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
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
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
Donatives to those whom he and his Father had formerly rob'd and destroy'd for their Fidelity and Loyalty to their King And the Super-plus if any were was intended for his Lady and Children which was the hight of Clemency there being indeed more Debt upon the Estate then the whole of its value Yet being more conscious of his own Guilt then his Prince did apprehend he dar'd not rely upon that Clemency whereof he had tasted so plentifully but abusing the favour of his open Imprisonment for verifying of his other Crimes he added this one of breaking the Prison and flying from the Laws No King but ours could after all this think of favouring his Family but His Majesty will not only favour but restore and before it was known that the late Argile had more Debt then Estate in a Royal Largese He gifts more to his Children by thrice then their Father could lawfully give them had he never been Forsault Could it have been thought that any Christian or Gentleman could have been guilty of Ungratitude to so benign and bountiful a Prince and yet that the late Earl of Argile did after the receiving so many Favours and the profession and boasting of so much Loyalty not only enter in a horrid Conspiracy for rising in Arms but gave at least courage by his bold Undertakings to those who conspir'd the murther of His Sacred Majesty and his Royal Highness and this Conspiracy does demonstrate what was his meaning in that Paraphrase upon the Test which Fools and Knaves have justified as very Loyal and Orthodox But with what forwardness Argile and others did enter into a Conspiracy for overturning the Monarchical Government destroying the sacred Person of the King and of his only Brother and for pulling Ruine upon the three Kingdoms by a Civil War the evident Proofs of unsuspect Witnesses and the concurrence of many authentick Papers and Documents with these Depositions will not only sufficiently prove but amount to the quality of a Demonstration all the pieces being considered together and with what earnestness he acted doth evidently appear from these following Evidences For shortly after Argiles escape information was given from the West that he had caused secure the Militia Arms of Argile and Tarbet Shires as also a considerable quantity of the Kings Arms were given to him in Trust besides a little Magazine which he had of his own and some pieces of Cannon and that he had employed some Merchants to bring Arms from abroad to be landed securely in some of his remote High-land Castles And upon inquiry one William Campbel Master of a Ship at Newport-Glasgow was found to be conduc'd for this end as his Deposition taken before some of the Officers of State doth clearly evince Edinburgh the last day of August 1682. IN presence of the Lords Chancellor and Advocat William Campbel Skipper at Newport-Glasgow being examined upon Oath Depons That in March last he was fraughted by Iohn Campbel Merchant in Glasgow for Norway France or elsewhere for three Months certain conform to a Charter-party produc'd by him and about that same day he having desired to know what could be his prospect of his Voyage to Norway with so small a Ship and Loading he refused to tell him till he were at Sea and being at the back of the Lews a day or two after they set off the said Iohn Campbel then said now Skipper I will tell you the design of our Voyage which is to go to Norway and loaden Dails and out of that to Amsterdam and buy Arms and to take in the same to Cairnbulg and the Deponent having asked him what he would do with these Arms there he answered may not my Lord come to his own again and have use for them and the Deponent understanding these Arms were to be made use of against the King the Deponent answered that when he was made Burgess of Dunbartoun there was an Oath taken of him to be true to the King and the present Government as it is established and upon the Deponents refusal to comply with him in the said Voyage he got the Ships Company upon his side who beat and abused the Deponent and having gone from that to Norway he behoved to suffer all the Voyage there being no Justice in these remote Places where he came to from which being upon their Voyage to Holland the Ship was by Providence cast away for which they blam'd the Deponent as having done the same wilfully And this is the Truth as he shall answer to God Sic subscribitur Will. Campbell