no more then that the Objection regulariter procedit in Crimes which of their own nature are not perdifficilis probationis and are not inter crimina excepta such as the Cryme of Conspiracy and Treason is MR. Williom Fletcher Oppons the Objection and Reply and further adds that albeit crimen loesae Majestatis be reckoned inter crimina excepta and so have some priviledge as to the qualification of Witnesses yet it cannot be denyed but there are some Objections competent against Witness adduced for proving Conspiracies and Treason verbi causa that a Witnes is a Capital Enemy or that he is sub potestate accusatoris and the Objection now pleaded being taken complexlie viz. That the Earl of Tarras is not only sucius criminis but also that he is publico judicio reus upon the same Crime and that as means to procure His Majesties savour he has submitted himself and come in His Majesties mercy by an acknowledgment of the Cryme before the Dyet of Citation he is obnoxious to a most just Objection viz. That he is sub potestate and by the submission and Confession his Life and Estate is now in His Majesties hands so that he is not only in the case of a reus confessus but in the case of a Witnes who does absolutely depend upon His Majesties Advocate the Pursuer and as a private accuser could not adduce his own Servants to be Witnesses because they are â—estes domestici and depend upon him so far less ought a Witnes to be adduced who not only depends as to his Estate but as to his Life and the Law gives a very good reason and which is mentioned by Paulus lib. 1. receptarum sententiarum cap. 12. parag ult In these words de se confâ—ssuâ— non est audiendus ut testis ne alienam salutem in dubium deducat qui de sua desperavit and as to the pretence that a Conjuration is a Cryme so occult that it must either be proven by such Witnesses or otherways the guilty person will escape It is answered that in this case His Majesties Advocate had an easie remedie â—or he might have pursued the Pannal before he pursued the Witness and the Terror and Apprehension of the event of a Process for Treason cannot be constructed otherways then to have influence upon the Deposition of the Witnes and as to the Citation out of Farinaâ—ius it is only in the case oâ— â—ocius â—riminis but when he comes to treat de â—este accusatio vel carcerato Quest. 56. articulo 4 to He sayes Regula sit in accusato quod is pendentâ— accusatione à testimonio repellitur and be the 2 d. Rule of the same Arâ—icle He sayes it is a principle quod carceratus testimonium ferre prohibetur and he gives this reason quia praesumitur quod falsum testimonium diceret pro aliquo qui ei promiserit se liberare a vinculo and limits this Rule that he must be carceratus propter crimen SIr Patrick Hume adds that it is a certain principle that any person that is guilty infamia juris cannot be a Witness no more than a person that is Convict and Condemned of Treason and if he were Convict and Condemned of Treason he could not be a Witness even in the case of Treason so neither can the Earl of Tarras in this case be received a Witness for he being adduced a Witness after he received his Indiâ—ment and confessed the Crime is equivalent as if he had been actuall Convict and whatever may be pretended that testes infames may be admitâ—ed yet it was never asserted by any Lawyer that a person Convict of Treason can be admitted a Witness THe Lords Repelled the Objection against the Earl of Tarras and ordains him to be received a Witness WAlter Earl of Tarras aged fourty years married purged and sworn being Interrogat if about the time that Sir Iohn Cochran and Commissar Monro got their Commission from the Carolina Company for London the Pannal Mr. Robert Baillie of Ierviswood did not desire the Deponent to speak to Commissar Monro to try if he could get him the â—aid Pannal added to that Commission Depones affirmative Being Interroâ—at if the said Ierviswood the Pannal did not tell the Deponent that he was resolved to go to London however upon his own Expenses and that his and their going about the Carolina Bussiness was but a pretence and a blind but that the true design was to push foreward the people of England who could do nothing but talk to go more effectually about their bussiness Depones affirmative Depones that the Pannal did settle a Correspondence with the Deponent whereby he was to give an account to the Deponent of what should pass betwixt the Countrey Party in England and the Scots men there and on the other hand the Deponent was to Write to him what occurred here Depones that the Pannal did say to the Deponent if the King would suffer the Parliament of England to sit and pass the Bill of Seclusion that that was the only way to secure the Protestant Religion Depones that the Pannal said to him that the King might be induced to do so if the Parliament would take sharp or brisk measures with Him or the like Depones these words were spoke to him by the Pannal since the holding of the last Session of this current Parliament and before the Pannal and Commissar Monro went for London Depons that after the Pannal went to London he did give the Deponent an account by Letters that things were in great Disorder there and that he hoped there would be effectual Courses taken to remeid them Depones that Mr. Robert Martin did come to Mr. Pringle of Torwoodlies House in May 1683. or thereby and brought a Letter to the Deponents Lady unsubscribed but the Deponent knows it was Ierviswoods Hand-writing who was then at London and that Mr. Martin told the Deponent that things in England were in great disorder and like to come to a hight and that the Countrey Party were considering on methods for securing the Protestant Religion And that Archibald sometime Earl of Argile was to get ten thousand pounds Sterling whereas thirty thousand pounds Sterling was sought by the Scotsmen at London which was to be sent over to Holland to provide Arms and that the late Earl of Argile was to Land with these Armes in the West-Highlands of Scotland and that the Deponents Friend Ierviswood the Pannal was to be sent over with the Money Depones that Philiphaugh and he went to Gallowshiels House where they met with Polwort and Gallowshiels and that it was talked amongst them there that in case those in England should rise in Arms that it was necessary in that Case that so many as could be got on the Borders should be in readiness to deal with Straglers and seize upon Horses and that thereafter they should joyn with those tâ—at were in Arms on the Borders of England Depons That in the
