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
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
A True and Plain ACCOUNT OF THE DISCOVERIES Made in SCOTLAND Of the Late CONSPIRACIES Against His Majesty and the Government Extracted from the Proofs lying in the Records of His Majesties Privy Council and the High Justice Court of the Nation TOGETHER With an Authentick Extract of the Criminal Process and Sentence against Mr. Robert Baillie of Ierviswood Extracted by Command of His Majesties most Honourable Privy Council of Scotland And Published by His Majesties Command Reprinted at London by Thomas Newcomb for Susanna Forrester in Kings-Street Westminster 1685. A true and plain Account of the Discoveries made in Scotland of the late Conspiracies against His Majesty and the Government THE King's Majestie having on certain great considerations indicted a Parliament to hold at Edinburgh 28 of Iuly 1681. Did render that Meeting the more illustrious by nominating His Royal Brother Commissioner to represent His Majesty in it The Fanatical Party who let no occasion slip to promove their Designs and to disturb the settled Government did at this time use all their endeavours to have as many of those infected with their principles elected Commissioners for the Parliament as the little power and Interest they had in the Nation could procure and even where they could not hope to succeed they had the insolence to attempt thereby pursuing closly what they constantly design that is pertinaciously to disturb where they cannot alter and to found a Reputation to their Party by much noise though to little purpose At the time of meeting of the Parliament their first consult was to strick at the Head and by invading the Right of the Monarchy to pull it down so far as to have the King in the Person of His Commissioner subjected to the same Rules and Inquisitions with other subordinat Members The King by His Laws having prescribed Rules to those who Serve Him in that Great Court and Council They according to the Laws of their Leagues and Covenants propose that the Parliament should prescribe the same to the King consonant enough to their beloved Design of Co ordination in Power Had this succeeded they with this one Blow had overthrown the Parliament by laying the Commissioner aside But as men oft-times design bold Treasons with abundance of Resolution yet are frighted from the Execution by the danger as well as ugliness of the Crime So this insolent Resolution dar'd not shew its Face being strangl'd by their own Fears And seeing they could not dissolve the Parliament they in the next place resolv'd to disappoint the Design of it and indeed if the maintaining of an unjust Interest could warrand the action they had reason so to do For the Fanatical-Party having by their own great industry and the supine negligentâ— to say no worse of these Trusted by the King to suppress them not only kept up but encreased their pernicious Brood So that they began to appear formidable both to the King and the Countrey and one of their great Hopes whereby their Party increased being founded on the short continuance of the Supply granted by the Nation for maintaining the Forces they could little doubt but that all Loyal Subjects would not only continue but also further augment them rather then leave the Seditious in a capacity to disturb the Government Therefore as a necessary expedient to preserve Fanaticism they resolved by all possible means to hinder any continuation of the Supplie But they soon found that the Votes of their Party had neither number nor weight These well-natur'd Subjects finding that they could not disappoint thought it convenient to perplex and since they could not do what they would they resolv'd to do all they could And albeit the late Earl of Argile and some others who were under too great obligations to the King's Majesty and His Royal-Highness to appear on the side of their Friends in the good old Cause whilst the opposition was so bare-fac'd and the hope of success so little Yet lest their little Flock should be discouraged they began then to animat them the more close and as they thought undiscern'd methods And now the Cause being in an apparent decay they labour'd to refresh it with its first milk the Pretence of Religion Wherefore a new Security for Religion was proposed And albeit our Laws had formerly provided what was necessary for this yet it could not be expected that those who aimed at debate for Religion should rest-satisfied with what settled it So the Doctrine of the Church the Canons of Councils and the Laws of the Kingdom being all lookt upon as nothing Argyle Sir Iohn Cochran Salton the Earl of Tarras Philiphaugh Stairs Gallowsheils and others of that Crew would needs provide a greater security than these afforded and indeed it was congruous for those who were tainted with new Doctrines to desire new Sanctions For this end they pressed a Committee for drawing an Act to secure the Protestant Religion which was no sooner proposed then granted accordingly a Committee was appointed consisting for the most part of West-countrey men who upon short deliberation prepared a long Act which at its first appearance in the Articles was soon discerned to be an Invasion upon the Prerogative under the name of a Defence for Religion and not to have many more Lines than Incroatchments upon the Royal Right whereupon it was rejected and in place of it a general and plain Ratification of all the former good Laws which had past for security of the Protestant Religion was drawn approven and acquiesced in by the Parliament But Fanaticks are not of a temper to give over for notwithstanding of this good Law Murmurings were heard Clamors were raised and open Protestations were made for fâ—rther security in Religion Wherefore a new Committee was appointed for preparing an Act to be drawn from the proposals for that end The Party which clamored for the Protestant Religion but in effect intending good Offices to the Fanatical party did seek after what conduc'd to their by-ends which as they were easily discovered were as soon rejected Argyle Sir Iohn Cochran the Earl of Tarras Stairs Philiphaugh Gallowshiels and their adherents fall at last on an expedient as they thought insuperable by the Kings Servants and which would force them on the Dilemma of opposing Religion or the Soveraignity In the first Year and Parliament of King Iames the sixth when the differences betwixt Queen Mary and many of the Nobility were in their greatest hight and she forc'd to resign her Government being a Prisoner there were several Acts past in that and some subsequent Parliaments which incroached on the Prerogatives of the Crown the King being then an Infant and amongst others that wherein the Confession of Faith was insert had in it several Clauses altogether extrinsick to a Confession of Faith for which that Act by its Title was chiefly design'd And tho these Acts and Clauses which derogated from the Rights of the Crown were often rescinded or corrected and the Prerogative fully
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
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