"By the written Minutes before me of this Sederunt, I find that Cesnock's Bill for exculpation, was this day, May 1st, before the lords of the articles,* consisting of his defences that he was alibi, that such as he had conversed with, who were at Bothwel, had taken the bond, that his case was 'res hactenus judicate' and an enumeration of the steps of the loyalty: But the short hints before me do not bear what was done about it." May 13th. The parliament ratify the processes of forfeiture against Robert Hamilton of Monkland, Mr. Robert Baily of Jerviswood, and Archibald late earl of Argyle. We have seen these were three of the most iniquous sentences pronounced by the Justiciary; and had not the witnesses failed in Cesnock's process, we should have had all the unjust interlocutors upon that head ratified this day likewise in all probability." But upon reference to the Books of Parliament no proceedings concerning the Campbells of Cesnock have been found under this date. *Of the jurisdiction of the Scots Parliament, Mackenzie writes thus: "Since the parliament is the supreme judicatory, it may certainly cognosce all causes in the first instance. And of old, if a person accused for treason did absent himself, the criminal court nor no other inferior court could proceed to take trial by probation against him, and so all they could do, was only to denounce him fugitive for his absence, upon which denunciation his escheat did only fall, but he could not be forfeited; and therefore since it was unjust, that he should by his own absence procure to himself an impunity and exemption from forfeiture, the parliament did, by their supreme power, cite the person guilty, to appear before them, and did lead probation in absence against him, and forfeit him in absence though guilty. But it being found inconvenient, that parliaments behoved either to be called, or such delinquents pass unpunished, therefore, by the 11 act: 2 parl. Char. 1. it is statuted, That the justices may proceed to try crimes by probation, even when the person cited is absent, in cases of treasonable rising in arms, and open and manifest rebellion against his majesty or his successors and their authority so that the parliament are yet only judges to the trial of all crimes, by probation against absents, except only perduellion, or open and manifest treason. And albeit it may seem strange, that the justices should have been alallowed to lead probation against absents, in this which is the greatest of crimes, and not in crimes of lesser importance. Yet this proceeded from the just detestation which the parliament had of this crime, and that the punishment thereof might not be delayed, where the delay might prove so dangerous. "If the parliament forfeit any person after cognition of the cause, the sentence cannot be | May 15. Wodrow says, "The criminal process comes on against the noblemen and gentlemen who are cited to this day. The late alledged conspiracy was the pretext of forfeiting; but this process was really intented against them because they were averse from prelacy, favourers of presbyterians and possessors of good estates. This day parliament have read before them the King's Let ter to the council, and their orders to the advocate to cite them in the dittay against them all. There were present Cesnock elder and younger and some others, under date June 13th. Their dittay is read charging Cesnock with accession to Bothwell, and both of them with the plot. The advocate restricts their libel to the plot, and for probation adduces Commissary Monro, and the gentlemen's own confession, which was read, viz. that they acknowledge they were at the meeting mentioned in Monro's 'deposition, and throw themselves on the king's mercy. And Mr. Carstairs's depositions were read again, the parliament found the dittay proven. The lord Melvill and Langshaw are sentenced in common form, but in Cesnock's case, the quarrelled by any inferior judge, act 39 parl. 2 king James 6. And though it be added to that act, that no forfeiture lawfully and orderly led in parliament, shall be quarrelled by any inferior judicatory; for these words 'lawfully and orderly led, seem unnecessary, since after the cognition of the cause by the parliament, no inferior judicatory can quarrel a decreet of parliament, even though it be pretended that the said decreet was not lawful and orderly: yet, if a person be only denounced fugitive by the parliament, the lords of the session may suspend in that case, if the process was not orderly led; but whether they can reduce, even in that case, est altioris indaginis.' And some think that though it were very inconvenient, that such a decreet should receive present execution, where possibly the party was not lawfully cited, yet that such respect is to be paid to the parliament, as that the illegality of that procedure before them, though not objected before sentence, should remain undecided till the next session of parliament. "If the parliament should remit any such process for crimes, to any of their own number, to be decided finally before them, it hath been doubted, whether their decisions