conventient places for Landing if he understood and as the Deponent remembers where the Ships could attend The Deponent remembers not the names of the places The Deponent spoke to the Lord Stairs but cannot be positive that he nam'd the Affair to him but found him shy but the Earl of Argile told him he thought Stairs might be gain'd to them And that the Earl of Lowdoâ—n being a man of good Reason and disobliged would have great influence upon the Countrey and recommended the Deponent to Major Hâ—lms with whom the Deponent had some acquaintance before and had brought over a Letter from him to the Earl of Argyle but the Deponent had not then communicate any thing to the said Holms Iames Steuart laid down a way of correspondence by Cyphers and false Names and sent them over to Holms and the Deponent for their use which Cyphers and Names are now in the hands of His Majesties Officers as the Deponent supposes and did desire the Deponent earnestly to propose the 30000. pound Sterling abovenamed to the party in England and did not propose any less for as the Earl told the Deponent he had particularly calculate the Expence for Arms Ammunition c. But Iames Steuart said that if some less could be had the Earl would content himself if better might not be but the Earl always said that there was nothing to be done without the body of Horse and Dragoons above-mentioned During the time of the Deponent his abode in Holland tho he had several Letters from Shepard yet there was no satisfactory account till some time after the Deponent parted from the Earl of Argyle and was making for a Ship at Rotterdam to transport himself to England Iames Steuart wrot to him that there was hopes of the Money The next day after the Deponent came to England he met with Sir Iohn Cochran who with Commissar Monro and Ierviswood was at London before he came over and depons that he knows not the account of their coming more then for the perfecting the Transaction about Carolina and having acquainted Sir Iohn Cochran with the Earls demands of the 30000 pound Sterling and the 1000. Horse and Dragoons Sir Iohn carried him to the Lord Russel to whom the Deponent proposed the affair but being an absolute Stranger to the Deponent had no return from him at that time but afterwards having met him accidently at Mr. Shepards hoâ—se where he the Lord Russel had come to speak to Shepard about the Money above-named as Mr. Shepard told the Deponent The Deponent when they were done speaking desired to speak to the Lord Russel which the Lord Russel did and having reiterate the former Proposition for 30000. pound Sterling and the 1000. Horse and Dragoons he the Lord Russel told the Deponent they could not get so much raised at the time but if they had 10000. pound to begin that would draw People in and when they were once in they would soon be brought to more but as for the 1000. Horse and Dragoons he could say nothing at the present for that behoved to be concerted upon the Borders The Deponent made the same proposal to Mr. Ferguson who was much concerned in the Affair and zealous for the promoving of it This Mr. Ferguson had in October or November before as the Deponent remembers in a Conversation with the Deponent in Cheapside or the Street somewhere thereabout said that for the saving of innocent Blood it would be necessary to cut off a few insinuating the King and Duke but cannot be positive whether he named them or not to which the Deponent said that 's work for our wild People in Scotland my Conscience does not serve me for such things after which the Deponent had never any particular discourse with Ferguson as to that matter but as to the other Affair Ferguson told the Deponent that he was doing what he could to get it effectuate as particularly that he spoke to one Major Wildman who is not of the Deponent his acquaintance Ferguson blamed always Sidney as driving designs of his own The Deponent met twice or thrice with the Lord Melvil Sir Iohn Cochran Ierviswood Commissar Monro the two Cessnocks Mongomery of Landshaw and one Mr. Veitch where they discoursed of Money to be sent to Argyle in order to the carrying on the Affair and tho he cannot be positive the Affair was named yet it was understood by himself and as he conceives by all present to be for rising in Arms for rectifying the Government Commissary Monro Lord Melvil and the two Cessnocks were against medling with the English because they judged them men that would talk and would not do but were more inclined to do something by themselves if it could be done The Lord Melvil thought every thing hazardous and therefore the Deponent cannot say he was positive in any thing but was most inclined to have the Duke of Monmouth to head them in Scotland of which no particular method was laid down Ierviswood the Deponent and Mr. Veitch were for taking Money at one of these Meetings It was resolved that Mr. Martin late Clerk to the Justice Court should be sent to Scotland to desire their Friends to hinder the Countrey from Rising or taking rash Resolutions upon the account of the Council till they should see how matters went in England The said Martin did go at the Charges of the Gentlemen of the Meeting and was directed to the Laird of Polwart and Torwoodlie who sent back word that it would not be found so easie a matter to get the Gentrie of Scotland to concur But afterwards in a Letter to Commissar Monro Polwart wrote that the Countrey was readier to concur then they had imagined or something to that purpose The Deponent as above-said having brought over a Key from Holland to serve himself and Major Holms he remembers not that ever he had an axact Copy of it but that sometimes the one sometimes the other keeped it and so it chanced to be in his custody when a Letter from the Earl of Argyle came to Major Holms intimating that he would joyn with the Duke of Monmouth and follow his measures or obey his Directions This Mr. Veitch thought fit to communicate to the Duke of Monmouth and for the Understanding of it was brought to the Deponent and he gave the Key to Mr. Veitch who as the Deponent was informed was to give it and the Letter to Mr. Ferguson and he to shew it to the Duke of Monmouth but what was done in it the Deponent knows not The Deponent heard the Design of Killing the King and Duke from Mr. Shepard who told the Deponent some were full upon it The Deponent heard that Aron Smith was sent by those in England to call Sir Iohn Cochran on the account of Carolina but that he does not know Aron Smith nor any more of that matter not being concerned it it Shepard named young Hamden frequently as concerned in these Matters Signed at
Words for which Alphabet as yet there is no use found And also from the Key it self wherein tho there be upwards of 80 new coyn'd Words yet in all this Parcel of Letters there is not six of them made use of which likewise appears evidently from the tenor of all his Letters and particularly from the beginning of the long Letter pag. 31. where he says I did truly in my Proposition mention the very least Sum c. and a little after he says and what I proposed I thought altogether so far within the power of those concerned c. and towards the end of that same Letter he says But before it be given over I wish I had such a Conference as I wrote of to you a Week ago c. by which and many other Passages and Circumstances what is above-said becomes undenyable The method or way of opening the long Letter discovered by Mr. Gray for further Confirmation BUT for further Discovery of this Treason The Secret Committee finding that Mr. William Carstares one of the Prisoners sent down from England was not only frequently mention'd in several of Argiles Letters but related to in them as one of the principal Agents in these Affairs They endeavour to bring him to a Confession but all endeavours were fruitless untill he was put to the Question according to Law and Custom of this and other Nations in such Cases where Persons under great and pregnant presumptions of the knowledge of Crimes refuse to confess they are by Law to be put to Torture especially where they refuse to depone upon Oath to the Interrogators proposed their Depositions being always declared to be of no force nor danger to themselves all which concurred both in Mr. Carstares and Mr. Spence This man albeit he was not easily brought to confess yet once brought to it seem'd very ingenuous And what he deposed at several times is insert to a word in his Deposition which is not here insert to evite prolixity being at full