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teinth of November nixt, under the paine of sewed by his majesties advocat against John two hundreth merks each persone.
“ The said criminal action and cause being down Doucbal's own thoughts of his case, then called, the Lords for several causes moving which he drew up at the time, and, if I mistake them continued the same from tyme to tyme, not, gave into the court and resumed it before till the twenty eight of this instant, and the the assize; and it is as follows: same being then called and both parties com- John Porterfield of Douchal, is indicted for peirand, The querie and solution therof under-reset and converse with bis own brother Alex. written was produced in presence of the saids ander Porterfield of Quarreltoun, whereas the lords whereof the tenor followes :
said Alexander being forfeited for his accession “ Edinburgh 28 November 1684. The said to the rebellion 1666, and his estate being sold, day anent ane querie proposed be bis majesties and disposed by the Exchequer, the said Alex advocat to the lords of councill and session, be ander after some years did come and live peacecommand to him from the lords of the secret ably within the shire of Renfrew, and, long be comitie. It being treason by the common fore the time libelled, did go publickly to Kirk law and ours to supplie or comfort declared and market, behaving bimself as one of his traitors, and it being treason by our law to con- majesty's free lieges, by conversing with his ceal treason, queritur wbither sir John Cochran majesty's subjects of all ranks, such as Priry 'having asked from Porterfield of Duchall who Counsellors, the sheriff of the shire, and the was not related to the late earl of Argyle, the officers and soldiers of his majesty's forces; se soume of fifty pounds sterling for the said that private subjects could not but conclude, he earle's use being a declared and notour traitor, was indemnified, and his own brother was not and Duchall not having revealed the samen more to abstain from converse with him, than either to his majestie or his officers, wherby those above-mentioned, especially seeing he the prejudice that might have followed ther. did compear before the ordinary Courts of Ju. upou might have been prevented. Is not the dicature, particularly the sheriff court of Ren. forsaid concealing and not revealing treason ? frew, 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 pot keeping his own parish cealing and not revealing in the case forsaid is his own parish church, when there was a re. said querie, it is their judgement that the con- church, and received his discharge for the
same, Moreover, he did ordinarily frequent treason.--/Sic Subscribitur,) Perth Cban
cellor, Da. Falconer, Ja. Foulis, J. Lock- gular incumbent, and frequently conversed hart, David Balfour, James Foulis, J. with the said minister; he was frequently inBeton, J. Murray, Roger Hog, J. Wau- within the shire, where he had access to con
vited, and present at most part of the burials chope, 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 The Lords having considered the lybell per quarters and localities, and did entertain them
even at his own house. noticing Home's representation of king Charles
“ As to the harbouring of George Holms, the second, as endeavouring to mitigate or per- the plain truth is, the said George went away suade his ministers to remit one half of the fines without arnıs, and returned so without being levied in the persecution in Scotland, in the noticed; but so soon as I was informed that his early part of his reign, under the ecclesiastical name was in the Porteous Roll of the court at commissions, observes, “ The fact is, that they Glasgow 1679, though he was neither cottar, were levied entire for the king's owo use,” tenant, or servant to me, yet I caused his fawhich indeed is sufficiently shewn by Wodrow, ther put him off my ground. Thereafter he to whom Mr. Laing refers. See also 1 Fount. compounded, first with Kennoway the donator 186.
for his moveables, and thereafter with the * • In this answer' says Wodrow, vol. 2, p. sheriff depute for his peaceable living, at which 421, the whole of the lords of the justiciary, time he took the bond of regularity, and had a almost, three or four at least, deliberately give testificate thereupon. Notwithstanding I would their judgment avent the chief part of the mat- not entertain him, so that he listed himself a ter, in debate in Douchal's process; and it may soldier in the standing forces. All which is ofbe considered how far in equity persons who fered to be proven. have already given judgment, can give it over “ As to the last point of the libel, the truth is, again. It is certain they could not but con- sir John Cochran did make a very overly (sudemn the gentleman, utless they should con- perficial] motion to me, for fifty pounds sterling demn what they themselves had signed under by way of charity to the earl of Argyle, which their bands.'
