caution; which seemed inconsistent and incompatible with the continuation of the diet. "Then he insisted against his second son, John Cochrane of Waterside; and in respect he was to be forfeited in absence, the king's advocate exactly observed the formality of swearing the herald who executed the summons-of treason against him, at the marketcross of Edinburgh, pier and shore of Leith, and the two witnesses, that the same is really done, (which is not used when the pannel is present,) and in regard James Dumbar the messenger executor was lying sick on his death bed, (whereof he died before the next day) three of the lords of justiciary (who make a quorum in vacance,) were sent from the bench to his house, who took his oath there; and it being returned, the libel was read; which was found relevant, (after some altercation amongst the lords themselves, because of the 11th act of parliament 1669, allowing the justices only to forfeit in absence in case of treasonable rising in arms, and open rebellion,) in thir terms; that Waterside was with the rebels at the rendezvous, in arms, at the Barhill of Cumnock, and in his father's town of Ochiltree, &c. For drilling men under colours, without the king's warrant, they judged open rebellion; and accordingly they proved the same against him by sundry witnesses. It happened, that several of the nobility fell to be upon his assize, which needed not, he being only a baron, and not á peer; but the advo cate apologized for it, and declared their privilege should be observed, only to be cited upon noblemen's assizes; but of old with us the great barons, which were the nobility, and the small ones did not differ specie; and then he added a reflection against Cesnock's assizers that the gentlemen whom they were making use of for assizers, were turning capricious; but the king would always trust his loyal peers. The assize returned him guilty of treason; so he was forfeited in absence. He was but a boy of 16 years old at the time of Bothwelbridge rising-His right to Waterside was only a disposition from his grand-father Dundonald, under reversion of a rose-noble; Quæritur, If he may redeem it now, no order having been used before the doom of forfeiture; and what reason can there be for his losing his faculty of redeeming except that he resetted him after the crime? Then his arms were torn at the cross, and Middleton got the gift of his forfeiture.

"November 10, 1684. At Criminal Court, the earl of Loudon, and George lord Melvill, having been continued from the 8th and 9th of April last to this day, they were now called on again, and a testificate is produced for Loudon, in the terms required by the art then made viz. under the seal of the town and university of Leyden, bearing that the physicians had deponed before them on his distemper, toge. ther with a petition, representing that his foot was so exceedingly sore, that these three months he could not set it to the ground; and craved that the diet for his appearance might

| be continued till summer, when he can travel; as also produced an instrument where, in October last, one Grier a taylor was offered cautioner for his appearance. The lords found the cautioner then offered not sufficient; and none being now offered, they rejected the petition, and testificate, and denounced him fugitive. But it was afterwards attested that he was dead in Holland before this denunciation.

"For Melvill it was alledged they offered to prove that he was indisposed and unable to travel; for proving which they craved the term of law, contained in the 8th chap. § 20. lib. 1. Reg. Majestat. of forty days for these ultra mare, and ratified by the 114th act, Pari. 1429; and offered to find caution to prove it. The king's advocate answered, that essoignies and excusations are of their own nature but dilators, and so ought instantly to be proven; and as to the 40 days mentioned in the Majesty, they have had since April last 6 times, 40 days. Replied, the 40 days run after the proponing of the excuse, which was not then proponed. The Justices repelled the defence, and denounced him likewise fugitive, and discharged all the lieges under the pain of treason, to keep any correspondence either with him or Loudon.

"Then the leading of probation on the process of treason against sir John Cochran, and Lockhart of Kirkton, (who were denounced out-laws and fugitives already,) in order to the forfeiting of them, was continued to the first Monday of January 1685.