set down in Ierviswoods Process hereto subjoyned pag. 23. Every step discovering a new Scene of Treason the Secret Committee did order the apprehending of Polwart Torwoodlie Philiphaugh Gallowsheils and the Earl of Tarras as those who had corresponded with other Scotsmen and Englishmen in England on these Treasonable Designs Polwort and Torwoodlie being indeed most active and conscious to themselves of the highest Guilt were more watchful over themselves then others and so escaped before they were taken the other three were brought in to Edinburgh where Philiphaugh and Gallowsheils did at their first appearance freely and voluntarly confess as is subjoyned in the said Process against Ierviswood pag. 14 15 16 17 18 19 20 21 22 23. both these had assurance that their Confessions should not militate against themselves without which they could not legally be examined upon Oath in so capital a Crime Alexander Monro another of the Prisoners being likewise examined did depone as is subjoyned in the said Process and shortly thereafter the Earl of Tarras without either craving or receiving any security but on a sincere remorse for his Guilt did give in an ingenuous Confession of what he knew of the Design as it is there also subjoyned pag. 12 13 14. These Depositions and Testimonies both in England and Scotland concurring to bring a manifest Guilt on Baillie of Ierviswood as one of the most active and violent in these Conspiracies whereby he did design with all possible rigour and imaginable violence to destroy the sacred Person of His Majesty and His Royal Brother to overturn the Monarchical Government of Britain to destroy our established Religion the Property and Liberty of all Subjects to settle all the Power in the hands of Bloody and Fanatical Assassinats to break off the happy Peace and Tranquility wherewith God hath blessed us under the Reign of a most Gracious King and in place thereof to throw these Nations into Ruine and War and to bring over our Isle a Deluge of Blood he was pitched upon as the first Person who should be brought to Tryal for these Execrable Crimes and accordingly on the 23 of December 1684 he was brought before the Justice Court the Privy Council having commanded such Advocats as he named to plead in his defence so far as Law could allow the Libel adduced against him being found Relevant beyond all Controversie he was by a Jury of Noblemen Barons and others his Peers found guilty of these Execrable Crimes and by the Proofs adduced against him in presence of the Judges Jury Panual and a Croud of all kind of People who were Auditors they were all convinced of his Guilt wherefore he was on the 24 of December condemn'd to the death of a Traitor being Hang'd Quartered and his Quarters affix'd The plain and evident probation adduced against Baillie of Ierviswood in this Process the Probation and Confessions of Captain Thomas Walcot and Iohn Rouse in England not only at the time of their Trial but at the time of their Death when all dissimulation was to little purpose The faint Defences of the Lord Russel and Collonel Sidney with the open Prevarications in their Confessions and the certain Demonstration by the discoveries which are laid open in Argiles Letter and the concurring circumstances of the Keys which discovers his Language the Identity of the Decypher found out in England and in Scotland without any correspondence betwixt the Decyphers with that discover'd by Mr. Spence Argiles own Servant and Trustee the unalterableness of the Position of the words in these Letters discovered by Mr. Gray which in any other Position can make no sence do not only amount to a sufficient probation but to an evident and irrefragable demonstration of the truth of the Conspiracy in its blackest view And chiefly of the late Argiles unalterable malice to his King and Country which he would have past as a Standard in his Exposition and Paraphrase of the Test under the names of his Religion and his Loyalty in which sense only he was to swear it then and to vindicat it since in his Book And any who will but consider the foregoing evidences must have the famine opinion of the truth of his Book and of the Justice of his Plea And no body can doubt the truth of such evidences but such as would rather wish these villanies execute then discovered FINIS THE TRYAL AND PROCESS OF High-Treason AND Doom of Forfaulture AGAINST Mr. Robert Baillie of Jerviswood TRAITOR By His Majesties special Command As a further proof of the late Fanatical Conspiracy Edinburg Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty and Reprinted at London by Tho. Newcomb 1685. The Tryal and Process of High-Treason and Doom of Forefaulture against Mr. Robert Baillie of Jerviswood Traitor CVria Iusticiariae S. D. N. Regis tanta in praetorio burgi de Edinburgh vigesimo tertio die mensis Decembris 1684. Per nobilem Potentem Comitem Georgium
Comitem de Linlithgow Dominum Livingstoun c. Iusticiarium generalem totius Regni Scotiae honorabiles viros Dominos Jacobum Foulis de Colintoun Iusticiariae Clericum Ioannem Lockhart de Castlehill Davidem Balfour de Forret Rogerum Hoge de Harcarss Alexandrum Seaton de Pitmedden Patricium Lyon de Carss Commissionarios Iusticiariae dicti S. D. N. Regis Curia legitime affirmata Intran Mr. Robert Baillie of Jerviswood Prisoner INdited and accused that where notwithstanding by the Common Law of this and all other well Governed Nations the Conspiring to overturn the Government of the Monarchy or of the Established Government of this Kingdom or the concealing and not revealing of any Treasonable Design Project or Discourse tending thereto Or the assisting aiding or abaiting such as have any such Designs does infer the Pains and Punishment of Treason And by the third Act of the first Parliament of King Iames the first The Rebelling openly against the Kings Person and by the thretty seventh Act of His second Parliament The Resetting Maintaining or doing favours to open or notour Rebellers against the Kings Majesty is Declared Treason and punishable by Forefaulture And by the hundred fourty and fourth Act of the twelfth Parliament of King Iames the Sixth It is Declared Treason to Reset Supply or Intercommune with Traitors And by the first Act of the first Session of His Majesties first Parliament It is Declared That it shall be High Treason for the Subjects of this Realm or any number of them less or more upon any ground or pretext whatsomever to rise or continue in Arms to make Peace or War without His Majesties special Approbation And by the second Act of the second Session of His Majesties said first Parliament To Plot Contrive or intend Death or Destruction or to put any Restraint upon His Majesties Royal Person or to Deprive Depose or Suspend Him from the Exercise of His Royal Government or to levy War or take up Arms against His Majesty or any Commissionated by Him or to intice any Strangers or others to Invade any of His Majesties Dominions or to Write Print or speak any thing that may express or declare such their Treasonable Intentions it declared Treason and punishable as such Likeas by the second Act of His Majesties third Parliament It is Declared High Treason in any of the â—ubjects of this Realm by Writing Speaking or any other maâ—ner of way to endeavour the alteration Suspension or Diversion of the â—ight of Succession or debarring the next lawful Successour Nevertheless it is oâ— veâ—ity that the said Mr. Robert Baillie of Ierviswood shaking off all fear of God respect and regard to His Majesties Authority and Laws and having