Selected quad for the lemma: state_n
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A50871
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The tryal and process of high-treason and doom of forfaulture against Mr. Robert Baillie of Jerviswood traitor ...
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Baillie, Robert, d. 1684.; Mackenzie, George, Sir, 1636-1691.
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1685
(1685)
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Wing M208; ESTC R19066
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35,663
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38
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Teviotdale and Selkirk Shire would joyn with them And this is the truth as he shall answer to God Sic subscribitur Hugh Scot. Linlithgow I. P. D. HIs Majesties Advocat produc'd other Depositions emitted by Gallowshiels before the Lords of the Secret Committee whereof the Tenor follows Edinburgh the 14 of September 1684. GAllowsheils Depons that the E. of Tarras and Philiphaugh being in his House in May 1683. Discoursed of an intended rising in England and of Proposals made to Scots men to rise with them and of London in particular and that Polwort was present at that Meeting and told he was sure the Englishmen intended so and that it was Discoursed at that Meeting amongst them that it were fit to seize Berwick and Stirling and that it was talked amongst them of bringing the Duke of York to Tryal and that the King would abandon him Sic Subscribitur Hugh Scot. Perth Cancel Queensberry George Mckenzie Jo. Drummond George Mckenzie Edinburgh October 29. 1684. Sederunt Lord Chancellour Lord President Lord Secretary 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 Polwert 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 mannag'd the Discourse It was likewise propos'd to seize the Officers of State especially the Chancellour and Thesaurer and they said Sir John 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 saids 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. James 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 Dunvers 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 James Stuart above-nam'd He was introduc'd to the Earl of Argile with whom he had never before convers'd 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 propos'd 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 James
of the King and the Council of England upon a Letter from His Majesties Officers of State here In which Deposition Shepard one of the VVitnesses deposes that Baillie came frequently to him and desired him to advance the Money and lamented the delays and that there was so little to be advanced and who should be better believed then one who was his own Trustie and a Person who was able to advance so great a Sum Bourn another of the VVitnesses Deposes that Ferguson told him that the Pannal spoke frequently to him concerning the same Money and that he sat up several nights with Ferguson upon the said Conspiracy and who should be better believed then Fergusons confident and one who was so far trusted in the whole affair that he was to take away that Sacred Life which Heaven has preserv'd by so many Miracls Against these three Depositions you have heard it objected that non testimonia sed testes probant especially by our Law in which by an express Act of Parliament no Probation is to be led but in presence of the Assise and Pannal To which it is answered that these Depositions are not meer Testimonies for I call a Testimony a voluntar Declaration emitted without an Oath and a Judge but these Depositions are taken under the awe of an Oath and by the direction of a Judge â— Shepard was confronted with the Pannal himself and he had nothing to say against him whereas the great thing that can be objected against Testimonies and by our Statute especially is that if the Party who emits the Testimony had been confronted with the Pannal the impression of seeing a person that was to die by his Deposition would have made him afraid to Depose laxly and the Pannal likewise might by proposing Interrogators and Questions have cleared himself and satisfi'd the Judges in many things Depos'd against him But so it is that Mr. Shepard having been confronted with the Pannal before the King Himself who is as far above other Judges in His Reason and Justice as He is in His Power and Authority He Deposes that the Pannal was the chief Mannager of this Conspiracy next to Argile and that he was so passionat to have this Money to buy Arms that he lamented the delays and can it be imagined that Mr. Shepard whom he trusted with his Life and his Fortune and whom all their Party trusted with their Cash would have Depos'd any thing against him that was not true especially when he knew that what he was to Depose was to take away his Life and his Fortune or that if the Pannal had been innocent he would not when he was confronted with Mr. Shepard before the King Himself have roar'd against Mr. Shepard if he had not been conscious to his own Guilt There is a surprise in innocence which makes the innocent exclaim and it inspires men with a courage which enables them to confound those who Depose falsly against them and in what occasion could either of these have appear'd more than in this wherein this Gentleman was charg'd to have Conspir'd with the greatest of Rascals against the best of Princes and that too in presence of the Prince himself against whom he had Conspir'd but Guilt stupifies indeed and it did never more than in this Gentlemans Case whose silence was a more convincing Witness than Mr. Shepard could be Mr. Carstares likewise knew when he was to Depone that his Deposition was to be used against Jerviswood and he stood more in awe of his love to his Friend than of the fear of the Torture and hazarded rather to die for Jerviswood than that Jerviswood should die by him How can it then be imagin'd that if this man had seen Jerviswood in his Tryal it would have altered his Deposition or that this kindness which we all admir'd in him would have suffer'd him to forget any thing in his Deposition which might have been advantageous in the least to his Friend And they understand ill this hight of Friendship who think that it would not have been more nice and careful than any Advocat could have been and if Carstares had forgot at one time would he not have supplyed it at another but especially at this last time when he knew his Friend was already brought upon his Tryal and that this renew'd Testimony was yet a further confirmation of what was said against him and albeit the Kings Servants were forced to engage that Carstares himself should not be made use of as a Witness against Jerviswood yet I think this kind scrupulosity in Carstares for Jerviswood should convince you more than twenty suspect nay than even indifferent Witnesses nor can it be imagined that the one of these Witnesses would not have been as much afraid of God and his Oath at London as at Edinburgh and the other in the Council-Chamber in the Forenoon as in the Justice-Court in the Afternoon 3. The Statute founded on does not discharge the producing of Testimonies otherways than after the Jury is inclos'd for then indeed they might be dangerous because the party could not object against them But since the Statute only discharges to produce Writ or Witnesses after the Jury is inclos'd it seems clearly to insinuat that they ought to prove when they are produc'd in presence of the Party himself as now they are And though the Civil Law did not allow their Judges to believe Testimonies because they were confin'd to observe strict Law yet it does not from that follow that our Juries whom the Law allows to be a Law to themselves and to be confin'd by no Rule but their Conscience may not trust intirely to the Depositions of Witnesses though not taken before themselves when they know that the Witnesses by whom and the Judges before whom these Depositions were emited are persons beyond all suspition as in our case But yet for all this I produce these Testimonies as Adminicles here only to connect the Depositions of the present Witnesses and not to be equivalent to Witnesses in this legal Process albeit as to the conviction of mankind they are stronger than any ordinary Witnesses When you my Lords and Gentlemen remember that it is not the revenge of a privat party that accuses in this case and that even in privat Crimes such as Forgery or the murder of Children c. many Juries here have proceeded upon meer presumptions and that even Solomon himself founded his illustrious Decision approv'd by God Almighty upon the presum'd assertion of a Mother I hope ye will think two Friends Deposing as present Witnesses adminiculated and connected by the Depositions of others though absent should beget in you an intire belief especially against a Pannal who has been alwayes known to incline this way and who though he was desired in the Tolbooth to vindicat himself from those Crimes would not say any thing in his own defence and though he offers to clear himself of his accession to the Kings Murder