary stile of exonera- 
tiones granted formerly to the officers , of the 
Mint atler which non of them were ever called 
in questione And albeit the warrand be relaited 
in the Narrative yet theralW his ma'tie ratifies 
and approves aU and what;M)ever quantities 
coyned and not restricting the same to the 
quantities coyned by vertue of the warrands 
and all exonerationes granted to persons in pub- 
lict trust or employment most relaite to the 
trust and imploy ment but if the same should 
be restored in so far they walked legally the 
exonera'one would be of noe effect seeing the 
law secures them in soe forr as they have 
walked legally And as to what is alleadged that 
in a reiuissione the speciall cryme must be 
exprest Anss'rs the case is different for in re- 
missioiies persones are considered only as crimi- 
nally but exonerationes are of a mixi nature 
and considers the merits of the persones and 
ther mistakes or erroures they are obnoxious 
unto and non are more obnoxious then the 
officers of the Mint Tertio albeit the excess in 
the quantitie of tlie copper coyned had been 
a crown it is taken off by the act of indemnitie 
and wheras it is alledged that the same is 
only as to publict crymes but not as to malver- 
sationes by persones in ther offices Auss'rs the 
act of indemnitie is opnoned which is a na- 
tional! securetie and auglit not to be infrineed 
and the main designc therof was for securing 
persones in publict trust for besides the publict 
rebellione the act enumerates vy' crymes viz. 
out* of misrepresentini; the publict judicatures 
and ane other of malversations of persones in 

Jmblirt trust And as to this last the act is more 
ull then as to any other it being declani 
that the act of indemnity should be alse effec- 
tuall as if e\ery delin<^iicncie or misdemanour 
wer rxprest and as if every pcrsone had a 
speciall remisHione past in ther favours And 
the act is most comprehensive in ther favours 
also extending the same to all who had advissed 
any thing contrary to the laws that had mal- 
Tsraed in any publKt statione or trust snd are 




^( ken t fur OffUial MahtrMttom. 



A. D. iGSf . 



[808 



ut orprfjunlrniHl with sucU bmse inony 
rMcli U i it far cunv€?iiteiic<f of cbaugw 

•nil f<»r Li> I of |i(Kir [leuple hut not to be 

' istfdc use €ii u;> ti> tUe ordinnry change of troile 
«Qfl cunitucrce! the extrinsick vahie beings so far 
l>etow thi:* true value of ntuoey and albeit the 
generallfi of Mini have right to the halfe of the 
tNiiiper by a ^ift froia his ma^tie And that the 
orooers of tbt? Mint have ri^^ht to the other half 
ftv n pt^rc{!iisit4>l tber oflice yet that can only be 
iJuders;tiH»(J ui' whwt i^ alh*wed lo be coyiied by 
ibc waraiidE viz. that th? six tbouiiaDd ston as to 
which tliey are m>l now called in qiiestione 
But that cnxi never be extended as to what was 
coyneil Tuor« then was contained in the viar- 
rancU lor if that ware sustained then the gene- 
rails ol* the Mint needed not to have given a 
wsrruid for co^uing any copper as aho if 
they had hhertie to coyne more nar was con- 
tained in the h arrand Then as ih»\v coyned 
tlierty or foi-tie thousand stone more so by the 
snrtie rejiKone they mi^ht have coyneil aue 
hundreth ttiousand ston more and by this ac- 
count tfier should have been nothincf but cop* 
per mony in the oouatr^y which was abiiurd 
And seeng^ his ma'tie was ^ratiously )de»^d to 
allow the generatis and otfu'eni of the Mint to 
coyne six thousand at two severall journey es 
which was a very consiilerable giiX they itare 
in pcMiimo dolo so far to abuse his nna*ties sad- 
ness to coyne more then was alloweil by the 
warrands And the exooerationes alledged 
upon does relaite particullarly to thequantitie 
menttonef* iu the warrands als weill as the tynie 
Within which the same is uilowed to be coyned 
and tiie prorogutione of the tyme mentioned in 
the warrandH was nnl»e fur cleaiiuf;: the house 
of the remfinderi of the copper that was un» 
cuyned whirh h ordiimr to be grauied in such 
ca^e^ but niH'd not to idlow any £^reaiiT (juan- 
tilif to t>p cuyned then was contuineil in the 
warrands nn ii clear fron* the severall prorogn 
tii»uc« and exonerattoues ^ And albeit ihe 
CTtoneraiione* had been never nubrep Hones or 
ohrepdones as certainly they were yet seeng 
ihey relaiie only to the warrands they can be 
m» iwriw exl«oded and for what thedefender 
490yiied more then was allowed by the warrands 
Itie delenilcrs cun o^ver be secured by the act 
of iuflctnnity for the reasiotiea above mentioned 
which hi» ina'tie* adroc'st and sir Patrick 
Home advui'411 Ibr his hitfhucs intrest here re- 



|»eat«feefig it iso i 
iiatv rdaits oidy to 
moti tnlvreprtseiiliog liu 
sHtionet i^OfQllltttod by 

the n<^'t>f»'**'fi 



he act of indern- 
. in the <'Ountrty 



.♦;.>,,^ofth*, j., 
it as to wK; 
._ ninity that i .. . „, 

t:r * nd v*-»ud(cl' «in v«l 

f only to ihcr i 4>nM In 

which docs no< relaite to iht' puLlict 
of the kingdonie nor to privat 
ilarly can never be extend it 
ujd ioverfing of the kin|^ 
^monty which tail never be comprehended 
' r aay a^ of indirnaoity Aud alb«^ tht act 



|»v 



tlivr olhcr 
guveriuent 
fsrymes n 
to ilti> IP 




of indemnity would free the defenders from 
the puninhment juBtly due by tho law to such 
gross crymes and tnaWersationes as hes beeti 
committed by them preceediug tl»e act of in- 
demnity as 'truly it can not for the reasons 
fora'd yet th^t can never liberal thern tirom res- 
tit utione of the vat we and profcita which be- 
h1n^'s to his ma\ie upon the account of right 
wiiliont respect to thccrymeordi^ed of tnalver- 
sa'one W her unto it was t|uadrnplyed liy th« 
sM earle of Lauderdate his pro'rs auovenaified 
that he adhered to his former alled^nccs and 
duply and wber as it is alleadged that the kings 
interest here arisses u|ton the nature of the 
Vights and not upon the cryme The ^amein of 
noe weight for the defenders havcing his maM ies 
command tor coyning of the copper and the 
tyme therof what ever quantiiie was c€»yned 
the profits therof belong U* the defenders them- 
sehes the officers of the Mint haveing ever been 
in use to com pi for tlie same to the exchequer 
And * reus potest alle^are conlraria* and so if 
the king haf e ane interest in Ihe benefit of iha 
copper coyn he hes granted the halfe y'ofto 
the carle of Lauderdale and the rest of tlic de- 
fenders have right to the other halfe as perqui* 
siiofther offices and if the excess of coynnig: 
was a cryme then it being extinct by the act of 
indemnity anie interest arrysing upon a crytne 
being in modum pent it is also extinct and by 
the act of indemnity not only are all personr* 
indemnified ^ quo aid veodictam puhlicam^ but 
sIao * quo nd vendictam privatum^ which takes ' 
off all damnadge and interest And when ane 
cryme is abolished by ane act of indemnity no 
intrest arrysing therupoa as atie tfiect of the 
cryme can suhsiat otiierwayes acts of indem* 
nity would prove a seed of plees ami tlier can 
not he a more full one then that Im, vi r. 
siventie nyn And farder repeited and alletlged 
that the eartc of L;tuderda|je hes this geuerall 
drjenci' that as general! of the Mint he if not 
lyahle and crated to be heard therupon now or 
llijii \\ niiiv t»f n>^*>rved to hitu tu l*e heard 
v\ of the cause Wbtlkol* 

hi II made and propoitedfor 

the s'd dele'rs renly dwly triply and quadruplj 
a'mi'Utioned made iherto witli the fors*d sum- 
mund^ Heing all at tenth read tieard seen and 
consideretl he tlie saids lonU and they iherwith 
being weill and ry|dy advvsed The sMs lords 
repelled the fors^d \ir&v allerfgeauce Scarinjr that 
the profit of the copper coyne i« a perquisite of 
lilt! deflendeii» ofBi*e And als repelledthe tbrs'd 
v^alleadgant i' ' ' t^ uiera'ones 
rid thatth< Is ua far* 

■ti lathe iin...,M*i../ ._i,;i._..^._.i ^^ the war- 
md the malver^atione in relatione to the 
;j, -, .„ue And lykcwayi^ repelled the third aU 
Icadgance founded ooe Ihi* act of indemnity and 
Hand that the same can not lecure the cTefen* 
ders from being lyable in reslitutione of the 
value of the eop(»er coyne more nor was con* 
taincd in the warrands AntI aiimitted the s'd ttrtl 
article of the lylicll ancnt the copper coyned to 
the s'd nerst*%^4?rs prtdMtJone a&d for pfoveint^ 
therof the s*ihi lords ftitigQtd to the s'd m 



34 CHARLES II. Proceedings against the Earl of Lauderdak [SOf 

holds lliat since the copj)er was im[iortGd fiy tlie 
officers of the Mhit and the king hy the sot of 
indemnity havein^ pardoned the cryine albcil 
in respect of tlie itnpressione tlie iiiony belon^r 
to the king Yet it must be with deductione of 
the value of the copper and workmanship for^ 
the cry me beiop pardoned the law makes noe 
distinctione whither the acquisitione was bona 
or maktfide cspeciallie wher the species is re- 
diiceable to the first mass and the defe'rs to hare 
allowance of expenss of the workmanship be- 
cause the work was profitable to the king 
sceng the extrinsick value of the ooppfr 
coyned is near double the extrinsick Talae 



fl07] 

Geor^ M'Kenzie his ma' ties advocat and sir 
Patrick Home advocat to have letters direct at 
Jiis instance for sumonding of such witnesses 
and probatione and als to produce such writts 
rights reasones and documents as he had or 
would use for proveing therof against the sM 
day with certifica'one c. Tlierafter it was far- 
der alleadged by the s'd defe'rs pro^rs above 
damed that the defender can Aot oe lyable fot* 
the profits of the copper coyn hes been possest 
by the officers of tlie Mint as a perf|insite of 
ther office wh'ich iminemoriall possessione niost 
secure ths defenders these profeits being *■ bona 
' fide precepti fructus et consumpti' and ther 
was never any count made of the copper coyne 
9o Esto the profits of the copper coyn wliich 
exceed the warrands should belong to* the king 
yet the defenders can not lose the copper which 
was coyned nor the workmanship therof ther 
l)eing onlie ane access as to the quantity in the 
ordinary administra'one of aiie office ami if 
they should not have allowance of the copper 
and workmanship it would be a confiscalione 
arrysing upon a delinnucncie against which 
the*^ defenders issccunxl by the act of indem- 
nity To which it was rcplycd bethesM .sir 
George M'Kcnzie his ma'ties advocat and sir 
Patrick Home advocat fur his liighncs interest 
that ther is no law or custoine allowing copper 
coyne to the officers of the Mint as perquisit 
due to ther office ffarder then what is alloweil 
by warrand to be coyned and the proffeits 
arrysiog therby cannot be s'd to be * fructus 
' bona tide percepti ct consumpti' for sceng 
they knew that ther was only six thousand 
stone allowed to be coyned by tlie war«ands 
They ware iu petsimo dolo to coyne more then 
was allowed and the defenders cannot have al- 
lowance for the value of the copper or expenss 
of the workmanship that was coyned more then 
was contained in the warrands For what was 
coyned more being unwarrantablie coyned 
it most belong to the king '• quia versabaulur 
' in re licita' and tliey wex \n pcssimajide being 
the kings servants and intrusted by him to ap- 
ply the kings jrons and impressions to anie 
more copper then was allowed by the warrands 
And the act of indemnity as it does not secure 
the dnfcndcrs from the cryme for the reastmes 
above mentionat farr less from the restitutioiie 
of the valwe of the copper that was coyned 
more then was allowetl by the warrands and 
that without deduc'one of any thing upon the 
£ccnunt of the price of the copper or cxfiensses 
of the workmanship which they aught justly to 
louse l>cing in re licita And oppones the former 
interloqtiitor wherin this is allready decided 
Whcriiiilo it was duplj'ed by the s'd defenders 
pr'ors above named that the forsM alledgeance 
stands relevant notwithstanding of theanss'r for 
iitiCt'iJicatinne (sic orig.) w her I he species is re- 
duceable to the former matter The right of the 
species l)c1ongs to him who had right U» tlip mat- 
mnd albeit in this caice copjier money he re- 
ducable to its first mass yet in respect of the 
publict interest it must rcmaine alse currant 
■ipn»w but th« commOo ground of law still 



coy 

thereof Ly keas the defenders imploded many 
other peopfe in tlie work about fourtie or ther- 
by besyds the servants in the Mintliouse It 
was triplyed be his ma'ties advocat and sir 
Patrick Home advocats for his highness inte-' 
rest that the king does not pretend right to the 
copi>er that was coyned more than was allow-i' 
ed by the warrands by vertue of the specifica- 
tioue but by vertoe of accesslone That the 
copper which is the matter should follow Ihe 
king's stampt and impressione as being the 
more precious and is that which makes the 
coyne to pass at such ane raite worth and 
value As in the case of a pictur dmwn upon 
auf^ wy' mans cloath ana table the cloath 
and table will alwayes follow the pictur as the 
more precious * Libro secundo de institotiooe 
^ de acoiiirenda renim domini,' pa^therty 
four ' Si quis in aliena tabula pinxent' Ana 
the defenders can not have allowance for the 
mass of the copper seeng they ware in < pessima 
* fide ' to coyn more then was allowcu by the 
warrands aud what ever right hfVe been pre- 
tended if the copper had be^n brought if- ny • 
stranger and tliat the officers of the Miot 
had adhibit the kings &tanipt or impressione to 
it without the owners knowledge that in that 
raice the owners might have craved allowonoe 
from the mass of the copper ]>ut that can 
never be pretended in this case wher the cop- 
per was broght in and coyned by the oflBoeni 
of the Mint themselves And seeng that they 
knew ther was noe more alloweil to be coyneil 
but the six thousand stone so that they wil- 
lingly and witingly have coyned more then 
was contained in the warrands allowed by the 
law They ought to have noe allowance for 
workmanship upon the same ground as abo 
they being the kings servants aud haveingml- 
laries they ought to have noe allowance for 
workmanship And if it ware otherwayes smi- 
tained it would be a way to incurradge the 
officers of the Mint in tyme comeing to com- 
mitt the greatest abuiscs imaginable for they 
would alwayes coyn more then w as altowed 
by warrand if they know they ware to hare 
ailowanri; for the value of what was coyned* 
more then was allowed and thor dwes of coyn- 
adge albeit therader should be discovered so 
they should lose nothing but I he profits tb|rtr 
they designe to get to tljemselvc»s And ttatt 
war to incurradge the abuises and malrerM- 
tioues io relatione to tlie Mint instead of mpU 



tmi ot furs, for Official M 

prc^sinf; anil punl«i1iinu; 0»« same wtul sveug' 

* nemo (lehet lucrari ex suo dolo * evisu iu cvisw 

htiwixt privut punier mu't'b tc^s tri mnttters re- 

Iaiikil; to ilie Mint Whfniiitoit wus quarlrii- 

iifycU lie tli« <lf'fetHlcr» iiro'rs u'riamt^^l (itilli»*r- 

^^Ij- la their furmer aflcfigcance and liupl^) 

^hl tftey tire not here in llie cuse of acecs* 

^Sone And that instance of ane picture to 

Dvhich the mauer did ndc was a sii»{^«-ultur ili 

<0tfione ii)<:im»ef|iientiiill to other Inwh and the 

tDurid of it was the excetlencie of the pttiurr 
d It doei4 nnt (jiio ttd that wilh I he present 
cnse To which it was (pTailriijilyed Uy hiis 
Ttm'ties advocut and sir PatiicU iloine fur his 
liig;tmes« ititrestt That this ivns rk'iire in the 
Cftse of accesHiooe which hy the U\w was <inp 
<it tlie Wftye« of aff|iiifm^ tlie rijjfhl and doini- 
niun of a thioir and ther wti% uoe sin^uhirety in 
the c»se instaiiceil It being a t>rrtaine pnnci' 
pie in bw iind the opptiitoti of all the tawern 
lh i i rhatsnl>je«H VVIiilk aU 

1«mI I and pioponed lor ihc 

Sttiiis. lir jt ii«i' 1^ rr|M\ IS duplyes tripJyos <jitHd- 
ruplyes urul fpniititjilyrsalHt^eni^nlioncil ii»adc 
therto iieint^ all at Itnth heard rtil setn artd 
roniiidered l>e tfie saidii lord^i and they hcincf 
therwiih weill and ryply advysed Tlic splits 
lords sustained thf tbrMiid alhMi«^eance a?) to ilie 
dedur.tiant! of the pryce ot the copper hnj^lit 

«the defenders (more nor the six tho(i!>iantl 
lie alh)ii«d) pre«*f*edintj the act of indemnity 
Tl*ey afffAi^eH conrle^ceiidino np4in ami prove- 
in(f the i)iiantitie4'of the tinid copper and the 
pryce they boiig^ht the same at betwixt and a 
eertaine day now by gnuo ^V hieh the snids lords 
ij^ned to the saids defenders and thcr pro'rs 

j>vc' named tor that effect with certitiea'ne c. 

eri-eiyt; to his majpstic^i ad vocal to be beard 
a^in«i ihe proljatione but refu'awl to allow 
the delenders the pryce of any eopfier coyncd 
l>y them fii nee tlvc act of indenuuiy nnilal^e 
tefuiscd to allow any expenss of woiktuanghip 
tinne by the officers of the Mint or scnanU 
ivnder tliem in the Mintliotiive But deelaire^l 
if any thinj^ Ije dwe and resting to cTtrinsjck 
workemeii upon that accomit the V uill a I low 
tli« wime out of the fi Hit end of tfie !»anmi^ to 
be rtjoovered fffmi the defenders Thci'aiier 
ilie said J»ir r > Ken/.rc his ma^tleH ad- 

Tocmt and si Home advocat for hia 

in;>' ' V insiitleil upon the 

«• I ad lybell viz. for 

pajfi iri'^tii ujr ior*<;n*i N^mnir of t^refve !4hillin|Tf 
Kr.^is tor each imce of hulhonL' p*«y<^l m be the 
iiP,*^, ^..^^c ^'^ily the years ahnxf nvc-iitionat 
t^ lite Koume of three hnndreil and 

f?l, tlinii^nnil TwuiitiJ S.4.t> mOUy 

Al ud carle 

of * ■ I , . n^iTirsl 

that tht the i\iini I 

ble i'm .<' rinr! hi 

and tb' .* tor the btilhone 

4mt tb^ ih*"»ciof parlin- 

^1/' rrr^rvof the Mini 

^■i^ft mri.t* I M Kione from the 

^^^■itMmd ^i \>i Mid holdi 



rompt to tlie exchequer for the stine And ibe 
kinflf hes taken particuUar securely fnnn lb*» 
rnasitwr of the .^Imt as apnear>i by a btmd pti>- 
dticed granted be sir John Falconer and ane 
oilier be bin Halber wherin t he v linviv found 
cationuc And not only did sjir*fohn Falconer 
as mnstcr of the i^lint make compt bnmeHy to 

er Wherunlq 

zie \uK ma*ties ailfncal and sir Patrick llomiii 
jntvot:i» i'"f liiH bit^iies inieii'Mt that by Iho 
act (.1 lit in the year Im. vie. sixtie 

nynr 4 the Imllioue U being lb erhy 

left in the optione of the marelinnts importers 
of the g-oodt* ihenn metil toned either to pay 
bidlionc in specie or to puv money furlhesaui«. 
at the raite of twelve stnllin^ per ounce And 
the mony «o payed i^ appointed to be delivered 
lu theg^cneratlsHnd master of the Mint by tb© 
taek«inien and coll cvc tors Ami the gcnenith 
and master arc oblciijed to import the ^iocU "»r 
btillion Ibeniselves and to royn the same so 
llirit it IS eltar by that act that the generaUs ^h 
wrill as tlie master is eomptablc for the tvveho 
shillini;' payed in for every ounce of bullions 
and not onfy is ibi^ MurraU lyable in this pur- 
ticullar ca^e ai» i tfiincr^ relaitinsf to 

t her own office ; ils, but are lyable *» 

soiidum for all the abuses and m:tlver!tiation('^ 
cnmniitted by any other officers of the Mmt 
And that for th^e reawnis Vrlmv They or* 
tyable tirtutc officii by vcrtue of the office ai 
gpcnemUs who i8 bis ma*tie!i suprctim ofticcrsi 
in the Mint especially scen^' that by thcr i^'ifc 
they have jiower to comptndl and redarg;weaU 
other otficers uf the Mint And with fiue Am]d« 
po^vtr to bold courts and to punish cl*»litupiLni» 
>vhicb clearly evinces that not only the gene- 
ndh lies tiic snpreiim power and superintend- 
ence over all the rest ot the otficer* ot the Mint 
hut also ought to have a particultar rare atn| 
see r\ery^ tnan jvetforme his otlice faitldully 
and in case they doe not to punish them ae.- 
cordiui^y and to represent to his ma' lie if 
any of them malvenie in tlier office that they 
may be receaved (sic.) and others more faith- 
fulfaud diUi^nnit put in ther place And yet 
notwithstanding the g'eneralls did not only jn'**ss- 
ly maUertie in ilnui^^ Maitinjg;: to tlier own office 
but \^ I uiesan<l suniii i ' t 

insrr ("crsof theMiii 

their fttuH- niminuiy ami iu Uiairy ^^iiirni- 
lars ware shairer*; wtUi them in thcr urtjtigt 
prutit^J. And first to the r'-' ^' '* 
his nia'tte allowed only s 
lie coyned j'» **vn rfn..u i . : 

was neir I «o 

ih;ii y' was yned 

• nt a wamind contrar to v dis- 

.^'-•ing the same* under lh»+- :iji*li- 

nteniA by which the coUJdr«-y wait ahiiii»ed 
with co|*{>e.r many Thcr being mlmost ntm 
Tminy left in the countrey but t^opjier inooy 
which waK ane inlinit pn-jmliceto the cuotrey 
9nd mine of tj-ade For the tyme <' 
t»hoold havtt tp«!Ut iu coyatog of b 
I* 



■1 



«1I] 



34 Ch ARLES It. Pmeeimgi $gam9t the Earl 0/ LauitrMe [912 



bis mastics lue aDd the uie of ihe narcbants 
was for many years spent only in coyning of 
copper mouy for tber own advantadge off 
whiirli the ^eneralls did take the greatest part 
of the benefit to themselves Nixt wheras his 
lua'tie appointed tiveiKic thousand marks aa a 
stock for buving oi' bullioBe which might liave 
been coyncd and changed twenty tymes in a 
year and which the generalb ahoukl have seen 
done yet ther was noe bullion bought with 
that stock of mony Albeit the genmlls and 
master did most uniustJy exact the a'rcot of 
thetwentiethonsantf manu from his ma'tie as 
if the stock had been imployed yearly for buy- 
ing of bullion As also albeit by the act of 
pariiament the twelve shilling payed in by the 
mar^liants in place of every ounce of buflione 
should have been emplotred for buying of bul- 
lion Yet notwithstanding the generall and 
master did not imploy it for buying of bullion 
but applyed it to ther t>wn pry val use And 
albeit by the laws of tliia kmgdom the mony is 
appointed to be of equaU weight and finuess 
with the mony of England yet notwithstand- ' 
luf; it hade been minti^ forrWow the finness 
of the standart And albeit the officers of the 
BUnt ware only allowed to work upon the re- 
medies in case of casnalety Yet they have 
alwa^es industriously wrought upon the re- 
medies so that the Scots mony is less then 
the intended standart plat above two graines As 
also albeit (sic.) be contrary to law and the na- 
ture of all MinU that any money ahoukl be 
coyned witliout esser Yet notwithstanding 
the greatest part of the money ooyned in this 
kingdome undf r the pretence of diiselllicads 
awips and scraps hes been ooyned without any 
pott esse^ which is the occasion that tber is so 
much baise mony in thekingdome As also albeit 
his ma'tie for securety of the weight of the mony 
coyncl iu Uiis kingdomc had sent down a pyle 
of weights from EneUnd Yet notwitbsUndmg 
the officers of the ilfiiitmade use of the deun of 
Guilds weights for recoaving in of bullione 
from the marcliants which is four in the hun- 
dred heavier then the Scots pyle of wdg^ts by 
which they troned the peaces so that they 
made use of different and false weights in re- 
Ceavinc^io with ane weight and eiveing out with 
ane other And the lord l^Iaitland ane of the 
generalls albeit he receavcfl the EngUah pyle 
at London by warrand from the king Yet he 
would never suffor it to be made use of in the 
Mint but one the contrary when the Soots 
pyle was reduced to the true English pyle of 
weight he caused transforme them and bring 
tlieni up to the dean of Guilds weights and 
continwed in makeiug use of these weights be- 
fore the year liii. vi c. iMghtie two that the 
officers of the Mint came to be challenged for 
ther nialveraatione As also albeit the pnifit of 
the exaltatione mony did belong to the king 
yet the officers of the Mint dul Uke it lo them- 
selves As also albeit ther was a conaiderable 
quantitie of bullion yearly lying by the offi- 
Ms of the Wnt uncoyoed the profeit therof 
-^"1-' iiare bekM|g«| to the kiog yet not- 



withstandingr they applyed it to tlictowD privat 
use And albeit by toe law the melling down 
of the current mony of the kimcdouie is dii- 
charged under very aevefe peoattiea yet not-*: 
withstanding tlie officers of the Blint did mete 
down many thousand of rezand legdollen and 
doucatdouns to the {j^reat prejudice of the king- 
dome and mine of trade so that it is almost n 
wonder ther should be any mony in the king-' 
dome AU which abuisea and malverant i an ci 



the generalls of the Mint by vertne of tber of- 
ficeis should have looked to and rectified and 
punished the transgreason which tbey were an 
far from doemg that almost in all the fim'd 
particullars tliey ware sharers with the afieen 
oftlieMintthemselveB in the uiyuai gain end 
profite that did aryae by these ahniaea and oonl- 
versationes And to all these groMabuiaae and 
malversationee the carle of Lauderdale aopec* 
aded the unjust acting of new payment et the 
same years salhurie and brvbttv in taking n 
hundred pound to get sir John Iwoncr'a nigml 
and exorbitant accompts from theexchec|tter ha 
being then ane officer of state his ma'tiea the- 
saurer deput and ane of the commias'n of the 
thesaurie And oppression in extorting b and i 
from the other officers of the Mint for camale* 
tyes that did no wayes belonp^ unto him hot It 
his ma'tie and did so far abuise hia ma'tiea an« 
thoretv for his unjust ends as that he Ifaieal* 
ned them that if thev woukl not yeild to hii 
desyre that he would persew them hofor hit 
ma'ties privy connsill of ilesigne to palUat and 
cover his extortione under the pretence of ahad* 
dow of law And therfor the generalls not onl^ 
for the acts and deeds of nMlvemtione dene 
by themselves in rdatione to ther onn nffica 
but also for neglect to see the other offiooM aff 
the Mbt doe ther office as is dear from the 
common Law Digest tit de administratione ler. 
ad civitat. pertinent, lege nynth par. ei^ 
item rescripserunt curatoreni etiam noauaa 
collegss tcnere si intervenire et prohibere dwa 
potuit 2 . They wer oblidged ex colitractu vis. eK 
mandalo which in law is defined t6 be oon* 
tractiis in quo ipsius bnn& fide negotium aliqoid 
alteri serendum comittit alter vero gratuito ant* 
cript' butif the mandator have allowance eir 
sallane for his paines then tenetur ad ezactiai* 
mam dilligentiam et dc levisima culpn aa it 
clear lege therteenth Cod. mandati libra < 
tit. thretic fyf^h a procuratore dolum et 
culpam non etiam improvisum casum 
tandum esse juris authoritate manifeste denlniw 
atur And Cicero in his oratione pro MimAv 
in privatis rebus in quibus rem mandalam aon. 
mmlo malitiosius gesserit sui queatus ant i 
modi causa verum etiam uegligentius 
sum mum dedecus quid enim recipis ma 
si aut ad commoduni conversnrus ant 1 
urus es cur mihi te offers ac meis coma 
officio simulate -offers et obstas In 
charges sayes he if he that hes undertakan-A ' 
oommission or mandat does not only malitiniMly: ^ 
cary himselffor executs the commission far hi^ * 
own gaine and profeit, but also does il n qgin ' 
.gcctlyitjjsagreatdisi^^cetohim ForwhgF'didI-' 





913} 



9ni Gihert^for Official Malversatiom* 



A. D. l6S2* 



[814 



be receive a mandat if be wm only to make 
Uf« of it lo bb own piivRt g^aine ami tie|9r}ect or 
why ili<l be offer liiriiM«lfe or obttriict bis c«)ii* 
fUtuejiU {^aineor (iroIHe by [itakiii^ » shew to 
4oaliilft service when in the momc-iyme lie was 
4iieiii|(r alt fur 4us own pmtite and game wbii'h 
*J«e« vary lively represent ifits case The ge* 
nertik un«ier the (iretence of serveing the kin^ 
and iierlormiiijif ilier officer as they ware ob- 
leiilf^ml by ther coraroissioae either eon verted 
Ihe promts arysing- by the Mint to ther uwu use 
w oilierwayeji iiegle<:ted lo ste the other ofBcers 
at' tbe Mint doe ther ductie in ther rei£*ive 
fiffioea acconjin^ to the power and trust com- 
milted to the g'enerallji hy ther giW As also 
Ibey are lyable ex eontracuj locaiionis et con- 
duciioni« wbidi in law is tteiioed to be con- 
Iracttis botne^fidei <]iio prt^tatur iLfiis rni pt 
opera ceita merceiti; catiMiitita Sit ihat the 
cofiduGtur who ^'lea allowance and sallarie lor 
his paiDC and work is lynhle ad eitacUssiinani 
diligeQtJaiii as is ck-ar t'roni lege vigresimo 
octavo Cod. de looat. et conduct. I ibro i|uiirto 
tilulo S€JtBifes»tmo quinio in jmlicio turn bicati 
i|uam conituctj ilolum et cnstodiam non eimm 
Ciaum cui resisti non porcKt vernre funstnt so 
that both in tlie casie of a mandator or conductor 
ojieratonim They are lyabJe for eicact difli- 
genee in so farr as the law oidy excepts casits 
S^nuitos. Tertio as they are lyoble ex otticio 
aJid ex contractu so lykewayes tliey are lynbte 
en quaiiii cenlnu'tu as nejfotiorum uestoiWtbty 
Wing'iDtrusttd by bis mu'lip m illi the* manadt^- 
mem of the Mint who by llu" bivt- arp i\iibfe lo 
the exacte«t ddli^:citce lii.^tiiut. bbr<» tcrtif> par. 
priino tituh» vij^euifno ocUio quo canu ail ex- 
actiajniain qnivque dilitrentiatn cffm|iettaui' red > 
deitf ralionem htrcsu^hcittaloiiMlifitfenHuni ;id- 
hibcre qiualciu suis rebu*» adhibere solet s>l ruodo 
alMfdiligenter (eo) co^nmodiu^ ndniinistruturns 
etaci oegotin Which is clear in this case seen^ 
tbe kiD^ woyld have gotten fyve thousand in 
iicotland who would have discharged ihb* office 
more dilli;^eiiliy und faithfully then they hat^ 
dooe As also it ia clear fn»ui these titles' in the 
lair de adioue exevcitoria et institoriu tbut 
lb# eicercitor Navts the ina.%ter of the ship or the 
Miter who is propo!»ed to he the nian{)d«^erand 
overseen^ of any particuHar ertair viho are not 
only lyMG Utr tlie exat'lesl diliigence hut are 
)yaide in solidurn lege prim* id est dc exem^ilor* 
action' par' tiuah librudeciino quarto titulo pnmo 
fti plurtfs uavetn exeroient cum quoliln t eoriun 
iaauhdmu agi poteat. Quarto ; they are lyabte 
ex deheto vel ex miaai delicto vel ex lege Aquilia 
irel in factum lor makeing up the toes and 
pir^udice tliat any part b«?s sustaiiRnl through 
ftoc otbeis de^MlIt as also wher thtr are many 
iMitiea eOQCcriiod therein they are liabkiu so'- 
fiduin aa is deare titulo eodem lege quinqna- 
fresiniB prima par. in ttne cum plures trabem 
aJicnam fiiraiuu isuaa sustiilerunt quain singu- 
U 1mm wm pommA. imtii actio ne o nines teneii 
4{daiiitis Kubtili ratiotui dici possit 
cofum tetter i — uemuoein vcro tra- 
•liasi As also thU is larder cleared in 
tof ihiilwbcr many peraoaci are oou- 



ctirring to the oomtoftting of a Ihift they aro 
lyable in soliditm lege sexta digest arbor. 
itirtum crrsaruro hi plures eandeiu ac arborein 
surtum cecideriiit uuum singidos in scdiduni 
agetwr as also they are I y Able ex crimine pe* 
eulatns for abstractKig oi the pwblict numy 
which ware the profits of the Mud hdongiog 
t*i iht* king and converting the wune to thef 
own privat use As also tbey are ly able ex cri- 
mine de residiis by wtteriog the satne a^ pubtici 
money and not im ploying^ the satne as they 
ou^ht to have done Anil this is clear tykwayea 
ill Uie case of spuUies and wnongous intromis- 
sion t^^ wher the parties are not only lyable for 
rv!»titutionc of the thing taken away but alsQ 
an? all h able in soHdum To which il was du-» 
plyed by the earle of Laoderdails pro*rs above 
naineil that the kingbaTcingsecureil hituselTe 
h\ lakeiiig cation from the master of the 5lint 
ific genenill at most can be but lyable onl^y 
subHidarJe al^cr the master is discnst and lliis 
of Ihc bullion is coimtwl for the Exclietjuei* 
And the counts lying bcfor them and wbal 
ever the birds may doe to clear things <br the 
ftitur it war hard to make the gmerall lyable 
for bygaios To which it was triplyed by sir 
Otforge i*l*kenzie his ma' ties ad vocal and sir 
Patrick Home ailvocat lor his highnris intc*rtsl 
that albeit the Exchequer hcs taken cauiiono 
irom the master of the bullion for the kingst 
ItLriltT securetie Yet that does not libemt ihe 
general Is who are lykewuycs Ivable to the 
king by the law and what'biilliou thi^y hav« 
eo anted i\^r to the Exchequer shall be de<luccd 
Which seci^nd article of the lybell ubove writ- 
ten repeikd and insisted upon by liisma'tii-a 
advocai alledtfeances proponetl for the s^<f * 
earle of Lauderdale against the ^ainen repl| 
duply and triply above written made iherf ' 
being all at leiitfi read heard seen and cona 
dered be the s'ds lords and they l>eing tliei^ 
with Weill and ryply advised they repelled tli 
fors'd alledgcance prOponed for the earle of Lau« 
dti-dale gcnerall of the Mint in respect of tb 
reply and triidy made therto and fiand tha 
Ihe'generoll ot the Mint is com|)tjtbl lo iL' 
king for the bullion and the proteiUi arrysin 
iberfrae reserring to the gene rail his relie 
against the master and other otiicens of thr 
Mint as accords of the law And arliuiti 
the fora'd second article of the lybdl 
the perse wers probalione and for provein 
thereof the sd's lords assigned to the safi 
sir Gwir^v Sl*kf0zie his majesties advocati 
sir Patrick Home advocat tor bis majesties m* 
lerest a oertaiiie day now by gatne with crrtilU 
calkme Tberafter the said air OeoryeM*kenzi^ 
his ma'ties advocat repeated thetlnnl artiiie ufj 
the foi-sM lybell viz. That ther being allow edl 
by the king to the general I and other otficerij 
of the Mint Ihe a'reut of twentir lhousai*|l 
marks yearly as a stock to hate h«'cri imployeil 
by tliemtbr the buying of bullioni? and ct»inf I 
tug the same and whicTi might have been cx*1 
changed in gold and mony tw^tie Ivtues in a4 
year Aiid yel they h^re not imployed tbtl 
atock for llie ttia atiwe nfmioiiifd iiid dcclanA 



tl5] 



34 CHARLES ir Proceedings against the EaHof LMuJtrdah 



bis ma^lies advoeat instiiteff for ]>ayiueiit of the 
fi>rsM soiUDe of ane liundretl and ei^btic ll»oti- 
saud ttud six hundred (lounds as the benefit that 
liiith or woidd have arisen from the ct>vniii£f 
atid exchange of tlie foi-s'd stock the years 
*buv€ mentioned Asptinst which i t was ailed g'ed 
Vy tile s'd enrle of Lutiderdale his pror's almrc* 
named that the master of the [Vliot bein^ pnr- 
ttcullnrly eoriecrned in thearticlc tliey must in- 
timal Ihe i*ei-suite to him And alledged thai 
ilier was nue act of parUa't that makes the 
defender U able to i* implo\ein^ the slock of 
Iwentie thousand marks la mainer for^aid nnd 
tliereceaviugfaf the aVeut can not make him 
lyable tor twentie thousand marks rcmanes i 
aiviaye:! in tlie Mint as a stock -for bnv- 
iiag of bidhoDe in cnsc of intcrnptione of 
trad and for defraying^ the mexJcat cliai lt*^ of 
the Alint And ndieras the &umm(>nd!j hears that 
the huUione to be bojiglit with the forsaid stock 
Dfi^ht have been coy ned and exchanged in qfohl 
and mony tvventie tymes iu the year Itis a 
great mistake it not being pohsible to iloe the 
same sfix tyiuen in the ^ear and the aVent of 
the twentie thou^tiind marks n ould not have ijc- 
frayed the expen»cii of importing: the bnllione 
Ihe exchano-e in some vc ars bein|>f my hijrh as it 
did exceed ihea'rent oV the s'd soume VVlier. 
unto it was replied be the s>'d sir Otniriie 
B1*kenzie his majcii ties advocatand sir I*ntnck 
Home advocat for his hit^rlmi^s interest lliHt \m 
iTiQJestie out of liis princly care for the j^nod 
of hi*i subjci'ts incicss ofiiKiny in the kiiijr* 
dome and for advancing: hisownrcvenew by ll»e 
Mint having appointed tw enlie thousand marks 
IU! a stock yearly to bt^ imployed for buyin^j;- of 
bullionc to hcj coyned and 'exchanged*ti>r his 
ma'ties nsc and accordin&^ly his maje^tie have- 
ing- allowed to tl»em in ther accouDti^ the a'rent 
of twentie ihoutiand marks yearly They ware 
in|ie^si(un lidr; to take atioxvaiice of the'a^rent 
«f twentie thousand marks yearly and yet not 
imjdoy it for hnymtj- of bulhono as wnsdes- 
litvathy hiH majestie and y'lbr they aucjht to he 
lyable' for that proieit mij^^bt Ijave arisen to bis 
fiia'tie if that stock of mony bad been impk^yed 
i'cnr the huyiny: of bidhtnio* uhich miyht have 
been coyned and exehan^oti twentie tvmes in 
a year tiK hes In u*e to be done in former fymes 
And not only tbcr %vas alvvayes a stock of mony 
in the Mint appointed for l»uying of buhione To 
be coyned for bttj rnujesties use but parti- 
cuLlurfy iu the year Im. \\ c* sLviie ane 
ther is ane expreissuct of paHia'toppoiniinprthis 
alock of mony to lie inipU>\ed in mainer fors'd 
W hioh thin! article of the lyWll abore written re- 
peated and itivLsted in alieadn^eanecs abo^e men- 
tioned made aptin lit the wime and reply made 
iberto being all at lert^h ved heard Si^cn and 
cofisidtTctl be the baids loi'ds and they iherwitb 
bein^ weill and ryply adv>»€d 'fhey befitr 
uurV ordained the rompt Imoks relaltin«' to tlic 
atock Hllo\%^d by his ma*tte for coynin;,'- of hid- 
litinL" to hr^ jiroiluctd Ibrcleannif how (dten the 
butbone that &hotdd have been boiiiiht with 
ibe said i?lock of twr^ntie tlioitsaud merka bath 
beeti coyned atid exchaQgcd in the year aud for 




that enecl the said lords assigtied to the sH 

sir Georjjc !Vrkena:ie his majesi!^^ "^1 'f ■ 

sir Patrick Honieadvocatfor b 
rest a certaineday now byg^ain hn ^ . . *.. ,4^ 
count hooL^ relaiting- to the stt>ek and \ 
his mn'lit**; ndvocai letters of incident dilti 
I in' I'et.fU'erie y \»f Tvith oertifii^tione c, 
«!itr the said' sir George M'^kenzie hi* i 
tits adiOL-at and sir Patrick Home advocat 
bis hiohites interest re|>eated the R»urth i 
of ihcsuidlyhleviz, (hat whereas the mony ( 
tbiJ* kin'^doM*ie is onlaiuetito be of ecjunll tiutia 
1% it b that of England vet it is t*vo 
then the sinudert of J^^ngbmd ther hein 
indinted plate of silver cuueil in the two j 
uhtrof ane bal/e lyes in Uie Tour of f ji 
unit the other was s»ent donu hither and it I 
hard to be exiict in ohservin|j tlie uniiie tiDnwm 
in the ctjyne ther wus two grains of ren 
allowed upon the mice of silver And the i)e 
♦coders ha vein g- allwayci coytnHi at two ^rpii 
less of every ounce and ih'erby puri»o»*iy iid 
bftslcfl the itandel-t anil these two graia 
amonutinLi: to twelve slitllinj; ujion the pouo 
of silver they auu^ht not to have appl\ed ill 
same to ther own use but mu^t he coinptah' 
for tlte same to the king And in En'jldiid I' 
remeiliei* doe belong to the kini^ and decUtn 
bis n>a*( its ad IOC at for his hiy^hnes iiitrest i 
sisled forpaynieutof the fors*d souine of an 
thousand nyn bmidrcib and t^^entie (KMuidl 
yearly the years above mentjoiied of the pr 
arrysmti' by the diference of the coynefr 
the fimus of the indented standert plate wid 
the bcoetit of the reniedies bcinqf Iwdve \ 
liufj upon the pound of silver extending 
years lylwll to the sonme of twentie four 
sand pounds A ^ninst which it was alW^ 
the s'd earle of Lauderdale his pror*a 
named that the master of the ftliat is 
concerned in this article and he is not c*othp 
in;^ IJdo That the two grains in every unce I 
lowetl to the defender as a rem<'die The bin_ 
tdvocut cannot subsume agTiiust him if he hai 
not exceeded the allowance 3tio That tb^ 
could bc^ noe dam nadg'e sn5^tained against Ih 
c^rle of Lauderdale upon the forsM accoufl 
that the money is not of suftitient fynnes lie 
cans ther heuij^ a com is*, ion ti ranted hy th 
kiOi,^ in aiino Im, vi c. sivenlie tmirfor trymg i 
tlie coy ne It was found by the pers*mes coifiil 
siond ther report tliat the silver coyue of l' 
kin^dome was above alcvea pennic fynei _ 
so above the stunilart as the commissioue and 
rejKjrt produced bears which report was ap-^ 
proven hy the kingf Ami iht rfor the deloQ 
au^ht lobe assrdzied as to what uaseoync 
beibr that tyme Lykeas ther bemj^: try all take 
by tfie jaite commlssione the coyu %%aB fou0 
in fynnCbS to be abf»ve the standert Whertmiot 
was re]»lLe<l by his in a Hies advocat aiMl 
Patrick Borne adviicat for his htg^hnes iiit< 
that (he earle of J^auderdale and lord Maitla 
peiieralls of the mint areaNe much concen 
i*iid umvfX Ik? lyable to the kiny: for this and \ 
other articles' of the lybell as the maister < 
other ofiicers oftbeBlint l^o Albeit lh«fr was lw# 



i 



•17] 



and olhtr$,for (Official Mahtrtalioni. 



A.D. 1682. 



[SI 



g^rnina of i*eraei!je albwed in caise of casii- 
Acetic in caise tlie Jinness fell to lie over or 
wn»l(*r yet liiul wasiio wanami for ibeofBfei's 
Df ibe Mint to coyn coustuntly upon the reme- 
dies as they (ltd )mt wtiatt^vtr be tbe rem«f* 
•lies of finni-fis wbJtIier casual! or industriously 
done yet the Kaitiea alwayes: belongs to the 
kingr *8to As to tlie dischargee ^rarite^l be the 
kiny as to the tlniiess of the coyn from tbe year 
1 m, vi c. sixtie four to the year 1 in. ri c. siveolie 
thrive It cannot be extended to tbe suh^iiijuent 
years ntitlier aiiijht it to hberat the otiicert* of 
Oie Mint even for these \^!^t% lueolioned in lUe 
discharge because the Iryall u|Kni which it pro- 
ceerled was aliojfether insuBitieut and by q 
meer inisftake in .swe far as it is posiiivly of- 
fered to be proven that tbe tryall was after this 
iniiincr viz. At e^ery luelling ther bein^'' a 
|)eaee of mony coyned cult in i^vo peiccs wiier- 
nl'aneof tbe [leaces bein£( but [(jntj in the pjpe 
v^ben the Irjall vviis made .some ol ttiese peaces 
being mebed iJoun to§felher they ware fun ml of 
milfitient fynnes Bnl ibe faltacie biy in ibise 
that (a srnidl mettin^^ tbey wonid a coyoed a 
far greater quantitie may be ten or tii^elte 
Blonc vvlntdi was not ueer so fyn asi tbe staodert) 
uiid of this tbey put n<»e more in tbe pype hut 
tlitf lintfirf of tbe hM^x coyned of that melting 
80 that albeit t her was a lar i"^ reciter ijtmnlitie of 
bafiic luonyjoyneil then fyne mony Yet ther 
wjis a bke pe.icea of both pnl in the pipe so 
llntt wlien tbe outter fyn and ibe under tyn^ 
fieai'cs came lo Ije melted doun lo|»;elher m a 
Jij>net it proveil in he of sinndert fynnes so that 
nt tbttt tryal ibe b^net found to be finuer.hen 
if lot st;indart wliieh h not to be inmgiued it 
would have been if tber had hucn some cheat 
in it Jor if* tbe mony coyned ware ahvayes 
tinner then the staiuk'rt it wold rprtaiuly de- 
-Btroyed tlie oflicers of ihe Mint in plnce of 
tiiakein|:r any piine But the cheat was in 
ttiis that albeit tber was the lykc peaces 
putt in i)ie ]»ip« of tbe coy nadge of counter 
fin nest silver and the coynad^e of the be.st 
.inony which beinjj melted to^ihcr will be 
Riire t'» make tbe linnet of sulFitieni fynnes yet 
Iher being- a far greater quantitie coyned at tlie 
inettiog'of the baise mony thin at tbe imjIlin^K 
tjf the utter fmncs silver \u evident that al- 
beit the liy^iiet made up of tbe peace in tbe pyx 
was of standert fynne* yet the g^reatest part 
€>f the niuuy of Scotland niiybt have been haise 
mony As de facto it is so in etfect u|>ou tbe 
maitter tbis was no trynll at all and tor the far* 
der evincing of this it be** been trjed that al- 
lieil some mark ]»eices bei of snfiitient fynnes 
yet wher three nr four hundred of them is taken 
togiiber and lOebed doun in a It^niet it would he 
fomid to be very lar short" of tlie sundert as to 
the lioness Anil hjj for evidence of ibe insuf- 
litirncie of Ibts try all ther was no tryall at all 
t«ken as to tbe weii^bt of the mony w"hicH w as 
als»' inaleriall a« the fun»es» Wbitk the fourth 
aiti« h' iilttir* lybell repeated and insisted upon 
nl . made at^'ainst tbe same and reply 

«J" ^ ncd with tlie tors^d exoneraWepro- 
4tic4:d bciD^ all atteuUi red beard tieen and coti- 



«idered be the sMs lords They being therwitli 
Weill nod ryply advyscd they in respect of thfi 
exoneratione produeed assolzied tbe delenden 
as to tbe years preceduig llie s'd cxoneratio 
granted by bis ma* tie in anno Im. vi.c. siven^ 
lie four Tlierafter his majesties advocai and s 
Patrick Home advocat for bis bit^hnes^i intr 
inmsted for tbe profits aboire lybelleil arrysing 
by the difftrence of the coyne from tiie bnne 
of tbe mdented standert plate witb the beiietiii 
of tbe remedies beini^ twelve shilling upon thi 
[K)und of silver yearly tiince tbe year Un* vi c J 
sivtntiefour And u'lFrrcd to prove timt the 
motiv was coyned con 4»lantiy upon tbe rem edic 
As to which tbe s'd earle of LauJerdalls pro') 
above named allediired tbe master was polf 
lyahle and took instruments in the clerks 1iaa(( 
u[iou biii inlimalione of this persuite to tbes*d 
f»ir John Falconer master present at tbe bur: 
was lyahle to releiTe the i;-enerall of the Mint Tdi 
wliich it was aos^red be tbe sM sir John Fal- 
coner tiiat be dcclaii-es he dedyne^ to dcfeml in 
this cause so fiirr as the king is concerned and 
desyres w bat be now prapones roay be receaved 
as a representa'one and not as tfefeoce in the 
cause except t^uoud his releifl* And as to ths 
copper cQynetl in the lii-st jumey berepreftents 
that be is not ly^ble because he was then bis 
ffather's. servant and compted lo him And as to 
the second copper jurnay what he did thereici 
was in obcHJience to the gencritll under whose 
jnrisdictione he was and that he reclamed 
scver^U tyniesand repeats his depositjODe token 
befor the commissi one as to Ibih pint And as 
to the a^rent of Iwentie thousand marks he 
ou^ht to be free of tbe a'rent of the half y*of 
for w hich he is only lyabk' l>ecans he bad the 
mony in readines and itnployed it in buying of 
bullion as appears by bis counts And if it was 
not mad use ot in coynadij^e it vvas because they 
had so much bullion broug'ht in to them by the 
mercbantst that they could not make use therof 
and bes counted for the wholl bullion frotn 
Im. vi c. sivenlie i'y^^ te the year Im. vi c. 
ej4>*hUi- Wliich compt ar befor the Exchequer- 
ami propones this for his releiffmd fardcr rcpre-" 
sents as to that article anent tbe tinnes of the 
money and working uiJon tbe remedies tbal 
ther beings noe injuuclioneof the ^uprem otticcr 
viu. of the geneiall of the 3Iint to work con- 
forinc to ihe indcuted btandert he is not lyahle 
to relieve the gfenerall lie acknowleil^es thai 
tber wi^ some coyned undei the staudert and 
some above the standeit and nothing can 
be sustained u[>un the aecompt of the remedies 
becauis ther was als much coyned above tlu 
remcdiea asabove[sie] ti»esame*ro which itwa 
reply ed be sir George :Vl*lvenzie his ma^liess " 
vocat and sir Patrick Home advocate for I 
highness imerest that in so far as what is aU 
ledijed by sir John Falconer as a detenco 
against the king- It is answered that he ought 
I vke weaves to be I y able for thecop[>er coyne for 
the first copper jurney more then was jil lowed 
by tbewarrands because he was coujunctma.^- 
ter with hit father As also he did e\*crce the 
o^ce of master at that iytne and uplifted the 



ei9] 



54 CHARLES IL Proeetiingi 0gahutthe EarUflMiArdMle [fflO 



pfoKnts and was oUidged to know aM did kndm 
that ther was more copper coyned then was 
allowed by the warrands so that lie is lyable to 
his ma'tie ahe weill as the generall and the 
king' is not concerned q't compts and transac- 
tioties was betwixt him and his lather and it 
can not be made appear that ther was any part 
ot' the twentie thousand marks imployed for 
buying of bullinne they did imploy it for ooyn- 
img ot copper for the matest part of that tyme 
for ther eun use and the greatest part of which 
they did coyneas buUione is now not allowed 
for buUione so that they had aboundance of 
tyme not only to coyn the bullione brought in 
b? the n-irchands but also that bullion that 
ahottld a been bought with the kings stodc 
and i/hat the s'd sir John can clear by his ac- 
oonnts baTe been payed to his maHie of the 
bulUoLe shall be allowed as calhimnios to al- 
ledge that ther was also much coyned abore 
the standert as below the standert seeing it 
will appear by the books of coy nadge And its 
positifly offeretl to be proven that they alwayes 
toyned upon Uie remedies and below the 
standert Which alledgcance and reply being 
all at tenth red heard seen and considered be 
the s'ds lonls They bcfor ans'r allowed a 
conjunct prolialiune for clearing how much hes 
been coyiiod below the standert and how much 
above the standert since the year Im. vi c. 
aeventic four And for that eflect the saids lords 
assigned to either parties pro'rs above nanied 
a ceiiaine day now bygaine and ordained 
either |Kirtie to have letters direct at ther in- 
atance for summoading of such witness and 
prubutione And sise to produce such writts 
right;>> reasons' and documents as they had or 
t\tjuid use in the said maitter against the said 
day withcertifica'on &c. And also the s'ds 
lords ordained the wairden and counter wair- 
dens books to be produced and granted dilli- 
genceto thesM sir Geor&fe M*Keuzie his ma'- 
tics udvocat against the wairden and counter 
wainltns tor that effect Thcrdfior his roa'ties 
advo(»at and sir Palrik Home advocat for his 
hiifliiivs interest repeated the fiftli article of the 
tbfb'd Kuriunonds bearing that a con$dderable 
pairt of the silver coyneof thiskingdome under 
tbe pretence of silver called chisell heads 
scraps and sweps hes been melted and printed 
without any essey and so ought to he (»niis- 
cat to the £ing8 use and decTaired his ma'ties 
advocat insisted for payment of the fors'd soume 
of nyn hundreth auft sixtie thousand pound 
coyned without any essey and therby confiscat 
in mainer alKive ly belled Against which article it 
was represented and alledged by the said sir John 
Falcnncr tluit it had been alwayesthe custome of 
the Mint that the chisell heads and scraps which 
ware a part uf the pots befor ware melted 
againe in presence of the wairden And it was 
thought that tlior was as great securitie in that 
as if ther hade been any essey and when any 
try all was demanded he was alwayes ready to 
give the same And als it was alledged be the 
sM earle of Lauderdale his pro*rs a£ive named 
liMt w to the othOT officers of the Hial they 



had ther oommissione from the king And tbo 
generall could not invad any .other offiom 
and seeing sir John Falconer who wae DMSter 
withdraws from defending in the came And 
informs against tbe earle of LaaderA&le the 
earle can not be liable for his malversyalioMe 
lyke as ther are two easeyesviz. the p^ eney, 
which is only taken mr.privat knowledge 
And ane otlier essey which conceoiea the puV 
lict and which is taken after the peaces have 
gotten the impressione and whenn ther cen- 
not be follzior and this aiticle is hot small ex- 
tending to ten stone or thefeby To which il 
was replied be sir George Bi'kenMe and sic 
Patrick Home advocat for his highnes istoresl 
that the forsaid fytlh articie stands relevasl 
notwihstanding of the ans'r because it bemg 
clear by the Taw that no money, should be 
coyned with essey if conlrar to the lewis it 
be unwarrantable coyned it most belong to 
the king And for the greater securitie that 
therbenae money coyned without the cssaj 
and that the cuntrey be not abuiaed with baiae 
mony ther are two essey es used in the Mini 
viz. the pott essey and the essey used ai the 
printing and both cheeff essey es must be weed 
and if any money be coyned without theae 
esseysit must belong to the kiqg as keinff 
coyned without essey And therfor the cliiseU 
heads swips and scraps not being esseyed at 
the pott essey whicn is the first eaaey ^ and 
grvat securety against the coyning oi beise 
mony was renielte<l they might hbve 'melted 
als much alley with it as they pleised and which 
is the great occasione uf so much baise mony 
that hes been coyned in this kingdoiBe fiir 
albeit it be preteodit that ther was ane essey 
made thereof at the printing yet that can be 
no securety because at that essey ther is oolv 
a i>eace taken out of a whole trogh full whiee 
may be is of ane other melting which of pufr 
pose is made of standert finness yet the aMMl 
part of all the rest of the pcices in tlie trogh 
which is coyned of the chisellheads and swcfp- 
which they doe not suffer the pott essey i^ 
the melting and so may be mixed with abe 
much alley as the officers please, may be att 
baise mony And it is not a small quantitie tb^ 
hes been coyned atler this mainer for it is ofp 
fered to be proven that neir a third part of thft 
mony coyned in Hcotiand these years by peel 
hes been coyned without essey Whilk fiftb 
article of tlie lybeil above written repeated siiil 
insisted upon allcadgeances above mentioned 
nuule for the sM master and generall and reply 
aboYc specified made tlierto being all at lengtk 
read heard seen and conndered be tbe s'de 
lords they notwithstanding of the former aL* 
ledgeances ffand the s'd fyflh article of ihe 
lybdl relevant and admitted the same to iktm 
persewcrsprobatioue And for proveing thcraf 
assigpied to tbe said sir George Mckenzie hip 
ma'ties advocat and sir Patrick Home advoeeft 
for his higlmess Interest a certane day now b^ 
gaine and ordained his ma'ties advocat for )up 
ma'ties interest to have letters direct at his i%i 
atanoefor suBunondhig of nieh witntis «mI 



m^dmtken.for Official Mnhenatluns. A, D. l6l|2# [I 



IjrolNiiiooe anil alse lo (iroduce stVcli writts 
rights reiifiotieB asxl ik^cuiaefils 9» h^ h^d or 
woulij u&ti fur |irc»vin£f tbcreiif «gfnin'«t ibc s^d 
iJ»y I'beri^fUriliv&Kidsir GVi' ' nziehis 
tna'ties idvuciit aud sir Ta n^ »d- 

vocAt for Uiti hig;hiK'si!< altt'r».^t r 
IbrsiM jiixtuiiiclti of Uie foifc'd Uf 
Ihfti ibtT wii' different weights tnad^- u^f* <it ni 
Uie ooytut* boime in Bwafar as bis uia*tie id 
annu Itii. vi,c. iijclje tw^ btivt^og » j^iyit of 
wetgirs by ctintruct witb tJiw iiia«)tor u^ ibe 
^"iut of Kii^liiiid tbcy seiiidowu tbnt pvU gf 
' ]»tH li» tfiH eark of Lauderdale^ \^itb a 
le of tbc mM ooiitr^ict wbi< h wcigbtft ware 
111 Ills ket^ ping anil )fet Ibf; biilboiie Wa« takeit 
wjtb tbc d«an of ^^nild of Edir^Mirgh bis 
weigbUaiidtli vasUouedwithtbefrac- 

tioD«« of tlie 1, 1 .1-, Atifl tbe sM earle is 

. JjaNe bavcih ja bi^ keep- 

uti^aodbavf I , iour in the 

hiwdrtlli ' ^ ihe lorMl ilidereDt weights 

ftnd decl >Vu' lies ad t^oc'at insisted upon 

Ibe fors'ti -11 M rvi iickof tbe lybell for tbe Ibrsd 
BOunie of fuurtie tlioitiiand pound as the four 
of tbe bnudn^ib of tbe buJitone IvbeJU^J tliat 
ibe dean *it gutldsi wci^bts ware beefier then 
tbe pyll in tbe covDzie hciu£« for wbicb the de- 
fcndei^ are tjable agtott wbich it was al- 
ledged be Ibe s'd earieof Lauderdale bis pro'rs 
•bore aamed That be denyed that artick in 
•wa far as couceroes tbe earle tbat be made 
Ilia of dttlen^^nt weightjj and as to tbe rent of 
thioficifrK of tbeAlint tbe earle cannot be 
lyiliie tor lb em in tbis for tlie law haveing 
aUott^ed tbe marcl»ants eitber to bring in tbe 
baUione tu tbe Mint but* to pay go iDuch luo- 
B«y tbe general I wah not concerned ivbow sir 
Joan Falconer made bis bari^an Wberimto it 
%*^as anVred and reprtsenUfd by Ihes'J sir Jobn 
Falconer tbat tlie lo«kintf lo tbe weigbts is in- 
cumbent tirst to tbe Wttirden and tben to tbe 
gen«rall And lie knew not of the first pyll of 
weights sent down imlill tbe fourth day of Fe- 
b'ry laait and uesw Imd any order or intinoa- 
tione from tli '\ lu make use of these 

vretebU To ^ v;isdnplyedbj' tlret-arle 

of Lauderdates pro 're above naiued that be 
knew not of ibe standert till tbe year Im. vie. 
wxtie Riven and tlien tliey ware sent douu and 
U*e inony trwnd with these weigbu But bow 
or with what weights the master reeesafed tbe 
tidlione he was not concerned it not beiuif 
linder the iv of tbe general! or 

wairden to lo eip^ht uiitiJl the money 

be coined u: ta receave in the 

bullionL* wiib' M* same for ivber^ 

4i>«**"^^'' "" in rvuHs tbev war« 

(•^^ f e ttnd not taken by 

^•if';. jij WHS tinv ibtni^ batsc 

tkerwas so lutjcb abaitiHj of tb'e ptyce and 
tli« butbunc arrot<* accordingly to the goods 
iaiporlrd And tlie i^^wrvAW not bavtnng r«- 
C«airi^l tbe bulbon nor bein-^ o6b'id^e:d to rc- 

