The Lords for severall causes moving them, | samen being then called, and the pannall having continued the said criminal action, and cause given in a Petition craving that for the reatill the twentie second of October, and the sons therein mentioned, the Lords would be fuse to find caution in manner foresaid, you judged by the commissioners there, or else sent shall send them in prisoners to our privy coun- by them to Edinburgh, as they shall think fit. cil, or their committee at Edinburgh. 19. "You shall acquaint any of the neighbouring jurisdictions to which any of the rebels shall flee, to the end they may assist to apprehend them; and if, in pursuit of those, it shall be convenient for you to go out of your district, or to send parties out of the same, the magistrates are hereby required to obey and assist you, as they will be answerable. 7. "You shall diligently search for the heritors, incitors, promoters, or concurrers to the late rebellions, the intercommuners with such, or resetters of them, and others, not heritors, guilty of the said crimes, since July 1, 1683. 8. You shall stop and secure all pedlars who have not passes, according to the tenor of our last proclamation, and secure them till they find caution for their good behaviour. 9. "You shall stop all posts who carry letters, except such who are allowed by our postmaster general. 10. "You shall commune with rebels, to bring them to obedience, upon their address for pardon, and you shall acquaint our secret committee with their proposals, and what passes twixt you and them; and in order thereunto, you are allowed to give them safe conducts. 11. "You shall command the forces assigned to you by our privy council, according to the necessity of our service. 12. "You shall turn out all the wives and children of the forfeited persons and fugitives, from their habitations, if it shall appear that they have conversed with their parents or husbands, or if they shall refuse to vindicate them selves by their oaths. 13. "You shall enquire what quarters are unpaid by the soldiers in your several districts, and take care payment be made for bygones, and in time to come. 20. "You shall suffer no man to travel with arms, excepting gentlemen of known loyalty, who have taken the Test; and no yeoman to travel three miles from his own house, without a pass from his minister, or a commissioner of the excise. 21. "You are to call for all or any part of the heritors, as often and where you shall find it needful for our service, who are hereby ordered to obey under the pains of being punished as absents from our host. 22." You shall put in execution the power of justiciary to be granted unto you by our privy council, with all rigour, by using fire and sword, as is usual in such cases; and we do impower our privy council to insert an indemnity to you, or any imployed by you, for what shall be done in the execution thereof. 23. You are hereby impowered to give the oath of allegiance to such persons within your districts, as you shall have reason to suspect; and in case of refusal, you shall banish them to the plantations, whether men or women. 24. "If you shall be informed, that any 14. "You are to examine what money has within your district shall deny our authority been collected by any body within your dis-or their bond of Allegiance to us, you shall tricts, and not counted for." 15. "You shall take care, that decreets for fines for ecclesiastic disorders, be put in execution, as shall be prescribed by our privy council. 15. "You shall be assisting to our regular clergy, in bringing people to obedience in settling church-sessions; and if any complaint be made of any of the regular clergy, you are to recommend the punishment and censure thereof, to our bishops, or judges competent. 17. "If you find any part of the country Stubborn or contumacious, you shall impose such fines upon them as the law will allow; and in case of not payment thereof, and that you think it fit, you are immediately to quarter our forces on the stubborn and contumacious until the fines imposed shall be exhausted by them. 18. "You are to keep good and constant correspondence among yourselves; and if it shall happen that any man shall flee from one district to another, when you are advertised thereof, you shall immediately cause the fugitive to be apprehended, and you shall send him to the district from whence he fled, to be enquire therein, apprehend the persons, and either judge them upon the place, or send them into Edinburgh, as you find most expedient. 25. "You shall call for, and dispose of the militia, as you find most fit for our service. 26." You shall enquire how the ordinary magistrates have carried in our service, and inform the privy council thereof. 27. "You shall report to the secret committee of our privy council, such propositions as the shires within your district shall make to you for our service. 