"May 22, 1685. At the parliament, the libel of treason against sir John Cochran, sir Patrick Hume of Polwart, George Pringle of Torwoodlee, and Mr. Robert Martin deceased, and John Martin his son, being read, and voted to be relevant to infer the pain of treason; the probation was then led, viz. for proving sir John Cochran's accession to the conspiracy and plot, Alexander Monro, and the depositions of Monro, Shepherd and Burne. Then the principal records of parliament were read, anent the forfeitures of the earls of Angus, Huntley and Errol, in the parliament 1594, whereby it appeared, (as also by the earl of Gourie's in 1600, see vol. 1, p. 1359. and of Robert Logap of Restalrig in 1609, see vol. 2, p. 707,) that the parliaments then judged on notoriety, flight, denunciations, letters, and depositions of witnesses not present. This was to help the parliament over Carstairs's case, who was absent. Then the king's advocate summed up the probation against him as to the plot; and, to make it a preparative against Cesnock, he put it to the vote, if the probation he had adduced proved him guilty, and it carried affirmative. But there is a disparity between the cases.

"Then the king's advocate adduced sir George Maxwell of Pollock, and Cunninghame of Craigends, as witnesses to prove the second article of his dittay, viz. that sir John Cochran sought money from them to send to Argyle after he was forfeited. And this being put to the vote, it was carried proven nem. con. Then

320. Trial of JOHN PORTERFIELD,* of Duchall, for Treason: 36 CHARLES II. A. D. 1684. [Now first printed from the Records of Justiciary at Edinburgh.]

CURIA JUSTICIARII, S. D. N. Regis tenta in | for supplies to rebells, or the concealing that Pretorio Burgi de Edinburgh, vigesimo ther are supplies tollerated or craved for them, nono die mensis Novembris, anno mille- is high treason, since therby the government simo sextencesimo octuagesimo quarto, may be undermined and collections made and per honorabiles viros Dominos, Johannem by these collections forces raised, and since by Drummond, de Lundine Secretarium Sta- the uncontroverted law of this nation, the contus, et Jacobum Foulis, de Collingtoun, cealing and not revealing of treason is treason: Justiciarie Clericum, Commissionarios and that the raising or levieing of men or moJusticiarii dicti, S. D. N. Regis virtuteney in any case without his majesties authority, Commissionis.

his majesties subjects or any number of them, under the paine, that the saids rebells and traithe joyning and assembling together in armes, tors ought to sustaine if they were apprehendit, without his majesties command, warrand and and convict be justice. And be the fourtie authoritie, and when the samen is not only nynth act of the tweit parliament of king James without, but against and in opposition to his the second, it is s atute and ordained, That if majestie, and his authority and laws, are most any person or persons be slandered, or suspect horrid, and haynous crymes of rebellion, for treason, they shall be taken, and remaine in treason and iese majesty in the highest degree, fermance, and their goods under sure burrows, and all persons committing or guilty of the while the tyme they have thol'd; ane assyse saids crymes, or any wayes accessorie thereto, whether they be quytt or foul, and be the fouror who doth abait, assist, recept, harbour, in- teinth act of the sixt parliament of king James tercommon or keep correspondence with such the second, it is declared, That all who shall rerebells, or otherwayes doe supply them in any cept such as are justified for crymes, if the manner of way, and being requyred be procla- crymes be notor, or the trespasser convict, or mations or otherwayes doth not rise with or as- declared guilty, they are ordained to be pusist his majesties lievtenant or others having nished as the principal trespasser; and be the power or authority for repressing the saids re- nyntie seventh act of the seventh parliament bells ought to be proceeded against and severlie of king James the fyfi, all sheriffs, bailzies, and punished as traitors. Lykeas by severall acts others are ordained to doe diligence to appreof parliament, and proclamations, all the sub-hend all rebells who are at the horne for ca-` jects are discharged, to recept supplie or inter-pital crymes, and that no man wilfullie nor common with rebells, any manner of way, and wittinglie recept supplie mantain defend or doe particularlie be the third act of the first parlia- favours to any rebelis, being at the king's horne ment of king James the first, it is statute and within their houses bounds lands or bailzearies, ordained, that no man openlie nor notourlie under the pain of death, and confiscations rebell against the king's person under the paine of their moveables. As in the saids lawes of forfaulture of lyffe, land, and goods. And by and acts of parliament at more length is conthe fyft act of the first session of his majesties tained; Nevertheless it is of veritie that the first parliament, it is declared that it is, and said John Porterfield, of Duchill, shacking off shall be high treason to the subjects of this all fear of God, respect and regard to his makingdome, or any number of them more or less jesties authoritie and lawes, has presumed to upon any ground or pretext whatsomever, to committ, and is guilty of the saids crymes in rise or continue in armes, to make peace or sua far as in the year 1679, several disatistied warre, or to make any treaties or leagues with and disloyall persons having convocat and asfforeigne princes or estates or amongst them-sembled themselves together in armes in the selves without his majesties speciall authoritie and approbation first interponed thereto. And all his majesties subjects are discharged to atSempt any of thes things under the paine of reason. Lykas be the threttie seventh act of king James the first, his second parliament, It is statute and ordained that no man wilfullie recept, maintaine or doe favour to oppine and manifest rebells, against the king's majesty and common lawe, under the paine of forfaulture; and be the twenty fourth act of the sixt parliament of king James second, intituled Anent severall poynts of treason, It is statute, and ordained, that if any man commit or doe treason against the king's person or his majestie or rises in fear of wear against him, or recepts any that has committed treason or supplies them, they shall be punished as traitors. And be the hundreth and fourtie fourth act of king James the sixt, his twelt parliament, it is statute and ordained, that wherever any declared traitor repaires, in any part of this realm, none of his majesties subjects shall presume to recept, supplie, or intercommon with them, or give them any relieff or comfort, and that immediately upon their repairing in the bounds all his highnes good subjects doe their exact diligence in apprehending the saids rebells and traitors, and that with all speed they certifie his majestie, or some of his secret councill, or some persons of authority or credit, within the shyre, that such rebells are within the same,

