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319. Proceedings against James Earl of LOUDOUN, GEORGE Lord
MELVILLE, Sir John CochrANE, of Ochiltree, and JOHN COCHRANE, his Son, for Treason: 36 CHARLES II. A. D. 1684. [Now first printed from the Books of Privy Council and Records of Justiciary at Edinburgh.]
such a competent tyme for his appearance, as Apud Edinburgum, primo die Aprilis, 1684.
they shall think fitt. Sederunt,
Apud Edinburgum, octavo die Aprilis, 1684. Chancellor.
Bishop of Edinburgh. Theasurer Principal. Kionaird.
President of Sessiop.
Sir George Monro.
The Lords of his Majesties privie councill, THE Eords of his Majesties privie councill baveing considered ane Addresse made by James having considered a Petition, presented by the earle of Loudoun, supplicating, That as the earle of Loudoun, representing, that he being councill upon a former petitione, had for the cited to appear before the lords commis- reasons therein contained, recommended to the sioners of justiciary, the eight of Apryle in- lords commissioners of justiciary to continue stant, to answer for severall alleadged crymes the dyet in the criminal process against the pecontained in the dittay. But being furth of titioner, so ordor might be granted for stopping the kingdome, the tyme of the citatione, and any denunciation against him for not getting yet is, and in a very sickly and distrest condi- cautione, for appearance for some competent tione, and altogether unable to travell as is in- tyme, that he may be in a condition to provide structed by certificats, produced upon soull a cautioner, have thought fitt heirby of new and conscience, he cannot appear at the dyet again to recommend to the saids lords comto vindicat his innocency: And therfore, missioners of justiciary, to give order for stopbumblie supplicating, that the dyet might be ping any denunciation against the supplicant, deserted or continued to some competent tyme, for not getting of cautione for appearance for that be may be in a condition to appear. The some competent time, that he may be in a saids Lords doe referr it to the lords commis conditione to provide a cautioner, he being now sioners of justiciary, to grant the supplicant sick and furth of the kingdome, as was verified
The Justice-Clerk, as the style of his justice and his assessors to do in the case of the office indicates, was not originally one of the said George Graham according to law, projudges, but only clerk of the justice-court: the ceeds as follows; “ And fardir declaires, That earliest sellerupt of Justiciary, in which the the Lord Justice-Clerk is ane of the Judges of Dame of Justice-Clerk, as one of the judges the Justice Court, and has powar to sitt and voạtt of the court, is inserted, is that of December 1st therein, and that the said assessors have, lyke 1663; and the insertion of his name upon that as the council give powar, authority, and comoccasion seems to have taken place in obedience missione to them to meet, sitt, voatt, and deto an order of the privy council relative to the termine with the said Justice Clerk and Justice case of one George Graham. “ It may, how- Depute in the said mattir.” In this oblique ever, be conjectured (says Mr. Hume,) that and irregular manner, did the justice clerk enthis attempt thus indirectly to call the clerk of large, or transform the charter of his office; court from the table to the bencb, had met and obtain a seat and presidency in the court; with some resistance, or at least, was not re-" which were afterwards confirmed to bim, upon ceived without displeasure. For in the sede- the new establishment of the present judicarunt of the 10th of December 1663, there is ture in 1671." See the History of the Court produced a second act of council, dated the of the Justiciar in the first Volume of Mr. 8th of that month, which, after directing the Hume's Commentaries, Chap. 1.
by certificates produced upon soull and con- | act of his second parliament,* and be the ninth science.