conceived most unjustly a great and extraordinary malice and hatred against His Majesties Person and Government and having designed most Traâ—â—erously to debar His Royal Highness His Majesties only Brother from His due Right of Succession did amongst many other Traiterous Acts tending to promove that wicked Design endeavour to get himself Elected one of the Commissioners for Negotiating the settlement of a Colony of this Nation in Carolina in one or other of the days of the Moneths of Ianuary February March April or May One thousand six hundred and eighty three years and that he might thereby have the freer and better access to Treat with the Earls of Shaftsbury and Essex the Lord Russeb and others who had entered into a Conspiracy in England against His Majesties Person and Government and with Colonel Rumsay Walcot West and Ferguson and others who had likewise Conspired the Murder of His Majesties Sacred Person and of the Person of His Royal Highness and finding that he could not get himself Elected one of the said Commissioners he resolved to go to London upon his own expenses and declared to severals whom he took great pains to draw in to be his accomplices that his Design was to push foreward the People of England who did nothing but talk that they might go on effectually and after he had settled a Correspondency here he did go up to London in one or other of the saids Moneths with Sir Iohn Cochran and Commissar Monro and did then and there Transact with the saids Conspirators or one or other of them to get a sum of Money to the late Earl of Argile a Declaired Traitor for bringing home of Men and Arms for raising a Rebellion against His Majesty and Invading this his Native Countrey and so earnest was he in the said Design that he did chide those English Conspirators for not sending the same timeously and lamented the delayes used in it and perswaded the late Earl of Argile and others in his name to accept of any sum rather than not to engage and amongst the many meetings that he hâ—d at London for carrying on the said Traiterous design there was one at his own Chamber where he did meet with the Lord Melvil Sir Iohn Cochran and the Câ—ssnocks Elder and Younger and amongst others with Mr. William Veatch a declared Traitor and there he did treat of the carying on of the said Rebellion and of the money to be furnished by the English for Argyle for buying of Armes And that if the Scots would attempt any thing for their own relief they would get assistance of Horse from England and from that meeting he or ane or other of them did send down Mr. Robert Martin to prevent any rysing till it should be seasonable for carying on of their Designs which Mr. Robert after he came to Scotland did treat with Palwart and others for carying on of the said Rebellion by securing His Majesties Officers of State His Castles and Forces and by putting his Correspondents here and there Associates in readiness to assist the late Earl of Argyle and after the said Mr. Baillie had engadged many of his Countrey-men in England and had assured his Correspondants here that the English were resolved to seclud his Royal-Highness from his due right of Succession thereby to encourage them to concur in the said Rebellion and Exclusion he slew to that hight that he did particularly and closly correspond with Mr. Robert Ferguson Sir Thomas Armstrong Collonel Rumsay and Walcot who were accessory to that horrid part of the Conspiracy which was designed against the sacred Life of His Majesty and the Life of His Royal-Highness and did sit up several nights with them concerting that bloody Massacer at least the said Mr. Robert Baillie of Ierviswood was and is guilty of having correspondence with the late Earl of Argyle and Mr. William Veatch declared Traitors and of being art and part of an Conspiracy for assisting of these who were to rise in arms against His Sacred Majesty and for exclusion of His Royal Brother and of concealing and not revealing the accession and proposals of others for that effect Wherethrow he has committed and is guilty of the Crymes of High Treason Rebellion and others above specified and is
art and part of the famine which being found by ane Assize he ought to be punished with Forfaulture of Life Land and Goods to the terror of others to commit the like hereafter HIS Majesties Advocat produced an Act and Warrand from the Lords of His Majesties most Honourable Privy Council for pursuing and insisting against the said Mr. Robert Baillie of Ierviswood whereof the Tenor follows Edinburgh The twenty two day of December one thousand six hundred and eighty four years The Lords of his Majesties Privy Council do hereby give Order and Warrand to His Majesties Advocat to pursue a Process of Treason and Forfaulture before the Lords of His Majesties Justiciary against Mr. Robert Baillie of Ierviswood to morrow at two a clock in the afternoon preceisly and the said Lords do hereby Require and Command Sr. George Lockhart of Carnwath and Sr. Iohn Lauder Advocats to concur and assist in the said Process with His Majesties Advocat from the intenting until the end thereof as they will be answerable upon their alledgance Extract by me sic subscribitur Colin Mckenzie Cls. Sti. Concilij Pursuers Sir George Mckenzie of Roshaugh Our Soveraign Lords Advocat Sir George Lockhart Advocat Sir Iohn Lauder Advocat Procurators in Defence Sir Patrick Hume Mr. Walter Pringle Mr. Iames Graham Mr. William Fletcher Mr. William Baillie Advocats THE Pannals Procurators produced ane Act of His Majesties Privy Council in their favours whereof the Tenor follows Edinburgh the twenty third of December one thousand six hundred eighty four years The Lords of His Majesties Privy Council having considered ane Address made to them by Mr. Robert Baillie of Ierviswood now indited at the instance of His Majesties Advocat before the Lords Commissioners of Justiciary of Treason do hereby Require and Command Sir Patrick Hume Mr. Walter Pringle Mr. Iames Graham Mr. William Fletcher Mr. Iames Falconer Mr. William Baillie Advocats to Consult Compear and Debate for the Petitioner in the Process of Treason mentioned in his Address without any hazard as they will be answerable at their peril Extract by me sic subscribitur William Paterson Cls. Sti. Concilij AFter reading of the Inditement the Lord Justice General required the Pannal to make answer thereto The said Mr. Robert Baillie Pannal pleaded not Guilty MR. Walter Pringle Advocat as Procurator for the said Mr. Robert Baillie of Ierviswood Pannal alleadges that he ought not to pass to the knowledge of an Assize because he had not got a Citation upon fyfteen days or at least on a competent time which is usual and absolutely necessar in all Actions and much more in Criminal Pursuits especially seing if a competent time be not allowed to the Pannal he is precludit of the benefit of ane exculpation without which he cannot prove his Objections against Witnesses or Assyzers or any other Legal or competent Defences And by the late Act of Parliament concerning the Justice Court all Pannalls are allowed to raise Precepts of Exculpation and thereupon to cite Witnesses for proving the Objections against Witnesses and Assyzers which necessarily presupposeth that a competent time must be allowed to the Pannal to execut his diligence or otherwise how is it possible he can prove an Defence of alibi or any other just Defence and as this is most consonant to that clear Act of Parliament and to material Justice and to the Rules of Humanity so this point has been