could be reduced by the session: and this act of parliament reaches only to decisions in parliament. But yet, since decreets pronounced by commissioners of parliament are reputed with us decreets of parliament, and since decreets pronounced by commissioners for valuation of tiends, are not reduceable, because these decreets are reputed decreets of parliament, as being pronounced by such commissioners of parliament, it seems that decreets pronounced by such commissioners, in crimes after probation, could not be quarrelled and reduced by the session, or other inferior judicatories." Criminals, pt. 2, tit. 3. time and place of their execution is remitted to the king simpliciter. The commissioner having signified he had instructions to spare their lives if they would be ingenous. After sentence was pronounced with the usual solemnities, old Cesnock desired leave to speak a word and liberty being granted he said "his sentence was very weighty, and he wished it might be noticed against all concerned, but one thing weighed him more than any thing which concerned himself, and that was, that his creditors were like to suffer with him, and humbly supplicate that his grace the commissioner might represent their condition to the king's majesty, for before they were losers he would rather be content to starve." Upon reference to the Books of Parliament, these proceedings against the Cesnocks have not been found under this date. Under which however appears the Act of Annexation of several lands to the crown, specifying among other traitors whose lands are annexed. Sir Hugh Campbell of Cesnock, and sir George Campbell of Cesnock, as traitors lately forfaulted. June 13, 1685. It is act 42 of king James 7th, 1st parliament, dated June 16, 1686. In the Privy Council Register of July 1st, 1685, it appears that a Letter there inserted which was written the day before to the Lords Secretaries of State, was read, voted and past. This Letter among other matters desires "their lordships will be pleased to remember to send down the remission to the two late Lairds of Cesnock, which was sent up some time agoe marked with my lord Advocate's hand." doe heirby authorise and require you to send the saids sir Hugh and sir George Campbles prisoners to our Isle of the Bass, therein to remain prisoners untill we shall think fitt to declare our farder pleasure concerning them, ffor dooing whereof this shall be to you and all others who may be therein concerned respectively, a sufficient warrant. And so we bid you heartily farewell. Given at our court at Whitehall, the 7th day of July 1685, and of our reigne the first year, by his majesties command. Sic Subscribitur, MORRAY." "The Lords of the Committee of his Majes ties Privy Councill for publict affairs, Doe give ordor to the clerks of councill, to write to sir Hugh and sir George Campbells, sometimes lairds of Cesnock, to repair immediatly hither to receave the councills commands." On the 18th of September, "The Letter underwritten is direct from the Councill to the Lords Secretaries of State, off which the tenor followes: "My Lords; There being a Letter from the king, ordoring the two Campbles, late of Cesnock, to be sent prisoners to the Bass, notwithstanding of his majesties remission to them for their lives and being at freedom and liberty. But the said Cesnocks being put at liberty upon the said remission befor the said Letter was communicate to the councill, the Lords of the Committie this day mett thought fitt to acquaint your lordships howe this affair stands, to the end his majestie being informed of it, his royall pleasure may be known there anent, which shall be readily obeyed by the Committie. In whose name and whose command these are signed by your lordships' most humble servant. Sic Subscribitur, ALEX, GLASCUEN." On the 5th of October, "The Letter underwritten, direct from the Lord Secretary Morray On the 3rd of September," The Letter unto the right honourable the lords of his majes derwritten, direct from his most sacred maties most honourable Privy Councill appointed jestie to his Privy Councill, anent sir Hugh and sir George Campbles, sometymes Lairds of ing the two Campbles, late of Cesnock pria Committie for publick affairs, anent the sendCesnuck, for sending them prisoners to the Isle soners to the Bass, being read was ordered to of Bass, untill his majestie should think fitt to be recorded, and ane dispatch was immediately declare his farder pleasure concerning them," being read, was ordored to be recorded. Offprehending and bringing them prisoners to the sent to Lewetenent Collonell Murray, for ap On the 9th of July, is read a Letter from Lord Secretary Murray, in which he writes, "As to Cesnock's remission I hope it shall be sent by the next post with the signification of his majesty's pleasure thereaneut." which Letter the tenor followes: J. R. "Right trustie and welbeloved cousin and councellor, right trustie and intirely beloved cousin and councellors, right trustie and right welbeloved cousins and councellors, rig trustie and well beloved cousins and councellors, right trustie and welbeloved councelors