act twelth parliament, king James the second, The lords of his majesties privie councill and ane hundreth and fourty fourt act tweltha baveing considered a Petitione presented by parliament king James the sixt.f It is statute George lord Melville, representing, that he being cited to appear before the lords com- Many of the antient Scois acts of parliamissioners of justiciary, this present day to ment are very concise. Of this 3d act of the answear for sererall alleadged crymes, but be- 1st parliament of king James 1st, the title and ing furth of the kingdome, the tyme of the enactment are as follows: citatione, and yet is, and in a very sickly con
• That na man rebell against the kingis ditione, and altogether unable to travel with
persane. out manifest hazard of bis life, as is instructed by certificats under the hands of phisitians • Item, It is statute and ordained, that sa from Rotterdam, produced upon soull and • man openlie or notourlie rebell against the conscience, be cannot compear at this dyet to kingis person, under the paine of forefaulting vindicate his innocency. And therefore, hum- of life, lands and gudes.' blie supplicating, that the dyet might be de
In like manner the title and enactment of his serted or continued to soine competent tyme; 37th act (the 12th act of his second parliament) that he may be in a condition to appear, and
is as follows: that warrand might be given for stopping any denunciatione against him, for not getting of Receepteres of Rebelles suld be forefaulted. caution for appearance for such a tyme as he may be in a conditione to provide a cautioner. man wiltullie sull receipt, mainteine, or do
• Item, It is decreeted and statute, that na The saids lords doe recommend to the lords
• favor to open and manifest rebellares against commissioners of justiciary, to continue the said dyet for some competent tyme, that the under the paine of forefaultour.'
• the kingis majestie, and the common law, petitioner may be in a conditione to appear, and to give order for stopping of any depun- + It appears that these references are not al.. ciatione against him, for not getting of cautione together correct. In the copy of “The Laws for appearance to some dyet, that he may be and Acts of Parliament made by King James ist in a condition to provide a cautioner.
and his Royal Successors Kings and Queen of
Scotland,” collected, &c. by sir Thomas MurCURIA JUSTICIARIE, S. D. N. Regis tenta in ray of Glendack, it is stated, that in the 124
prætorio Burgi de Edinburgh, octavo die parliament of king James the 2d, only eight mensis Aprilis, anno millesimo sexcen- to what is bere set forth. The 144th act of
acts were passed, and none of tbem has relation tesimo octuagesimo quarto, per nobilem et potentem Comitem, Jacobum Comi king James 6, (the 29th of bis 12th parliament,) tem de Perth, Justiciarium Generalem, et suld be modified by the Judges,” and it does
is intituled “ Damnage and Expences of Pley, honorabiles viros Dominos Jacobum Foulis not relate to the trial before us. It is probable de Collingtoune, Justiciariæ Clericum, that the act intended in the pleadings is the Johannem Lockart de Castlehill, Davidem Balfour de Forret, Rogerum Hog king James the 6th. It is as follows. “ For
next but one of this same 12 parliament of medden, et Patricium Lyon de Carss,* punishment of the receptors of traytoures and Commissionarios Justiciariæ dicti S. D. N. soveraine lord, with advice of bis estates in this
rebelles. It is statute and ordained by our Regis.
present parliament: that all former lawes and Curia legitime affirmata.
acts of parliament, maid of before, against the
receipters of traitoures and rebellis, and punishThe said day anent our Sovereigne Lord's ment of them qubilk contemnandly remaines 'at Criminall Letters of Treason, raised, used and the horne, šall be put to dew execution in all execute at the instance of sir George M.Ken- pointes. And specially quhair ever opy dezie of Rosehaugh, his majesties Advocat, for clared traytoures, or rebelles, repairs in ony his highnes intrest against James earle of Lou- parte of this realme, nane of our soveraine doun, George lord Melville, sir John Cochran, Iordis leiges-sall presume to receipt, supply or of Ochiltree, and John Cochran, of Watersyde, enter-commoun with them: or to give them bis sone, maken mention, that wher notwith meate, drinke, house, barbery or any relief or standing be the third act of the first parliament comfort, under the same paine, for whilk they of king James the first, and thretty seventh are foretaulted, or put to the horne: and that
immediatily upon knawledge of their repair* This sir Patrick Lyon of Carss, lord ing in the bounds, that all his hienesses obedient Hailes (note 82 to his Catalogue of the Lords of subjects doe their exact diligence at the utterSession 4to. 1767,) says “ had been a professor maist of their power, in searching, seeking, of philosophy in the Old College of St. Andrew's taking and apprehending of the said declared and afterwards admirat-depute. He drew up traitours and rebelles, and presenting of them the Decisions of the court of session from No- to justice, or in following of them qubill they vember 1682 Jaly to 1687."
