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sisted judicially before the justices, and they that being to lay a fundation for drawing the did repeit the same judiciall confessions in pre- lives and reputations of all men, into evident

sence of the justices and the inqueisl, and rane hazard, and the papnall's procurators oppons to the highest transports of furie and treason the authorities cited, and the lawe said well in disowning the king's authoritie, and the au. that. nisi totâ lege perspectâ,' it is thoritie of all judicatories dirived and acting by eâ judicare,' and the words immediately folVertue of his majesties authoritie, and so wer lowing the place cited by Clarus, does clear in crimine fraglante' and owneing and com- the citation, and dounright militates against bis mitting of treason in the face of the court, so majesties advocate, and as to all the concurthat what collor or pretence of lawe cane be rance and qualifications of the other adminicles urged from these instances to the poynt nowe insisted on by his majesties advocate, they are in question.

neither proper to be debated nor answered hoc 2do. There is no lawyer, and the lords of loco, but only proper to be represented to the justiciary are desyred to cast ther eyes upon inqueist, and then shall be sufficientlie taken off, the lawyers produced, if ever it did enter into answered and satisfied. the thought or imagination of any lawyer, that a pretendit confession of crymes import forfaul, the decision of this court in the case of Ro

Mr. David Thoris farder adds and repeits ture of lyf and estate, not extant nor produced bertson, who having confest the murder befor under the hand of a judge, wher the partie can. not wreitt but offered to be proven by the depo advocat, and the confession being sabscribed by

three commissioners of justiciary and the king's sitions of witneysses, was ever heard of or sustained, which not only the generall principle of the three Lords, Advocat and Clerk, the Lords all lawe has reprobat, but even the lawe of this refused to sustain the said confession either as kingdome even in judicio civili, wher the im- plenam' or ' semiplenam probationem. In port is nothing else but a pecuniary interest for respect it was not taken by four of the justices parties confessions being but nuda emissio 1 (who are only a quorum) pro tribunale se

dente.' . verborum,' depositions of witneysses are not admitted to prove the same, even to the value of

The Lords Justice Generall, Justice Clerk, ane hundreth pounds Scots, and it is a nottor and Commissioners of Justiciary baving conand known case that a pretendit judiciall considered the debate, they refuse to sustaine the fession alleadged, made befor the lords of ses

confession (to be proven by witneysses) as a sion, in the case of Oseburn and Buchanan, tho

inean of probation either plenarie or adminiproduced under the clerks hand, was not sus

cuiat. His majesties advocat desyres the pan. tained to be binding or make faith unlesse it ball should be interogat be the lords of jushade been subscribed by the partie: and ane

ticiary whither or not he thinks the being at decreit given by the English judges for the Bothwelbridge a rebellion. tyme, upon that ground against Buchanan, The paonall answers that he conceaves be is was reduced since, bis majesties restouration, not obliged to answer, because it is nut the by the lords of session, as being absurd, irrele- cryme lybeiled, and he may be as well interogat vant, and contrair to lawe, and it wer a strainge upon any poynt of treason. The lords having streatch and consequence that if tbe depositions interrogat the pannall if be acknowledged the of witneysses cannot be admitted to prove a ryseing at Bothwelbridge to be a rebellion, confession, even as to the meanest civill effect, The pannall answered that it was not a part of that they should be allowed, and sustained, in the cryme lybelled, and that his future lyff a criminall proces or witneysses beard to de. should witnes him to be both a good subject, pone, as to the tenor of parties confessions and good Christian. His majesties advocat thereupon to make any mean of probation, and closes the probation, and protesis for ane assyse against which the act of parliament above- of error against the inqueist in case they Jaentioned is repeited, against which ther ney- assolizie. ther is nor cane be any thing answered. As The Lords ordaine the assy se to inclose and lo these pretences that extrajudiciall coufes returne their verdict to morrowe at 8 o'clock. sions tho taken coram judice incompetente may be adduced in modum adminiculi nisi Curia JUSTICIARIE, S. D. N. Regis tenta in • doceatur de errore,' does not at all concerne the poynt; because it is only true wheró con