and trustie and well beloved councellors. We greet you well. Whereas we have been graciously pleased to grant a remission (of the date of these presents) to sir Hugh and sir George Campbles, sometymes Lairds of Cesnock, for the crimes of treason therein mentioned to be only extended to the securitie of their lives, in maner therein fully expressed. Nevertheless not being as yet resolved to sett them at libertie, It is now our will and pleasure, and we said Bass, to remain therein till his majesties further pleasure. Followes the tenor of the forsaid Letter: "My Lords; I have receaved a letter dated the 18th instant signed by the Lord Archbishop of Glasgow, in your lordships' name, concerning a Letter formerly directed from the king to the Privy Councill, ordoring the two Campbles, late of Cesnock, to be sent prisoners to the Bass, notwithstanding of his majesties remission to them, for their lives. Whereof, I have given ane accompt to his majestie, by whom I am now commanded to let your lordships know he is not well satisfied with the delay that has been made in putting his pleasure concerning them in execution, as it was mentioned in the said Letter. And therefore it is now his majesties expresse pleasure that with all convenient dili gence your lordships cause them, the saids two Windsor, 29th Sept. 1685. MORRAY." the 14th of July 1621, betwixt Livingston and Galloway, where the lords so far disapproved such extrajudicial declarations, that they imprisoned one for taking them. "Then on the 25th the debate began; and it was alledged, that what they had libelled against Cesnock the pannel, were at most but treasonable speeches, and so were expressly Followes the tenor of the Ordor given to Lewe- pardoned by the indemnity in July 1679. 2. It tenent Collonell Murray : was positively offered to be proven, that he was alibi, and not at the bridge of Galston, all that day on which he was libelled to have uttered these words. 3. Non constat they were rebels; they neither being denounced fugitive, nor dethe laws of all nations have regarded them little. The Roman law says, Lubricum linguæ "You are hereby required and commanded upon sight hereof, to ordor a sufficient party of the forces under your command to apprehend the persons of the two Campbles, late of Ces-clared traitors; and as for treasonable words, nock, and immediately to cause the said partie transport them, safely prisoners to the Isle of the Bass, there to be detained prisoners, dureing his majesties pleasure, conform to a letter direct from the lord Secretarie Morray, by his majesties command, dated the twentie nynth day of September last, and the deputy governor of the said Isle of Bass, is hereby ordored to receave, and detean, the saids two Campbles of Cesnock *, prisoners untill his majesties furder pleasure, given att Edinburgh the fift day of October 1685. ad pœnam facile trahendum non est,' 1. 7. D. ad Leg. Jul. Majest. and the 1. unic. C. si quis imperat. maledix. puts very favourable and charitable constructions on such escapes; and sir Edward Coke, one of the great judges of England, in his Institutes, tit. of treason, quotes cases, where seditious words were found not to infer the crime of treason. But Perth justice general minded, that by acts of parliament in England, since Coke's time, viz. since this king's restitution, it is declared, treason may DA. FALCONER RAMSAY." be committed in words; and thus Edward Stal Sic Subscribitur, TARBAT. The following Passages from Fountainhall's "The old gentleman" says Crookshank, vol. 2, p. 337, died soon after, and probably his death was heastened by the hardships he underwent." VOL. X. ley, goldsmith, was condemned and executed for sam but occasionem tantum delinquendi praebent;' whereof Matthæus, Tit. de læs. ma. jestate, cap. 2. num. 11. gives a pregnant instance, in centurione quòdam. 2. Nudum con'silium,' unless it becumin structione aliqua,' is not art and part, but still bare words; for Cesnock neither instructed them with money, 3 R 6 arins, ammunition, nor with advice how to instance, a man is convened pro homicidio de- pardoned or included in his majesty's indemnity; and particularly repelled the defence of alibi, as it was qualified and circumstantiated, the distance between the two places being but small; and sustained the second additional rebels ou his lands, as an aggravation only of The witnesses being called, it was objected against Ingram, 1mo. Prodiderat testimonium,' because both major White and the king's advocate had examined him, and he had revealed to them what he had to say: and though the justices are impowered to examine before hand, yet even they must have, by the king's letter (recorded supra, 8th Jan. 1683), a warrand from the privy council; and others cannot do it at all. 2do, Est socius criminis.' Stio, Est vinculatus et carceratus,' being kept prisoner in Edinburgh castle. Vid. Stat. 2. Rob. 1, cap. 34, de his qui prohibentur testi*monium dicere.' 