I refused ; and in regard the motion was pro“ I have not observed the debates of any ailo posed so trivially, I thought it not worthy to vocates in the process, for indeed it was truit. be communicate, nor could I prove it, had it less almost to reason upon a matter alreally been denied, neither in construction of law can concluded upon. However, I shall bere set it infer the things libelled."
Porterfield of Duchall, they find the samen
condition favourablie, since he was most pe-, relevant as it is lybelled viz. That he harbour- nitent. ed and recept upon the ground of his lands,
Sic Subscribitur, J.PORTERFIELD. George Holme, a declared fugitive for treason,
J. DRUMMOND JA. FOULIS. and conversed with and recept and intercomon
Followes the Verdict of the Assyse. ed with Alexander Porterfield bis brother a for. faulted traitor, and also that he concealed or
“ The Assyse having chosen sir John Dalnot revealed the treasonable proposall made to maboy their chancellor, all in one voice, finds him be sir John Cochran, for supplieing the the paunall John Porterfield of Douchall guilty, late earl of Argyle, a forfaulted traitor mention by his own confession, of conversing with, hared in his indytment, separatim, to infert the bouring, and recepting Alexander Porterfield cryme of treason and paine of treason, and re
his brother, a forfaulted persone; as also in mitts the samen to the knowledge of an inquest. harbouring on his ground, George Holme a
declared fugitive, and sicklyke of concealing Assisa.
the proposall made to him be sir John Cochran
mentioned in his dittay for supplieing the lato Sir John Dalmahoy of tbat ilk.
earle of Argyle a forfaulted traitor. James Baird of Saucbtonball.
Sic Subscribitur, Jo. DALMAHOY." Sir James Fleeming of Rathobyres. Henry Trotter of Mortounhall.
The Lords continue the pronuncing of sen. Henry Nisbet of Dean.
tence till to morrow, being the 29ih instant, at James Murray of Skirlin.
twelve o'clock in the forenoon, and ordaines the Robert Hepburn of Barefoord.
pannall to be removed back to prison. Sir George Skein of Fintray.
The Lords commissioners of justiciary ther Lieutenant Collonell Rae.
for having considered the said verdict of asDavid Edie of Newwark.
they be the mouth of James Henrysono Alexander Cruckshank, merchant.
Dempster of Court * decerned and adjudged James Nicholson, merchand.
the said John Porterfield to be execute to the James Boyd, merchand.
death, demained as a traitor, and to underlye Henry Elphingstoun, collector at Aber. the paines of treason and utter punishment apWilliam Menzies, merchant in Edinburgh.
poynted by the lawes of this realme, at such a
tyine and place, and such a manner as the The Assyse lawfully sworn, no objection in the King's most excellent majesty shall appoynt, contrair. His Majesties Advocat for Probation and ordains his name, fame, memorie, and hoadduced the pannall's own judiciall Confession, pours to be extinct, bis blond to be tainted, and wherto he adhered in presence of the justices his armes to be riven furth and delate out of and assizers, and wherof the tepor followes : the books of armes, sua that bis posteritie may
** Edinburgh, the 17th day of Nov. 1684. never bave place, por be able to bruik or injoy The which day John Porterfield of Ducball, any bonours, offices, titles or dignities within confessed and acknowledged in presence of the this realme in tyme coming ; and to have forsaids lords, that sir John Cochran of Ochiltrie, faulted, amitted, and tint all and sundry hig somtyme in the session, in the end of 1682, | lands, heretages, taks, steddings, ronmes, posor beginning of 1683, baving mett with him in sessions, goods and gear wbatsomever pertainthe burgh of Edinburgh, the said sir John ing to him, to our soveraigne lord's use, to reproposed to bim to give fifty pound sterline, maine perpetuallie with his bighnes, in profor the relieff of the late earle of Argyle, and pertie : wbich was pronounced our doom. that he refused to do the same. Confesses he " It seems” says Wodrow, “bis sentence of told this proposition to Cupinghame of Craig- death was preconcerted before the Justiciary ends, and that Craigends told him the lyke pro- sat, for, in the Council Registers, November posall had been made to bim.