Pretorio Burgi de Edinburgh, decimo stat et apparet de veritate actus' by produc

quarto die mensis Junii 1681, per Nobilem

et Potentem Comitem Gwielum Cumition of the confession itself, in which case it is

tem de Queensberry, Justiciarium Geneacknowledged that whither it be the case of judiciall confessions or extrajudiciall, if the par.

ralem, Ritchardum Maitlaud de Duddop, tie be able docere de errore' he may retract

Justiciarie Clericum, Robertum Dominum

de Nairn Dominos Jacobum Foulis de Co. and be heard against the confession, but here

Jintoun, Davidem Balfour de Forrei, et Dathe poynt debated, is that the confession de

videm Falconar de Newtoun Commissionanaturà suâ requirit scripturam,' and most be

rios Justiciarie dicti S. D. N. Regis. reducta in scriptis incontinenter' when a partie emitts it, wbither it be a judiciall confession

Curia legitime affirmata. or extrajudiciall , which is not in this case, and The

persous who past upon the assyse of is not the subject of probation by witneysses, Robert Ferguson of Letterpin returned ther

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verdict in presence of the saids lords, whereof The pannall and his procurators takes instru. the tenor followes :

ments upon the verdict, and craved the pannall The Assyse all in on voice finds Ferguson John Spreall may be sett at liberty. of Letterpin to be guilty of rebellion, and being at Botbwelbridge by his own confession. His majesties advocat produced ane act of

Sic Subscribitur, Will. SreiviNSON, Chan. Councill ordaining him to be detained in prison,

The lords for severall cauyses moveing them, whereof the tenor followes : " Edinburgh, tibe continued the pronouncing of Dood and Sen fourteint day of June, 1681. The jords of tence against the said Robert Ferguson of his majesties privie councill doe hereby gire Letterpin till the second Monday of November ordor and warrand to the justices, notwith. nixt.

standing of any verdict or seutance returned or The persons who passed upon the assyse of to be pronounced by them thereupon, upon the John Spreuil, returned ther verdict in presence Spreull

, in detaine him in prison until he be

criminall dittay lathie persewed against John of the saids lords whereof the tenor followes :

examined upon severall other poynts, they have • The Assyse, having considered the Depo- to lay tv bis chairye. Extract by me. sitions of the whole witneysses, led and ad- Sic subscribitur, PA. MENZEIS.” • duced against John Spreull, una voce finds nothing proven of the crymes contained in The Lords Commissioners of Justiciary, in the Lybell, which may make bim guilty. respect of the said Act of Councill, did renuit * Sic subscribitur, Will. Sreivinson, Chan.' | the said John Spreull back to prison.

316. Trial of David Hackstoun, Laird of Rathillet, for Treason

and Sacrilegious Murder :* 52 CHARLES II. A. D. 1680. [Now

first printed from the Records of Justiciary in Edinburgh.] Curia JUSTICIARIE, S. D. N. Regis tenta in nishing of them, with meat, drink, powder, ball,

pretorio burgi de Edinburgh, so die Julii or otuer munition bellicall, are most detestable, 1680, per honorabilis viros Gulielmum horrid, hynous, and abominable crymes of re. Comitern de Queinsbery Justiciarion Ge- bellion, treason and lose mujestie, and are puneralem, Ritchardum Maitland de Dudop, nishable with fortaultour of lytt, lauds, bereJusticiarie Clericum, Dominos Jacobum lages, and escheat of moveables, and be the Foulis de Colintoun, Robertum Nairn de first act of the 18 parliament king James 6th, Strathurd, Davidew Balfour de Forret, Da- tbe estates of parliament faithfullie promise videm Falconer de Newtoun, et Rogerum perpetually to obey, maintaine, and defend the Hoge de Harcarss.

prerogative royal of his sacred majestie, bis Curia legitime affirmata.

aires, and successors, and priviledges of his

hynes crown, with ther lives, lands, and goods, Intran

and be the 5th act, 1st session of his majestie's Darid Hackstoun, of Ratbilet, Prisoner.