G. GORDON Cancell Edinburgh the 14 of Ianuary 1685. IN presence of the Secret Committee the said William Campbel being re-examined adheres to his former Deposition and further Declares that he offered to the then Lord Chancellor to apprehend the said Iohn Campbel but the Chancellor made no answer to him but whispered the General in the ear and he heard afterwards that the said Campbel had escaped And this is the Truth as he shall answer to God Sic subscribitur Will. Campbel At the same time Surmises were heard from amongst the Fanaticks from all parts of Argiles intention to land in the West with Arms and to raise that Countrey and to joyn with the Western Shires and in Summer 1683 Gordon of Earlston being apprehended at Newcastle the Papers taken with him and his own Depositions made upon Oath in Scotland did give good grounds for suspition of some imminent Design which apprehensions were raised by a little accident which happened at the time for upon the first noise of the discovery of the Conspiracy in England Earlston being in Prison in Edinburgh Tolbooth the Keeper came in to visit him who found him asleep but he awakening at the time the Keeper told him that now the Conspiracy was broke out How says Earlston is Argile then Landed of which expression the Keeper having given notice to some Councellers Earlston was examined upon the meaning of the expression who plainly confess'd that both in England and Holland he had information of Argiles buying of Arms with intention to land in Scotland and that at the same time he was informed that the English were to rise in several places of England Alexander Gordon of Earlston his Deposition before a Committee of His Majesties Privy Council and two of the Iustices Edinburg the 25 of September 1683. Sederunt Privy Counsellors The Earl of Linlithgow Lord Livingston Lord President of the Session Lord Collington Lord Castlehill Justices Lord Pitmedden Lord Harcarss The Earl of Linlithgow elected Praeses ALexander Gordon being further interrogate upon the Interrogators given in anent the Conspiracy in England Declares That the first time he heard of any design of rising in Arms was at the time when the competition was anent the Sheriffs at Midsummer was a year and then he heard the Duke of Monmonth was to head the Rebels and this he had from Iohn Nisbet and one Mr. Murray a Scots man then at
London and declares that in Ianuary last the declarant being in Holland he heard by general report that the late Earl of Argile was to raise some thousands of High-landers to assist the Rebels in England by making a diversion and was to get a Sum of Money for that effect and that in March last he having received a Letter in Holland from Iohn Nisbet then in London he came over to London where he met with the said Nisbet and Murray who told the Declarant they design'd to rise presently in England and to Rendezvous in six or seven places at one time particularly at Coventry and London and that they computed several thousands in York-shire who were to joyn with them that Murray desired the Declarant to go along with him to meet with the late Lords Russel and Gray and the Lord Wharton but of Wharton they said they were not very sure being a fearful man and with Mr. Ferguson and spoke of several old Officers of Cromwels that were to be there but the Declarant not being for the present rising shunned to meet with these Persons or any of them and both Nisbet and Murray told the Declarant that Sir Iohn Cochran was with them and heard from these two Persons that both the Cessnocks were concerned in that Business As to the Letter written by Io. N. of the 20 of March and directed for the Declarant at Rotterdam declares that Iohn Nisbet wrote the said Letter and that under the Metaphor of Trade throughout the whole Letter is meaned the design of rising in Arms and a Rebellion and that by the word Dispatching the old rotten Stuff is meaned either the excluding the Sectaries from joyning with them or destroying the Government both Civil and Ecclesiastial which last the Declarant supposes rather to be the meaning of the words and that by the Factors are meaned their Emissaries for carrying on the Rebellion and for that strange thing that was to fall out that Week or the next the Declarant thinks is meaned the suddain muster of the Rebels In the close of the Letter which says Things are full as high as I tell you is meaned that the Rebellion was instantly to break out And having met with Iohn Nisbet after his coming from Holland the said Nisbet