be taken or expelled, and put foorth of the
and ordained that no man openly nor notourly , under the same paine for whilk they are forrebell against the king's person or authority or faulted and put io the horne, and that immemake warr against the king's leidges, and that diately upon knowledge of their repairing in wher any declared rebells and traitors repaires the bounds, all bis majesties obedient subjects in any part of this realme, none of his majes. Joe their exact diligence at the outmost of their ties leidges shall presume to recept, supply or power in searching, seeking, taking and appreintercomon with them, or give them any meat, hending the saids traitors and rebells and predrink, house, barbour, or any releiff or comfort senting them to justice, or in following of them
till they be taken and expelled and put out of schire, and immediately to make intimation to the shyre, and immediately that they make in-. the magistrates and persones of power and au- timation to the magistrates and persons of thority in the nixt schire : quhilk sall be power and authority in the nixt shyre, who baiden to do the like exact diligence without shall be holden to do the lyke diligence withdelay, and sa tra schire to schire, quhill they out delay, and sua from stiyre to shyre, wbile be apprehended and brocht to justice, or ex- they be apprehended and brought to justice, or pelled and put foorth of the realme. And fur- expelled and put furth of the realme. And ther, quhen ever ony maner of tratoures, re- furder when any manner of traitors and rebells bellis or unknawin men, vagaboundes, hapo happens to repair in the country, all bis mapenis to repair in the country, all bis heinesses jesties liedges knowing them or amongst whom leiges knawing them, or amangst quhom they they resori, shall with all possible speed certify resort, sall wity all possible speede certifie bis the king's majesty or some of his privy coupcili, majesty or same of bis secreit councell or sum or some of the chief persons of authority and of the chiefe persons of authority and credite, credit, dwelling within the same shyre, that dwelling within the same schire. That sick per- sick persons (if they be known) are within sones (gif they be knaweu) are within the same, the same, and if they be unknown showing and if they be unknawen schawand their takens, their tockens under the paine that the traitors and for what cause they pretend themselves to be and rebells ouglit to have sustaived in bodyes wandering athort the country or lurking in ony or goods themselves in case they bad been appart: under the paine, that the traytoures, re- prehended presented, and convict be justice. belles and vagabouodes, aucht to have susteined And be the foarteenth * act sixt parliament king in bodies or goldes themselves, in case they James the second, It is declared, that all whu had been apprehended, presented and convicted shall recept such as are justified for crymes if be justice."
the cryme be notour and the trespasser convict The acts against treason, and rebellion or declared guilty and ordained to be punished passed in the reign of king James 2d of Scot. as the principall irespasser. And be the nyntie land, are sixth parliament act 3d, (the 14th of seventh act seventh parliament king James the his reign,) “ That nane rehell against the kingis flytt, All sherreffs, bailzies and others are orperson nor his authoritie: Item it is ordained, dained to dne diligence to apprehend all rebells ihat nane rebell against the kingis person who are at the horne for capitall crywes, and nor bis authoritie : and quba sa makis sick that no man willtully or wittingly recept, suprebellion, to be punished after the qualitie and ply, maintaine, detend, or doe favour to any of quantitie of sick rebellion be the advice of the the king's rebells, and being at the borne with three estaites. And gif it happens ony within in their houses, bounds, lands and bailzaries the realme openly or notourly to rebeli against under the paine of death and confiscation of the king, or makis weir against the kingis moveables. And by the fyti act first session of leiges against his forbiddiy, in that case the his majesty's first parliament, it is declarking to gang upon them with assistance of the ed that it shall be high treason for the subhaill lands and to punish them, after the quan- jects of tbis realme, or any number of them titie of the trespasse.” The 13th or 141b (tor as more or less upon any ground or pretext whatto this there seems to