28, I find as follows: The Council recommends Sic Subscribitur, J. PORTERFIELD. to the Lords of Justiciary to leave the day and
J. DRUMMOND. JA. FOULIS.” place of Douchal's execution to bis majesty.”+ And the said John Porterfield of Duchall, And he proceeds, “ Douchal was most sedate being of new again interrogat in presence of and patient under his trial, and bore all with a the assyse after they were sworn, he of new christian spirit. His honour as a gentleman, again acknowledged and confessed, in manner and loyalty as a subject, stood full and entire; following, viz. That he had conversed with, his conscience did not reproach him: all was harboured, and recept Alexander Porterfield his peaceful within, and God smiled upon bim. brother, a forfaulted person, and also that Thus nothing men could did ruffle him. George Holme a fugitive, had dwelt and re- When he was to receive bis sentence of forsided on his ground, and that sir John Cochran feiture and death, he was asked as usual in did make the proposall to him mentioned in bis dittay, and that he had concealed the samen * See a note to the Case of Lord Loudou and from, and not revealed it to his majesties privy others, p. 1008 of the present volume. councill or others in authoritie under the king, + See, too, in 2 Wodrow 142, the cruel order and declared he submitted himself to the king's concerning the execution of Hackstoun of Ramercy, and intreated the lords to represent his thillet, which the council made before bis trial.
some cases, what he had to say why it should dress to the duke of Queensberry.--See 2 not be pronounced. His return was, My lords, Wodrow, 420, 422, 478. I have little to say, I pray the Lord may save the king, whatever coine of me! which shewed
The following is Fountainhall's Report of
this Case : him to be a better Christian and subject than such who persecuted bim.
“ November 27, and 28, 1684. Porterfield His sentence drew compassion and tears from of Duchole was thir days pannelled before many of the onlookers, to see so good, old, secretary Lundy, and the justice clerk, as comand innocent a gentleinan exposed to such missioned by the king to hold the circuit for bardsbips tor imaginary crimes; yea, the hard Clydesdale, and their power was to expire on measure he met with was regreited by some, the 1st of December, for these crimes of trea. persons in the government after it was over; son ; imo. That be had barboured and reset and I am well assured, that even sir George'one Holmes his officer, after be had come back Mackenzie used to cast the blame of this pro- from Borbwel bridge; and also bad oft bar. cedure off binnself, and term Douchal My boured and entertained Porterfield his • lord Melford's martyr.'
brother, who was excepted out of the act of And such was the equity of those times, that indemnity for being at Pentland-bills. 2do, the very person who was his judge, bad got a That sir John Cochran had come to him, and previous promise of his estate, which was in due desired that he might lend 1,000 merks to a time made good; and July 1686, by the king's poor distressed friend, and he asking if he gift the earl of Melford was made donator to his meaned my lord Argyle, he did not deny it; personal and heretable estate, so that he had and though he had refused to contribute any more reason than every body to find him guilty. thing towards his assistance, yet he treasonably
1685, March 22d. John Porterfield, late of concealed that design of raising money to my Douchal, and Alexander Porterfield his son, lord Argyle, then a declared traitor.- Though supplicate the council for liberty. The first he confessed the matter of fact, except resettis refused, because under a sentence of for- ing the otticer, yet he alledged that the resett.. feiture. His son is let out, on bond for the ing his brother could not import any thing sum in wbich he is fined. July 23d. Douchal against him ; seeing resetting in law must be is allowed the liberty of the town of Edinburgh a concealing, abstracting, or hindering a rebel upon his petition, but confined thereunto. And from being brought to justice or punishment; September 3d, the council transmit the fol- whereas his brother these eighteen years has lowing petition from him to the secretaries; conversed openly at kirk and market with • That whereas the petitioner being desired by all ranks of persons, even with the officers sir John Cochran to give some charity to the of the king's army, unquestioned by any, and lord Argyle, did beartily refuse the