first parliainent; it is declared that it shall

be hye treason to the subjects of this kingY E are indyted and accused, that wher not-dome or any number of them, more or lesse, withstanding from the lawe of God, the lawe upon any ground or pretext whatsomever to of nations, and the municipall lawe of this ryse or continue in armes, to make peace or kingdome, and the alleadgiance of the subjects warr, or to make any treaties or leagues with thereof, ther lye great obligations and bonds foreign princes, or estates, or amongst themupon them and you, to maintaine and defend selves, without his majestie's special authoritie the royall and sovereigne power and authoritie and approbation, first interpoved thereto, and of the king's majestie, and that be the common all his majesties leidges are discharged upon lawe, the lawe of nations and acts of parliament any pretext whatsoever, to attempt any of these of this kingdome and constant practice thereof, things, under the painé of treason; and be the the ryseing of his majesties subjects, or any 7 act, 1 session of his majesties first parlianumber of them joyning and assembleing toge- ment, the late Solemne League and Covenant, ther in armes without, and contrary to his ma. or any other covenant, or public oath is disjesties royal command, warrand, and authori-charged to be taken be any of his majestie's tie, and the abaiting, assisting, recepting, inter- subjects, upon ther highest perrill. And be the communing, and keeping correspondence with 2d act, 2d session of his majesties first parliasuch rebells, and supplieing of them with ment, it is statute and ordained, that it any levies of men, horse, money, armes, and fur- person or persons shall herefter plott, con

trive, or intend death, or destruction to the * With respect to the union of heteroge- king's majestie, or any bodiely harme tending neous Charges in one Dittay, see in this Col- to death, or destruction, or any restraint upon lection the Case of Nairne aud Ogilvy, A. D. bis royal person, or to depryve, depose, or sus. 1765.

pend him from the style honour and kinglie name of the imperiall crown of this realme, or of Wigtoun, Stewartrie of Kirkcudbright, any other of his majestie's dominions, or to Dumfries shire, Rentrewe, Lanerk, and other suspend him from the exercise of his royal go shyres, within this kingdome, and ye having vernment, or to levie warr, or take up armes robbd his majestie's dutietull and good subjects, against his majestie, or any commissionat by and treasonablie quartered upon them; ye did, him, or shall'intyse any straingers to invade any supplie shelter and protect Mr. John Welsh, of his majestie's dominions, and shall by wreit. Mr. Samuel Arnot, forfault and declared rebells ing, printing, or other malicious and advised for the rebellion 1666; and ye and your ac speaking, expresse and declare such ther trea- complices having marched to Hamilton Muir, sonable intentions, every such person or per

did take the boldnes upon you to issue proclam sons, being upon sufficient probation legallie mations, and print declarations, bearing the convict thereof, shall be doomed, declared, and treasonable grounds of your rebellion; and did adjudged traitors, and shall suffer forfaulture presume to modell aud give your rebellious of lyff, honour, lands, and goods, as in the associats the name of ane army; and you did cases of treason. Yet ye the said David Hack- modell and forme yourselves in troups, comstoun of Rathilet, a disolut, fagitious, and panys, and regiments, naming collonells of wicked treacherous villain, shacking off all fear regiments, captaines of companys, commanders of God, conscience, and sense of duty, allea- of troups, and other officers, under the comgiance, and loyaltie to your soveraigne, and mand of the impious and bloodie murderers of native prince, upon the saithitie of whose sacred the late archbishop of St. Andrews: and ye person and mantinance of whose soveraigne and your rebellious and treacherous accomauthoritie and princlie power the quyetnes, sta- plices, did incamp at Hamilton Muir, for sebilitie and happienes of the people does depend, verall dayes together in June 1679, ye did obye have most perfidiously and treasonablie pre- stinatlie continue in armes, ye did make desumed to committ, and are guilty of the crymes tachments for rifleing and plundering of the above mentioned. In soae fare as ye and the country, to make provisions for ther rebellious bloodie and sacraligious murderers of the late camp, and that notwithstanding of ane proclaarch-bishop of St. Andrews, did goe into the mation issued furth by the lords of his majes Western shyres, and did treasonablie joyn in tie's Privie Councill, declairing your said inarmes with Robert Hamiltonn, brother to the surrection to be a manifest and horrid rebellion, laird of Prestoun and his accomplices, disolut and bye treason, and commanding you and and fagitious persons, to the pumber of three your rebellious accomplices to desist and lay score and upwards, and upon the twentie nynth down your rebellious armes, and yet ye did of May 1679, a day appoynted for a solemne most treasonablie continue and abyd in armes, thanksgiving for bis majestie's restauration to and ye did beat parlies be drum, and did také the royall government of this kingdome, goe the boldnes and presumption to send your comto the burghe of Rutherylen, and there proud- missioners to the royal camp, and ye and your lie and treasonablie, efter reading acts of ther rebellious accomplices did treasonablie requyre own coyning, shacking off your alleagiance to the subversion and overturning the goverment his majestie, ye most treasonablie and wickedlie of the church, and proudlie and insolentlie burnt severall acts of parliament asserting his boasted of your treasonable armes in which ye majestie's prerogatives and establishing the go- and your accomplices did treasonablie continue vernnient of the church, drownd out bonetyres untill the twentie second day of June 1679, sett on, in commemoration of that day, and that his majesties forces did assauit and attherefter ye and they continueing and'abydling in tacque them at Bothelbridge, wher by God's your treasonable arines ye and your rebellious blissing upon bis majesties forces, and be the associats to the number of did waylay a fewe valour and conduct of James duke of Bucand small partie of men, under the command of clengh and Monmouth bis majestie's generall, tbe laird of Claverhouse, and ye and your ac