westerne shyres of this kingdome, formed themselves in ane army, rendivouzed and exercised themselves, commiting many outrages and villanies, killing and murthering his majestie's subjects, ritileing and robbing their horses [qu. houses] and goods, and had the confidence to oppose and fight against his ma jesties forces at Bothwelbridge, untill they wer defate by them in the moneth of June the said year 1679; and though the said John Porterfield, of Dachill, was not present himself with the saids rebells, yet he did or caused furnish or supplie them with armes, meat, drink, and other provisions, hounditout,* or suffered severall of his tenents to goe out to the said rebellion, and citer the saids rebells were defate, they returning home, the said John Porterfield, of Duchall, most undutifully and treasonablie recept, mantained, supplied, harboured, intercommoned, or conversed with them, or either of them, in his house or else

* Hounded out, i. e. sent forth under hisorders government and protection. Thus, a. D. 1727-8, Walter Buchanan, of Balquhan, was accused of, among other offences, the harbouring outbounding and maintaining of thieves and robbers.' See Hume's Comment, chap. 7, vol. 1, pp. 283, 284, as cited in the case of Nairne and Ogilvy, A. D. 1765, infr. in a Note respecting the cumulation of heteroge neous charges in one dittay.

traitor in his own house and in the house pogsessed be him, and aidit, assisted and supplied him with meat, drink, money, or did other favours to him since his being forfault and declared traitor; and he so far owned and countenanced him, mantained, intercommoned and conversed with him, that William Porterfield, the said John, his eldest sone, having dyed in the moneth of 1680, 1681, 1682,