28. "You are to obey such orders as you shall receive from us, or our privy council, or secret committee thereof, from time to time; and you are also hereby authorised to forbear the execution of any of the articles of these instructions, if you shall see cause for the same. "For doing of which, these presents shall be to you, and all others who may be respectively concerned, a sufficient warrant. Given under our royal hand and signet, at our court at Windsor castle, the 26 day of August 1684, and of our reign the thirty sixth year. By his Majesty's command, pleased to delay his tryall, and the samen being read and considered, the Lords 'continued the tryall of the pannall for the crymes mentioned Wodrow then proceeds thus: "It was the month of October before this terrible circuit sat down in their different dis tricts. Those ample powers, and a liberty to cut and carve in them as they saw good, let us see what an arbitrary and absolute govern ment Scotland was now under. Life, liberty, and every thing is left in the managers hands. If they pleased to have mercy on the poor harassed country, the king allowed them, and if not, their instructions carry them even to fire and sword. "To pave the way for their work, or at least to prevent the poor sufferers getting off the kingdom, and to discover such as remained in it, two Proclamations are emitted in September; the first bears the date, September 15th, ordering the oaths of all the masters of ships, or vessels going off the kingdom, to be taken, as to their passengers. This needs no observation upon it. No question, it was levelled against the persecuted party principally; a new circuit was very justly frightsome to them from their experience of the severities of the former. They are not suffered to live at home, and now are stopped from retiring to foreign countries, where they might be free from be. ing butchered in cold blood. in his indytment, till the seventeinth of November, then next to come, and ordained him to be transported prisoner to the Tolbuith of to save the lords the trouble, as I suppose, of leaving Glasgow. I observe nothing of this in the Records, but it appears by an original warrant, from the clerk of council to the sheriff-depute of Stirling to this effect, in my of the preparations and care taken to ripen hands, which, because it gives us some view matters for the circuit, and of the willing share the clergy were to have in this, I have insert here. Its date is not expressed, and is in dorsed. Warrant to the Sheriff-depute of the Shire of "Sheriff-depute of Stirling; "You are likewise to advertise all the mi said Lords at Glasgow the foresaid day, and "And September 16, another Proclamation is emitted, discharging all persons whatsom ever, to travel from one shire to another with-nisters within your shire, that they attend the out a pass. It is but short: All travellers must have a pass from some persons in the government. And the pretext is, to hinder persons from carrying false news from one part of the country to another. I am not so far master of the intrigues now on foot, as to make reflections that perhaps might be native enough here. As the former was a check and damp upon trade and commerce, so this is a plain encroachment upon the liberty of the to another, and a kind of imprisoning the lieges subject, in going and coming from one place at large, without any just reason given. That of spreading false news is evidently frivolous, and every body may see these might be spread by letters. The true design seems to have been, to be a preface to more general impositions on the subject, as we shall afterward hear, to prevent suffering people retiring from the fury of the circuits, to be a new colour to the soldiers, and to oppress poor people the more. I wonder the proclamation does not impower the bishops and orthodox clergy, to give passes. The instructions to the commissioners seem to suppose some such passes, but, it seems, the council do not find it needful to entrust them. "Before the meeting of the circuit or justiciary, the council by their clerk order the shire of Stirling with its jurisdictions, pro hac vice, to be adjoined to the jurisdiction of Glasgow, gistrates of the town of Stirling, to appear be"And particularly you are to cite the mafore the said Lords at the abovewritten time, and particularly to depone anent the forementioned particulars, and to bring alongst with them an exact list of the haill heritors who stand infeft in lands within their burgh. And in this you nor any of the forementioned persons are not to fail, as you and they will be Paterson, clerk to his majesty's most honouraanswerable. Extracted by me sir William ble privy council. "WILL, PATERSON, Cl. Secr. Conc." "From this and what goes before we may learn, that these courts had both a council and justiciary power, and had a vast compass of Edinburgh, ther to byd his tryall for the crymes forsaid, at the day above specified, and likewayes ordained the haill witnesses against him to find caution for their appeirance at Edinburgh, the said seventeinth day of November nixt, to bear witnes in the forsaid cause, under affairs before then. We shall find afterwards, this shire came to Glasgow, and gave ample proofs of their loyalty and submission to the king's orders. "What were the precise days upon which these courts, ordinarily called circuits, though different a little from these in the former years, met, I cannot say, further than the dates of