and officers and souldiers under his conduct; complices did most cruellie murder, and kill ye and your numerous and rebellious army severall of his majestie's soubliers under his wer disipat, routeil, and vanquished, and yet command, and ye being proud and insolent of ye persisting, and abyding, in ane series and your treasonable cruelties, murders, and villa-iract of rebellion and wiekedness, as if ye bade nies, and haviny assembled and convocat the bein made for no other end, then to be ane number of two or three thousand men in armes enemie to government (and so to mankind) and

day of June 1679, or ane or other to deminish and lessan ihat authoritie which lyy of the dayes of the said moneth, ye and your your duty, and alleagiance. ye ought to accomplices did most treasonablie attacque and have mantained, and under which ye hiave bein assault a small partie of the king's fur es with- so long proiected, ye and Mr. Ritchard Camein the tour of Glasgowe, by whom ye and your ron, Mr. Donald Cargill, and others your imaccomplices were repulsed, and defute, and yet pious, bloodie, murdering accomplices did drawe, being incouraged and imboldened with conilu- contryve and forme, two most treasonable paence of your numerous and rebellious accom- pers,* the one called the Fanaticks New Coveplices, who did swell and growe to the number of ten or twelve thousand, did robb, pillage, and * As to these two Papers, (the QueensSearch for horse, armes, powder, ball, and ferry Paper and Sanqular Declaration), see other instruments of warr, throwout the shyres the case of Mr. Donald Cargil, in the next

upon the


nant (taken from Mr. Donald Cargill, at nothing else, but what we here expresse, is Queinsferrie, the third of June 1680) the other our designe. called the Declaration of the true Presbyterian “ 1mo. We covenant and swear, that we Antiprelatick and Anti-Erastian,persecutedPar- ' take the only true and living God, Father, tie in Scotland, oti the tenors following. . Son and Holy Gost, to be our God, and be

“We under subscribers for ourselves, and takes ourselves to the merits and righteous• all that joyne with us and adhere to us being nesse of his Son as the only righteousness, * put to it by God, our consciences and men, " that cane justisie ns before God, and that we

doe bind our soulls with a solemne and sacred take bis scriptures and word to be the object • bond, lest on the one hand weshould be caryed of our faith and rule of our conversation in • away with the streame of apostacie and de- / • all things, and that we shall give up ourselves « fection of the church in this tyme, and the 'to him to be renewed, instructed, and in all 6 other hand lest we should (not being so en- ' things ruled by his spirit according to that *gaged) evanish in vanitie, and be without a word, and shall earnestly endeavour by his

right rule in good designs. We have judged 'grace to render to him that love, worship and it our duty againe to covenant with God and • obedience that his word requires and his good