" f^ Ibe Mime hut the master by the act of 
ameiji \» aljowed eilbtr to receiifelbe bul- 




Iki in tbc ori^inaK 



UcMie or mony for the same and if \\^ excee^'J 

bis war rand he augbt lo nu^V fur ■■ 

And the clerk wan ako a check u^» 

that this debait i» uunf^^ce&sojy ic(| 

be bis ma'ties advyciit aud u\ loniif 

■■"■'■■ ' '■' ■ ' "-■ Ulgbue^ i'ii' ' ! ' c 

:d wllSt ^ 

to be ly V I 

and its po,siL.<^ 

oJbcers of tbe ^ 

wjtii tbe deau ol ^- - _ i * 

of ihe hiindredib beamr tben \\x< Iscois pyij 
of weights and tbiil they aiiainp tvonrd the 
peaces with tbe fractiones » 

VVbilk ^AxX article ot the h i> - 

aisled one alledgfanee moAie |or tUi^ K<ii\^ (4* 
Lauderdale gen^all and the w'y' matie b/ 
the ninstei- aiul duply tiode tbertv togitbi^r 
%vith tbe ansV above writtea u^« W bip 
ma'ieis adrucat to the baill Being all at lentU 
read heard and ^eeti and cotii^idered be tbe s^dp 
lords they repelk-d tbe fors'd ;illeadgeanc^ 
tm/Ae fur tbe bM )2;enerall and umister ol' ilia 
Mint in respect of tbe lybell aud reply butriug 
tbat the officers of the Mint receaved in tby 
buUione with the dean of Guild of Edinburgli 
bis weights and troned the inouy with tbe 
tractions of the kings weights whilk the s^dfi 
lords flTand relevant to be proven * pro lU ' 
* dc jure' And for proveing tberof and of \ 
tbe quau title of tbe buflioue lybelkd in tbe hM 
sixt article the saids lordti assigned to tb« ' 
s'd sir George Mckenzie bis iivVttes adf ocut | 
and sir Patrick Home advocat for bis liigbn^^ 
interest ane certaine day now by gaine aoU 
ordained bis ma' ties advooat perse wer to have 
lettcrg direct at his instance for sumfooiuling qf 
such witnesses and proba*one aud alse to pro- 
duce such writts rights and docuiaeofs as b^ 
had or would make use of iar pmTciug tb*?raf ] 
against the sMda^ Tbtrafter tbe s'd sir G«ofgtt < 
>rkeuzie bismajestus advocat and mt Fatriok \ 
Home advocat tor bis higbues interest repealed 
the fursMfleiveDtb article of tbe tyMI anenttba 
profit of the exaltatione of tbe mony and coyn^ 
biince tbe pro<:>tamation w bcrby tbe mony ww 
cryetl up being three ttbilling two pentiios one 
the uncc and the pro^t of t^jcaltatione as to the 
bullioiTP %i'lucb was in ti»e Mint tbe lynje qf J 
' and declaired bis ma- ties advoc^t 

the B*ds profeil« of the exidtationt» 
IviHjJctl Lxtendiug lo tbe »'d soume ol" aijtlren j 
thousand und two liundre^l |K'imds And tlie ' 
pro tit f if two hundretb s»ton of silver l^^ i»g m 
the jMint house tbe tyme of tbe rxaliationc! ' 
amounting to eight thousand jKJund for 
whkb tht y are lyable to bi^ umjostic Agaiust , 
^bicb article it was alMgt'd be the s'd earle , 
of Laudvi^inle hiB pro^rs nliorc named ibil 
wher the marclntnK tk'"*^ « «l '" moi ♦v in place J 
of bullion tbcrt (be b«iM^! 

fiteof tbe exultf 1 . . *' in ttokr ! 

rn'i'haahilJing Hcols in (lijice ot the oimce of ] 
bulli**ne And in tbat <?fir«c tire officers of the 
Mint prof yded by ib<? bultione and ^btrthe 
tnarchantsgavc tn tbf builioni> be bade tbe 



923j 84CHAAtESn. Proceedingi against the Eart of lauierdak [SM 

weight by the marchants in svre ikr as ooo- 
cernes the kings interest and assigned to liis 
majesties aclTocat for bis highness interest a 



benefite of the exaltatione as is clear by the 
prodaniationc crying up the money for the 
marchants bein^ 'backward in giveing in bul- 
lione to the Mint to incnrradge them therto 
it was appointed that they should hare the be- 
nefit of exaltatione and so wheras befor the 
prorlaniationethey got fifiie fyve shilling eight 
pennies for tlie ounce of buUione afterward 
they got fiflie eight shilling ten pennies for the 
ounce And therfor the defender cannot be 
found lyable in the exaltatione mony unless it 
could be alledged that the same was re- 
clamed as the marchants b^ the officers of the 
Hint and as to any bullion imported and bought 
by the officers of the Mint they ought also to 
have the benefite of the exaltatione in reeard 
of the hazard of the exchange and others which 
they can* To which it wto replyed be sir 
'George M'kenzie his majest's advocat and sir 
Patrick Home adTOcat for his highness interest 
that seeng by the fors'd act of parliament anent 
the bullione the marchant men were allowed to 
pay in twelve shilling for the ounce of bullione 
which the gencralls and master of the Mint 
liaveing imployed for bullione and lb coyne the 
same for his majesticf use the king augbt to 
have the benefite of the exaltatione of the 
bullione imported by the marchants seeing 
tliey bought the bullione at so easic ane raite 
since the proclamatione for crying up of the 
money as befor And it is positi?eIy nflercd to 
be j^ruven by the earle of Lauderdale and lonl 
3Iaitland ^neralls in ane compt betwixt 
them and sir John Falconer they craved pay- 
ment of the exalt'on money and that by 
the same reasone they cfaved payment tlier- 
of from the maister by that same reasone 
it must be dwe be them to tlie king non of 
them can pretend right thei*to but the l>encfit 
therof must bcloncr to the king And albeit the 
marchants should have the benefit tif the exal- 
tatione yet the officers of the Mint can not 
make it appear that they payed it to the march- 
ants and they have noe riglitto retain it them- 
selves and thertbr they ought to pay it to the 
king Which scvinth article above Cvrittcii and 
alleilgeances made against the same and reply 
above specified made therto being at Until 
read heanl seen and considered be the sMs lords 
they fliind that the profieit of the exultntionc 
as to ail}' bullion and coyned mony lying by 
the otHcers of the Mint the tyme of the exal- 
tatione belongs to the king As also as to any 
bullione imported by the officers of the 3Iint 
since the crying up of the monv that the 
profite of exaltatione lykewayrs befongs to the 
king and as to the bullione sold and delivered 
be the marchants in weight to the ofYicers of 
the Mint The benetite of the exaltatione be- 
longs to the marchants confonne to the act of 
counsill viz. three shilling and iv^o peniiicii 
upon the ounce And tbeHop the sMs lords 
•ssolved the officers of the ANnt as tu the ex- 
mltatfone of the bullione sold and delivered j*.) 



* So in the Original, 
t 80 in the Original. 



certaine day now bygaine Ifor prbv^ing the 
quantitie ot the bufiione and cnyned moaj 
lying by the officers of the Mint the tyme oif 
the exaUatione fors'd and of the bullion im- 
ported l^ the officers of the Mint since the 
crying up of the mony and ordained his ma- 
jesties advocat to have letters direct at his in- 
stance for summonding of such witnesses and 
probation and alse to produce such writti 
rights reasons and documents as he bad use of 
for proveine therof against the s'd day Ther- 
after the s'd sir George M'kenzie bis ma'tics 
advocat and sir Patrick Home advocat for bis 
highness interest repeated tbe eiffht article of 
the above written lybell anent tbe yearly in- 
tereit and piofeit arrysmg by' tbe bulliona 
payed into the officers of the Mmt by tbe mar- 
chanU and lyin^ in thcr hands yearly th* 
years above mentionat and not cuynied And 
also the nynth article of the s'd lybell anent 
the melting doiiu of the leg dollors and doncat- 
douiis since they ware current in the king- 
dome and which current mony being melted 
doun is not to be considered as buUione Bat 
tlie defenders notwithstanding therof mnst be 
comptable for tlie twelve shilling Soots which 
they receaved from tlie marchants for the 
ounce in place of bullione soeng they ongfat 
to have bought bullione with the tame '*and 
not melted doun the current mony of thelciiig- 
domc wlierby tlie king and his sulgects re- 
ceaved noe advantage But lose Aifd declaired 
his majesties advocat insisted for his highne* 
interest upon the s'^s two articles for payment 
of the soumes above written therin contaSbed 
confonne to the summonds A^ins which it- 
was alledged by the earle of Lauderdale his 
pr'ors above named IVinio That tlie gcuerall 
of the Mint is not concerncil in the nynth 
article but only the master Secunijo By t>* 
hiindrclh luurtlc nynth act fyilecuth parlia^t 
king James the sixth forraigne coyne naav Itt 
melteil doun And also the sM sir John Fal- 
coner compeired and acknowledged the mell* 
ingdoun of foragne coy n current in this king^ 
dome because he found noe standfng lair 
against it and that it had been tbepraetiief 
the i^lint formerly which considerationes nndift 
him to doe it \Vherunto it was ans'd be thi 
pro'r above named for the sM earle of Las* 
derdale that they desyred it might be mariied 
that the master acknoM Knlires he had noewlur* 
rand from the generall lor melting doun tbe 
currant mony of the kingdome To which it 
w:is replye<l by his ma'ties advocat and flir 
Tati-ick lloim; advocat for his highness inter* 
e^t that as to the* ])rofitc of the bullione iiB* 
ported by the mor'ts and not covncd yearly 
by llifi officers of the Mint an J as to tM 
nieltiitg doun of the dollers ducatdonns and 
other run-ent money the gVrall master and 
other officers of the Mint l>cing conscious Hi 
the same are lyable to the king in solidum"it 
being expressly provjdsd by the fiflie nynth 

4 




t,/or Official Malvfratih 



ftCt paHia^t ibcrta;nth kirtf^ Jtimei the si*€Ofjd 
that ib« coy Hers coyti noe itioiioy thuin cryed 
U> have coursv Id the laud undei' the painc of 
tifatb And more fully by ihe six tic fyvt act 
parliu^t eight king' Jame« the third by which 
Its provydi^d ihiU in r««w>ct when mooy is 
tnelted i(oun rt ts dtiutnistied wastcil and 'dis- 
tn^yed in the tniiisintione by the tire to tlie 
fpy^t prfjiidii'v oi' the kin^uome Tbertbr iioe 
niony tbttt is current iu ihi; kiui^dome should 
b« melted doun for buUiooe wtlhout special t 
boence and charge fronj the kin^ And by 
the stvent«i!Dlii act parlia't tir^t kiii^ Jametii 
the sixth the nicUingdauo of current nciony is 
dincbar^d under the painc of ei^cbeat with 
the half of ther mDv'lls for tbo first Mi And 
of the hafll rnov*11s for the second fait against 
llie owner and mdter which does not dcrogat 
fp" I cd' unrlia*t kin^ James the second 

d(^ _; the same under the pain of 

deuiii uiM'ii 1!^ lykewnycs agreeable to the 
common law by which it is provyded that the 
uieltiug iluini clipping- diminisbin^ or oiber- 
vrtiye^ att^^i-in^ the curTv nt mony of« any na- 
lioue 19 punUtiabio with death and if punish- 
able with death much more aofrht the mony 
aonteheddoun be confiiicat to the kiii^; Al- 
beit the melting doun of the current niouy 
bad been only simply di«;hai^ed and no pu- 
niitbment at all ejected but only that the !uime 
hade bt^n discfaar§fed by tbe law It ware a 
Uatumll and just punishment to punish the 
COOlraviners of tbe law by oonfiscating the 
subject by which they contra%'eefi the law 
An<l allhiit this punishment ware not exprest 
but here there can not be tbe leai*t doubt or 
iniestiuue l>e<^iiuse by the la.st fict the nidliniLr 
liuune of the current mony is dLscbart;c<l undc*i 
the pHiue ot contiscatione ot balfe of ttie 
tuo%eHls for tbe tir^t fait and of tbe batll move- 
able* for tbe second talt and the defenderi* hes 
not only committed one fait by one mcltintr 
uoun orthe current mony but all this wbyll 
by past for many yean togitber did lykewaycs 
melt doun the dollars and doucatiJouns and 
otbf-T ctirrt'nt mony in place of bullioue to the 
ill' 1 '^lu;e and trade and impoverishing of 

til ^ic which a the great reasooe tber 

jH sti iiur uiofiey 111 ihe cunlrey And ther bes 
lieen much ot the ibraigae cuyoe that in cur- 
r<-rr ■*' •' ' ' ' j-dome melted doun ADd ooe 
ii m as it pugSt to have been 

tf ■ u wonder tber should be any 

ii* Jiiig in tbe cunirty And uemg 

t; tlu' iiH ItLTs doun of tbe current 

lii iod with the contisicatiofie 

cil timi'b rnoie with the 

Oiitili»< Ml li > ^ ^ A meltiLHi doun 

being - -u . i ifeiu Liw and their 

In' Iv !l ' iv>o hundretli fourtic 

li 1 I i|j king Jstmet tlic 

%ai AUnMii'^ till ' ' uyoe tub« br<jugbt 

in to icrve »» bul OMtji^i^ cuuniiM 

iMuae ^ ' ,\ :ui }% only a« to tbe for- 

rti^i (« tiut to have course in the 

ktngdoi,.. i^ Id Hbicb it Vffti 0)0»4 iust and 
foouiibk that it abotdd ba llliU«il Oouu for 
VOL. XL 



bullioue but that c,anni>l b^ ^\(endit t»* for- 
mignecoyne that is i- ' 

a« to wlucli foimcr 1 1 

down tlierof stands yttjiiiLiT aim a* un>^ m 
clear by ibe law 50 the reasooe of thu law in 
most just and c«]iut«hle For when f " ' "■ ? 
coyne is appoynted to have cout^e in 
dome Its noe more looked upon as i , : 

but our own coyne it being appointed t" t >>- »* 
owr own coyn by his ma*ties warriUKHo Uiat 
as tbe melting doun of our own coyne would 
be a con trai^ent rone ol tliese laws by that aame j 
reasooe the melting doun of forragne coynt 
thats appointed to nare course in the king* f 
dom as our own And if tbe defenders bad 
melteil doun our own coyne as that would 1 
have been confUcat to the king ao by tb« I 
s^me re«UH>ne the doUers and doncAtflounet I 
which ware current mony being melted doua ( 
coutrar to express laws wnder so severe pu» ^ 
nishment aught lykewaye* to be coutiscjit to I 
the king without allowing tbe same as bullione 1 
or aoy thing upon tbe accompt of dewes of J 
coynodge tor the reasoncs fors'd and otbcrtJ 
above niHiituiitrtl n hitting to the copper coyne J 
V tt artjcleaof the sM lybclt^ 

t , 1 t ; .1 upon alledgeanoes pro* 

pooed tor the earle of Lawdcrdale dfelaratjuut j 
of the said majiter of tbe Mint and answer j 
alH>ve written being all at lentU beard read] 
seen and corisidireil be the saids Lords ^^i^j\ 
ifand the fon»M eight aiticle of the sM lybcU ! 
anent the yeat-ly interest and profile arr} Hitig b/ J 
the bullioue payed in to the officers of the Mintl 
by the marchapts and lying in tber baudtj 
yrsjrly fln<l not coined in due time rclevatilj 
;ind aduyittit tbe wiilie to the pcrsiewer** proba- 
tioue And also fTaiH! t» >"« ♦'"^ •"liing dowai 
ol the *follors tbesair i mony i«1 

the kingdome and li »ince thttj 

tyme they u are cut; lume can* 

not be nilowed tu tu lh bulhbn#1 

hirt thai not with stand mg they are eomptabl«| 
tor the twelve sbilline HcotN which they le- 
ceaved from the marchants tor tbe ounce jml 
place of the bullione And udmiltit tbe saiAl 
nynth article to the nerscwern probattone an^i 
for that effect the saida lonU abaigned to the 1 
naid sir frcorge M'Kcn/ie and sir PatnclLl 
Hume adrocat for bit majcstica tntereift a «*er- j 
taineday now bygaine for provt * •' r tail 

eight and nynl article And or »^a 

jesties advocat to bftir« letttfTK il*^ ^. »• iiui ia 
iftance for bummonding of kucIi witness hd^I 
probatiotie and *N* «" produce fc<**b 
rigbtif reasones iu«(ii» en I 

proveiog tberot ■ ^ «- nid du v 

air George M^KcoKic tiia ma'h 
Nir Fatriok Home adrocat for 1 
tcrc«t rci^entrd tlje tbrsaid lent 
*aid lybell That tbe enrb'* ol i 
ccufcd doiible payriK*nt ol' thr 
•* master of tbe Jlint vL/. mn 
cw«; of lidV by a pmxpt tiotu tlir king 
And lyk« *vayt*A Ktr John t^aleooer who* 



• 9o ta tb« Oiigiidl 




fSTJ 



34 CHARLES II.' Proceedings &gmiui ike E&rl of Ltmiardak [888 



offered to be proven and lie augfht to retbund 
ane of tlie souines payed lieingf four thousand 
Bvn hiindi'eth pound Lykwayesreiieuted the 
eleTenth article of the above written lybell vis. 
that the defender got six hundreth iwnnd ster- 
ling as a bud or bryb from sir John Ffalconer 
to obtaine his accounts allowed by the exche- 
quer And alse repeated the last article of the 
above written lybell viz. That the carle of 
LAtiderdnle delerider extorted a sonme from 
the wairden for the third nartof the remedies 
of wei<^ht alle't due to the counter wainlen 
Whcras the generall of the Mint being the 
kings comutroller and these remedies belong- 
itig to tbc King to whose use he should have 
•cen the samen applycd and yet he cau«ed the 
niony due for these remedies to be i>a\ od to 
iiimself Against which it wns alledgedbe the 
fe&id earle of Lauderdale his pro'rs nbovenamed 
(denying the suid tenth and eleaventh articles) 
that the said eleaventh artide was calumnious 
and the earle is content to fmd the sauK^n re- 
levant to be proven prout de jnre And as to 
the last article alledorcd that the remedies of 
the weight by immeinoriali possc-ssione be- 
longed to the wairden and counter wajrdcii 
and ther is nothin;: in the lybdl as to the re- 
medies of weight and if these belong to the 
king then this article will not have place To 
which it was replyed by his ma'ties advocat 
»nd sir Patrick Hfome advocat for bis majes- 
ties interest that the remedies of weiglit are 
Only allowed to coyn npon and to save them 
from hazard when tliey are not without the 
remedies But they must not work industri- 
ously upon the remedies to the pr^udice of 
the countris which if they doe the remedies be- 
longs to the king and not to the defendera or to 
the wairden or counter wairden the same not 
being in itselff allowable and nothing being 
dwe to them by ther ordinArio tees And it is 
offered to be proven that the officers of the 
!11int wrought industriously upon the remedies 
^'hich were due to the kin|S^ and the per- 
tewer needs say noe more but that the de- 
lenders lies transacted upon that which belongv 
to the king Wheninto it was dnplyed be the 
Mid earle of Lauderdale defender his pro'rs 
ftbovenamed adhearing to ther former alledge- 
Bncf's that his majesties advocat aught to 
lybell the last article thus that in troning the 
peaces coyned albeit they were not found of 
"ftuffitient weight yet that they ware stumpted 
and vented which consisted m the generalPs 
knowledge But if after the troning and stamp- ■ 
fog the peices be found not full wc^glit it is 
nothing to tlie defender To which it was tri- 
ply ed ne tJie said sir Oeoi^e M*Keozie his 
Katies advocat and sir l^trick Home advocat 
for his majesties intrcst That they opponed 
their former rcplyes that the officers of the 
.. Mint did indoKtriously tron the peaces ui)on 
"tfie remedies and the officers of the Mint did 
•o malv«rse as to the particullar that wlier a 
peace came to be troned of a just weiglit they 
iHd throw it bark and cansed sheive it domic 
^amediaa H^ tftw/ <«biiantly and in-; 



dustrionsly tnmed the pcioea upon the reme* 
dies >Vhich three articles of the lybdlaboT« 
written repeated and insisted H|Km alleadgaBcet 
made against the same reply and duply abovo 
specified made therto being all at tenth read 
heard seen and considered be the saids lords 
They ffand the forsaid tent article of the said 
lylicll anent the earle of Lauderdale bis re- 
ceaveing double payment of bis three years 
salluric above mentioned relevant to be proven 
trripto And als faml the forsaid ellevintD arti- 
cle of the said lybell anent the carles reoeaving 
a bud or bryb of six hundred pound sterling 
from sir John Falconer to obtaine hisaooouots 
allowed in exchequer relevant to be prorea 
prout de jure And before answer to ne last 
article of'tlie said lybell the saids lords allowed 
a joynt probatione viz. to the iiersewer to prove 
that the oOioere of the Mint did work indiistri- 
ously upon the remedies of weight which ait 
doe to the king and the quantitie of the reme- 
dies and the wairden and counter wairden to 
|)rove it by custome of the Mint ther was sny 
thing due to them out of the remedies of weicfal 
for tner office And reserved the coosiderAe 
of that point anent the a'rents untill the oon- 
clusione of the cause And the saids lords as- 
signed to his majesties advocat and sir PUrick 
Homo advocat for his majesties interest a eer^ 
taine day now bygaine for nroveiiig of the lor- 
said tent and elevinth articles of the said lyMl 
and als that member of the forsaid interloqoe* 
tonr upon the last article of the said lybell ap- 
pointed to be proven be the said persewer And 
alse the saids lords assigned the samen day fbr 
the pro'rs of the wairden and counter wairdsa 
above named for proveing tlie other member of 
the forsaid interloo'r upon the last article of 
the said lybell and ordained either partie to 
have letters of dilligence direct at ther instanoi 
fbr summondingof such witnesses and proba- 
tione and also to produce such writts rights 
reasonos and documents as they had or would 
make use of in the said maitter against the 
said day reserving to either partie to dgssl 
contra producenda and against witnesses m 
termino as accords Thendler the said sir 
George M'Kenzie his ma'ties advocat and sir 
Patrick Home advocat for his roajestes intreit 
insisted against the said Mr. James Falconsr 
as representing the said decdst John Faloootf 
his father laitc wairdan ufton the passive iMss 
and particularly as successor to him tiiulo §^ 
crativo for his raalvei-satioiis in relatione to the 
copper coyne and other articles abovcuMB^ 
tioned and fbr payment of the soomes if 
money arrysing thcrby as also against ^Mk' 
bald Falconer late counter wairden fisr thu 
abuses and malversations comitted he hin hi 
relatione to the article abovementioned It WM 
alledged by the said 31r. James Falconer Ihr 
himselfe That he hes ane dis]>o6itione fnm 
his father fbr onerous' cans' an<l the same is 
with the burden of his debts and this lyMI 
being for vast soumes of mony lie dcsyw % 
tyme may be allowed to him to advise wlmi 
answer at wMl make theito And alseft wm 



K. 



^] mni^otheri./or Offieial Mahinaiionu 



A. D. l«52. 



[S 



«iMgedb« ibe mid Mr Ximcs Falconer at 

f*r for the said ArchbaUl Falconer Thai the 
1 ArchbiJtl aii|flu to \v& ajiaaljcied )j«caus4^ 
^\\ is bui hill* Ix^jug- ^raut£^d allGr the 
4» e d a of malfersalion*- lyli^Mi**! To whilk it 
WM revived be \\\h im / t aud sir 

Ffttnck fioiiie ad vocal : i(il4>rc^t j 

thai a« (4 tl> " ' ' ^* 

James Falci i 

' the ftti : 

I nblJV» ;.].... ..^.iv;l., : „ 




I liie above writtfn urticliss 

-^ ,^ (<»r Uie sauines tiboveineii- 

Hf^nedtobmi be ntuit instnicitbt; ooi^roiis v^um 
f>f Uic difipo^iittan uml albeit he sibuuld iuOruct 
the onerous cauw? iherof Yet uotwithsUoding 
hv uiusi be tyal»le to bts itiHJestte for tt»e dis- 
|io»iiJun*» k'iug (jrantt'd by \lw i\ia\%ex Ut 
ihe HAid Mr. J unites Fabniner durein*^ bi^ 
iruwt tJie tyr»j<^ lie was in the t>ffiu* lis> 
prcsUKied iti iaw^ the sAme h^s been t^rantiHl ot' 
nj€^ti*i The ihtb^r 
thai by the ati^ 
" - - t-' MioiMjd Ihj 



purpofi 
iiciciff t 



be admiue<1 to probatiane As to which it wi 
represeuled by 4!ie sM brd MaitUmd that in 
was minor wht*n he was joyned in the romi; 
sioue witb hiit father anno Im* ^} ^^ '^' 
Anil tbis being ane aciiooe at his tu- 
y unsi him he wouU! iieil 

u^dvocat to debaite ^ 
lu^fjs to be iorarmcii u> 
El he was jovned in the i:c' 
M.i Uibcr u« Vd Is .4itd that Lv im^^«< 
I the second cojjjier jurnay that bcii 

^*,„.lud it) parli^-'itt-'i' n,n-^)m ij lit- lii'i n 

ftOil abo by a f f ] 

iie wuf oil 
■ ■ _ ,ii.jo iheyr 

lui. VIC, ftiveulie lii^ii be ht«d uti lH.'ne5l no 
siiUaiic uor any nf the peimiisits of the Mia 
add that tJ)er wa^ no particuUar warrand't'a 
uruci?^in£>: him his tna'ties \rarrand nnd uaMij 
m^ all the oflioers fif the Mint thai waj'e to hi 
perkcwed whtrin he i» not iiiimrd ntiitjh hj|| 




Icr 

ho ] 



d»^»('(•l^l \ytituf or aha- the 

Whilik ibove WTJttt^o pro* 

for tin- *. <iii Mi, James and Arrfdmid 
Ooeni iumI reply iibo?e written made tljevto 
•insf all at leuth red heard seen and consi- 
dered b<: the s'ds lords they hniW aii3V or- 
Gained the a'd Mr. James Fah^mcr to produce 
the di«|f<i«itiooe ^mnied to biiu by his fall^er 
ftod ioatruet tlwa ooeron leof A « also 

bel#r a»»*r ortlaijieit Am Icimer to pro- 

<tiiM his gifi aad for iL,., > ^ <^'ds lord» 

•«ai|ra^ lo tlM saiii Mr. Jar^ r a cor- 

UUMda^r now hygainc foi ,. il,* >s.M 

^§fmkwne and to iitslruct (he < 
tberi>f As also ta pr'Ofluct; ibe s 
FftlMMMHTB ^iii wjtb ajl i4h^t wnxu n*? bts rea- 
mmm and diOcumeots he lind or would muke 
I ol'la ti>« 8'd tnm*r E»o- 

lemmtiti the b\\ «. to 

I majesties ailviM-at to oh^t-A-l ivuira f.r^idu 
Themiiec ihi.^ s'd ttotione and cnofc* bc- 
f agaiic cut' ' ,' of the s'ds lor^lii 

|iiiVt4«S:i \tirick llomcudvo- 

t tor hi« lO.iM. s ,ui' . .1r;-Viirr.1 !t|.'\ m- 

aifU Hicliard Uh'I V i:.i ,i>.l .-. • riiiiict 
iffOetttJlof the Mini ! vMi^d oi ttta 

^muammui with bin t he may be 

^od IjrahW 1W all h >i.J iicf^ uMi] 

-■^-^-lel maUet-i^jatiiMi^ ^'t ill re- 

lobwownolhr _ r in rda* 

» to i[ic other otficf p» i*i liw M ml Ami for 
lone rttid iiuymcftt of ttk*' ^oomes #f 
niony ^ i auiJ re- 

•Iwl ih<* »'dg 

' *i^ irie ui' LaiiUcj^: li<:r 

'^> I j^'ftntrail and • ihe 

iyian.ij iiif'ainst the Und .>i.ull;viid an 
r ^9t^^ct geucfuU q|* |i|^ M ^*^ nugllt 




And albvit he wl>. 

■i rrsiitlvt-ii 111 urn 



bti 



nh'r tolI»c lybdlyf 



hik ina uc uick Home i 

vocal fur I < That albeii 1 

ford MuitliiJid li^d ha^iii mm^^r when be Vi% 
coiyoyned with hk father in the othce yet I 
ou^ht to be lyable for any abuses nnd inalve 
SJLtiones committed m that office by the olh^ 
officers of the Mint f;ceng he >ia« the supiea 
otBcer of tiie 1^1 int conjoyurd uirh hi^ tlatbd 
and had potier to ixtutroU all the orticers of th 
Mint and to hold courts and punish dchnc|oei] 
or at^- ■♦ "'m ..(i-.-^ tf iht* 3Jint tbat ha 
utal V that he n as [ jjV origl 

oin'-. Jlint ritiiouriU'?'irUw 

abuses c> '-y t^ 

lie aught 1^ <|i»ij" 

iuto I iii I I rti that tbt?r iiad 

no a. I 111 ilw I ^.sumcs committed in 

btioiii? iiitrtti And it auy of the othccrs lis 
mah^n^ed he as one of the ^eneralls au;j^bt ip 
iuuc ptintsheil them wy^ wayes acquautcrd Uis 
majestic that ha mi>flit have remhved tit em 
from tbtr ofhcc* and repeat-* the lormer grounds 
upon wbicli IIk' carle ol L;iuduTdalc hi* ttutier 
\ras found ly«hU; to hiiii majesniL' Ami %% htiras 
it ik alledfifcd by the lord ftiuitJand that he was 
tninor whcu Lc was coojoyntd m il»*i oliioe 
aud ih^ he waii ^Mt of the kmifdouic smcu the 
ij \n\. vir. viviiaic it IS au^'Vi'd if a mtn 
I le coil ! Hi lit ao y ab uii 
■ ** his i«morciy will iM>t. 
ix huu from ihe refill utiuue 
nod incio«tir»- Mi.Umuiii *-*|;« 



year 

acitM'i 

the 

the i^rnt 

nw.nt!. 1 



llltM^ 



-hii ' 






fiice wiiti hitf 
utHcf^iH tor 



vii\»iv4'ttty %>hi<5h 



i» i)^ 






34 CHARLES 11. Proceedi 

Act fif matrcrsatiorie as can be for if a mnn ac- 
cept of une office cif tnist e«()eciaUy of ^reat 
trust as to have inspectione of tlie Mint and 
covnailg-e which is of so great a concernmunl 
to bis uia*tic and the ^vhollkiagdome and whu 
by ibe nature of his office was to redarpiie and 
c(>ntir€ill the other oflScei-s and punish them 
Ivheo ttw^y committ faults if nny man in such 
a trust Should be negleg-ent and Je&ert his office 
he aucfht not only to bo lyabl« for these things 
tfiat are incumbent to his own office but for the 
abuses and mahersations committed by the 
other officers under his power and jurisdictiot|e 
And albeit ther was no particuilat warrnnd from 
his majestic for persewing- the lonl j^laitland 
with the oth6r officers of the Mint it does not 
import for this beint^ only a process for a ciTell 
eflect of the ivstitulione the kin^ adrocat is 
sumtiently warranted by vertue of his office to 
oersew aU civill actiones whorin the king- may 
ne concerned without anie speciali warraud 
fVom his niDJeMtie and all that can be alledged 
lor the lord Maiiland ,is alrcudy proponed'for 
llis fat! I or and repeats the former itJterloqV ag-'t 
his father Which suramouds abo?c wriltcn re- 

]>eated and insistf^d upon against t!»e lord Mait- 
and alleilji^ances proponed for him and ansVs 
above wntten made therto being ail at Jenth 
read heard seen and consider^ be the sMs 
lords And they therwith weill and ryplv ad- 
'vysed they ffand that the lortl Maitland being 
conjoriietf wiih his ffalher in the commissione 
that tiio proccs most also goe one against him 
allbogh he declyncs to propone any defence in 
tbe cimse And therfor the saids lords admitted 
the lybell acfainst him to the said ptrs'rs 
"j>rot'atione And for that eflfect assi^ed to his 
*liia*tif:s advoc^at and ^ir Patrick Home adroeat 
^for his ma'des interest a ccrtaue day now by- 
Cfaine And ordained the s'd perscwer to have 
Jetters direct at his instance for summondin^of 
^auch witness and probatione and alse to pri>ituce 
'audi wrttts rig'htB reasones and documents as 
•he had or cnuhl wse for proveing^ the points of 
4he fors*d lybeli a^^ainsl the s*d day witn certi- 
"ftcalione. r. as ane act made be the s'ds lords 
' 'pxtant in proces b«ars At and afirr the wbUk 
"'ferrae sua assi^^nd the s*d actione und cause 
I '"beiniT ng^riine called in nrcsencc of the sMs lords 
jkhcsM sifGeorf^e 3I*keazie hisma'iies advo- 
[^cat and sir Palntk Home ad?ocat for bis hij^h- 
f»es interest ffor proveiniy of the scverall pumts 
und articles of the fors*d lybell flbund relevant 
' find admitted to his ma*ties prohatiune in 
' tnainer ubore ^pc'cifird craved that tbe lords 
^iiiijlit LTTint wttrrand for tfun^iiiiiiiMr* <,r i^^ 
! pa|K.n*s produced ! 
r i)|iointed hv bts jiut'i <x 

.lite Mmt And df; s, und 

v^tfirrK f AkpTt hrtbf • "nnpnl 



- lords 
ine to 



1 



Lib iiiM uaatiM rciauiu^ 



lu xuv niitn cuu' 



htg9 ugaln$t the Eart of fjiv^t^dale 

fiifmc whcrunto tliesM Jan; ' 

duced the books pnpers and <h ; "*• 

inir viz. Imprimis Ane unsitljcijMjtl compt 
of copper bearing that the weight T«ist waa 
twelve thousand four hUndreih and nynlie 
three stoos three pound priutetl value is twd 
huodrethnyntie tour thousand four bundreth 
fiftie fyye jwund four shillm^ conned Is war- 
rand is two bundreth aiitie six thousand fyv a 
bundreth and ttrenty ane pound m\ !>hi1liO|^ 
eight pennies Remedies light is twentie si?en 
thousand nyn bundreth thertie four pound 
fiiventeen shilling four pennies just balfe m 
threttein thousanti nyn bundreth sixtie six 
pound fifteen shilfmg four pennies As the »*cl ^ 
accompt containing ane poscript one the end' 
tlierof snbscryved be Alexander Maitlaiid bear-- 
ing that he being called and cx>mpeirand km* 
for tbe committie and interrogat whose haiid 
writt the above written account or paper waa 
declaired be belives the same to be hand wril* 
ing of David Maiiland bis brother bears Item 
two leaves toren out of book containing the ac- 
compt of the copper coyned in tbe months of 
January February IMarch A prill May June 
July Se[*terabcr October November and De- 
cember Im. vi c. siventy nyn January and Fe* 
bruary Ira. v i c, eigbtie subscryved one eteiy 
page by Arch bald Falconer Item atae couirt 
from the exchequer containing the complnit 
charge of bullione arr^sing both upon the ex. 
jiort and import of his majestieB kingdotae 
siaited tugither with the accounts of the parti- 
cull ar ports and precincts and collectors cuuntt 
therof both Htted and untitled And also bul- 
lione that does arryse from them what they 
have payed and what is yet resting both in the 
tyme of tbe severall tacksmen and general col- 
Icetors betwixt the first of November Im. Wc* 
sixtie ane years And the fii-st of November 
lm> fie. siventie three perused and calculal by 
WiUiam earle of Dundonald twentie fytlh oi' 
February im. vie. siventie four And bearing 
that the charge of the bullione which the maa- 
ter of the Mint hes receaved from the several! 
colle<;tors and marcbanls tbe tyme of the ao* 
compt eictended to tbe weight of one thotisand 
two bundreth fiftie eight stone fourteen [lOutid 
one ounce at eleven denire tine and als«» con- 
taining the account of discharge And in one 
of the articles therof hearing that the a'd air 
John Falconer compter discbargefi InmaeUwilh 
payeil to my lord Haltou no general I of his ma- 
jesties Mint for his fees ordinary und extraor- 
dinary being per annum two thousand six bun* 
dreth sixiie and one pound siv shdUug right 
pennies wherof four nundreth pound per an- 
num as the generall halfe of the stock io the 
Mint conforme to tbe act of pai i^ a 

parte and included in tiie s*d v j lU-rie 
which being resting since Decern be i Uu. vie. 
sLxtie years he say he payed to hislo'p for 
twelve years viz* from December lra« vi c* aix* 
tie tilt DHeeml»er Imr vir, Kivf^ntv twf> years 

.ih 

uuii «;ti^ntif; bix puuuus ocotx money aa ino aM 



^miatm 



^■^■rita 



.a 



Bd 



2S3j 



ond o(krrs,fer Offldal Mahtnationt. A. D. 1688. 



[SS* 



acciiuiils cpnUiniflg- several uther articles and 
iijifin tUeeDdctiriUitning'ane f^H]«ci'i|it siibficr^ved 
be Juhr* duke of Lauderdale his ma'ties cnn»- 
missiouer for ill e tyrae John earl of Roiht^ss 
lord high chancellor aud William earle of Dan- 
dofittld lords commissioners of his ma^ties the* 
•aiir« And als hy sir John Falconer himsplte 
ilatod the 16th day of March l«i. vi c.seavioty 
four yeai-s l>eanu^ Ihe s'd acconiit of the charg-e 
mid discharge to he examined perused and cal- 
culul hy lliem at more lenth bears Item t^f^o 
letters siihscrvTed by Arch ha ki Falconer direct 
for sir John Falconer one daited the iberleenth 
day of August Ini. Tic. seaventle nyn years 
and the oy' daited the sixt of September 
1 m, f i c. seventie i\y n years I tern ane other mis- 
siTe lettei" subsci-yved be Archibdkt Falconer 
and Da?id Maitland direct for sir John Falconer 
dailed the third day of September Im. vj. c. 
seaTiiily nyn years aciiuanting' him that the 
dav betbr the lord Holtoun beine" in town gai^e 
orjers by Daviil Maitland to taJl to prinling" 
^ith all expeditione containing severall other 
pur rku Hal's Ittim ane other letter snb5cryved 
m Oavid Falconer daited the tenth day of Sep- 
tember tra. vie. siventy nyn years 'direct to 
sir John Falconer shewing him that Master 
Maitland was at the couynzie liouse one S«- 
turnduy befor wiio at ther desy re spoke to rniis- 
ter Ueightman for furdering- of the work And 
that the lord Haltonn was there y ester day a 
considerable apace of the tbiicnoon being very 
HfiilJ pleased with ther expeditione and con- 
tainingf §evei'ttll other particullar* Item ane 
unsubscry veil letterfrom my lord Haltoim dait- 
ed the eight day of December Im. vie. sea- 
vinty nyo ye^T% direct to sir John Falconf?r de- 
siring- him,to shew David Maitland his precepts 
auil recept given by him for mony giolten since 
ther last account and with him to prepair the 
iiccornpi for the lord Hattoune to shorten the 
lyme which he knew he could not spaire for 
o(htT busincs And shewing^ him he rcfen^dto 
David Maitland to tell him his thog-btM Item 
ane other letter svbscryved by mylond Hattoun 
daited the twtlft day of Februarv Im. vi c, 
and eightie years direct to sir John falconer de- 
siring sir John to shew the bearer thereof not 
only his rcceptn but all that he had to say as to 
the s'd lord Halionn part of the rxpenu* frreat and 
email and leHinif him that he knew the hearer 
^as Irn^led hy him And so he lieliooved to 
pivpairall the accounts Item ane receipt be 
the 8'd Charles Maitland lord Haltoiic daite 
the fourih of Jannary im. vi c. siventy nyn 
y«ara Wherby he grants him to have re- 
^e«?«d from sir John Falconer jtiastcr of the 
BUntcomplcit payment of the equnll half of 
the protit of alli^pper coyne coyned betwixt 
the fors'd day of June Im, vi c. siventy siven 
and the first day of Jaunary Im. ?i c. siventic 
II vn Item ane other recei*i be the s*d Charles 
^Ittitland dated the tivelrt day of May 1680 
%vherby he ^ants him to have then and of 
befbr to har« rexjeaved full payment ami satis - 
tact lone from sir John Falconer master of Ym 
ina'tiot Mint of the profite of the but copper 



jumey coramensing' from the first of May 
Im. vi c. sea?enty seaven years to the oon- 
clnsione therof beings the tenth day of Fe- 
bruary Im, vi c. ,eii>fhtie years beings the fret 
profit of the eoualJ half therof coolorrne to his 
majestes gift Item three little papers or g^oe- 
rali scroll anent (he divisioneof the copi>er re- 
medies Item ane caocelle*! contract betwixt 
Charles Maitland of Haltone gcnerall ot the 
Mint and fiir John Falconer dated the twentie 
ei^ht of March Im, vi c. sevinty s«*avejfi yenri 
wherhv the sM gfenerall assigned to the said sir 
Mm Fttlroner tlie equall half of the twelve shil- 
ling- to been [ail' oriV.] psid in by the marclmnts 
for each unceof buliionein place of the said bul- 
lione and that of the siyd year viz. from tlte 
iirst of February Im. vi c, sivcuty sivcn to the 
first of February ]m, vi c. seavinly eight with 
all fioumes of mooy that should aryse therby 
or should be payeil in place of the bullione for 
the s*d year tor payment to the B*d generall of 
two thousand marks In lew and satisTiictione of 
histrwe and Uw^uir pmfits of luroishing the 
s'd hullione and containing' ate diijcharge 
upon the back v^^^ »ubscryve<l be the said 
Charles Maitland daited the Fourth of J an wary 
]m. vi c. siventie nyn wberby he grants hittt 
to have receaved Ibll payment of the eonlenls 
of the s'd contract as also of the like soume of 
two thousand marks for the snbsccpient year 
from the first of February Im. vi c. seavinty 
eight to the Unit of February Im, vi c, seveinty 
nyu conforme to the s'd sir /ohn Falconers banll 
ot the daite the Iburth of Aoj^ust lin. vi c* 
seavintie siven years Item &ne other receipt 
subscryved be the said Charles Maitland 
wherby he grants him then and of befor to 
have receave<l from the sM sir John Faleonw* 
master of hi^ majesties Mint the soume of two 
thousand ruarks in full payment of his pairt of 
furnishing the half of the bullione not fiayed 
in specie by the marchanis at tweUe shilfing 
per ounce conforme to the prio'l! act of (iarlia*t 
and thai from February to February eonfoi m 
to the tbrsM contract and agreement made Iht* 
twtxt the said sir John Falconer and him and 
acknowledgeing biiii to be ^^atisfied therof to 
the Iirst of Fem^ary Im. vi c. .eigiity years 
as the s'd receipt bears Item the cojipit! of ane 
order snperscryved by Iub ma*tie and sub- 
scry ved by . Covealric secretary dated 

the twenty seavinth of August Im. vi c- 
siventy tyve anthoriKing aiid requiring tb^ 
wairden of (he Mint in the Towr of Inindon 
to deliver ane of the pyls of Scots weights 
unto Richard Maitland esqiiir ane of the ge- 
nerallfl of the iMint in Scothuitl to becaric<l into 
Scotland by the s'd generall and to remain ther 
with the otfacers of the Mint in the s'd kingdumc 
as the said coppy attested by the said Uichard 
ftlaitlaud and bearing the saraen to have been 
compaired with the originall which wits given 
to him by master Slin^j:sby master of the Mint 
of In gland and which attestatione is daited the 
fourth of February Im. vi c, eighlie two years 
item ane coppy of the comparisone of the Scots 
and English weights from great lo smftU Item 



i 



133] 




34 CHARIja n, Pr&miinfriif:mntke Earl of Laudtrdafe 



riuary 1m. vie. sciTinty nyr. till the tcnUi 
Fehniary Im. vie. vighlie ycfti's. llcrtrauM 
abievial of Ums huUione furtrt of the bofiki4»| 
exchequer from November Im. vie. sixiie aoi 
^1 Ni^v.-^iMhvr im. vie, eightie yenrn Item im 
t of the cuynie houw ooiit^tiii 

Thomas Achisone tntWler coy 



lIie«*<IChir1ea MaitUiiH htscloimeanenthifl pre* 

te&Lioni iti lurnt^hm^ the halfof the billione con- 

iMniag tlic tlrpuciitions of mr John Fulconer 

Anshmld Falconer and Jatnes Funjuar one the 

cud And back therof laJcen by the commi&sion | 

appointed hy his maje^tie for tJie Mint with sir i 

Joiio Falconer bis ans'rs therto and reply for ' 

the said lord Haltoae aud Richard Mitland lord i both charge and d i sch arcf c from the sea vinUi da/ 

juMiee clerk to the said aos'rs coutainin^ the • of Aprill Jfu. vt c. eig£tie two to the Brsl of 

depoflNione of »jr John Falconer sir WiThatn LAugitbt Im. vi c. and wis. * yoirs Iteai Iht 

8war(i and Jamea Farf]uar on the end therof I count and rc^^ester of the silver called ttie four 

lakea by the s^d commisfiioners tor the fiitat ' mark pea^^es tu'o mark {^mcta and half marll 

Ifeno ane onier or precept snhscry ved by his peices past his uiajesiUes irons Inioi the tw«iitie 

majestie and inhscryved by John earle of Lau- jtwoday of July inclusive Im. vir 

derdale aetTeiary daited the iourth of June the fourth day of Doceiuher lii 

Im, ri. c si xtie three vears requiring the Ui^'r ^ three liem arte account oft-: 

prin'll thea'r deput antJ collector of hh niaje«>tie8 | majesties irons from the seaviiii 

eitcyfO to pay to tkie iM Charles Maitland of | Itu. vi c. stventy tour to the ti4i.»..,.. ..... ,. .* 

UaJtone or any liaveing hti order four htm- i Decemher Itn. vie. oiglitie aue yeara Jtiniiauf 
dreth and thertcen pounds sterJin^ a^ certain I account of stiver past his majcatit^ iv.iu. tmra 
bygone tees rosittij^f to him as genera) 1 of the the seavinth of A^irill lui* vio. sevir * 

jiiat of Scotland ami that out of tlie first nod the twentie ane of October Im* vie. < ^ ^ ^ 
readiest excysie ot' this kiuf^dome with the lord with ane pa^^e conUtiuiug aoeaccoatu ot kt^v 
Ballanden Ijia onler one the back theiof to I coyned in Dect^ruher Im. vt c. ei^^hty mm 
Tlkomas Moncrie/ffor paymetit of the s*d four ' nuary February aud May Im. vie. f;i|pblU 
iiundrelh and therteeo pounds sterling And Togither with ane leaff ofpii[KT cMintainMr 
the a^d Charles Maitland his diiichar(^e daiteil aceount o)' silver past his luaHieiy irans* ftt^ 
the fvfth of Juni. im. vi c. sixtie four years j eight day of May Im. vie. ei^htie t«ro lo 
g'rantingf the recept of the a'd soiime from the < fourth of Augusit the said year Itt^n 



Lid lord Ballandeii lord tht^^r deput for the 
tyme Item ane nmtuall discbarge betwixt 
Ckarlea Maiiland of Hat tone genera 1 1 of the 
Mint and sir John Falconer raaister daiied the 
iwentie right ol' iVIanh Irn. vi c. seaventy sea- 
veD ll^m ftiie caiicelled ticket granted he sir 
John FjuMiiuT tn tlie s'd Charles! Maitlaod 
(therin drRisrn*^! lord thcsVdepul) dmted the 
tbird dny of A{>rill Im. tic. sireutie&iven years 
ibr imvtiieat of six hundrcth pound sterling 
viz. t^ie one halie at Lambas and the other half 
at CandUmiss therafler coniaiuing sir John 
Falconer's oath one the hack tberot taken befor 
the commissioner!* tor examining the mint 
Item tMro unxubacryved occorapts of debitor and 
creilitour betwixt the getienills and minster of 
Ibe iVIintthe one daited the first day of January 
lia, vie. atiemie nyn and the other the fir«it day 
«f Auguat Im. vi<v srventie nyn years item 
aie oaoeelied band ir ran ted bo sir Jo tin Fal- 
coner to i'ii ?"-!'- ^JaiUaoil of Haltone liaittnl the 
fourth « Im. vi r. j^ivenue n\ n for the 

fouuie < : . ^our tlwusmid itiarkM of prin- 
cipal! pnyabie hr followes viz. fourteen thou- 
•and iMArki at Caudlmis tm* vi c« fitvcnty nyu 

SHecfi thousand itierks at W hitaunday Iher- 
er and other fyfteifffl thuusiand flterks at 
lianih<ii 4h«failer with a thousand p^tuids lor 
«ftoli tenii^ UlilsBi^ and a'rent after ihe rex^v« 
termes «:r iitiierol'. To which baud air 

Williaii id David lV);iiiland orcaub- 

acryvein^ tvunr^ses Item ane accnunt of 
eofipiT coyu jittoed 9ii*i abbrcvialeil rrtim tht- 
ffiix ive hooks of huyiug and working till the 
Irvt ol' Jafiuary Im. vtc. seaventy uynMuixt 

ik« l«fd UMhuaa and air J«.hn Fair- ■ ttb- 

•or^fcd IliM aiMoibrr uniiub«.r, nut 

] (jTom tht .^,, * Ja* 



count of bullrone containing thecom|i 
of hnUiouearrysing both u^ion the ex 
imtiort of the kiogdome of Scotlaud al 
git her with a psM'ticulJar account of the pi 
and parts and collectors accounts tUei 
tilted ai^i uplirted Aud alse hulliane ^^1 
arry <k' from them what they have pay eil and 
i& yet rpfiting both in iheVvme of I lie aeruenSH i 
tacksi tic n anil general I ctd Wrtorv i . ^ fittl 

of NoreniWr Im. vie. slxtiecnt iMtef 

September Im, vi c. atreutie three wiUi the 
counts of diihcharge therof fitted and suUscry v^ 
be John duke of Lau»lerdab hus tiioj«^i 
eommie»io(H<r lor the tvme John dulu: 
liothes tonl high chanoellor aod Wilhata 
of Dundonald couuai«siouerH of his mi ' 
the«'rie Item ane book of accounts an( 
bulhone containitig charge and discharge 
January Im, vi c. scvrnty tour to Nov< 
Im. vi c.seviuty fyvc Iti^iu aoe other book 

r.iMnU infant tbeGullio' '^ />.,.t »,ri,n-r r " 

I um the lit 
' ^t^fu to Au^ . ...... 

lic^u tun abri'viats of the biiUiOine ai 
from NovembtT Im. vi c. sixtie ane to N^ 
her lm» vie, eighlie ane years Item 
meltiug rcge)»ter begitmingthe letitii nf 
nuary Im. vi c. siveuty three years a; 
the luurt of Oeceml*er Jm. vie. Rtv- 
Item ane ju ma II book of silver ^ 
ning (he twoniie ftixi of March 



new meitif^ jru 
of February Jiu. 




md Qtherijor OfflHal Malver§aHon§^ 



I cndiiig tlie Itrente ^ay of October Ini. vie. 
' I fttie yeM%, }|rtii aue ntdtitig book be- 
nog the twentiu sixt of Anrill Im. vie. 
btie I wo jenn and eoding the lUird day oJ 
|tisl Jni* tic. dghtietwo years Item me 
ount of copper r»r9cc4*dinu: the twenty ti&;t 
>e«3embt^ Im. %ic. sixtie three Item ac- 
i tlicrof from tlie tweutie mghl of the s'd 
Oi0eiQber to the ci|^bi«n of Apnll y 'after 
acoottot ot' the sante from theoce 
I of Au^pifft ibcraftcr Item an- 
copper frora thenee to the. twentie of 
oljtf tiierdter Item account of the same 
I iheoce tiU the ivrentie ane of December 
tlierafter Item ane account theroffi'oni thence 
to tbiL' fvfiopn of March y 'after Item ane ac- 
eoi I 1 1 ood thence to the first of October 

^kv in ane account theroftroTii iheoce 

^Bptto Hni of Janimry y'efter Item ane &c- 
P^pnt therof froiii ihrttcetn thi-'fyfteeti ol Apnll 
> llieriiflir Item atrtuiunt therof trom tbLmce to 
the iii'Rt of Aprile y*efter l»era ane account 
theniffrom thence to the four tccij of Novem- 
ber thrreiW hem one account Iherof frt>m 
Ihenoa to the twtoue thml of Apriii thcralt^^r 
Item aoe account iherof from thmce to the 
twenlie of June therafter Itcio ane account 
theruf from thence till ttie thertoen of i^*pt<?ra- 
ber thcratUr Item ane account tb^^rot from 
llmoci lUl llie fifvt of Doc^mber y'etler I teen 
I Maaoaottal tken>f from thence tUitlie fyfte«ti 
of January thcral^er Item ane ac^^ount therof 
frooi thtHioe till the fir^t of March therafter 
l4«n ane aocount therof from tlience till the 
first of May therafter Item ane account from 
tbencetill the tii-stof June y'efter Item ane 
account tbei of from thence till the first of June 
theratter Item accuuut therof from thence 
tiU the i'lrtt of JuUy tberaller Item account 
thenif fnim thence 'till the siferiteeo of Jully 
im. rte. M%%y et^ht years Item a cancelied 
^<>T.*^,... k. t.. ,. ♦ u,^r jofin Falconer liaiUie John 
H talbretfa dailed laal of March 

Ijii. set'io item ane canoeMed 

«ooi 11 1 It I ihe said sir Jaho and John 

Cotii^ |.rr,, -r ,ji MontroB and James Mures 
datefi the iwentie eight of January Im. tI c« 
•aaTtnty nyne Item ane other cancelled con- 
tra43t betiPviVt the said air John and Darid 