already fully and often decided and lately in the case of one Robertson in Iuly 1673. The Instance whereof is given by His Majesties Advocat in his Book of Criminals and Title of Libels where the Lords found that albeit Robertson got his Inditement in Prison yet he behoved to get it upon fifteen dayes HIS Majesties Advocat oppons the constant Tract of Decisions whereby it is found that a person Incarcerated may be Tryed upon twenty four houres and the late Act of Parliament is only in the case where a Summons or Libel is to be Raised but here there is no Libel or Summons but only an Inditement nor was any Exculpation sought in this case before the Tryal which is the case provided for by the Act of Parliament THe Lords Justice-General Justice-Clerk and Commissioners of Justiciary Repell the Defence in respect the Pannal is a Prisoner and that it has been the constant Custom of the Court and that the Pannal made no former application for an Exculpation SIR Patrick Hume for the Pannal alleadges alwas denying the Libel and whole Members and Qualifications thereof that in so far as the Libel is founded upon Harbouring maintaining and Intercommuning with the persons mentioned in the Dittay the Pannal ought to be assoylzied because it is res hactenus judicata he having been formerly pursued before the Lords of his Majesties Privy Council for the same Crimes and Fined in an considerable Sum and therefore that Crime cannot now â—e made use of as a ground of Treason against the Pannal HIS Majesties Advocat answers That he Restricts his Libel to the Pannals entering in a Conspiracy for raising Rebellion and for procuring Money to be sent to the Late Earl of Argile for carrying on the said Rebellion and for concealing and not revealing neither of which is referred to his Oath and consequently was not res judicata there being nothing referred to his Oath but his Converse and Correspondence with some Ministers and others within the Kingdom and his own Gardiner and his Writing Letters to my Lord Argile and oppons the Decreet of Council it self and restricts the Libel to all the Crimes not insisted on in the Decreet SIr Patrick Hume Replyes That as to the Corresponding with the late Earl of Argile at any time since his Forefaulture was expresly proponed as an Interrogator to the Pannal in that Pursuit at His Majesties Advocat's Instance against him before the Lords of His Majesties Privy Council and that not only his own Correspondence by himself but also by Major Holms Mr. Carstares Robert West Thomas Shepherd Richard Rumbold and Collonel Rumsay as the Interrogator bears as appears by a double of the Act of Council written by the Clerk of Councils Servant and is offered to be proven by my Lord Advocats Oath And as to any Correspondency with Mr. Veitch it is not Relevant since he was not Declared Rebel SIr Iohn Lauder for his Majesties Interest answers That he oppons thâ— Decreet of Privy Council where no such Interrogator was put to the Pannal and the Decreet must make more Faith than any pretended Scroll and cannot be taken away by His Majesties Advocats Oath to His Majesties prejudice and for Mr. William Veitch he stands expresly Forefault in anno 1667. and the Doom of Forefaulture is Ratified in the Parliament 1669. SIR Patrick Hume oppons the Reply That as to the Corresponding with Mr. Veitch it does not appear that he is the person mentioned in the Act of Parliament and albeit he were as he is not he having thereafter come
case foresaid it was said it was convenient the Castle of Stirling Berwick and some other Strengths should be seiz'd upon and it was likewise spoke amongst them that some persons should be employed to inquire what Arms was in that Countrey Depons That it was spoke then that the best time for Argyle was to land in the West when there was a stur in England or Scotland or words to that purpose Depons That every one desired another to speak to such particular persons as they could trust by letting a word fall indirectly upon supposition in case of the Rising in England concerning the Affair for preparing of them And that he was told by Philiphaugh thereafter that there was a Word and Sign to be used amongst them viz. the sign was by loosing a Button on the Breast and that the Word was Harmony Depons the Pannal spoke to the Deponent to advertise Torwoodlie that he might acquaint Mr. William Veitch a forfault Traitor who was in Northumberland that he might keep himself close and be on his guard lest he should be catch'd which was since the Pannal was Prisoner in the Tolbooth of Edinburgh And this is the truth as he shall answer to God Sic subscribitur Tarras Linlithgow I. P. D. ALexander Monro of Bear-crofts Aged fourty five Years or thereby solutus solemnly sworn and purg'd Depons that the Earl of Tarras proposed to the Deponent that Ierviswood might be made one of the Commissioners for the Affair of Carolina for that he could not safely stay at Home and that the Deponents answer was that he had no interest in the Affair and so could not be a Commissioner Depons that the Pannal did wait for the Deponent at Wooller and did go alongst with him to London and that by the way he heard him regrate his own hazard and others because of Blackwoods Sentence and that he heard him regrate the hazard our Laws and Liberties and the Protestant Religion were in Depons that the Pannal spoke to the Deponent and others more then once at London for getting of Money from the English to be sent to the late Earl of Argile for bringing home Arms for the said Earls use as he understood for carrying on an Insurrection and Rebellion in Scotland Depons that at the time libelled in Ierviswoods Chamber in London Mr. William Veitch a forfault Traitor was present and that Sir Iohn Cochran did at that Meeting expressly speak of Money to be sent to Argile for bringing home Arms for invading the Kingdom of Scotland And that at another occasion he heard some of them say that there would be twenty Thousand Men in Scotland who would assist the Rebellion and that he heard Sir Iohn Cochran and Ierviswood speaking of it but cannot be positive which of the two said it Depons that at the Meeting he heard Ierviswood speak but did not hear him oppose that Treasonable Proposal or contradict the Overture proposed by Sir Iohn Cochran Depons that Mr. Robert Martin was sent down from that Meeting which was at Ierviswoods Chamber to Scotland to try what the People of Scotland would do for their own safety And that it was understood that the people of Scotland should not rise till there should be a rising in England and that the Commission was granted to Mr. Robert Martin by all the persons present whereof Ierviswood was one and that there were present the Lord Melvill Sir Iohn Cochran Cessnocks elder and younger Mr. William Carstares Mr. William Veitch Ierviswood and the Deponent and depons they did contribute Money for Mr. Martins Journey Depons that at his return he meeting with the Deponent told him that Matters were in that condition in Scotland and that the Countrey was in such a condition as little would kindle the Fire in order to the Rebellion And this is the truth as he shall answer to God Sic subscribitur Alexander Monro Linlithgow I. P. D. JAmes Murray of Philiphaugh aged 30. Years married purged and sworn produces â—our Leaves of Depositions emitted by him before the Lords of the Secret Committie and all Written and Subscribed with his own hand which being publickly read in presence of the Justices and Assize he adheres thereto in all points whereof the Tenot