some papers in the registers, and others come to my hand, shew. It would seem that court at Jedburgh met toward the beginning of October, for I find a letter directed to them, and the rest, from the committee of public affairs, October 9, which will give some more light about them. This I give from the registers of council. "October 9, 1614. Sederunt the committee for public affairs, upon the report of the commission, at Jedburgh, and for the western districts the Lords did send the following letter, a copy whereof was ordered to be sent to the rest of the districts for the rule of their procedure: "My Lords; The Committee of council being very frequent, I did propose to them your two queries: in answer to the first whereof, it is all our opinions, that if the defenders, called before you as counsellers, be personally cited, they may be holden as confest; but they cannot unless they be personally cited, and all that can be done in that case is to put them to the horn, which will be as great a punishment to them, as if they were declared fugitives; but it will not infer any danger to the country by resetting them, which is as much to be shunned as can be. And if it be thereafter found convenient to hold them as confest, to the end that the king may get a fine by holding them as confest, which may be more advisable than the taking of their escheat, which is all that can follow upon their being put to the horn, then I shall cause cite them upon sixty days, as being out of the country, but let not that stop your diligence; in which case they will be holden as confest, though not personally cited. "It is likewise their opinion, you should proceed against all sheriff-deputes who have malversed, and that you should punish them exemplarily to the terror of others, and to the end that people may see that you are come there to protect honest men, as well as to punish knaves. I am, your lordships' humble servant, "GEORGE M'KENZIE." "This letter is a little dark to me, not having the queries; but it lets us in to see somewhat of the managers severe designs upon gentlemen and others. "It is of more importance to give an account VOL. X. the paine of fyve hunder merks, or else to be committed prisoners to the Tolbuith of Glasgow, till they be transported to the Tolbuith of Edinburgh, to bear witnes in the forsaid cause. The lords lykwayes ordained the assizers to attend at Edinburgh, the said sevenof a letter from the king, read in council, or its committee, October 12, which was no doubt impetrate by our managers here, as the foundation of their imposing exorbitant fines upon many gentlemen we shall hear of in the next section. The letter follows: "C. R.. Right trusty, &c. Whereas we find that in that our ancient kingdom, do enter into some of our unnatural and rebellious subjects plots and conspiracies, the more willingly and discovered by the depositions of witnesses, they, securely, that they think their guilt cannot be for concealing their guilt, industriously using to discourse of those matters only with one person alone; and it being easy to cause one or two, who might be proving witnesses, to withdraw for some time. And seeing it is the great interest of all government, as well as of all who desire to live peaceably under it, that of accession to such horrid crimes, as tend to all subjects should be obliged to fear all manner overthrow all society and government; and it being undeniable, that no man can complain when judged by his own oath, by which he is in less danger, than by any probation of any witness whatsomever. "Therefore thought it necessary to impower, and we do hereby authorize and impower our advocate to raise process before you, or before those who are commissionate to represent us, as our privy council, in the Western and Southern shires, against any whom you or they shall order, for the said crimes of plotting and contriving to rise in rebellion, or for intercommuning with, or resetting any declared rebels; and to refer their guilt to the oath of the said defenders, in so far as may extend to a pecuniary mulet or fine allenarly. "Declaring hereby, for their further security, that if they shall depone upon the guilt so referred to their oath, they shall be for ever as secure upon the payment of their fine, as if they had a remission under our great seal whereas, if they refuse to depone, we order you to hold them as confest, and to fine them in what sums you shall judge to be proportional to their respective guilt and accession. Which power so granted to you, shall only continue in force till the first day of April next to come, and is hereby ordained to be registrate and recorded in your books, to the end that extracts may be given to any who shall depone, as said is, this, and the decreets to remission. For all which this shall be to you follow thereupon, being to them in place of a a sufficient warrant. Given, &c. September " MURRAY." 