be some confusiun) act somever, to rise or continue in arines, to make of same parliament (the 24th or 25th acts of peace or warre without bis majesties speciall bis reign) is as follows: “Sundrie poyntes of authority and approbation, first interponed treason. Item it is statute and ordained, that thereto. And be the first act eighteintb parliagif ony man, as Good forbid, committe or doment king James the sixt, The estates of partreason against the kingis person or his majes- liament faithfully promise perpetually to obey, tie, or risis in feire of weir against him, or maintaine and defend the prerogative royall of layes handes upon his person violentlie, quhat bis sacred majesty, bis airs and successors, and age the king be of, zoung or auld, or receptis priviledges of his highnes crown, with their ony that hes committed treason, or that sap- lives, lands and goods. And be the second act plies them in belpe, redde or councell, or that second session of his majesties first parliament, stuffis the houses of them that are convict of it is statute and ordained, that if any persone treason, and baldis them against the king, or or persons, sball hereafter piott conuyve or inthat stuffis houses of their ain in furthering of tend death or destruction to his majesty, or any the kingis rebelles, or that assabries, castiles or bodily harni tending to death or destruction, or places wbere the kings person sall bappen to be, without the consent of the tbree estates, sall * This seems rather to be the 15th act of be punished as traitoureș."
king James 2d, though it is not recited exactly VOL. X,
any restraint upon his royall person, or to de- | bishop of St. Andrews,* they fed into the Pryve, depose or suspend him from the style, western shyres, and their rose in open rebellion honour, or kingly name of the imperiall crowne with nyne or ten thousand their accomplices, of this realme, or any others bis dominions, or under the command of Robert Hamiltoun, to suspend him from the exercise of his royall brother to the laird of Prestoun, burnt his magovernment, or to levie warre or take up armes jesties lawes at the mercat crose of Rutherglen, against bis majesiy, or any commissionat by up so the twenty nyoth day of the said monetha him, or shall intyse any strangers to invade of May, drownell out bontyres set on in comany of bis dominions, and shall by wryting, memoration of bis majesties happy restauprinting, or other malicious and advised speak ration: Issued furth treasonable proclamations ing, express and declare such their treasonable and declarations, and upon the Sabbath day jotentious alter such person or persons being theraiter, did assandt, resist, fight, and oppose a upon suficient probation legally convict therot, party of' bis majesties forces at Drumclog, shall be doomed, declared and adjudged trai- killed and murthered severalls of them. Thertors, and shall sutter fin faulture of lyse, ho- atier attacqued and assaulted the city of Glasnour, laws and goods, as in the cases of trea- gow, and his majesties forces therin, rende
And be the bandreth and twenty nynih vouzed, exercised, and formell themselves in act ciglit parliament king James the sixt, the ane army. Appoynted officers and commanders royall power and authority in the persone of over them, keep'd councilies of warre, plunthe king's majestie, his airs and lawfuli suc- dered, robbed, and riffled the goods, horses, cessors over all states as well spirituall as tem- and armes of his majesties dutietull and loyali poral, within this realme, is ratitiei, approven | subjects, and continued in open, avowed and and prpetually confirmed. And it is statute desperat rebellion, committing all acts of hosthat his highnes, his airs and lawfull successors, tility and bigh treasone, till the twenty second be themselves and tijer council are and shall of the said moneth of June, that they were debe judges competent to all persons bis sub- fate by his majesties forces, the said sir John jects of whatsomever estaie or degree, function Cochran was actor art and part of the said reor condition, and that none of them shall pre- bellion, and the other treasonable crymes above sume to declyne liis judgment, his airs and mentioned, in sua tarr as Mr. William Gilchrist, successors, or his councill under the paine of sone to William Gilchrist, in Ochiltree, who treason. And be the eleventh act of the first was a pretended preacher, and frequented session of bis majesties second parliament * it house and field conventicles, a