I^'-iiitdaitidtba ^y^' 

vie. niventie cjf lit all anent ' ' va 

ae4V)4int of depursment* iti of 

new uitll arvil lbr;<iti(; the M 
lourtewtih of Jolly tm. vic 
n ane IkniIc coaceniin^ the Mnn nt^i^MiuPi^ 
ttnt ef March im. li c. siveaty sii^ Itevo 
other book cm" •- 
tent of Nov I 
n ttiie other in?./.. . 
miHg m Jmmary i* 
TlMi ane <ilh<tr book i 
^^iMUg in D<M?embcr lin 
lli in ane other book concert 

nki^ ill K«4iruary Im. ti«;. aivuity nyne 
unv ac^iunt of oop|K!r bo uglit from and 
tl*a Arst of Jaauary Ini. vie* mtmdkt 
, $tgst aadkg ta i^i^atDbar .ihf raHar llrm ane 



lie Miot be^hiBing 

▼i c. scvuity six 

'iiLj flir» >linV ba- 

y ei^t 

ty dffht 
afiieba« 



accHint of the cuynzie bouse majde be John ] 
Fak'oncr master tlierof betwixt the first of 1 
June* Im* ri c. threcie nyne and the ttiird of] 
Aprill )m. vi c. fourtie ane Item ane printing 4 
hook of the Mint beginnitipf the last day ti#1 
Jully im. vi c, sixti«s lhpe« and ending- in ( 
Julty Im. ri c. iiixtie ei^ht Item sue account of | 
th(^ counxiehonse made be George Foultf f 
master coynzitr be|^inning the first of Juti^sl 
im. vie* and e leaven and endinyf the ilr^f 
of May Im. vie. aiul ihertecn llera ane 1 
anent ihe gold and silver of the Mint frae tht | 
ftret of February Im. vie fyil'M?n years to tUm \ 
first of Jully Im. vie. and sixteen 'years Item 
ane other book therof from the t^ventie hiventb 
of March im. vicei^hteenlotlie first of Miucb 
Im. vie. and twentie years hem ane others 
book concerning the same fr*>m the twentie of] 
March Im. vir« sud twentieiwo years till th« * 
twentie t^vo of March Im. vie* and twnntie four ^ 
Item one other book coucemini; the samt i 
fVom theei^htof Aprill Im. %ie. l*venty fbuf ' 
till the nyiit of May Im. vi o. siventie Mvea 
(tern ane other eonceming the same from th# J 
first of H*fpttn>ber Im. vie. and ten till th« 
tenth of February Im. vi c, and eleaven Item j 
ane other concerning^ the snrae from August i 
Im. vie. ihretre four till November Im. via 
thfetie four Item ano other ooncemtng tb«l 
some from Jully twentie siveo to Ucoembtst 1 
Im. ?i c. and thrttie four years Item the depo« 
sitiones of ArchbaUl Falconer counter wairden^ 
AlexHndcr Mailland ane of the wairdens Davij 
Maitland deput to the lord Halton in the Mint I 
Mr. Henry Ahvinessey master^ John Falcouei 
laite wairdeo air John Falconer Jame^ Farnuaf 
sen iter to the lord Ilaltooe Adam Foulis dark 
of the bullione Hugh Steviastoo tvritfer Mr* 
James Falconer eldest laufii 11 son to the deceisi 
John Fatrooer late wair' ^ yi -- fn^dp 
smith in the Mtot Pstri' or t» 

sir John Falconer Thoiniis ;u.,,,-> nuilt^r in 
the Mint Walter RlitcheU cutter in the Mini 
Thomas Ash only melter in the I^titit Thomaa 
Aislie one of Ihe eertantsof tliemdriug house 
taken bet or the connmieaionerH apfKunti^d by big 
majestie ibr examining of the litate of the Mint 
Thertifterthe said sir George M'kenzie his ma« 
jesties adi^ooat and tir Pntrirk Home advocat 
for lii^ hi^hnc*R inlere*t dodaired they re{)eated 
the compts eompt books bonds ticket^: recq»tf 
and other writts above montiooed and deposl* 
rsijHses aAiave iiamcHl taken be- 
'jnern 

i>i iuf I fjMirs f»f the 

proveing the articles of the lyb<*ll abofe 
written found relevr^ti* "»•■' « "-v^ts-d to ther 
probfttioiie And for »,r the lorda 

as to the f<*rs*d six 1 . . , .atl sterlmi^ 

E'veii as a bud or brjb to the tmid ^arle of 
luderdale by the sM sir John Fslcooet 
to \:^ his accottats allowed by the lords Oilf tha > 
theVite and eibohequer and pav<D<?nt of his yni* 
iifst ballaace Iroin \m mfj^vtie crdved tbatflr> 
WdliacB Sharp ef Hi,<>niehill laie cash keeper 
who 4vaa prcaent at the coiooaing betwixt tb« 
aark atid air John and a subafiry ving vtiluei ia* 



> appoiaAed for exsrntoiiig 
Mint now prod u ceil tor 



ti>e ticket g^rante*! by sir JoUn mi^bt be exa- 
tnineJ therHneat Whicb desire oi his nm'iiest 
mdvi^oiil bdnt,^ consideretl be tlie sMs lurds ihej 
ordauiied air William Sharp to. be exiimiDed 
i4(M>n the potnis above riientionecl and alse tbe 
b&iil p«raoni« above named i^rho formerly bad 
detioiied U» be re- exam ioed in presence of llie 
i^u lonia upou tbe pouits ^vberupon tbey 
formerly deponed and granted warrand lo 
citt tiieiii all to tiiai effect And accord* 
ingly the sM sir WiUiara Sharp and baill 
persooes abovenuraed who formerly deponed 
|>em^ uU law'ilie snmoiid and the b'^s'*' ^Vil- 
bum Sharp btiii^ pei'soually presL-nt soieiiinly 
r»orn and exQiuiiied u\Hm ihe points above 
iirilten deponed ami declairc'd as hisj oath and 
dejKMiitioae stibscry veil *vttb bis hand extant in 
pruces bi'iii'S Aud aUe the said Arcbbald 
Falconer and Alex'r and David Maidands Mr. 
Henry Alcorn sir John Falconer James Fi*r- 
qnor 3li* James Falconer Henry Lucar Patrick 
Oj»:dvie Tbotnas 3Iurray Walter Mitchell and 
Thomaii Asb being: all personally present so- 
leninly sworn and examined iJk ane aiWr ane 
©iher ui>on what ihey bade been formerly in* 
teiTOgat and deponed befor the s'ds coiunii^* 
iiotiers af^pointed ibr examinalione of tbe slate 
pf tlie iViint Tbey adhered ail of them to tber 
fonner defiositioncs and depon^ and declared 
fts iher hWs oaths and dqiositiones extant in 
proces beai*s Ther.iiter tbe s*d actione and 
cause b^rin^ againe called in presence of tbe 
i'ds lords and the s*ds Charles earle of Lan- 
derdule Richard lonl Alaitland sir John Mr. 
James and ArchbakI Falconers defenders ther 
pro'm abovenumed rex^ive being oil tymes 
«»Jkd requiixid and wr]^ by ane macer at tbe 
-k«| M vse is to exhibit and produce in pre- 
gHotlkf tbe s'ds lorda all tbe writt^ and proba- 
tione they bad for proveing tbe points of the 
act above written admitted to tbe proUatione 
and allowed to be proven and instvncted by 
tliera in mainer above specLftcd and to salisfie 
the points of tbe K'd act as to ther pairts 
And lykwayes Ihe sM Mr. James Falconer 
for btmselfe and as pro'r for Aircbbald Falconer 
being oft tymes called i-eqnired and wi-gtd to 
produce the dispositione alledged upon granted 
by bis tftther to him witlx tbe sM Archbald 
J^alconer bis gift and lo satisfietbe other points 
of ihc s*d act They and ilk ane of them iail- 
xted and sucoumed in doeinj^ tberof aj» was 
Weill known lo tbe s'ds lords and therfi>r tiiev 
circumdnccd tbe terme against all of tlie a*d8 
defenders Tberetkr llie s'ds lords baveing all 
at leoih read licard seen and considered tbe 
tbrsM lybellcHl summonds and points and arti- 
cle* tb«froff«nmd relevatit and admiUed to bis 
jp, ' ; ' * ne compts compl 

\^^,, IS bftnds tickets re- 

^^., n«' T^roduced and 

,1^1 i named pro- 

,^,, r iiinkveing of 

l|], >iimonds 

• ti And 

ll, . uith the whtts 

all :i- the dd'crs Weill 



^^^H 



t 



wg00gSmn 

and ry ply adf ised The a'ds lord^ fland tt proven J 
that Charles cairle of I^auderdale juit; of the 
generalls of tbe Mint did take up tbe acccmipu 
of tbe LO[»per jurnay* from the wairdeni* and 
that tbey war destroyed and that tlicr bein^ 
a stop put to the coynadge of tli< 
year 1 m. vi c. siventic nyn tbe it i ■ 
uy tbe counsrll fiir tbe second juiu 
exceeded that by bis ordor and wj«r 
officers of the Mint proceeded ui th^ 
of more copper then was allowed by 
rands And that be got the graitest Kham ui 
the profits of the copper coyoa and that thcr 
was tlnee tbou«»nd nyn hundretb ti> f '^' "^^ 
stone coy ncd alter Ihe act of the in 
and that he did not imptoy the st«>ok . 
tliousand marks ap| pointed by thi 
ing of bullioiie AH)eit the earl a . ^ i 
receavcd payfuent and allowance of the a'ntut 
of Ibe sM Block of bullioneas iKit bad been iai*_ 
pktyed and that be was a sharer of the 
mcdes of tbe silver coyne and that the dean < 
Guilds weights ware made use of in the Miall 
for receaving of tbe ballione And that 
mony was troned by tbe fraction i' 
weights and that when the \m 
justed to tbe Scots pyle afte*' the hcins sia 
weight was intimalto tlie officers of the J 
the earle caused debver u: ' 
wairdens and to sett by th 
and caused sett a new sett ul ^. v .^ .ii.> .-,,jk.^.v., 14 , 
tbe dean of Guilds weights couforin io whtcli 1 
tbey did then work till the end <»f Jatitmnr 1 
Im. vie. eightictwo years And that hi^ 1 

to cause essey the chisel I beads swcps .i 
and to see that tlie mony csscyed and covtiji.l 
ed was of just weight and fyniie^ And albei^l 
be did know the counterwairden did not atll 
his oiSce yet be did not cbalcoge him for it i 
neglectecf to hold compt and to pmiish the 
ficers of the Mint for tbe ne{>lett and malve 
sationes in ther office which the tm^ 
nerall of the Mint was impowred to tJ 
comissione and Hbiid as to the lord .uamnTii 
conjunct generall with bis father that be 4 
clame given in to sir John Falconer he re(]uir< 
ed fi^m sir John tbe master a i^haire of IlK 
probts of tbe twelve sbilling tiT>oii tlu^ ^titcc^i 
bullione and of the profits of tl^ 
tbe weights and of the profits ot 1 
money And that albeit bis majesbe graiiM 
warrand to the maistcr of the Mint at the Ta 
of Londoue to delifer a pyll of weight to tli^ 
lord Maitland as ane of the general :«t of ; ' 
Mint of Scotland to be caned to Scotland 1 
warand was daited in August inu vi c si^ 
fyife And accordingly the lord^i^laillaij 
receave and brnig down the p> II ot' wci^' 
be made u*(e ol in the Mint of Scotland 
notwithstanding it was keepcd up and aevf 
intiniQl to the otiicers of the ^1' 
wse of till February ini, vi t \t 

And when the weights formeii. 1 . ui« i 
ware reduced to the Scots pyll tbey lieinff 
again changed tbe oHicers ot Uie Mint dii 
make use of the dean of Guilds weigltti) cmb* 
forme to whicb tbey wrought till ibe 4Ui4 



aa^K 



4&^^^ 




and otheri.fnT'OfficM Matvertaii&nt. 



A*D, iSse. 



im. 



i 



th(. 

ilia the 

Ilowui 

my WHS Koynctl m; 
D«l the monv nlir 

low i' 



red fjy lii'V ^\:j]*,;;ni! 

Actiner tluT o\d v 
ftftis f)f I lie If 

Urtk-ii^ ni"* 

t aiitl iivA. 



two yrtiT^ ftrifl that 

,,dto 
■ hicU lie 
ic Ami 
Tcr late 
(>l»ertht? 

•la 



ami th^i he 

i the remedieB 

(iMi (jinteanil that 

en And the lonl% 

. that tlipy went one in 

r allcr <!ie (juniititie al- 



.a 



1 ^Ot a 

iy John 

luff r of ihe 

ita*l that the 

, ^ i' the remc- 



llir 



h] ill. 



sheer tlicm tioim ami to brini^^ them to the 
die niut so ubvnyr? inuif il the ]»eic«iin- 
kIv npoi» • - to the 

k*hMtt ihr ! reoync 

lords (lu.iJ lh4.L ihiii: \mx.» sivrtifceii 
sloiie of co|iJier coyiied the lir«t 



f jumiiy hcginninj;' i 
hu Im. vie, sialic sine 
! firtit day of Aufijujit im. 
And that ihrr was fourkcn 



fUy of 



li,. 



•433 twelve thou- 



id I'. 

^yo«d the vecaod ct)f»|i(fT 

> first day of INUy lin. 
E and 4;ndine^ thctrui day of t'eb. Im, vic» 

title years atid thnt thtT wa» iiyn thnu- 
kl fyur himrh* MireeHloiiif coy»ied 

> jwTOod copjH I i jf ri<ii' wa« Hllowcd 
|t the warrands^ mLchi^ iher wiik tliref» ihoii- 

1 nyn liundrt*th nvntie nvn stone otirnoimrl 

>iiu limt 
Ctrl of 

...r .1... 



and fonr pound and for the three thonsand DyKl 

hiindretb nyntie nyn stone coyned aiuce tj»«j 
»c» of Htdernnitte \i thretie two shiUing th«;| 
' !uas9 and hody of the coppej* not I 

] atnoutils to th^t flotiiite of aiie hoi] 

drt II iinij two t'l ' ' iMiudrcth nyn(i#J 

eight iKtund c'l is luony AnM 

as to the seconii sinn le yiu m til*? ttvrlf'ethilUnf 1 

upon the ounce of hidhonc niid eight uKiolttf 

.n/.ni the profit* nrrysing' to the kinjj hy 

ne plven in to the officers of the Min 

!tn<i not coyned The lords remilts these 

the lord thcsV the otHcers of th^l 

1,' regullarly and in course ly able till 

coujpt to the lord thesanrer for the same 

as i%t the third article anent thr- prf>ftt of tin 



d hf\ 

.ithiit] 



pn ilie pound whu'li ior 'i thon- 

tid f^toDe coynrd mor^> thi ued by 

UHfrandn thu firpt cojjptr jiirnay will 

fcfiitn* ff» thf *<»*wrnr nf f^ro hnnfJrHfi n.nd 

ue 

^'iicil m»iT then [^ alJtu^ cd by tiic wiutiumIh 
? second chopper jumav befor the act of in- 
* SHl that natne nuta nill nnionnl to the 
if d]^hiy st¥cm thousnnd nvn hundr^ih 



stock of iwenlie thousand mar! 
the UirT lor buying- of bullion \ 
t 11 and master of t)ie iMiat did uc 

lid allowance of the soume of twelve 
initi'iH til inni'ks as the a*rent of the fa 
twenljc thousand marks yearly albi^itthestockJ 
was uot ioiployed for buying uf bullion tis wakl 
appointed by ihe Vtag and therfor ffand lh« 
Iftite generall and master are h -^i '■' ■ .f/i /i|^ 
iottdum vise* the carle of Laud jfe- 

Jieratl froai tbi' Vijulm vir . ibat 

'•'^tC ioiutti ■ . ^ ,11* \.')l!i!- Ill v\\\' nr- 

dmury anuall of the sani a' rent iwtmnc tianiui\ 
fr(»ni the ye*ir \m. vi c, sivtie two to the year " 
liij. TIC, ti^bue lhri;e hem;^ twentie ycari j 
which cxtf ud^i in all to tlie st>uine of twentie.n 
iyrv thou:>4aid and six* hundreth nouud Scol*ft 
niuny Ami cir John Falconer fuite nmftI^r I 
from the tyme of his entrie to the said uftic« \ 
Avhich was the firstof Januarv Im, %ic. ^e* 
• ' " -' ' " tidn 

-^-« ■-' a >io..,.-. . ,,...,,.,.., (he 

printing hook^ that tlie officers of thrMint* 
Inn 1 1 February Im. vie. siventiefour to Au- 
Jin. vie, ciifhlie two hare alwayci 
^ >1 Ivelow the standert some iit ten denir^ 
tivititic twii g^raiti^ »oiiie lyniea at ten denir , 
Jtrcnlie three jnrrains which bein^ all exactly 
calculat at the rexUve finnea upon the bullions 
cnyned within ihut tytne amounts to the t^tnimo 
of nvn tbouwtod lyve hundreth ihre'iij two 
pound four pennies niony forsnid Ami as la 
the ^bfiharticU* anentihe 1^ tjout * 

e<bfv ffanrl it proven that A\* 

heads sweeps aod Hciaps^ w-.hv mrum :uhm<t 
Iher was no cssey taken and tfnnd bo the mi It- 

''"" * L- •' ' :...,..,,;.. ,,t itifj chisell heads 

1 and coyned front 

: 1.^. , , ., , . Ini. %i e, sivcnlie 

three to the first day of DeeeniWr Im. /ic, 

etMiitit^ t\v<i (the former meltinff' books being' 

« iterids to four hundreth si^iii* uyu 

N ii pound IhiTteen ounc e** Aod ffand 

thai thiT ^va« a hundreth and cij^htietwo stone 

two wuces Tipd limr drop* coyne4 snicc the 

act of iitdetutMlv and that the value of tlie 

stone v'ot is efeven hundreth eig'lttie four 

nsarks %\\ slulliii;^ rip;hl prnnirs which for the 

firf^Uid himdrtth e};^htic tvtru i^toac two ouncofl 

* it 



S4S] 



34CHAltLBS 11. ihwoMiimgi9gaintiaeEm1^LmamUk,i^e.l9tA 



undl fbur drops coined since tlie act of inden* 
oitie amounts to tbc soume of ane liinidFHli 
Iburtie three thonsand siveu liimdreth twentie 
-fliz pound mony fbrsaid And as to the sixt ar- 
ticle anent the 'difference of the weights from 
the Si*ut8 pyll iimd it proven that the officers 
of the Mint did make use of the dean of Galds 
"vi-eigphts in rcceaveing of the bulUone and that 
they troiie<l the i>eaces by the fractious of the 
kiocfs weights and ffand it proven that the dean 
4if Guilds weights are heavier then the Scots 
fiyle two unces and eight drop upon the stone 
which after deductione of what waa coyued 
•f dollars and doucat donns these not being al- 
lowed for hullione that the difference ot the 
weights from the first day of September Im. 
▼i c. siventic three till the first day of Septem- 
ber Im. vi c. eightie two amounts to the 
■oume of fyve thousand three hundreth eightie 
«iz pound mony fursaid And as to the siveuth 
article anent theescaltatione mony ffand it proven 
J»y the printing books that the qnantitie of but- , 
Jkine payed in upon the kin^ aooompt and 
Qoyned since the daite of the oounsills pro- 
clomatione in March Im. vi c. eightie ane 
was threa hundred and therteen stons six 
pounds six unces tyfteen drop which at eleven 
pundreth eighty four marks six shilling eight 
pennies the stone t}ie exaltatioue being fyve per 
cent extends to twelve thousand three hundreth 
vixtie eight pound therteen shilling four pen- 
nies And haveing ordained sir John Falconer 
and Archbald Falconers to depon anent the 
f]uantitie of the buUioneand coyned mony that 
was lying by them the tyme ot the exaltatioue 
and accordingly sir John Falconer and Arch- 
bald Falconer having deponed ffund that thcr 
was thretie one stone one ]x:und therteen 
iioces four denires of bulUone and current 
mony lying by them the tyme of the exalta'ne 
which at the forsaid ruite of eleven hundreth 
and eightie four marks six hhilling eight pen- 
nies u|>on the stone extends to twelve hundreth 
twentie eight |K>unds tlicrteen shilling four pen- 
nies Scots mony And as to the nynt article 
anent the melting doun of the dollers and 
doucat douns ffand be the melting books from 
the siventh day of January Im. vi c. seavinty 
three to the first day ot January Im. vi c. 
eightie two that thcr was two hundred eightieaue 
atone twelve pounds fy tteen ounces ten drop of 
dollors and doucat douns melted doun the tyme 
ibrsaid which not being allowed as hullione at 
twelve shilhng upon the ounce amounts to the 
Boume of fuurtie three thousand two hundreth 
eighiie six pound Diooy iurs'd And as to the tent 



article anent the earie of Lauderdaldi neeaF- 
rog double payment of four tbonsand and ava 
hundreth pound tor three vean saHarie lybdM 
fiand thesamen proven be the earlei recept 
to tiie kvd BaUanden upon his miyesftieB fni^ 
cept hi the year lm» vi c. sixte fiwr and tha 
fourth articlo of sir John Falconers ooBDjpt df 
bnllione fitted be the commissioners or tba 



thes*rie in the year Im. vi c. siventy four an4 



commissioneri 

ty four an4 
therfor fland h'im lyable to refoond the Hid 
soume and tlie value of the ordinar a'rcm 
therof flomiN^ c/fimnifrora the tyme of the kft 
payrqent made by sir John Falconer which wis 
at Martimass Im. vi c. aevinty two which ia 
haill extends to the soume of sivea thooaaad 
nyn htmdreth twentie ane pounds ten rinlliiy 
Scots And as to the eleventh article anent tfaa 
band of six hundred pounds granted be sr 
John Falconer to the earie to ^ his cooali 
allowed The lords in reaard of the retired 
ticket produced the mutual! discharge betwiit 
tlie carle and sir John daited tlie twentie eight 
of March im. vi c. siventie siven the cnnatt 
account betwixt them and the other prphatieaii 
adduced as to that article finds that the fofaiid 
band of six hundred pounds sterling' is pt^ 
suraed to have been given for the said caaaa 
and so is the kings mony And therfer decemnl 
the earle to refound the same with the value flf 
the ordinary a'rent y*of nomine dmmni fnm tin 
first of January Im. vi c. siventy njme to thi 
first ot January Im. vi c. eightie three cstn^ 
ing in all to the soome of eight thousand ava 
hundreth and twentie eight pounds SootniuiM 
betbr extracting the decrcit the earie can om^ 
descend and instruct tiutf the fors'd ticket na 
granted tor ane wy' cause then that oanda- 
scondeil one in the ly bell And as to the t w dft 
article ttand it proven that the offioera irf* tin 
Mint wTOught industriously upon the reaaediii 
of weight and ffand these reniedies at a -ffdl 
in the mark peice of mony coyned ainca thi 
first day of September 1 m. Vi c. eightie two dM 
amount to six thousand six hundred pouaA 
mony tbrs'd In respect wherof awl that atmr 
befor the extracting therof the s'd earia ef 
Lauderdale did not condescend nor instruct tiMK 
the tbrs'd ticket of six hundred pound i 
was granted for ane other cause then thi 
descended and in the lybell The m 
^ave and pronounced tlicr decreet and i 

in the s'd matter decerning ordaining a 

and declainng in mancr above writtea and m^ 

duins letters of homing one f^'tleen dayeaiMl 

necessar to be direct heimpon dec. Jta^ 

tractum, 6gc Da. itecBOL 





9i5i] Ih-ocMfirngM^gtimsi ifeXoitirJktAtrr Afoi. A, Di iSSI. 



[31« 



330. Proceedings against Several Pirsdks of Lai^ebkrhire, foi 
Treason: 33 Charles IL a.b. 16^1* [Now first printeil 
frooi the Records of Justiciary at Edinburgh.] 



li* JusTTciJiaiJCt 8. D. N. Reips te»U ta 
l^etono Biirgi de £diQl»irfh decimo 
quurto die meniiis Marti i, 1681, per bono- 
rubibs viros WtiieknuA Comiteni de 
Qudnibenj, Jmg^9nmm Geoeraloro, 
Mi l el i ii i it ni MaitlMd dft Duddop Jus- 
ticiarie Clef team, JUeiimi Ilominutn dc 
Nairne, Duininos JfteotMiiD Foutis de 
JDaftdem BttMiMir de Fcirret, 
Faksooftr im Nswtoun, et Ho- 

Jtmni Uo^ediellsrcarsc CMnmufitoDiirius 
uukiftm dictii 8^ D. N. lAiifts. 

Curia Lg^itimc aiGrinata* 

L HE sAid day aneiil our soveraigne lordfc 
«^imiiisil letters of treaaoa, raised, uised an4 
^xciit, at tUe instance of sir Gwr^e M^keo^ie 
of Roselmiigh, his majesties advocat, for h}% 

♦ " ilarch 17 & 18, 168 L At Cnminal 
C^urt the beritora of Clidcsdale who were m 
the rebellion at Bothwelbriit^e in 1679 beiug 
upoQ the (laniiel ; U was aUedg'e^l for Gada 
tiaiuiUoH of Uitl, SOD to Itaplocb, absent, that 
be cunlit not he dechvred fui^itire fwhat needs 
they IjijIi Uv declared fui,auve, ami a sentence 
of fortWkuie Jikevv:^ys he pronouivced oi^ainst 
them ? mij^ht uol ttie last serve for both t) be- 
eause liavinir beeo in prison, tbe privy council 
liad »t'l iiiiu at liberty, to appear at a day not 
yet come. The J ustieiars found, notwith^and- 
ing of ihaA bond, that he ought to have apnear* 
eQ before tbeni in i his court. 2do, aUeclped, 
He was iUegaily suinmone<l at his dwelling- 
liDUse of Hm ; whei-eas forty days before ttiat 
his wile and fari*ily dwelt at Slratliaren, Aa- 
•wersd by tbe kiii|^'a advocate, that no defie ace 
mtmU hm |if«poiie<& for an ahf>ent irattoi*. 
, tbe ^rty days were intrudiieed in lii- 
r of ]Mtf«ii£rs, that if a man hnd suyed 40 
I HI m place, ihougb it was tu9t bia c«sidei»ee 
I daiBtcil.^ yet tbe pana^r Mii^kt mmtteen 
I til ere, it lonndio^ cam^eniittm/ofimnimsi 
Wlm ; b«it not vice verutt ibai a ciialiKMi Miould 
hm uida^fui ii' b^s wetc 40 daya abaeia4 1'roiM his 
mnt bouse : ** Tbe ciiraitiAl lords ibiMvd no 
I drf mrr could be propuiieJ for a tniiloif u&Jess 
■■jiMro powQikt/' Home tbou^'bi this hurd, 
Mmnig itmnifh vo casAAt defend in cauiOy yet I 
f My |if9fa>nia * pcoliniiileixi rationein et causa m 

* abnenLa^' aA esai»BGBie of &ickn(:!j8« or stky that 
Ii« m ab««tH * n tipytiiq c 'eamiia,' or nut at aH 

li«wl» broiiod UlegaU^ at the wroci^ 

Olid not te bt cited at all, are e^^ulpiiiiiaut. 

** ^uwrtlur* ifa creditor oft he rebisia, whose 

Mi^ m Micwalvrnned, oiay appear tbr an afaseDt 

trwutM^ aikd pcodure his interest, * vid^ns rem 

* atiaaa igi,^ so tbdii be may lose bi& rosney ; 
ml ii' be will bo adauMed ti* objed agiim^ llie 



tb«r, Lhivid €»ibscm thar, Doiid Robieson tliOF^ 
caUed Pocsio, James B^natttyno, wrifbt i 

! Jaines Park, weai er tber, J«>bii Stinp&, mo 
ther, J>avid Weir ther, aire to Htij|(b Wt 
titer, Liu|()i Iker, son lo WiUiana Ker, in 

I rtioakl, Tbomas logbs, sboeroaker in Lanork 
Robert Haddowc, younjj^er tberof, Mr. " 
filoek, of Silvertounhill, John Bttekle^younifer^l 




iHgbnes enterest. a^^imaat Mno WilvDn, wroii 
ter in LAoerkf and beriior of 0laiiiiepatJi : Bird 
Thomas Piltnns, in Lanerk, James Ia 
vvreilter tber, WiUiaaa Ihck ther, Jr4in Thom- 
soD, carpeiiler tkaVf Alttxander Brown the 
.IrdiibBld Symoon, tb«-, Dairid Wbyi 
siBitb ibir, Tbomoo Laueblan, inercliand 
Iber, WiOiaMn FdrgoaoD, weaver ther, VfiU 

ham TwoMik, ton ti* TweddaJev'i 

late balyie ther, Gideon Weir, ^tvnesmiili' | 



Baiial 



rdoraocy aad probation ? Tbougb it be t< 
eatable, yet ii was thought ii woold nol 
parmitted, liis beings oaly a cit il irrierest. 
Gayl. Lib, 1. de n^e |»u1k e. 10* who provi 
that *■ in criminaluHis procurator uao debet ail 
' milli,^ but the ^tiitty jKinnel hiuneif moat bt 
persooaHy present, steing the jtidge may ex« 
piscate atucii froin btm, which camiotbe donA 
if be was albwed lo appear oniy by a proci^ 
rator, 

« For otkers, viz. Muirbeod of Bradiabollii, 
<^c. It w^ alled^d, tlmt il io true, ^ advo4* 
*• caiua fisci non prtestmiitar oaliinioiBrt»' yet 
gamknaaa livea^ eilatts, fomiaoo ami v^ral 
14011% oiigbit ool to bo bionglil ia qaailina wl 
oMt ho cotidosoenii im hi» iofoctner, thai hm 
laigbt siibscribo '^ m poena tahouiB,' both cou<4 
tbrta to tlie citii kiw, and the lavi and practico 
of all tiAtiottii, yid thu: act \'?H7 ; for the ver]^' 
1 ----'--' ''3VC3 a a?igiiio, thukigk ilieybeao#J 
e. die general abnlilioae. xbe a#^ | 
u^ ..;. ...Lhtred he bad no iniarsiitr, bal iHd 
privy council and Kxchei|uer having^ employed 
one to take up lists of all suspect porsons/hei' 
by the Coancil's w^arrant, now pursuad ibiaai 
** Tbe^iisihnes fouod tbe council's warraalsafl' 
ficient to Itberata Iba advocate frotn coadcsocaik 
mgp tipva 99^ otibiT iulormer ;'* tboo^ Ihia 
■air eiaeuatc the force of tba said jtist act of i 

nMMBMaat. 

*^ Soctfti'rviUe of Urai was cleansed by thO 
assii£e. Vide the assize pursued fwr it, Itilla 
Juoe Itidh l^ae the Case p. 73, oi tbif 
Volunat,| 

'* TlMea ibo advocia ofibriog ta cottlinoa tbaj 
diet afi^ainal tbe rest of tbe becilOBH it waai 
lerijtfed. The diet was peremptory, and baboira 
eithar lo bo dcaarted, or else tbey isnmectiaael^ 
triad and put to llie kuowU^dgt; of an lasiaok 
'* Tka kola found iba advocala oug|ii la aaaiiil 



«47] 



33 CHARLES 11. Proceedingi agaifut the Lanerkihire Men, [248 



mason and wright in Lanerk, Alexander 
Ba]jie, smith ther, Alexander Anderson, liev- 
tenncnt to captain Wilson, heritor ther, John 
PiHujihruy ther, Thomas Hinsclwood ther, 

- 

against Kuch whose witnesses in the list were all 
present ; but as to these who were not in that 
case, continued them to June next, he ])eremp- 
toril)r bringing in all his witnesses, and insist- 
ing ttieu ; otherwise the diet should be de- 
serted." 

*' At this time, the criminal lords got a pre- 
cognition what the witnesses could say with 
doss doors, thon<i^h not upon oath, yet caused 
ihera subscribe their declarations, ihat quoad 
6uch as they ibund no probation again&t they 
might desert the diet; \ihich abridged their 
labour, there being upwards of seventy or 
eighty on the [mnnei ; but it was clearly ^ pro- 

* ditiu testimonii,' and a dau;^-ei'0us novelty eii- 
piging the witnesses to bide at what they say 
behind the panuePs back, and very irrec^lar in 
the Criminal Court, where by act oi parlia- 
ment 1587, no probation can be taken, but in 
presence of the pannels ami assize : And the 
use of these precognitions have only been as- 
Fumed by the privy council. Some of them 
^ho were continued, or dc serted, (seeing new 
letters might hereafter be raised against them,) 
desired their witnesses in defence and excul|)a- 
tion roig^ht be received, to ly * in retentis ad 

* probationem innocentiae,' lest they should die 
medio tempore. This was refused, seeing the 
king ran the same risque with his ; yet they 
]iad precognosced ; but that decluratiitn (if the 
witnesses died) would not prove.*' Fouutuinhall. 

<< Ui)on the 18th and 2l6t of March, 1 find, 
by the registers, prcat numbers of heritora in 
the shire of Lucerk are present, and called : I 
mav class them in two branches ; some of them 
make a resignation of their lands, and are dis- 
missed ; and others of them stand their trial, 
And are Ibrfeited, many of them in absence. 
iW the first sort, John Williamson^ son to 
■Icstpli IVilliainsuii heritor in Holl, John 
!S|jr('ul \()iingi-r, writer in Glasgow, James 
IVaikor younjjer of ilaekethurn, William 
Twcddalc late Kailie of Lanerk, Hugh Weir 
mcn-luint there, being pannclled, they have an 
offer n.ade to them «;f the king's indemnity, 
and accept of it, and icnuunce and resign in 
favours of the king, commissioners of the trea- 
sury, :ind ihfir donntors, all lands and heritages 
ihWvn to them, or which they had a rig^ht to, 
before his im'jesty's act of grace, ann as to 
llicm the loriis (U'si-rt the diet hi pcrpeluum. 
This was a kind of composition by voluntary 
pailinpf with that part of their heritage, which 
Ihcy had a right to in their own person, and 
then at the death of their parr nts they came in 
to the rest of the lands. Thus somewhat at 
least was preserved, but it was but few got this 
lavonr. 

•' The far greater number, who were, as the 
fiirmer, cited to tliia diet, and indicted in com- 
loon fbrna, as guilty of therebellionat Bothwel, 



James Muirhead, smith ther, John Jack in 
Nemphler, llobert Frnm ther, ^Villiam F«d- 
zean, mason tliei*. Hew '8omcrvaill, of Wdl- 
frads, John Hutchieson, of Ilairlawe, Somer- 

met with harder measures, as David White 
smith in Lanerk, and other forty six belonging 
to Lanerk shire, whose names are insert in the 
proclamati(»n, of tlie date October 8. Thes^ 
nad probation led agabst theui in absence, and 
all that is proven against most of them is con- 
verse with rebels, when they were goinff op 
and down that shire, and lying in camp there, 
in which the whole shire was neoeamiH] at 
that time involved; and they are all fomted 
in common form, and ordered to be execatedas 
traitors, when they shall bo apprehended. 

*^ A ievr others ar^ brought olT by the Ter- 
dict of the assize, as not having their indieC- 
, mont proven against them : Indeed the proba- 
tion against them who are forfeited is abuii* 
dantlylame; but, it seems, the advocate voold 
hiave all, who did not resign their iandsy to be 
concluded under the same condemnation." 

"June, 1681. It being represented to die 
council, that many persons in Kirkcudbright, 
Wigioun, and Dumfries, who were in the lite 
rebellion, contiiiue in their houses^ and in- 
tromit with their estates, the sheriflb and 
other magisti-ates are ordained to seizie aiod 
present them to justice, and at the same time 
to secure their rents and lands for bis roajcit/i 
use : It is likewise recommended to them to 
6cciirethecou:iiry from field-conventicles, and 
punish such as are guiltj^', witli certificatkiOi 
that if they fail, the council will sendln forces. 

" In a little time, those onlers are more ge- 
nerally extended to the shires of Lanerk, 
Air, and Galloway, in a proclamation, which 
because I have not seen in print, and it contain 
a good many of such as were forfeited hit 
year and this, 1 have given it here from theic- 
gisters : 

' Charles, &c. greeting. Forasmnch as the 

* persons underwritten, are by decreet of the 
' lords commissioners of justiciary, forfeited ia 

* their lives, lands and goods, for their treasMi- 
' able risinsf in arms in the late rebellion it 

* Doth wel -bridge, viz. David White smith in 

* Lanerk, Gideon Weir gunsmith there, Dmk 

* Gibson there, John 'AV ilson writer there, Ur. 

* Thomas Pillans there, James Lawrie write 

* (here, Archibald Simpson there, Thoinii 

* Lauehlan there, William Fergusson them, 

* John Semple mason there, Thomas liyb* 

* there, Alexander Anderson there, John 

* Fumphrav there, John Jack in Nemplair, 

* Wilham Tadzean mason in I^anerk, Robect 

* Lockhart of Birkhill, James Weir of John* 
*• sliilp, John Steil in Overwaterhead, Joha 
< Haddow in Douglas, James W hite theie^ 
^ William Falconer in Hamiltoun, Aithor 

* Tacket there, Gavin Wotherspoon of Heath- 

* rie-know, John Eastoun |>ortioner of Qiuunrv> 
' neen, Kobert Goodwine maltman in GiaaMr, 

* James Cuningham merchant these, Smb 



849] 



/or Tnincn* 



A. D. 1^81. 



[250^ 



Tmill of Yaifdbouse, I^uVe Greinibeills of 
Hog^swajitle, liobert Lockbftrt of Birkhitl, 
Gavin UiimiUon uf Hi tl» Gavin 11:iiiiiilua| of 
W'eaiiowe, James Weir, of Jolmshill, James 

*. Blackwel son to Tliomiis Blackwcl there, 
< W ilium KitUleJ Rnmriii KutherglfO, Ilobert 

* Fleminar of Aui'liinfiu, JoIiq [^amittori feuar 

* ID liogepumn, Tbomas Crai^ feuar in Jack- 

* touti, John Miller feuiir of Lon^calderwood, 
*JohLi Wihon of Hjghflept, Itohert Sloven 

* feuar of Newlant), Jobti Stcil of Wmiibltlf 
•.John Cochrun of Cragie, James Dykes por- 
' tiotier of U alburn J Joliu Carduf feuar in Jack* 

* toun/fht^maii Patou at Old-kiik of Camne- 

* ihaii» Jobo Whvtlau' of Bolbwel-sbeii, John 

* PatersonUiei-e,'John White of Ntwk, Tbo- 
•mas Lin of Blairacbiri) Jolm Weddale of 
' Chisdale, John Clyde in Kilbride, all in 
^ Lanerk sbire ; GiUifrt Al*lewrath of Dom- 

* chory, Tlioma** Mac j arrow of Bar, John 

* Majarrow of Penjanow, Henry Macjarrow 
•of Athalbaiiy, George MVhir of Beoman^ 

* Henry M'lewnith ol' Auchinflonr, Joho Alex- 

* ander of Duiouchry, M'unken son to 

* M^uoken in Hilkertotinf Alan Bovvy soti 

* to Bowy of Drumley, James Wood in Air, 

* Painck* Mulougal of Freugb, Mr. Williain 

* and Alexander Gordons of Earistonn, Mr, 

* Wiiiiuoj Fenrussrm of Kaitloeb, Dunbar 

•younger of Maeliirmoir, John Bellof White- 

* side, John Gibson of Aucbincbero, * 

* Gibson youESfer of Inglistoun, Gordon 

■ of Deodeocb, Grier of Dalj^onar, -■ — - 

* Smitb of Kilroach, M*IeHan of Bar- 

' rua^ebun, — ^ Gordon of Craigie, 

* Lennox of Irelanduun,' ►Gorduntd' Bar- 

* barrftOf John Fmvberton of Auchinehrie, 

* David M'cullocb son to Ardwell, William 

* M bitehead of IVtibbouse, John ^Vdeh of 

* Cornley, — — Neilson of Corset' k, Robert 

* M'lellan of Barseob, Samuel Miellnn bis 

* brother, ^FullnrtounofNetbcrnull, (itorge 

'Mackartoey of Blaeket, Gofdon of 

•Garrery, Gordon of Koockgray, 

* Herron of Little-park, — ^ — Gordon of Holm, 

* — « Gonlon of Orerbar, John M*naug^lii of 

* Culg-nad. Murdoch, alias laird Murtioch, 

' Andrew 8worri in Gallouay, John Miilcolm 

* in Uafry, tn Galloway. Which persotii (as 

* we uie inlurmed) do not^vithstutidini^ hve and 

* reside at or near tbeir dwedin)^ liluees, and^ 

* by thcmsolveflf or otber&% to tbeir use and be- 

* hooff do iiplit), (MissesB, and enjoy tbeir lauds, 

* rents Hud goods, as if they were our free and 
•peficeaMe subjects, in hi|rb and proud con^ 

* tempt of U9^ otir authoiity aud lawjs: We 

* therefore, wiih advice of our privy counil, 

* d<» hereby ^ive aod jf rant fuU power, 4tjthority 
^ aod comrnLsfiioa to the sberitfs principal of 
•the shires of Lanerk, Air» Dumfries, stevronl 

* of the 8te%vartry of Kirkudbri^ht, sir Andrew 

* A^new of Lochnae, RheriflT-pniicipulof Wig- 
< tonn, aod ibeir deputes, to pass, pui^uc, take, 

* npprehend} impri<iOD, aod prei^int to jtisti<:e 

* the foresaid rebels and traitors^ w herever they 

* CUdi be found in any [>arl of their shire or ju- 



M*Qiiliarrie of Scorieholm, John Sleill, 
Overwatterbeodj John Whyal, of Neak,- 



Muirbead of Breidisbidme, * John H»ddo»e,j| 
in Duug^las, Jai^es Whytt ther, Jumes Semple 

'riidictloD; ajid, in case of assistance orhostil*' 
^ opposition, to pursue them to the dtrath by' 

* force of arms, or drive them forth of ihe*1 
*• bounds of tiieir shires and Jurisdictions ; and,' J 

* if need be, are to call to their assistance sucb'l 
*■ numbers of our goud suli|ects, as they shalJCl 

* find necessary for their assistance, wfio are'l 
' hereby ordained to concur with, lortify and] 
' assist our comiuiaionera foresiiid in this our f 

* service, as they will be ausuerable at ibcir lit-' 

* most peril. And if» in prosecution of the sahf j 

* rebels and traitors, any of them iditill lie mu-' j 

* tilate or slain by any of our said conmiis- J 

* sioners as.sisting' them, we declare that *bey j 

* shall never be pursued or called in questioii] 
Hberefore., but that the same shall be reputftj 
^ and esteemed ^ood and aeecptable service to 1 

* us. Given under our signet, at Holy-rood- I 

* house, the B day of October, 1681, andof ou/1 

* reigu the 33 year. Subscribed ut in Sede-*] 

* runt,'* 2 Wodrow, 159. 

* Wodrow gives the following accoont 
this and some subsequent proceedings a^^ainsll 
*' that rehg-ious and worlliy gentleman tb%| 
laird of Bradishcdni in the shire of Lanerk/\ 
from original papers, furnished by the laird^ 
*' of wbtim,'^ pri^ceeds V\ odrow, ** i woukl sa% 
more if his mudesty did not forbid me/' 

" James 3Iuirhead of Bradisholm, liad 1 
still a countenancer of Pre&byicniio ministers $^ 
and before the risiug at Bothwel, by scleral 
summons and other papers before uie, I fmd 
be was brought to much trouble before the 
privy council and other courts, and paid 
consitlerabic sums of money for bearing the 
gospel preachetl by Presbyterian ministers, ilc 
was further charged ancf finetl for harbounu;^ 
Presbyterian ministers in his boose, and be* 
cause they prayed in his family, v^ hen f liey 
came to visit bim, be Has made gtiilty of a 
house conventicle, and underwent several ar* 
bitrary tines. 

*^ 111 tbeycar 1679, at the rising «t n<»lhwcl, 
his hoiiise being within two miles of the place 
of engftgenieut, he carried with all the caution 
he was capable of, and retiretl from his own 
dwcllin^jf for 'several weeks; yet he ivus in- 
dicted bel'ore the circuit 1681, as being in the 
rebellion, though with on t the least sliadr*w oi 
truth. His indictment is in my hands, and 
runs in the common fcnni above insert. After 
til e examination of a prodigious mimbwr uf wiU 
nesi*eH, and nothing being proven, and when he 
hud given in a representation against some of 
his pursuers for suborning of witnesses, ami 
oNered to pix>ve it, the matter was husheil 
lip, aail by an onler of cnurt just now be- 
fore nil-, all further prosecution of bim was 
dischaigid. 

^* When he was, a3 he thought, secure^ be is 
a^4iu put into tlie poiteous roU, and before 



Ǥ1J 



^3 CHARLES II. Proceedings agmU the Lanerkshire Men, [3» 



maUman in HamiltouD, Jamea Lockhart called 
laird l>ockliart, in Hamiltoun, William Fal- 
Gooartbei', Anbur Tarbct ther, WilJiuin Polr 
lock, siiiitb titer, John Scotta, diler and 

this circuit at Glatjg;ow receives a new indict- 
ment, which being but short, 1 insert from the 
original. * James Muirhead ot* BraJisholm 

* voun^cr, you are indicted for the crime of 

* high treason and rebellion in joyning with 
*tiie rebels June 1679, and beiuff in their 

* comjpauy with arms at the SchawLead-muir 
' Hamiltoun, Uamiltoun-muir, and sci-eral 
*• other places, aiding and assisting them, 
« giving and sending out meat to them, or 
' otherwise supplying them, sending out 
*_ horses and servants to them, counteuanciog 
'and favouring of rebels, accessory to the late 

* rebellion, harbouring and resetting of them 

* in your house, upon the ground of your Wad 
*• as tenants, receiving onaii and dut^ from 

* them, conversing and iutercommunmg with 

* them, particularly you reset and keiit Robert 

* Turner in Goodocniil upon your lands, as 
' your tenant, and receives mail and duty from 

* nim ; for all which crimes you are to uqderiy 
« the law.' 

**• To say nothing of this informal and ge- 
neral libel, when he appeared with other gen- 
tlemen he was continued till the 25tb of July 
at Edinburgh, where 1 find by a si^ed extract 
^'the act of ailjouma) he was liberate from 
prison. The act itself, containing his petition, 
and a short hint of his strange usage, deserves 
a room here. 

Ipud Edinburgh, S5 die mensis Jnlii, Curia 
legitime affirmata. 

' The whilk day anent a petition presented 

* to the lords by James Muirhead of Bradisholm 

* youD'^cr, shewing. That he beiog formerly 

* (1()81,) convened before the suid lords fur bis 
' uUedgcd being in the lale rebellion at Botli- 
' wel, and exact trial made, and seven hundred 

* witnesses or thereby b«.'ing examined ^aimtt 
'him, nothing of guilt could bo made appear, 

* and ihc i>ctitioner having then ]>re8sed to go 
< to triui, and having an act of council for that 

* ed'ect, the lords at that time deserted the 

* diet siinpliciter, and discharged all new letters 
<an(l dittays, except by a warrant in pne- 

* sentia : And yet, wilhtiut any such ivarrant, 

* he was put in the portcous roll, appeared at 

* Glas<T<)w, urged a tri-il, and was continued 

* to Edinburgh, where !te offered of new to 
' abide a trial, but was committed to prison. 

* Tbercl'ore craving, that seeing the petitioner 

* hath been so oil troubled, and always appeared 
' and h now ready to pass to the knowledge of 
' an BUMiAQ for clearing his innocence, and is 

* ready presently to exculpate himself by fu- 

* mous witnesses, that he be ordained to be set 
' at liberty, and the diet deserted simpliciler. 
'The lonl justice clerk and cominiHsioners of 
' the justiciary, having considered the uud 

* peCitiiMi, do ordain the pcliiioner to be set 
<alliber*v H^rtcacied forUi of IbQ books of 



younger, UdingatouD, James Coras ther» Alta-- 
ander Corss his sob, James Rae, soa to Joha 
Rae, fewer ther, Jolm Wilkie, son to Jmkm 
Wilkie, in Know head, John 8oott, in Kcamiir, 



' adjournal, by me, Mr. Thomas Gordon dodc 
' to the justice court.' Thomjui Guhmm. 

" At this time there was no security fiir 9my 
body who had ever tavoured PresbylffdaM» 
and so, notwithstanding of this soctod ahaolti- 
ture by the criminal court, neat year at lll» 



circuit be is again put into the porteou* 
for the same pretended accession lo Batkw«|; 
and when he would not purge himself by takm^ 
tlie test, he is remitted to Edinbui^gh^ wIhb 
be is libelled belbre the council ibr i 



verse, keeping conventicles andotker po ■ ^> ^ 
and his oath is taken upon the artkka of tkm 
libel. And because in his depoaitioa, he a»- 
knowfed^es hia having had four tuMes Pivakj* 
terian ministers in bis house sinca the i * 




Gonveuticbes, and fined, according to a 
account given in of hia valuatwii, as an 1 
in fhwr tboumid marks, and waa kept in _ 
about fourteen montlis at Edinbuivfal AH 
this I have ^ven the more disiindly, heoeaae 
every |nrt ot it is vouched by principal papsii 
before me. And this was the case of e p 
maay other worthy gentlemen nmi yea* i 
this." 

With respect to the great nmnber of viJU 
nesses examined, Wodrow says, as aNaie^ 

" Because tlus may appear strnege le 
such as know not the metheifei of Ibis timm%. iC' 
would be noticed, thai in tiie year 1681, mmj 
more witnesses than 700 were cited in to lU6n- 
burgh from the West-country agaiosi tiM 
gentlemen then indicted, and they were el 
interrogate with respect to each genileman wdie 
stood his trial." 

It farther appears from Wodrow, Vol. 2« pi 
42Q, '* that iu Deceoiber 1684>, a decreet' wee 
passed by the cutiucil against Jamea Muirheei 
of Bradisholm, and otliera : their libel waa mere 
non conlbrmity, and alleadged reset, and OOB* 
verse, and refusing the oath of allegiance wkll 
the king's iH-erogative annexed, which Hmy 
did not reckon themselves obliged in law te 
take;*' whereupon tlie couecil fined thesa is 
difi*erent sums; Muirhead*s fine was 4,M09 
merks. It seems that Muirhead was aAar- 
wards imprisoned ; for, Wodrow notes, iiiMlBr 
date September 11,1685, that Muirheedi, of 
Bradisliolm, was lilierate uMler a bond of 40M 
merksto re- enter October 12. Intreotiaff ef 
the proceedings of the ciicuit courts, heHl im 
difierent parts of the countr}' in the yeav liU^ 
Wodrow says, tlut the p«Mteous roll Ibr fli^ 
shire of Air, so lar as he couid guess, wImd km 
Iblded it out, '* consists of upwards of SUOahcets 
of paper ; that of tlie shire o^' Laaerk is upsv^ids 
of 200 sbuets, and noetains the whole gl«tr|iaf 
that shire almost witboii4 esoeptioia.V Vet % 
PP.31M17. 



859) ft*' trwnn. 

MmMcM^hk mm, Rolieit Cait^. M^oilsetiflr 
in U4<ni;«lrfito, Joliti Oofsr In, 

Janrn 11i(»m<oii, ficntinnero: itn 

«utl yoovgcr, ia Easter Olemorle, J-olift nuBiiH 

0Mlberiiiliiiowe, WiUiwn WmIik*^, portiofivr 
of MainhiH, Jamrs Gn; nn* 

* ■ GrayluKicm, ler 

«i€G«niafiliefi| i«mes i^ray, nr n<inpKnow», 
Wftllnr uon^ten, poifMinef, of lUbroiHotiii, 
Mr. John Spr t^^' -^ '*'-=rr3tih»Hi» ^ireitter it! 
we, J 

My , ^. ..,,.. -^ 

O«iodvii>, rnuJtmttfi, 
e, nercliiiH in Cilivs<'f>^^ 




MMiilivnry , u,.,,.. .W"' i^'i-ylitih*^, 

liolMit O«iodvii>. rnuJtmttfi, utuiinir- 

r thcis 

; nier ai Muilefiiiartifr, 
nml portiotier, of Shet - 

\nmi\ toylor &D<I fcwar 
tber, Ifvi^H Kff, ot Howehousi, Hubert Fley- 
tnlfl^, of AucKinrtiK% VV iUiani I'ark, fewiir of 
iLMrivkSf Johu IliHi ' tV'warof Kogci^uii) 
Thomw V ritig' fc\« tafim , Da^id Linde* 

«igf'p«iftioiM»r Uifeixn-., >Miitt MiHar yotniger, 
fe P M in l.0«£f CntlMnvoad, Jobo Witsou, in 

tloclimie, ymwmtt or * 
Yoiiii^, of fciltull, Thot^ I 
iMer of FioM«n4, James b v<'kf»/ ]torti<«t]^r 
Off HtOhame, John Caradiiff/ fis^uir in Sire- 
v*ti, JaoKM Huntitton, elder, in Prym-IiiH, 
Hticbtrd Maikti^, m Tw«*i4iii«yd, Jutncs 
WUInr, ymm^^ of lUlkctbiifn, Tbomai 
i%llte««t'fli« olti kirk uf CnmiK-lhRt], John 
Clr«y of 0irD^tvi1l, Robert 8ieill, in SUinio, 
Mm Wbilkw«, in Oottmrliihetlb, Jnbn Vit- 
tfftiMi tbor, WiMiafiii W«iilrop«r, portkincr of 
&Mir Ontb«4MMt, Mmi €?tlberli«^ j9\xitf^^ 
p uM iw it r of WMaoeHe^, linb^rt Russ}!}, |iar- 
tiMier tbevpf, J<iiii Mtlbr, of Wiittprsbnu^, 
Jahn Nbnaioin iW fforih Jr^hu M']r\ tt voiinnnpr, 
^fl^ckbrkl >n. 

inift Geof^f tii- 

bdid Ctmlnml^ ol KmrnohUhiiL Jatii*^ llamiU 
too (»t' linUyd, JamcK Ituiu1Ur»n, ol'8c<mphally 
Tbarau und JfLincji AktDiinft, nf Mftines, John 
IhlMtllih fnwnr in llnfuitifii^ Wflliuft l^k*<, 
i«i*LtnT"^ ' .i««rt and Wiibam Cilttmurs, 
tf€fti*ii< 'f^^ Al4?xafidci.' MurimVt ^^ 

IMitouiiiif^ud^ luid l>y«k« Oiiivtn S^inplp, 'pr- 
#Qii«r <if KifkwiM>rf^ TboiWfM Brownhr, p<ir- 
•f Cfj"*"** '^»?<rnMui In^iier, pArtsoMY of 
(•«, of F4«iiiUmiB| J^meai 



A. D. 159 1. [954^ 

giAto J r, in Eit)(tfT«eai, Joltn WHIiAtmon^ 
ymmgrr, heritor of the lunds of Hull, «ni| 
John WiUiamson« son to Robnt Wi11iiitii»0Dy 
«^1ed k>rd of 8botcleiieg^, cQftkAiid roeotiou 
thM frerTiotwithstiindiit!^ he fh** cwmmon In fie, 
liiwc *' ■ lament of 

thiskii irpoi;Tii4 

rj^iseiutJ ot Ins liinjcsiit's bu lyre 4s, or any 
nutntver of theni) thejoynrng And ossiemhlin^ 
tmg^itber in armes without and contmir to bttt 
mnesties conitnaind, warraiid and ntilhoriti<^^ 
and the abaitincf, assisting, fecep«inp^, inter* 
oommonirjc and keepings correspoui1et*f*e witli 
such rcljcll?*^ and supplieing' of ihem wilH 
levins of mcHi horse, inouev, armesi and I or* 
niKbini^ thtni with roe-at, (frink, powder, hftll, 
and other munition bellicalJ, are most deta«tft* | 
hie, horrid, by nous and abominable cry ittes of 
rebellion^ treason and lese majestie, ftnd &M 
punishabJe with f[>rratilitiFe of Kif, lam* 
henta^*?* and escheat of tbcr moyaWcsr, and 
the third act of the first parliament of *^ 
James the Rmt, It ii statat and ontatned, 
no man oppinlie nor nottoriouslie i 
Against the kinij*8 person under the patu. 
foHaoltinsf lyflT, land and jcroods : and bt 
ibrettie sevinth act of the second pirHiameDl 
kffig JAmes the First, it is statnt, that no mi 
wilfellic receipt, mantaine, or doe fatonrto 
pin or manifest rebella a^inest the king^s m* 
I'-Stie or common lawe under the paine of for< 
laulfrire ; and be the fourteint act of the U 
parliament of king' James the second, tt 
stiTnt, thai DO man rebell ftgfaine^ thekin^%' 
pe?rs(m or anthorilie, ormakewarc ag^inc&l tji% 
king's leidgTSt nod inhoso does to the cod trait 
to be pnni^fH «flvr tbo onatitie and qnantttit 
of siclire^ ' A be tne twentie fylt act 

bia 9ext \< it k fitatut, that if tnyj 

iMRi oonmun or nor trisftson a^inesttbe Idngvj 
jMieuii, m ryse in featr of wear fifpnneil htnii 
or recrpte any that has committed treaaoti, 
supphe* tliem in lielp, redd or conocill, 
h. niM.cKr-M .ic traiiom ; nnd be tli»* f^iM, 

)i act of the twdth | t 

*j ..^ _' :. . , tin- sivt. It is V X 

wherever any <" f 

part of thiM niilii , < j 

whall prt'sunie to rece»pl, ftuppUe or itit«r- 



Aithl,J(dto \ 
JliMwdi, po: 

^iifcr, |iortiMier of 1 
jMMpir, MflfOcMr t 



iij^T of Flack. 
In Kito('hs\ d 



ik, 

i>ubt 



cnmnfn with ih'rn, or ^^r thrm any tddff of j 

■. ■ ' ' ■ '!«<' 

tic\ ' 'lilh^eni 

in N the Bail 

traftr>r% rina rLOcii*J, nnn uku wnu t\iitpcitd\ 
cfTtttW l(ts miiycBlie, or 9omc of hn 
r--' " nrfome |>erf<nia of nnthoritie or < 

t he fthjrr, that such rehcn* are wittnttl 

t ,. , amUrtht p-.m. fUtti the saidf traitoi^J 

fiiHl reltells ought to they if cr i 

piehcndit niKl ronvi : I\kLva^bel 

,> . ^ ' aIW 

h ) c trrastrn t n I he m i l U is k tltf^tloTIIf^l 

or any numbrr of ti i or icsae^ npOlt^ 

wty ground or pretext n httiiwaicicr, to r\^ tfr 
cmnt&ue m armes, to mtkt peioe or trirf ^ m 



S?551 



33 CHAULES IL Proceedinga agaimt the Lanerkihire Mem. [S56 



to make any treaties, or leagues with rorrai|rne 
princes, or estates, or amongst themselves with- 
out bis majestie's speciull authoritic and ap- 
probation, first interpoued therto, and all his 
roajestie*6 subjects are discbair^red upon any 
pretext whatsoroeFer to attempt any of those 
thioi^s under the paine of treason ; and be the 
elevinth act of the first session of his ma- 
jcstie's second parliament, it is statut and or- 
dained, that iu tyme comeiugf in all cases of 
treasonable rvsuini; in amies, and oppin and 
manifest rel)ellion a^uinest the king's majestic, 
his h;^ne8 advocat for the tyme may and ought 
to insist againest, and nrosecut such persons as 
he shall be ordored be iiis majestic or his privie 
Gouncill to pcrsewe ; and if they be cite<l ami 
doe not appeir, tlic justices, notwitlistanding of 
ther absence, may and ought to procee<l to con- 
sider and give ther interloqmtor upon the 
lybell, and it' it be found relevant to admitt the 
same to the knowledge of ane assyse, and upon 
the verdict uf the inquest ftnding the same to 
be proven, the doom and scntance of tbrfaulture 
ought to proceed, and be given and pronunccd 
in the same maner as if tuc persons accused 
Lad compeireil and wer present ; Nevertheless 
it is of veritie, that the saids John Wilson, 
Mr. Thomas Pillaas, and the other persons 
above-named, and ther associats and accom- 
plices, shacking olf all fear of God, conscience 
aind sense of duty, aleageance and loyaltie to 
the king's majestie, ther suvareigue aufi native 
prince, most perfidiousiie and treasouablie pre- 
sumed in coid blood, and in the nighttime, upon 
the day of Apryll, 16r9, to murder and 
kill , a soldier in captain ' com- 

pany, and \ei\ another of the saids souldiers ibr 
dead, and John Balfour, of Kinloch, David 
Hackstone, of Ilathillet, and others, having 
upon the third of May, the said year, killed 
and murdered his grace James late arch-bishop 
of St. Andrews, they to escape jusiice and in- 
volve others in ther guilt, went unto the western 
shy res, and most treasonabliejoyned in armes, 
wth the persoues above named and others, llier 
dissolut and flagitious accomplices, under the 
command of Hubert Hamilton, brother to the 
laird of Prestuun, and upon the twe ntie nyntli 
day oi the same moneth of May, a day appoynt- 
ed for a solcmnc thanksgiving fur his majesties 
restauratiDU to the royall government of this 
kingdoinc, did goe to the burgheof Uuthcrglen, 
and tiicr most proudlic and treasonablio, hav- 
ing read acts of ther own coyning, they most 
treasonablie and wickedlie burnt several acts of 
parliament asserting his majestie's preroga- 
tives, and establishing the government of the 
churclif drowned out bonefyi'cs sett on incom- 
uiemoration of that day, and therafter they 
and ther reliellious associates, to the number of 
fyveor sex hundreth, did wayUy a small and 
lewe number of men under the command of 
the laird of Claverhouse, and did most treasona- 
blie and cruellie kill and murder some of his 
majestic's souldiers under his command ; Ly- 
keas upon day of June iberailer, they did 
i00 ablic attact^ueandaimultasmall 



paitie of his majesties forces within tbe toun of 
Glasgowe, under the command of the lorl 
Rosse and laird of Claverhouse, be whose pru- 
dence and government these oppin, nottar and 
manifest rebells wer repulsed ; and yet being 
incouraged with promises of levies of iheOy 
horse, money and armes, from others of ther 
treasonable accomplices, they did swell and 
growe to the number often or twelve thousaudy 
and they, and the persons above named, march- 
ed up and down tlie countrey, throwe the 
sliyres of Lanerk, Aire, Itenfrewe, Dumbftrlon 
and others, in warhke and -military powster, 
robbing and pillageing his majestie's good sub- 
jects, searchmg tor horse, armes, powder, ball, 
and other instruments of warr, ^uarterin^ upon 
and oppressing his majestie's leidges and peo- 
ple, and they and their accomplices did main • 
taine, supplie, comfort and defend Mr. John 
Welsh, Mr. Samuel Arnot, and other fbrfault- 
ed and declaired rebells for the rebellion 1666, 
did supplie, shelter, and protect the impious, 
horrid, and sacraletlgious murderers of.tbe lats 
archbishop of St. Androvs, and they and ther 
accomplices, to the number of nyn or ten thou- 
sand, march towards Bothwell-bridge and 
Hamiltoun-muire, where they did take the boM- 
nes to issue proclamations and print declara- 
tions bearing the treasonable grounds of ther re- 
bellion, and not content therwith, they and ther 
rebellious accomplices presumed to modellthem- 
selves and take the name of ane army, formeing 
and framing themselves in troups, companys 
and regiments, nameingcoUonells ot'regiments, 
captaines of companys, commanders of troups, 
and other officers, under the command of tlie 
said liobert Ilamiitoun, John Balfour, of Kin- 
loch, the deceast Daviil Hackston of Ratbilet, 
and others, the impious and bloodie murderen 
ofthc late arch -bishop of St. Andrews and they 
and ther accoraplices did incamp themselyes at 
Hamilton-Muir for sc vera II dayes togitber in 
June 1(379, ami obstinatiie contmued in amwi^ 
makeing detachments for rifleing and plunder- 
ing of the comitrey to make provision for ther 
rebellious camp, and notwithstanding of ane 
proclamation issued furth by our privie coun- 
cil I (Icchiiring the sM insurrection to be ane 
horrid and manifc'st rel^ellion and bye treason, 
and commanding these rebells to desist and lay 
doun ther rebellious amies, yet they did most 
treasonablie continue and abyd in armes. ifid 
beat parlies he drum, and diJ take the boldnes 
and pr^un)ption to send ther commissioners to 
our royal camp, and treasonablie did requ^rs 
the subversion and overturning of the gt>?em- 
ment of the church ; pi-oudhe and insolentlia 
boasting of ther trenMuiahle and (as ther oom- 
missioners wer pleased to call thein) formidaUa 
armes, in which thry mo^t treasonablie con- 
tinued unlill the twoniio second day of tbe sM 
moneth of June 1679; that his ma'ties finwis 
did attactque and assault them at Bothwel- 
bridge, wIut by (lod's blissing on his matiea 
armes and be the valour and conduct of Jamca 
duke of Bucclciigh and Monmouth, his m^jealiii 
gcnerall, and omccrs and souldiers under him, 



\ 



k 



4lier ouxDcroys and risb«lilou» ami^ wu^^I'-^t'-^^ 
^ pouted uud vaoqitishcd, uiitl yvi {\n 
4<bove tiatiieti 111 villi' Hi>(l i\iivl itiaiJe tilt L __ , , 
they uiid \l iirul liaeraiegious inur- 

dtrera ot lit' u hi^liniMiJ' Sl Andrews^ 

Oiarclied in ]tt&rtie^ and io ' uvvslt^r Up 

mid doMQ tltti eotiiitreyf in u uf l>uni> 

fiivsy V\ iafto'jiJ, Aire, and SttwaiUiL' of Khk- 
€udhrj;7hr, f^nwrt* riT»*»^ iipno ttfut opprt'HHMiiT ||i$ 
ri ilier 

^ ond 

iifcV ot June i.Lst, i: * jist Mr, 

Kitcliard Cumeroti, li atidcoti- 

1^.1: '"--'^ ^ ■. and 

ie and denunce 

>^^ : sorTt under or 

ycalti ^ and dill iiiohI trea- 

sotiahlo iilrive and dUperse, 

a HKjst trcaionablc paper cattod ^^ the F^inna^ 
licks Nuvke t-ovenanl ;'* v^hicli was tukeo 
from Mr. Donald Cat^dl, at Uuiiiiisteiiic^ and 
is nowf* printnl and pMMisUcd, aiid heretA 
hotdrti ail r^-pei led » Rill ^ ^cat 

at t lie trii'aiiouahle atiil icu- 

fjon uiiCid be Wr, Donaiu i argiii, iii ion wood^ 
ii|H)ti ilj« day of last, a^^satuect the 

li»t ' "^ - ' ■"■''- '- ' - n the 

d ^unaiueii 

,A3i »..»..v| -^ sidtft 

Mir lie* forces ^se, 

•Mil I . ailit-lajrd _ _:iLill, 

did tieji^lu, resist and oppQi^tKetn, kiiled and 
woundii seireral o( thcm» uDlili at kji^ih \hty 
w«r diwsipat and dt fate, the s*d Mr* Uitcbard 
Cameron bcnng' kU<id upun tbe p^ace, and 
i>avid Hacksloun id' tUMnletf and otbers, taken 
pnaonemt In ducinj^ wlieral or ane or olber ol' 
the a-ds dtedi^i the saidei John Wilsoo^ Mr. 
ThoDias Fdlaus, and. tiw other persona abov««^ 
Otnied, have c^intuUttd and inciirred the 
crymea and paine of trrusoa aUivt? mentioned, 
Dttd tre actors, aiit «nd part M -^ ' -i -^ 
l»einfir found be ane ii&MyHc, ibr\ 

punixbed with brfauJtui ot'lytJ', 1,^:,., , ^ - ..o^ 

10 ibe t«?rrDr of otheii» to couiiuitt the like her- 
cfUr, 

Pcnewer, — Sir Gmtge M*Kenzte of Hose- 
tiauffh otir sovcratgu lord's advocat. 