follows Upon the day of May 1683. Upon a letter from Mr. Pringle of Torwoodlie I came to his house in the morning and he presently led me to a Chamber where I found Mr Robert Martin who was lately come from London with whom we stayed a little and discoursed of the news and about the present condition and temper of England and in particular of London which Mr. Martin said was much irritated through some attemps upon their Priviledges either as to the concern of the Sheriffs or their Charter but that all honest men were of good heart and very brisk and after some general discourses to this purpose Torwoodlie and I left him and walked out a little and he told me he was expecting the E. of Tarras presently for he had sent to him and Mr. Martin had a Letter to him from Ierviswood then he told me that there were great matters in agitation at London and that Mr. Martin had come down with a Commission from our friends there I do not remember he named any but that I behoved not to expect he would impart his Instructions to me for he was to communicat them only to Polwart and himself at least for these Shyres and they were to pitch on such as they thought fit to intrust with the affair whereupon he assured me that he had great confidence in me and his kindness to me oblidged him to send for me to acquaint me that matters were now come to a crisis and that he had reason to think England would shortly draw to Arms and stand by them till they were satisfied anent the Bill of Exclusion and what other security they could propose for the Protestant Religion and their Liberties and that it was no project of any inconsiderable party but a design through the Kingdom and that many of the finest men and of the greatest interest and credit there had adjusted almost every thing necessar for the purpose and had concerted matters with our Friends there in order to concurrence from this and had agreed to advance Money for furnishing Arms here I do not remember he told me more particulars at this time but said Polwart would be at Gallow-shiels that night and it would be necessar that the E. of Tarras and I should confer with him fully on the business about this time the E. of Tarras lighted and Torwoodlie having left us for a little time being gone to bring Mr. Martin the E. of Tarras asked me what news I told him of Mr. Martins being there but that he had given me no account of the design of his down-coming which perhaps he would acquaint him with but by what I had heard from Torwoodlie I understood it to be to engadge us to rise in Arms
Popery correspondence with France and accession to the Popish Plot and then if the King were once free from the influence of the Dukes Counsels they were confident he might be moved to reform their Abuses and secure their Religion and Liberties for the future to their contentment 5. It was resolved that till we got the foresaid account from England and were satisfied thereanent and knew others here who were to be communed with their Sentiements of what methods were most proper for us in case we should undertake we should not meddle further only it was left to the Earl of Tarras and me if we thought fit to acquaint Sir William Scot younger with some of the matter of this Conference overly without taking notice of our Informers or such an Conference and it was recommended to all to be enquiring at such as they had some trust in indirectly about the affection of our Neighbours and what Arms there was amongst them that if we should get an satisfying account and resolve to joyn we might know where to seek Men and Arms suddenly here it was said by Polwort as I think that if the E. of Tarras Torwoodlie Gallowsheils and I once took Horse he thought the most part of the West end of Tiviotdale and Selkirk Shire would soon come to us especially when they heard England was risen then we trysted to meet there against Midsummer Fair betwixt and which the forsaid account was expected but in case it came to any of our hands sooner we promised to advertise the rest that we might meet presently if the case required this is the substance and sum of what passed at the forsaid conference that I can now remember but I remember I was likewise told these following particulars in privat by Polwart or Torwoodlie which of them I cannot distinctly tell the day of the forsaid conference or within a short time after 1. That Polwart keeped the correspondence with our friends at London I remember not positively of any of them that was named to be on the entrigue there except my Lord Melvil Sir Iohn Cochran Ierviswood and Commissar Monro for I hardly knew any of the rest and as I think Commissar Monro was call'd his correspondent there 2. That the Money to be advanced by the English partie to Scotland was ready when Mr. Martin came from London and it was expected that within few days after it would be dispatched with some confident to Holland whither by Bills or in Cash I cannot say it was call'd ten thousand pound Sterlin and was to be imployed as I was told by that confident at Argyles sight for buying Arms providing Ships to transport them with Argyle to the West here and such other Charges 3. That how soon our friends at London got notice of the safe arrival of the confident forsaid and all other things were finally concluded there which was expected would be about the middle of Iune as I remember they would come home and as they passed would give them or one of them an particular account of all resolutions taken to be communicat to the rest that it was not to be expected by Letters that behoved to be under figures and dark expressions and as I remember they were written as it were about the Carolina business or some houshold Furniture as I was told for I never remember I saw any Letter either direct to London or sent from it on that head 4. I was told there was a Sign and a Word agreed on by that Party so that men might know with whom they might use freedom the Word as I remember was Harmony and the Sign the opening two Buttons in the breast coat and shutting them presently this I communicat to the Earl of Tarras but does not mind I ever saw it used except when I visited Park-Hay here in Town about the end of Iune we discoursing a little freely he asked if I had the Word and Sign of the Carolina men and I having given them he said something to this purpose that he was afraid that the Carolina business did not go well for there had been some of the Managers expected here as I think he named Ierviswood or Commissar Monro these eight days past but there was none come nor could he learn that any of their Friends had heard from them for several Posts Polwart Torwoodlie and I met at Gallowsheils on Midsummer Fair but I mind nothing passed but private whisperings Dated September 15. 