one another, and to publish this declaration' nes ingages us to. 2do. That we shall to the « to the world of our purposes, that men may ‘outmost of our power adwance the kingdome of • know our most inward thoughts, the rules • Christ established throughout the land, (if at « we walk by, and the outmost ends we have any tyme herefter God shall give us this op• befor our eyes for this intent, that those who'portunity,) righteousness and the true re« are lovers of God, zealous of his reigning informed religion, in the truth of its doctrine, in glory, and desyrous of reformation, and the the puritie and power of its worship and orpropagation of his kingdome, may have occa- dinances, and in its disciplin and govern

sion no more to be jealous of our intentions, 'ment, and free the church of God from the « and others may have no ground to load us thraldome, tyrannie, incroachment, and cor• with odious and foull aspersions; but that all ruption of Prelacie on the one hand, and Braz• knowing the truth of us, if they shall strive tianism on the other, and that we shall, to our

against us and the truth with us, shall doe it power, relieve the church and subjects of • without excuse and against conviction, and that this kingdom (we being called therto by his • those who sball joyn with us may doe it upon 'giving of us power, power being God's call • solid and undoubted grounds, and both they 'to doe good) of that oppression that hath bein • and we may expect grace from bim faithful exercised upon their consciences, civil rights • lie to persewe and bapplie to be successful in and liberties, that men may serve him holilie, so good purposes. It is true we are not ig. without fear, and possesse their civil rights in

norant of the great unmindfulnesse, failing, quyetnes without disturbance.* 'counteracting and mocking, that has been in So • That we shall endeavour to our outmost

our former vows and covenants with God, and 'the extirpation of the kingdom of darkness, • of the great judgments, that hath and are • and whatsoever is contrair to the kingdom of • like to follow such impions and sinfull deal- • Christ, and especially idolatry and popery, • ing with God in such weighty matters (for in all the articles of it, as we are bound in • which we both ought and desyre to be hum

bled before him) which cannot but make us with * In Wodrow after the second head fol"great trembling of heart enter into newe ones, lows: Thirdly, “ That we confess with our • knoweing both our own weakness and readi- . mouth, and believe with our hearts, that the

ness to relapse, and the great bazard and dan- • doctrine of the reformed churches, especially ..ger of such relapses, yet the desire of reco- " that of Scotland, contained in the scriptures,

vering and preserving a remnant, and the con- * summed up in our contessions of faith, and • viction of this is the most convenient mean, engaged to by us in our coveuants, is the only « the zeal to God's glory and Christ's reigning • true doctrine of God, and that we purpose to • (which is the highest and most acceptable persevere in it to the end; and that the pure . duty man cane performe to God) hoping for worship required and prescribed in the scrip• his mercies (who is witness to the integrity tures, without the inventions, additions, adorn

of our hearts and rightues of our intentions) ings, or corruptions of mev, is the only true • that he will instruct, direct, accept, and worship of God, and the Presbyterian govern* prosper us, we goe forward declairing that mentexercised by lawful ministers and elders

• in Kirksessions, Presbyteries, Synods and Geyear, 1681. Wodrow has in his Appendix neral Assemblies, is the only right governNos. 46, 47, printed these two Papers ; his re- * ment of the church, and that this government presentation of them is more full than that in • is a distinct government from the civil, and the Record of Justiciary. There are also fre- ought distinctly to be exercised, not after a quent variations of phraseology, between the • carnal manner by the plurality of votes, or two; and Worrow's report is much the more authority of a single person, but according to correct as to orthography and punctuation. I the Word of God, so that the Word makes and have inserted from Wodrow the most impor-carries the sentence, and not plurality of votes." tant passages which do not appear in the Re- And that wich is the 3d head in the text, in cords of Justiciary.

Wodrow is the 4th.

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our nationall covenant, and superstition, will, the Lord's right to rule consciences against • worship and prelacie with its hierarchy, as the usurpations, of men, for fulfilling ther 'we are bound in our Solemn League and Co-vowes, and repelling unjust violence, which • venant, and that we shall with the same sin- innocent nature allows to all ; of all which

cerity endeavour (God giving us assistance) and more particulars we can give (we speak “the overthrow of that power, that bath es- as befor God) innnmerable and sure instances, * tablished that prelacy and erastianism over (But that we may see if there be any thing