War rand /or Advocat § io compcirjbr the JJt- 
fendrru 

Thf 1— * • '- '- -" Justice Clfi^ 
and C did aiitli' 

and ia., ... ,,, Lri» Mr. >; , - 

Hun BaiLidlouiJ. and ^1 ^Miiiaie, ad- 

VOCata, to cittiKM Mr ;a]m! iuitorr itri>> uf 

inch of th< 

aball coiuiMrii 

for treason aiid rcbeUiou at tbi« dyrt. 

ReUls declared Fugititti, 

Tbemtid day Jolm Wilson, wrcitter in La- 

nerk^ l^lr.T le, 

lirrriuer tbt^i .i ^ . . .. u.i^ld 

VOL. XL 



Si .^^c-ir, ther* Thomas LauL'hIun iHcr, Wdliam 
1, ^eavur lher» fiidroii VVtlr, "june* 
ljei\ James Park, wtfiivcr tliei\ John 
humpte, mason ther, Hiiji^h Ker, ;ion lo W illiain 
Ker^ in B^rooald, Ttiomas In^lis, ^lineinaker 
iti l«anarkf Itobert Haddowc ther, John 
Buckle, younger, mason and uvight thm% 
Alexander Balyie, >jniilii Iher, Altxander An* 
dtrson tber, Joba Puitipbray ther^ Thomai 
HhiMC'Uvood ther, John Jack, to Nt-mplder, 
WiLJiDni Pudzeaii iher, Hugh SomervaiK of 
Urrats, John Hntcheson, of Harelawe, Uo* 
bert 8onierv(iillf of Vairdhotise^ Luke Grein^ 
sbills, of lio^^casUe, Robert LocklinrU of 
Btrkiidlf Gavin Hamilton, of Hi IK Jnmes 
>Veir, ofJohnshill, Jame?i vr'^^fl^ »« • > -^* s- o- 
rieholiiie, John Steiil in < n 

Whytt, of Neiik, John ll , . i^ i^ us, 

JuidW V\ hytt ther, Wdliam Fateouer in Ha* 
milton, Arthnr Tarbet ther, John Scott, 
younger, in Udini^stouu, James Canie, in Ud> 
In^Moii, Alexander Coc^, his son, Jumea 
H^f^'f son to John iiae, fevvsir tlier, John Wit* 
kie, son to John VVilkie, in KnoivhvafI, John 
Scoir, son to John Scott, in Kenmnir, liobert 
Coisc, wadsetter in Udingston, John Thomson, 
son to James Thomson, portioner of Gam- 
quein, George Roberrson, eldar and younger, 
of Kaster Glenlore^ John Kussill, of Eastfeild, 
Gavin Weatherspoon, i'ewar. In Heather- 
knowc*, James Gray, elder, of Chrystoud, 
John Easton, port! oner of fiarnquein, James 
Gray, of Berrieknowe, Walter Donahlson, por- 
tion it of RalHestoiin, Mr. John 8preuU, wreit*' 
er ii! Glasgfowe, Gadn Wood^ wriirht Iher, 
Robert Goodwin, mahman ther» Jaijies f -un- 
iti^hani, mcrchnnd ther, Isack litackiveli, 
son to Thomas Blackweil, calendar thrr^ 
John GoTan, portioner of Shetlestfiun, Wiiltam 
Ridilell, fewar and mason in Rii(btreleti« 
John Brown, t ay J or and fewar tht*r^ Uu^i 
Kcr, *#f Boi^liouse, Robert Fk\ .f 

Auchinfiae, William Park, fevfai j, 

I t.. ij-,^,jj^^j^^ fewar of Rocertouti, i iimnas 
var of Jatkloon, John Millar^ yoting"- 



ran, ot Craijf, John 
' .. : litippeii, ThoHMi^ Le- 

per, pomoner of FeiUIUead, Jatnes Dykm, 
portioner of Halbume, Johti Carodnrt', fewar 
lU Straven, Ritbard Meikle, in Tweihesyd, 
Thomas Palton, at the Old Kirkof Cnnibu^ne- 
. John Ciray, of Darngafill, It 
ain, John Whitlawe, in Rotli 
J<tiH> Paterson, ther, VVilham War<hoi>it , |M»r* j 
lioour iif Eaater Calderliead, John Catberhead^J 
'ii^'er, portioner of W indie- tdge, John 
:t, younger, of Stockbridjfcs, Tltonjai 
*..;.v^ of Blairrcckonin^, William Dykes, of 
I.*aiiibhill» Gavin Stuiple, portioner of Kirk- 
wootl, Thoina« Bro^valie, |M»rtioiier otTuritsl^.i 
James Aikenhead, in Kittocbayd* Ja 
Dykes ther, John Grainger, of Fla 
J^i'kn Watt, ther, John Weir ^f Strang 
ThotoM Uobeiisou, portiObar ot ilu 



859] 



53 CHARLES II. ProceetUngi ggmmd the Lanerkskire Men, [SGO 



Joho Haddodr, in fiMteraeil, bcnig «ftjiiMli 
called to liaTe eompeired befor the Lonia oom- 
niissioiim of jiiMioku-y tbia day and placi>, in 
the hour of cante to haf e undarlycn the lawa 
for the crvmca of hye treason and rebdiion, 
comniitteff be them in comimif ^ ^ burghe 
of Ruthergien, upon the twentieftynth day of 
May, 1679. and proclaimiBgr «cta of tberown 
coyoibg at the maroatcrocetbefof, and drown- 
int^ out bouefirea, aett on in commemoration 
of hia majestie** bappie rcatauration to the 
royal government of this kingdom, asaaoltin^ 
and attactquinir a pertie of his majeatie's forces 
at Loudounhil), under the command of the 
Jaird of ClaTerhouae, Iciilinfir and murdering 
eererall of his majesties souMiera then march- 
tngr to thebar^h of Otasgovre, and atUcoiieing 
a partie of his majestie's forces within the 
same, under the compnand of the lord Rosse 
and laird of Claverhousc, marchiilg up and 
doun the country with the murderers of the 
late archbishop of 8t. Andrews, and others 
ther accomplices, to the number of nyn or ten 
thousand, quarterin^^ upon and oppressing his 
majestio's good leiges and people, robbing and 
rifieing ther goods and houses, publishing and 
]irinting the treasonable grounds of ther rebel- 
lion, beating parlies be drums, sending ther 
commissioners to the royal camp, treasonably 
requireing the subversion of the government of 
the Church, resistiog feighting and oppose- 
ing his majestie's forces at Bothwelbridge, 
nnder the command of the duke of Buccleugh 
and Monmouth,* untill the saids rebells were 



* Of the procedure of Monmouth against 
the Scots insurgents, Algernon Sidney in sue* 
cessivc letters writes thus : 

** No man doubts of the truth of the news 
brougrht hither by an cxnrcss on Saturday 
morning ; which is, that the conventicle- men 
hi the county of Glasgow are in arms ; that 
one captain Grimes coming something t(K> 
near them, with his troop ana other forces, was 
beaten back, with the loss of his comet and 
Iburteen troopers; which according to the 
posture he found them in, he was persuaded to 
content hiniKelf with, rather than to press -far- 
dier. Tlif*. council was called upon this oc- 
casion on Saturday last, but nothing (as 1 hear) 
resolved until they hear more, some doubling 
whether it he a laid business, or a snddcft 
tumult raised by accident. 1 know not the 
truth of this, but the discem^es I have heard 
▼ery often of late, of those who every day ex- 
pected some such thin^, persuades me to be- 
tieve it is not fallen out by chance. Thouvb 
no resohirion wna taken at council npon this 
matter, it is said, that private onlers are given 
fHit to several officers of the late disbimded 
troops, to get their men again together ; and 
to others, upon the roosi plausible pretences 
that they can invent, to delay their disbanding 
These ampicions go too 
h some of your friends 
i degree, that eomnellortare 
■ tebe^BDged than ooiuali; and 
ft 



defate, and eommittingditaevenllctlier aoli 
and deeds of bye treason and rebcUioB, at 
leiiffth mentioned in the criminal lelteni raMI 
at nis Majestio's advocate instance against 



•nai iney can mveni, io 
M mud as may be. 1 
Ihr, and already reach 
and BUM, toauch a dcgi 



if they do not find a way to core that aoie, at 
the next meeting of pariiament, they will he 
looked on as their predecesaors. If nothing 
from Seotlaod hinden, the oonrt will go te 
Windsor to-morrow.*' 

** The Scotch news that I mentioned te jon 
last week, doth still possess the minds of all 
men here ; but all relations that come from 
Scotland arc so impel feet, that no man knowa 
what to make of tnem ; and those that cooM 
to court being more particularly so than otherir, 
no men are thought to understand less of A# 
business than privy counsellors. This is at- 
triboied to Latnenkile ; and thoogh it be ooa* 
clude<l, that what he says is not true, eome 
think the business i^orse, others better, than it 
is represented. The fact, as far as I hear, is^ 
that the earl of Lithco with above five, and 
twenty hundred horse and foot did come withiB 
a few miles of the conventicle- men, and find- 
ing them in such a posture, as he did not think 
it prudent to chaige them, he concluded the 
best was to let thciu take Glasgow, where they 
are said to have found good store of arms, am- 
munition and some cannon, and having left ao 
many men in the town as are thought sufficient 
to guard it, they march with four pieces. Tliej 
are said to encrease in number every day, hm 
we know nothing of them certainly, unlen it 
be that they have no landed men amongfll 
tliem, nor any gentlemen, but a younger bro<- 
ther to a knight of the Hamilton family. The 
last week we heard of nothing but raising ef 
great forces to subdue these rebels. The doketf 
of Monmouth, Albemarle, and lord Ganel 
were to have regiments of horse, Feversbam 
one of dragoons and grenadiers, the lord 
Cavendish, GreyofWerk, Mr. T. Thynne, and 
some others, regiments of foot ; but thM bent 
seems to be something abated. The lord Gr^ 
gave up his commission, Mr. Thynne refhaei 
to take any ; Cavendisli doth not raise anj 
men upon his, and Garret swcaiii he will net 
be at a penny charge to raise a man, but if the 
commissioners for the treasury >vill raise lua 
a regiment, and provide money to pay it, be 
will command it. W hilst ways were sought 6 
remove these difficulties, the Scotch lords that 
are hereeudoavom-eHto pei'suadethem that the 
business may be euded by far more ccrlun and 
leas chargeable vays, in a^ much as these mca 
having been driven into a necessity of takinj| 
arms, oy the extreme prcs&iire suffered fnua 
those that did aburo the aiithcrily his majeatV 
had trusted t!iem with, the people being eaana 
of those burthc'ns, the pLTSons removed tlial 
had caused t]u:ri!, 9w\ sacli men placed *iA 
the goveniment, as wjie rxcq>tabic to thn 
nation, th^?y durst undertake rliat all mi^ 
be composed without blooil. This was not 
(as I hear) disliked, but auotbet* point wttk- 
alaited, that doth yet more incliac the eoart1§ 



iheiQf ihfir anmt as ihey tvho wf^r iawfuUie | thor ^p|>(.i 
filed be CI«org« O^Llhie, Albany lierauiilt hy \ mn\ \iW\ 
•OOod of trit'T*" "♦ ^*.'iih ilr^pluyetl coat, nr--' i.... -i,., 
•liicr ■ohnuL >^it to havi.^ touwJ cair 

■nd soverlit; *i..v» *.. J.^ books of adjourna 



mild coime* i wluoh la in the year lAll act* 
at' p4irliajiie&t were made tn botli kint^^iiomt, 
MHcing ittrcttaop fov iny pei'soo beioa^iog 
unto ^ther to make wnr upoa or iiivude liie 
<»ibert wiUiout I lie cotiiteut f»f pariiatneuU 
And ihovigh Qoe or two of tkr judges aay, 
tbfti tlia acU bring rccipruciti, ihe 8coIb 
httving resotiided lUrirfl, outs f /' > ' T 
«r thougb il did qcH, Uie act 
invasian, no vi^ays louclielh suco i^ irv ^^^c 
llJttg's command tdiould li^o to subdiit^ rebels ; 
iAben my, that whut the Beats did niighl 
Ui4eid gtre unto the parliutuent of £n^laDd 
ft juil jB^rouod (t( aiiouiini)< iheir act aJ^o, but 
not having done tt^ no intin can doubt but U. 
pemajiis in force ; and wJiosoever marchetb 
•gaiuBl ScotUnii incurs tite penalti^ of treg- 
flon denounced tiv it. And home that were 
pretent i>t tbe nrnkiii^ iif il, are so far froin 
approving tb« distin^iosi lMwt«a invadiu;;^ ^uid 
subduing rebeia at to nay, thai ibc parliament 
Ibexi fmdingtliey bad l^en upon the like pre- 
tcnoe eagi^ped against Hootliind in 16^8 and 
3tf, madetbiiftslttpicsaly to binder any sueb 
bqaJBgaa ii lliat vhioli tn im>w dept^odin^f ; tmd 
lo lake oarti that England ibonld urvur be 
tgiiB engaged againat fikotland, without the 
tfiomt of the parUaaiflQt; wbich was also tht! 
niflMiwtiy the act was eooliJiQed in ioYce on 
our aide, tliougli it was divoWed ou tbeit^. 
Thia rendeiw men of eatAtaa uawiUiag to en- 
gage j aad hereupoa the duke oi^ Muomoutli 
wai a^ai aaray yeaterday in isueh hasle, aa to 
carry no more eompony with biin, tbau could 
go in MM day te your good town of Newark^ 
wbcrabewaa to lodge the last nigbt Heia 
lumished with powers of indutffenca lo com- 
poae rather than destroy ; and the lord Mel- 
via (wbo ifi thought well enough inclined 
to non^^eoal^riiiiats, and well bkod by tbem) 
ia aent with btmt as being thought a fit 
miptMiir of a good agreement. Tiw? fou>i that 
¥fw» caaberked in Ihe Ttiarues is gone i*tt lu*r- 
wick, where it ia Ut Ktay to serurt) the ton n« 
and tho other fore<«, thatare uewly efltertai|ied| 
are to continue only lor a mouth. This iooki 
as if your frit^tid Laiherdale may within a 
while bt:lel\ aaindted as the carl of Danby. 
HiAsaiDir is almost every where dishanded, 
oniastlue these that ufion this ooossion iu« 
agsin takoi into pay, and the enuniries almost 
every whme express Ihe u^aost haired lyala 
theoi, as soon ns ihejr have laid down their 
aroBSi. IlotiglBfl*s rsgimenl now iu Ireland^ as 
ia said* hath ordfta to maidi inl» bcotlaud« 
which giving {leopli! nonsioii l«» lalik of ibai 
country. they say that the king hating lately 
plaisad me gfaalesl powem ia Uie tbr<ie kingf 
deess in the hands ii' tk» three worst men that 
eould be tutiud in tlieia, can oever he 11 laisa 
oatii Ihey arc nil sacritiocdf la sjcpiale Ihe 






TMr Ihe saidt IorJt*t?^F^ 
r of cause» to il 

• I fir nou of Uiem 

.w-,-u.... i, Ueuemll^ Justice 



faults of the jcroverament, and appease tlie dts^ 
conteutii of the nation. 

'* I told you in my last, that tlie duke of 
Han'' : gone towards 8cotbtid, since 

wbn :, , i»rt« bare been so various, thai 

no nvMi ^^ t'A kimwff what to make of llml bust- 
nesfi ; luid the ca use of t hi !3 uncertainly is impute 

': ' i thekinM'*so^ersi,who iir 

k'tisrs directed unto person 

1 



lh•^n they think 

here '"> ^«t>»i 

btou: 

thcTi 

with 

that o V 



. and as much honour, as ttio^e 
> I ould shew unlo hint ; that the 
oouiKnl lia%aii;beenimj|ie(liaiely calieil, be ex« 
posed unto litem bis oomtuinaion, which was 
very well Itkud ; that the chancellor invited 
him Ut supper thai niglit, snd that he was the 
next morning to go to the srmy» having tirsl 
sent an express 19 the lord litfico, that com* 
[nauds it^ no ways to engage in any action 
before he corpes. Soqae tJiutik that be both 
the convontiri^-iueD at an advantsge, and will 
pursue it to their destrucljou. Others fiay» 
that u[M»n the extreme avemon that is !ihe%vn hU 
over England to a war in Scotland » and tho 
tittle prub;ibilil) yet ^ippei&ring of the pai JijL% , 
meat's being atiy ways ^gMgeshle in it, 
hath reoeiveil much miirt^ k;cutle instruction^ 
and tnttuds by the li lard Mrlvin, 1 

compose thoiie basin • cau ; ^md If 

can accomplish it, w i ' \ rondrr hiiu^elf 

very popular iu Kng! c(>tland.'" 

** The duk^ ll^iuiUuu and sooie other 
Scotch lords having let his majesty know that 
the disorders in Scotland proceeded only front 
the ejttieine presiiuri^^ the people were brou^hl 
under, by ih^^e who, contrary to law» abuseil 
tike (>Quer his maji>vty had trusted them with, 
did undtrtake to hutkik uU without bh^"^ 'i <'i>| 
would be pleaiied Ut eas^* them of i 
&urt*8, and, retuobing those who hviu v,.,,^,4J 
them, put the goveruuieut ol th# kingdom inl(_ 
Uie hsuds of such pcrfions as w^e w^llf 
t^lstksing unto the nation. This having b<i^ 
taken imo consideraiion for eouic days, tli, 
duke HumihiHi witli llm re^* «ml one l./ockr 
hart, were se^it for by the kiogi whoto^d th«;iiif 
the points fortuerly spoken of did irlaio uuti 
his prerogative, which in thrre points he wuuL 
nolsuirerto bt^ ttiuchcd '. l«l. Thai 1 ' 
a right of disposmg of all placcri^, in 
^kscitaie such peiiM>ns aa he should uiiim 
2dty, That it belonging to him to prrvt^ul 
conspiracies, he might bectn^^ im'I •<■ 
aim sus^teid persons ; and (h 
au^h thing us a Habeas Corpus r i 

shpiiM he AS long as he lived t 

biiog hii j[4ut iu pmvcut ur to 



S6S] 



S3 CHARLES II. Proceedings ag^mt ike lunurkshire Men, [2G4 



Clerk, and Comnaissioners of Justiciary ther- 
for, be tlie moulh of James HearysoD, macer 
of court, decerned and adjudged them, and ilk 
«ne of them to be outlaw a and fugitives free 

he might raise such forces as lie pleased, 
quarter them where he thought iit, and em- 
ploy them as occasion should require. To 
ivhich Lockhart replied, that the places in 
question were those belonging to counties and 
corporations, which had ever been chosen by 
the people respectively according to their 
charters. And as to what concerns conspi- 
racies and rebellions, he thought he could 
prove, that what his majesty did assert did 
neither agree with the laws of Scotland, nor 
any other law, nor the ends for which that, 
or any other government was constituted. 

*' The next point in discourse was concern- 
ing some articles exhibited against Latherdale ; 
in which it is said, that'* his majesty for se- 
veral years passed had been utterly misin- 
fomieil, and never known the truth of any 
thin;;: relating nnto Scotland, hut been guided 
by such reports as best suited with Lathcr- 
ilale's interests." That he had been thereby 
induced to bring down the last year that army 
of barliarous highlanders, upon pretence (»f mu- 
tinous and seditious field-conventicles ; whereas 
such meetings as had been, were modest and 
quiet ; and quartered them in those countries 
where there never bad been any at all. Se- 
veral other misdemeanors are said to be men- 
tioned, and amongst others tbot of Michell, who 
liad been put to death atler having had a pro- 
mise of h'te and limb, by false oaths made by 
Latherdale and some others of the privy coun- 
cil. The conclusion was, the kiiicf commanded 
the duke, that these articles should not be made 
|fublic. In which he excused himself, foras- 
much as having done nothing in the dark, 
several copies had been taken, which were 
not in his power. Some say, we shall this day 
see them in print, with the declaration of the 
<:oiivcnticle-mcn, printed at Glasgow, which 
is very well worth seeing. The forces of 
these conventicle -men, or as they call thcm- 
selvesjthc western army, are variously reported. 
Bofiiesay, they havo 14,000 or 15,000 men ; 
others, that this day was a sennight they had, 
not far from Sterling, between two and three 
thousand horse, well armed and mounted, 
with about the like number of foot ; that a 
brother of the earl of Galloway was coming to 
them, and within three hours march, with 
above four hundred horse and foot, and that 
they had parties oi* good strength in several 
other places. *' 

" A Courierarrivcdthe last night from Scot- 
land, who brings word, that the duke of Mon- 
mouth had attacked the conventicle-men, and 
easily forcing a little barricado thry had made 
to defend a bridge, had utterly defeated them. 
Some letters say, two thousand are killed lipoo 
tiM place ; but ny lord Sunderland tells me 
4liere is only some hundreds slain, many taken, 
#sd ilia whole party dissipated and .destroyed ; 



his majcstie's lawes, and ordained them to be 
putt to his highnes home, all ther movable 
goods and gear to be escheat and inbrought tar 
our soveraigne lord's use for ther contemptioo 

bv which means it is said, that the duke of 
Alonmouth will have made himself as popular 
in England and Scotland as the duke of York. 
Men here will be startled at present, but that 
will not hold. The Scotch lords here have 
been so wise as to leave their countrymen to be 
cut in pieces, but (as some believe) not enough 
to keep themselves so free from corresponding 
with tliem, as not to leave that, which being 
well followed may bring their heads to the 
block." 

** The news concerning the Scots, mentiooed 
in my last, is oon6rmed by several exprenee, 
and all shew their defeat to have been entire, 
the party dissipated, and tlioce who escaped the 
fury of the sword remain exposed to the dis- 
cretion of their conquerors. 1 iind men's judg- 
ments as various, as to the nse which will be 
made of this advantage, as of the dnke of 
Monmouth's action in what is passed. Some 
did tliink that they being a poor people, brought 
into despair by tiie most violent peraecutiOD, 

Eitied by all both in England and Scotland, 
clped by none, without head or conduclff wers 
to be spared ; and that in doing so, he might 
have made himself very popular in both king- 
doms, (which he is thought with reason muoh 
to desire) and best to have provided for the 
king's interest. Others, who look upon it as a 
fine thing to kill a great many men, and believe 
monarchies arc b^ kept up by terror, extol 
the action, and say tliere is no other way of 
suppressing oM rebellions, or preventing- new 
ones, than by force and rigour ; looking upon 
Caligula as a great statesman, and odfrint dwm 
metuant as a good maxim. Some think tint 
the duke of Monnioiitirs first instructions were 
according to the first of these ways, hut that he 
\\as followed by others, which savoured muoh 
of the second ; those that were of tlie first opi« 
niou, do now think the best way were to com- 
pose tiling there, and by shewing indulgcooe 
not only in sparing those that are oboozMMn, 
but in giving them such indulgence in mattcn 
of c<>n!«cience, as may satisfy them, prevent die 
like, and please the iKnly ofthe Enttiish nr'^~~ 
which hath given many tokens of being l 
concerned for tiiem. On the other side, 1 
are not wanting who think the best way to 
bring that stubborn people into /subjection, and 
keep them, as they call it, in peace, free fran 
rebellions, is lo use the utmost rigour upiB 
those that are in their power, and to diseaver 
who did in any measure assist or abet tben ; 
and in order tirereiinto the prisoners ar& used 
most cruelly, and it is said, that at the loask 
forty of the most noted men amongst ^theat 
shall be put into the bouts my lord of Latherdale 
hath brought into fashion, to make them dis- 
cover what correspondence the great bmo 
held with them. 1 know not how & thia may 
coooeni some tbat are, or ktely hare I 



«ei5! 



«TV(J iljsr* - '- "^-^^ wliicU WM prrmuncrd for 
tkoui. L*o1luck, Kuiilht ui Hnmilton, 

JoUo Al.i,.. , , ... iiVaursliuui^li; ilixMn Hamil- 
ton, of Meadowcs ^It'iiii fit ay, son to James 
Omy 4l<iei\ i»f CUry^Uiiin ; iuh\ John HprciiU, 
BfijitUh^cnry it» (iliistr«^v<?, "wiio are c«»utairved 
in tlic- lybt-fl, WW r»i»l t'H^*ii, tl^e said Juhn Grny 
was allijudged ti» bo di'itd, atid Johit Sjjreull bi^- 
^u^ a (iristitif 1', was continued till tlie eexl oi' 
iuoe. 

Dyet coutinu(!(i till the 17tU tDsl. 
17M jUarcA. lOBl. 

The Wlid day rompeii'ed G«irjfe Og:ilhie, 
Albany hrratild ; John Uoodiiib», Robert Lee- 
kie, WiHiiiiii Rcid, John ScoU, and James 
Smith, wiiiit^^^'s, ihHTl in his execution, und 
made fhith uf»on the triilh and teritit* oflhe 
r^.'. iiii.iM oil.. 1, if) !.^riiii.i>,t the rebdl heritors 
ilk ts. 

1 ik instruments ufiOQ 

produelum aud venticauun of the executions, 
and thai the letti?rs %ver exccut aifaiuesl ihu de- 
fenders at the marcat crocc of Edinhurj^h peir, 
iuid «hore of Leith, u|Km thri^Kcurcdavei warn- 
ings and at thcr d%velhng-hotsbeSf and th^ mar- 
cat cros<*s of tiie headburi^hs of the shyie, 

hut it is urobahle enougli they may have the 
fortune that ordinarily nccompaniex thifni that 
prelendiu;;^ Uylni very Bubtilu und keep well with 
both KidcA, eier to do Uwi riiuch or tiio little ; 
aiid that whereas they might have prevented 
fill tntnitlts, if i\wy had codeavourcd it, by 
deiiyiog" all manner of favour to the diseon- 
t<^nted people ; or reformed the state of that 
Itingdom, if they would have taken the cod^ 
duct of tlieni, and very well provided for their 
ovvn intenst by either way, raay have ruiued 
these p«>or people by stirripi; them up, and 
leaving them to ihemsclves ; brought tlie whole 
tiaiioD under the poiver of tbcir enemy^ and 
given such advantages arraitist themielves, as 
may be their ruin, if they are pun»ue<l ; that 
iSf to perish or be saved by the mert-y of him 
they [irtite«» to abhor, Iluke Hamilton com- 
plains he is ruined hy thi.^ business, and that 
not only all the prtivisions of victuals and 
corn and crnuis upon tlie g^round is destroyed, 
hut that there is not a cow, one horse or sheep 
leH ujkon liis whole estate; and hijs own house 
had been plundered, if the duke of Montuoiilh 
hail not sent an o^ieer to pretierve it. But 
Xallierdih; aayt » he cannot U lieve that Hamil- 
ioit*t fHcndai tenants, and servants, would so 
fat forget their depetidenfe, oUliguiiouii and 
MkI oianueTs^ u to deal uncivdly wiih him. 



dlewailric, regal itie and other jurisdictmu whcr « 
they live, upon Jbnrlie dayes by a heraul(t' 
with dis)»fayed coat of urines una by ^und uf ] 
(rmnpet, having :ind aifixjno' at the saids i^. 
BipeiUive places lull doubles of the letters, won 
be word, with lists of the haill assyscrs and 
witnt^ses names lo be adduced againest the de«, 
J'enderSf and uiteiog the other solemoiliei» re<^. 
quisit. 

Mr. David Thorit^ fo? Gavin Hamilton, of 
Hill, ane of the defenders mentioned in the! 
criminall letters raised a^'t the rebell heritor^.] 
in Lanerkshyre, alleadifcs, that he cj*nnot b^ 
d eel aired fugitive ujion theexeculion producefL 
because being pn">oner within the Tolbtjiib i 
Edinburgh* and for fourlie dayes betbr hi|| 
ou;^ht to have bein cited at the Tolbuith an ' 
perionallie. 

1. Takes instruments upon the executtOQg 
which bears only dwelling house in generall^ana 
upon the lierauld executer his judjciall rlcclitra-^ 
Liofk, that be did cite him only at hts duellini*^ 
house of Hill, and it is denyed, thai lb f sail 
Gavin or his faiiiilie lived ther the tyme of lb 
citation, but that then and for a verie lonsidf 
rablc tyme befor bis wylf and familie lived i 
8traven, which is offered to be proven. 



Jmh a« arr. 

itiuil a'; - 
the ill 


» those w ho Jnanaye hu»i- 
^^itively of them, but 1 
• rid my jiidernienl, until 
lit cotne% hark, which is 


expert 
** It 
tnuk. 




»u ihd not know what to 
-'t^in.ijit belbre you had 



^ou weroas much 



you understand that which I am ignorant of ; 
and to say the truth, I am so ; a ^reat part of 
our mO(iem prudence heini; to suppress in- 
formations of the truth, which I take to be as 
f:reat a point of subtility as that of one of our 
friends^ who €0i3cealed'a ujisfortune befallen 
him in the first acquaintance be had with a 
woman, until he was Uke to fnll into pieces. 
Some thiuk the great lords will be found to 
have incited the poor people, aad then endea- 
voured to value themselvi^s at coart upon the 
power they had of appeasing them ; and if 
that prove true, they may have the fortune 
that ordinarily accompanies those that do too 
much or too Tittle, and ray lord Laiherdale*s 
boots will be o powerful means of di covering 
whether this be so or no.'* 

** The duke of Monmouth, before he canoe 
from Scotland, had taken care that the Scotch 
prisoners should be used with more humanity 
than they found amongvt their (^^untrymeo, 
and »inc4^, hi^ arriv al here, orders are sent to 
cnlat^e the indulj^cnce granU^d unto the non- 
conformists in their tneeiinjLf<j. The result of 
(hat business, as far as I understand it, is, a 
great many fools have hern killed ; tlieir blood 
uef upon Lathcrdafc ; their folly and the 
cruelty shewed iitito thein hath guineda preat 
dedl of rompasMon for those that remain of 
their party, which prol>ably will persuade those 
in auluoriiy here to proceed more gently | and 
that which is rea!.onable in iuelf, will be ren- 
derfd alisolutely noceasary, if the parlianietit 
be tiufieied tu Hit ; for unless they prot e to bf 
of a temper very ditfereot from what is ejc- 
pccteil, they will suffer uotbing tike unto d»ai 
which hath beya,'' 



967] 53 CHARLES II. Procudingi agmmH th Lgnerkikire Men, [fGB 

Tf>cai* beiD^ warrandit by the lords of his 
majestie's pnvie counciil or thcsaorie to per* 
■ewe tlie iMmnaUs, he is not obleiilffed to cud« 
deaceofl upon ane informer, and mod that he 

* Mr. Hume, in different parts of bis Coin- 
mentariss, treats copiously of the powers and 
duties of the king's adfocate. The l61lowip§^ 
pa8sa|re will furnish some insight into tbe His- 
tory of the proceedin<^8 of that officer as publie 
accuser. 

*' Let us now attend to the circumstances of 
a prosecution at instance of the lord AdTOcate, 
the public accuser, who insists in the name of 
the king, and for his majesty'a interest w the 
execution of his laws, and in the tranoiiiUitT 
and wiiUare of his people. This office, tLougtt 
it probably existed at an earlier period, io not 
however, inuch taken notice of before the be- 
ginning of the laih century ; and the com« 
mou account is, that it was first raised to its 
present high privilege with respect to the pro- 
secution of crimes, by the stat. 1587, c. 77| 
which dechurcs ** Tiiat the thesaurer and ad- 
vocate iMirsew slaughters and utheris crimesi 
althaucbt the parties be silent, or wald uther- 
waycs privily agree." But, that this is dqI 

J|uite an accurate stale of the case, may be ia- 
erred from a former statute, 1579, c. 78» 
which fixes the penalties of calumnious |ife- 
seeutioo, and provides particularly ibr the OMS 
of process at instance of the lord Adrocale 
only. <* And gif the king^ majestie's advoeit 
be onlie pursewer, (says the act) his inforaiv 
to psythe paine tbrssaki." Andinileed it is 
obvious with respect to crimes of « publie 
nature, such as treason, sedition, biaaphemy, 
and many others, for which no private indi- 
vidual ever had right to prosecute, that there 
must always have been some reguhur coarse 
and method of complaint, wherein Uie offenden 
in that sort might be brought to justice. Bui 
farther, with respect even lo crimes injarioua le 
individnab, if they were ako of an intereeti^ 
nature to the public, his majesty, in our prae- 
tioe and constitution, seems always to have 
been esteemed a competent accuser. The 
statute 1436, c. 140, has these words for thK 
*^ Trespaasours may be accused at the king^ 
instance allenarly ;' imd it ordains (paneralhr, 
** That aU maires and sejjeandes arreut at ae 
schiriffis' bidding, albeit that na partie ibl- 
k>wer be, all trespassoures, and that the laid 
scfairefl'e follow the said trespassonres in the 
king's name, gif na partie f<4(ower appeeris.'* 
And again, a still more ancient statuu^ 14M» 
c. 20, etttitlcd,Of Murebuming,has this ffT|n«Bi 
provision, after fixing the penalty of the tra^ 
pass. '« And gif the lord of the Und iwae 
notsik pain, nor punisbis notsik tr esn es so n w i, 
as is bcnir said, the instice-clerk, be the i»- 
ditement, saQ gar sik trespassoures he one* 
rected befoir the justice, and punished as mui 
is." in these words, we have a hint ef the 
course in which this sort of business was i 
pmpaied, and wiiioh aoesidmg to tlie v 
■eneiofoarsliMciofthe tiftecnlfaianl 



His Majettie't Advocat replyes. That 1. he 
oppons the execution, nor was the kin<; to take 
notice of his being prisoner for a cry me, it be- 
ing sufficient to the king to consider his dwell- 
in<^ house. 2. This reaves in a defence, be- 
cause it is ane exception upou the uulitie of 
tlie execution, and consequently cannot be 
pro|)oned for ane absent. 3. In fortification 
of the cxeculioi), offers to prove his familie 
lived at Hill a quarter of ane year befor. 

The Lords finds that this defence for Gavin 
Hamilton, of Hill, resolreing in ane nuUtie of 
the execution, and not being ane essonie or ex- 
cuse, cannot be receaved unlesse the partie 
wcr present. 

Intran* 

Hohert Trame^ in Lanerk 

John Scolt, elder, in Keumuir 

John CorsCy in CUdsmilne 

James Thompson, ponioner, of Gamqnen 

Akrandcr Wur draper y in Shctletoun, portioner 

of ^iidlequarter 
David Lindcsay, portinnrr of Jacktoun 
John Nhnmi, in the Forth 
Geonjc Muirhcad, of Steinstoun 
Archibald Cieiland^ of Knowenoblehill 
James Hamilton, of Halsyd 
Jahici liumilton^ of HiovXioAX 
J oh A llohnes, of Newtoun 
Jlotcrt RussiHy portioner of W indie-edge 
Hcnrif Bnsicell, portioner of Dunsystoun 
John [T^ar//ro/;er, portioner of Denishill 
James Meik, portioner of Fortisset 
Archibald Frcntise, in Staioe 
James Muirhead, of Breidisholme 
Mr. Robert Black, of Silvertounhitl 

Indytcd and accused for the crymes of trea- 
son and rebellion at lenth mentioued in ther 
dittay. 

Ptr5faf«r.— Sir George M'Kenzie, of Rose- 
haugh, our soveraigne lord's advocat. 

Fro^rs in defence, — Sir Geo. Lockhnrt, Mr. 
Wm. Fletcher, Mr. William Hamilton^ Mr. 
John Kincaid. 

Sir George JL)ckhart as procourator for 
Breidsholme and the other defemlers craves 
they may be putt to a present tryall, and that 
his "majestie's advocat may condescend upon 
ane informer in regaird that the persuit btnog 
for treason the act of parliament is mqst clear 
and positive, that whoever accuses any person 
as suilty of treason, in cace he succumb in the 
probation he is lyable to the paine of treason, 
and a commisaion from the counciil or thesau- 
rie in gcnerall termes is notsufficient.^ 

His Majesties Adtocat declaircs James So- 
mervaill hade commission from the lords of 
the thesawrie to go unto the countrey, and 
take information againestthe pennall. 

The Lords Justice GeneraH and CommisMSB- 
ers of JiMticiariey find that his miyestifls nd-. 



^ 9n§h% t» inftsttpaHrill soch ttf the ii&nnnns, 
WWMM itMc wiitieifef ooottiaed ta tner ll^tit 
ire ftll preiCDU and oompdring. 

Irit^ fi'rnh Jusitcc Gencf nil, Justice Clt!rk,and 

Co 1 1 ■ rs of J usliciar y, of conienl c^f hU 

1 u ;i ; . ivp. \ ^ n n*\ for ^e ^r e rait rit lier causes 

ftiiii C'JLJ . -,■■'.■ 1 iV ■• ^ * ,'.ik1 

he t!iir j 'S 

Vl the sntus jtir»eii i r ^nii, ^«>1iq 

Ccireei amt remnant ptiii > nanied, and 

ifi?5f*T' r-^- f' r - i-^mgor i.tnt;i».H|4 of i\ny n«we 
lei h jii for the eiymes almve spe- 

•^ If |,i :;^ ..iie rxpresse v^urraud from the 

nils in prtsaitiiSy whcrupuD the de- 
iifid tlier pracouj-ators alxivt^-named, ask- 
eti and iouk in^trunieaiiq, and pmtested fur ther 
cauiioners rtJietT^ aod cra?fd ther Utmds of caa- 
tiOTi riii|f!jt be dtly?erctl up, which proteslntion 
aiient the cautioneni reliefr, the saiils lords ad- 
tnitttd, and herhy adtnitta, ond ordaiues ther 
' ' \ cautioners bonds to b<i giveo up. 

Kis MajU^ie^'t Advocat Heclairei he BhaU 
rtnaiat agiineit any of the dettuders aa to 
Um tlMf dyc't 1! deserteil Y ithnuX a apeckU 
Fraud from the privie eouuciJi, condescend- 
ing^ upon ther tiames, surename^, and de<jijriia< 
tioDs, wberupon air Geoj^ Lockbart and Mr. 
VViJIiam Fletcbcr, adrooata, asked aod took 
iastrumeiita, 
^^d'he Lordi contimie the dyetminest James 
^^poatyoe, w right ia Luierk, John Robert^ 
^Ki weaver and portiunert of Hbetleatoutif 
Akxander Murray , ot Westouohead, and James 

of the iixtecDth century, appears to have lieen 
Ihvrn t that alkr iiifonoation had been taken up 
in the several counties, aoder tlie hricTe of 
dittay in the luaaaer fbnnerly detailed^ the 
ju*itice< clerk, at the oommand of the justiciar, 
]«iaii«^ up fn>m those materials, what ^as then 
caUed the l^ortiious Roll, aad Traistis \ that is a 
toU of the names of the delinquents, and a file 
^todiotaMnts agouti them, aeoommiidated 
!ir ww p ce tiye cases. And with the nme 
also, to cirpede the ncecsaary pre* 
the thai of ttiove eiuurg^B^ and to 
Df nis nrflcrs ta tbecrowncrB (for we too had 
Ibia effice imneH/ ^uGfh now lon^ liisused) 
H^iedermrr-*' •■ -- ' ■ -^ ♦liem in ward, 
lurerv frt>ir appeamnce. 

^pemrmii » \»hethcrwith 

l^llie start yrcs, or the trial 

a! crTmf-i , "t illiTt*; *"vt TMin- 



t 



i-i ue, thul lu train- 

► insert the iianrie 

•cate, nor of 
! such eoo' 

■ ' dtfwnio iHt^ 

y.asappeani 

J iiom the *ery 

> MockLiizii^ has 

tit, 21, 
^ othff 



Wilfoii, ta Ridj^'ehpad - '^ ^' ' j IT, who are in* 
d>ted tor the said il :!t the a<x-otKl 

ftiomlay of Jttut ulxi, .ik^i . i uiaiii«s Uie dyel 
a^atniTi^t Jaaoes Lot k hart, in Hamilton, caAtd 
laird L>Qfkhart, till the Kxt duy of ApryH niict« 
and ordaines them to Hntl caution tor thee 
appeirance at these dyetSi under the painei 
contained in the newe acts of parliamcnL 

A DfiSATB, 

Sir George Lockhart^ for the pacmalb, aU 
leod^cs, that they having- Bdduce«l a great 
muny witneases tor proreing of the g'rounda 
of ther ejicul|iat<on, and the dyet being i;on- 
tinuctl m that the paiinalU moat compeir op 
undeiipfne the oertitication of lawe, they ther- 
for crave aooordingfto the opinion of lawyers^ 
and particularli© Matheiis iu his Utte dc 'pro- 
baliouu Innocentifi^, ClivruF, Que^t* 53, and 
others, that the Hiinesses of ther exculpation 
may be examined to lye in * retentis ad futu- 
' ram rei memoriam,* 

Mr. William Flrtcher crafCB the like for 
KnoweohleliJIt and others, as to whotn the 
dyet is deserted upon the gToumJs fcirsaid. 

The Lorda delay the examination of the wit^ 
oesaes ol' the cioulpation till tlie dyet of coo- 
tiuuation come, and ref U!ke to examine witnasaai 
wher llie dyet is ileserltd. 

The said day Jatnea Hemple, maltman, iu 
Hamilton, gave* in presence of the saiiU Lorda 
ane Petition .sig^ned ht' him, Showeing that be 
was deephe sensible of his high mislbrlufie in 

they had hee^ hronght into court, it waa th# 
duty of the lord ndvocale to insist on^n kim. 
port, and bring them to an is^ue ; 
account, even in 1 he oldest books of ;i u , < , 

he is marked \nihepnrtihu$ as counsH ior tlie 
crown (for the Pet^ewar, Advocntui^,) in like 
manner as was practised with res(>ect to the 
counsel for the accused. In effect, tliereforeg 
though not formally stated as snch in the 
charge, the lord advocate was prosecutor for 
hismajeffty's interest, and was master of the 
instanoe, which he mttr^ht deaert, or restriet, of 
bring to;in issue, as he saw cause. And thuS| 

Xn the wholft 1 think it prohable, tFiat the 
rementk>oed act of Jatnea 6| which allows 
the lord advocate to pafMii llMNlgll the party 
injured be silent, is to bt nodersload of thnf 
foroi of pniaecotion only, wherein the imlivt^ 
dual oaast Uavc insUttd - tirunt^y by summootf 
or cr till inal letterst ^ h 'aaio ^ aeon^f 

plainer is engroaacd, — tha acoUMl ¥§ 

a particular day of trial, iiat whether 1 ana 
ri|fht in thts conjeoUire or not, certainly dMt 
statute must have added la Iba wcigbt mA 
consequence of fkm offi a di» who aaw vpvaiM. 
sustained the peiaon of hia m^OBty, tmA wt M m 
ed the law in this interaatiii^ departiaaiitf It 
ia laid aooordin^y , that aoon af tar thii nanod^ 
ns* iM tha tHal of Amot of WoodmUa, Nov. 3, 
t598,iaibefii«ttiiataiioaaf hiibaiag wamktA 
in the raoord undertbe lilk of l«Pif A4toail% 
wlikh ka has t w mm NtalMa.** ! 



»n] 



33 CHARLES 11. Proceedings againtt the Lanerkahire Men, [27? 



having' wandered from the road of his loyaltie , 
and duty towards his soveraigne, in being led - 
on to a rebellion agaiueat the king and his 
authoritie, and for which he confesses he de- 
«erveth the greatest severity the lawes cane 
indict upon such ane delinquent, and as he 
hath a true sense of his cryiue, so he does in- 
genuously declaire howe long he continued in 
it, which was from the sabbath night efter 
Drumcloge untill that rebellious attactque upon 
Glai^owe ; and having that same day returned 
to Hamilton he did present his majestie's pro- 
clamation, requyreing the rcbeJlsto lay down 
tlier armes, and did detaste and abliorrethe 
cryme as much as his misiortune, and us to 
which he pleads his guilt and not his innoceii- 
cie, and throwes himself upon his majestie's 
clemency and mercy; and as to his future 
cariage, dureing that horrid rebellion, he did 
demaine himself peaceablie, and followed his 
ordinary busienes, which he is able to makeap- 
peir by the most famous and loyall persons 
within the toun of 1 lamiltoD, and as to which he 
hath cited \\ itnesses, and he is content, as a far- 
der proof of his sincoritie anil devot resolutions, 
to live loyallie, to take such tests as the lawc 
reqnyrs of good, and faithfull subjccttS ; ther- 
for crarcing, that if the saids lonis examine 
witnesses, they would examine them as to his 
guilt eiler the attactque at Glasgowe. The 
whiik petition is subscrvbed thus: ** James 
SempU." 

The said Jamest SempU beiug entered on pan- 
nail declaires that the Petition above written, 
presented in his name, is subscrybe<1 be him, 
and he acknowledges the lybell, and comes in 
will, and declaires his sorrowe for his cryme, 
and is content to subscry be the declaration and 
to take all the tests requyred of the kind's 
subjects. 

Sic Subscribitury James Sempll. 

The Lords continue the dyet agalncst the 
said James Sempll till to-morrow. 

The said day William VVilkie, commissar of 
Lanerk, and Thomas Stodhart, commissar 
clerk ther, being oftymes called to have en- 
tered and presented David Whitt, smith in 
Lanerk, and David Gibson ther, befor the saids 
lords this day and place, in the hour of cause 
ther, to have underlyen the lawe for ther rysc- 
ing and joyning in amies with the rebei'ls in 
themonethsof May and June 1679, burning 
his majesties laws and acts of parliament at 
the marcat croce of Kutiicrglen, orowning out 
boncfyres, sett on in commemoration ot his 
majesties happie restauration ; resisting, feight- 
ing, and opposeing bis majesties forces at 
Londoun hill, Glasgowe, and Bothwel-bridge, 
and committing the several other acts and deeds 
of hye treason and rebellion, at length men- 
tion^ in the criminall letters rais^ at his 
majesties advocats instance against them, and 
aeverall other persons tbereanent, as they who 
became cautioners and sovertie acted m the 
lipQki ef adjournal, coqjuiictlie and aeYeraUie, 



for entering and presenting the nids David 
Whytt and David Gibson to the effect fomid 
lawfull tyme of day bidden, and thej not en- 
tered nor present, and the saids persone nor yet 
they compcirand ; the lords justice cleik and 
commissioners of justiciary therfor, be the 
mouth of John Mckenzie, macer of court, de- 
cerned and adjudged the saids William Wilkie 
and Thomas Stodhart, cautioners forsaid, to 
be in ane imlawe and amerciament of fyve 
hundreth racrks for not presenting ilk ane of 
the saids David Whitt and David Gibson, and 
also decerned and ordained the saids persons to 
be outlawes and fugitives frae his Majesties 
lawes, and to be putito the home, and alt ther 
moveable goods and gear to be escheat and 
in brouq;1it, to our sovereign lords nse, for 
ther comtemutioTi and disobedience, which was 
pronounced lor doom. 

Uamilton and Thomson delayed. 

The IiOnl.4 Justice Clerk ami Cororoissionen 
of Justiciary for several causes moving them, 
delay the try all of James Uamilton, of Pryor- 
hill, and Johu Thomson, carficntarin Ijauerk, 
who are indy ted for being accessorie to tkc kte 
rebellion. 

The said day anent ane Petition presented to 
thcs;uil lords in name and behalf of Alexander 
Hroivn, in Lanerk, makcaud mentioiie, that 
wher the supplicant being chaleuged for bein^ 
at Bothwel-oridge, and cited to compeir befor 
the snidslonlsin ane court holden at Glasgowe, 
in October, 1679, he did compcir personallie, 
and entered himself ou pannall, and declaired 
he was readie and willin*; to abyd ane legall 
tryall, at which tyme the saids lords in re- 
spect of his majesties indemnitie, and of ane 
declaration under the lord Carawatha hand, 
bearing the supplicant to hare taken the bond, 
duscrt^ the dyct siinpliciter agaiuest the sun- 
plicant, as the act of the said court, under too 
hand of the clerk therof. given in with tba 
petition, bears ; notwithstanding wherof, the 
supplicant in a short tyme therafter was ap- 
prehendil be Mr. Wiliiam Ferguson AiUeadgiif 
him to be ane heritor) imprisoned, and Ma 
goods scazed upon, and disposed of at pleasure; 
whcruj>on the supi>licant having made applica- 
tion to the counciil, the lords of councill did 
recomcnd to the carle of (jlencaime or lord 
liosse, or any one of them, to make tryall ef 
the supplicants condition, and if he was ant 
heritor ; and the lord Ho^so having accordingHa 
made tryall, the lords of councill upon his re- 
port did grant ordor and warrand to the magis- 
trates ot Lanerk to sett the supplicant at 
libertie, as the act of councill made therancnt 
produced with this petition testifies, yet never- 
thelcsse upon some misinformation or ratlMr 
mistake, he is yet fardor tn)ubled and con?eiiied 
befor the saids"^ lonls upon ane citation at hk 
dwelling-house, the supplicant himself bcHtf 
absent and abroad, and knoweing nothing «| 
the affair, conceaving himself in securitie — 
the forsaid act of councill, wliich 
upon the lord Rosse his report, 



fur ibe saids lonls would be |»leaseil \m talce 
tlie premises lo cousidenLtiou, and Ijkways 
c<)nKidt;r the c«»ndiii9U ot' the !JU^i|ilic&iit, his 
I W^ff and numerous fumilie, who is iiowe tra- 
^rgtlin^ tibratid to miike up that losse he liaa 
Hhaineij atreadie, and to sutislic his creditorfi, 
^^Ibriii he ta «iii much coi^ai^ed, and that he 
' can Dot but he uttcrhe ruiued if the dyet he not 
^d^erted, or the su{>{>licuiit absrtlfed, ii$ id jus- 
■I^Jie ou^hc lo he. 

^fplie Li >rd!> Justice Clerk And Commissiooers 
^Rusticjury !i ' ' "- peliliun with 

the act of c«i' nrnall abcve 

ineuiionod, tSit > Mit-i<«»r.n cMu^mLid' his ma- 
je^tiei ndvocat excuse the petitioner's absence, 
«nd de5ert!itbe dyet siitipiiciter, and dl^ichaigcs 
all newe leU^fJi, except be a war rand in j/rc- 
fittt 



lotmn' 



if- 
^ohn Witliamwn^ sod l<i Mongo WilUamson, 
Itor of tlic htnds nf HoU. 
^ohn Wiihmn*fm^ son to Robert Wilhumsont 
ed lord Hhortcteugh, 
^ohn Spreutt^ son to Mr. John Spreiillj 
wriltcr tu Gfasgowe. 

"Utiiam Tutdatf, son to VVilliniD Twedale» 
Balyie of l*«nerk, 

^avid R'jbtrtnon ther^ called Possie by iiick^ 
pe. 

%vid lF<c*>, son lo Weir tlicr. 

"iaracf H''fl/frcr youn^r of Ualk*.-tburue« 

ndytvd nod accui^ed for the cr\*me« of trca- 
I and relH-Hion, at kng^th meotmned in ther 
ay ut in die pi-ecedeote. 

?ertactr.< — Our sovereisfD lord's adroeat. 