common and is statute and ordained, that in tyme coming in notorious traitor and rebell, who was actually all cases of treasonable rysing in armes, and in the said rebellion, having therafter returned, open and manifest rebellion, against his ma- was recept, barboured, conversed and intercomjesty, bis advocat for the tywe may, and ought moned with by the said sir John Cochran in to insist against, and prosecute such persons as bis house of Ochiltree, and several other places, he shall be ordered by his majesty or his privy gott lodging, meat, drink, and was otherwayes councill to persue, aud if they be cited, and doe supplied and comforted by him. And being not appear, the justices, notwithstanding of their imployed by Mr. Robert Miller indulged miabsence, may and ought to proceed, (if they be nister at Ochiltrie, after the said rebellion to cited and doe not appear) to consider and give preach at Ocbilirie, although the said sir Joha their interloquitor upon the lybell and upon the knew him to be a notorious traitor and rebell, verdict of the inquest, finding the same to be yet he and his family heard bim preach, and proven, the doom and sentence of forfaulture therafter recept him in ins house, intertained, ought to be given and pronounced, in the saine and lodged bin, suffered him to pray, and exmanner as if they wer present and compeir-ercise therin. And in the monetli of April jug. Nevertheless it is of verity that the or May 1082 vears, the said sir John having said James earle of Lowdoun, George lord gone to England, he carryed the said rebell Melvill, sir. John Cochran of Ochiltrie, and from his own house alongst with him. And John Cochran of Watersyde his sone, shacking sicklyke the said sir John Cochran did upon ott all fear of God, respect and regard to his the
days of January, February, majesties authoritie and lawes, have presumed &c. 1082 years, or ane or other of the dayes of to coinmiti, and are guilty of the said crymes, the saids moneths of the said year, did treasonin sua farr as John Baltour of Kinloch, the de- abiy harbour and recept Master James Brown, ceast David lackstoup of Rathillet and others, ane open and manifest rebell and traitor, who having upon the third day of Nay, 1679 years, was actually in the said rebellion, and conkilled and murthered his grace the late arch- veyed him off the countrey, of purpose to evite
the strock of justice to himn hy law, and lyke* In sir Thomas Murray's Laws and Acts, weyes did harbour aud recept on his grounds only one session is noticed of this second par. and lands as his tennents, and receaved meali Jiament of king James Cth. In that session and duety froin Andrew Paterson in Ochilonly ten acis there appear to have been passed, trie, Charles Colvil youoger in Townhead, none of which has any relation to this matter. The 11th act of the 1st session of the second * See the Cases of James Mitchel, vol. 6, parliament of Charles 3, is concerning the ex. p. 1207; and of David Hackstoun, laird of sise and customs.
Rathiliei, p. 791, of this volume,
James Jobostoun sone to John Johnstoun in and practices of rebellion in these parts, did Ochiltrie, David Dune in Closs, Peter Mur- canse John Campbell, aus Boltifoot, his offidoch near the Kirk of Ochiltrie, common and cer, call and conveen his wholl tennents togenotorious rebells and traitors, who were ac-ther within the Closs of Lou-loun, who having tually in the rebellion, and were his tenents accordingly mett, the said John Campbell ex both before and after the rebellion. And also acted two merks Scots from each persone,
for the said John Cochran of Watersyde, was ac- subscrybing the forsaid bond. And the said tually in armes with the saids rebells at their John Campbell with the assistance of Andrew rendevouze at Cumnock, and particularly upon Mc'Rossey, Nottar, did most fraudulently and the