explained to him that the Sense of the said Letter was as is above-said As to the little Letter direct to the Declarant under the name of Pringle of the second of May 168◠declares that the name of the Subscriver which is blotted out was so blotted before it came to his hand but by the Contents of it he knows it is from one Robert Iohnstoun a Tennent or Vassal to the Lord Gray on the Border and that the Traders and Trading there spoke of is the design'd Rebellion and that the said Robert Iohnstoun offered to come into Scotland with the Declarant to have seen some of our dis-affected People here and to have met with them and that A. Y. mentioned in the said Letter which the Letter says laboured to undervalue the dis-affected Party in Scotland which he calls your Goods is the name of Andrew Young who stays about Newcastle whom he supposes to be a suspected person because he was afraid Collonel Struthers would apprehend him and that he supposes the way that that Letter came to his hand was from some person that was at a Meeting at Tweeds-moor about that time where were present several of these People that had Commission from the several Districts but he himself was not at that Meeting Sic subscribitur Al. Gordon Linlithgow I. P. C. Follows the Letter direct b◠Jo. N. which was found upon Earlston London 20 March 1683. Sir ON Saturday last I had the occasion of seeing a Letter from you directed for Mrs. Gaunt in whose absence Mrs. Ward had received it at the reading of which I was not a little troubled considering my full resolutions signified to you in my last for effectuating of which I had spoke for Passage and taken my farewel of Mother Gaunt she going into the Countrey And that very Week I was set upon by that Gentleman with whom I stay and Io. Iohnston with some others to stay but a Moneth and if that did not accomplish somewhat in hand to help Trading then I should be no longer detain'd After I was prevailed to retract so far I ordered Io. who had time at command to give you an ample account of matters and withal Io. was desired by our Friends from Scotland to stand here in my place the like engagements of secrecy c. being taken and thereupon I ordered him to shew you the grounds of my staying and to desire if you inclined to cross the Water to come this way but since many are the confused yea troubled thoughts that have possessed me for yielding concerning which 〈…〉 my yielding to it take the subsequent account In my last or it precedent to it I shewed you that Trading was very low here and many breaking which has made the Merchants such as they are to think that desperate Diseases must have desperate Cures and while they have some Stock it will be better to venture out than to keep Shop and sit still till all be gone and then they shall not be able to act but let all go Which resolution I thought a thing not to confide in seing the most of them are Fire-side Merchants and loves not to venture where storms are any thing apparent But about my departing they shewed the model of Affairs in such order that I see venture they must and venture they will whereupon 〈◊〉 first demanded how our Trade would be carried on Answer they knew well what Goods had proven most prejudicial to the Trade and therefore they thought to insist upon Negatives in which whatever I proposed is assented to as I find and thus they thought best to still some Criticks in the Trade And by this means first to endeavour the dispatching the old rotten Stuff before they order what to bring home next This lookt somewhat strange to me but when I consider all circumstances I think they for themselves do best in it For our Merchants I made account only to have had some stock for to set the broken ones up again and so bid them here fare-wel and they to try their way and we ours Since they think fit that some of these whom we have found as you will say when you hear them named treacherous dealers in our Trade consulted and accordingly have done Whereupon I fear or rather hope that our Merchants tho broke will rather desire to live a while longer as they are than joyn with such c. to advance the Trade unless surer grounds of their fidelity be gotten the◠is or can be expected and this is the bottom of all my sorrow But to proceed I find if all hold that is intended that they think it is almost at a point to set forward if they had their