Mr. Cofin M* K'f nric, advocat, as procouralor 
for John VViUiAmftun son toMungo Wdliiim!»on, 
heritor of the bndf uf Holl^ aileadc:^, thut he 
caiuioi jLjoe lo the kno^Oetli^e of uue inquest, 
heinq^ hut only the eldest «on of anc herilor^ 
VfUo hh'i Liken the benefit of Uis inajtisties gra- 
cious act of ludemnttie^ and hh father is alive; 
and r«'|icifn the «aiue defence for John William- 
•on^ son to Robert ^Villianison^ iiiShortcteir^h, 
and for instructing^ of his defence^ product d 
ceriitk-atfi under llie hand of the carle of Curn- 
ivalli, who v%n.s eurnniiK*»ionat by the lord« of 
hi^ ; ■ ' • .fill, to take the bund ap- 

|w) - iudemnilie, from such 

JK' . — itc sbyrc of Lnnerk» and 

Wi 1 1 in the late ttl»e[lion» the nhilk 

w^ii ^ of the dnti- the 15th of Smi. 

leuiber 107^. Mr. Colin f\|*Kenzte rffpeits lite 
•ame defence for J ai ties >Vulk*i. v^*ii»U'^^t, 'if 
Ualketburne^ and produced 
tif»un« undi'r the hand of Mr, 
olerk to \m m*je«tie» pnvie couiriU, ! 
tH^ht of I'Vbruarv laiit^ b^^ariutf thai !i 
tak* [ John fliirp^'t, n| t u;ij 

bu^ K of Lanerk, upon the 

ichvnin or Mt 'tiubcr lant, 

|r Jvhn Hifcnid, ndvncat, rcpcit»» the same 
acefi»f J"' '.nd proi|uce» 

'act of COL, . .!i of hK^ptetu- 

fOL. XI. 



I, tf. !©8L 

her, 1679, bearinc' *li +♦ i'^ lii.l*! tmnTnl ^tl.tr./LT, 
ed and in acted 1 

not take up arrrt' _ , ..s 

authoii^'e, cotdbrnjeioiue mdeninitie, and that J 
he was therupon »ett at Uberfy by ordor of the 
privie cQuucilL 

Mr, Jofin Menziei^ ad vocal, repctts the sam#l 
defence lor Duvid Huberlsun, Wiltratn Twed- 
dale, and David \Veirf panuall^, and produced 
ane testiticat, under the hand of AVilliani 
VV i Ik ie, commissar of Lunerk, and ane of the 
sheiifTdLpuU tlierof, cert dicing and declairin$f 
that the said Jiavid HoUnliioti did, upon tlitt 
IHlli ilay of February \i^i^ conijuir belivrc hiui 
anil declair^ ihut he was »orie that lie wai^ iu- 
(fadgr*d in ihe late rebfdlion, and htindxllo 
craved the brnefitt of his majesties gracious in- 
demnities and did si^ie the bond never to lilY 
armes a},faincst hi$ mujcfitie or his authcitlie in 
t^rne coming, which cerlificat is dated the »ai(l 
IBth day of IVbrnary, 1681. And aho pro- ' 
duced another certificate under the hand of tha 
8*d \ViHii»m Wilkie, dattd the Uih of March 
last, hearing that uf>onthe last day of I'Vbruary 
last bypast, the suid Willi:im Twedale, pannnll, 
cotopeircd personallie before him and declaired 
that he wossoriethnt he wa5cn4ifad|^cd in the late 
rebellion, and liumblie crured tite benetit of hia 
majesties gracioutitademnitie^ and did sigue the 
bond ne » er to ryse in armes ai^aitiest his majestie 
or bis authoritie in lytne comein^. And alio 
produced another teslilicat^ under the hantl of ' 
sir John Harper, of CandmsncthaB, kuijfht, 
sliirrilf depni of Lanerk, certitiein^ and der.l air- 
ing that David Weir* son to the decrast Hugh 
IVeir, mailman, burjjfes of Lanerk, diil upon 
the 28th day of' February last bypast, compeir 
befor U'dliam VVilkie, commissar of Lanerk, 
commissionat be him lotbc effect underwlten* 
and declaired that he \^m sorie that he wasi en« 
f/adged intlie lute retK^lion, ai|d humblie craved 
the benefit of his majesties g^raliouj^ indemnitie, 
and difl signe the bond never lo lift aruiea 
a^afnest his mnjf-stie or his authorilie in tyme 
coming*, as the samcn certificat of the date tl>c 
nynth of Match la^l bypast id itself at lengtli 
bears, 

HisMajestie's Adrocat of consent, flndi the 
defence nlcvanf, the defenders rennncinjjf ther 
heritage in lb fours of his majf-stte, as well 
vvhfrofihey hade actuatl ri^ht, the tyine of 
the rebellion or the right of apparancie' 

Mr. CoUti M^kftiMc Tcplyes, that the defence 

Atanda rclcvaul, in respect of his majestic's in- 

jitie, which prmyd;* that nil persons, ei* 

licse that are nctuni heritor*, should be 

rulicd and rtmittcd, and for the furdcr 

:je of \m leid'^cs* speciullte providn ami 

(» 's that his jud^'cs Jthould not streaicli 

» o their prejudice ; but ong-ht and 

J nrrt til*' sanic in ther favouns ia 

the mou ' way, so that from the 

rerie propi i . word heritor, ane heritor 

is undtr3too<l Lo U* he w ho is mfef^ and taiaedp 

wbfcb i» not tbo cace of the paatialU 

T 



J753 



33 CHARLES II. Prcceeiingn against the Lanerkskire Men, [9t§ 



His Majestie's Ailvocat duplys, that the tie- 
9igneofthet»roclauiatione, and the words of' it 
d<»e$ exprcsslie inrUid appeirand aires, whose 
rija^lit when the cace of their succession does 
exif^t, makes thein * iinainetcandempersouam' 
wiih the det'u- rt and ipsojuie continues the 
fatliers possession in them, and since the^ are 
to renunce all ri^ifht they have to heritage, 
thev must renunce ther rig^ht of appeirance, 
and as to the effect of'tiie appeirance that most 
be debateil svo loco, hut is not competent in this 
place. The Lords Justice Clerk and Commis- 
sioners of justiciary fiind, that the pannalls 
ought only to reiiiuicr the henetitt of all lands 
and heritages beliilicn in them befor his ma- 
jesties act of grace, and not what did befall to 
them be deccasie of any of ther predicessors 
efier the said act. 



18M March, 1681. 



Intrau* 



Jamr$ Muirhead, smith in Lanerk. 
James SempUy maltmanin Hamilton. 
John Scot, elder [tortioner of Udin^toun. 
Wiilium WaHacCy portioner of Mainhill. 
John Afarshullj fewer in Hamiltoun. 
James Young, of Peilhill, prisoner. 

Indyted and accused for the crymcsof bye 
treason and reliellion mentioned in ther dittay, 
which is booked the 14th instant 

Peneutr. — Sir George M^Kenzie, of Rose- 
haugb, o0r Soveraiguc Lord's Advocat. 

Procurators in Defence, — Sir John Lauder, 
Blr. Colin Mckenzie, Mr. John Menzies, &c. . 

The said Advocats, as procurators for the 
said James Young, of Peilhill, declaired, That 
he being apprc;hcndit and comnutte<l to pri- 
sone within the Tolbuith of Glasgo\Te, and 
therefter transported prisoner to tbe Tolbuith 
of theC^anuogat, wher he has lyen for a long 
tyme, though he be altogithcr innocent of tbe 
crymes above spccifit laid to his chairge, he 
offered himself now readie ami willing to abyd 
ane legall tryall therfor, and dissented frae all 
faider continuatiou of the dyet. 

The Ixu-ds Juslicx* Clerk and Couuuissioners 
of Justiciary, ofcoiist-nt of his ma jesties advocat, 
and for se>eraU other causiitntoviug them de- 
serted, and be thir presents deserts the dyet 
simplicitfT, and discharges the laiseing or out- 
giving ol' any newe IcitiTS againest the defen- 
der for the crymes above spccifit in tyme 
coining, except be ane expresse warrand in 
lireseiitia, and ordaines the said James Young, 
of 1*1 ill) ill, pannall, to he sell at liberty with- 
<Mit ciiitiun. WhfTupon his procourators above 
uameo. nske<l and t^Htk instruments. 

The Lords deficits tbe dvet as to John 
W'ilkie, elder, portioner of Cdingstoun, who 
coiiipeiaMl and entcre<l the pannall upon some 
mis'.ake and misinfsrmation to have undcrlyen 
Ihe laue for the crymes of treason and rebel- 
hon, nientioncd in the dittav raised a^nest 
111* jrtbell heritoi-ftin Lanerks&ire, faia majestie^B 



adrocat having past from him jadidallie, he 
not being in the letters nor in the executions. ' 

John Marshall, writter, in Hamiltoao, paii« 
nail, judiciallie consents, that ail of the wit^. 
nesses to be adduced againest anjy or all of the 
pauiialls be adduced againest him, as well 19 
these contained in his list. 

Sic Subscribitur Jo. Mbrsbau. 

TheLonIs Justice Clerk and CommisskmnB 
of Justiciary flind the dittav relevant, and re- 
mitted the same to the knowledge of ane anyte, 
as to the saids James Muirhead, James Sem* 
p^e, John Ificott, William Wallace, John Mank 
all, no we on pannall ; as also as to tbe remnaot 
persons mentioned in thedittay, whose naitiei 
wer contained in a roll given in to the aasyMi 
and are mentioned in ther verdict. 

ASSISA. 

Alexander Hlair, merchant. 
Lewes Jtdmstoun, merchant. 
Thomas Noble, merchant. 
Captain Johu Binning, vintner- 
Alexander )k)thwell, of Glencone«t 
James Balyie, merchant. 
Mr. Andrew Temple, of Ravelrige. 
James Baird, of 8aughtounhall. 
Gavin Weir, of Dairy milne. 
Robert Sandielands, merchant* 
John Lindesay, taylor. 
' Robert Eliot, wright. 
Alexander Henrvson, 6f N'ewhaven. 
James Gray, of Warriestoun. 
John Dundas, of Ilarviestoun. 

The Assysc lawfullie swome, no objectioik ia 
the coutrair, 

His Mujtsties Advocat takes instramenll 
upon swearing of the assy se, and for probation 
adduced the witnesses efter deponing, and 
againest tbe said James Semple adduced hil 
judiciall confession emitted yesterday in pre- 
sence of the lords, which he this day reitefall 
and renews in presence of the assyse, ail 
comes in his majesties will and begs mercy. 

James Hamilton, in Hamilton, called NepMb' 
aged tburtie-four years, unmaried, purged ttii 
swome, depons he sawe John Wilson, portioMf 
of Staniefiatli, wreitter in Lanerk, with tbt 
rebelU several 1 tyuies in armes, ryding «• 
horseback, with a sword and case of pijrtolli,«Ml 
that he was calle<l a commander, and t\m ba 
sawe betwixt tbe first of June and thedeftteff 
the rebells at Both wel- bridge ; depons he tMia 
Mr. Thomas Pillans, in Lanerk, in annoi wMl' 
a tronp of the rebells that day the infiil waaal 
Glasgow; 
the 
hart, 

a small sword about him, goeing up and ( 

the toun with others of the rebeus dnraii^ tfal 
tyme forsaid ; and the same tyme and plaoaht. 
sawe Gavin Hamilton, of Hill, in ooin|ian 
with the rebells, in armes; depont he IBM 
Jaiues Weir, of Jobiisbill, coma abn^^at wU(« 




for TVittsnn* 



tiA of Ihe refa^lli:, i«>lio brought n cannon from 

s, atul sawe him with llmt puriie of the 

elTit that look dauti the n Ih^IIs UenKh at ll.i- 

[iUo»t and (Ji^pons the aaitlJamei Weir Jis- 

ary;ej a yi^uAi uiiou the deponent j dcpon««ho 

ve John Hnddowc, in Douglas, tieveniU 

^mes, in anne^, urih ihereU'lls the tyme far- 

^d» and iliat ho Wris culti^d a cnptniti ; .ilepmw 

aavre Jaiives VVhvtt, in lloiiju^hLSj twentie 

net in armes^ rvding' with thu reht^tls thai 

Ime ; deporis he sawe Williftiu Fatconui^ in 

lamtlton, walkiti^j several 1 t^nie^ iti nvnk and 

J w ilh the rthells, and he hade a hljuk i'ringed 

fit ; dpjious he bawe Ilobert Fteyiuing', of 

IjiJthrnfin, many tyroes with the rehells on 

brsetiack, with butster, pistolh, aud other 

nes, and savre J oh a Cochran, of Craigp, 

ikways In com[»any with the rebelLs in armes, 

1 John CardufTf tn 8traven, and John Whit- 

ve, of Bothwi'bheills, in arroea, with the 

J screrall tvmes, and ali this he aawe be- 

ixt the ty me ror«aid, aod knawes the persona 

bi hiOM deponed agatnesl parti cnlarhe, and thisi 

^1 tbe trutn as he shall anitvrr to God. 

K, Sic Suhtcribitur, J a. Hamilton. 

^^iFi/^iaiTi Hamilion, Yintner« in ITatntltount 
^Ved fourtie-four years, m»ned, purged and 
•worne, depons he knowe« that John WtUon, 
Tounger, of Sloniepnth, wreitter in t^nerk, was 
to company tn annes with the rchells, antl that 
he was a captain, and savre him severalt tymes j 
aod lawe Mr. Tliofna* Pilhins, in aiineR, ne- 
wenM tyracii witJi the r^trllii ; uud .sav%e Uoheit 
liookhart, of Birkhill, in arniti^tiit)) tJie retiells 
ia Haimltoun, ond Kavver;avin !Inniihon, of 
HiU, in amies with the ri-belht and that he %rfls 
at thb deponent'ii house isevenill lymcn witfj 
others of tho rchelU; depons he sawe Jame.^ 
Weir, of JohiifthitU in nrmes with the rebcUM 
rtyiny tynie^, and that he hrovij^hi the caniian 
from the marques of Dou'^Ias Loa^t*, and that 
lie took down the rehelb hrads at HainiUon, 
^■id took ane liorsc from ih Ts Htable 

^mt sahtMuh ni|fht tb&t thf \ wer as- 

^ntlted at llruincloge, and Hilu f ^»hn 

!Iaddow,in Onuf^ULS^ marme*^, v^ :iii^ 

at liamiltoD, and t« -• • - Mean » i,^j,..,mi nnd 
oiMBmaudii a ix>p iiorw he«awe lii>- 

brri Fleytuin^i ol . ^ f^u<l Inhr, ( uru- 

duC in Htmirefi, in ul ^^' 

v«rall tymea ; def)on« I on-* 

f<»rBaifl8Y atid the tyme that he «aw tlirnt wis 
ikireing^ the M-b^Hion, Wtwixt the fimt aniT 
^* * \ M<;otid of June ; and thi* in the truth 
b««KaU answer in God, nnd the plare uher 
^Mwt tbem vtaa Hatudinun. 
Sic Subtirtlntur^ \V n UAin H AMitTow, 

John WiUon^ wreitter, In IfanuUoun, ageil 
tDtie nyn yean^ itiarit!d« piirinHi and stvornc, 
be Mwe Jiditi WiUuti, wmtter, in 
, Wr. Thmn«« PJlff^fiH, Hidi<«rt Ij^ic'khan 
BirkI ' ^ II, cit ilill, Jamrt 

]i*<|shu .all innmiciwith 

lb* Pdbtti* at UauulitJii au'l ^' ' in Muir, 
•a4 iunm M'Uut»aitie wn*^ u Muck 



first 

I 

air«^i 



h4^1tfl 
!infi 



John Haddowe, in Doui^las, ryd like a eaptatu^ 
liprin the ht«iii «d a irotip «f ifie rehetU »*»ferall 
tyme^, and aawe JuiiieK Witytt in Dotis^laii and 
VVilliutti Falconnr in Uatnriton in armr-i with 
the rct>elLs and isawc Arthur TnrbH exerrised 
hy the relK-lla and in ther company, and wine 
Itohert Fleyinini; of AiK^hintine several! tyn»e* 
in armes wnh the rebclls, finii de|K»ns he sawe 
the person ti forsuid^ with the tehells in unnefs nt 
Haiiiittnn and Haniihou Mihr^ bctwict the first 
and t IV en lie f^eeond uf Jnne 1679, and Jan 
M'Quharrie wn*i in armes with the rehells, i 
til is is the truth as he shall answer to God. 
Sic Subscnbttur^ Jo, WilsuHE.] 

Thomas Strintoun^ in IhimlUoun, ai» 
tu#*ntie four years, uimiarried, pureed and 
fiviorne, deponnhe sawe Janies Weir <dJ«dui9- 
hiM, and John 11 ad do we in Douglas in armea 
with the rebclls .it HamilUuiu inuny tvmc^. and 
sawe William rafcouar and Aritiur Farbet iu 
armes witlj the robells, depons he sawe Hiomas \ 
Patton at the obJ Kiik of Caaibusnclban in 
ariues with the rehehi« nt Homiltoun. l>epimB 
he sawe John VVhillawe in BothweUfiiells and 
John Fatci-son, ther in arines with the reb^^H^ 
at HamdtQun muir. Depons* he sawe these pc 
sons in annes with the rebells^ betwixt 
fif^t and I wen tie second day h uf June ]<»T9, !ii _ 
kncwe ihcm parli<'til.)Hfe*and tins is the tiutb 
as be sihali answer to God. 

Sic SuhcribitHr^ Tno. STivtivsa^^. J 

Jatfteg IWt in FlamlUouo, aged fourtic fi^ 
yeari, mai'iett, pureed and gwoioe, dcnoris 
sav^e Jnme.s Laurie wreitter in Lanetlf \u tfc 
deponents house, in Hiimiltouu in cornp:iiij 
With two of (he rebeUsdiinkinij I he SalltJiinyt 
ni^bt be for the defate at Bolhwelbiid^i^e, depo 
he suwe Thomas Lauehlan, merchant in L 
nerk ae?eia)I tytnes iu urines with the rebellsil 
IlamiltouD, aud saw€ xllckunder A nde r^oi^ 
shoemaker in Lanerk, weveiall ti(ue* iu armf ^ 
with the rebells at flamihnun ar»d sawe Huj^li" 
Somerraill of Urrats, jmd J*hn Hutcheson of 
Harelawe, severall i) uie-s in arnios witli ll»it 
rebellh at Hamiltoun and saw.ltdtu llsidduut, 
and James \Vhytt in Douglas LiKkhuit ttC 
HirLhill Kobert FIcymintr <if Auehinfuie uud 
John (J<KThr»n of l!raiife, lykwiiys in armes 
>^ ith the re {>elk^ depons lie NMwe «tl the forvuid 
persons ui IJamiUoun tietwixt the first of June 
that Urnmeto^X' tvuB ioUj^ht and the tweniie 
seconil ot' June, that the rehells wer detkte at 
Ilothwdbrid$(e and knev«e ikii ni jMriteuhube, 
hutknoweanot if Juine* L»wrie hade aimes, 
and thia is the truth as he ^hall nntswer to God. 
Sir Sttbucriiutur Jai^ics Tod. 

Jo fin Leckic^ raeasenjj'^^r in Tlamiltoun, ag^e 
fourtie three yeai'R luaricd, purj^ed and sviortic 
dt^pouK he vawe Thoiuan LuiiehlaUp Alfi; 
under Andertion, shc»einaker in Lanerk, 
arine<4 %vith tli# it*tie!ls NrreniH tymi^ 
llamiltouUf ami that Aleimtider Atideiitoti w« 
;i lievtenant« nnd «iawt Jmt <•( Whi^tt r^ditif; i 
Jidin llHihloweii troop, aud hiwc John Hu^ilj < 
WipdbiU tt tinBUlw Mil liBnilipii'miiir t^ 




S79] 33 CHARLES 11. Proceedings agaimt the LanerkBhire Men, \2SD 

gWSf shoemaker tber, all io arma with the 
rebells, at Lanerk, the tyme of the late rebel- 
lioD. 

Sic Suhscribilur, M. CuFFORD. 

James Crawfurdy balyie of Lanerk, ageA 
fyi'tie-fyve years, pure^ed and svrorne, depone 
that tlie day that Bothwel -bridge was fought, 
he sano David Whvt, smith in Laiierk, in 
arnies with the rebells, in Lanerk, eftcr the 
delate; depons lie sawe Thomas Lauchlan, 
and William Ferguson, in Lianerk, sereraU 
tynies in amis with tiie rebells, betwixt the 
tirst and twentie- second dayes of June, and 
sawe John SScnipIe, mason, and William Ped- 
zean, mason, in Lanerk, in armes' with the 
rel>ells, several! tynics the place and tvme for- 
said ; and this is the truth as he shall answ^ 
to God. 

Sic Suhscribitur^ J. Crawfurd. 

Jame$ Uautie, in Lianerk, aged fyftie-eex 
years, marieil, purged and sworne, depone be 
sawe Gideon Weir, gfune smith, in Laneik, 
with horse, armes and ane carrabin, in company 
with the rebells ; depons he sawe itobert Ha^i* 
dowe, youngest son to Robert Haddowe, ahoe- 
maker, with a sword comein^ back to lianerk 
on the sabbath day the rebelh wer defate at 
Hothwel-hridge ; and this is the truth as he shall 
unswcr to God. 

Sic Sabseribitur^ Ja. Haistib. 

William Ihedale, late balyie of Leoeik, 
auedfourtie eight years, maried, depons be 
sawe John Jade, in Nemphler, in company 
with some of the rebells in Lanerk, in armes 
the tyme of the rebellion 1679. 

Sic Subscribitur, Wiluam Twedale* 

John Allan, in Hamilton, aged threttie eigbt 

years, maried, purged and sworne, depons he 

Kuwe William Park, fewar of Lairfad, in armes 

with the rebells, within the toun of Hamilton. 

Sic Subscribitur, John Allanb. 

William H9attie, in Lanerk, aged twentie 
four years, maried, purged and sworoe, depom 
he sawe Wiliam Dick, in Lanerk, on hone- 
back, .with a sword about bim, ry ding, with ifae 
rebells, and sawe David Gibson, in Laneriri 
rydin^ on horseback with the rebells, and 
James Park, weaver, with the rebells iaai 



armes with the rebells and -saw John CarndofT 
in Straven, and Robert Stcill in Staine, in armes 
with the rebells at Hamiltoun and Hamiltoun • 
muir, de{>ons he sawe them l>etwixt the first 
and twentie second dayes of June 1679, and 
knewe them particularlic and this is the truth 
as he shall answer to Go<l. 

Sic Subscribilurf Jo. Leckie. 

Bogcr Cleiland, in Lanerk, aged fourtie years, 
mariecl, pureed and sworne, depons he sawe 
Archibald Symson in Laneik, David Whytt 
smith ther. Win. Ferguson th<*r, Gideon Weir 
thcr, David Gibson ther, Thomas ln<;lis, shoe- 
maker ther, all in armes with the rebrll$,Alex. 
Balyie, in Lanerk with the rebells once but 
not in armes, and sawe Alexander Anderson in 
Lanerk, John Pumphray ther, John Jack, in 
Nein])hler, iu armes with the rebells, and depons 
he sawe one who was called Hugh Somervaill 
of Urrats in annes with the rebells, and sawe 
John Whytt of Neuk in armes with the rebells 
and that he sawe them at Lanerk, Hamiltoun 
and HaniiUouu-inuii- betwixt the iirst and 
twentie second dayes of June 1679, and this 
is the truth ns he shall answer to God, depons 
be cannot wreitt. 

Sic Stibscribitur, R. Maitland. I. P. D. 

Gavin Monty in Lanerk, aged fourlie years, 
unniaricd, purjjwl and swonip, depons he 
sawe ^Viiliaiu l>ick in Lanerk, with the rebells 
in armes in or about Glusji'owe and sawe Ar- 
cl^iSald Symson in Lanoik, and David Whytt 
smith tlicf, Thomas Lnuchlan ther, William 
Ferguson ther, Gideon Weir ther, James Park 
Ihcv, John Sein))le, mason ther, Hugh Ker, 
Btm to Williairt Ker, of Bcdronald, Thomas 
Iiiglis, shnctnaker in Liiiork, Robert Haddowe 
youiigor in Laoerk, John Buckle ther, and 
John Pumplirny all in armes with the rebells 
betwixt the first and twtntio second dayes of 
June 1C)7[>, depons ho sawe Thomas Hinsel- 
wood in Lanerk, and William Pad/eau, niasun 
thrr, Luke GrcinsliielU of Hojjsoastle all in 
amies with the rebells and knewe them par- 
ticularlie, and this is the truth as he shall an- 
swer to God. 

Sic Sitbscribiturf Gavin Moxt. 

Archibald lUmelwoody in Lanerk, ag-ed 
founie eij^ht years, maried, i)urijed and sworne, 
depons he siwe ^Viiliam l>ick rydiiiyf out ol' 
tlw t:i'j:) of I/mork, with amies at that tyme 
tlr.; r. b.lls wtT in arnies iu the West and he 
Ka\«i' ArcliiLald Symson rydini^ with armes at 
I'lat tyme; de;)ons he sawe John Buckle goeini^ 
from tliciiuinOr Lanerk with arnuis the tyme 
fors.Lid. depons he suvvo Johu Hulclieson of 
Harclawe, rylinif wi:Ii annes from the West 
lioiiK^wards the tyme the rebells wer In armes, 
and [his is tlu; truth as he shall answer to God. 

Sic Sub\cyifnlury AacuiUALD Hinselwood. 

Mark Ciiff'ord, in lianerk, aged threttie 
three years, niarietl, purj^ed and sworne, de- 
pons he sawe David Whytt, in amies with the 
rebelLs, in lianerk, and sawe William Ferguson, 
Jjphli 8eraple, mason, in Lanerk, Thoinai In- 



on foot, and sawe Thomas Inglis, id aro 
with the rebells ther, and sawe John BueUc^ 
Thomas Hinselwood, John Jack, in NempUVv 
William Padzean, mason, in Lanerk, all m 
armes with the rebells, within the toim of* 
Lanerk, in June 167£> ; and this is the truth m 
he shall answer to God. . . 

Sic Subicribitur, William IIuTlB. 

Jama Sliman, in Lanerk, aged threttie njB: 
years, maried, purged and s\%ome, depons oe- 
!?awe James fjourie, wreitter in Lanerk, rydi 
throwe the touu of Lanerk iu comany wilfa I 
rebells, and a sword about bim, 
HuD^h K.er, son to William Ker, of 
ryding with the rebells in armes, in the U 
Lanenc, the tyme of the rebdlion ia taltl 



for Treasm, 
T9; rodllmisidetrutb as he sbftU answer 

Sic Suhicribilur, James Si^an. 

Jamct Watmn^ taylor, in Lanerk* ageil 
biinielhree years, maritid, ported and 
worne, depons he sawe David Gtbsoo, in 
Aoerk, in armes Hith the rebella, ryding 
hrowe Lanerk in June 167^, and sawe Ar- 
bibakl Sympion 1j kways in armi«« with ihwi 
he Mid lyoieand place*; ami this is the truth 
i be shall answer to God* 

Sk Subscribiturt James Watsone, 

James Wh^ii^ in Lanerk, aged thrctlie lex 

Peai'jdy married^ sHome, depons he sawe Wil' 

pnm i>ick, in Lanerk, iu armes in his retume 

orn Bothwclhridge the <lay tJie rebells wei- 

iefate thvr ; and thia b the truth as he shall 

usM'er to God. 

Sic Suhicribiturt James Wbytt. 

_v——-ih Coupar^ mcssengfer, iu Kilbryd, 

l sworne, depons he sawe John 

|1 >,,*,.... ,;u, of Rogertouii, rydiug^ with the 

ebells throwe Rilbryd, and a sword about him, 

;f>er the «x»(iHictatl>rumcloge, and sawe John 

A ilson, of Hi^h6ctt in ariiiea with them the 

anietyme and place, and sawe Robert 8tei> 

rin, i%;wer^ in New I and » in armes with the re- 

A\% on Thursday efter Drumckige in June 

1679, aud this is the truth as he shail answer to 

lod. 

Sk Suhtcribiturt Ji:remie Cocpab* 

Wdliam Follock^ id IlamiltOD^ aged tweotie 
^bt ycara, maried, purgwl and swome, de- 
ns, he sawe Jamc!^ M'Qu hairy, of Scorie- 
bolme, in armes with the rebel Is, m Hamiltouo, 
ktidsawe Arthur Tarhtt, in llamiltounf and 
CDavin Weathenipoon, of Qeatberie kaowe, 
ohert Ooodwiue, iu Glas^rowe, a horseman^ 
ill in armes with the rehelts at Haauhon-muir, 
ujd «awe John Grey of llum^avill^ aud John 
""jitlawe of Uothwclsheitbi, \ViHiam Ward- 
• of Wester C'aldcrhead, all iu armes with 
' elU, in June 1679 ; and tin*! is tbelrutli 
be shall answer to Gfxl, and depone he 
«»wefl nothing a^ to John Marshal), in Ua- 
Dilton. 

HkHubtcribUur^ Wilem Polok- 

JLohert Thontpitm^ miliar, in t^^mehago, 
^ed Iwentie \h\it yeam, married, depons he 
awe John Whylt, of Neuk, jo armes with the 
ebetls, betwixt LrsoiahaGTo and Hcunilton* the 
I of ibf r«bpnion» Mwixl the first u\i 
r and twitttie seeumi day iheruf ; »ud this 
I the truth av he %\m\\ aiiHUfr to Go<J, depons 
B cat! not wrvitt 
$ic Sublet iUiur, 

John HViV in ** 



A. D. 1(?$I* 



rs 



fears, marled. 
awe John l*ui 
i liyt, ot Netik, 
urmes ^*'f'' »* 
iblbc 



Ja. Foous. 

'* ^1 twentie four 

<'ruc, th'puns ho 

ijnii t , . ^ij.rvun W<ir, Johit 

Jolm ( ot.'hrnn, of Craig*^^ ol) 

' n belts uiJunr 1079 , and 

i»! shall answer to God. 

J. Wua. 



William Wkarrie^ in Scorrieho!me» aged 
fourtie years, married , purged und sworoe, de- 
pons he sawe John Sleill of Oier water bead, 
coroeing and goelng to the rebelU befor the 
delate at Bothwel bridge* nnd sawe him eiW 
the break at Bothwel-biidge, wher he was 
skulking, and this is the truth as he shall an- 
swer to God : the deponer was purged of par* 
tiall counrrilK 

Sic Suburibitur, Wiixam QuHARlK. 

William Weir, of Clerksloun^ aged threitie- 
sex ye^rs* maried, purged aud sworue, de* 
pons' he sawe John Whytt, of Neuk, Thoraai 
Linn, youna:er, of Bloirachining^ aud Jamei 
Whytt, iu Douglas, all in armes^ with tiii^ re- 
bells, in June 1679 1 and this is the truth as be 
shall answer to God. 

Sic Subicribitur^ WiLU Weir. 

Andrew Robert son , in Belihill, aged fourtie- 
four years, marietl, purged and sworn, depons 
he sawe Luke Greiusheills, of Hog*s-castle, io 
armes, with two tioups of the rebells, at the 
Sbawehead-Muir, on Sunday befor the breali 
ac Bothwel- bridge j and this is the truth as be 
shall answer to God, 

Sic Subscnbitur^ Andrewe Robcbtsoh. 

Johrt Hamilton^ in Lowe, watter^ aged twen- 
' tie* sex years, marled^ purged and sworn, de- 
pones bf sawe Arthur Tarbet iu ILimilton, in 
armes with the rebells, in June 1679 ; and this 
is the truth as he shall answer to God, and de- 
poDS he cannot wreitt. 

Sic Subscribitur, R, MArrLAND, I. P. D, 

Robert Wcir^ iu Hamilloun, aged fourtie 
years, married, purged and sworn, depons 
nihil nwii, 

John Millar f of Milnheugh, aged tbrettre- 
sex years, wtduiufit purged and sworn, dcpooi 
he sawe John Millar, younger, in lAjngCathcr- 
wood, with the bodre*of the rebeiU, and a gone 
on his shoulder, eight dayes efkr the conflict 
at Drumcloge ; deponti he sawe John WiUon, 
of Highflett, ryding throwe the Kirktoun of 
Blaotyre, with a sword aUoiit hiiu, towards 
Huiiultoun-Muir, wher the rebell*i then wer» 
but depons ther was no person in his company ; 
aud thiii i% tlie truth as ne shall answer to God. 
Sic Subscribilur^ Jous Millar. 

John Millar y iu Keomuir, ma tied, purged 
and swonie, depoua he sawe James Corse in 
Udingstoune, rvdiug by the teun of Kenmuir, 
in the road to Gia^i;uwe, ihey day the rt^bella 
entered Glasgowe, and lb at be hade a sword, 
but tJiere was no perjkOn but another man in 
his company; demms that William Riddell, 
fewar^ in Ruthergirn, was in arme* with serin 
or eight others of the rebelli*, and ihat that 
partie offered to search ttie denoupol's house 
for armes, and that the ^atd n ilham Riddell 
being of the deponeut^^i acquauitanre^ he dealt 
with the partie to spsire the de|HJUcnt*s house, 
and depone It WHS betwixt the contlicl at Drum« 
cloge and the delate at Bothwel bridge; and 
ibis is the truth as he shall answer lo God, 
St c Subnet ibitur^ J . M i LLAa. 



nS] 54 CHARLES II. Proceedings agmnH the Lanerkeiire Men, {fH 

with the rd)ellt at Glas^^owe, tnd that he ctme 
Tvith some of the rebells to the depooent't 
father's house to. search for antief $ depoos be 
sawe Isack Blackwell, son to Thomas Blade- 
well, keeper of the calendar ther, m aroies with 
there bells at HaroiJton-Muir ; and this ia tb* 
truth as he shall answer to God. 

Sic Suhicribitury Jorh ]>UE#. 

John ArneUl^ merchant, in GlasgowCi maried. 

Surged and sworne, depons he aawa Isack 
ilackwell son to Thomas Blackwdl, keeper 
of the calendar in Glai^we, in.arme8 with the 
rebells in June 1679, m Hamilton -Mnir; and 
this is the truth as he shall answer to God. 
Sic SubtcribitHr^ Joiw Armeill. 

Jumei Strang, of Corsehill, ag;ed fourtie* 
four years, maried, depons he sawd ThOmu 
Craig, fewer in Jackstoun, upon the fyiV of Jont 
1679, comeing from a partie of the rebells to 
Kilbrydkirk, and sawe him ryd back to the 
partie, deiK>ns he had a sword and a carrabm ; 
and this is the truth as he shall answer to God. 
Sic Subscribitur. Ja. Sraano. 

Andrew Firming^ in Langland home, ^gel 
f\i\ie three years, marled, pni^ged and awomCi 
ifepons he sawe John Millar, youDg«r, in 
Longcatherwood, hi company with the rebelli 
in commissar Fley mings park ; and this is tht 
truth as he shall answer to God. 

Sic SubtcribilHr^ Andrew FtfittoiG. 

William Dune^ in Robiestoun, bemg' swomc, 
depons nihil novit. 

John AndertoUt in Chrystoun, being soleflui- 
lie sworne, depons nihil novit. 



Robert Seott^ in HamiKoun, aged fonrtie 
years, maried, purged and sworne, depons he 
sawe William Park, of Lairiadd, se?erall tymes 
in company with the rebells at the deponent's 
house, hetwixt the first of June and thetwentie 
second day thereof ; depons be sawe Thomas 
Whitlawe with the rebelUi, tyme and place 
forsaid, and sawe Gavin Paterson lykways 
with the rebells tyme forsaid ; and that they 
wer both id armes on the Calsey of Hamil- 
toun, and that the said William Park was in 
armesj and this is the truth as he shall answer 
to God ; depons be cannot wreitt. 

Sic Subicribitur^ R. H^LirrLAND, I. P. D. 

John Marshall^ messenger, aged threttie- 
fy ve years, maried, pnrtjred and sworne, depons 
he sawe Gavin Hamiltoim, of Hill, in Glas- 
gowe, efter the infall ther, in armes, and sawe 
Robert Goodvin, maltman, in Glasgowe, ryd- 
ing in amies with the rebells, carying the 
Paisley collors the tyme forsaid; and sawe 

g' kways James Cuuioghame, merchant, in 
lasgowe, and Wm. Riddell, fewar in Ruther- 
jjlen, John Cochran, in Craige, John Carduif, 
in Straven, Thomas Whitlawe, of Bothwel- 
sheills, all in armes with the rebells, within 
the toun of Glasgowe, the time of the late re- 
bellion in June 1679 ; aud this is the truth as 
he shall answer to God. 

Sic Subscrihitur^ John Marshall. 

Malhew Braitkmoody in Udinffstonn, aged 
scxtie years, maried, purged and sworne, de- 
pons nihil nomt as to any of the rebells men- 
tioned in the dittay. 

James Alexander^ saidler, in Hamiltoun, 
a^^l fuurtie-two years, maried, pni^ed and 
sworne, depons he sawe Huffli i^mervaiil, 
vounger, of Urrats, James M^Qubanie, of 
Scoriebolme, Jn. Whitlawe, in Bothwelsheills, 
and John I'atcrson, in Biithwelshi'ills, all in 
arroe« with the rebells, within the toun of Ha- 
miltoun betwixt the conflict at Drumcloge and 
the defeat at Both wel -bridge ; and this is the 
truth as he shall answer to God. 

Sic Subscribilur^ James Alexander. 

Robert Afeicander, in Nethertoun, of Hamil- 
toun, a;^ed tburtie years, maried, purs[etl and 
sworne, depons he sawe John Gray', of Darn- 
gavill, sroeing up trom the toun to the Muir 
of Hamiltoun, }w her the rebells wcr, on horse 
back, with a gnne like a blunderbush ; and 
this is the truth as he shall answer to God. 
Sic Subscribilur^ Robert Alexander. 

George Peiry cordoner, in Glasgowe, depons 
he sawe James Cuningbame, merchant, in 
Ulasgowe, rydiu^f up and doun Hamiitouu- 
Muir, with another man, and that he was 
amongst the rebells ; and this is the truth as 
be shall answer to Gofl. 

Sic Subscribilur^ George PeiHs. 

Jchn Drewe^ ton to Walter Drewe, maltman, 
in Glasgowe, aged twentie three yeare, mar- 
ied, pnrgchl and sworne, depons he sawe Gafin 
WMlMrapoOD, of Heathens, knoire m arms 



Thomas Bowitf in TodhlU, purgeil and 
a?ed fourtie tire years, depons he sawe Joha 
ffamiltoun, of Rogertoun, in Hamiltoun -Mair, 
standing in rank and fyle with the rebells ; 
depons he sawe Thomas Craig, fewar in Jmck* 
toun, ryding from Kilbryd towards Hamihotm^ 
Muir, wher the rebells wer ; dcpbns he law^ 
Thomas Craig, fewar of Jacktoun,' ryding^ 
from Kilbryd towards Mamiltuuu-Mair, wh« 
the rcbeils wer ; depons he sawe John Millar^ 
of Long Catherwood, in armes with thetebcJIi,. 
in Jiamiltoun-Muir, depons he sawe Jtrflll 
Wilson, of Highflett, in armes with the reMli, 
at Evuodale, and heard him give commission 
to poynd for not giving horse to cary ther 1mi|^- 
gadge, and this is the truth as he snail answer 
to God. Depons he cannot wreitt. 

Sic Subscribitur, R. Maitland, 1. P. D. . 

Robert Lindesay, in Kilbryd, aged fyftietwu. 
years, purged and sworne, depons he sawt 
Thomas Craig, fewar ofJacktoun, in amwi 
with the rebells in commissar Fleymings parky 
and sawe Robert Steivin, of Newlana,- in 
armes with the rebells at the said place, eAar 
Drumcloge and befor Bothwelbridgt: ; and ^^»^ 
is the truUi as he shall answer to God. 

Sic SubMcribitur, Robert LiNiikAT.. 

David DensMion, smith, in UdioMdiai 
agttf ibivtie-eight years, depons nftfl ' w o f il 



xra to any of ilie rcbcUsi mentioned in ifae 
aiitiy 

fhtirtw StotI, at thi^ m^h^ of Rath well, 

I twtftili^ JWe ye«r«, unratirie'l, pnrgtitJ and 
rii*{Htir'< hn'KaMe Gavin Weathci-arpoan, 
tletii^V kurrvvc in %rme& anion^t tbc 
"In Jute HifUj uwi (Iqtonfe llial llii» 
i« the truth us hts nhttli answer to Gotl, nuU 
ihe canu<»l wrtiilt* 
: StthcrihUur^ B< Mahxat^U^ L P. D. 

|pAi» RtJnittim, in Little Esrnockr dgetl 
mie ftivin vears, unmaried. pureed and 




if 



noliHu 
i»,.,L r. 



^ ; "deiMms he 64iwe iViUiam 

''"I'l, John CtK'Ur«iti, o( 

i Cliai^ftlJ, and James 

J_' ^11, ill Hirneii with the 

fth« nir, in June 1679, ttnd 

m^^' Ti, jwrtioner ot* Hinle* 

d«an, in &riiitf« ivitb Ihc rebelts t vnm and place 

forti ^ld ; and this U llie truth asi h<i shall 

^■krerto Gtid. 

^^ 5lV Suhicrihitur, Joilfl RoBCsm«E. 

Thomui Wutt^ in Blantyre, aged foortie 
yearly umrricil, purged un ] swornct depons he 
sawe James C'orsiT in ' fi» in armes 

whh l\w reli«ll8 at Shau * ilr, and sawe 

him rjfd throwe Jllantyre unuM^iately efter the 
licfuk Dt Bothwetbiidire, and sawe James Rae, 
xtn lo John Kae, in UitingMtoun^ lykways in 
annrs \\\\\\ ihu rrhclU, at the Hhawefiead- 
mmr ; dennn^ I hut he aawc John Millar^ in 
Lon^ CHt|i€i'woott, in amies with the rebellSf 
and fiawe John Piitci'^unt in V ' ' tu-iUg, in 
arrnr«with the rcbejh, at Nt iiiir in 

June 1079, ani) thi^ is the ituiu n.^ he shall 
answer %o (Jod, ()<^pon!i he cunuot wreitt. 
^^JSrc $ub^cribi(ury It. Maftland, I, 1\ 0» 

^^fe^n Qr0jf^ in Bettley-nuin, a^ed twentia 

^^Bm, nnnmried, dejH>fj$ he liuue Joim Eabluun* 

^fmoncr, of CJaiiKpiciUr and Jarnc^ Gray of 

^Krieknowe, wiilkiiij; in the streets of Gias* 

^^e, and itworch about them, oua marcatduy, 

when the ri;tieH» >^ere iti the totin ; and tliis is 

the truth a^ )te ^hall answer to God ; depons lie 

y|mnot wi-eitt. 

^^mc SuhicriltUur^ R. Mattland, L P. D. 

^^■year»,m! 'ki 

fllf^ Rawe JJlt|ll■^ I'.nis III rr,i.^ ,|.i.rnv n;Mi i|}r 

rebtflU ^vithin th'^ tiiiM) of latietk, hut t-annot 
be (M»siti%e If h** '• "'■ ^uncs or not ; dc[U>ns he 
Biwe Unhitt ' in Lunerk, in annt» 

with lh» said \ -niirrk, in June lb7y» 

tfii# tyii)< ; (hpiMi» he nsixw 

John Ho ve, iu arnici> with 

the rebeh«i iymv iiml |»i;irt iorKuid ; aiiil thU is 
truth MM h<' «htdt iin»vvt^r to God ; depous 
mnoi wreiii, 
Stibnttoitur^ R. MAnxAJ«i> I. P, D. 

€rt Sf{thir, in t*anrrk, ajzed fy-ftie yenrji, 
' . punC^ *^*^ sivome, de|iona he Mwe 



A. O. \6%U 

Thnmaii Hinw|woo<l, m tianeHc^ ffoealong^lJ 
with the rehells and a statTin hiiband; ii,mti ] 
tht$ is the truth as he flhtUl answer to God. 
Sic HHbtcribitur, RoBEitT M*GtB. 

John Lindftaif, ^hoeoiakerf in Lanerk, a^ed 
fonrtie years, niaried, purged and sworoe, de- 
nuns he 8AWC Alexander Balyio, smith iii , 
Lanerk, in conit»nny with the rebells, earrying' 
a musket, ut llauiihounf in June 1679^ ana 
aawe Thomas llinselwood^ in Lanerk, in com- 
pany with (lie rehellji with a sword ; depons he 
^awe James Mnirhead, stnitb in lanerk, stand- 
ing at the syd of tbc streit, and some women, ] 
about hiai« atnl that he had a sword, butwajg 
not in company v*uh any of the rebells nof^ * 
went not out of the toun with them, nor did h« ' 
see him converse with any of them ; depons htt 
sawe John Jack« in Nemphler. in armes wUli 
the lehelU, witliin the loun of Lanerk, witli 
sword and pislollii, in June ld79 ; and this if 
the truUi i\^ he shall lOiffWfrto God. 

Sic SubicribUur^ JoHN LitiSaAT. t 

Andrew Weit\ nierchand, in Lanerk, ^^^ 
threttie-sex years, ptirgcd and sworne, deponi^l 
he sawe James Muirhead, snaitb, in Laiierk^ f 
with a sword in hii> band, iti company with tli% { 
rebella, within the Loun of LaoerlL, and that Imi 
sawe no other of the citizens who wer re§rular j 
in .thcr company^ and net er know nor heard ^ 
that he was ont of the toun the tyme of the re^ 
hellion ; and this Is the truth as he shall anaww 
to God- • 

^ti* Subicribitur^ Andeiew Wem. , 

R. Maftlakd. 

Jame* Stlkirk^ mason and wri^ht^ in Lanerk, 
aged threttie one years, pureed and sworne^ de- 
pons nihil tii/vit^ , 

DuTtd CaldwtU In ^loocklandf age^l thretti^* 
years, maried, purged and sviorn, depons he' 
Kawe John Thomson, son to Jaracs Thomson^* 
potiioner of Garnquein, in armes with th«' 
rebells, oji IlamiUoun IVluir, in June 1G79, and 
sawe Georyre Robertson, younffer, of Glentore^ 
ia armeii with the rebells, on Hamilton -Muir, 
with a piMoll In his hund^ and sawe John Rus-' 
sill, uf EttjitllcUK ryding with the rebcHs se- 
vernll tymes, in Ilamiltoun-Muir, but knowe^ 
not if Ke hade armes; depons he sawe Johir 
Ka^itoun, of Ganifpieint gfocinj? up and dout| 
with ihcreMlson Hhawehead-Mmr,nnd hturtm 
him at other places with tire rebells in arme«f 
dtpnns he sawe Rotiert Good? in, mahtnan, in 
<;l;iSi,^o\ve, in a liouiic of Gla8||^Gwe^ wiih ve- 
VLTull of the rebelUf andthat he w»^ n,.,. j ju,^, 
hudr' pi^toUs ; depons he saxve ^ cks, 

(jtutujijcr, of Halburne« and ^ ird-i 

roj»pr, portioner, of Bas- J, ia 

armes wild the reMIs on \' J»", in' 

June 1671^, and this \% the truth as he shall luvn 
swiTtoGod, 

5*V Sub*cribiiur, DArin CAH)W\LtE, 

Jttkn SmUh,ma\Ui\^n^ in llrttnilfmn T,iiivT*./t 
nnd iw orne^ depons he sawe f i 
rydingfio to GIa»gow« the tyt ,: * 



S8T} 33 CHARLES IT. 

wer upi btti ther was oo perton in his cam- 

panv* and tle|>0Dg he sawe Robertson, 

of Chmore, in armes Vfiih tlie rebells in Glas- 
gowe, in June 16f9* 

5<V Sub*cribitur^ JoUN Smjtu. 

Molteri Twedale^ in Lesmahago, a^eil tlirettie 
ye&TA, unmarried, purged and sworne, depons 
oe rawe John Steill, of Overwatterheadt in 
company nitb the rebells at Lesnialiago, with 
ft fiwrord and pistoUs, in June 1679. 

Sic Subscribitur, Robeht Tweddeix. 

John Barre^ in Galrigie, ajjed fonrtie years, 
maricd) |)ur^cd and stvorue, depons be sawe 
John 8teill, in Orerwaterhead, in armea iriih 
llie reliells, iit Hamtlitjunr in June 1679. 
Sic Subicrilniur, John Barb. 

George APWharrie^ in Boigsyd^ aged twen» 
tic- four year, marie*!, purged and suome, de* 
poos he sawe Thomas LinUi youn^r, of Blair- 
ockoning-^ in armes with the rebel li, in Hainil 
loun, lit June 1679. 

Sic Subscribiturf George M^Q chart. 



George Fairie, elder, in Rutherglen, aged 
threttie three years, maried, punered and 
tworr.e» depons he sawc WiUtaui RidtWl, 
i^ar, in Kuthere^len, in eompany with the 
rebelU at Rutherg^len, with sword and pistol ts, 
in June 1G79, and sawe John Ifamiltoun of 
Roirertoun, and Robert Fk yming', of Auch- 
rnfine, in armes with the rebells, upon the ^9th 
of May^ 1679, when the reMIs burnt his ma- 
jestie'i acts of pnrliaineut at the croce of 
Kulherjirlen. 

5ic Subtcribiiur^ George Faibie. 

John Dahelt^ in ETarthill, aged thnttie^eight 
years, luaried* p*i«*g*^ a>id sworne, depons he 
aawe IV illiam \Vardn>j>er, portioner, of Wester* 
Calderhead, wilh four ijr (y^e of the rebdh 
come by the deponent'^ hou»e» and dc^ioas be 
hade a sword ; depons he cannot wreitt. 

Sic Sub§crititur^ R. Maitla»o» L P. D. 

John Bae^ in Udingiitaun, asred sejttie yeaii^, 
piiT|red and sworne, depuits he knoucs nothini^, 

Troyolui Balpey of Hnuterhouse, aged fyttie 
two years, manerl, jiurged and sworne, <le|K>n« 
be sawe Jumes Gray , of CbryHtoun, with tour- 
tie orfyilie of ttie Vebell^, at the Sighihilt. ol 
GJasgowe, all in amies upon ihe Monday 
•iter Drum doge. 

Sic Subscribiiur^ Teoyolus Bullie. 

Cfaud RlJitetif auiith, in Rutherglen, aged 
♦yftie four years, mai itd^ pureed and siwonie, 
tie pons he sawe James Gr;iy, younger, of 
Chr^'Stoun, in co inn any »*ith the bodie of the 
rebeiU, at Rutberglen ; depons be sawe Jnmai 
Cutiingbame, mercband, in Gl&sj;Tovr, the fur* 
•aid place, in arnie^i in company with the 
rebells, and with Robert Humillon, generalt, 
inJune«{jr9; depona that Will mm Riddell, 
fewar, in RtJtberglen, wsm in airnes with the 
rebells un horseback, tht tyme forsaid. 

Sic Sub»cribi(urf J a, Fouus. 



Praccf dings agaiad th€ Lanrr^shire Men, [S 

John Wilkie^ in Udiiigstoiniy twmmei de^J 
pons be knew nothing. 

John Murray, portjoner of Daldoivie, ttiAilJ 
ntn> it as to any ot the rebfdl^ tucnLiooed in Ut6| 
ditlay, 

Willinm CuuitU, at the New Kirk <vf Monk- 
land, 8|fe< threttie fotir yimra, mr^ned, deiKin#1 
be knowes nothing as to any of rim rpfwdltf 
mendooed in the dittay. 

Robert Scott, in Rutfieii;k», ;*-trt ivftie] 
years, maaed^ purjjetl and si\ oMn , tlfpuns'iliiti 
efter 0rumclt»g, and befor itie dttate at Boiii- ^ 
welbridge, John Millar, younger, in Long Ca- 
tber^ood, did i>ivit ihe tleponent to goe out i*$\ 
the rebells, amUold the deponent he htmself 
wasgoeing, ara) that he went from home ihej 
tyme of the rebel hon, bat did oot 
amongst the re))rik. 

Sic Subscribitnr, R. Scott, 

Jitmet Hamilton, in Maines of Neils] anil« 
aged threttie two years, maried, piirg^ed 
aworne, depotis that be sawe Thomas Paltoiiyi 
at the Old Kirk of Cambusnelhan, in aruie9>^| 
carving a halbert, in company with the re- 
bells, at Haniilton-Muir the week befor iIm 
defate. 

Sic SiJ*$cHbUur^ James Hamilton. 



William Jamiemn, in Dewishill, aged foiirtie I 
years, uiuned, pnrged and sworne, depons be 
Bsiwe Jameji Dycks, portioner, of Hulbiirn, ia 
armes in company with t4>ii or twelve of the 
reliefs about a Vnyle from Hamihonn, the 
tyraeof th«lafc rebelhon, betwixt the first and' 
twentie second d ayes of June 16 TO; depons 
he cannot wreitt. 

Sic Subscribitur^ Ja. Foulib* 

Gttvin Wood, taybr in llamiltoun^ 
tucntie years^ unrnuried, sworiie and pui^ed, 
depnji nihil novil, an to John Marshall, in 
Hatiiiltotm, exeept thiit he thinks he sawe tiim 
at Humitufti that ni^bt Drumcloge was fought, i, 
but cannot be positive, because it was night. t 

John Hum iit on f son to Gilbert llamili 
in HamiUon, depons n»Ai7 llo17t^ 

James Marmood^ in BplshiU, marled, 
fyftie years, putged and sworoe, depoi 
knowes nothings 

Jamei Jack, in Udiugstoun, aged fourtie 
years, marrie«l» purged and swome, depons be* 
sawe James Wilkie, M»n to John ^Vilkre, im* 
Udingstoun, in armes, bareingasword, in tlt^t^ 
toun of ildingstuuu, when considerable nuro- 
bers of the rebells went throwe the toun, but cltcl^ 
not see him joy n in arme*! with the nd»ella, 
buitbai it w j« the (time of the counlrey and of* 
hiH nci^hbour^ tbttt he was in the rebellion^ ^ 
depous l>esav\e Julm Enstoun, of Garnqueitt, 
in amies, mat clung thiowe the toun of lid- 
in g&touu, with about ane huiidretb of th^ 
rebetlsj etWr llrumclo^^e and betor the defate 
at Bothwcl-brid^e ; depons Jie sawe Gavin 
Wealhcrspoou, lewar, of Heathcriep koowe in 



I 



jbr Ttmivii* 
i^ilk ih^ leMli, the tjme md place 

SkSubtcrihitur^ James Jack. 

hn Frame, ia tUe BlackwimJrawe, Bfiff?d 

lie year«, maried, purged and s Te- 

' fii^lia he sawe John Wilson, of J m 

' arme«i u'itU tlto rebtUs^ some tynic^ uun the 

mmibcf of six and aomel^me wah the ouQiber 

ol'twelv<\ and that they wf nt to the Flatmuir 

to tht raiidevouzc Thursday efter the aitacque 

Pasgow ; depuns he ifave ThotnaB Crai^, 
oner of Jacktourv l^kewoyes with the 
l»» ID arine^, tyme'aud place forsaid ; 
06 he cannot irreltt. 
Si9 Suhicribitur^ Ja. Foclw. 

Joki% Leper ^ in Slratlifeni aged threttie 

Tears, unmaned, purged and sivurac, depons 

Kesttwe John 8teiil, ot Windbill, in company 

witfi the rcbijtls, but knowe^ not whither he 

liade arrne* or not ; and tliat it was betwixt 

I I>rfimeelo;jfe and Both wel bridge, and depons 

I that John 8teill said to the dcivonent, that he 

I was thcr sf^eklng* hack his horses which wer 

taken by the rebells ; depona he sawe John 

1 Cochran portioner, of Chappet, the day that 
J^fumcloffe was foiighten, in conapany with 
the rebeUs, and particular! ie with BurghhCf 
within the toun of Straven ; depons he sawe 
James Dykes, portioner, of Halbum, in com- 
pany with the rebetts, iu armes near HarniU 
toun ; depons he sawe one called Paterson, in 
I the deponents motbcr^s house, with thp rebells, 
but kn<s)we^ not if he was called John or Gavin 
Uklerson, and that the guid John Cochriin was 
Hed, 
^^ Sk Subscribitur* John Lepeu. 

James Nacsmith, Mye^ of Hamiltoniu^ pvn^- 
«d and fiwome» depona he knowea nothing. 

Jama Nacsmiih^ servant to Mr. Tlobert 
Black, aged threttie sex yeotrs, unmarried, 
j>arged and swome, depooa he sawe John Steill 
of Wiudhltl, in armes, with a company of the 
rebells at Sitvertounbill, and that they were 
mil horsemen, and hade a standart, and this was 
<m Saturday betur the detkte at iiothwel- bridge, 
ilepons he cannot w re ilk 

Sic Stib$cribU tf r. J a, Fot;U9. 

Jame$ Bramn^ wreitterf in Hamiltoun, n^ed 
threttie years, uumarne4lf punned and sworne, 
depons that James Lourie, wreitter^ in Lanerk, 
went in company with flnlicrt Ixirkhart, of 
Birkhill,toH: ' p, 

and their con s, 

ttud f ] i[> tjic toviu (Ji iiannmuuhf and 

^pu^ James Lowne communed with 

Jfihi* U ,,^^.,iy in r^nerk, who was a cnptainto 
tiie rcb«!iU» and l»ckhart, of Birkhill com* 
muM'^l »«♦'» !^lr. John Kintf, dt[ion)s James 
Loi Nibf^rt Lonkharl badeairnefi^ and 

that r_i iii«' Tweutie oav uf June, about 

clef ill n t' 

SU .- Ja, BitowKg, 

Th« Couft coatioued tilt tomorroH the 19th. 
^ vol.. XI. 



Ifff]. 

The Perscwer and Pan nails compeirfng per* . 
sonalhe ' nt in die precedente/ Hia niajc^tie's 
adrocatc for farder probation agaiuest them 
and the other rebel] i^, m Lanerk shy re, remiitetl 
to the assyse, adduced 

Robtri Scott^ in Kutherglen, who formerlic 
depons, being iv- examined, depons, that John 
Brown, t ay lor, in Rutbeig^len, wentawuy lo the 
rebells tbe*Sabholli day of the rout ;it BothweU 
bridge, and that tlie depoai*nt aJwistd him not 
to goe, and not^vith standing hi? went fore- 
ward, and that the said John Brown told thede« 
ponent that he was taken and caryfd in pri- 
soner to Edinburgh, knows not whither h^ 
hade armes or not. 

Sic Subscribitur, R. Scott. 