day of June the said year, the falsly by himself subscrybe a pretended bond sajd John Cochran did associat himself to the in name of many persons, severalls wherof laird of Barscobb and a party of the saids rebells, being conveened before major Whytt and consisting of ffyve or six hundreth, and being others commissionat by the councill, and intermounted on horseback, in armes rod with and rogat anent the subscribing thereof, they acamongst them, as one of their commanders, knowledged and confest that they never subrendivouzed and exercised with them, and he scrybed the same, all which was done and perwas so farr accessorie to the said rebellion, that petrat by the direction, advyce, and assistance be persuaded severall persons who were there of the said earle of Loudoun, and the said John to go alongst with the rebells, and joyne with Campbell bis officer being conscious of the them in their rebellious courses and practices, truth and veritie of the premises, fled immeand therefter he supplyed them with wyne and diatly over to Ireland. Lykeas the said lord other provisions, out of his father's house in Melvill is guilty of and accessory to the said Ochiltric, and intertained Master John Welsh rebellion, in sua farr as bis majesties forces and others thereat. And since he came to the having marched in the said moneth of June world, and to any knowledge, he has vented 1079, to the Westerne countrey, for subdueing and practised rebellious and seditious principles, of the rebells then in armes. And the said and practices. And sicklyke the said James lord Melvill being with bis majesties forces at earle of Loudoun and severall other disloyall the tyme, and with as much outward zeal and disaffected gentlemen and preachers mett professing bis earnestness to overthrow and together at Teinpleholme at the Watersyd subdue the saids rebells as the best of his near Galstoune, at Kilmarnock, the place of majesties subjects, yet be most perfidiously Loudoun and other places, and at the Kirk of and treasonably, expresly contrair to his alGalstoune, at the buriall of the deceist George leadgence and loyalty, religion and duty, dared Campbell, a captaive of the rebells, upon the and presumed to intercommon and correspond first, second, third, or ane or other of the dayes with the saids rebells, and to keep inteligence of the moneth of June, 1679 years. And with them, and send commissioners to them, there treated, consulted, and advysed anent the and particularly upon the twenty one day of carrying on of the said rebellion, and aiding June, the night before the rebells were defate and assisting the saids rebells, and in order at Bothwelbridge, the said lord Melvill did thereto he did furnish severall with horses and send and dispatch John Millar of Waterhaugh armes to goe to the said rebellion, and har from his majesty's camp, to Mr. John Welsh boured, intertained, corresponded, and con- and others, the ringleaders and commanders of versed with severall declared traitors and the saids rebells, with letters and written com. fugitives for treason, and who continued in missions, at least verball orders, giving them armes after the said rebellion for severall years, ane accompt of the strength and number of his murdering and killing severall of bis majesties majesties forces, and of their resolutions, and souldiers; and particularly John Nisbet of severall other things tending to the prejudice of Hardhill, a declared traitor, and severall other | bis majesties government, and the sirengtbring declared rebells and fugitives for rebellion and fortifieing of the rebells, and which comupon the ground of bis lands and as domesticks missioner of his accordingly arryved in ther in his own house and fanily, and otherwayes camp, and delivered the saids letters and comaided, conversed with, and assisted tliem. And missions to Mr. John Welsh and others, the his Majesty in the said year 1679, having by ringleaders of the said rebellion, and receaved his gratious proclamation allowed that all com- such returns as the said rebells thought filt to mons who had bein in the said rebellion should send to him upon the said occasion. And in betwixt and the tyme thereby prefixt, signe and lyke manner ther being a dreadfall conspracy, subscribe a bond * not to rise in armes against and plot entered into by the late earle of hini, and that before such commissioners as Shaftsbury, and after bis deceiss carryed on hy the council did appoynt within the respective a pretendit councill of state, vizt. by the duke shyres. And the earle of Glencarne being ap- of Munmouth, the earle of Essex, the lord! poynted to receave the bonds sua signed within Russill, Algernoon Sidney, Mr. Hamden, avd the shyre of Ayre, the said earle of Loudoun severall others. They, for strengthening of designing to frustrate his majesties gracious their rebellious faction, resolved to draw in proclamation, and to continue the principles some discontented persons within his majesties
kingdome of Scotland, and, in order thereto, * As to this, see the Case of John Spreul, at they did transact with the late earle of Arp. 725, of this Volume.
gyle for raising ten thousand men, with which