where, and upon the ground of his lands or some part thereof, and particularlie George Holme, son to George Holme, his officer, having been actuallie with the saids rebells, at Bothwelbridge, and severall other places, in armes, and returning from them after the defate, and being convened at Glasgow before the justices, was declared fugitive, and therefter denunced and registral to the horne, the said John Porterfield, of Duchall, upon the first, second, or third dayes of the moneths of July, them to be such) the public notoriety being August, September, October, November, or proven by witnesses; that such harbouring, December, 1679, and upon the first, second, resetting, and conversing, &c. was treason, or third dayes of the moneths of January, Fe- and this guilt punishable with the pain of treabruary, or remanent moneths of the years son; because the 14th, 15th, and 25th acts of 1680, 1681, 1682, 1683, or 1684 years, did parliament 1449, and 97th act 1540, expressly recept intercommon or converse with the said declares such liable as traitors, and requires no George Holme, a rebell and declared traitor, more but that they be holden and repute such. and printed fugitive, mantained and harboured This was determined against the opinion of him on his ground or lands, or some part Pitmedden and Harcous, two of the justices, therof, or otherwayes supplied or did favours with an eye to make a preparative in thir poor to him; nor did he acquaint the Lords of his men's case, to reach Blackwood, and many majesties privie councill or other persons of others. For by this strange interlocutor may authoritie, of the said rebell, his being in the be endangered many innocent people, espeshyre, but on the contrair he owned and man- cially almost all the western shires, where tained him, and severall other traitors and such promiscuous converse has been frequent, rebells to that hight and degree that he suf- and near inevitable; and it can be only just, tered and permitted the said rebell and traitor, to make this so odious a crime, where I witcountenanced and encouraged him to attend tingly and willingly, without compulsion, conhis courts with the rest of his tenents, he being verse with one I know to be a rebel, whether present himself, spoke, conferred, and treated he be declared to be a rebel or not, or at least, with him auent his being in the said rebellion, that he is notourly known to be a rebel in that expressly contrair to the saids lawes and acts part of the country where I stay; for they of parliament, and in high and manifest con- may be notour in one part, and yet not in that tempt of his majesties authoritie and lawes; place where I dwell. And therefore, to miti Lykeas in the year 1666, a desperat and avowed gate it, the judges declared, they meant not by rebellion having happened within this king- resetting an accidental rencounter in an inn, or dome, in which Alexander Porterfield, his bro- on the high-road, but a deliberate concealing ther (designed in the proces of forfaulture led them from the law, or assisting and maintainagainst him brother to Querrestoun) being in- ing them with meat drink and harbouring, and volved and having accession therto, and being keeping them as domestics or servants, witharraigned before the justices for the samen, out informing ourselves anent their condition; upon the sexteinth of August, 1667, and found for, if the 4th act of parliament 1681, require guilty by ane inquest of the cryme of treason, for putting me in mala fide, that the very sentence and doom of forfaulture was pro- nonconformist fanatic tenants living upon my nounced against him, and which doom and sen- ground, shall be intimated to me, for turning tence is ratified and approven by the eleventh them away, then multo magis will law and act of his majesties second parliament, not- reason require my knowledge of those who live withstanding thereof, and that his name is ex- elsewhere, or sculk and lurk a short while in presslie insert in the said act, and the said for- my land, to be robels, ere I can be concluded faulture narrated and sua the samen knowen to guilty of treasonable resett of them. And it the said John Porterfield of Duchall, and all may be alledged, that the foresaid 15th act the ledges, the said John Porterfield of 1449, as too severe, is in desuetude; see 1487, Duchall, most treasonablie recept intercom-act 98, and 1592, act 144. Vide Blackwood's moned and conversed with the said Alexander Porterfield his brother,* a forfault and declared

"December 13, 1682. At the Criminal Court, the Lords, in the case of Cairns, Ferguson, &c. found that the resetting of traitors and rebels, though it be his own son, (but I think, this should not extend to man and wife their mutual resetting one another, though rebel,) if they be either declared forfeit traitors, or denounced fugitive, or intercommuned, or holden and repute notorious known rebels, (though it should not be proven, that you knew

66

case, 31st January 1683. [See vol. 9, p. 1021.] January 4, 1683. At Privy Council,Herron of Herron in Galloway having reset his two sons, who were in the late rebellion at Bothwel-bridge, he came in the council's will and king's mercy; and they in regard of the nearness of relation, wrote to his majesty a recommendation that he might grant him a remission: otherwise they could not but have remitted him to the Criminal Court: though his case be most favourable, and excepted tit. D. de receptator. latron." 1 Fountainhall's Decisions 200, 205,

6. “You shall examine the indulged ministers on their instructions, and remove such

Which criminall action and cause being for- as have transgressed, and imprison them till

See a Note to the Case of Hackstoun of tion not to return without special allowance Rathillet, p. 807, of this Volume.