1684. and subscrived thus Iames Murray Edinburgh December 23 1684. THe Deposition above-written being read to the said Iames Murray of Philiphaugh in presence of the Justices and Assizers he adheres thereto in all points upon Oath Sic subscribitur James Murray Linlithgow I. P. D. THe said Iames Murray further depons That at their meeting at Gallowsheils it was resolved that they should keep up their Cess unpayed till their next meeting at Midsummer which was to be at Gallowsheils and should deal with all these they had influence upon to do the like and that upon the supposition mentioned in his Oath given in It was spoke amongst them that the Troupers Horses should be seized upon when they were grasing And this is the Truth as he shall answer to God Sic subscribitur James Murray Linlithgow I. P. D. HVgh Scot of Gallowsheils aged 36. Years married purged c. and sworn Depons That the Earl of Tarras and Philiphaugh did come to the Deponents House in May 1683. and Polwart came likewise there where there were Discourses and Proposals that if the English would rise in Arms their Friends in the South Shires should rise with them and that they should seize the Horses belonging to the Kings Troops where they grased and the Town of Berwick and the Castle of Stirling And likewise it was there discoursed anent the late Earl of Argiles coming to invade Scotland but because of the uncertainty of Sea Voyages there was not much stress laid upon it Depons It was also proposed that some of the South Countrey whom they trusted in should be acquainted with it and that endeavours should be used to learn what Arms was in the Countrey Depons There was some such discourse there as that the Earl of Tarras Philiphaugh Torwoodlie Polwart and some others should draw to Horse with the first when the rising should be in readiness that it might be expected that the South parts of Teviotdale and Selkirk Shire would joyn with them And this is the truth as he shall answer to God Sic subscribitur Hugh Scot. Linlithgow I. P. D. HIs Majesties Advocat produc'd other Depositions emitted by Gallowsheils before the Lords of the Secret Committee whereof the Tenor follows Edinburgh the 14 of September 1684. GAllowsheils Depons that the E. of Tarras and Philiphaugh being in his House in May 1683. Discoursed of an intended rising in England and of Proposals made to Scots men to rise with them and of London in particular and that Polwort was present at
that Meeting and told he was sure the Englishmen intended so and that it was Discoursed at that Meeting amongst them that it were fit to seize Berwick and Stirling and that it was talked amongst them of bringing the Duke of York to Tryal and thaâ— the King would abandon him Sic Subscribitur Hugh Scot. Perth Cancel Queensberry George Mckenzie Io. Drummond George Mckenzie Edinburgh October 29. 1684. Sederunt Lord Chancellour Lord Secretary Lord President Lord Advocat THe Laird of Gallowsheils Prisoner in the Tolbuith of Edinburgh being Call'd and Examin'd upon Oath Depons that in the Moneth of May 1683. The E. of Tarras Hume of Polwort Elder and Laird of Philiphaugh came to the Deponents House himself being absent at his coming home they were speaking of the Security of the Protestant Religion and of a Party in England who would secure or seize the King or Duke and that if any should rise in Arms to Defend them or to rescue the King and Duke There was another Party who would rise in Arms against them it was proposed that some Countrey-men should be spoken to to try their Resolutions and that the Resolutions of England should be told them to see if they would concur But the Deponent does not remember that this proposition was approven or undertaken to be done by any present nor does he remember who manag'd the Discourse It was likewise propos'd to seize the Officers of State especially the Chancellour and Thesaurer and the said Sir Iohn Cochran was to come to the West from England for advancement of the Design and that the Earl of Argile was to Land in the West Highlands and to raise that Countrey Of these matters all these who were present Discoursed as of an Affair that they were agitating and wherein themselves were particularly concerned though at that time they did not conclude what their carriage should be The reason why the Deponent cannot be more particulars is because he was sometimes going out and sometimes walking up and down the Room and though the Deponent cannot be positive of the very words yet he is positive they were either these Words or Words to that purpose Sic subscribitur Hugh Scot. Perth Cancellarius Edinburgh December 23. 1684. HVgh Scot of Gallowsheils being solemnly Sworn in presence of the Justices and Assize adheres to the Depositions within and above-written in all points Sic subscribitur Hugh Scot. Linlithgow I. P. D. HIs Majesties Advocat in fortification of the former Probation adduces the Printed Copy of Mr. William Carstares Depositions emitted before the Officers of State and other Lords of Privy Council and leaves the same to the Assise and uses it as an Adminicle of Probation for though it was capitulat that he should not be made use of as a Witness yet it was agreed that the Deposition should be published and likewise produces the Principal Deposition signed by himself and the said Lords THe Lords Justice-General Justice-Clerk and Commissioners of Justiciary admit the Paper produced as an Adminicle and refers the import thereof to the Inquest and ordains the Printed Paper as it is Collationed to be taken in and considered by the Inquest SIr William Paterson and Mr. Colin Mckenzie Clerks of His Majesties Privy Council being Interrogat if they heard Mr. William Carstares own the Depositions Read Depons they saw and heard him Swear and own the same upon Oath and they Collationed the Printed Copie with the Original formerly and now they heard it Collationed Sic subscribitur Will. Paterson Colin Mckenzie THe Deposition of Mr. William Carstares when he was Examined before the Lords of Secret Committee given in by him and renewed upon Oath upon the 22. of December 1684. in presence of the Lords of His Majesties Privy Council Edinburgh Castle September 8. 1684. MR. William Carstares being Examined upon Oath conform to the Condescention given in by him and on the Terms therein-mentioned Depons That about November or December 1682. Iames Stuart Brother to the Laird of Cultness wrot a Letter to him from Holland importing That if any considerable sum of Money could be procur'd from England that something of importance might be done in Scotland The which Letter the Deponent had an inclination to inform Shepherd in Abb-Church-lane Merchant in London of but before he could do it he wrot to Mr. Stuart above-nam'd to know from him if he might do it and Mr. Stuart having consented he communicat the said Letter to Mr. Shepherd who told the Deponent that he would communicat the Contents of it to some persons in England but did at that time name no body as the Deponent thinks Sometime thereafter Mr. Shepherd told the Deponent that he had communicat the Contents of the Letter above-named to Colonel Sidney and that Colonel Danvers was present and told the Deponent that Colonel Sidney was averse from imploying the late Earl of Argile or medling with him judging him a man too much affected to the Royal Family and inclin'd to the present Church-Government yet Mr. Shepherd being put upon it by the Deponent still urg'd that one might be sent to the Earl of Argile but as Mr. Shepherd told him he was suspected upon the account of his urging so much yet afterwards he press'd without the Deponents knowledge that the Deponent being to go to Holland however might have some Commission to the Earl of Argile which he having inform'd the Deponent of the Deponent told him that he himself would not be concern'd but if they would send another he would introduce him but nothing of this was done upon which the Deponent went over without any Commission from any body to Holland never meeting with Iames Stuart above-named He was introduc'd to the Earl of Argile with whom he had never before conversed and did there discourse what had past betwixt Mr. Shepherd and him and particularly about remitting of Money to the said Earl from England of which the said Mr. Stuart had written to the Deponent namely of 30000 pounds Sterling and of the raising of 1000 Horse and Dragoons and the securing the Castle of Edinburgh as a matter of the greatest importance The method of doing this was proposed by the Deponent to be one hour or thereby after the relieving of the Guards But the Earl did not relish this Proposition as dangerous and that the Castles would fall of consequence after the Work abroad was done Iames Stuart was of the Deponents Opinion for seizing the Castle because it would secure Edinburgh the Magazines and Arms As to the 1000 Horse and Dragoons my Lord Argile was of Opinion that without them nothing was to be done and that if that number were rais'd in England to the said Earl he would come into Scotland with them and that there being so few Horse and Dragoons to meet them he judg'd he might get the Country without trouble having such a standing Body for their Friends to Rendezvous to and the said Earl said he could show the Deponent the