27, 1684. Mr. Laing (vol. 4, p. 39, edition of 1804) 3 Y teinth of November nixt, under the paine of two hundreth merks each persone. "The said criminall action and cause being then called, the Lords for severall causes moving them continued the same from tyme to tyme, till the twenty eight of this instant, and the same being then called and both parties compeirand, The querie and solution therof underwritten was produced in presence of the saids lords whereof the tenor followes: "Edinburgh 28 November 1684. The said day anent ane querie proposed be his majesties advocat to the lords of councill and session, be command to him from the lords of the secret comitie. It being treason by the common law and ours to supplie or comfort declared traitors, and it being treason by our law to conceal treason, queritur whither sir John Cochran 'having asked from Porterfield of Duchall who was not related to the late earl of Argyle, the soume of fifty pounds sterling for the said earle's use being a declared and notour traitor, and Duchall not having revealed the samen either to his majestie or his officers, wherby the prejudice that might have followed therupon might have been prevented. Is not the forsaid concealing and not revealing treason? sewed by his majesties advocat against John down Douchal's own thoughts of his case, which he drew up at the time, and, if I mistake not, gave into the court and resumed it before the assize; and it is as follows: John Porterfield of Douchal, is indicted for reset and converse with his own brother Alexander Porterfield of Quarreltoun, whereas the said Alexander being forfeited for his accession to the rebellion 1666, and his estate being sold, and disposed by the Exchequer, the said Alexander after some years did come and live peaceably within the shire of Renfrew, and, long before the time libelled, did go publickly to Kirk and market, behaving himself as one of his majesty's free lieges, by conversing with his majesty's subjects of all ranks, such as Privy Counsellors, the sheriff of the shire, and the officers and soldiers of his majesty's forces; se that private subjects could not but conclude, he was indemnified, and his own brother was not more to abstain from converse with him, than those above-mentioned, especially seeing he did compear before the ordinary Courts of Judicature, particularly the sheriff court of Renfrew, sometimes as pursuer, sometimes as deSic Subscribitur, GEO. MACKENZIE. fender in sundry actions; yea, did actually "The Lords of counsell and session having compound with the sheriff of the shire, for a fine considered the facti species proposed in the for- of irregularities in not keeping his own parish said querie, it is their judgement that the con- church, and received his discharge for the eealing and not revealing in the case forsaid is his own parish church, when there was a resame, Moreover, he did ordinarily frequent reason.--(Sic Subscribitur,) Perth Chancellor, Da. Falconer, Ja. Foulis, J. Lock-with the said minister; he was frequently ingular incumbent, and frequently conversed hart, David Balfour, James Foulis, J.vited, and present at most part of the burials Beton, J. Murray, Roger Hog, J. Wau- within the shire, where he had access to conchope, H. Bernie, F. Stewart, L. Lyon, verse with all ranks, and repaired to markets Geo. M'Kenzie, Patrick Ogilvy, George within and without the shire, and lastly, did Nicholson *." assist and help to settle the soldiers in their quarters and localities, and did entertain them even at his own house. The Lords having considered the lybell pernoticing Hume's representation of king Charles the second, as endeavouring to mitigate or persuade his ministers to remit one half of the fines levied in the persecution in Scotland, in the early part of his reign, under the ecclesiastical commissions, observes, "The fact is, that they were levied entire for the king's own use,' which indeed is sufficiently shewn by Wodrow, to whom Mr. Laing refers. See also 1 Fount. 186. In this answer' says Wodrow, vol. 2, p. 421, the whole of the lords of the justiciary, almost, three or four at least, deliberately give their judgment anent the chief part of the matter, in debate in Douchal's process; and it may be considered how far in equity persons who have already given judgment, can give it over again. It is certain they could not but condemn the gentleman, unless they should condemn what they themselves had signed under their hands.' "I have not observed the debates of any advocates in the process, for indeed it was fruit. less almost to reason upon a matter already concluded upon. However, I shall here set "As to the harbouring of George Holms, the plain truth is, the said George went away without arms, and returned so without being noticed; but so soon as I was informed that his name was in the Porteous Roll of the court at Glasgow 1679, though he was neither cottar, tenant, or servant to me, yet I caused his father put him off my ground. Thereafter he compounded, first with Kennoway the donator for his moveables, and thereafter with the sheriff depute for his peaceable living, at which time he took the bond of regularity, and had a testificate thereupon. Notwithstanding I would not entertain him, so that he listed himself a soldier in the standing forces. All which is offered to be proven. "As to the last point of the libel, the truth is, sir John Cochran did make a very overly [su perficial] motion to me, for fifty pounds sterling by way of charity to the earl of Argyle, which I refused; and in regard the motion was proposed so trivially, I thought it not worthy to be communicate, nor could I prove it, had it been denied, neither in construction of law can it infer the things libelled." 