same, and went to London and componed the gift of bis having concealed the design of the said sir own forfeiture, and took it in another persyu's John, and not timeously revealed the same, name (because he himself refused the declarawhich he did out of ignorance, and not out of tion) but to bis own behoof; so that Duchole any evil design, but did freely confess the was in bona fide to converse with him ; and it same, which otherwise could not be proven was nothing but parsimony in not bestowing against bim, wherefore your petitioner is for the expence that kept him from a remission; and teited, and hath a long time been prisoner; and this not being adverted to, he has infected all seeing his life is near at an end, I being of the the gentry in the west by conversing with age of seventy two years, and under many in them. As to the second, answered, That he firmities contracted in the said prison, it is knew not certainly if sir John Cochrane meaned therefore humbly desired that your lordships my lord Argyle, when he craved the subsistwould recommend your petitioner to his most ance and contribution. 2do, There was none sacred majesty, for a remission to be passed present who heard sir Jobo seek it but himself; gratis, containing Rehabilitation, &c. And it so if he had revealed it, he could not bare is hoped his sacred majesty will he so gracious proven the same; and thus by the 49th act (considering that the petitioner's crime was not parl. 1587, succumbing in proving another intentional, but in a manner ignorantly) out of guilty of treason he became guilty of the same that gracious benignity and goodness which treason himself.-- Yet regent Morton was exeprinces have been in use alwaysto bestow upon cute for concealing, though he could not bave the worst of their subjects, being penitent, and proven it. See sir George M'Kenz. Criminals, allow your petitioner a competency to live page 48. who thinks this concealing to be no upon, out of his own estate, and take some treason. It was great simplicity in Duchole seen course with his debt, which is very griev- to confess ; for they having no way of proving, ous to his spirit, and your petitioner shall ever if they had referred it to his oath, it would pray: John Porterfield.' And I find, says bave restricted the hazard to an arbitrary pain. Wodrow, September 16th, an address to the But the reset would bave forfeited him, unless council from Alexander Porterfield his son, he had purged and restricted it, by taking the shewing that he hath nothing to pay his tine test; which he would not do. stio, He alwith, seeing his father is forfeited, and begs ledged what was given to strengthen a rebel his fine may be remitted, considering his long to rise in arms were certainly treason ; but imprisonment. The council transmit this ad- here it was only charity towards alimenting
him ; and which is more, he absoluely denied this procedure, to prevent quarrelling, is rato give any contribution at all. The privy tified by the 7th act of parl. 1685." council finding Duchole's qualified confession
The act of parliament is as follows: very narrow, they proposed the query to the lords of session, as the king's great council Act anent Porterfield, of Duchall, and conin law, and who hy bis letter were appointed cealing of Supply given to Rebels, May to give the secret committee advice in dubious .6, 1685. cases ; and they, by their resolution under
• Our soveraign lord, and estates of parliatheir hand, found that the very concealing the
ment, do ratifie, approve, and confirm the seeking of money towards the support of a
sentence of forfalture pronounced by the comdeclaired traitor was treason. Yet this was
missioners of justiciary against John Porterthought very remote ; for Imo, There is the
field, sometime of Duchall, and the interlorebelbimself who stands guilty of the treason. 2do, There is the interposed person who de missioners in that process. And declares, that
cutors, and whole procedure of the saids commands the coutribution-money for the traitor's use ; and this is also treason in him. 3tio, dom. And in general, statutes and declares,
'the same was conform to the laws of this kingThere is he who gives it. cealer who refused to give it, be is only in the that the concealing and not revealing of sup
plys given to, or demanded for traitors for.. fourth degree: so to reason at this rate, to
· faulted for treason against the king's person or conceal theft committed by another landed man shall be treason in the not revealer: only "cordingly.'