the church, and exercises such a lustful and that stands in our way; there are but three arbitrary tyranny over the subjects, seeking things that seem to have weight that we . again to introduce idolatry, and superstition know. First, Whether the deed and obligain these lands contrair to our covenants, and tion of our ancestors can bind us. Secondly, in a word that we shall endeavour the extir. Whether the covenant doth bind us either to pation of all the works of darkness, and the this man or his posterity. And thirdly, Whe. • relicts of idolatry and superstition (which are ther there yet be any hope of them and their • both much enlarged and revived in our tymes) posterity. • and execut righteous judgement impartiallie ** 1st, As to the first. Our ancestors, their • (according to the word of God, and degree of transactions and obligations neither did, nor wickedness) upon the committers of these could bind us, they did not buy their liberty things, but especially blasphemy, idolatry, and conquest with our thraldom and slavery; * Atheism, sorcery, perjury, uncleanness, pro- . nor could they, liberty and freedom being a

fanation of the Lord's day, oppression and benefit next to life, if not in some regard • malignancy, that being thus zealous for God. above it, that they could not give it away • he may delight to dwell among us.

* more than our lives, neither is it in the power 4th. Seriouslie considering that the hand of of parents to bind their posterity to any thing our kings has bein against the throne of the that is so much to their prejudice, and against • Lord, and that now for a long tyme the suc- their natural liberty. It is otherwise indeed • cession of our kings and the most part of in things moral. Neither did they bind us to our rulers with him, hath bein against the any thing but to a government, which they

puritie and power of religion and godlieness, then esteemed the best for the commonwealth • and freedom of the church of God, and · and subjects; and when this ceaseth, we are . hath degenerat from the vertue and good go- free to choose another, if we see it more con• vernment of ther predecessors unto tyranny, • ducible for that end, and more free of these and hath of late so manifestlie rejected God, inconveniencies. Andly. The covenant doth • bis service and reformation, as a slavery, as not, for it only binds us to maintain our king • they themselves call it in ther publict papers in the maintenance of the true established *(especially in these last letters to the king and and covenanted religion ; and this we have

duke of Lauderdale) disclaiming ther co- not; neither can they require homage upon * venant with God, and blasphemously inacting the account of the covenant, baving re

it to be burot by the hand of a hangman, go- | nounced and disclaimed that covenant: and • verned contrary to all right lawes, divin and we being no otherwise bound, the covenant • human, exercised such tyranny and arbitrary being the coronation compact, without the

governinent, opprest men in ther consciences, \ ' swearing and sealing of which our fathers, • and civil rights, used free subjects (Christian or rather we ourselves refused to receive him • and reasonable men) with less discration and for king, and them for rulers; and if they justice then ther beasts, and so not only frus- were free to refuse him for king, upon the • trat the great end of goveroment (which is account of not subscribing of that covenant, • that inen may live godlie, holily and peace we are much more free to reject him upon ably under them, and might be mantained bis renouncing of it, this being the only way in ther rights and liberties from injurie and of receiving the crown of Scotland; and • wrong) but hath also walked contrary to it, so reigning also, not being an inheritance that

that it can no more be called a government, passes from father to son, without the con.but a lustfull rage exercised with as little sent of tenants, but an (and the more men \right reason, and with more cruelty then in plead for this, the more we are concerned to * beasts, and they themselves can no more be look to it) office, which, all say, is givenad

called governours, but publict grassators, and culpam, non ad vitam.' Wodrow.] • publiet judgments which all men ought as • Neither can it be thought that ther is hope

earnestly to labour to be free of, as of sword, of ther returning from these courses, having · famine or pestilence, rageing amongst us,

so oft shewed ther natures and enmities 6 and besides bath stopped (instead of punish- against God and all righteousness, and so

ing) the course of lawe and justice against often declared and renewed ther purposes and idolaters, blasphemers, atheists, murderers, promises of persevering in these courses, and incestuous, and adulterous, and other male suppose they should dissemble a repentance * factors, and instead of rewarding the good, of these evills and professe to returne to better

bath made butcheries and murthers on courses being puut to straits: or for ther own the Lord's people, sold them as slaves, im- ends (for upon no other account cane we reaprisoned, fortaulted, banished, and fined them sonablie expect it) and though it might be upou no other account, but for mantaining thought that ther might be pardon for what

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