1 Porterfield of Duchall, they find the samen relevant as it is lybelled viz. That he harboured and recept upon the ground of his lands, George Holme, a declared fugitive for treason, and conversed with and recept and intercomoned with Alexander Porterfield his brother a forfaulted traitor, and also that he concealed or not revealed the treasonable proposall made to him be sir John Cochran, for supplieing the late earl of Argyle, a forfaulted traitor mentioned in his indytment, separatim, to inferr the cryme of treason and paine of treason, and remitts the samen to the knowledge of an inquest. Sir John Dalmahoy of that ilk. Henry Elphingstoun, collector at Aber. William Menzies, merchant in Edinburgh. The Assyse lawfully sworn, no objection in the contrair. His Majesties Advocat for Probation adduced the pannall's own judiciall Confession, wherto he adhered in presence of the justices and assizers, and wherof the tenor followes : "Edinburgh, the 17th day of Nov. 1684. The which day John Porterfield of Duchall, confessed and acknowledged in presence of the saids lords, that sir John Cochran of Ochiltrie, somtyme in the session, in the end of 1682, or beginning of 1683, having mett with him in the burgh of Edinburgh, the said sir John proposed to him to give fifty pound sterline, for the relieff of the late earle of Argyle, and that he refused to do the same. Confesses he told this proposition to Cuninghame of Craigends, and that Craigends told him the lyke proposall had been made to him. Sic Subscribitur, J. PORTERFIELD. J. DRUMMOND. JA. FOULIS." And the said John Porterfield of Duchall, being of new again interrogat in presence of the assyse after they were sworn, he of new again acknowledged and confessed, in manner following, viz. That he had conversed with, harboured, and recept Alexander Porterfield his brother, a forfaulted person, and also that George Holme a fugitive, had dwelt and resided on his ground, and that sir John Cochran did make the proposall to him mentioned in his dittay, and that he had concealed the samen from, and not revealed it to his majesties privy councill or others in authoritie under the king, and declared he submitted himself to the king's mercy, and intreated the lords to represent his e Followes the Verdict of the Assyse. "The Assyse having chosen sir John Dalmahoy their chancellor, all in one voice, finds the pannall John Porterfield of Douchall guilty, by his own confession, of conversing with, harbouring, and recepting Alexander Porterfield his brother, a forfaulted persone; as also in harbouring on his ground, George Holme a declared fugitive, and sicklyke of concealing the proposall made to him be sir John Cochran mentioned in his dittay for supplieing the late earle of Argyle a forfaulted traitor. Sic Subscribitur, Jo. DALMAHOY." The Lords continue the pronuncing of sentence till to morrow, being the 29th instant, at twelve o'clock in the forenoon, and ordaines the pannall to be removed back to prison. The Lords commissioners of justiciary therfor having considered the said verdict of assyse, they be the mouth of James Henrysone Dempster of Court* decerned and adjudged the said John Porterfield to be execute to the death, demained as a traitor, and to underlye the paines of treason and utter punishment appoynted by the lawes of this realme, at such a tyme and place, and such a manner as the king's most excellent majesty shall appoynt, and ordains his name, fame, memorie, and ho nours to be extinct, his blood to be tainted, and his armes to be riven furth and delate out of the books of armes, sua that his posteritie may never have place, nor be able to bruik or injoy any honours, offices, titles or dignities within this realme in tyme coming; and to have forfaulted, amitted, and tint all and sundry his lands, heretages, taks, steddings, roumes, possessions, goods and gear whatsomever pertaining to him, to our soveraigne lord's use, to remaine perpetuallie with his bighnes, in propertie: which was pronounced our doom. "It seems" says Wodrow, "his sentence of death was preconcerted before the Justiciary sat, for, in the Council Registers, November 28, I find as follows: The Council recommends to the Lords of Justiciary to leave the day and place of Douchal's execution to his majesty."+ And he proceeds, "Douchal was most sedate and patient under his trial, and bore all with a christian spirit. His honour as a gentleman, and loyalty as a subject, stood full and entire; his conscience did not reproach him: all was peaceful within, and God smiled upon him. Thus nothing men could did ruffle him. When he was to receive his sentence of forfeiture and death, he was asked as usual in *See a note to the Case of Lord Loudon and others, p. 1008 of the present volume." + See, too, in 2 Wodrow 142, the cruel order concerning the execution of Hackstoun of Rathillet, which the council made before his trial. |