government, is treason, and to be judged acthe difference is, aiding a rebel with money, is treason by the common law; but theft in a Wodrow, after observing upon “ two other landed man is only treason by a special statute most iniquous acts," says of ihis “ their third with us, and so fictione juris not to be extended act this day runs yet deeper, and was framed ultra suum casum ; or rather this example, if not only to look back to what was past, but to I know that another man harbours a rebel on catch a great many gentlemen and others and his ground, I am as guilty as the resetter, if I to bring them to ruia in their bodies and estates. don't reveal him. However, on this sub- The illegal and barsh sentence passed by the scribed opinion of the session, the commis- Justiciary, at the direction of the Council, sioners of justiciary found the dittay relevant ; against that excellent gentleman and christian and the assize tonnd it proven. So he was John Porterfield, of Doucha, made a terrible found guilty of treason. But the time and noise, and was plainly enough perceived to place of his execution was referred to the king, have been in order to gratify a particular mathat he might apply for a remission; for it ap. nager with his estate. It was necessary then peared that they only aimed at his estate, ex post facto, to confirm this sentence by a which will be 12,000 merks per annum.-All posterior law.”
321. Case of WALTER Earl of Tarras, for Treason, and recepting
of Traitors : 36 CHARLES II. A. D. 1685. [Now first prioted
from the Records of Justiciary in Edinburgh.] CURIA JUSTICIARIÆ, S. D. N. Regis tenta in standing by common law of this and all well
Pretorio burgi de Edinburgh, Quinto die governed nations, the conspiring to overturi mensis, Januarii
, millesimo sexcentesimo the government of the nation, or to assist such octuagesimo quinto, per Nobilem et Poten- as designe to invade the same, or the concealtem Comitem, Georgium Comitem de ing, and not revealing of any treasonable disLinlithgow, Justiciarium Generalem et course tending thereto, does inferr the paine Honorabiles virus Dominos Jacobum and punishment of treason, and by the third Foulis de Collingtoun, Justiciariæ Cleri- act of the first parliament of king James the cum, Johannem Lockbart de Castlebill, first, and thretty seventh act of his second parDavidem Balfour de Forret, Rogerum liament,* and by the nynth act, twelth parliaHog de Harcarss, Alexandrum Seton de ment of king James the second and ane hun. Pitmedden, et Patricium Lyon de Carss. dreth and forty fourth act, twelth parliament Commissionarios Justiciariæ dicti S. D.N. of king James the sext, t. It is statule and orRegis.
dained that no man openly nor notourlie rebell Curia legitime affirmata.
against the king's persone or authority, or Intran,
the uncle of Tarras's second wife, an account Walter earle of Tarras, prisoner.
appears in the Trial of Baillie of Jerviswood, INDYTED and accused, * that wher notwith. p. 647, of this volume.
* See these two Acts in the Case of Lord * This earl of Tarras had married the Loulloun and others, p. 989, of this vol. duchess of Monmouth's elder sister. Of his + See as to this, the Case of lord Loudoun instrumentality to the destruction of Baillie, and others, p. 992, of this vol.
