CURIA ITINERIS JUSTICIARN, S. D. N. Regis, tenta apud burgum de Inverarii, vicesimo primo die Mensis Septembris, Anno Domini millesimo septingentesimo quinquagesimo secundo, N. S. per nobilem et præpotenten Principem Archibaldum Ducem de Argyll, Dominum Justiciarium Generalem, et Patricium Grant de Elchies, armigerum, et Dominum Jacobum Ferguson de Kilkerran, Dominos Commissionarios Justiciarii dicti S. D. N. Regis.

Curia legitimè affirmata.

Elizabeth and Lucy Campbells, her infant children, with concourse of his majesty's advocate, for his majesty's interest; the said Allan Stewart, commonly called Allan Breck Stewart, having been lawfully cited for that effect, oft times called, and not compearing. ARGYLL, I. P. D.

Intran'

James Stewart indicted and accused at the instance of his majesty's advocate, for his ma jesty's interest, and also at the instance of Janet Mackay, daughter to the honourable Hugh Mackay of Bighouse, esq. and relict of the said deceased Colin Campbell of Glenure, for herself, and on behalf of Elizabeth and Lucy Campbells, her infant children, with concourse of his majesty's advocate, for his majesty's interest, as guilty, actor, or art and part of the crime of murder, committed in the manner mentioned in the Criminal Letters raised thereanent against him, and Allan Stewart, commonly called Allan Breck Stewart, son to Donald Stewart, alias Vic Ean Vic Allister, sometime in Inverchomrie in Rannoch, and since, or sometime after the 18th day of April, 1746, a cadet or soldier in the French king's service, or reputed in this country to have been such.

Procurators for the Prosecutors.

The right hon. Willium Grant of Prestongrange, esq. his Majesty's Advocate. Mr. James Erskine, advocate, sheriff-depute of Perthshire.

Mr. John Campbell younger, of Levenside,

advocate.

Mr. Robert Campbell of Asnich, advocate.
Simon Frazer, esq. advocate.

Procurators for the Pannel.

His Majesty's Advocate moved, That the Criminal Letters at his instance, for his majesty's interest, and also at the instance of Janet Mackay, daughter to the honourable Hugh Mackay of Bighouse, esq. and relict of the deceased Colin Campbell of Glenure, for herself, and on behalf of Elizabeth and Lucy Campbells, her infant children, with concourse of his said majesty's advocate, for his majesty's interest, against James Stewart in Aucharu in Duror of Appin, commonly known or reputed to be the natural brother of Charles Stewart, late of Ardshiel, attainted; and Allan Stewart, commonly called Allan Breck Stewart, son to Donald Stewart, alias Vic Ean Vic Allister, sometime in Inverchomrie in Rannoch, and since, or some time after the 18th day of April, 1746, a cadet or soldier in the French king's service, or reputed in this country to have been such, might be called. And the same being accordingly done, and the above Allan Stewart, commonly called Allan Breck Stewart, being oft and divers times called publicly by the macer of court, and thrice called at the outer door of the court-house, to have compeared and underlyen the law for the crime of murder committed by him upon the said deceased Colin Campbell of Glenure, in manner at length mentioned in the said criminal letters, he having been lawfully cited for that effect, but not compearing, the lord justice general, and lords commissioners of justiciary, decern and adjudge Allan Stewart, commonly called Allan Breck Stewart, son to Donald Stewart, alias Vic Ean Vic Allister, sometime in Inverchomrie in Rannoch, and since, or sometime after the 18th day of April, 1746, a cadet or soldier in the French king's service, or reputed in this country to have been such, to be an outlaw and fugitive from his majesty's laws; and orLord Justice General. James Stewart, you dain him to be put to the horn, and all his-have heard the criminal letters against you moveable goods and gear to be escheat and read. What have you to say to them? inbrought to his majesty's use, for his not compearing this day and place, to underly the law for the crime of murder committed by him upon the deceased Colin Campbell of Glenure, as is more fully mentioned in the criminal letters rised against him thereanent, at the instance of William Grant of Prestongrange, esq. his majesty's advocate, for his majesty's interest, and also at the instance of Janet Mackay, daughter to the honourable Hugh Mackay of Bighouse, es and relict of the said deceased Colin Campbell of Glenure, for herself, and on behalf of

Mr. George Brown of Colstoun, advocate, sheriff depute of the shire of Forfar. Mr. Thomas Millar, advocate, sheriff-depute of the stewartry of Kirkcudbright. Mr. Walter Stewart younger, of Stewarthall, advocate.

Mr. Robert Macintosh, advocate.

minal Letters against the pannel, and the beHis Majesty's Advocate moved, that the Criread. And the same was accordingly done. fore-named Allan Breck Stewart, might be

James Stewart. My lords, I am not guilty of the crime of which I am accused, and I refer to my lawyers to make my defence.