well as Loyalty who do not believe the Discovery and they must be enemies to sincerity as well as to the King who do not acknowledge it Beside that the Councils of all the three Nations thought the proof sufficient for Indicting a General Thanksgiving through all these Nations and that the Judges of England thought the same strong enough to infer Forefaulture of Life and Estate against some of all Ranks there you have a Discovery made here from the Late E. of Argiles own Letters and the Confession of his own Emissaries the two surest proofs that Law ever invented or the nature of Humane Affairs can allow and I am this day to add to all this a new Sâ—rt of Proofs in the Process that I now lead against this Pannal from the Confessions of Noblemen and Gentlemen who have been engaged in this wicked Conspiracy and who from a sense of their Guilt are content freely to Depose against their nearest Relation and their most intimate Friend in which having thus cleared to you that there was really such a Conspiracy I shall in the next place proceed to prove this Pannals Accession to it It cannot be imagined that we would willingly involve our Countrey men in it without a Conviction stronger then our kindness to Scotland nor did His Majesties Servants accuse this Pannal without the opinion of the ablest Lawyers of the Kingdom who did with them concur to think that there was not the least occasion of doubting left to the most indifferent Inqueist of his guilt after they had seriously and with reflection read over and pondered the probation now laid before you The Person accused of accession to this Cryme is the Ring-leader of all those who in this Kingdom concurr'd with the English Conspirators as you may see by the Testimonies of all who have Deposed and it was indeed fit and just to begin with the most guilty so that if he be not convicted there should no man be punished for this Conspiracie all the noise we have heard of it is but a Cheat the Kings Judges have been Murderers all the Witnesses have been Knaves and such as dyed for it have been Martyrs The Accession charged on the Pannal is not an accidental escape nor is it proved by Witnesses who can be suspected of unkindnes to his Person or his Cause for it is a long tract of a continued design gone about with the greatest deliberation and concern imaginable and proved by his nearest Relations and persons so deeply engadged in that Cause for which he Suffers that they were content with him to venture their Lives and Fortunes in that quarrel He is not accused of a Crime that can amount only to a single Murder though that be a dreadful Cryme but a Rebellion which was to draw upon us a Civil War that Murder of Murders in which hundreths of thousands were to fall and to Crown all he was to 〈◊〉 and to be the 〈…〉 a Rebellion in which one of the first steps was to kill His Sacred Majestie and his Royal Brother and one of the chief Witnesses which I have led against him is Bourn which Bourn confessed that he was to kill the King and who confesses the Pannal sat up several nights with Ferguson the other contriver of the Kings Murder and so familiar was he with him that Bourn depons that the said Pannal had been with Ferguson at the drawing of the manifesto whereby he was not only to be an Actor but to be the Justifier of that horrid Villanie and therefore Bourns depons that Ferguson the best Judge in that case looked upon him as the chief man next to Argyle But because no man is presumed to go to such a hight without previous inclination and motives I shall to convince you that this Gentleman was very capable of all that was lybelled against him remember you that he is Nephew and Son in Law to the late Waristoun bred up in his Family and under his Tutory about the time of this Plot it was undenyably known and is now sufficiently proved by two present Witnesses the Earl of Tarras and Commissar Monro that he thought himself desperat knowing himself to be guilty of Treason by Blackwoods Case and as it 's presumable that a man that 's guilty of one point of Treason will commit another so when a man is desperat as to his Life and Fortune he is capable of any thing he was likewise animated to commit this Cryme by the intelligence he had that there was a Plot in England carryed on by men of so great Parts Fortune and Influence and by the too probable hopes that they would get all the Western Shires to joyn with them here because of the common guilt in which they had engadged themselves by their late extravagances they made an account of an assistance of twenty thousand men and by Philiphaughs Deposition that these Gentlemen expected the concurse of the Southern-Shires and thus I am to prove to you a Cryme which is in it self so probable and liklie that it should need little probation tho I have adduced for your conviction sufficient evidences albeit the Cryme were in it self very unliklie The Crymes which I hope I have proved are That Ierviswood the Pannal transacted for Money to the late Earl of Argyl a declared Traitor 2. That he designed to raise a Rebellion 3. That he intercommuned with the Earl of Argyl and Mr. Veitch declared Traitors 4. That he was present wheâ—â— it â—as treated either that Argyle should have Money from the English and assistance from Scotland or that a Rebellion should be raised and that he did not reveal the famine and all these being sound relevant separatiâ—n it is sufficient for me to have proved any one of them And if a Gentleman was lately found guilty of High-Treason by the opinion of all the Lords oâ— Session for not revealing that Sir Iohn Cochraâ— sought fifty pound Sterling from him though he refused the same and tho he believed it was sought for a charitable subsistance to preserve him from starving what deserves this Pannal who sought thirty thousand pound Sterling to buy him Arms to invade his Native Countrey That Ierviswood was designing to carry on a Rebellion or at least was accessory or as our Law terms it was Art and Part thereof is clearly prov'd but that in this occult and hidden Crime which uses not to be prov'd by clear witnesses I may lead you thorow all the steps of the Probation which like the links of a Chain hang upon one another You will be pleased to consider that 1. It is proved that he desired a blind Commission to go to England not to manage the affairs of the Carolina Company as he confess'd but to push the People of England to do something for themselves because they did only talk and not do and what he would have them to do appears too clearly because he tells the Earl of Tarras it was probable that if