nights with them concerting that bloody Massacer at least the said Mr. Robert Baillie of Jerviswood 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 armes 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 abovespecified and is art and part of the samine 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 Jerviswood 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 Jerviswood to morrow at two a clock in the afternoon preceisly and the saids Lords do hereby Require and Command Sr. George Lockhart of Carnwath and Sr. John Lauder Advocats to concur and assist in the said Process with His Majesties Advocat from the intenting untill 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 Sir John Lauder Advocats Procurators in Defence Sir Patrick Hume Mr. Walter Pringle Mr. James Graham Mr. Welliam Fletcher Mr. William Baillie Advocats THE Pannals Procurators produced ane Act of His Majesties Privy Council in their favours wherof 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 Jerviswood 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. James Graham Mr. William Fletcher Mr. James 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 Jerviswood Pannal alleadges that he ought not to passe 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 pre-supposeth 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 July 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 alwayes 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 be 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 John Lauder for His Majesties Interest answers That he oppons the Decreet of Privy Council
THE TRYAL AND PROCESS OF High-Treason AND Doom of Forfaulture AGAINST Mr. Robert Baillie of Jerviswood TRAITOR By His Majesties special Command As a further proof of the late Fanatical Conspiracy Edinburgh Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1685. The Tryal and Process of High-Treason and Doom of Forefaulture against Mr. Robert Baillie of Jerviswood Traitor CVria Justiciariae S. D. N. Regis tenta in praetorio burgi de Edinburgh vigesâ—mo tertio die mensis Decembris 1684. Per nobilem Potentem Comitem Georgium Comitem de Linlithgow Dominum Livingstoun c. Justiciarium generalem totius Regni Scotiae honorabiles viros Domines Jacobum Foulis de Colintoun Justiciariae Clericum Joannem Lockhart de Castlehill Davidem Balfour de Forret Rogerum Hoge de Harcarss Alexandrum Seaton de Pitmedden Patricium Lyon de Carss Commissionarios Justiciariae 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 James 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 not our 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 James 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 is 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 Subjects of this Realm by Writing Speaking or any other manner of way to endeavour the alteration Suspension or Diversion of the Right of Succession or debarring the next lawful Successour Nevertheless it is of verity that the said Mr. Robert Baillie of Jerviswood shaking of 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 Traiterously 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 dayes of the Moneths of January 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 Russel 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 inâ—o 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 John 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 had 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 John Cochran and the Cessnocks 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 Polwart 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 Associats 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 Correspondantts 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 flew 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
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 home to Scoland 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 â—elf THe Lords Justice-General Justice-Clerk and Commissioners of Justiciary having considered the Libel pursued by His Majesties Advocat against Mr. Robert Baillie of Jerviswood with the 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 James Fleming late Provest of Edinburgh Sir John Ramsay of Whitehill Adam Hepburn of Humby Andrew Bruâ—e of Earleshall John Stuart Tutor of Alpin Alexander Miln of Carrin Mr. James Elies of Stenhopsmilns Sir William Drummond of Halthornden Major Andrew White Lieutennent of Edinburgh Castle Mr. David Grahame Sheriff of Wigtoun Colin M ckenzie Collector of Ross. David Burnet Merchant THe Assise lawfully Sworn no Objection of the Law in the contrary HIis 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 therof 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 Wintess seing 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 seing he fully and amply confest the Cryme confessus habetur pâ—o convicto and never any Lawyer asserted That damnatus criminis lesa 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 possuut 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 sit 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 otherwayes 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
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 John Cochran on the account of Carolina but that he does not know Aron Smith or any more of that matter not being concerned in it Shepard named young Hamden frequently as concerned in these Matters Signed at Edinburgh Castle the 8. of September 1684. and renewed the 18 of the same Moneth 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 at Nicolson Stablerâ—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 Jerviswood who was desirous to know how things went Rumsay was not of 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 and 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 Undersubscribers William Carstares PERTH Cancell David Falconer George Mckenzie Queensberry Athol HIs Majesties Advocat for further probation adduces the Examinations of Mr. Shepard taken before Sir Leolin Jenkins Secretary of State for England with the Information or Deposition of Mr. Zachary Bourn relating to the Plot sign'd by him and Secretary Jenkins 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 Principal 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 John 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 John 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 John 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 John Cochran and Mr. Monro fear'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 viâ—s 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 Thomas Shepard Jurat coram L. Jenkins THe Information of Zachary Bourn of London Brewer taken upon Oath the tenth day of December 1683. before the Right honourable Mr. Secretary Jenkins THe Informant Deposeth and sayeth that Mr. Baillie sat 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