home to Scotland all the punishment inflicted upon him was Banishment not to return under the pain of Death which did take off any former Punishment and it was no Crime in any Person to Intercommune with him especially in another Kingdom and by the late Act of Council in anno 1683. Even the Conversing and Intercommuning with declared Traitors is restricted to an Arbitrary punishment HIs Majesties Advocat oppons the standing Doom of Forefaulture against Veitch and the Proclamation or Act of Council it self THe Lords Justice-General Justice-Clerk and Commissioners of Justiciary having considered the Libel pursued by His Majesties Advocat against Mr. Robert Baille of Ierviswood with my Lord Advocats Declaration whereby he Restricts the same to the Crimes not insisted on in the Decreet of Council formerly pronunced against the Pannal They find the same Relevant as it is restricted to infer the pain of Treason and remits the same to the knowledge of the Assize and Repells the remnant Defences proponed for the Pannal in respect of the Decreet of Council produced bearing no such thing as is alleadged and of the answers made by His Majesties Advocat thereto Assisa The Earl of Strathmore The Earl of Belcarras Sir George Skeen Provost of Aberdene Sir Iames Fleming late Provest of Edinburgh Sir Iohn Ramsay of Whitehill Adam Hepburn of Humby Andrew Bruce of Earleshall Iohn Stuart Tutor of Alpin Alexander Miln of Garâ—in Mr. Iams Elies of Stenhopsmilus Sir William Drummond of Halthornden Major Andrew White Lieutennent of Edinburgh-Castle Mr. David Grahame Sheriff of Wigtoun Colin Mckenzie Collector of Ross. David Burnet Merchant THe Assise lawfully Sworn no Objection of the Law in the contrary HIs Majesties Advocat for Probation adduced the Witnesses and Writs aftermentioned and first Walter Earl of Tarras SIr Patrick Hume Procurator for the Pannal objects against the Earl of Tarras that he cannot be a Witness because he is socius particeps criminis and it is clear by the 34. Chap. Stat. 2. Rob. 1. Concerning these that are excluded from bearing of Testimony that socij participes ejusdem criminis vel incarcerati vinculati cannot bear Testimony As also the Earl of Tarras being presently under an Inditement of High Treason and under the Impressions of Fear and Death no person in his Circumstances can be admitted a Witness as is not only clear from the foresaid Statute but from the Common Law HIs Majesties Advocat answers That it is an exception from that Rule both by the Common Law and ours that in the Crime of lese Majestie and especially that Branch thereof which we call a Conspiracy socius criminis may be a witnes and which is introduced very reasonably by Lawyers to secure the common interest of mankind which is the chief of all Interests and because Conspiracies cannot be otherwayes proved and not to allow this manner of Probation were to allow Treason since no man can prove a Plot but he that is upon it and how can a man object against him as a Witness whom himself trusted with his Life his Fortune and their common Plot nor is the intenting of the Lybel any stronger qualification since every man that is socius criminis is under the same impression and it would rather seem the greater and nearer apprehensions a man has of death he will be the more sincere and faithful Nor has the Earl of Tarras nor did he ever seek any security in order to his deponing And this has been constantly and latlie conform to the Common Law as may be seen in the hundreds of Citations set down by Mascard de probationibus vol. 4. conclus 1318. num 21. and the contrary citations prove only that regularly socius criminis cannot be a Witnes SIr Patrick Hume replyes that the Statutes of Robert the first is opponed and non est distinguendum ubi lex non distinguit and not only was he socius criminis which is acknowledged but he is incarceratus and lying under an Indytment of high Treason and has thrown himself on the Kings Mercy and it is not proper he should be a Witness seeing he is in the Kings Mercy who may give him his life or not and there was never a Person in these circumstances that ever was admitted a Witness MR. Walter Pringle adds That the Earl of Tarras is not only in the case of a person who stands Indyted for High-Treason but must be look'd upon as a person condemned for the said Cryme seeing he fully and amply confest the Cryme confessus habetur pro convicto and never any Lawyer asserted That damnatus criminis loesae Majestatis could be admitted as a Witnes and there is nothing more clear then that by the common Law and the Law of all Nations this Objection ought to be sustained for the Civil Law is clear leg 11. cod de testibus and Matheus in his