Mr. Walter Stewart for the pannel. My Lord Justice General; appear as counsel for this prisoner, James Stewart, who now stands at your lordship's bar, charged as being accessary to one of the foulest and most barbarous murders that has occurred in any country; the murder not only of an innocent gentleman, but, as will be proved, the pannel's

own intimate friend; and that without the smallest provocation, save what greatly enbances his guilt, viz. Glenure's being in the faithful discharge of his duty in an office entrusted to him by the public. He is charged with causing Allan Breck Stewart lie in wait for this unhappy gentleman, and take him off by a base and inhuman assassination. I amn sensible, my lord, that the pannel, accused of a murder attended with so many aggravating circumstances, must appear before your lordship, his jury and the world, in a very unfavourable view. A certain indignation naturally arises in every humane breast against one suspected of so horrid a crime; and this must not be a little increased by the malicious stories and insinuations industriously spread, which the pannel, from his close confinement, has had no opportunity of contradicting. But now, as he has put himself for his trial upon God and his country, by pleading not guilty, until that country finds him guilty the presumption is for innocence. This he has a title to demand. All I shall ask, however, is, that as I know his judges, so I hope his jury, and all who now hear me, will lay aside any prejudice against him, and will form no opinion, until the circumstances of the libel, the defences which I am now to offer against it, and the proof of both, be attentively considered. For myself, my lord, I must say (and I believe I may say the same for all the gentlemen on the same side with me), did I, after the strictest inquiry, suspect the pannel to be accessary to this murder, it would be the last action in my life to stand up in his defence. But, my lord, we have gone through this libel with the greatest attention, and have taken a view of the several facts, which, after a precognition of above a thousand witnesses, are set forth to support the charge against the pannel; we have heard from the pannel's own mouth his defences against this charge, which he avers he can prove; we have beard, from the unprejudiced, the general character he bears in the world, and, from the whole, cannot help concluding, that he is not guilty. We look upon ourselves as standing up for innocence, when defending this paunel. It is therefore our duty to defend him with that warmth which innocence claims as its due.

or two more; but any who could be thought proper persons to prepare defences for his trial, were carefully denied access to him. And again, for a considerable time before his trial, he was close confined, and all admittance refused. When his counsel came to this place, and wanted to see him, we were told that none were to be admitted without a warrant from the duke of Argyll; and a petition was actually drawn, to be presented to your grace, when a message came allowing us access. His sons and his servants too have suffered the same close imprisonment. And all this not only contrary to humanity, but directly in the face of the act of parliament 1701, which discharges close imprisonment after eight days, under the severest penalties. By the precaution of this private prosecutor too, the bar has been in a manner shut up against this pannel; all the old experienced counsel, though not brought to maintain the charge against him, have been retained from giving him their assistance; otherways, in all probability, I had not now been employed to open his defence. The pannel's house and his repositories have been three several times searched, and papers carried off by near relations of the prosecutors, attended by a military force, and without any warrant. His wife and his sons, who by the laws of God and man cannot be called as witnesses against him, have been examined upon oath ; some of them five different times, to catch at any discordance, had there been any, in their declarations; and these very declarations are now proposed to be brought in proof against the pannel, while the declarants themselves are alive, and ought, by the fundamental laws of this kingdom, to be examined in presence of the pannel and jury. These are hardships, my lord, which, thanks be to God! meet with no encouragement in this now a free country. The time was, indeed, when the feeble law was unable to protect the innocent, when the rules of justice were broke to pieces by the ruffian hands of power; then our unhappy country groaned under the intolerable yoke of arbitrary power; then was scarce the form of a trial; the best, the greatest of our country, even an Argyll,* fell a sacrifice to the will of tyranny. But now, my lords, the days which our fathers wished to see, and did not see, we In the entry of this trial, my lord, I cannot have the happiness to enjoy. A fair trial, help complaining of most intolerable hardships, which the noblest could not obtain, the meanest which this pannel has undergone since May are now entitled to, under the protection of last, when he was first incarcerated. My lord laws, guarded by a government ever watchful advocate's humanity, his tenderness to pannels, for the good of its subjects, under which the I can, from my own little experience in trials, keenness of private prosecutors will meet with subscribe to. The unjustifiable steps I am no countenance or encouragement. The pannow to complain of, I must therefore lay tonel, enjoying the privileges of every tree-born the charge of the private prosecutors. I dare say my lord advocate as little knew of them, as he will now, when he hears, approve of them. The pannel, since the month of May last, has been kept in the closest confinement. For the first six weeks, no mortal was allowed access to him: after that, indeed, for some short time, admittance was given to his wife, and one

Briton, is now to stand trial before the judges and jury of his country; and as his judges will shew the greatest impartiality, he expects the same from the gentlemen of the jury. They will judge of the proof brought before

* See the Case of the earl of Argyll, voJ 8, p. 843.