John Wallacey in Dong! as, being interrogtt 

as to Fatton at the oUl kirk of Cambiu- 

nethar, depons he knows not tlie man, 

John Wilkie, m Udingstonn, aged foartia 
fyve years, raiirried, porjjtd and sworne, de 
pons he savje John Stott Mer portioner ot' 
Udingstoun the day that the reUlls wept Vf 
Gla8guv%e goe to the west end of the toun ot ' 
Udingstoun, on horseback, with a sword, 
which way is the way to Glasgowe, whcr th^ 
rebells wer, but was dikant fyre myles thcrfrae* 
Depons he came home the same night to hit 
own house ; knowes not if he went to the 
rebells therefter, depons he -sawe John 8cott, 
younger, ryd from his father's house over tha 
Croft towards the west-tfud of the toun of Ud- 
ingstoun, the way towai-dsthe rehell ariiiy» 
wliich by on the south S3'd of Clyd ; knowes 
not howe fare distant they wer from the srd of 
Clyd ; depons he hade a sword ; knowes not if h« 
entered the rebells camp or not, and that lh« 
premises wer betwixt the first of June and 
twentie two day Iherof, 1679 ; depons tliat th# 
day of the attactjue at Glasgowe, he mw^ , 
James Corse, in Udingstoun, in Carmyloi 
with a sword about him, and th;it theref^er ho 
told the depuncnt that he hail bein at Glaa- 
gowe with the rebells ; depons he knowes no- 
ihing as to Alexander Cor^ his son« 

Sic Su bscribit ur, John W Ji4itE, 

John Eamilion^ of Fairholme, aged fourtJ# 
years, married, purged and sworne, depons hm 
eawe John CardufT, fewar, in Straren, about 
four er five days befor the break at BothweU 
brtdgfe, come with a sworrl about him, tho 
way from Hamiltoun wher the rt*bells lay 
towards 8itFertonD-hi1l^ and ther wos another 
person called Arkhill with him, lykcwaysiu 
armes. 

Sic SuUcribiiitr, Jo. HiMrLTonv, 

flia MaJeHit's Ailvocot addnc*»d Troyolm 
Balvie, nt ^!;onterhousc, a nitnests nimiiis^ 
William Wallace, portioner, of MainhSlj oa 
pannalL 

Mr. Ri^tri Mmn, ndrocat^ as procurator 
for him, nlleadges, that tlie said 1*royolll^ 
Balyie could not be ttUuitted a witnes "^' 

V 



29H. 



33 CHARLBS IT. Proceedingi aga'mit tke LanerkJkin Men, [29S 



Lim, because iher wer inmicitue capitalet be- 
twixt him aad the said Troy ol us, wdich he of- 
fered bim to prove by the witDeses efter men- 
tioDed, Viz. Thomas I>onaId, smith, in Dyke 
bead, and James Pettiecprewe, in Bakpedie, who 
beiogf sworne, deponed that they heard the 
■aid Troyolus declaire that lie repented be bade 
not sticked tlicsaid William Wallace. 

The Lords having considered the witnesses 
depositions, they rep^^ll Troyolus Balyic from 
bein^ a witness againest the said William 
Wttllacc. 

James Marttood^ in BelsbiU, beinpf sworne a 
witness ai^inest the said William Wallace, and 
pursred, oepons he knowes nothing of William 
Wallace in AlainhiU his being accessoric to the 
late rebellion, only Troyolus Balyie told the 
deponent that tbe pannall was in armcs with 
the rebells the tyme of the late rebellion. 

The haill coinpeiring witnesses wer sworne 
aifd examined in presence of tbe inqueist, and 
ther denositions recordit, except these who de- 
poned they knewe nothing, or deponed only as 
|g such ag^t whom ther is a full probation led. 

The Lords ordaine the assyse to inclose and 
returne ther verdict. 

HisMajestie*s Advocat protests for ane assyse 
of error againest the inqueist in case tbey as- 
■olyie. 

Eodem Die. 

IntrarC 

John IlamiHon^ of Stonball. 
Thomas and James Alstount^ of Af aines. 
Robert and William Gilnwurs^ portioners, of 
Preistgill. . 

Indyted and accused for the civmes of trea- 
son and rebellion mentioned in ther dittay re- 
fh>rdlt the 1 1 instant. 

The Lords Justice Clerk, and CommltisioncrH 
of Justiofar}', of consent of his Majestie's Advo- 
cat, aad for several 1 other good causes and con- 
sideraiionsdeserted, and be thir presents deserts 
the dyet as to the saids John Hamiltoun, of 
tilonhall, Thomas and James Alstouns, and 
Robert and William Gilmours, simpliciter^ and 
discharges all now letters to be raised or given 
out agamcst them, for tlie crymes above sped-- 
fit in tvine coming, except be ane express 
worranJ from tbe saids lords in presenting 
Wherupon the saids defenders asked and took 
instruments and protested for ther respective 
cautionci-s releiff, which protestation the saids 
lords admitted and Itercbv admitts, and onlaines 
tbe saids cautioners bonus to be dely vcred up« 



March 21, 1681. 



Intran* 



Jainet SempUy maltmati, in Hamilton. 
John Scoit^ elder, [wrtioaer of Udingstoun. 
Jtunes Muirhead^ smith in Lnnerk. 
If j7/Mm Wallace^ portioner, of MainhiU. 
John Marshall^ fewer and wreitt0r» in Ha- 

luiltOUD* 



Wi 



Jotm 



John WilUamtoHy son to • 
heritor of the lands of . 

John Williamson^ son to 
cail ^ lord Sbortdeugth. 

Jo.'n Spreullf younger, son to Mr. 
Spre 11, writter, in Glsiagowe. 

Witiiam Tmedak, son to William Twedale^ 
late bal^'ie of Lanerk. 

David Robieson ther, called Pdoie by piek^ 
name. 

David Weir, son to Weir ther* 

James Walker^ younger, of Halketbume. 

Indyted and accused for the crymet of trea- 
son and rebellion at lenth mentioned in tb« 
dittav. 

The saids John Williamsons, James Walker, 
John Sprcull, William Twedale, David Robie- 
son, and David Weir, and ther procouratori, 
gave in renunciations subscribit be thera of all 
ther heretage preceding the rebellion, wherof 
the tenor followes : 

Be it kend to all men be thir present let- 
ters, We John Williamson, son to Robert 
Williamson, called lord . Shortcleogfa, Jieha 
Williamson, son to Mongo Williamson, berir 
tor of the lands of Holl, David RobieBOu, ia 
Lanerk, called Possie by nickname. Fona- 
meiklc as we are persewed as heritors to undcr- 
lye the lawe for our being in the late rebellioB 
in June 1G79, and that we did defend ourselves 
upon our taking the bond not to rysQ in annei 
againest the kmg's majestic or his authorities 
as not being heritors, and therby have the be- 
nefitt of his majestie's gracious mdemni^, and 
it being found be tbe lords justice clerk, and 
commissioners of justiciary, that we oogh't 
oiily to renunce the benefitt of all lands and 
herctages befallen to us befor his majestie's act 
of ^race, Thcrfor wc lie thir presents rennboe 
and resigue in favours of the king's nuycslis 
and commissioners of his bynes thesawrie, and 
his donators, all lauds and beretasnes b^lle^ 
to us, and whcrutito we bade right be(br his 
majestie's act of grace, and binds and obliges 
us to denude ourselves therof omni kabili modo^ 
at the seight of the lords of thesaarie, and ha 
the adwLse of his majestie's advocat consentug 
to the registi-ation hereof in the bookes of iM- 
joumall, that letters and executorials needfvff* 
may be direct thereupon in forme as eflefrs or 



that the same may be registrat in any I 
competent within this realme, and for toateflte 
constitutes 3Ir. Colin M'kcnzie and Mr. John 
Monzics,advocats, our procourators. In iiitniM 
wherof thir presents (written be John Ander- 
son, servitor to Mr. Robert Martin, clerk to tiw 
justice cjurt) are subscribit with our hands i^ 
Edinburgh the 18th day of March 1681 yeaii, 
befur thir witness George Monro writter ik 
£dinbur«<:li and the said John Anderson 

Sic SubscribUur John WiLLUMaoir, 
John Wiluamson, David KoBiESONia ' 
Geo. Monro, witnes. * 

Jo. Anderson, witnes. 

Be it kend to all men be thir . 
ma John Spreull younger wreiuirr in 



293] 



/or Trrascn. 



Ifor^meiltle n% f mm pcrsewetl »s ane heritor lo 
iimk'rlye the In we tor ixty b^intf in I he late 
ristfethrtn in June 1679, and that I <lid defend 
myself upon the takinif ihe l)ond not to rys*? in 
armet against his majesticViorhistiuthoritie »« 
fiot beintf ane heritor, and therhy huve the be^ 
nejHt c»l" liii nn8Jostie*s ^ra'-ious indeinnUic; 
jmd it heinij fount! bt the lotdsjwsticc clerk and 
coninus&ioners of jiistlriary, that I ought <»nly 
to reounce the l>eiiefitt of all land^ and herc- 
tji{j;c« Itefntlen to mi* liefor liiit niaje*itie's act of 
gnire, therfor I lie thir |<Tesent8 renunre and 
ttsi^iw in f;iVQurs of the kind's majestie and 
comiHissioners of liis hig^nes ihesaiirief and 
his dunatorii, nil hituM anil heretag^es befallen 
to mc or fiherut^u I hade rifirht liefor his ma- 
jestie'sc act of frfaec, and biiidji and obtig'es me 
to denude myself therof omni Imbili moJo^ at 
the sjijlit of the lords of thesaurie, and he the 
adwi»e of his muje&tie^s advocai consenting to 
I he reGfi^ttmtion herwif, in the hooks of ad- 
journalf or any judges bookes within tins na- 
tion, that iettJrs ctecuionals needful niny be 
dire4:t hei'euiMU) in forme an cttVirs and consfi- 
int' master John Kincatdadvoc&tt ray procon- 
ralof. In **itncfi wherof I have sobscnhit thir 
presents (written be John Andci-son, nreitter 
in Edin'r) with my band at Edinburght the 
18tb day of l\[arcb^ i6lii years* befor ihir wit- 
iieaacs* fieor^e Monro, wreitter in Edioburg'h, 
itnd Ihe uRiii John AnderBOD. 

Sic SubjtcTibittir Jo. Spufiuix, 

€ir.o. MoMto, witness. 
Jo» An!jcuson, witneis. 

Ite It kend in all men be thir presents tetters, 

tueJunii-s^Vulker.yonng-erorHatUwoodburnc, 
format nt?ikle sis ) anie persewwl as ane heritor 
to underlye the hiwe for my beint^f in the late 
rebellion in June J67l>, and that 1 diil defend 
myself upon till i^iUirii/ the bond not to ryse in 
armes a^inr j's mnjt'stie nor his an- 

iboritie, as n ,me berilorf and tiierby 

li8V« the benehtt M ins majettie*« vraeions in- 
tlemniiie, and it l»emtj' found bo the Utrfn Jus- 
tice elei'k and oommiiiRioner!* of justiciary that 
I ousrbt only to reaunce the bpiiujitt of alf Und^ 
and heretages befallen to me befur his iriaje^tie's 
act of tj nice, Ihertor 1 he thir presents renuoce 
and resigne in favours of the kinjj^^s inaje^itie 
und commi^ionera of hiic highnes thcxaiiriej 
and hi^ dunutor^^ all lands and horeta^rs be* 
J;ttU»n to me, or whenmto 1 badt: i-iy;hi befor 
Jiis majemie'A act of ^race^ and hinds and 
obtid^e« mc to denude myselt' ihei-of, omni 
^t^tti modoy at the *(ei^^lit of the lords of the« 
Pttirie, and lie tht-;;di^ise of his innjestie^a ad* 
WOCal i"rqisei»iritL' to the re^jfistmtjou hereof, in 
Ih' iiniHlIf or any jud;^e« buokett 

%'^ti •% llrat letters of hcM'uttii'' and 

other r^trtt«M)ttdUne4H!ftiUm»y be dire«rt there- 
lipon in ioruui as efleirKf and coiistituts Mr. 
IJolin lM»Ken»ie^ advoeat* ray priHH)uniior tn 
inritn^^i %vherof^ thir preKenlK (wrktlen l>e Jt>hn 
Aiidi*r»o», wrviUrr to i^lr. Itoliett >lAriin» i'lerk 
tn the jiiAtrcfr eoiirt) are snlMcribit with my 
kftodi at Edtoburyh, the 10th day of Manh, 



few j€»f», befor tlu> wilnesfies Geerg^e ^lonro 

Kvreiit^er in Edin> and the t<aid John Anderaou 

Hie Su htcrihit ur^ J a . W alkes* 

Geo. Blo^no, wttne^. 

Jo. ANorjisox^ wrtnes* 

Be it kend t<^ all men be thir priwent 1ett« 

me William Twedale, sua to William Twedal# 
late balyie of L»\nerk, trorsanieikle an 
amc pefsewcd as ane heritor to ntiderlye ih^ 
laue for my bdntr] in the late rehellion ia 
June }679t and that I did defend mys^elf npofl 
the taking ane boiul not to ry&e in anna 
aipiinest \\h majestie nor his authorities as no 
l>ein^ ane heritor, antl thereby have the benetij 
of his majeijtlo's pracious indemniUe, ai^d if' 
heintr found be the lordf* justice clrrk and com- 
mtssioners of justiciary that I ou^^itonly to i 
nunce the bencfittof all land and hereta'^es UmA 
falkn to me befor his aiajestie*8 act of graceil 
thertir I be thir presents renuoce and reaignij 
in favours of the king's m^estie and commis* 
sinners of his highnes thesaurie, and his dona 
turSf all lands and heritagrea befahen to itie o 
wberunto I hade right hefor his mitjestie'sao 
of gracCf and binds and ohleid^^ mc to denude^ 
m^vself therof, omril hubUt modoyHX the seigh 
oi the lords of thesaurie, and be the ad wise ot 
his majestie's advorat consenting to the regia 
tration thereof^ in the iKiokes ot adji»urftall, d 
any judges bookes \*iiluu this nation, that let* 
ters and execulorials needful I may be direcli 
hereupon in forme us efleirs, and constitutil 
master John Menztes, advocat, roy prucou* 
rator. In w lines whereof thir presents wvitJeitl 
he John Ander'son, servitor to Mr. Rob< 
Martin clerk to the justice court are suhscrib 
with my hand at Edinbur^^h, the 18th day o^ 
Mareh«' 1/381 years, befor thir viitnesseflpl 
Georife )Ioni-o« wrctLter in Edinburgh) atid tb 
said Jo4iA Anderson. 

Sic subACriLUury WlLUAM TW£DDAIX. 

Geo. Mu^ro, witnen. 
Jo» A\DERSo*si, M'itnea. 

Be it krnil to all men he thir present 
me David Weir, son to Ungh Weir, mercband 
in Ennerk, fforsameikle as I ame ncrsevv<!d 
ane heretor to undcrlve the latve fcir my bein 
in the tate rebelliou In June, 1079, and ihal] 
did defend thyself upon thn takin^^ ane bond no|, 
to ryse in arnicii nt^insi hU majestic nor hiil 
autiitjntie, as n? f ' ne hcrrtor, and lhcre*J 

by have tlie hr! . mnje^itie^s ^ndQUij 

imlenmitie, and a Im ,,, ^ ...und b«Mhe lordsjtis-*J 
tiee clerk and commissioner*! of justiciciry, thall 
] uuQ[Ut only to renancc the bonctilt of all I 
lands and hercta^**^ befallen to me befor hii J 
rtiajcfitic'ii act of (rraeci ihfrfor I he thir pre- 
•anta renunce and ie«i^ in favours of Ihe king^^s 
naajtstie au«l couimissioiSers of hiKhi|Thnesthe- 
saiirie, and his donators all lands and heritafj^e^j 
befallen to me, or wherunto \ hndp ri^^ht hefor hi* i 
maj^slie^B act of gnu'e, and hinds and obleidges] 
me to denude myself tlierof, omni habili tmiJiif*^^ 
at the fi^ht of the lorda of thesaurie, aud l^ I 
Ihe adi7yi*e of hi« mnjestie'a adnk^t, consent •*! 
ing tQ ihe regiairtttiou bei^evfi d the booket of ad* 



r)5] 



98 CHARLES II. Proceedings ngaind the Lanerkshire Men. [296 



journall, or any judges books whbin tbis realmey 
that letters and executorials needfull may 
passe thenipon in lorme, as efTeirs and consti- 
tutes master John Menzies, advocat, my pro- 
Gouiator. In wiliies whergf, thir presents 

erreitten be Jobn Anderson^ senitor to Mr. 
obert Martin, clerk to the justice court) are 
subscribed with my hand, at Edinburgh the 
18th day of March, 1681 years, befbr witnes- 
ses George Monro, wrcitter, in Edinbui^h, and 
the said John Anderson. 

Sic Subtcribitur, David Weir. 

Geo. Monro, witnes. 
Jo. Anderson, wituess. 

The Lords Justice Generall, Justice Clerk, 
and Commissioners of Justiciary, in respect the 
saids John Williamson^s, James Walker^ John 
8preu!l, William Tweddale, Da?id Robieson, 
and David >Veir, have accepted the benefitt of 
liis majestic's gracious pardon and indemiiitie, 
and have renunced and resigned in favours 
of the king's miyestie and commissioners of 
Lis h}'ncs thesaurie, and his donators, all 
lands and hcreta^es befallen to them, or where 
unto they hade right, befor his majestie's act of 

Srace deserted, and be thir presents deserts the 
yet in perpctuum^ and discbairgcs the raising 
or outgiving of any newe letters or dittays 
againest the defenders for the crymes above 
8|iecitit in tyme comeing : whereupon they 
and tlier procurators asked and took instru- 
ments and protested for ther cautioners relieiT, 
and craved ther bonds might be dct^'vered 
up, which the saids lords admitted and or- 
dained. 

The said day the persons who past upon the 
assyse of James Scmiile, John Scott, James 
MnirheafI, William Wallace, and John Mar- 
shall, aiN)vc designed, and the remnant persons 
re niittvd to thi lu, returned ther Verdict in pre- 
sence of the saids lords, whereof the tenor fol- 
low es : The .\ssYse be pluralitic of votes, by the 
mouth <»f JanKs Baird, of Saughtounhall, ther 
thancellar, Ifiiids t!ic sufficicucie of the pro- 
bation led againest the persons underwreitten 
conforine to the depositions of the witnesses 
adduced, to witt, againest David Whytt, smith 
in Lanerk, Gideon Weir, pfunesmitli ther, 
David Gibson ther, John Wilson, wreilter 
ther, Mr. Thomas IMIIans, James Laurie, 
wreitter in Lanerk, Archibald Svmson ther, 
Thoiuas Lauchlan tlicr, William Ferguson 
ther, John Semple^ mason ther, Thcmiasln- 
l^lis ther, Alexander Anderson ther, John 
I'umphray ther, Jc^ Jack, in Ncniphlcr, 
William Pad/ean, mason, in Lanerk, Kol)ert 
Lockhart, of Birkhill, Gavin Hamilton, of Hill, 
James Weir, of Johnshill, John Steill, in Over- 
%vaUerhead, John Haddowe, in Douglas, 
James W hytt ther, William Falconar, inlla- 
milton, Arthur Tairbet, Gavin Weatherspoon, 
of fleatherie-knowe, John Easton portioner of 
Ganiqurin, Robert Goodvin, maltman, in 
Glasguwe,. James Cunning ba me, merchant, 
tfier, Isack Ulackwell, son to Thomas Bbck- 
weU ther, Wdliam RiddeU, fewar ia Ruther- 



Ben, Robert Fleyming, of Aodiinfiiie, Jioha 
amikon, fewar of Rogirtoan,Thoiiias Ciaigis^ 
fewar of Jacktonn, John Millar, portioiier ot' 
fiODg Catherwood, John Wilson, of Uigliflttt, 
Robert Steivui, fewar of Newland, John StcOl, 
ofWindhillfJohnCochraQe, of Ciig«, Jamss 
Dycks, portioner of Holbum, John CaFdof, 
fewer in Jacktoun, Thomas Patton, at the Old 
Kirk of Camnethan, John Whitlawe, in BoA- 
w elsheills, John Patterson ther, John Whylt, 
of Neuk, and Thomas Linn, of BlaiTachin, and 
fiinds the pannalls above wreitten goilty of it* 
seiuff and being in the rebellion 1679, with as 
rebcTls, in armes ; and also, Assolyiea JaiMB 
Muirhead, smith, in Lanerk, John Willde, in 
Udinffstoun, WiUiam Wallace, portioner of 
MainhiU, John Scotts, elder and younger, it 
Udiogstoun, William Dick, m Ijtfim, Jaaei 
Park ther, Hueh Ker, son to WiUiam Kor, 
of Bedronald, Robert Haddowe, ther, John 
Buckle ther, Alexander Balyie ther, Thomas 
Hinselwood ther, Hugh Somerraill, of Uratts, 
James M'Qubarie, of Scorieholme, James 
Carse, in Udingstoun, Alexander Corse, his 
son, James Rae, son to John Rae, in Udings- 
toun, James Grav, elder of Chrystonn, Jsraes 
Gray, of BerrieCnowe, John Brown, in Ra- 
therglen, Hugh Ker, of Bawehouse, Wilfiam 
Park, fewar of Lairdfadd, James Heidi of 
Kittochsyd, John Cochran, portioner of Cfasp- 
pell, John Hutcheson, ot Hairlawe, Lus 
Greinsheills, of Uogscastle, John Gray, of 
Damgavill, John Marshall, wreitter in Ha- 
milion, George Robertson, elder and yow^^^ 
in Glentore, William Wardroper, portioncrsf 
Wester Catherliead. 

Sic Subscribitur. Ja. Babd, Ch* 

Eiler oppinii^ and reading of tlie whilk ver- 
dict of assyse, 'Die Lords Justice Generall, Jos- 
ticc Clerk and Commissioners of Josticisiy, 
Therfor be the mouth of Andrew Conning* 
hame, J>empeter of court, decerned and adjodr* 
ed the said David Whytt, smith, in Lanm, 
Gideon Weir, gunesmith ther, David Gibsm 
ther, John Wilson, wreitter in Laneric, Mr. 
Thomas Pillans, James Laurie, wreitter tfasr, 
Arcliibakl Symson ther, Thomas f^tii4 >|M 
ther, Wiiliaia Ferguson ther, John tfempli^ 
maso'a tlicr, Thomas inglis ther, Alexandw 
Anderson ther, John Puraphray ther, ^ohn- 
Jack, in Ncniphler, William Pailzean, msmi 
in Lanerk, Robert Lockhart, of Birkhill, GaLfin 
Hamiltoun, of Hill, James Weir, of JohnsUD, 
John Steill, in Overwatterhead, John Had* 
do we, in Douglas, James Whytt ther, WiUiui 
Falconer, in Hamiltoun, Arthur Tairbet thsTy 
Gavin Weatherspoon, of HeatheriduMi«% 
John Eastoun, portioner of Gamquean, Rahul 
Goodvin, maltman in Glasgow, James CmuM;^ 
hame, merchant ther, Isack Blackwell, aon Is 
Thomas Blackwell, ther, WiUiam RidMI^ 
fewar in Rutherglen, Robert Fleyming; in 
Auchinfine, John Ilamiltoun, fewar of llsyi 
toun, Thomas Craige, fewar of Ja ' 
John Millar, portioner of Long GatT 
John Wilson, of Highflett, BobsfC 



wr] 



Trkl of the 




ievr&rof Newl&iid, John ^teill, of WuidhUI, 
Jobn Cochrao, ot'Craige, Jatn<fs lKck»» por- 
itMiacr of HaJbunie, Jolui CardoflC fewar in 
Jtctenn, Thomao Fatton, at the Old Kirk of 
daoibtuQethaii, John WbttLawe, in Botliwel- 
•bdlls, John P&terson tber, Jobu Wh^/tt, of 
neuk, and Thomas Lioi of Blairacbin, and 
itk ane of them to be execut to the death, de* 
Enaioed as traitors, and to underl^^e the [laines of 
treason ttod utter punishment appoynted by the 
kvresof this realme when they ttball be appre- 
bendit, at such iyraes, places, and in tiuoh 
tnaner, as the lords ju&ticc g:4merall, juaitice 
clerk and commisfiiouers of justiciarie shall 
appoynt, and tber names, roemortCi and ho- 
nours to be extinct, and ther arraes to riven 
furth and delate out of the bookes of armes, 
suae that ther posteritie m'^y never have phice 
oor be able herefter to bruik or joise anie ho- 
oHices, or dignitu^ witbixi Ibis realme, 



in ty tne comeing^, and to have forfault am tint-* 
ted ^nd tint alt and « nod re ther la aria, ^ere* 
tages, tenements, aoniial rents, offices, tltlesi 
diguiues, tacks, sleadiog, roumes, poss^ssioiis, 
^oods, aad gear, whalsomeTer pirtakilag to 
them, to our soTcrergn lord to remain jwrpetu- 
alhe with his highness in property, which w»s 
pro n unced tor doon i : W hereupon h is M ajfsties 
advocat a&ked and took inf»truments. 

The Lords continue the proDtmcingof doom 
and sentance againest James aSemple, majtman, 
ui Hamittoun, who is fountl guilty of treason 
aud rebi*Uion, and is come in his mnjesde^s 
will, aud has confessed the cry me, and beg« 
pardon till the lift day of April nLxt. 



N. B. The diet against James Semple 

continued from time to time, and ot last di 
out altogether. 



33 L The Trial of the Lady Alice Lisle,* at Winton, for High' 
Treason: 1 James IL a. d. 1685. 

Augutt 27, 1635. I *^® ™**** niostrious prince, James the BfCOttS^ 

* I bv the gracse of God, of Englaod, Scotland, 

CLofAr, Alice IJsle, hold up thy hand. France, and Ireland, kinar. thy supreme and 
riVbicii sliedid.] TJiou standest here indicted I natural lord, the fear of Gml in ihy heart not 
Dv ihkt name of Alice Lisle, iif the parish of , huviug, nor vrcigbing the duly of thy alle» 
Ellin^ham in the county of 8nuthampton. giance; but beiug moved and seduceiihy tkc 
widow { fur that thou, as a false traitnr agaiast instigation of the Devil, the love and true* dito 



L 



♦ Mr. Juslioe Foster calls her (more pro- 
gierly as it iM?eins) Mrs. Lisle. Hhe was widow 
of John Li&le whu had been one of the Judges 
ol Kitig C'harlett the First ; (See vol. 4, of this 
CoUcciioii p. li>:it— 1133;) but I tind not hb 
flame auiurtg ihuiic whw signetl the WaiTaut tor 
Kveitiitiua. (Ht« vol. i, pp. tl34, 1136.) He 
bad alirrwardH, in ihe Protectorate of Oliver 
Cmmwell« U^en Lord President of the High 
Court of JiiKtit'c. (See in tliis Collection the 
Cast!* of GcTlmnl luxd other*, lol 5, p 517 ; 
olfiNr Henry fejimg**by, vol. 5, p. 87 1 ; of Dr. 
tituirt, vul 5, p. dU3» and of Mr. Mordant, 
▼oL5, p. *Ki7.) 

The fidhiwiiig particatars of the death of 

Lisle, arc related by Ltullow, his friend sod as* 
•uciate^ and a partner of his expa^trlation : 

•* Mr* Linle having received advice from the 
lieutenant BaU«al, tlmi a certain Frenchman, 
who iistrd to cngi^iive u(Kjn seals and dishes at 
Vetay » Lau«anna, and other pbces, had in- 
fbrmeii ih*^e {Savoyards of the way they should 
for lhi» exix^uiion uf their wicket! dasign, 
r to demand him at 
V here being" intbrm- 
ctiii 4uai t)i' ' n mcivsn^e wan 

luse hitu to be 

it my request, 

> into custody. 

,„,.:^;d bad pasti^d at 



I 



paiited a w 



Lausanna, and supposing the alam> to be over, 
was returned thither. Of which the gcovern- 
meat of the to\tn havingf advice, tliey caoscd 
him to be ^seized, aud carried before the burgO'^ 
master ; who, alter a sUi^ht examiaation^ con- 
tented hinisvli with banisluiig him from ttuir 
jurisdictiitii. Anil nuw Mr. Lblc beg^n to 
think, that he hiid not much l>€t(er provided for 
his security by Abandoning V^evay. 

** On the VVcdneiday ot the same ^leek, tirn 
men in the habit of nri-oyms, mounted u^ion 
good horwi-^, came to lodge at an inn in Vcvay, 
Urwhidi our landlord havmg- rcueivcil notice, 
(according to an order of the badilf and c)iate« 
lain formerly sigiutied to all iuokii^pci^), be 
went tci the house where they were ; and, 
upon rxaminatton, was assured by them^ that 
they bekinirod to a German count, who wus 
then at the baths in the l^ais dcs Vallces ; thai 
thev were by his onlcr conic to this place to 
wait his return, and that they bad already sent 
a messcngfer bi acquuint him with their arrival* 
Beiu{^ not able to draw any more from them, 
he came huuie ; and^ bavin^t ^icquaintcd me 
with what hud passed, earnesily desired, that f 
would be ujion my guard. In the mean timn 
theftv? pretended sjf<»oms crmlinucil al V«vay 
till the 'riiun.day in ih« tollowmp week ; whea 
one comiu'^^ liom the lioilii* before mentioned, 
assured, iliat no such person a* thcte tVllow« 
dcscnb^ had been there; which added to i 




m^m 




1 JAMES n* 



Tyia! of the Lady AUci Lkfr^ 



[ natur^il oliediencef iiliicli a true And faith- 
ful subject of ottr said lord the kxug^ towtii-dt» 
him our said lord ihe kin^. should, and of ngbl 
ought to bear, u hoi I J w ill idra wing", at»d »viih 
al) ihy ini^ht intending- the peace aod com- 
mon tranquillity of ibis kingfaom of England 
to disturbi and war and rebellion against our 

threatening message sent by our landlord to the 
innkeeper for entertaining such rogues, they 
liasteoed away, and went to Lausanna, 

*' On Thurs^Jay the llth of August 1664, 
one Mons. Longeon of Lausanna brought me 
the sad newst that Mr. Lisle goin^r that inoi-n- 
ing 10 hear ilie sermon in the church that stood 
near the tovm-gate, was shot dead hy a person 
on foot, who had a companion waiting for him 
mi horseback, with a led hor«e an hl^ band ; 
which the murderer having mounted, and 
cried Vive U R<nft they immediately rode 
away together towards Morges. 8«jnri aAer 
this barbai'ous murder uaa committed, we un- 
derstood from Lausanna by the description of 

' the persons, their cloaths and horses, that they 
were the same that had lodged at Vevay. 
They had continued for a week in Lausanna 
l>efure they found an opportunity to put in exe- 
cution their detestable plot, and had carried 
Ibeniaelves with such indiscretion, that djrers 
penons suspected tliem to have a design 
•gainst the English. Of which Mr. Lisle being 
Informed, he sent his landlord twice to try 
^rhat he could d raw from them * B ut tli ey had 
BO well contrived their story, that he could find 
iio colour to remove them. Many persons 
tipOfl euspicion of these feUows had desired Mr. 
Xiile to be upon his guard, and to forbear going 
to the churcli he used ; because it lay so near 
llie tow negate, that if any persons should make 
an attempt againut him, they might with little 
diflicully escape by that way, Oor country - 
wen al«o who were with him, perfbmied the 
same office. But he would by no means 
bearken to their advice ; saying, he was in the 
hands of God, and had committed himself en- 
tirely to bis protection ; adding to this answer, 
that my lite was his defence, and that til) our 
eaemies had dispatched me, he assured him- 

j telf tbry would nut think of him. The villain 

^ that murdered him had waited hiei coming at a 
fcarher's shop, where he pretended lo want 
aarncthing for his teeth ; til! seeing Mr. Lisle 
at a flislanre, \\v stcpt out of the shop, and as 

i lie came hy , saluted him. Then following him 
into the church -yard, he drew a carabine from 

i tinder hia cloak, and shot him into the back. 

^ IVith the recoil of the |iiece the villain's hat 

t^iras beaten off; and he himself falling over a 

ficce of timber, di-oppcd bis gun, which he left 
ehind bim ; and us coon as he had recovered 
' bimsolf, running to his companion who held 
I the teil boi^e, he mounted, and made his ea* 
[ cap**, 'llnis died John Lisle, escj. son lo sir 
tlldham Liale of the Isle of Wight, a nM?mher 
1 €5* *' . ^ I r r ui, one of the council of 
i * 'd' tlie great seul, and one 

^ iri »av *i3i3u*tiv* lu the ioitl j»rtjwdciil in Uie 



said lord the king, within thiii ' i 

England to stir up and move, an' 

mout of our said \t}Tii the king, wutuu thai j 

kiogdoui of En^lanil to subvert, and our said 

lord Ibn king iWim the title, honour nrr' ^t— ^* 

name of the imperial i^rown of this I 

dom of England to depobe, cajit down, .....x ^.; 

high court of justice that was erected for ihe 
trial of the late king," 

Burnet, after mcntior'-^ *^ m?^>. 

ties of Kirk to the pan 

the savage and shamelt ;>^ ......,^\ ;<r.,, w. .; 

(for which, see vol. 9, pp. 056, 7.) wrlltrs timi 
of the proceedings against lady Lisle, atid 
those against Mrs. Gaunt. (See the next Caae.) 

** Two executions were of such an extraor- 
dinary nature, that they deserve a nit>*^ par* 
ticular recital. The king apprehended Uiai 
many of the prisoners had got into Londoo, 
and were concealed there. 8a he aaid, thoie 
who concealed them were the worst sort of 
traitors, who endeavoured to preserve such 
persons to a better time. lie had likewise a 
great mind to find out any among the rich 
merchants, who might atlbrd great compoai- 
tions to save tlieir lives : For though there 
waa much b!ood shed, there was little booty 
got to re%vard those who had served. U|Kpn 
tliis the king declared, he would sooiier 
ptirdou the rebels, than those who harbourt^ 
them. 

** There was in London one Oauntt a 
woman that was an anabaptist, ivho Kfient a 
great part of her hfe in acts of charity, visiting 
(he jails, and looking after the poor of what 
peiiuasion soevtr they were. One of the re- 
bells f<>und her out, and she harboured him in 
her house ; and was looking for an occosioa 
of sending him out of the kint^dom. Ma 
went about in the nij^t, and came to hear 
what the king had suid. So lie, by aa uw* 
heard of hasene*Ls» went and delivered himself, 
and acetified her that harboured him. 8he wet 
seized on, and tried. There was no witness to 
prove that she knew tliat the persou she bar* 
boured was a rebel, but he himself^ Her maid 
witnessed only, that he was entertained at ber 
house. But though Ihecrymewas ber bar- ^ 
bouring a Uaitor, and was pi-oved only by this < 
infamous witness, yet the judge charged ibt 
jury to bring her in guilty, prt^temling that tht 
maul was a second witness, though she knew 
nothing of that which was the criminal pari. 
!She was condemned, j^nd burnt, as the l^iw di^< 
rec't« in the case of women convict of treason. 
She died with a constancy, e^in ton chenrfuL 
ne^, I hat struck all that shw it. 8he «aid 
chanty was a part of lier religiiMi, as well as 
faith : Tins at worst was the fceiling an 
enemy : So she hoped she bad her rewTird with 
him, for whose «ake she did thiK ^ ' how 

unworthv fioever the periton wax, i o «# 

ill -I mT, tnrit: She- r- -;. r ': '• -ini had 
h") to be ih« 1 red by 

fiir ill uub iL'igQ J and tiiai iict ^uutTJug waa %« 



301] 



tn the county atbresaii]» well kiiovr* 
mg ooe John llicka, of Kein&baro, in lluil 
county of Somerset, clerk, to bea ^ikie traitor^] 
and aj a false traitor traitorously to ha?e con* i 
8pir«fl tiiul initt(^ne«j the death and destruction | 
of otir said lord the king, aud war, rebellion 3ii4l 
insurrection ogainst our said lord the kiu«j*pj 



L 



pTif#v and our said lovereigii lord the king 19 
death and final det^truction to bring' and put, 
the S8tli day of JuJy, in the finil year of the 
reign of our said lOTereign lord James the 
titecond by the grace of God of England, 
Scotlaud, Prance, and Irelaodf kingr, defender 
of the faithf &c. at the parish of EtUngham 

martyrdom for that religion which was fill ioTe. 
Pen the Uuaker told me, he saw her die. She 
laid the ttraw about Lcr for buraio^ ber sjiee- 
dily; and behaved herself in such a manner, 
that all the spectatort m felted in tears. 

** Tbe other execution was of a woman of 
peater oualit) ; Tbe lady Lisle. Her hus- 
band hull been a reijicidei was one of Crom- 
wetl'k lords, and waa called tbe lord Lisle, He 
went at the time of the restoration beyond 
•ea^ and lired at Lausaune, But three des- 
perate Irishmeo, hoping by such a service 
to Qidke their fortunes, went thither, and killed 
him as he was going" to church ; and being 
well mounted and ill pursued got into France- 
His lady was known lo be much affected with 
the kiug^i death;, and not easily reconciled to 
ber husband for the share he bad in it. 8he 
was a woman of g'-eat piety and charity. 
The night after the action, 'Hicks a violent 
preacher among the dissenters, and Nehharp, 
<ttme lo hw house. She knew Hicks, and 
treated bim civilly, not asking from whence 
they came. But Hicks told what brought 
thelii thither ; for they had been with the 
duke of Monmoutli. Upon which she went 
ant of the room immedialely, and ordered her 
chief servant to send an information concern- 
ing them to the next justice of peace, and in 
the mean wlide to suffer them to niake tlieir 
escape. But, bcfure this could be done, a 
parly cauie about the tiouse, and took both 
ihero, and her for harbonriog them, Jeflcrics 
revolved to make a sacrifice of her ; and ob- 
tained of the king- a promiiie tltat he would 
not pardon her. \V hith the kin^f owned to the 
•arl of Frifeisham, when he, upon the offer 
of I^QQQL it he could obtain her |*ard*in, went 
and begged it. 80 she wat brought to her 
trtall. No legal proof was brought, that she 
knew that tliey were rclwls : The names of the 
'|MsnPont found in lier houM^ wc^re iu no pro- 
cJamotion : 80 there ^um no notice given to be* 
ware of tlietrK Jcifeiie* affirmed to the jury 
Upon hiv honour, Uiut tlie persons had con- 
fi^aiied that I bey had bevn with the duke of 
Monmoulh, Thin u as the turning a witness 
againit her, ufWr which he ogght not to have 
judgtd in ihe umtter. And, tlionsli it svaa in- 
iijatd on» ai*a point of law, that till the persons 
liiuod in her houne wire coniicted, she could 
not be found guilty, \fet Jetfenes charged the 
jury io a most vioWni li.antuT to bring hrr iu 
^ailty. Ail the audienci» was Strang r I y affected 
' liith so anttinaJ a liebaviour in a judge. Only 
tlie p«nioii moflt concerned » the h.dy hersdr, 
who was then past seventy, v^aa so little movid 
_. 1* .i-„- ^i-^ .•_!* __i_ _ The jury brought 

iha judge tn grsat 
1 1 



•t ie, that the tcl) asleep, 
bar i« uot gmhy* Ikit 



fury sent them oat again* Yet I hey broughl 
her in a second time not guilty, Tlieti h«] 
seemed as in a transport of rage. - He upoa 
that threatened them with an attaint of jury» 
And they, overcome with fear, brought her in^ 
the third" time, guilty, Tbe kh»g would she»r 

00 other ihvour but that be clianged the sen- 
tence from burning to beheading. Hhe died 
with great constancy of niiud ; and expressed 
a joy that she thus suffered for an act of cha- 
rily and piety," 

Ralph, vol. 1, p. 889, seems to infer, froia 
the goodness of Mrs- Lisle^s defence, that tb«i 
anecdote of ber sleepingupon her trial is not true. 

Tha Procecilings in the West of England 
against the adherents of Monmouth^ of whicH 
this Trial of Mrs. L"is!e Rcems lo have been^ 
the commencement, are related by ihe dilfe^ 
rent historians with different degrees of circnm* 
stantiality, and more particularly in the '* Wes^ 
tern M arty rology" and the ** Lifeof Jefleries.** 
Tbe fnemis of James have endeavoured to pal- 
liate his guilt in these transactions, but I thinl^l 

1 have somewhere read, though I recollect not* 
distinctly where, that J efleries declared he hati 
been reprehended by king James for not excr? 
ciaing still greater severity* 

And Oldmixon tells us, that Rirke bern[ 
upbraided with hiscrueltv at this tiuie, jtroLest 
ed hiscomniission went farther, and that hehail 
puta restraint ^tn the power and the instructit 
which were given him, %'ol, 1, p. 71*5, Heti] 
also, to the like effect, Echard, Kennett, H. 
Coke, and Uapin, 

In what Blacpherson calls, " The Life 
James the Second written by himself " [; 
to which see, in this Collection, vol. 6, pp. ^97f. 
et set].] it is noticed, that imprudent ze^il or ok 
some «iiid avarice carried bim [Jefferiea 
beyond the terms of moderation and mercy, ani 
he drew great oblocjuy upon tlve king's clemeti* 
cy, not only in the number but in the manner^ 
loo, of several executions and in shewing mercyj 
to so few, oarticularly to [sucii is the esfpre^ 
sion] an om gentlewomnn one IMrs, Alice Lisle 
wiio WAS condemned and executed only for bar- 
b«ruring one flick and Nelstrop both ill mem 
enough indeed, and the latter in a prodama* 
tion ; but iia she pretendeil was ignorant of it, 
and therefore, perhaps, might sufft-r for a com- 
mon act of hospitahty ; but this severity was 
contrary to the king''*^ intentions.— The king 
questioneil the Chief Justice, but he pelliated 
his 8everitii?8 with the nretence of nece^sar^ 
juatfce, w hich the king Knew not hovr to con- 
tradict, sine* he had the pn cuution not only tO 
aend four other judges a«i his* ansistatita abmg 
with bioir but IHr. Fohejffii likewise ia <inahty 



mm 



A 



SOS] 



1 JABfES n. 



trkl of the Ladi/ AUce Lide, 



witliia this klogdom of Engfland traitorously to 
blife IfiFied and raised : Thou the said Alice 
Jiste nflerWBfdSf to wit, i!ie same QQth day o^' 
July, m the first year of tlie reigw of our said 

nf his Solicitor ; who being a known farourer 
of the preabyterian party he Uopcd would mo- 
derate tne Chief Justice's heat. This mnde the 
kimg' acquiesce iu what f^ad been done, though 
it was of great disservice to him at bottom. 
Tlie cruelties oi* Kirke were still more inexcusa- 
ble than the set erities of Jeflferies ; he caused 
many to be hnn^xl more out of a bloody dispO' 
sttioci and to satisfy his own brutal passions, 
than lov^e of iustioe or his master- s service. It it 
not improbablef that he had tttlten io his yiew to 
dt^w an odium on the kin^." Vol, 1, p. 145. 
And sir John Dalryraple (Memoirs of Great 
Britain and Ireland^ part 1, book 2, toK 1, 
]v« 8?t 4to ed. of 1771) amon^ other matter in 
tartennntion of James's share in the cmehies of 
this horrible expedition, says, '* Jl is certain 
that x^ hf^n lord keeper North made complaints 
4>f what Jefferies was doing, James gate or- 
ders to stop them'* [the cruelties I suppose] : 
and for this he cites the Life of lord tiuildibrd, or, 
as he calls him, North, p. 260. (Hume, too, on 
llie same authority insinuates the Mme matter.) 
In that work R. North expresses himself thus : 
*• After he [the duke of Monmouth] waa 
beaten at Scdg-more the lord chief justice Jef- 
feries performed his^emorable expedition in the 
Wcat, armed not only with a commission of 
Oyer tnd Terminer "but also an authority to 
command the tbrces in chief as g-eneral of 'the 
West, for so be was styled. Upon the news 
returned of his violent proceediug', hiK lordship 

ttbe lord keeper Guilford] saw the king- would 
ea s'reat sufferer thereby, and went directly to 
the luofif and moTed him to put a stop to* the 
fury which was iu no respect for liisi service, 
but in many respects for the eontmry. For 
though the executions were, by law, just, yet 
nerer were the deluded people all capitally pu- 
nished ; aud U would be accounted a camaire^ 
and not law, or justice ; and, thereupon, orders 
went to mitigate tlie proceeding ; but what ef- 
fect followed, I know not. I am sure of hiji 
lordship^s intercession to the king on this occa* 
siou, being told it, at the very time, by himself.'' 
lAfe of Lord Keeper Guilford, vol. 2, p* 200, 
aro ed> of 1808. 

Bui in tliis account there must, as it seems, 
be foine mistake. J t appears from North 'sown 
repreiGfilation, that very slionly niter the ao> 
cession of kiug Jamirs, the Lord Keepi*r icti 
into thesicknesa, which terminated in hia death, 
(vol. 2, p. 201 f) ; that at the time of the Coro- 
nation (April USd, 1(^5) he waa so ill, that ** his 
l>eariug^ the long fatigtie of thnt i-eremony and 
wiJk was neatly » wonder ;'* (p, '205,) that '* in 
Kia slate bin lordhhip took a resolution to quit 
the ^'at seal and iveat to tny lord Rochester 
Id i.^ ' ^rith his uis^ettty to accept it/' 
(j^ 1 **^ lord Hocbettter put hini otfj de- 

ft^i^ uiM lutdtbip might couUiiu« ke^ftft $ad 



sovereign lord the king that BOW U, at 
parinh of Elliogham aforesaid, in the ooi 
aforesaid, the said John Iljcks in Ifay dvi 
ing- bouse, situate at the parish afbresaid, i 

be a ficreeo to him iu staTing o6f tb« 1 
work" (p. 20T. 34f2) ; that the keeperl 
Bisted, and on June lltb, wrote to Ftochesterl 
letter, by means of which leave wan obtaiOti| 
that the keeper might retire with the seal iat0 
the country, in the hope of recoTeriug hit 
health against the naxt winter; and that r 
consequence of this perroisaioo he went fifit I 
Aatrop Weils, and from thence (after the 4* 
tors threw up aa Roger North expresses k) 
his house at Wroxton in Bedfordsihire, wb 
he continued in melancholy and fretful 
turity, till bis death in Heptember* (pp. $0T|| 
et seq. 343). 

Now this account seems to be utterly incon* 
sistent with what North relates of the 
keeper's going directly to the king and moviit 
him to put a stop to the fury and violent] 
ceediogs of Jeffenea. It appears that Jcl^ 
first 0]»cncd hts commission at WincK 
where Mrs. Lisle was tried oa the S7tli of ^ 
gust ; and I recollect not to have found 
Other person named as having been tried I 
upon that occasion. In the *^ Im^ 
History of the Life and Death of Georj 
JeflTefies late lord chancellour of £ugij 
(which from the Dedication to Jefll 
aud from the conciusion of the Life itself ad 
pearK to liave been writlea and probaby 
first published while Je/feries was in the 
Tower,) only Bill's. Lisle's case is menttonH an 
having been tried at Winchester, and 
said, ** their other prisoners were < 
Salisbury ; and tliis was the most reruarkuibltt 
thing at that assizes. From thence they sn 
forward ibr Salisbury, where were many priJ 
soners tljai h&d been picked up and downl' 
country then in the gaol, the which witli th 
thai wei-e brought from VVinion were ordered I 
to be carried to Dorchester, there not being- eri*] 
deuce enough to accomplish what was tlMHJ 
designed by my lord.'* With this 

Roger Coke, who mentions only 

LisTe as tried at Winchester, and then sayiJ 
'* Jenericfl and his brethren make haste la 
proceed in tlieir commission, and from Wio.^ 
Chester by Salisbury on the 3d of S 

arrive at Dorchester." KjCnn 

relating the conviction and execution ui 31 
Lisle at Winchester, ouuts all luentiou of Sslb 
bury, and merely says the judges went to 
Chester* and with tuis agrees Ecliard'fi reU«j 
tloD, Oldmix<m and Kapin are silent us to tbv 
successive stationn ai which Jtftcries and hif ' 
associates executt;d their commission. 

Ralph says *^ at Winchester he opcneil liis 
commission :'^ an<l (afler relating with aoant 
circumstautjality the case of Alice Lt8lr,«ml 



* CoUin«i says titat Lord Keeper G(«t|i|fi|i 
died on tSept^mber ^tb. 



cornify ttfhtesni*!^ ^riTctIv% wi<*knny at.«1 ] u[thf>!f!hjgf nu^ niuinrjiinuj:^ of the i^fort'Sfaid 

a'rtoron^ly »ti4't etitirlaiii, i'oi»Lru^ comfort, j John Hick^*, meat and diink M\io ihc wiiiJ 

and ibiil tli'iu the h9u\ John llirks then anti there tnaliciously imj 



ilicrc, for the coniforlmg^ 
^ <if N^khorp and Hicks) con- 



, . and from thctjce, 

. .^ .. ^ud h'm collertii*ti, to 

Dorchesler; when* Uv hointed hiK hlooity flag',, 
nd iiiatlc it ftr^i ftiipai-ent, Ibct lie li solved to 
[ire 00 qimrtcr.** 

T' thou|Bfh he nflervTurti s yv.-s -.umr 

of hidy Li.sta^s case, tooscly suys 
-o^au al DoiThi'sLer ; and this, ihough 
rirtly true, yet ruorars wiih il»c nther 
onit^A, Ihat at this pUce wn» bi^aiii that 
uhuit cifusion of blomi, of which North 
riles» that •* thoiig;h thp execiilioriH vrerr^ hy 
Iw, jusiT, vtt neter were the deluded peopte 
_3l capitally punisliod ; and it would lie ac- 
couutcd a cartiag«, luid not t»t«', or jtislice '* 

lu the ** frnparttal History of ilki- f^ifennd 
>eath of fii'or-jfe lord Jeft't-rit eir- 

gmstantially reliitolf that at I r the 

pnt»(iou wttis read on ThnrMUv tiie 2d of 
_ fcndipr^ the jndjifes attended cmirc:h on the 
it motTMocr, aiid in the eventng- the chief 
B'iiiee «jnve Ikji chftr«je ami then adjiHimed to 
|h Iiij^ mommg^, when a bill vfas foaad 

I !v persons charged for hig-h treason; 
lljd Will) ihi5 account Kulph ajLTrect, and nlso, 
to the arrival at Dorchester «m ihe ild of 



ptemher. U 
lojfcr Norths 

It 



having lihrid^ed 

lifil iiccotiut of the 

... . ' of the hod ke«jprr 

:i: to ih«* time of lii^ dratlij 

y^ary that I should he thiiy 

i» order lo n(\t!w that there must be 

kke in that sam<* hi*itorifln'» reprc- 

ntatiaii that ♦* upon the new* retnrijed ol" 

le/FfneM*» riolent proceeding: the lord kee[>er 

■rent directly to the kiti;^ and moved him to 

ut ft jitoji to the fury/* Vc. bsit it was perhaps 

jurlh while to i»hc\v that no such ** jj|}»t exe- 

Blions by law,'* am jtcordin^f lo North " might 

have 

' on 

iind 

I do 

M.- ,. .jr.vitied 

North V * Lite/ hnt 
Dl , lord ToL 4, p. 31*2, 

litiori ot 1 735) he i^ stated (o have ched on 
jp|Jtember ^tb» with which uccfiunt agrees 
'iilph« (?oL 1, p. B9d, Note) who tnulu not 
^otice that the lord keerftcr's repoetcd inttrr- 
is pt^otred by tltat fact to hate be«eti im*^ 

n tliii jiart of Rog^pr N I ■ ilion 

|ef« IS mdiiputuMy ^oti* '^\ii** 

probably of tin ij> 
VttttiLion, or a duU 

ptrfaapa with e^ual Uniuv i" oc vi|MwiU' 
VOL. XJ. 



truitorouvly didst tji»c and dehi'cr, and cuu^eto 

ed liow this writer, the lord keep»-r*ii hvothcr,-^ 
who arrojfntesi to hi mat If the character of a 
crilical hi*torinn, who as one of the kins^'s 
counstl hjid l>een actively .f*«»> ii .^ "1 Jq the 
coodnct of numerous stale ^ , (8ee 

in thiM Collection the cases ft . .. . .„ , voh 8, 
p. 550, of lord HuHsell, vol. 9, p. 096, of Sa- 
die verel and others, voL 10, p, 30.) 

Nay, in the prosecution of |ierRon« who were 
executed for their participation in these very 
trtrasons of Monmouth's adherents, (RCe in ihiB 
volume the Casus of Forntey, Ring; and G^mnt) 
— should he so ignorant as he telo* us, he was 
wheilier any ♦•(ftct had been produced by the 
or<f. ' '*! he would hare us believe were 
at I sion of the lord keeper issued by 

the «*iti- t-> >i<--^ ■' — -.'-^-t---' t' *c-t!V*rics, 

M«st certu - au jtuthor 

upon whom i* * c.... . ...... '.y be placed* 

I will take thi>i o]>porluiiity of correcting xn 
error into whjch J (alVer lialph) have been 
initled by him. In vol. 10, p. 23S, of thia 
Collection, is cited a pa«saj(e from Italph, al- 
tcdg^in|^,that the fust I'rotejit with Ileasous waa 
admitted in the House of Luixis upou the re* 
jcction of the impeachment of FitzharriH. 
Ralph asserts this on the oulhoritv of North, 
whose wordfi (Part 1, eh. 2, s. cliijare: 

*' The king, in IiIk dccluratioo of rcaitousi 3i^> 
blames the Comutons, nt the Oxford parlia- 
ment, for biiFio}^ im[i<ache«l a traitor (Fitz* 
ban is) only to take him out of the handsf of the 
laW| ufiJi-r be wa? ordered to be prosecuted. So 
it wtooci v^"'"' *»' <'ommous. The Lords^ by 
their or St him to be prosectit(<l at 

lav.% :ir til.' Murvrni hmeiii. !^o 

the I.t*rdN, maile 

a 1** ^ 4 the Com- 

moQf;. 1 hey tiiunder*^d in votes ag-aioi^t the 
Ltird*;, and w«re proceed in|f to demand can* 
and to urge reasons. The earl of 
ity, and those tn tiff* Ho»t<»? of lA^rrln 
With liiui, alter thi^ 
for the common lu 

desired, as t lit it 

enter a orptf u.i 

T. * JL liicy trryeil 

r also the reasons 

iiu were ' itU 

J.K. tht" * ^ 1©- 

I upon the court 
\tnliepHutod s&nO 



vote, 
farther, I 
of fturh iii' 
to aid the 1 ' 

their ij ii-ortv 



up 



lor.! 

TOJi larMoht'i. iltocook 

ht^ I rthepreit'^, .tirved, Hq| 
the jM>iui ui iidraittintf thtvc i < ;i^uu«, to he ca- 

terod^ occasioneil tnuch ilrhalc ; it Was tib* 

jected that it > ' ' " on 

one side to a ( mh 

'' -' .r Mil' ; ■■n^u, n uuu "* 

uf the <»rder I rid no' 
,.... .«^.uo3^ tbtt order Lad ; a« .. ^ 



307] 



1 JAMES II. 



Trial qfihe Ludy Alisfi lAde, 



ca» 



Le given and deliVered, against the duty of thy 
allegiadce, against the peace of onr sovereign 
lord tlie king that now is, his crown and dignity, 
and against the forno of the statute in that case 

made to shew to posterity, tliat the orders of 
the House were unreaseuable. But many 
lords thought it might be an useful privilege, 
and $0 it was carried for tlie reasons ; which 
was the beginning of protesting witli reasons 
in our days. ■ The author [Kennett] takes no 
notice of Uiis point of tlic reasons, which was 
the only matter considerable ; for what si!:;;ni- 
iies an ordinary protest, which every lord de- 
mands as he pleaseiK ? It is probable that no 
great court, was made by pushing these rea- 
sons ; but, that being a matter of form in the 
House of Peers, and that fell under their de- 
bate and decision, should be a reason to indict 
a peer of high treason, I think none, but the 
author, could affirm." 

But this is a gross and disgraceful misre- 
presentation. The admisKion of protests com- 
menced in the year 1641, and had been regn- 
iarly continued. Lord Clarendon (1 Hist, of 
the Rebellion, 407,) thus writes concerning 
•the commencement of tlic practice : 

<* When the House of Commons found that 
Done of their extraordinary ways would tho- 
roughly subdue the Hous« of Lords, but that, 
though they had very stu^!y champions there, 
the major part, albeit the bishops, and all the 
recusant loi'ds were driven from thence, still 
opposes] them, whereby neither the bill for the 
takinpr away the bishops' votes, nor about 
presKing, could pass, and that they psfrempto- 
rily still refuseo to join in the busiuess of tlie 
miliiia ; they found a new way, as unpractised 
and as unnatural as any of the Vortnc-r, tv hereby 
they would be sure to nave an influence iipun 
the^House of Peers. It is aa old nistom, and 
privilege of that House, that upon any solemn 
debate, whosoever is not salisfiid witii the con- 
clusiou and judgment of the House, may de- 
mand leave to enter his protestation, which 
must be gi anted. The onginal of this was in 
jealous times, when men desired, for avoiding 
the ill cmseouence of any act there, that their 
dicsr>ntg mignt ap]>ear ; and was verv seldom 
pi-actisod, but when they conceived religion, or 
the crown, tn*nched upon ; insomuch as you 
fihall not find, in the journals of many parlia- 
ments, one protestation #»ntered; and when 
there was any, there wfis no more in the re- 
cords, thnn after the rcso.ution of i^e Hor.sc is 
entered, thai such a lord tlesircd that his pro- 
testation or »'.i;srnt might be rntercd, and often- 
times w'lirn se\e»'al iJJive disvente*! from the 
general opinion, not above one or two have ci*- 
tLicd their piotestatlon. But since this par- 
liament, as they altered this custom fmin rases 
ol' high CiMiccmnicnt to the most trivial de- 
baters, the minor part ordinarily entering their 
protesUitiou, to the end that their opinions 



made and provided. How sa^'est tbou, ABcs 
Lisle, art thou Guilty of the high-treMon < — 
tained in this indictment or Not Guilty ? 
Lisle. Not Guilty. 



were known and published ; to tbey altmd 
the form, and instead of short fleneral entricfi 
caused the matter of debate to Ge summed op, 
and thereupon their protestatioD, that th^ 
were not to l»o answerable for any iDConvnu- 
ences or mischiefs, that should beial th« eom- 
monwealth by reason of diis or that resolutiqii. 
So that from an act for the particular indem- 
nity of the person that made it, it grew- some- 
times to he a reproaching and arraigning ths 
sense of the House by any iiictimiB number 
that disagreed. Then' because the House of 
Peers is a court of record, tbey concluded, thst 
any man upon any occasion might peruse the 
journals ; and so every night the House of 
Commons could see how the debates hud been 
managed and carried all the da3r, and take pub- 
lic notice, and mul^e use of it accordingly, 
which they could not do of those disoounes 
they received from their con6dent8 ; for sup* 
plying whereof this unjustifiable method wsi 
found out. For though it is a court of record, 
tlie hichcst court, and the acts and judgmeolf 
of pariiament are records, to which the snlgecl 
may upnn all occasions resort, yet they ongfail 
not to make use of that liberty in order (o 
question any vrords spoken, or acts done, and 
reiMembered there ; of which if the Lords are 
rot the only judjres, their privileges are rounb 
lesii than tlie Commons in truth have, and may 
justly claim." 