title de probationibus cap. de testibus doth assert positivlie that the Cryme of lese Majestie Heresie and generally all these Crymes quae sine sociis non possunt facile admitti are not excepted And he asserts that the Lawyers viz. Gomesius Decianus who are of another Opinion do acknowledge nominatum a reo damnandum non esse and that they contravert only An nominatio rei â—it indicium sufficiens ad torquendum nominatum SIr George Lockhart Repeats and oppons the Answer and the Cryme lybelled being a Conspiration of Treason which of it's own nature is manadged and caryed on by Secrecie and Contrivance and which is only known to the Complices of the Treason and which cannot be commited sine sociis the Law of this Kingdom and of all Nations do allow socios criminis to be testes habiles and not only are they admitted in the case of such Conjurations but generally in omnibus criminibus exceptis amongst which the Crime of Perduellion and lese Majestie is the chief and it is absolutly impossible that Plots and Conspirations of Treason can be otherways proven then per socios and such as are participes criminis and which is the common opinion of all Lawyers as may appear by Farin Quest 45. And the Authorities cited by him and which is the inviolable practique of this Kingdom and as to that pretence that the Earl of Tarras is under a Process of Treason and has submitted to His Majesties mercy and that confessus habetur pro convicto it imports nothing and infers no more then that he is socius criminis and is still a habil witnes as to Conjuration of Treason socius criminis hoc ipso that it is acknowledged or proven being still under the hazard of Process or condemnation which Law regards not in regard of the secrecie involved in the nature of the Crime that either witnesses neque actu neque habitu can be present so that the objection amounts to no less then that Conjurations of Treason cannot at all be proven And as to the Law cited from the Majestie it imports
Edinburgh Castle the 8. of September 1684. and renewed the 18 of the same Month. William Carstares PERTH CANCELL I. P. D. Edinburgh Castle 18 September 1684. MR. William Carstares being again Examined adheres to his former Deposition in all the parts of it and Depones he knows of no Correspondence betwixt Scotland and England except by Martin before named for those Gentlemen to whom he was sent were left to follow their own Methods Veitch sometimes as the Deponent remembers stayed sometimes an Nicolson Stabler's House at London-wall sometimes with one Widow Hardcastle in More-fields The Deponent did Communicate the Design on foot to Doctor Owen Mr. Griffil and Mr. Meed at Stepney who all concurred in the promoting of it and were desirous it should take effect and to one Mr. Freth in the Temple Councellor at Law who said that he would see what he could do in reference to the Money but there having gone a Report that there was no Money to be raised he did nothing in it nor does the Deponent think him any more concerned in the Affair Nelthrop frequently spoke to the Deponent of the Money to be sent to Argyle whether it was got or not but the Deponent used no freedom with him in the Affair Goodenough did insinuate once that the Lords were not inclined to the thing and that before they would see what they could do in the City The Deponent saw Mr. Ferguson and Mr. Rumsay lurking after the Plot broke out before the Proclamation having gone to Ferguson in the back of Bishopsgate-street at some new Building whether he was directed by Ierviswood who was desirous to know how things went Rumsay was not oâ— the Deponent his acquaintance before but they knew as little of the matter as the Deponent This is what the Deponent remembers and if any thing come to his Memory he is to deliver it in betwixt the first of October And this is the truth as he shall answer to God William Carstares PERTH Cancell I. P. D. At Edinburgh the 22. of December 1684. THese foregoing Depositions Subscribed by Mr. William Carstares Deponent and by the Lord Chancellor were acknowledged on Oath by the said Mr. William Carstares to be his true Depositions and that the Subscriptions were his in presence of us Under subscribers William Carstares PERTH Cancell David Falconer Queensberry George Mckenzie Athol HIs Majesties Advocat for further probation adduces the Examinations of Mr Shepard taken before Sir Leolin Ienkins Secretary of State for England with the Information or Deposition of Mr. Zachary Bourn relating to the Plot sign'd by him and Secretary