them, having in their eye the example of Al- of the fact, and presented it to one of the barons mighty God, by whose holy name they have of exchequer, who disapproved greatly of sworn to do justly, before whose awful tribunal Glenure's procedure; but could do nothing tothere is no judgment formed from names or wards putting a stop to the removing, as a personal prejudices, but every man is judged quorum of the barons was not to be had until according to his works. They will consider, the next exchequer term. But he kept the that as they are to answer to God, so they have memorial, promising to represent the case to to answer to the world, who will make a narrow the whole barons; and added, that he had no and impartial scrutiny into their verdict. At doubt, but they would give an order to the the same time I cannot help saying, that, factor to continue the tenants in their possesamid all the hardships this pannel has suffered, sions. The pannel upon this advised with I hope it is one piece of good fortune, that he counsel, how the tenants might be kept in posis to be tried by gentlemen of the same coun- session until the exchequer term; and, by their ty with himself, who, from their more particu- advice, applied for a suspension of the removlar knowledge of the pannel, and his character ing to the court of session: And a bill of susin the world, should be best judges what proof pension being accordingly presented, a sist was is necessary to fix upon him so black a crime. obtained, and the bill ordered to be answered; In order that your lordships may more fully which sist was intimated to Glenure, upon the understand the defences now to be offered for pannel's returning into the country; and he, the pannel, I will beg leave to lay before the not knowing the forms, having carried with Court an account of the facts, which have him the principal bill of suspension, and given rise to this prosecution, as they really Glenure immediately giving in answers, the happened; and as we have got them from the same were advised without the bill, and it was pannel's own mouth, at a time when it was refused. This scheme of a suspension having little his interest to hide the truth from us. failed, and Glenure persisting in his resolution The pannel, my lord, was in possession of a of ejecting the tenants upon the term.day at farm in the estate of Ardshiel called Glenduror, which they were warned to remove, the pannel, and was tacksman of another called Letter- upon a second application from the tenants, more, which he had subset for about 70%. Scots wrote to Alexander Stewart, notary public, to a year, when Glenure was appointed factor on come, upon the 15th of May, that they might the estate of Ardshiel in February 1749. That protest, and take an instrument against Glenure, gentleman continued the friendship which heif he proceeded to ejection; and when Alexhad before entertained for the pannel in a very particular manner. He gave him the management of the whole estate of Ardshiel, power to put in and reinove tenants, and to raise the rents as he should think proper, and took yearly from the pannel his bill for the rent of the estate, at which it had been surveyed by the barons of exchequer, leaving him to apply the overplus to the use of Ardshiel's children. This agreement will be instructed by discharges and letters under Glenure's own hand. Sometime before Whitsunday, 1751, Glenure applied to the pannel to yield the farm of Glenduror, which he then possessed, to Mr. Campbell of Bolaveolan, a particular friend of his, who offered an additional rent. This the pannel immediately complied with, without waiting a warning, and took the farm of Auchern, where he now lives, from Mr. Campbell of Airds, but still continued to uplift the rents of Ardshiel, in terms of his agreement with Glenure. Sometime in April last, Glenure executed a warning against the subtenant in Lettermore to remove from that farm at Whitsunday 1752; and likeways against several other tenants of the lands of Ardshiel. The pannel does acknowledge, that he did expostulate with Glenure upon this, telling him, he thought it hard to turn them out, since they effered to give more additional rent than any others would, and likeways to take the oaths to the government. But Glenure still persisted is his resolution; upon which the pannel, being occasionally in Edinburgh, at the de sire of the tenants, made out a short memorial VOL. XIX.

ander Stewart excused himself, the pannel sent a letter, by express, on the 14th of May, to Charles Stewart, notary in Auchintour, to come on the same errand, and, in a postscript, bid him tell William Stewart to send down 81. sterling, to pay four milk cows which he had bought for his use at Ardshiel, and which the tenants had refused to deliver until they got the price, though William Stewart had wrote for them. This postscript is laid hold of by the prosecutors, as a circumstance to fix this murder upon the pannel. But this, my lord, I am not surprised at; other letters of his share the same fate, though, if possible, less criminal than this one: By what conjuration, or what mighty magic they can be made so, I own I cannot conjecture.

The pannel, in further prosecution of this plan of taking a protest, on Thursday the 14th, had engaged James Stewart younger of Fasnacloich, and John Stewart younger of Ballachelish, to be present on the 15th, and witness his protest. But, on the Thursday, evening, the pannel received the melancholy accounts of Glenure's being murdered in the wood of Lettermore. These are the facts which gave rise to that inveterate malice, which the libel says induced the pannel to conspire the death of Glenure. The words are: "And, on account of the said Colin Campbell's accepting the said office, and of the above-mentioned and other his proceedings in the faithful discharge of the duty thereof, the said James conceived resentment," &c. How unjust this conclusion is, I do humbly submit to your lordships. C