The following is the furst Protest which! 
have found in the Joimia^s : 



" Die Jovi«5, Scplerabris, 1641. It 
in debate roiicerning the. printmg and publish? 
incf of an order tonehing divine senioc ; it 
was resnhe^, ui»r)n tlie (picstioii, by the m^jor 
part, that this IJoos.? will vote the printiiig 
and ptih'ii ^hin? of tiie order made the 16th A 
Janunrv, 1640, concerning divine service, be- 
fore tins IFoiisr d.'*«;ircs a conference with tli^ 
House of f Mi.imcns coucerning that particulir. 

''I/iris dlssroting and maVing imotestatioQ 
again^J the vote, liav:nQf demanded their riffle 
of prcttc-Ktation, of tiie J louse, before the puttiiiff 
of the *|uestion so to do: Comes Bedfbi% 
Warwieke, Clare, Newport: Ds. IVhartQ^ 
Kymbolton. 

**T^)e Protestation: 

** Af>er the •'cbate Mi»ont the printing vbA 
poMii-bing of the order of the 16th of JanuaiX 
I'^i'.t, viz. * Tliat tee rlivio!} service be perfbmMf 
• t.< \y is :ippfMni<il by the acts of parliameBit 
of this vi:?\\w ; and t'.nt all sucii as shall dil« 
ni:ic r)rder shall be severely 
to law ^ and that all 



I * turb that '^liolesni^K 
I ' puni'shed, pocordlng 



i ' parsuns, vicarc, and curates, m their, aefsvil 
' parishes, shall forbctir to introduce any iftil 
, p er ceremonies, otherwise than those wbj *^ 
Bite, to them, whereby the good and bad fords i « are established by the laws of this land :* 



ivkight be taken notice of, and who were oppo- 



fotT High Tteamn* 

f tried'? 

f Xu/r, By God aod my country. 

fa of dr. God seed thee a ^Doddeliverftoce. 

ben Proclanmtioti was maite for the jurora 

bpdiiti^llcd to try the issue between tmt so* 

terpign lord the king, and the prisoner at the 

teiriL' ptit to the t|iiesti(>ri, whei)jer the Lordu 
woiikl order thut it iihuuld he voted, tliat the 
soiift order of the 16Ui of Jaauary should he 
jjrinlL'd and uublished, h^'fore a coiiff rence du- 
«ired %vith the House of Comnions ahout it ; 
\\,K uli.vHf niiiH^ r-rf> untlerwriueii, did dis- 
fore Ihe |»uttiag' of the 
in' ri^'ht uf |ir*>l«»Uitiott, 
d»d aciordiujjHy make our protestation, that 
We heUi it lU and riect"«sary to hiive the con* 
aeol of the [Iou»«e of Commons in lliose thioj|S 
which concern mj uearty the(|iiiet and govern- 
ment of tlk3 church ; and therefore we desired 
to have a roriforpnce with the House of Com- 

»mv ' ' order wcte piiote*! 

jbr lUy the Mouse of 

^' -ht to us, aad 

d< unto« certain 

vui; > ,., ,,ir_.,,«, ^lUMiii in or ahout 

the worsliip of < practised in tltisd 

kinodoni. iviLli.iuL .;.L;>riawj and ibere- 

< s of ttie dauf^eirs and in* 
^ht arise hy x\te printintj 
«t 'j^ oi the said order of the 16th of 

Jii! _ biadiu^ to the whole kinj^dom, 

without tltrbiring ttie consent of the House of 
Cummons, we do protect our di^^asiients to tlii^ 
vote, and do thus enter it a» aforewaid : Comes 
B<»dfonl, Warwick^, Clare^ Newport ; Ds. 
Wbvton, RimhoUun.** 

Loni Moimtmorres (HiM. of the Pai-liaineat 
of Ireland, ?ol. I, p. 402,) says, that the fiiiit 

KntMst w ilh reftfloos in tbi? Hoii«e of Lords of 
etandy oocura under dat^ ftk<{»l«mh«r 1st, 

Sir Johd Da]rympl€ at the end of part 1, 
book ^, of hiii Memoirs, 4to edition ol 1771, 
tells lis that the kjng*s enemies reported tliat 
be Ctidedthis ctreuit ** Jcffreys's Campaign." 
^f the contents of sir John's Appendixs:i» are 
Duiuet he needed not to rest the fact that 
Tmmes gave this appellation to JeflVeys^H 
btooity pro^ieas, for he has inserted in his Ap- 
p< f ' ititrt 1, two letters from kiu^ James 

V> of Orange^ one dated Sejitemher, 

lo I - lii .; i *! Tause, *Lord chief J4n»tice 

* iH n. ikiii- ^'^n in ibe west ,* and 
Uie "tlkrr, o-..^,j Lmc <;Hhof the same month^ 
coiit.iriiii;'^'^ these exprt^s^ions, * Lord chief jus- 
« Lrrc l« '- iliin.\t limit* Wm camrmlgn. He hiusk 

* a I r t > ^tveraJ ij u uil re« U, some 

* ot «ii i I V executed, more are to 

* be, and ihe rent sent to the plutiLUiutiei/ Ac- 
rordiny-Iy, in the suhsetpient fJvo e<huon of the 
M r John KnyHof this report, that it 
1^ ' The hrutality of caiUug^ Jef- 



A. D. 168S. 

bar, to appear. And lite prisoner desiring, b j 
roasoa ut liei' m^ Hud iiifirmities (^>ein^ lliif^ 
of ht I lo friends of her's might l>e al^l 

loweu iiy her, and inform her of wha|j 

pflicseilin the court ; one Matthew Browne wa 
named, and allowed of by the i-oiirt to give he 
all usmtame tinit he could in that mattctt'l 
Then the names of the jurors were called *»Tei^| 

wbitt eitennated hy a fact related by liistorian 
that the chief justice had upon that occasloa j 
mtlitiiry connnisdion* 8ee Ralph, 8tt8« 

Tn the ** (m partial Histonr of ,thc Life anfl 
Death of George Lord Jenre^'s,^* it is fuutt^l 
that • he was Jieutenaiit-getieral, and gav 

* daily the word and orders for going 

* rounds,^ &c. It is moreover observahle^ tha 
in the very paragraph to which sir John Dal<*J 
rymple reiers as his authority for the storj^ 
that James upon the interposition of the lorij 
keeper, checked the carna^ of JeflTreys, Nort&| 
says, that ' the chief justice for this expeditlo 
*• was anned not only with a cotnmisinQii 

* Oyer and Terminer, but also an authority ta 

* coram<md the forces in chief, as geocral < ^ 
' the west, for so he was styled.* Thia unio 
of military and judicial power had been in tht 
preceding year practiaed tn Scotland, as ap^l 
pears by the fouowjng passage in Fountain* 
hall : ** Dec. 4, 1684. The privy council 
grants a commission of justiciary to tieutenaiKH 
geiitral Dnimmond, to take a part of the forcefl 
with him to the western shires, and to hang, J 
draw, and quarter, by the military law, all thatj 
refuHC to own the "kinaf's authority." S^I 
also, 2 Wodrow, 401. 2 Crookshani, 269/ 

In the " Impartial History of the Lite and. 
Death of George LonI Jertreys," are giTeilj 
the namei of two hundred and iifty one per»j 
sons, who were condemned and sulfered in th^ 
west, in the year 1085, under his sentence. 

The following passage in Wodrow, (vol, 9^^ 
p. 5M* ^ rf»l.«t^^ t*» l*»^♦r"V^ : •« I shall shut 1 
my a [1684], by noticin 

the tiA , ''* tffixt our maoageri 

[he is s|ieakiiigot ih*' pr!*y iotmcit] at Edii»* 
burgh, oml hlootly Jelf ley sin Eu;;lnnd. birdfj 
of a fealhec Hock t<i;^ether. Only Jeffreys wii#4 
tied down by the Ei^ghsh laws, fur lt'«^ san«T 
guinary than ours at this time. However, h^ j 
went as far ns hf^ could to stretch the laws^I 
and sooic t ikI oficrs hui service to onfi 

people at t Aeconlingly^Dec ttrdgl 

tlie a<lvocsiiL' te^iresentirig huw ready judj^i 
Jetrreys was to join wuli tlic ooimciriiir bup<^ j 



port of rVr-:- •" — t* • 
turn i 

raenti. .,i^ ^^ ;.-„^,. ;.. 
ibin kingdom, m - 
aifufu^t ikucli pertiur 
th the inil 


:tiendfd to 
\l reseut- 

-net' 


ti ^ 4 use ar»pn I 

Mid iugUivc S 

curely on the S. 

be appointed to tu^utt^ lh«4u/* 


MtUi iit skiJi 



SllJ 



1 JAMES II. 



and the appearance recorded : And it' being: a 
cause of f^reat expectation nnd moment, the 
lord chief justice ordered tlie sheriiT to tuke 
care, that a very siihst.'tntial jury should be re- 
turned, of the besL quality in the county. 

Then Proclatxiation for Information and Evi- 
dence was made in uiiual manner, and the pri- 
soner was liid to look to her chalieuges, and tlie 
jury Wiks sworn in this order. 

Sworn: (5abriei Whistler, Henry Daw ley, 
Francis IVIorley, Francis Pawlett, Richard 
Ciodfrcy, Thomas Dowse, Dutton CSiftbrd, 
esquires. — Challenjjfod : Uobert Barton, God- 
sou Pen ton, Williuui Taylor, Thomas V.- a veil, 
Anthony Yalden. — Sworn: John Ca<;er. — 
Challeu^i^ctl : Robert Forder, I'homjs Lloyd, 

Thomas Philip Riidsby. — Sworn : Tuo- 

mas ("rop, Richard S-.iatt. — Challeni^ed : Law- 
rence Kerby, .lohn Fletcher, ^Villiam Clarke, 
John liaily, Richard Sutton, Richard Snatt, 
Robert Burjjess.— Sworn : Matthew Webber. 
— Challentred : Georjje Prince, Stephen Steele, 
Thomas Merrot. — Sworn : John Feilder. 

So the twelve sworn were these : Gabriel 
Whistler, Henry Dawley, Franci:i 3Iorley, 
Francis Powlet, Richard Godfrey, Thomas 
Dowse, Dutton Giflbrd, John Ca^er, Thomas 
Crop, iiichard Suatt, Matthew W^ebber, John 
Feihier. 

CL of Ar. Alice Lisle, hold up thy hand. 
You Gentlemen of the Jury that are sworn, 
look upon the prisoner and hearken to her 
charge : She stands indicted by the name of 
Alice Lisle, &c. Upon this indictment she 
hath b€>en .irraigiie.!, and upon that arraig^imf'nt 
fihe h.is pleaded thereunto, not <;uilty ; and 
for her trial lies put herself upon God and the 
country, w hicli country \ 'ai :uc ; Your ch »r«^e 
is to cnqaire, ^ilu-tUji* she he j;uil;v «»t tlie 
hii^li treason v. hcrtol'sli^ is iij'.luicil in uMUiier 
aiifl form as s>ho slaiius in ii(.'t:.'d, . r not i^ui i j : 
If you find hcririiilty, \i.ii areiouiquii-f wIkU 
priHxis nr chattels, lands or trutnients vXw had 
at th': ;Mne ut tlii< I:iirli.treav>!i cotnuiitted, or 
at any time since : if you liml her not ^uiit) *, 
\ou aieto ctiiiuirir whether ^he did iiy tor it ; 
if you fiod toUt she .iid tly lor it, >o(i ar*; to 
( ntpiin^ \\\iw\. ;^oods or 4-hattel.Shhe had at the 
tiuu'otthnli^iiK as ii'voii had found her ^-iiilly. 
If you fnul iitr not^uu.\, nor tliat she did lly 
lor it, \ou arc to say sii, and uo more, and 
hear your evidence. 

Mp. Mujili/. "May it please your lordship, 
onti >ou ^Tnilcnien th t are sworn, Tins is an 
indictment of hij^h-trcason asfninst Alie»» Lisle, 
the prisoner at tlie bar ; and the indictment sets 
forth, ilial she, as a fiUe traitor apfainst our 
sovcroiijn lord kiujj James the second, her 
8upr(*nrif; and natural lord, not havin;^' the ft'ar 
of God in In r iieart, nor rusfardinif the duly nf 
her alltLTi.'uce, hut heint^f moved and seduced 
bv the instillation oi' the devil, and witliilrawJDg 
tfie love ami iruc obedience which she owed to 
him as a sovereiirn, and intending, as well as 
in k«r l%V| tt disturb tlie peace of &e kingdoni, 



TnatiJ'ihfi Lady AUce Li.'lf, 



[3I« 



and to depose the kin^ anu put him to death, 
the Q?A\\ flay of July, in the first ycarot tlui 
KJni>', W' II knowing one John Jiicks*, late of 



* ** This Hic.k«i way a dissent iii^ minister, and 
hanired afterwani'* at Giaswnbury." Former 
Kdiiion. In the " Western Mailyroloj^y, or 
Bloody Assizes," are printeil some Letters, . 
which' were writien by Hicks shortly before 
his Itlxrciition ; and also his D3'ing Speech as 
follows: 

<' 1 siipnoKC the spectat'^rs here present may 
expec^ 1 should s;)eak something l>eloi*e I leave 
this san«^uinary stac^'e and passage tlinm^h mv 
blood V si.'tlV.riii^K, by which my immortal spirit 
will he spi-edily transpoited into an invisible 
and eteniul world, and I conclude that they 
have diflerent resentments hereof. Some re- 
sent them with much joy, high exultation and 
triumph, oth(?rr> with equal grief and sorrow; 
that to the o\}o. I nm a most pleasant spectacle, 
that the\ behold me with hii;-h cr-niplacency 
and (!elii>!il ; but to the other J am a mournful 
and unpleasant one, and tliey behold me with 
no less pity and compassion. Concerninijp the 
first, I can siiy, 1 freely and heartily forgive 
them, and livartily pray that God would most 
mercifully and graciously prevent their mouni- 
in<; through misery, not only here, hut eter- 
nally hereafter. Concerning the other, I will 
sa\', wc(*p for your own sins, and for the sins 
of the nation, for the highest rebellions that 
ever were committed^ against the ^reat and 
eternal God; lament biiterly for those sins 
that have Iieui the meritorious cause of the 
Inte terrible judgment, that which 1 fear will 
cause Goil to break in upon this Dutioo with 
an overnwwi'.ii; delugr* of jtidgments, which 
arc far m>>.e Liemrndous and difadfut. As for 
syr.ii»aihi/incr ^vith me, in driiiking this bitter 
cup appointed for ine, I. return you most hum- 
b\v and heariy thanks, earnestly desiringf God 
to come unto you, and (ill your souls with all 
riL-iLsiial (u:ir.ui!-j and spiritual coDsolatioiuw 
SiMit'thiig I ir.ustvay to piir^e and clear. roy« 
M 1: li'o:ii a fui>e acrusuLi:iu laiil to my chari{e; 
us (hat I was (nsrat^ed with colonel Blood lA 
rcs'.-uin.f lo!. 3jaiii>ii n-.ir Iloston, when he was 
f-ent down with a •^uaid from Jjondon to \'ork, 
to Ikj tried tor hij'h trerivon; and that I was 
t!)e man that killed the harlier of that city; 
and th:it al.^ ) I was wiih him wh{.'n hef^tolethe 
crown. Now as I am a dying man, and upOD 
the VI TV brink of a very stupendous etrrnity, (the 
truth and reality w h<' leof I firmly believe) 
without any rrservatioii or tiie least cqnivocm- 
tion, I do declare in the presence of the aO« 
seeing God, that impartial jtulgc, licfiire whom 
in a very little time I must appear, 1 nevemw 
nor conversed with Mr. Thomas Bkiod, -from 
1G!i6, till after he stole the crown, which wit 
in 1671 or 1672, nor was ever engaged wilb 
him in any of his trea<:onable plots or practiom, 
Kt is true, I being involved in great trouble of 
another nature, ^of which I have given to the 
world a Narrative, and which is notoriooslj 
known in the country where 1 thein lived,' bf 



' JtrJI^^Tftmm, 



A.D. 168ff. 



pT* 



IIP ''---:*- ^-^ t clerk, to I traitorously entertain, ooncciil, und a>:: 

|ti nar And tnc^itj .mtin Hic*^, und fur ins ruaitit' 

jjru.ii^ -j.i >v,...;, -i.T i.iw iiua at I'J- I atifl cotufort tlj«n g'ftve hiiii iiKiit nml ti* 
^Imai 111 liiis count) , i\\ tier tin'^-Jtitiir-liouM TXiis ik Inid to be aipiiuiil the dut^ of \ntt ^\k 



Muc tU&L were iTternipn to me ior my [iresch- 
l) 1 %vas< pt^iKuadcd to ap^ly luywtlf lu Mr. 
Himid, to procure liy bin iiittirtTesaioii his tate 
lijciity^s g-ificmu!i tWvnnr : Accorditi^^ly lie 
Niuj^ht itie into hi$rt>\a! prusenct^ ; while ] 
bas thtfre, \\y% majesty fiirrifd it \*ith ifrcftt 
emeiicVf wiiliout i-xjirei^iii^- one v/wni of tliat 
hicK I am now chargctl with. Mr. Bloud 
Outtiitted Willi liis majf^^} ^ ' ' '--(u 1 

pd ; thru lie told me thut I t^c a 

irdoOf wliif li 1- fiid tliiiMKMi <\ ^in u|fL of, 
powitig^ it would free luc f Voin all pennltieK and 
DtiLles thut I wai! obnoxiot'-' *«» ■'"' "' ' •»'• 
cutoned tii me by my not) 
^^i^iiig hi m to takeout In , ^ , 

e, ^ Thit be got it ottt with scvcrai olbcrs 
dlixit bud Jieen t'lifjagcd wi^b \n\\\ m iever.it 
';reasunal>le ditiitriissind iu tions ;* atx^bicbl 
vuii tJ'oublcd, s)i|>poMU|^it ini\(bt be iimputed lo 
' tbereby ; yet, liod knows, I bave cilfcO 
ipoe rdlecled upott it witb ^te^X regret and 
'- ^olbdaotino. if Mr. Blood did iniorin tJie 
iking^to make himieiribe more coniider- 
H09 and to ^ ' ' ^ . be 

lid %a &r .i);bt 

Bi! - toy 

, or 
tiiin 
^of bis tri'a&iiinablt; atttttiptij ; i UtAV op- 
I Gud, a§ a '^ii^fT ui^in, cimccrninic it^ 
|at he bath done me itn irreparable vtxong'. 
[also in (be same rnsinner do ileclarei that I 
as> n^«'eni»^g«:'d wiib any parly «i plotting- 
• desiguiojj* or i-outriviJtif nny trcaiwn or re- 
elbou9i^in<«t tbela^' ^ particularly* 

bat f wiuftfitoi^^iber i i-il in, and un- 

*> hat 111 ^lii^J) iitylonl Russell 
d. and aii mucb a Ktruii^er to 
ui'v J * Aod v*'bereiis 

it iJi k aouton I (ler- 

fliade^ii iu-r fill iijLKjvi .<i liiiiiiutlk to a&sttiote 
%K title ot kin;:^; I do once more soleiiml) de- 
jiare, lliat I -vaw not »!''• ^ "i .iul.- n-.r had 
ny can%t'»iw' uub bii ton- 

pallet, whicli wan I be 

, and several iUy» utter he hnd been nt 
UDlon- And it it ds (laltie tlmt 1 rid lo and 
in lb<» WcHt to Mir up nml prrjiuade men lo 
» into bis army, and reWl ug'tiinst bik present 
ftajtMtv ; tor I was iii the east -c:t>uutiy when 
l^c duke bodetl, »n«l from (hence I went di- 
al 8bii»tt>n-MalM, 
I me from tbene«. 
• ■ rung 

(lau 
r^u^^on, 
11 t word of 

bkcwjse 
I (be doc- 
„ Ml I bate 
free choice of, and b»«vi^ 



\ him II \ 
* timn at I 
Kitberto as 1 m 
profcssinif the • 
eaJlcHl li*. 
mided un the 

Lliil iihlrli I 

I be. 

inc *'i 
wle a re:i 



iiQi only S45 it protcsits 



a|y^ainst all I'ajjfan and I^Iabometatirelt^ion, but 
OkT^inhl tbL-C4^rrnptiouof the Chriiitian; nod 1 
humbly and earnestly pray lo God I bat by bin 
infii^ite wiidom and almi^bty powei% he wiU 
prevent not tinly the utter eilirpalion but lU ' 
miniiUoii ihet^'ot, by the height and inllueiu 
of what in contrary thereto ; and for lb>it emt 
the Lord make tiie professors of it to live Uji 
more to if ' ' rules, and briinL,' their 

hearts a n^, i Hire under tbe^^ov ern- 

ment and jr.v*t t m luv -iime. 1 diealsu own- 
intf my ministry, non-conformilVv iur which i 
w .vr, ."tHT, ri^.i r.. ,,.n-i. attd which doth itow 
iiixtl mercy to be ma- 
vne: For as I chose 
It not cunKtraiuedly^ so I appeal to God ts a 
dy infr man, not inoved from »allenness or hu- 
mour^ or factions temiwr, or erroneous prmei- 
pies of education, ortrom secular interests* or 
worldly udvantni^, but clearly frotn the ilic- 
taleii of my uwn cousciencc, and as I jud^e<) it 
to be the cause of God^ and to have more of 
divine tmtli in it than that which is conlrary 
thereto ; so now I see no cause to repent uf it, 
nor to recede fn>m it ; not qtie«tionin|{ but God 
will own it at the last jndtjmeut-day. If no more 
httil been reipiired alter the late kin;^'i restora- 
tion to qualify ministers for public preaching, 
than was after the tirst Restoration from th# 
time of Charles tlie Ist, probably I might 
have satisfied my self therewith, and notscrufded 
conformity thereto ; but the terms and con- 
ditions thereof, by a particular law made in 
1663, betntc not only new, but so strict and se- 
vere, that I could never have satisfaction in 
ray own conscience, after all endeavours used 
lor a conmhunce thcrewiih» and a conformity 
thereto : To say nothini^ of Ih^- covenant, which 
I never look, but lbe4'i\in^ my asscntand con- 
sent* have been too di^hciiTtatid bard for me to 
comply with. And 1 icry wfU remember, 
that about 14 y^^rs ayi^o, enteiing into a dis* 
course vrith ^]\'I Patrick lleldoic, an Irishman, 
who wa5 contemporary witti me in Dublin, 
ooiici iiiin^Trmiormity, whicli he much cndca- 
?oi!i lue to ; { urged the seieiity 

of ii. d conditions again Kt it^ and 

afler some debates and reiiotia with bim, T 
told bim I did believe they were contrived aud 
dL'Ht^nc'il on purpOHP lo prevent our public 
preaching, and io keep us out of the church ; 
to which he io. \ replied, * He ludged 

Mt was so : y , a bi*ibop in 1 rebuilt 

* (whose uaujr i n;i^e forgot) told uie the 

* very same/ 

cou«pj«:r 's e 

that did il , . . . ., ,,.,., A 

disputes, and mo!«it ^ ilebatet, and ^io* 

lent contests belwtt . >iiist au<f nnii* on- 

formifit, iheve are of both [Kirties >i •- 

tied tu hetveu hercafWr. Accord itc 



315] 



1 JAMES II 



ipance, agfarnst the peace of the king, bis 
crovrn aod dignity, and n«^ainst the fond of the 
statute ia that case inaue uud provided : To 
she has pleaded not if uilty ; it we prove thii 
fact, you must tind lier guilty. 



Triil of the Lady AHas Lisle, [SlS 

Mr. PoUerfen. May it pleaie yonr lorMiifr, 
and you gvnUemen of thejury, 1 am of counwl 
iu this case tor the king, 'fbe Drisun%r that 
stands now at the bar, Alice Lisle, is the wi- 
dow of one lisle, who was in his lit^ timefluf- 



29ih article of tlie church of Kojo^and, a visible 
church is a congregation of faithful men, in 
tlieivhich the pure word of God is preached, 
the Sacraments of the Lord duly adminislered, 
according to Christ's ordinance, and all those 
things that of necessity are requisite and ne- 
cessary to salvation ; so with such a church 
have I held the most intimate communion, and 
with such .(did 1 live) could hold it : I would 
not therefore be so incorporated with any 
eh arch, as to exclude me from, and render me 
incapable of holding communion with other 
churches : 1 was never strongly bound up to 
any form of ecclesiastical government, but that 
nnder which a pure aud undefiled religion doth 
flourish, and tiiat which contains and really 
practises holiness, and a<lvances the kingdom 
of God ill the world; that can I approve of, 
aud willingly live under, were i to live. 

** I did approve of the ancient and present 
form uf civil gov«'nifnent, English monarchy 
1 am fully satisfied with, and do also declare, 
that it is not warrantable lor any subject to take 
up anns against, and resist their lawful so- 
▼ei tti^us aud rightful princes : And therefore 
hail I not iieeu convinced by several things that 
I have n*ail and heard to believe that ihe 
latednke of Monmouth was the legitimate 
•on of his father Charles the 2Hd, I had never 

f>ue into his army, judging that without this 
could not be freed from the guilt of lebellion, 
which I always resolved to keep myself clear 
from : And though liis father deni^ he was 
inarri'.Ml to his mother, I thought it might be 
answered with this ; that kings and princes, 
for state- reasons, niien cannot be fathomcid by 
their suiijects, affirming and denying thiut^ 
which otherwise they would not do, and make 
even their natili^l alfections to truckle and 
•tooj) thereto. I exhort all to abhor all trea- 
sonable plots, and pretences « of all rebel- 
lion, with tlie highest detestation and* to 
take the plain text of sacred teriptnre to 
walk by, in honouring and obeying and living 
m subjection to rightful kings, and not readily 
to receive, or suddenly to be impressed with 
evil it^ ports and defamations of theilft, also not 
rasiily to bt^ propagators of tite saihe. 

** i desire Goil to forgive all tiiy enemit-s, and 
to give me au heart to forgive mm, which are 
many, some mighty, and aU most maliciour: 
Particularly Barter of Lisnsi, who betrayed 
me, and proved such a traitor to James duke 
of Monmouth his old and intimate fVtend. I 
am grievbfislv aifitcted tlut I should' proVe the 
occasion of the great surerings of so many 
persons and families : bot tliis hath fallen under 
the just and wise ordeting of Divine ProvideoGe, 
M David's going to Abimelech, when he 
proved the oocaskm of tHe death of all theper- 
f isd ddiiMB itf tlw Gpy : 



But who shall say unto Ood, What doest thou P 
The care of my most dear wife and a great 
many children, I cast noon Ood, who I nopa 
will be better than the best of husbands unttf 
her, and the best of fathers unto them : God 
knows liow just and legal right my wif^bath 
unto her estate ; to him therefore I commit hei^j 
to defend ber from the violence and oppression 
of men, particularly from a mdst inharoant 
and unnatural brother : But no wonder if be 
will lay violent hands Upon his lister's es- 
tate, that hath sO often laid them on his 
own father. 1 die a deeply humbled; self- 
judging, and self-oondemnuig sinner, loetii^ 
ing and abhorring my many and great 
iniquities, and iil'yself for them, earnestly 
desirinif full redemption from the bonds of 
corruption, under which 1 have groaned so 
many years, longing for a most perfect con- 
formity to the most holy and glorious God, the 
only infinite pure Being : thirsting for a perfect 
diffusion- of his grace through all the powera 
and faculties of my soul, panting after peifecl 
spiritual life and liberty, and a consutnmate 
love to my deareit Jesus, who is an all^com^- 
prehensive good, and to lie satisfied withliB 
love forever: A vigorous and vehement seal 
for the ProtestHnt religion, with a belief I had of 
the duke's legitimacy, hath involved me iaMk 
ignominious death ; yet blessed be God, that by 
sincere repentance and true faith in toe 
blood of Jesus, there is a passage f\tem h 
to a glorious eternal life, and from theie 
bitter sorrows to the fulness of svNseCeA 
joys that are in his presence, and frotn 
these sharp bodily pains to those most pul^ 
pleasures that are at his right hand fbtr eirer^ 
more : And blessed be God, that such a dealb 
as this cannot prevent and hinder Chrial'i 
changbg of my vile body, and fashiohin^ it 
like his glorious Body, in the general Resur- 
rection-Day. 

** f am now going into that world, ' Where 
many dark things shall be made perfectly mil- 
nil est and clcar,and many doubtful things fallj 
resolved, and a plenary satisfaction given' coa- 
ceming them ; all disputes and mistakes con- 
cerning treason, rebellion, and schism, shall b^ 
at an end, and cease for ever : Many things 
ttiat are innocent, laivfiil, and laudable, whim 
have foul marks and black characters atomiit 
and fixt upon them here, they shall be petf^ 
feclly puritied and fully cleansed from there: 
whereat one view more shall be known of tfanu^ 
than by all Wran^ing debates and' eager dls^ 
putes, or by reading all polemical boon cotf- ' 
ceming them here. I greatly deplore and btf- 
wail the greedy appetite and insatiable thfasL 
that prolMsing PMestants have after thebkRMJ 
of their brethreo, and the high pleasara ife^ 
tidte k the cffumd OAeofT But wfaK «■ 



•»} 



fat fBgt TVftwcMi 



A. n. 1685. 



w 



TT,. 



Lcf , Jl'illi ^: . 

OQft ihxLt t' 



T-r -nr nf the greatt' " , ^ . , -^ ..-•.,., 

T he t^'Ms ]M 

i+iii iiiti persuade aiai t-AinMi mmum levui j>(»( 

'^(m^y that happened to have tiie mistbrtuii 

I vf (leing taJteii prisoners by that rclielliuu 



Ufit liifii <h). vvlifti iJu-f Tiff* ritlivr iurllruillv 



' rated wilii it, 
» the hfe and 
n'ui aud fK*wer, anil spade 
■t iherfiinto P 



ire and pi 
;-..ich I TV " 

t oidv (d « 



n I 

news <d Christ U 



t , of tiie rtghieou»* 

j ' , and he hath hecn 

ttiade muct) more dvar iuiJ prftciotis to my soul„ 
than ever he iva.s hf^fnre. Herehy my aoul 
baih l»wn m ' m the dross of sen- 

■ualitv» wro e heavenly frame, 

raisecf uu to :r m-iur pitdi of spirilualily ; 
liOrehy l am made more meek and fiuDihle, 
^i„i.: ,...1... ,..,... I... :...tK. * .1,,.^^ ,|,3t 

<3'i nt: So 

t" « ii isdy and 

li le a far 

>\' glory, 

H better 

i to be a 

g-iHce ant I 



iU 



or, and far 

Mini*'. iXy U 
•trcnslh of God, I will not purchuse my Jii'c by 
the Jt-^Ut and blood of my IVutt-MiAnt tirethren, 
but chuse la die rathm- than be a l^etrayf^r of 
thr :*'-'< V ' ■ ' ' thlH 

I f>e 

€i 

liv 

lect hi io< 

mutatii'^ , h 

|i> dio^ tbati if J [vMi 
cumherrd wriili infiirr 
stoop undi^r 

ivhuh i 
fttul tn 
witli lis 
Iijglih 

I Olllfik-n 

Uie difiiciilt s 

t^'f" * ^' • 111- p - - 

the bla* 



most free and ppwerfuJ grace^ trut fklih ItA 
measure hath changed the difi ' 

ility an<l easiness of dying ; It 1 v. 

much subdued the reluctancy of my wi 
ngain'^t it ; fur it makes future'tJiings present^ 
and » ^ungTi viable, and doth rtaliiu 

and ' 1: ihft »«me 10 me ^ and nn li« 

hiy^ ' ' ,. - - ^ 

iiciM 
i.t... ' 

The world is crucified to meb 
,..,,» ,., V.J, vurUl, and ail ihe most pliuyaiil 
and defij^hitul objects therein, all Hnite» Mm 
crtaurrs, comfuptai and enjoyuieut's, are bt-- 
ite and Hmalf, des^plcuhle and cotiJ 
^ , ''1 nie^ in comparisou 1 hereof. b*^i(i^ 

1 n lin k tt I y eon timed and cum prebend* : 1 

vShall my soul elasp and cling nboiit r • j 

tal and peiishing thiucs ? hhaW it citrate mM 
be glued to thtroi' Shall it be confined unif' 
captivated into w hat Is kept in the narmH- bount)| 
of lime, and In this louer woHd f Shall it car-?^ 
neslJy desire and thirst lor muddy strwuna^ 
yea rivers of fleah- pleasing good J when bv aH 
eye of faith 1 can look into the indeficienu iir 
exhaustible, purest fountain j tiie tmmen* 
immeuiiijruie ocean «f divine g\>od ; hoping ^ 
drink thereof, to itwim and bRthe my ^ou^ 
therein fur ever and cvcsr? And when'i *Hin-l 
aider how long my k&r^ have beeii bound i»n 
and tied to tliPir itiiiiinerable and horrid oatlw 
and curses! and mine eyes to 

the proph M .,y of God fand wl 

1 beheld hu<:h sai o\erUoWing flood of nhj 
pixxiigions impiety, f nch an inundation of tuo,p 
monstrous iniquity, and ao murh hell upoq 
earth, and that there i& so much d^cay of holr 
zeal, and true piety, and tlirisiian religic 
amtiogst the profeseiorfl of it, Kuch seetuii 
incurable breachts and djvieions, inch e 
pinng love, and chanty, tmtl partings among 
them ; it hath powtrf-i ."U...,..„, . ; . , ^^.^Jj 
; ucoficile it more to ^,[Q 

M V 1 1 y , an d fro ro chu . , , , , . ,j 

world, and to take up ^i\ hat vibifl 

is iinst'tn and i\nm*\ n (,", : ;^ ^[^ji \^^ ^ 

i holiiM«ai hmtL 

■'h ull uiiweftria^u 

uipll 

inacc tmd iMomv&f I 

t»r aiig#]«, Md tlie 1^.,.,^^ 

(ill fa^teoMl log«UMr 

nteri-npterl rhnin^of 



_ , 111" J II lumpiiiii]^ 

♦T. Th*^ i^ouaid« 



319] 



1 JAMES ir. 



Trial of the Lady Alice Lisle, 



\m 



crew, to (}uit their dutv and allegiance to the 
king', their sovereign lord, and hecnnie par- 
takers M'ilh them and the rest of his traitor- 
ous accomplices, in taking arms under their 

profound, and divine mysteries ; of the most 
glorious mystery of salvation by Jesus Christ; 
that I am so uncanable to fathom the depth of 
the p!-o¥idence8 of God, whose ways are ui the 
tfea, and whose paths are in the deep waters, 
;ind whose tbotsteps are not I^nown, and parti- 
cularly in the late stupendous and amazing 
one ; and that I am so ignorant of the nature of 
angels and tfpii its, with their offices and opei*a- 
lions, an<i of their high and glorious excellen- 
cies ; and that 1 am so little acquainted with 
the nature of my own soul, as at present dwell- 
ing in, and united to my body, and as disunited 
and separatcti from it ; how without corporeal 
organs it shall most vivaciously and viurorously 
perform all its proper functions and ofiices, and 
more than ever stroniji^ly and indcfatigably 
serve the Lont Jesus, most fcr^'cntly and abun- 
dantly love him, and delight in him every way, 
much more obtnin the supreme and higHestend 
of its creation and hein<^ ; and this makes lue 
much more willintr to die, that I may have the 
knowledge thereof, wiiii innumerable other 
things ; that I am now either ii^norant of, or do 
but im {perfectly know, and so be made happy 
by a plenitude of fulness of iitjoyiiig intellec- 
tual ]deasures, which are of ail other most 
suitable, sweet, and satisfactory to iumiortal 
souls. And also i see that he that departs from 
iniquity makes himself a prey ; and so many 
plungiug themselves into the ways of iniquity, 
Jest they should be accounted odious and vile, 
which makes them so much degenerate not 
only trom Christianity, but from humanity it- 
self, as if they were scarce the excrement of 
either ; contemning even that most noble, ge- 
nerous, heroic spirit that dwelt in mr:iy hea- 
thens, who accounted it most hono.irable. and 
glorious to contend for their rights and iibertios, 
yea, to sufler death, and the worst of deaths, in 
defence of the same ; and judge them accursed 
and most execrable in the world that i\\y so ; 
and not only so, hut for their own profit and ad- 
vantage, have many of them inslaved their 
postenty by it, and are roost industrious and 
laborious, most fierce and furious to destroy 
them, whereby they are become as unnatural 
as children that seek the ruin of their parents 
that begot them, and brought them forth ; or 
them that lay violent hamls upon themselves, 
dashing out their own hniin^, cutting their own 
throats, hanging and drawing themselves, rip- 
ping up their own bellies, tearing out their own 
bowels, they lieing in different senses children 
and members of that body politick they design 
and attempt the destruction of; and when I 
know not how long the liuration and continu- 
ance of these things shall be, or a conclusion or 
and by God shall be put thereto, who bv Diviue 
and unerring wisdom governs the world ; why 
shall my soul be unwilling to take its flight 
iQlo tba uDSfsn and eternal world P Where no 



false pretended prince. This, my lord, we 
shall prove to you by plain, evident, and an* 
deniable testinaony of those very persons whom 
this seducer thus applied himself to. Gentle- 
sullied, sordiil, or impious thing, most incon- 
gruous and unbecoming nature, shall be seen 
and found, and where I shall behold no narrow, 
conclusive, contracted soul there, habituallv 
preferring their private before a public good, 
but all nu)st unammously and equally center in 
one comniun. universal good, and where the 
srghs, and groans, and cries of the afflicted and 
persi^uted shall be heard no more for ever. 

'* I earnestly exhort all most highly topriie 
and value time, and diiigentiv improve it for 
eternity ; to be u ise, seriously and seasonably 
to consider of their latter end :* For by the irre- 
peai:iblc and irreversible law of heaven we musk 
all d:-^:. vit wo know not how, where, or when. 
Live wiLli your souls full of solicitude and care, 
with a most de;'p concerneducss and most dili- 
gent indnstriousncss, whilst you have time and 
opportunity, and the means of gi'ace, hcaltli, 
and strength, make sure of these two great 
things, viz. 

*' 1. What merits for yon a right and title 
to eternal life and glory,' aii<l tlie future un- 
changeable blessedness,' as the Kedcemer's 
most pi-ecious hloml and righteonsiiess ; that 
thereby a real application and imputation may 
be unto you by sincere l»elieving. 

*' 2. That that which makes you qualified 
subjects for it, is the great work of regenera- 
tion, wrought in your souls, being renewed in 
the spirit of your ininds, the Divine Nature 
being imprest upon ihem, repairing of the de- 
praved image of God in you ; tliat lieingr trans- 
formed into his ir.vn likeness, thereby in the 
world you may mind and favour iiiore the 
things of the spirit than thcthines of the'flesb, 
celestial and heavenly moie than terrestrial 
and earthly, superior more than inferior things: 
an<l therewith liave a holy life and conversa- 
tion conjoined, that results and springs fron 
the same, as fruit from the root, and acts from 
the habits. I^et all, in order thereto, seriously 
consider these lew texts of sacred scripture, let 
them predomioately possess you ; let them be 
deeply and indelibly transcribed upon year 
souls ; let them be assimilated thereunto, and 
made the wrillen epistles, the lively pictures 
thereof. Mat. v. 8. '30. '< Blessed he the para 
in heart, for they shall see God." Ver. S9. 
" For I say unto you, Except your righteous- 
ness cxcetnl the righteousness of the Scribes 
and Pharisees, ye shall in no case enter inis 
the kingfloni of heaven.*' John iii. 3. '* Jesiis 
answered and said unto him, Verily, verily, I 
say unto thee, except a man be born again, he 
cannot sec t':.» kingdom of God.*' 1 Cor. vi. 
9, 10, 11. " Know yc not that the unrighteoaa 
shall not inherit the kingdom of God,*' Ace. 
c;al. V. 19. 20, to 23. '' Now the works of the 
flesh are manifest, which are these, adalteiy/* 
•Sec. James i. 18. ** Of his own will begaihe OB 
with the word of truth, that we should b»ft 
S 




! prince 

iiUt ill A 

/» : then 



tfler it p}«Med God, by bis htessioj^ on 
lk« victorious arms of the Kinqr^ tb«t the re- 
hds were defiealed, thcjir 
ftni heail vttb matiis of thi 
were takrii prUoin 
I tteftr the house whei t 
^hen all the ooun^ ^v ' 
eait utW ibiise wkki- 

N^ Tiigahond», 

ioeitius Hicks, 

tu m Warmuifiter iti the ucxi ciuijij% send a 

Mciicnger^ ooe Dtintiv, to iho *iri^oiu?r*« 

home, te desire her and rcqiie?r .he 

waiikl reoeire aiwl harhour hhn nd 

trho that was^ will apjjcar tv > i . ^Irs. 
isih' rctuiit!^ svtiansvitr l>y U; n- « • ::i ;, ihat 
ihe vvouM receive him, hut doc^ vi iihal pve 
particiibr direction^ that the time when tney 
did aunt' %[umUi be iaite io the evcumgp. Ac- 
eortling-ty he cofaei in the be^ioniDg- of the 
uij*ht, at 10 t^thr r-i- * Tinoted and spurred, 
and bringi) witU i iicr arch rebel, one 

Helthaq^ tJtAtsL;^ ^Mora tuuet btack 

atid horrid treatf<jfi. V cajne to the 

fraoner*k house, the) i li' borsea loose 
at the gtLte^ for the cian^er wdm ao gretil, and 
Ibeir appjrefaeiisioaa of heioff taken so urgfeul 
I ttwQi to conceal and m\i\ A>r thefruiefvtt, 
they lb ought it coareDtcfit to let their 
go where they would. M heo they 

Jdodof fint fniits of liis creatures." 1 Pet. i. 3. 
** Bleawd he the God and Father of our Lord 
Jeaus Christ, which according to his abundant 
tntrcy haih begottcti us again to a lively hope 
by the rcf^urreclion of Jesu» Christ.'* Ver. 13. 
** Wherefore gird up the loins of your niind>" 
&c. Coloss, iii, 1,2. ** If ye tuea be risen 
with Christ, seek thoeo tliio^ that are above : 
aet your aOections on things above, not," hc^ 
0ttL ▼. a I. AimI they that are Chrtsrs have 
cnictficd the flesh with the affectiou)) luid lusts/ ' 
^C £ph. ii. 1. '* And you hivtJi he quickne<l, 
who were dead in trespasses and lioH.'^ Rev, 
acx. 6* " Bleaaed and iioly it he that hath 
pmrt in the first resuj rection, on 3uch the se- 
<sond death hath no poner, Roui. viii. 1. 
** Tliere is tliercforo now no condctnnalton/' 
te. 1 Pel. I U. ^' BiU as he that bu ' 
you is holy, *o be ye,*' Vc, Ver, V3. 

bom again, not of ■ - * ^slescetl/* wVc- rr.u. 

m 3. ** But I \he I,iird hath set 

„pn.t i..t- ii. .f r. ..., Uiuiself/* ^c, I 

•i> more, tlic whole Bible 

Jlh' itH. with \%b;it ;i r«ii(i* 

vation 

^Itforie > 

JBcmof hit: iuid ci^uvet Silt I rin, before wc can be 

mpable v€ a future anil blessed tmtnortality, 

and of joheritiug the kingduru of G^kI for avar 

and rrer. Anim/* * 

Hi* V T r to Dr ITirhsi, dean of Wor- 

cester 'p of Joviiui) II man of some 

note, oi ivis ij» ^ ■ ' T, beifi^tirgtd 

to iiit4krt»de In \^^ ihar, he sa- 

vafidy ro|ihedt * i ^.u.iwi .r .ik IqrifiMiilic** 



by bimfielf, wus convey ed .ivvny t" a cbauibera 
but Mrs. Lisle causes: mt; 
hefuie Mr. Hicks ind 
supped with her, and ait' ru an is 
' lo(l;;ed by her particular order an 
The ' ' ' ' . . ..r.r..^ colonel |Vv:^'' i 

^vbo liitiou, in 

then. . , -^ . ...;u persons ' 
Mrs. Lii^Jc's Inmse, coiuejs t 
her, after he had beset the ii . u 

* you have rebels in your house, 1 conie to 
*■ seize them, pray deliver tliem up.^ 8]je de- 
nied that iihe had any in her house ; hut upou 
search Hicks, and riehhorp, and, tiiat other 
fellow, the messenger, were all frtuud iliere, 
and she thereupon secured with them. Tlio 
tnetfaod wherein we shall give oinr evidence^ 
will be this ; we shall first lK^g:iu w ith tbia 
piece of ( ' <hat we shall prove, that 

Hicks w; tn the army, ni:d iu ibo 

rebellion ; - nu luvi* we shall prove the several 
subsec|uent facts as bave been 0|)ened. ^Ve de^ 
dre Air. Pope, Mr. Fit^berbert, and Mr« , 
Taylor may be iiworn. 

Lis/c, Bj V lord, as for what is said conoeniK 
in^ i^ ]i, I can aasure you, I abhorred 

that! > uiucba^ aoy wotnan in tW 

world 

i. C. /. (LonlJanN^ies.) liook you, Mrs* 
Liile, because we must observe the <?oinmoa 
and usual methods of trial in your case, aa 
well as others, 1 mu^t interrupt you now : yon 
shall be fully heard when it comes to your 
tuni to make your «li ' ' ' * 

say now beiorebai»<l i i 

improper. You, it ntav m . um i-udjimji o* i,,*^ 
forms of law, therefore Twould intbiiuyou : you 
are first to hear what your accn ■ ti-n !»;; you 
fdiallaaik any questions of tti > that 

you will, nller tlie kind's cju i ex- 
amined them, as they go along-; and when 
all their tertiraony is delivered, you shall be 
heard to make your own defence, and have fuU 
£coj»e and liberty to inlarge upon it as long' aa 
you can : it is a business that oonecniH you in 
point of life and death; all that you have or 
can value in the world lbs at ^itake, and God 
forbid that you should be hindered^ either in 
' ' ■ ' V y de- 

turn 

cutters first to be heard ; and it iii uliiiolMtd; 
requisite, ''^^» ''^^ "nualibrmi* and r 
law he JDv serreil, and be ^ 

liif prisons , i iry ihat the law 

lyto; and we hare that charity, as well 
.slice, lliat it become*!, and is not bWuw all 
itourts to liave for persons in your condition ; 
and we are oblige*! to take care, that you suf- 
fer no detriment or injury by any illc^l or h 
re^bir proceedings. l*or though we sit hei 
aajud^fiiover you by autborjiy from the kinff, 
yet wc are accountable, not only to him, but tii' 
tbe Kiuff of kincfs, Uic great Jud^ of heard 
and L-arth ; and therefore are obhe:t*d» both f 
our oalba> and upoa gtir consvt^iicea, Vo do you 

y 



n 

1 



3231 



iJAMEStl. 



Trid of the Ladu Alice Lisk, 



[324 



justice, anil by tl)«> grace of God wc shall do it, 
you may depend upon it. And as to what you 
say coucerniiig yourself, I pray God with all 
my htiart you niuy be innoccut. Pray call 
your witnesses. 

Mr. FoUi'xfcn. Swear Mr. Pope, Mr. Fitz- 
heriicrt, and Mr. Taylor. [Which was done.] 
L. C. J. Who didyoubr^n with? 
l\Ir. FoUcTjcn, Mr. Pope, pray will you 
tell my lord niid the jary, what you know , 
coneeriiiu<^ this Hicks ? Pray tell your whole 
knowlcdiife. 

Mr. Pope. My lord, I had the misfortune to 
be taken prisoner by Monmouth's army, GToing 
about some business of my own ; and after J 
had lieen taken some few days, wc happcuc<l to 
be brought to Keinsham, and we were put into 
■ir Thomas Bridges's stables, and kept under a 
guard there. W hilst we were there, I did see 
that gentleman that goes by the name of Mr. 
Hicks, who is now in Salisbury gaol, and there 
I saw him yesterday ; he came and asked 
tor the prisoners, which were about four or 
five in number, and he asked them, how they 
did ? They made him little reply. Thi?n he 
desired to know how we were dealt with, whe- 
thtr we were kindly used or no ? I replied, no, 
for we had but a piece of bread these two days. 
He made me answer, that he was sorry for 
that, for it was otherwise intended. And tliere 
was with him another gentleman that was call- 
cil the king's chaplain, that is, the duke of 
Monmouth's, and atlcrwards he pretended he 
would do us a kindness in speaking to the king 
(as he called him) for us. He talked with us 
•ome little lime, and by and by he began to 
ask us, what was the reasou that wo were 
there ? We told him we were taken prisoners, 
upon which, saith he, this king (meaning, as I 
suppose, the late duke of Monrooutli) is a good 
king and a Protestant ; and a great cleal to that 
purpose, with some reflecting words on the go- 
vernment, and upon the person of the king : 
and he told us, he wondered what wo had to 
•ay for oui-selves, being Protestants, that we 
did what we did in serring a Popish prince, and 
Dot obeyinjr a protestant one. Phis is the sub- 
stance of what I have to say upon this matter. 

L, C. J. 'J'hough you were pleased to phrase 
it, Sir, in the Iteginning of your testimony, a 
misfortune that you were taken prisoner by 
the rebels ; yet, I suppose, you could not be 
without the consolation of a good conscience, 
that^'ou suffered in the way of doing your duty 

Pope, My lord, 1 am very well satisfied I did 
Cufler in a good cause. 

L. C, J. There is one piece of happiness in 
it ; that by that means you are able to give 
this testimony this day, and do the king this 
piece of servu.*e. But pray, Sir, let me ask 
you this question : are you sure the man you 
saw ycstenlay at Salisbury is the same man 
that you spoke with at Kemsbam, that goes 
by the name of Hicks? 

Po/>r. Yes. my lord ; and when I was there 
Yesterday with liim, I aiked him, whether he 
Mi^w mq ; and tokl him, siid I, you may well 



remember you saw me at Keinsham. Saith 
he, I do not remember that ever 1 saw yoor 
face before. Said I, you remember sir Thomas 
Bridge's stables there ? Said he, I remember I< 
did see some prisoners. Said I, was not it 
tliere you saw me, and had such a discourse 
with me ? He seemed to deny it, but I told 
him, a man of your coat should not tell un- 
truths, you cannot but remember you saw roe 
there. *Saith he, 1 will recollect my memory 
if 1 can ; and he afterwards sent to the George 
in Salisbury for me, and then he told me, he 
did recollect that he saw and talked with such 
a person there. 

Mr. Rumsey. Sir, I would ask you thit one 
question ; did } ou see him in the army about 
the time of the fight ? 

Pope. I think 1 saw him about a day or twt 
before. 

X. C. J. Had he any weapon on? 

Pope. I think not, my Ibrd. 

Mr. PoUcxJen. Our next witness is Mr. Fili- 
beri>ert. Pray, Sir, will you give an acM»nnt 
to my lord and the jury, what you know of 
this Hicks? 

FUsherbert. My lord, during the time that 
I was a prisoner with this gentleman at Kein- 
sham, the 25th of June, 1 saw this man, John • 
Hicks, who held a discourse with Mr. P6pa 
near an hour's time, disparagmg the govern- 
ment and his majesty, and extolling the doke 
of Monmouth, what a brave prince, and how 
good aprotestant he was. 

L, C. J. Then be was among tbem, was 
he? * 

Fitzhcrhcrt. Yes, my lord, he was, ajid I 
saw him yesterday at &libbury. 

L. C. J. Is that the same mau that you saw 
in Monmouth's army ? 

Fitzherbert. Yes, he owns himself to be tlie 
same man. 

Mr. PolUxfcn. How oflen did you see him 
there besides'that time when he discoursed with 
Mr. Pope? 

Fitzherbert. I saw him sometimes out of the 
town, but I never discoursed him. 

L. C. J. Did you see him there before or 
aAer that discourse? 

Fitzherbert. It was after. 

L. C. J. Would the prisoner ask thia wit- 
ness, or the other, any questions? 

ImIc. No, my lord. 

Mr. Pollexfcn. Then Mr. Taylor, what lay 
you to the matter? 

Taylor. My lord, I saw him at the same 
time that these gentlemen speak of at sir Tho- 
mas Bridge's, at Keinsham. 

Mr. Pollexfen. Were you a prisoner tlien^ 
Sir? — Tat/lor. Yes, I was. 

Mr. Pollcxjeii. What place was it yoo saw 
him in ? 

Taylor. It was in the stables the first time 
that I saw him. * 

L. C. J. What discourse had you with bim ? 
What did he say to you? • , 

Taylor. He said, he wondered at us, tbitwt 
should take vp arms against so good a j 



mud a Prol«ttaiit as tlie duke of Monmouth » 
and ai^nsi tli^ PiotesUint reUgion, and hold 
up wiih Piipery : Saith he, York is but a Pa- 
pist I and a Qv&ki matiy such words. 

L C, J. Did yoti see him afterwards ? 

Tin/lor, YeSj my lord ; biit I ciionol ttll 
particuliuly the tiinu and place; uji and down 
the army« 

X. C X Did you sec him at Salisbury ? 

Taylor. Yes. 

L. C. X lii that tht* same man P 

Ttijfhr, Yes, it i:^. 

Mr. Pollej/en* Nexti my lord, we come to 
prove the message and corresponclence between 
this same Uicks^ and ttic prisoner Mrs, Lisle. 

Mr, Jennings. Swear ftlr. Jame3 Duune. 
[Which wft& done.] 

Mr, PoltiXj'in, 1 1' your lordship please to ob- 
serve, the iiiiie$ will tiiil out to he very material 
ill this case: ihn btijlle at King's" Ed^more 
waisthe 6lh of Jidy i ihi'ee or four days alter 
was tlie lakinjf of Monmouth, and my liH-d 
Grey at King wood ; upon the 36lh af July, 
ten or twehe days aller the taking of Mon- 
mouthy was this message sent by Dunne to 
Mrs. Little: so we call Dunne to' prove what 
message be earned upon the 2tjUi, and what 
answer was returned ; he will lell you, that 
Tuesday was the time appointed for them to 
come, in the ni|fht, and all the oilier eircum- 
stances. But wilhal, I must aci^uaint your 
lordship, that this lei low, Duone, h a very 
unwilling witticiis ^ and theretore, with submiii- 
sion to your lordship, we do humbly desire 
your lordship would please to examine him a 
little the more *<lrielly. 

L. C* X You say well : Hark you, friend, 
I would take notice of something to you by 
the way, and you would do well to mind v%hat 
I say to you. Accurding as the counsel that 
areliere for the king seem to Insinuate, you 
were em ploy e<l as a messenger hetweea lliese 
(jersons, otie whereof has alread v been proved 
a notorious rebel, and the other is the prisoner 
at the bar, and your errand was to procure a 
reeepliou at her houjse for him. 

Dunne. My lord, 1 did oo. 

X. C, X Very well. Now mark what 1 say 
to you, friend : I would not by any means in 
llie world endeavour to fright you into any 
thing, or anyways tempt you to tt;ll an umrntli, 
but provTike you to tell the truth, and do^ 
thmg but tlie trntb, that is the business we 
come about here. Know, friend, ihti-e Is no 
religion that any man can preteml to, can give 
a countenance {o lyinc;, or can dispiuse with 
telling the truth : Thou hast a [>recious im- 
mortal soul, arul there is nothing' in the world 
equal to it in vutue : There i^ uo relation to 
thy mistress, if site be so ; no relation to thy 
friend ; nay, lo thy father or thy child ; nay, 
not all tho temporal relations in the world can 
he eqmd in thy jir^'Cioiis immortal soul. Con- 
sider thai the ill eat God of Heaven and Eurth, 
bifore whose tnbutial thou, and we, ami all 
perboiis are to stand at the lubi dav, will call 
Ihee to an accoimi for the re.^ tiuih^ 



and take veogeance of thee for every falshood 
thou telleit. 1 charge thee^ therefore, us thou 
wik answer it to the i;t^ai Goi]^ ilie judge of 
all the earth, that thou do not dare to waver 
one tittle iVom the truth, upon any account or 
pretence whatsoever : For thougli it were to 
save thy Ufe, yet the value of thy precious and 
immortal soul is uiuch greater, than that thou 
sbould^st forfL-it it for the saving of auy the mof t 
precious outwan! blessing thou dost enjoy ; for 
that Cjml of Heaven may jnstt}' ^tiike thee into 
eternal flames, and make thee drop into tlie 
bottomless K:ke of fire and brimstone, if thou 
ofTer lo deviate the least from the truth, and 
nothing hut the truth. According to the com- 
mand of that oalh that thou hast taken, Itll u« 
wIkj enijjloyed you, when you were employ cd|, 
and where? Who cause*! you to go on tliu 
message, and what the messapfe was ? For j 
tell thee God is not to he mocked, an*l thou 
ean'st not deceive him though thou jnay*st i 
But 1 ussure you, if i catch you prev^iricattn 
in auy tlie least tittle (and perhaps 1 kuojl 
more than you think L do -, nu, none of yoiir 
saints ctm save your soul, nur shall they save 
yonr body neither) I will he sure to punish 
every varialion from the truUi that you ar«9 
guilty of. Now come and tell us, how yoa 
came to be etTiploycd upon such a message, 
what your errand was, ami what w as the issu« 
and result of it ? 

Dttmit. My lord, there came a man to ray 
house, and desired tne to go of a message 
iny lady Lisie's. 

L. tl J. Prithee tell me when it was P aD4'] 
what hour of the day ? 

Dunne. What, when the mao came to tn^] 
house P 

JmC.J. Yes. 

Dunne. That I will, my lord. 

X. C. X Be sure you do, and do not speak 
one word but what is true, and let the truili 
come out of GotJ*s name, 

Dunne. It was Friday night. 

L, C. J, What day ot the month was It ? 

Dunne, Truly, my lord, I cauuot exactly 
tell that. 

X. C. X, Was it after the fight at Westoo, < 
befoi^ ? 

Dunne, Tt was aAer the battle, iny lord. 

X. C. X How many days after was it ? 

Dunne, I canaot exactly tell. 

X. C. X Has il Uie Friday seven -nig 
ajler the light 'f— Dunne. No, it was not» 

X. C. X What was desired of thee at thi 
time 'f 

Dunne, He desired me to go of a messag 
to ray lady Lisle* s, 

L. C* J. Dost thou kaow what mab it wa 
that came to thee, and desired thee to go on 
this message ? 

Dtmne. My lord, 1 can tell what maimer of 
man lie was. 

X» C. X Give me a description of tlie ttiao, 

Dunne, He was a shott bijick man, 

X. €. X You say he was a short man. 

J)unn€, Ye% he was 60, my lord. 