Ienkins of which Depositions the tenors follow THe Examination of Thomas Shepard of London Merchant taken upon Oath before the Right Honourable Sir Leolin Jenkins Knight His Majesties Paincipal Secretary of State the 23. day of December 1683. THe Deponent saith That Ferguson told him on or about the Moneth of April last that an Insurrection was intended both in England and in Scotland and that for the settling that Affair betwixt the two Nations Mr. Baillie Mr. Monro Sir Iohn Cochran Sir Hugh and Sir George Campbels with some others whose names this Deponent heard not were come to London That the Deponent had some acquaintance with Mr. Baillie Mr. Monro and Sir Iohn Cochran and none at all with Sir Hugh and Sir George Campbels that Mr. Baillie told the Deponent that the Earl of Argile demanded Thirty Thousand Pounds of the English to capacitat him to begin the business effectually in Scotland and that he the said Baillie likewise told the Deponent that having concerted things with the Lord Russel and others he the said Baillie found an impossibility of raising that Sum After which the said Baillie had acquainted the Deponent that they were certainly promised Ten Thousand Pounds which Sum was agreed to be payed into the Deponents hands in order to be remitted into Holland for the providing of Arms and that the said Baillie told the Deponent at divers times that the said Sum or at least one half of it would be payed such a day and such a day and sometimes asked the Deponent if he had received any part of the said Money to which the Deponent replyed that he had not and that he the Deponent scarce thought any would be payed And the Deponent also saith that having had some little conversation with Sir Iohn Cochran he remembers well that both of them did sometimes lament the delays in not paying in the Money and said that although the said Ten thousand Pounds were pay'd in they the said Sir Iohn Cochran and Mr. Monro fearâ—d it would be too little and this Deponent further sayeth not as to any new matter But the Deponent being asked to Explain what he thought was meant by the words above-written viz. to capacitat him the Earl of Argile to begin the business he this Deponent sayeth that he did understand by the Word business an Insurrection in Scotland Sic subscribitur Iurat coram Thomas Shepard L. Ienkins THe Information of Zachary Bourn of London Brewer taken upon Oath the tenth day of December 1683. before the Right honourable Mr. Secretary Ienkins THe Informant Deposeth and sayeth that Mr. Baillie set up one Night if not two with Mr. Ferguson and went several times in the Evening with him to the Duke of Monmouth and the chief mannagers of the Conspiracy That Ferguson told the Deponent that he the said Baillie was the chief man for the Scots next to the Lord Argile that the said Baillie did sit up the greatest part of one night with the said Ferguson at which time this Deponent believeth they were busie in preparing the intended Declaration which the Deponent has the more reason to believe in as much as the said Ferguson did go about to show him the Deponent such a Paper wherein the said Ferguson was hindered by the coming up Stairs of some person to speak with the said Ferguson that the said Ferguson told the Deponent that the main business of the said Baillie in meeting the saids Conspirators was in order to get from them the Ten thousand Pounds promised for the buying of Arms for the Insurrection intended in Scotland That the Deponent saw Mr. William Carstares come often to the Lodgings of the said Ferguson but that the said Ferguson never told the Deponent of any Discourse held by him with the said Carstares and further this Deponent saith not sic subscribitur Zac. Bourn Iurat coram L. Ienkins HIs Majesties Advocate likewise produced several Warrands and Papers to prove that those Depositions are sign'd by Sir Leolin Ienkins HIs Majesties Advocate also produced the Books of Adjournal bearing Mr. William Veitch to be a Forefault Traitor and the Act of Parliament whereby the Forefaulture is Ratified His Majesties Advocat's Speech to the Inquest My Lords and Gentlemen YOu have now a Conspiracy against His Majesties Sacred Person and Royal Government so fully discover'd that they must want Reason as