4to, It is offered to be proven, he bears Cesnock an enmity and grudge; and the foresaid statute makes it enough to cast one from witnessing, that he is malevolus parti;' and all lawyers make inimicitiae' a good exception; even though the witness were in articulo mortis, vel nuper sumpserat sacratissimam eucharistiam.' Thus the famous criminalist Farinacius, tit. 6, de Test. quæst. 53, lays it down as his positive judgment, and cites lawyers for it,' quod etiam in talibus casibus non est ei credendum, 'nam non omnis moriens est Joannes Bap'tista.' And Bouritius, in his Enchiridion Defensionum pro Captivis, says, inimicus etiamsi non sit capitalis a testimonio repellitur, etiam in criminibus exceptis, quale 'est læsæ majestatis;' and Hieron. Gigas de crimine læse majestat. says the same. And this Ingram threatened he should do Cesnock an ill turn, if it were out of hell. 5to, The said Ingram cannot be admitted, because it is offered to be proven he was suborned by Hugh Wallace chamberlain to sir William Wallace of Cragie, and he himself was endeavouring to bring over and practise on Adam Millar to come to Edinburgh, and depone as he did; and gave this reason of it, that they owed Cesnock no favour; because if he and others like him had come out and helped them at Bothwel-bridge, they had not been defeated as they were. Answered to the 1st; It was no proditio testimonii' for them to tell what they knew, or to reveal the truth, unless they had instigated the plea, and had informed in order to an accusation, that they might bear testimony; and their deponing was not voluntary, but by public authority; and sir John Nisbet, when king's advocate, was in use previously to examine witnesses; and their former depositions shall be cancelled and torn. And which being accordingly done by the king's advocate, in presence of the court, it contributed to Cesnock's escaping at this time. To the 2d, 'Socius criminis' is no objection in treason, where any person almost is a habile witness. To the 3d, Vinculatus' is when one is in prison for a crime, but not where they are only in custody, and sequestrate, to evite corruption from the pannel's influence. To the 4th, ⚫ Non relevat,' unless it were inimicitia capitalis, and that the ground of it were condescended on, and proven to be a mortal feid; and to the authors cited, he opponed a lawyer (whose authority in criminals yielded to none of them), viz. Julius Clarus, § final. quæst. 24, who was clear on the point; and Statuta Roberti, mentioning malevolos parti,' must be understood habiliter, in terminis juris,' of a mortal malevolence; and the words spoke were only in passion, and not a permanent hatred; and out of hell' may signify, providing the revenge be not by unlawful means; and Ingrain was content to purge himself of any malice: and it is more than three years since they are alleged to have been spoke, and so may justly be presumed to have been now digested and forgot; et dissimulatione et reconciliatione 'tales injuriae verbales facile tolluntur.' To the 5th, Subornation non relevat, unless the pursuers, or some others having interest in the cause, were the suborners; which Hugh Wallace was not. 2do, They must say the subornation took effect; for attempting to do it, though it may give ground to punish the attempter, yet non relevat' to cast the witness, especially where it is only an attempt to bribe another witness in the cause, but not this now adduced. Yet Mascardus, voce Subornatio conclus. 1347, makes even that a great presumption.-And, at that rate, pannels, of purpose to set aside witnesses, may cause offer them money by their friends: and that endeavours used to search and find out witnesses against rebels, and to draw out of them what they can say, (they being in the west country most averse in discovering these things) must not be called corruption, seeing without such prudent methods they shall never find witnesses. Stio, Subornation in general non relevat,' unless the quantity of money or other good deed be condescended on, that it may appear to exceed the witness's expences, or his damage, ex operis amissis,' by his attendance, both which may be lawfully remunerate to witnesses without incurring the nota of bribery. "Replied for the pannel, That the first three objections are conjoined, ut quae non prosunt singula multa juvent.' As to the 4th, A mortal hatred may arise from a very slender ground, and a punctilio of honour; and we see daily for a cuff or a lie combats fought, and slaughter committed; and though thir resentments do not often possess mean people's breasts, yet sometimes they do; and infor... mative' we condescend (though not bound to do it) upon the cause of Ingram's malice against Cesnock, because Ingram having beat one Wilson, who died of it within eight weeks, Cesnock by a letter delated him to the sherif of Ayr, whereupon Ingram vowed him this mischief; and the length of time does not sopite nor induce oblivion in revengeful men. To the 5th, Non refert' who corrupts; and it is relevant, that any from Cesnock offered to debauch them. 2do, The very attempting to corrupt a judge or a witness is unlawful, and leaves a suspicion of impression. Stio, It were impossible ever to cast a witness on subornation, if the precise sum behoved to be conde |