Sir] 



\ ikms iL 



Trid^ffhe LaHy Mke Lidt, 



.fftS 



L. C. X WBSlieiis«iiiHliy,oraitid4yown- 
plectioned man ? 

Bunne. He tvas n<ft ruddy bat swarthy. 

X. C. /. And what did he say to thee P 

Dunne. He desired me to gfo to my lady 
Lisle's for Kim, for one Mr. Hicks ; and I went 
accordinsfly. 

L. C. J. What were you tb «ay when you 
came there ? 

Mr. PoUerfen. What reward were you to 
have ? 

Dunne. That man that came to me, pro- 
mised mc that I should be well rewarded for 
my pains. 

L. C. J. Where do you live? (by the way.) 

Dunne, In Warminster parish. 

L. C. jr. How far is it ii-om my lady Lisle^s ? 

Dunne, Six and twenty miles, or there- 
abouts. 

L, C, J, You did ffo, you say, when P 

Dunne. Upon the Saturday. 

L. C. J. Well, we are gci thus far ; vou 
trent to my lady Listens upon the tSaturday,' 
and from one *Mr. Hicks: what was your 
errand? 

Dunne. To know of niy lady Lisle, whether 
she -would entertain Mr. Hicks. 

L. C. J. Well, now go on. 

Dunne, W^hen I came to my lady Lidc's 
house, I went to the bailHf that belonged to my 
lady Lisle. 

L C, J. Ay, who was that bailifl? lell us his 
-tiame ? I love to know men's names. 

Dunne. His name is Carpenter, 1 think. 

L, C. J, Well, and what did you say to him ? 

Dunne. I asked him, whether my lady 
would entertain one Hicks, or no ? he told me, 
lie would have nothings to do with it, but sent 
me to my lady, and to my lady I wenf^ and 
when I came, I askc<l my lady, whether she 
would entertain one Mr. Hicks, or no? she 
said, she did not know but she mij^it. 

X. C. J. Well, what then ? 

Dunne, My lord, I will tell yon. 

X. C. J. Ay, prithee take time to recollect 
thyself; but be sure thou speak nothing but 
the truth. What said my lady to thee? 

Dunne. My lady said, they might come 
to her house : and* upon those terms I went 
away home ag^in, and rcturnrd that answer to 
the messenger that came to me. I «ame home 
ou tile Sunday night, and that message I de- 
livered unto him, and told him, that upon 
Tuesday night they migiit come to my lady's. 

X. C. J. You told him, you say, they might 
conic on Tuesday ? 

Dunne. Yes, my lord, I did. 

X. C. J. Therefore I wotild fain know from 
you, how you came to tell him, they might 
come upon Tuesday ? fi)r you said just now, 
my lady's answer was, that she did not know 
hut she might entertain him. Had you any 
such direction from Carpenter, or any one else, 
to tell him, that they might come on Tnesday ? 

Dunne, I had such directions from my laJy. 

X. C. J. Very well; then let uskrtow wliat 
irer»«ihe ttariioubr dik«etioiis-dhe gare? Tell 



as, what further ^imftidns yoa Ml Han htt ? 

Dunne, I w4n, my lori, ^uiMja^, aliui 1 
h»fe recoNecteA mj^self. 

X. C. J. Ay, piTOiee OMipoae wyacliy rcool- 
lect thyself. IVhtu tie padnd ftr a |pood 
while.j 

L.C,J. Come now, tell «n,4i4fllie<giv«jria 
any directions what time of the day they mght 
come thither? remember yoondf will, and 
tell us what she said to you P 

Dunne. Mv kitd^ I will, aiwear aslcaa, 
speak the trutn. 

X. C. J. Ay, in God's iiaiiw,lat m hnt tha 
truth, whatsoever comes on it P 

Dunne. I will, my lord. 

X. C. J, Come then, what thna diA ihe gifa 
directions that they should come P 

Dunne. On Tuesday in the 'eveiiiu|f. 

X. C, J. Upon your oath, did aheaay Toil- 
day in the evening? 

Dunne, Yes, my lord, she did. 

X. C. J. What time in the evenioff, eartrw 
Ute? 

Dunne. She did not gfv«any-dii«ctioiiaal 
all about that, but only in the evening. 

X. C. J. What eke did sheaay to 71m, t^ 
us all the discourse that passed betweon yinf 

Dunne. Shesaid nothmg-elsetfiatlraiMBl- 
ber, niy lord. 

X. C. J. Prithee, how did riie Mr ■!» wadi 
receive him? tell us what words rae-nsed, "ftr 
'thou must nee«ls imagine, we da suppose ihtn 
must needs be some longer diseoorse betfivate 
-you, than what you talk of. 

Dunne. All that she said ¥ras,alie wouWaa- 
tertain him. 

X. C. J. Him? Who?— Dttnaf. Mr. IfidEi. 

X. C. X Just now you talked of them,' and 
they : did you mentron nobody to 'her'battt:. 
Hicks ? 

Dunne, My lord, 1 was sent to see wh e t htt 
she would receive "Mr. Htcks. 

X. C. J. Prithee, friend, mind what 'ttsa 
hast said, and recollect thyself, I will repeat it 
to thee, because thou shak see that 1 1 
it all very well. It seems that a roan, a ' 
black man, came to your house in ^ 
parish to get you to go for a messace'toMs. 
Lisle's, to know whetner slie would edtaifui 
one Hicks ; and that you went upon *the *Bli- 
turday, and first you met with CarpentM',*aad 
aske<r him that question, whether his lady 
would entertain one Mr. Hicks? and he'tdn 
you he would have nothing to do with it ; 'and 
theren|)on you went to Mrs. Lisle, andaakad 
her the Question, and she told you that yen 
should tell the man that they should came ttis 
Tuesday following, and come in the i 
and she would entertain him : Is not this^ 
you have said ?'^Dunne. Yes, my lord, itk. 

X. C. J. Well then, now let us knaw^ldnt 
other discourse you had with her ? 

Dunne. My lord, I do not remeonibcr any 
thing more. 

Mr. PoUeifen, Pray, Mr. Donne, tikltte^kk 
you any qbestioos, whether you kn^ir 1|^« 
Hicksaraop 




\ 



Bfr. Orit^. IM ^ Mievc fbat yim Imew 
Mr, Hickn ? — Ditiifte. 1 cnnofit trft^Tiiy lord. 

Mr. Cofi/an. Do ycrn beHevt! that tttelcoefV 
him before? 
J>imfie. I canmot Idl truly. 

. C. f. Why, doat thou think she wonlil 
ilertAin Any <me tbiit ihe hafJ no knowl«^f|gTe of 
b-«>y tmon fhy tnemage? Mr. Dttfrn*^ Mr» 
linne ! Iiav« a care, it may be mojti is kuotvo 
ihkM matter than yon thtok fbr. 
^i>i«fifi£* My loi'tf, 1 lell you tiie truth. 
i L. C. X Ay, bf sure you do, do not let me 
ke yoo prevWieafhiff ! 

i>i<»7te. My lord, I spaiSc nathhig Imt the 
tnttii. 

L, C, J. Well, I only bid you hare a cave^ 
^Inith fie%CT wa^ts a aobterfti^e, it ahi-ays loves 
to ■ ■ r Mfiked, it nctds no eDamcl, &or tiny 
c ! at Wing- ;%nd sntvellinj^-, and cant* 

•ib^\ *i.i^i ilicksing^, aluays appear in niasque- 
ltd«. Come, go on 'With your evidence. 

lhmm\ Wylord, I aay i went back again 
and returned my answer to the same man 
t.hat broujrtit the message to me. 

L. C. J I*ray let \l\q ask you one question ; 
-wene y<iu gfot to ^-our house' heibre you iuuud 
[), or i¥ia*he waitmg- there for ynu ? 
^IlHiiiJK* Oe oame totiiy bouse after I came 

It, C* J* It was the same tuan^ you say ? 

^ktnne. Yes, it wo5. 

Z.. C. J. Him I lie no cotnpany with htm nei- 
ther ti me ? — Dm n ne, N o , 

L, C. X Well, and wlrat answer did you re- 

^luru him ? 

A Dunne. I tofd hlro, my lady «atd she would 

^mirriam Mr. Hicks ; he asked when he might 

come up ; f told him «iJon Tuesday, and upon 

Toesikiy ihey ctime to my home. 

L. L\ J. What time did they come to your 
hon^ ? 

Dunne* About seren of the clock in the 
monurig. 

L. C /. What day of the mouth was it ? 

•Duniie. Truly, my lord, I cannot rcaihly tell 
what dtiy of the uioiith it was. 

L. C. X Wan it one or iwi^that came to thy 

ilttC? 

*•. My lord, there were three in all, 
L. C X W hij u ere those three, prithee ? 
Dujfnc, My lon1» therr was th*^ little black 
nxi^n^ that brought the messugCr aud two other 

X. C* X Prithee describe what two other 
pie Ihete weref 

Uunnr. IhiewAtft fuUiat black msn, and 
oilier irtiH a thin btai-k man. 

L. C. J. Who was that thin bladf man ? 

Dunne, Mv lord,! did not know him. 

L.C.J* 6id jou uot iimry which was 

Ick* ? 

Dunne, My bitl, t never knew wny of their 
namoi. 

L. C X IJow long did they slay at your 
btitui« t^Dunnf, About thrtc hotns* 



hL 



try* 4 



X. C X fVhfn M yiHi f^ «ii«y 

thence ? 

Dtfnne. About <Aot en «fib9 4r1oek. 

X, C. X Which way did yo« ^o ibeQ f 

Dninne, We went tbr^it^h D^etiel, aadF 
fWm Dciref^ltoCliilmark, atHl if om •CbiliiMrk 
to Button J and fpom Million to the Pliiiii, and 
ftien one liurter mot me ; I knew fhe way n^ 
further, aud he was to shew tiie<be w«y mm 
IbeiTce. 

L. C. X IVivhee bold, liefore Ihoa |*OQit 
any further, I desire to be «otidli«d olioot • 
question or two : dost tho« aay thou didst not 
know the way ? 

Define. No, my lord^ ««fler| <^me to the 
Plain, 

X. C. X ifow didfit thou Bndtbe way wlkcti 
thou weutett'On thy messa^ drat ? 

Dumic. My lord, alter 1 came to ^itsbuty* 
Plain, I met with one Barter, uiul l*e thewi ' 
me the way, 

i, C X* Whei e-ia that barter ? 

Mr- Poliex/en. My lord, we l»uve him liere; 
we shall examine Aim by and by, there he 
standji. 

X. C. X 'Sure Ihiit wsa not the Uitle tn^n 
Iho u sp^jke.^ of, [Being a ler y lusty ^an.^ 

Dunne, No, my lorH, 

X. C. X l^rithee let tne ^mlersfand Hlie|^H 
then, if I can. Thou didst f^ay at %at theff^H^ 
was only a little man with a bWk beard, tUa^^ 
was eouoeroed* with tl»oc ilhout'tiiai nieasa^ ; 
now tliou talkest of sonte guide that thou 
hadst, prithee who did guide tliee, let usicnow? 

Dunne. My lord, I say 1 went so far as Fo- 
▼ant, and sm to Chalk, but when I came upoa 
the Plain, I did not know my wny to my rady 
Xisile's house at Bloyle's (.NHi'rt; 4 ttiakea 
twenty people in the street which was my way* 
hot nobody wauld tell me; at liiirt I apoke to 
one John Barter to gt) with me to my Itcdy 
Li*le*s, and he aud 1 did agree to go together, 
and he ifaewed me the way and carried me to 
the house. 

X. C X Thou shooldat hare told us this be« 
fore, mau, that we might Ira^e uudenstood it* 
Where did you lie upon Ibe €^torday ni^ht ? 

Duftm. At Forant 

X. C. X I thought y^oo rbati^said, you bad 
couic toTWrs. Lisle'fl on Hamrday ? 

Dunne. Yes, my lord, 1 did «0| and came 
back to Fovaot that iiigbt, 

X. C* X And where did you lie on 'Sunday 
night P 

Dunne^ I by ^t my owniiouae-on'Siiddiay 
niglrt, 

X, C. X And Barter came along with you 
when you came on Tueaday ? 

Dunme, Yes, my ii»rd. 

X, C X And did you gotbcaamfr-way upon 
tlieTuesihiy that ^"ou went irpon ilm^tttrday P 

Dunne. Do ^ou mfnu, my lord, the aafiie 
way I came at'tirstf 

L C. X Ar. 

Dmtne. 'No, iny lortf, we came to Sutton, 
not to Fovniit. 

X. C. X Why did not you yi tlw wmm w a y 



J 



aSI] 1 JAMES 11. 

upon tbe Tuesday that you went upon the 
Saturday? 

Dunne. Beoause I had appointed to meet 
him at such a place. 

£. C. /. Come, prithee answer me freely 
and according to truth : Who did desire thee, 
or order thee to go another way than that thou 
went'st at first P How came it to pass ? Let us 
know the truth P 

Dunne. My lord, I did count that to be the 
nearer way, and therefore I went that way. 

L, C. J. That cannot be the reason, for thou 
would'st have gone the nearest way at first, I 
believe ; come, tell us truly ? . 

Dunne, My lord, I know no other reason. 

L. C. J. Come, tell us what towns and vil- 
lages you did go through then upon Saturday ? 

Dunne. My lord, 1 went through several, 
Chilmark and Fovant. 

X. C. J. And what villages did you go 
through upon the Tuesday? 

Dunne* I went through most of the same 
towns. 

L. C. J. What, and at noon-day too ? 

Dunne. Yes. 

L. C. X And how chanced when you went 
that way, that you appointed Ikirter to meet 
yon in another place at Fovant P 

Dunne, Because I did not know the way 
afterwards. 

X. C. X Then let me ask you another ques- 
tion : Did you go the same way from Fovant 
to my lady Lisle's as you went before P 

Dunne. No, we did not. 

X. C. X How came that to pass P 

Dunne. I would have went the same way, 
but they would not. 

X. C. J. Which way did you go then P 

Dunne. We went through Chalk, and so 
through Rocksbornc, and from Rocksbome to 
Fonling-bridge, and so to Moyle^s court. 

X. C. J. How far is this about now P 

Dunne. Truly, my lord, I. cannot readily 
tell. 

X. C. X How many miles is it from Fovant 
to my lady Lisle's P 

Dunne. My lord, it is about 14 or 15. 

X. C.J. IIow many miles ay as it the way 
that you went upon the Tuesday ? 

Dunne. It might be twenty, my lord, for 
aught I know. 

X. C. J. What was the reason that Barter 
wentthat way P 

Dunne. Truly, my lord, I cannot tell. 

X. C. J. Pray let me ask you another ques- 
tion then ; Wliat dii^course had you with 
Barter ? Or what bargain did you itiakc witli 
him for shewing you the way ? for you would 
not ask him to go with you without promising 
him some rewara. 

Dunne. My lord, I asked him to shew me 
the way to my kidy Lislc*s house, and told him 
I was going for onu Hicks ; and so he took his 
horse ami went with me. 

X. C. X What reward did yon promise him ? 

Dunne. Half-a-crowU| my lord| and half-a- 
crowo I gave him. 



Trial of the Lady Alice Lisle, 



[sse 



X. C. X WeU, that was the finttime; and 
what did yon promise him the second time. 

Dunne. The second time one of tbe two 
men gave him five shillings. 

X. C. J. What man was it ? 

Dunne. It was the black man. 

X. C. X What was hb name P It was not 
the little black man that came first to desire 
you to go on the message, was it P > 

Dunne. No, my lord, it was not he that 
spoke to me first. 

X. C. X Did not that little man that apoke 
to you first promise you a reward for yoor 
pains P 

Dunne. No, my lord, that man never pre* 
mised me any thing. 

X. C. X Did he co along with yon ? 

Dunne. No, my lord, he did not. 

X. C. X Who were the two men that wait 
with you P 

Dunne. Hicks and Nelthorp. 

X. C. X Which of tJiem two was it that 
gave Barter five shillings P 

Dunne, It was Nelthorp that gave him fire 
shilliojQfs. 

X. C. X How do you know bis name wis 
Nelthorp P 

Dunne. At my lady Lisle's, af^er be vis 
taken, 1 knew his name^to be Nelthorp. 

X. C, J. What name did he go by before P 

Dunne, Were J to die presently, my lord, I 
cannot tell it 

L.C.J. Well, you went so much about : 
What time did you get to my lady liale's npeo 
the Tuesday? 

Dunne. About nine or ten of the dock it 
night, my lord. 

X. C. X Let us consider a little; yon say 
you went from your house about eleven o*chick : 
What time did you get to Fovant? 

Dunne. About two or tliree of the etod^ 
my lord. 

X. C. X Where did you stay by the way? 

Dunne. No where, my lord. 

X. C. X Did you ride on still P 

• Dunne. Yes, my k)rd. 

X. C. X Was It before nine, or after 
thai you came to my lady Lisle's P 

Dunne. 1 believe it was rather afier 
my lord. 

X. C X Who came first to my lady Liale^ 
prithee tell us frankly P 

Dunne. My lord, we came all three toge- 
ther to the gate. 

X. C. X Who knocked at the gate, you or 
Barter, or who else P 

Dunne. Barter, my lord, was dischancfd 
before we came near ibc house, about eight 
miles from it. 

X. C. X Saycsttiiou so? Ifow came 
then to know the way without him P 

Dunne. My lord, I will tell you ; they kMt 
their way, and they sent me down to Maitoiiv 
and there I went to a man, my lord, and told 
him one Hicks desired to speak with him. . 

X. C. X Thou sayest well, now mut' I 
know that man's name. .- 



y^ 



Jir FTigh Trtasort* 

Jhtnnc* Tlie man's aawe that I went to at 

Blarioh^ my torti ? 

L.C.J' ^cat, «uil look to it, you ttll nic 
tight, i'o\ it iivft^ be I know llie ttiau already, 
.md cttu tell at wliat eud of tbe to\va ihti mau 
llirca* loo. 

! ilaitae. My lai'd, I cauuot tell, bis cante 
Ijreseully- 

{ L. C X O I pniy noi*% do not say so, you 
kixiujit tdl IIS, iiiibcil you inufit tliinic ot bis 
bMue (L little. 

I i>Kinr, My lordf if I can ttiiud it 1 wilt. 
LjL C. X iVithee do. 

E^piiniK, His II a til f» truly ^ my lord, I cannot 
PPbly t«U lor tUe pic^nr. 
' L» L'. J, Fritheo recollect tliysdt ; itidtjed 
j Ibou caiJiit tell us it' thou wilt. 

Dunne, My lord, 1 can go to the boose 
again if I ^verc at liberty. 
I J* C\ J. 1 btliere it, and so could I ; but 
{>rcally oetther you nor 1 can be spared at pi*e> 
aeut, theretbre'priibec do lu the kiudiie^a now 
to tdl us his nanic. 

I>u/i«f, Truly » my lord, 1 cauDot miod his 
I paiue at presenU 

jL. C. J. Alack-a-day, we must nteda have 

it I Come, refresh your memory a little. 

X>un ne. My lord, 1 tbiuk bis name wai» Fane. 

L, C. X Tdou say^ ri^bty bis name was 

' Fane truly, tboa seest 1 know someihipg* of 

I the matter r HelL what didst tbou say to biin f 

Dunne, i lold him 1 came frgm one dir. 

1 jlieks. 

£. C /. And what didsl tbou desire of him ? 

Duftnt, I told hitn tliat one Mr. Hicks de- 

•tied to speak with biai ; and wbeu be came 

I **ut to Mr. Hrckf, Mr, Hicks did desire him to 

■hew bini the w^y to 3Irs. Lislc's. 

Z,, t'. J. Now'tell us what kind of man that 
pas» tliat desired iXna of Mr. Fane ? 

Dunne. My lord, it was tlie full fat black man. 
L, C. J* NtiW we have jjot him out, now we 
I kli'>w which was Hicks : Now go on. 
I Dunne, 31 y lord, ibis man went and rid 
I thtiis with them as t'str as the new house that 
I is budl thcrp, within ti mile of Ibikt bouse Fane 
ii wi'fjt alot}'^ ^vith us; and ai\cTwai<ls» whether 
liif i'liorp, or wlio knrw the way, I 

i cat! lUo my lady Lisle's we went. 

X. L, J. WUq direct^ you the way when 
Fane k-ft you ? 

Dunne. My lord, t cannot tell ; For my part 
I did not know the way. 

V.J, Who Went with you ? 
^itnue. Noue but Hicks and NeUliorp, 

II..,. ^.^^ j'pyjy jj^y lady *s house W»s 
til I in*- left you ? 

X - .1, I i*iU)00t directly telL 

C. J. llivn Hjcks knew the way, it 
, ffi»iR fbruco? 
Dunnti. So be im^ht, my lord, for aiigUt I 
]liiow,for 1 did nut 

L. C. J. Thou ly ktilT; but now 

Ifc afi*com«* ibo« 1 4n tell iiie what 

tt' '» you hud ;it i»iy kdy Liiiles, nnd 

you hu sur^ to tell tne truth « 

1 ^QQv? it to a titUa, 1 can apsareyou that* 



A. D. lOTi [SSI 

te. l1»fy went in liefbre we, ray k)rd. 

L, C. J. VVho dentin before you P 

Dunne, Hick^ and Nclthorp. 

X. C. X Out the door wns shut i^hen you 
came, was it not ? 

Dtmnv. My lonl, I cannot icll truly, 

L, C J. Tnen tell me what entertainment 
you had there ? 

Dunne, For my own part my lord, 1 carried 
a bit of cake and cheese from my own bouse^ 
and that i cat, 

L. C. J. What became of your companions * 
liicks, and Nehhorp, 1 pniy you ? 

Dunne. I never saw them again till after 
thev were taken. 

L. C. X How is that, prithee recollect thy- 
self? 

Dunne* Sore, my lord, I did Dot see then 
till then. 

J„ C. J, Who came to the door to you f 

Dunne. A young girl, my lord, 1 knaw not 
who nor what she was« 

X. C* X Did they go directly into tiit 
house ? 

Dunne. It was dark, my lord| I did oot sea 
what they did. 

X. C. X Was there never a candle there? 

Dunne. No, my lord, 

X. C. X It was dark, very dark, was it not P 

DuhjiM. Yes, tny lord, it was so. 

X. C. X Was iny lady stirring then ? ' 

Dunne, I did'not see her. 

X. C. X And this is as iducIl as you know 
of the business? 

Dunne. Yes, my lord, this is all that I re* 
member. 

X. C. X Well ; and what badst thou fhr all 
thy pains? 

^Dunne. Nothing but a month's imprison-^ 
ment, my lord, 

X. C. X Thou sec meat to be a man of « 
great deal of kindness and gOi>d''nattir<> ; for» by 
fliis ^t^iry, tb**rr whs a man that tlton never 
ssawest before (Ibr I would tain hB\c (lU pcopltt 
obsene what leather some men*s consciences 
are made of) snd because lie only had a black 
beard, and < nra^ to thy house, that black beard 
of his should per^^uade thee to go 20 mites, and 
give a man half a crown out of thy pocket to 
iihew thee tliy way« and all to carry a messaga 
tVom a msTi thou nevvr knowcii in ih^y lilb, to a 
woman whom thou never rawest in thy life 
neidier; that thousbouldL'Si lie out by the way 
two nights, and upon the ^Sunday '^vl Iwime, 
and there meet with ibis Mantc black bearded 
little gentleman, and appoint these people to 
come to thy bouse upon the Tucsdny ; and 
when tl»ey came, entertain them three or four 
hours at Ihy own house, and go back a^;nin ^ 
many mileii with lbt*iu, and bav« no enttitain- 
uicnt but a pi«x*e of c:ik*^ and cbcc^c that thou | 
brouftbtLSt thyself Iroin home, an<ibave no fe« 
ward, nor so much ^n know any of the person! 
thou did^t ail this for, ih very utranjjp. 

Dvnntf. My lord, the tunn tt* .^d^s;^ 

siri"' me to go on this rn<»sa}:e, * I icks 

sbotdd reward m*^^ aud pay me lor u>y p«tns« 
1 



] 



1 JAM£S II. 



Trial tfike lAtdy AKee Lide^ 



CS» 



the 



X. €. J. Bat why woaMeBt Ikn 
word of a man thou didit net ksow ? 

Dunne, I was forced to take hit word at that 
tMie, mylqrd. 

L. C. J. There was no ntcettify for that 
neither; no body could foree thee to do it. 
ilU«k-a-day! Tbou seemast to ba a maD of 
some consideration : I mig^btily wonder thoo 
shooldest be so kind to people thou didst not 
know, without any prospect of reeoropence 
whatsoever. 

Dunne, All the reason that indoced 4ne to it 
was, they said they were men in debt, and de- 
sired to be concealed for a while. 

L. C. J. Dost thou believe that any one here 
beliercsthee f Prithee what trade art thou ? 

Dunne, My lord, I am a baker by trade. 

X. C. /. And wilt thou bakethy bread at such 
easy rates? Upon my word then, thou art 
▼ery kind : Pritnee tsllme, I believe thou dost 
use to bake on Sqndays, dost thou not? 

Dunne, No, my lord, I do not. 

X. C. J. Alack-a-day ! thou art precise in 
that ; but thou canst travel on Sundays to lead 
i«]pieB into lurking- holes : It seemetli thon hast 
a particular kindness for a black beard, that is 
all thy reason for undertaking all this trouble. 
Thou hast told me all the truth, hast thou ? 

Dunn^ 1 have, my lord. 

X. C. J. But I assure thee, thy bread is very 
light weight, it will scarce pass the balance 
here. 

Dunne, I tell the truth, and nothing but 
the truth. 

X. C. /. No doubt of that ; hot prithee tell 
me, whose horse didst thou ride when thou 
wentest first f 

Dunne. The man's horse that came to mc to 
desire me to go on the message. 

X. C. J. How came lie to trust thee with his 
korsc ? — Dunne. The Lord knows, my lord. 

X. C. J. Thou saTest right, the Lord only 
knows, fur by the litUe I know of thee, I woum 
not trust thee with two- pence : whose horse 
didst thou 1 ifle the second time ? 

Dunnt, My own, my lopd. 

X. C. J, And where didst thou put thy 
horse when thou earnest to my lady Lislc's? 

Dunne. In the stabk), my ford. 

X. C. J. Where did they put their horses ? 

Dunne, Tliey left them without the gate, I 
diink, my lord ; I did not see tlitin take Uiem 
in. 

X. C. J, No, thou saidst it was so dark thou 
oouldest not see any thing: Pray were yuu 
with the two men when they did afighl ? 

Dunne, We did all three come together. 

X. C. J. What did 3rou give Fane lor his 
pains in shewing you the way? 

Dunne, He had nothing that I know of. 

X. C J, Well, you are the best-uat;ircd and 
kindest- hearted people that ever 1 knew: 
Whereabouts do you live ? 

Dunne. At Warminster, near my lord 
Wey mouth's. 

Mr. PoUtrftn, Piray, Mr. Dmine, Will you 
Wm not there 



searching at that time op and down the coun- 
try for rebels that were fled from the battle f 

Dunne, I dki hear there was, sOBie were 
taken. 

Mr. Follfifen. But did yea hear there wae 
searching at that time for other of the rebels? 

Dunne, I did not hear of any near ese, hut 
there were in other places. 

X. C. J. Then it bemg such a saspiciens 
time, when that little man with the black bear4 
came to thee, didst thou not. ask what that 
Hicks was ? — Dunne, No, my hird, I did not. 

X. C. J. And when Mr. Hkks and the other 
man that is called by the name of Mr. Nehherp 
came to thy house, didst not thou ask thar 
names ? — Dunne. No, my lord. 

X. C. J. Nor didst not tliou ask upon what 
oceasron they were to be conducted to my hdy 
Lisle's ? 

Dunne. No, milord: Hk;ks, thefotman, 
told me they were in debt. 

X. C. J. Did not the man that first < 
you,. and employ you to go on this 
did not he know flicks ? 

Dunne. I cannot tell, my lord. 

X. C. J, Bid not he tell you, Hicks < 
yon to ^, and that he was in debt, and there- 
fore desired to be conceakd ? 

Dunne. Yes, my lord, he did. 

X. C. J. How came you to be so J 
then, as to tell me such a lye ? 




Dunne. I beg your pardon, my lord. 
X. C. J, You beg my pardon ! Tliat is net 
because you told mc a lye, bnt because I have 



found you in a lye. Come, Sirrah, tell me the 
truth ; what did Hicks and Nelthorp with their 
horses, when they came to my lady liele's? 

Dunne. My lord, I cannot UA\, 

L. C, J. Vfhy yuu impudent rased, did not 
you tell mcjust now that they left them at the 
door? 

Dunne. My lord, I said I believed they 
minrbt, but cannot directly tell what they dii 
with them ; I know not but one or other might 
have them awny, bul I did not see it. 

Mr. FoUexfcn. Prithee, friend, tell the troth ; 
what did become of the horses ? 

Dunne. I cannot tell truly, my lord; if Mf 
body had them away, I did not see them. 

X. C.J. W hire (lidst thou lie that night r 

Dunne. In one of the chambers. 

X. C. J. ^Vlio shewed thee the way to thy 
lod«;^ii)^s ? — Dunne. The girl. 

X. C. J. >Vho else didst thou see in the 
house ? — Dvn.'ie. I saw no body at all. 

X. C. J. Then who shewed thee the way t» 
tilt' stable, u:)d hel|>ed thee with horse-meatf* * 

Dunne. No body he1|)cd me to horse-meat. 

X. C. J. Why, tby horse did not feed on thy 
cake and cheese, did he ? • 

Dunne, There was hay intherack, my lord. 

L, C, J, Was the stable -door khdud ir 
openP 

Dunne. The stable door was latched, aadi 
plucke<l up tlie latch. 

L.C.J. Howcameyootokneirthewayl^ 
the stiUe then !> ^ • 



Jbr High Tfwsdn. 

Duinu, Baomim I hud hma lHei« befbrt, 
Dy lorJ. 

L, C. J. Thou htiift ticcif to km>w it ray 
for it seemH tHou wctttett witboot n cimi- 
Be or anv ihiu^ in the worlil, mid iml in thy 
Ofie* Didst liioti see lliat man C<ir|)eiiler llic 
uliff that thou ifiokr^ft off 

Dunne* Mr, Ctfpenler g^ve my horse hoy* 

JL. C J, Wfts there any liglit in Uie stable •* 

Dunnr. Not when I put in inv horst'tirKt. 

X. C J. Who brotif^ht the Uglit tbithtr ? 

Dunne. Goo<Jii»an Oar(»tiilci'. 

X* C\ X Did not he ^ive tby horse hay? 

Dunne. Ycji, he did. 

X. C. X Aod did he not g^ive him oats too ? 

Ditfini'. No, my ]«ml» he did not. 

X. C X I lid not he conduct you into the 
tuse? — Dunne. Who, in y lord r 

X. C. J, That same Goodman Carpenter. 
• Dmmne. No, tny JonI, 

Z. C, J. Did you see any body els« but that 
|iij you g|»eak of? 

Dunne, My lord» I dtd «ee the girl there, 

X, C. X But, you blockbeurl, I ask you 
Vhcther you did see any IkhIv else ? 

Dunne. I do not know hut I inight see 
Joodman Carpenter. 

X. C. /, Why thou saidst he brought thee 

bt, and g^ve thy horae hay ; but I see thou 

L set upon uolhing but prerarieation : 8irrab, 
III me plainly did you see nobody else ? 

Dunne. No, my lord. 
- X. C, X Not any body ? 

Dunne, No, my lord^ not any one. 

X, C X Did you not drink in the house ? 

Dunne. No» my lord, not a drop. 

X, C. X Did not you call tor drink ? 

Dunne. No, my 'lord, I did not, 1 had no- 
hmg but my coke and cheese that 1 broug'ht 
Bither rnvbeU* 

X. C. X W ho went up to the chamber vnth 
ou f — Dunne. The girl, my lord* 

L, C J, And DO liody else ? 

Dunne. No, mf lord. 

X. C. X Was the bed maile ? 

Dunne. Yes, my lord^ it was. 

X. C* J. You eat nothings in the hoiiS€ you 
piy? 

Dunm, Nnihtiig but my own cake and 
, my h>jfd- 

X. C. J. But you did not drink in die house 
I all ? — Dunne. No, my lord, i did not, 

X* C J. Did you drink at Martoo, where 
did call iHMMi Fnrie? 

i>ii/iri<;. ': but not afterwards. 

X* C. X i ' e any lM«ly there the next 

llomiDi^ before they were taken ? 

Dunm. No, my lord ; but alW tiie houiM* 

i beset, t saw my lady and Mr. Hicks, and 1 

ik I tmw Goodman Carpenter* 

X. C X They and you wtre taken there to- 
Kher, wei** not you r — Dunne. Yes. 

Z. C X Did you se« Carpenlei^s wif^, U]>on 
lijrofttli, that flight f 

nne. My brd, I did not, 
tC X Nor no woman kind brides the 
I sp«ttk oH^Dnnne^ N0| itay i^td. 

VOL. XX 



X. C. J. Nor no inan besitles Carpenter ? 

Dunne. No, my lord. 

X. C. X You are sure of this ? 

Dunne, I aui au, wy lord. 

X. C X You are sure you did not drink 
there ^ — Dunne. I am, my foni. 

L. C. J. And you sAy he broujfht the light 
iulo the ttable, nurl gave your horse bay ? 

Dunnt. He did, my lord. 

X, C X Now prithee tell me truly* wher* 
came Carpenter nnlo you ? I ruu»l tnon^ the 
truth of that \ remember that J f^are you fkir 
warning, do not tell me a lie, (or I will be sure 
to treasm'e up every lie that thou teller me, 
nn\\ thou may'st be certain it wilt not be fbr' 
thy advantage : I wOukI not terrify tlice to 
make thee aay any thing but the truth \ but 
assure thyself I never met with a I) tog-, sncak» 
ing, cantiOiJ' fellow, hut I always freusured up 
vengeance Ibr him : and therelore look to it, 
that thou dost not preraricate with me, for to 
be sure thou wilt come to the worst of' it in 
the end. 

Dunne. My lord, I will tell the truth as near 
as I can. 

X. C. X Then tell me where Carpenter met 
tbee. 

Dunne. In the court, my lord. 

X. C, J, Before you came to the gate, or 
after, 

XTttane^ It was afYer we came to the g^tCi 
in the court. 

X. C. J. Then tell mo, and I charge you 
tell me true %vlio was with you wbea CJar- 
penter mc t you ? 

Dunne, Hioks and NeUborp* 

X, C, J. Was there any body else besides 
them two ill the court ? 

Dunne. There was nolnnly hat Hicks and 
Nelihorp, and I ami Mr. Carpenter. 

X. C, X You are sure of that P 

Dunne. Y««, mylord. 

X. C. J* Consider of it, pre yott sure there 
was no body ehe ? 

Dunne. Truly, my lord» I did not mind that 
there was any body elue, 

X. C. X Kecollect youraelf, and consider 
^•^11 of iL 

Dunne, Truly, my lord, 1 do not know of 
any Wly else 

1. C. X Now upon your oath tell me truly, 
who it was that opened the stublc-door, wns if 
C arisen ter or you ? 

Dunne, It V as Carpenter, my lord. 

L.C.J. Why thou vile wretch, didst nol 
thou tell me jtfKt" now, that ihou pluckedst up 
the latch ? float thou lake the Gcid of heaven 
not tr> be a God ot^ truth, and that he is not s 
witness of ull thou siiyest ? Dost ibou tliink 
because thou prcvarieiitest with the court here, 
thrKi canmi do ao with God above " ■ ,v« 
thy thoughts ? And it is infinite -. t, 

for iho!re fnlstiondH of thine, he do* v ii-it im- 
mediately hlrike thee into hdl ! Jeius God ? 

there is uq sort of r -^ ^; - --r humau an* 

cicty to lie kept w -^ theic ort 

who ha*e uo Other j c^.w- ..^, ^^ j m prit«Dte> 



339] 



1 JAMES II. 



Trial of the Laiy Alice Litle, 



[5ia 



and no way to uphold themBelves but by coan- 
tenancing lyings and villainy ! Did uot you tell 
nie that you opcue<l the latch yourself, and that 
you saw no body else but a ^irl ? How durst 
you offer to tell such horrid lies in the pre- 
tence of Cod and of a court of justice ? An- 
swer me one question more : Did he pull down 
the hay, or you ? 

Dunne, I did not pull doHH any hay at all. 
L. C. J. Was there any liay pulled down 
belbrethe candle was brought ? 
Dunne. No, there was not. 
L. C. J. Who brought the candle f 
Dunne. Mr. Carjientcr brought the caudle 
an;l lanihoni. 

L. C J. It seems the saints have a certain 
charter for lyin«^ ; they may lie and cant, and 
deceive, and' rebel, and think God Almighty 
takes no notice of it, nor will reckon with them 
for it : You see, gentlemen, what a precious 
lellow this is, a very pretty tool to be employ- 
ed upon such an errand, a knave tliat no body 
would tru>t tor half a crown between mail 
and man, but he is the fitter to be employed 
about such works ; what pains is a man at to 
get t!ie ti'uth out of these fellows ! and it is 
with a great dcalof lalwur, that we can squeeze 
one drop out of them ! A Turk has more title 
to an eternity of bliss than these pretenders to 
Christianity, for be has more morality and ho- 
nesty in him. Sirrah, 1 charge you in the 
presence of God, tell me true. What otlicr 
persons did you see that ni<;ht ? 

Dunne, My lord, I did not se^ any than 
w hut I have toM you already. 

L. C. /. Then they went out and brought 
woixl that thou wert come, and so he came out 
to meet thee. Very well ; 1 would have every 
body that has bmthe least tang of saiutship 
to observe the carriage of this Icllow, and see 
how they can cant, and snivel, and lye, and 
forswear themsolvr^, i.nd uU for the good old 
cause : They will stick at nothing, if they 
think tlicy can but preser\e a brother or sister- 
saint forsooth ; they can do any thing in the 
world but speak truth, and do their duty to 
God and their govtrnuis : I acfk you again. 
Dill not (.'arpeutei- meet you before you left 
iiii'ks and Nelthurp.' 
Dunne. No, he did not. 
L. C. J. Then 1 ask you u'^aiti once more, 
did not Carpenter ask you to drink i* 
Dunnt. N(», he did not. 
/.. C. J. Did not he lijihr \ou with a lan- 
ihoni and candle into the iiouse ? 
Dnniv. 1 \^ent into the Louse. 
L. C J. DoNt ihoii i»i'li<»\e we tliink any 
bi ,!y \\i\<>i ihtein 'i Did he light tiice in, i 
a^k ilitL* :' 

Dum c I went in iilon^ \\\[\\ >Ir. Car|)cntcr. 
L. (..'. J. \\ iiat room diil L^ curry you into .' 
Dunne. Ai'y lord, ho i-ii ricfi ice into no room, 
(he \oun^;' '.voniaii shewed me into a room. 
L. C. J, \^'liat room was it^* 
DunuL. Into tliiM.itamhei'. 
h. C. J, sVuH not thou in the ludl or kitchen f 
Dunnt, No, uiy luid. 



X. C. J. It is bard that thou htdifcnot «te 

cup of drink to thy cake and cheese. 
Dunne. My lord, 1 had never a drop. 
L. C. J. No, nor did nobody ask yoa to cat 
or drink ? — Dunne, No, my lord. 

L. C. J. Thou art the best uatured fdlow 
that ever I met with, but the worst rewarded. . 
Come, I will ask thee another quortion : When 
was the first time thou heard'st Nelthorp's 
name? — Dunne. Not till be was taken. 

L. C. J. V\ hat name did the fellow with the. 
black beanl tell thee he had P 

Dunne. My lord, he nerer toM me any 
name. 

L. C, J. Didst thou never ask him his name P 

Dunne. No, my lord, that man that was af- 

terwanls foun<l to be Ndthorp, I did not 

know to be Nelthorp till he was taken, nor 

what his name was, nor any name he had. 

L. C. J. No, prithee tell the trutli» did DOi 
Nelthorp go by the name of Crot\s P 
Dunne. He did, my lord. 
L. C, J, Then prithee, when did he firalgo 
by that name in th v heariuff p 

Dunne. My lord, I only heard Hicka aay be 
went by the name of Croits. 
L. C,J. When was that P 
Dunne. When they were taken. 
L, C. J. Did you not hear him called by 
that name any time of the journey ? 

Dunne, 1 cannot recollect, my lord, that I. 
ever did. 

X. C. J. Thou can'st recollect nothing of 
truth : Is this as much as you can lay P 
Dunne, It is, my lonf. 

Mr. Jenninfrg.* You say Carpenter met yoa . 
very civilly, and took care of your horse : Did 
he make no provision for Hicks and Nelthorp's 
horses ? W hat became of ihem P 
Dunne. I cannot tell, my lord. 
Mr. Rumsay. Did you see their horses after- 
wards ? — Dunne. No, my lord, I did nut. 

Mr. Rumsay, When they alighted from' 
them, were they tyeit fast to tlie gate, or how ? 
Dunne. They were not ty ed at all, as I know 
of. 

Mr. Jennings. Did you tell Carpenter that 
their horses were there r : 

Dunne. I did not tell him any such thin|^. 
L. C. J. Thou art a strange prcvaricatiqft 
shuffling, sniveling, lying rascal. 

Mr. Foilcxj'cn. We will set him byforthfi 
present, and call Harter that is the other fellow. 
]^. C. J. Will the prisoner ask this peno» 
any questions ? — Lw/r. No. 

L, C J. Perhaps her questions might ei^ 
danger the coini:)*^ out of all the truth, and it 
may be she is Hell enough pleased to have him , 
swear as he does ; but it rarries a very fool * 
face upon my ^vuitl. [Then Barter wa^ 
sworn. 

/.. C. /. Is this Barter? 
31r. PolUxJen. Yes, my lord, forhis^prtirt 
have his examination before two justiDei aC 
pence ; hut we hope he is an honest l<dlow»aM^ . 
will tell the truth. 
L. C. /. That is all one whether yoa hM| \ 



541] 



Jar tligh Treaton. 



I 



bii eximStifttlcai or doI ; I expect he sliould 
tdl tue the trath^ and the whole truth liene. 
Fritmd, yon know your scuii is *l puwti for the 
Inlth ««■ what you te«fiiy to us ; tlie other fel- 
l«w th«ai seest has been pretaricfttin^ vrilh na 
all this wbih", and swenrinjj off and oii» oud 
icarce told one uovd of truth, 1 know xery 
well : Now I know as much ot'lhce as I do of 
hhij, therefore look to thysdf, and let the 
trutli and uotliiu;^ Init the truth come out. 

Barter, Mov it please your honour, my 
lord, ihts mail bumie came to my house upon 
the Saturday, and spi>ke to me to ride ah>ng' 
with him to' Ihloy1e*s court, where my lady 
l^tala lived ; and I having' no other hu sinews at 
that iime^ did go along with him ; He had a 
1«tter in his pocket, and J saw him produce 
the letter to my lady*s Itaillff, Mr. Carpenter, 
hut he would not meddle with it, so 1 suppose 
he we:3i in with it to my lady ; and wliile 1 was 
in the kitchen, my ludy came thither, and 
aake<I me, said she, whut'countrymau aii. thou ? 
Said 1, madam, V am a WiltJ^bire maiu Saiih 
ihe, do'st thou make bricks ? No, aaid 1, ma- 
dam » I cannot, I can help in husbandry -work. 
Saith she, if thou eould'st make bricks, I will 

r've thee ten acres of g^it)und in such a place, 
told her no I could not: and then she goes to 
this man Dunne, and there she was laughing 
with him, and looked u|tonme; and afterwards 
when we were going^ along, I asked him what 
she laughed at f 

L. C, J, Ay, and now tell me what he said 
to thee about tt ? 

Barter, He told me, my lord, my lady 
asked, whetljer 1 knew any thing of the ci»n- 
oerti f Anil thai he answmd her, no ; this 
the fellow told me was that she laughed at. 
Atter tliis, 1 could not eat nor drink, nor sleep 
for trouble of mind, UU I had discovered thii 
to aoftie justice of the petice ; nnd I resolved 
at latl to goto col. Feiiruddock, and consult 
him about it ; ao 1 went over and told him of it. 

X. C. J. What did you tell colonel Feurud- 
dock, let us hear ? 

Barter. Where I had been the Saturday be- 
forei and whrre 1 »h(mld meet them a^aiu upon 
Salisbury -Fkin upon the ^Wsday, tor I did 
€X[»ect to meet them there according to ap* 
pomtment, and we did agree he should come 
and take them there \ but afterwards missing 
them tJiere, or for some other rea^tou, f do not 
know what, bi£ mind altered, and he came to 
take tliem in the house : So when I met them, 
we rode on about ten miliK, and they would 
have had me to have led them a private way 
over the fording briijge toiviirds ^lovlo's-court, 
^u* I »"''* ili. Mi i,i - me thry iutended to have 
III! \ muKi go the way that 



would gii that private 



way, and so lo«c thtir way ; then they sent 
back thLw Dunm; lo Marton to one Fane, that 
was the fat mao that »enl him : but I liudtog 
that I was of no more vala« then, rode away 
from tbctZL and baring a relation that lived on 
thai itide of the country, I went to let colonel 
Piuuddock kii#w that they were at t^ hoiue. 



A. D- 1685. 

But hefbre f went away from them, Ncltlio^ 
gave me five shilUugt, hulf a crown, and twd 
shillings and a six- pence* J 

L. C, J, Now ihou sayeet Nelthorp did^ 
Did^ft thou hear his name named ? j 

Bfirtrr, I ue^rr could tind auy of thei| 
names till thev were taken. 

Mr. Pui tea; fen. Pray, llarter, what discour 
hud you wiiii iJuiine the firsit time you wcr 
goin^ to and from my lady Liiile's concerning 
the men that he was'to bring thither, aud wha 
estates they had ? 

Barter. TWy lord, he said they had half ascor 
of thousands of pounds a year a- piece. 

Mr. FoUcxfen. Did he tell you I hey were ( 
come to my lad^ 's ? 

Barter. Yes, lie told me they irere to < 
upon the Tuesday, and they were to oom^ 
such a way, and were to come to tuy lady V f" 
the evening. 

h, a J. What wer^t thou to hare for thi ^ 
pains ? — Barter. I made no bargain, my lor J, ^ 

£. C» /. You ore all very free, kind-tiearted 
people, I say that for you. 

3Ir. Pollesfen. ^Vhat did Dunne say about 
his gains ? ^ 

Barter, He told u)c he liad a very fine boot| 
for his part, and that he should never wa 
money apain, and that I should be very wt 
paid, and gave me half a crown. 

L, C, J. Then let my honest man, MrJ 
Dunne, stand forward a little. Come, friend J 

Ji'ou have had ^me lime to recoUccl yourself ; 
et us see whether %ve can have the truth 4iut of 
you novf : You talked of carrv'i'g a inessitige 
from Hicks lo my lady Usic ; did not >»** 
tarry a letter? — Dunne, No, mj> lord, I did not. 

Z-. C. J. Did not you shew" a leltei to the 
bail ill', Carpenter ? 

Dunne. No, my lord, 1 did not. 

L. C. J >Vhal suy yon, Barter, to that ? 

Barter, My lord,' I did sc« him produce th 
letter to the bailiC 

X. C. J. Then 1 will mk you another que 
tion ; Did you not tell Barter that you ?>hould 
be at8alisnury-P|ain, with two )»eople, ujtan 
the Tuesday ? 

Dunne, ^o, my loi-d, I said between Comp- 
ton and Fovant, 

L. C. J. Did not you tell him, that thcj^ 
were brave fellows, and had God knows* hor^ 
many thousand pounds a year a- piece f 

Dunne, No, mv lord, 1 did not. 

L,C.J, Then one thing more: Did not yon 
tell him, that you told my lady, when !.ho 
asked whether he was acquainted with the cou- 
cern, thut he knew uoihiiig of the bosintss ? 

Dunne, My lord, 1 ihd tell him so. 

L, C. J. Did ywn »" ^ 'l*'**^^* y^*^ ^""^ ' ^**"''' 
have a Utile funter discourse : Come now, and 
tell us, what basmej»s%*as that:' niRltelhiiis 
»o, that a man tuJiy uuderstaud and believe tliat 
ihou doil Bi>eak truth. 

Dunne, Do4s your lordship attk what that 
business was f 

X. C. /. Yes, It is a pUtu qu«tion -, W hat 
was thai businesa that my Udy asked titey, 



9iS] 



I JAMES n. 



Trial of the Lmfy Alke Lide, 



CW* 



whether the other man knew ; and then you 
aDswered her, that he did know nothings of it ? 
—[Then he Miused a while.] 

jL C. J. Remember, friend, thou art upon 
thy oath ; and remember withall, that it ia not 
thy life, but thy soul that is now in danger : 
tlierefore I require from thee a plain an- 
swer to a very plain question : What was that 
business my lady enquired after, whether the 
other fellow knew, and thou toldest her, he 
ditl not P — [Dunne made no answer, but stood 
luusing a while.] 

L. C. J. Uc is studying^ and musing; how 
he shall prevaricate ; but thou hadst better 
tell the truth, friend : remember what thou 
hast said already ; thou hast said, that thou 
didst tell that man, that the lady asked 
^ou, whether he knew any thing ot the bu- 
siness, and thou toldest her, he did not? 
^~ow 1 would know what that b«ismess 
was. — [Still he made no answer but seemed to 
muse.l 

L, C. J, Look thee, if thoa canst not com- 
preheud what I mean, 1 will repeat it to thee 
agaiu ; for thou shalt see what countryman I 
am, by my telling niy story over twice : there- 
fore I ask tliceunce atpiin. Thou sayeilst thy 
lady asked thee, whether he knew of the bu- 
siness ; uiul tliou toldeKt her, he did not. Now 
let us know what that business was? 

Dunne, I cannot mind it, my lord, what 
it was. 

L. C. J. But mind me, prithee : Thou didst 
tell that honest man there, that uiy lady Lisle 
asked thee, whether ho knew any thing of the 
business, and thou saidest no. VVliat was that 
buijiiness ? 

Dunne. That business that Barter did not 
know of? 

L. C. J, Yes, that is the htisiness ; be in- 
genuous, tell the truth : Oh ! how hard the 
truth is to con»o out of a lying Presbyterian 
knave. Prithet*, fritMul, cousidt- r the oath that 
thou hast taken, and that thou art in the pre- 
sence of a (lud that can n (it endure a lie, nor 
whose holiness will not admit him to dispense 
-with a lie : Consider that that (ioti is an infinite 
bein^ of purity, holiness, and truth ; and it 
would be inconsistent with his being todis- 
{>ense with the least untruth ; and thou hast 
called hini to witness, that thou wonldest tes- 
tify the truth, the whole truth and nothing but 
the truth. I charge thee, therefore, as thou 
wilt answer it to that God of truth, and that 
thou niayest be called to do, for ought 1 know, 
the very uext minute, and there thou wilt not 
be able to pallialc the truth ; what was that 
business you and my lady Bpi4ve of ?— [Tlien 
he paused for half a quarter of an hour, and at 
last said ; 

Dunne, I cannot give an account of it, 
my lor«l. 

L. C. /. Oh blessed God! Was there ever 
such a villain upon the face of the earth ; to 
what limes are we reserved! Dost thou be- 
lieve thai th«>re is a Goil ? 

i^— €. Yei, my ford, I do. 



X. C,J. Dost thoo beKm, thtft UmiI CM 

can endure a lie ? 

Dunne, No, my lord, I know h% oaanot. 

L, C, J, And <fo6t thou believe ibentfuliM 
is a God of truth ? 

Dunne, Yes, my lord, I do. 

L. C,J, Dost thou think, that diat Ge* 
of truth may immediately sink thee into Ml* 
fire if thou tellest a lie ? 

Dunne, I do, my lord. 

L. C. J. Dost thou believe, that he dost ob- 
serve every thing that thou thhikest, sajest, er 
doest ; knows the secrets of thy heaft, and 
knows whether thou tellest alio or not, tboegh 
perhaps it may be hid from ns ; aad knows 
whether thou dost prevaricate or not P 

Dunne, I know, the Lord does know sA 
things. 

L, C, J, Dost thou believe, that he kwwfl 
the business that you and my lady the prisoner 
were talking of, as well as you do ; that he 
hath an almighty power over all h» cpsetani, 
an all -piercing eye, that looks mto the hearts of 
every one of them, and firom which eodiuig 
can be concealed f D<»8t thou believe it poosMs 
to conceal that very discourse of yours liroei 
the knowledge of that infinite Being ? 

Dunne, My lord, I do believe that there is a 
God above. 

L. C. /. I ask thee then again ; dost tbse 
believe, tliat that God above, who is a Getf sf 
truth himself, is ouniiscicut, oronipreseMt, •» 
whom all truth is naked and open, that be 
knows every thing that is either thooglit, sski, 
or done by an>- of his creatures, sees sod 
knuws the hearts of all men ; dost thoii be- 
lieve all this?— [He stood silent for a good 
while.] 

L. C, J. Friend, deceive not theself; the 
great God does observe and know the seerrt 
workings of thy thoughts now, and how tradi 
struggles to get out, but bsseness and vilhmy 
keep it in: All the private imaginations el* thy 
heart are not only known to him, bnt regietcped 
by him, and thy conscience will bear witeew 
to thy accusation when thou art called te an- 
swer for them, and answer for them thoa i^ 
tor the scripture, that is the woni of God, t 
us, * Tliat every vain thought we must i 
for.' ]>ost thou thru believe, that any db- 
is course between yon, though never so pnvels, 
pri^-ate from the Almighty, All- knowing' Gedf 

Dunne, 3fy lord, I know it is not, Mr 
cannot be. 

L, C. J, I therefore once more adjure tlieev 
as thou wilt answer it to that God, that k 
the Searcher of the hearts and trier of the 
reins, to whom all hearts are open, and frsar 
whom no secrets are hkl, that then loahe 
me a plain answer to my question; aad 
as thou hast calh d God to bear i^itness tethe 
truth of the evid(*nce thou givest here ia ^Mt 
court, so I charge thee, in his name, to de- 
cbre the truth, and nothing but the troth. Hhm 
tell us what was the biisineiis yon spoke off 

SBnt he made no aiHiifelv 
Uam MoDtagve^ Btf;/ 



Frtend* mind wh«t my lerd mya to yoa* imd 
cnn^itjf r, how msy ft thiog it is fbr t man to 
4]>eak truth, juid ^ve a plajn answer to n filnm 
qrie^tion* You cannot but understand what 
tnv loM asks of ynn : \ nn ^niil tven no^v, that 
\*)M did tell the ir ■ -irter, that my 

lady asked you f \\u - i > u- any tliingof 

the bosictess i and you told iter, he did not. 
Now my lord would liave you tell os, what 
that bQ8i(j€^ was? 

[He seemed to tarn his head on one aide, 
but returned no answer.] 

L, €* X He is ^olag to ask that man there 
whether he shall tell the ii'uth. 

Dunne. No» my lordi 1 ask tio man any 
such nuestioD. 

L. C. J, IVithee tell its the troth then now ; 
Thou uri lo know, that thou standest in the 
presence of the God of truths and host called 
Dim to witness, tltat ttiou wouldst tell the 
truth. 

Dunnt. My lord, I do tell the truth, as far 
as I can remember. 

L. C. J, Then what was that you told my 
lady Lisle, Barter did not know ? 

hunnt* What Barter did not know^ my 
lord? 

X. C. J. Ay, 19 not that a plain question f 
Of all the wiiueases that ever I met witiv, 1 
never saw thy fellow. 

[He stooaa (^^ooil while, and made no an* 
swer.] 

L. C. J. I hope» gfentleraen of the jury, you 
take notice of the strantje and horrible cjirriage 
^ this fellow \ antl withal, you cannot hut 
rve the sjiirit of that sort of people, « hat a 
illamous and devihsh one it is : good God ! 
that ever the lhtn|f called religion (a word thai 
people have so much cibm^e*!) should ever wind 
tip persuoK to such a height of impiety, theit 
it should make lliem lone the belief that there 
is a Gud of tnith io Hc^avcu, that sees and 
knows, obsertes and registers, and will punish 
and take vengfennce of tklshood and perjury. 
ft may II el I m;^ki^ i lie rest of mankind, that 
have any sort of faith in a Deity und a tuture 
life, ti> abhor sofl detest both the men and their 
li^ion, if surh almmtnalde principles may be 
* so, A Turk is a snitit to such a fellow 
, nay u P^^nn woiilrl Ue anhHrHpil to br 
ight to hare no more truth in him* O 
j ,»- »in« I What nn o^fo do wc live in, and 
what ;' II of viperb do \yv live among ? 

t^rt, I I you call the Protestant reli- 

^on \ htiati so g'lorion;) a nami^ l>e applied to no 
much Tillany and hrpi»crisy f \^ this the pur- 
suasion \ou'hopf to live, and dif, aT\d find sal- 
vation in 5* Will stny of you iilt, gentlemen^ be 
contented to tlie with a lytMn v)ur mouth ? Ilo 
not you all rxpect, arccrrding^ to the orthudox 

rtrine of the true Church of Kng'bnd, that 

niut damnation Hill be the portion ol lyars? 

J th »u wiciotl wreti-h, how dur^t thou iip- 

f toffivr trjtiroony befmo eren an earthly 
ibunn* witii >«> much injjiudeucc and fulji- 
1, when isiriry lye tnH rust thcf «o ilwav, 
a ttacQi'caoa hearty rej entancc, and 



^U 



\ take 

pVlllai 




the infinite mercy of the great Ood interpose f 
I charjfo you once mai^, as you will answer it 
at the bar of the great ,ltH<-r« ,.i ,,ii x\^^ wrnHd^ 
(hat you tell me what " ^s was ^^li 

and the prisoner talked a I m run J-lpf 

what a conditiou thou 1 y 

all this sliufRinsf aofl prt tr» 

ofiy thinij of mercy in this h\'^ ; for ojilecti it is 
not fit thou shoumst have the leasii hivpea of 
mercy oa this side eternitv^ and truly there is 
no man ean imagine Ic^s'tlian infinite mercy 
can pardon bo fiagiltous a sin, one that soifft* 
podently telU and stands in a lie. * 

[Still he would make no answer. 
L* C X Jesus God I Was there ever such a 
fellow in the world as thou art ? Prithee let me 
ask thee once a^ain. Dost thou believe that 
thei^ is a God, that this God h spotless truth 
and purity itself? Dost thou believe thou hast 
a precious and immortal soni, that is to live in 
everlasting- bliss or eiernut misery after this 
life, accortfin^ly as thou cHrripstit here; if 
thou dost fjeliev'e it, ought not the concerns of 
that precious and immortal soul of thine to be 
much dearrr to thee than ten thousand worlds f