make warr against the king's lieges, and that, And be the second act, second session of his wher any traitors of rebels repairs in any part majesties first parliament, It is statute and of this kingdom, none of his inajesties liedges ordained that if any person or persons shall, sliall presume to recept, supplie, or intercomune herefter, plot, contrive, or intend death, or with them, or give them any meat, drink, hous, destruction to his majesty, or any bodily barme barbour, or any relieff, or comfort, under the tending to death of destruction, or any restraint same pain, for whilk they are forefaulted and upon his royall person, or to deprive depose or put to the horn, and that immediately upon suspend him from the style honour or the knowledge of their repairing in the bounds, all kinglie name of the imperial crown of this bis majesties obedient subjects doe their exact realm, or any others bis majesties dominions, diligence to the uttmost of their power, in or to suspend his majestie from the exercise of searching, seeking, taking, and apprehending his royall government, or to levie warr or take the saids rebells and traitors, and presenting up armes against his majestie or any commisthem to justice, or in following of them till they sionat by bim, or shall intyse any strangers to be taken, and expelled and put out of the sbyre, invade any of his majesties dominions, and shall and that immediately they make intimation to by wryting, printing, and other malicious and the magistrates and persons of power and autho- advysed, speaking, express and declare suck rity in the nixt shyre, who shall be bolden to doe their treasonable intentions, efter such person the lyke diligence without delay, and sua from or persons being upon sufficient probation leshyre to shyre, till they be apprehended, and gallie convict therof, shall be deemed, debrought to justice, or expelled and put out of clared and adjudged traitors, and shall suffer this realme; and farder, when ever any manner forefaulture of life, hopours, lands and goods, of trators and rebells happens to repair in the as in the cases of treason. Lyk as, by the secountrey, all his majesties liedges knowing cond act of his majesties third parliament, them, or amongst whom they resort, shall with It is declared high treason in any of the suball possible speed certifie bis majesty, or some jects of this realm by wryting speaking or any of his majesties privie councill, or some of the other manner of way to endeavour the extir chief persons of anthority, or credit, dwelling Pation, suspensiou or divertion of the right of within the same shyre, that such persons (if succession to the imperiall crown of this realme, they be known) are within the same, and if or the debarring the nixt lawfull successor from they be unknown, showing their tockens under the inmediat actuall, full and free administrathe paines that the rebells and traitors ought to tion of the government conform to the lawes of have sustained in their bodies or goods, them- this realm, and that all such attempts and selves, in case they had bein apprehended, pre- designs shall inferr against them the pain of sented and convict be justice. And be the four- treason. Notwithstanding whereof ther being teinth act, sixt parliament, king James the se- treasonable design in England, for riseing in cond,* it is declared that all who shall recept arms against the king our soveraigne (whom such as are justified by crymes, if the crime God preserve) and for killing or at least seizing be nottour, and the tresspassor convict or de- on his sacred person, and the person of his clared guilty, are ordained to be punished as the royall bighness, and for forcing his majestie to principall tresspassor, and by the nyntie se. condescend to such proposalls as they the said venth act, seventh parliament, king James the damoable conspirators should make, ther was fyfth, all sheriffs, bailzies, and others, are or- a Juncto lykewayes of the Scottish nation dained to doe diligence to apprehend all rebells called up by them, and who did meet and aswho are at the horn, for capitall crymes, and semble themselves together at London, in the that no man willfully or willingly recept, sup- moneths of February, March, April or May plie, mantaive, defend, or doe favour to any of 1683 years, at which meeting were present, his majesties rebells, and being at the borne The lord Melvill, Mr. Robert Baillie of Jervis. within their houses, bounds, lands, and bailziea- wood, sir Hugh Campbell of Cessnock, and sir ries, under the paine of death, and confiscation George Campbell bis son, Montgomerie of of moveables. And by the fyfth act first ses- Langshaw, sir John Cochran, Mr. Robert sion of his majesties first parliament, it is de Martine, Mr. William Veitch, ane outlawed clared, that it shall be higb treason for the sub- preacher, and declared and forfault traitor and jects of this realme, or any number of them, less others. Wher efter they bad most treasonably or more, upon any ground or pretext whatsom- and seditiously misrepresented his majesties ever to rise or continue in armes,to make peace or government, especially in Scotland, and the warr without his majesties speciall authority and administration of his royal highness bis maapprobation first interponed thereto. And be the jesties commissioner, and bis judicators there, first act eighteinth parliament, king James the therby to excite one another to the designed sixt, the estates of parliament faithfully pro- conspiracy and rising intended against him, mise perpetually to obey, mantaine and de- aud to serve as a pretext and blind to excuse fend the prerogative royal of bis sacred majesty their wicked and treasonable design of joyning his airs and successors, and priviledges of his with the conspirators in England, they did send highnes crown with their lives, lands and goods. master Robert Martine with a commission into
Scotland, and he carryed letters, particularly * As to this, see the Case of lord Loudoun a letter from the said Jerviswood to the said and others, as before referred to.
Walter earle of Tarras, and the said Mr. Ro