saw them kill him but the murderers having been pursued they run to the place out of which the Pannals then accused were taken none having seen the face of the Runaweys and the Pannals being accus'd and press'd to deny the accession shun'd to disown the Guilt but desired it might be proved against them This may convince you that there are Proofs which are stronger then Witnesses and I am sure that there were never more proving Witnesses then in this case nor were the Depositions of Witnesses ever more strongly adminiculated Remember the danger likewise of emboldening Conspiracies against the Kings Sacred Life and of encouraging a Civil War wherein your selves and your Posterity may bleed by making the least difficulty to find a man Guilty by the strongest Proofs that ever were adduced in so latent a Crime as a Conspiracy is And I do justly conclude that whoever denys that a Conspiracy can be thus prov'd does let all the World see that he inclines that Conspiracies should be encouraged and allow'd Our Age is so far from needing such Encouragements that on the other hand in this as in all other Crimes because the Guilt grows frequent and dangerous the Probation should therefore be made the more easie tho in this Case the King needs as little desire your Favour as fear your Justice And I have insisted so much upon this Probation rather to convince the World of the Conspiracy than you that this Conspirator is Guilty THereafter the Lords Ordained the Assize to inclose and return their Verdict to morrow by Nine a Clock in the morning Edinburgh December 24. 1684. THe said day The Persons who past upon the Assie of Mr. Robert Baillie of Ierviswood return'd their Verdict in presence of the saids Lords whereof the Tenor follows The Assize all in one Voice finds the Crimes of Art and Part in the Conspiracy and Plot Libelled and of concealing and not revealing the same clearly proven against Mr. Robert Baillie the Pannal in respect of the Depositions of Witnesses and Adminicles adduced Sic subscribitur Strathmore Chancellor AFter opening and reading of the which verdict of Assyze The Lords Justice General Justice Clerk and Commissioners of Justiciary therefore by the mouth of Iames Iohnstoun Dempster of Court Decerned and Adjudged the said Mr. Robert Baillie of Ierviswood to be taken to the Mercat Cross of Edinburgh this twentie fourth day of December instant betwixt two and four a clock in the afternoon and there to be hanged on a Gibbet till he be dead and his Head to be cut off and his Body to be Quartered in four and his head to be affixt on the Nether-bow of Edinburgh and one of his Quarters to be affixt on the Tolbooth of Iedburgh another on the Tolbooth of Lanerk a third on the Tolbooth of Air and a fourth on the Tolbooth of Glasgow And ordains his Name Fame Memory and Honours to be extinct his Blood to be Tainted and his Arms to be riven forth and delate out of the Books of Arms so that his Posterity may never have Place nor be able hereafter to bruik or joyse any Honours Offices Titles or Dignities within this Realm in time coming and to have Forfaulted Ammitted and Tint all and sundry his Lands Heritages Tacks Steadings Rooms Possessions Goods and Gear whatsoever pertaining to him to Our Soveraign Lords use to remain perpetually with His Highness in Property which was pronunced for Doom Sic subscribitur LINLITHGOW James Foulis I. Lockhart David Balfour Roger Hog Al. Seton P. Lyon Extracted forth of the Books of Adjournal by me Mr. Thomas Gordon Clerk to the Iustice Court sic subscribitur THO. GORDON In pursuance of which Sentence His Majesties Heraulds and Pursevants with their Coats display'd after sound of Trumpets Did publickly in face of the Court conform to the custom in the Sentences of Treason in His Majesties Name and Authority Cancel Tear and Destroy the said Mr. Robert Baillie his Arms threw them in his Face trampl'd them under foot And ordain'd his Arms to be expunged out of the Books of Herauldry his Posterity to be ignoble and never to injoy Honour and Dignity in time coming And thereafter went to the Mercat-Cross of Edinburgh and solemnly Tore and Cancelled the said Mr. Robert Baillie his Arms and affixed the famine on the said Mercat-Cross Reversed with this Inscription The Arms of Mr. Robert Baillie late of Jerviswood Traitor FINIS * Nota That this week His Majesty was expected from New-mercat but came 8. dayes sooner by reason of the fire * Monmouth * Carstares †Scotland * Scotland †England * Dissenting Lords †Carstares * Dissenting Lords Nota That the Earl of Tarras depon'd nothing against Jerviswood but what the other two Witnesses depon'd against himself before the Tryal and upon which thereafter they being renew'd the Earl was forfaulted so that there could be no ground of suspicion from his Circumstances