983] STATE TRIALS, 36 CHARLES II. 1684.-Proceedings against scended on, for that only arises from the pro- [984 dence, which overrules all from above, snatched the prey out of their teeth at this time: for the witnesses, who were so well prepared, and had so oft renewed their lesson, and got it inculcated, (having twice deponed on the individual to encourage them to go back to the rebel specific expressions that Cesnock used to them, army,) when it came to the push, by a mirafurd, did not remember that Česnock had any culous consternation, both Ingram and Crawsuch expressions to them, as were libelled; either reproving them for leaving the Westland army, or bidding them return, and that &c. Upon this the mobile in the Court gave a ere long they should not want help tor heads, great shout; at which the king's advocate and justice-general stormed, and said these were very disloyal and indecent acclamations the like whereof had never been seen in Scotland, but was Shaftsbury's way in England in carrying on his business with the ignoramus juries, and to dash, terrify, and confound the king's evidences and witnesses. The king's advo. cate pressing Ingram twice or thrice to give categoric answers to the expressions, Alexander Nisbet of Craigintinny, sir Patric Maxwell of Sprinkell, Somervell of Drum, and others of the assize, complained why such pains should be taken to wring and elicite a testimony, when he had so often already told that he did not remember the expressions; and they being reproved for meddling too much, boldly replied, that the probation concerned them and their consciences, to see it was fair and equal. Cesnock himself objected against Daniel Crawfurd, that his name was not given him up in the list of the witnesses, conform to the last article of the act of parliament regulating the Justice Court in 1672, but one Daniel Carmichell. "The Criminal Lords, after a long debate among themselves, did repel the three first objections made against Ingram; and before answer to the two last, viz. the enmity, and subornation, (the first act before answer, I think, that was made in our Criminal Court, where always the relevancy must be discussed,) declared, that they would hear our witnesses for the pannel, to prove these two last objections, if they spoke probable and consistent things, or if they were but seduced to help Cesnock at this dead-lift, (as they jealoused,) and only to disparage the king's evidences:---And though at first they agreed to examine them on oath, yet they would now only hear their declarations, not upon oath; and, albeit all pains were taken to expiscate circumstances, to cause them vary and titubate, yet Herries and Goudy declared positively, they heard Ingram threaten Cesnock an ill turn, if it were out of hell: but being examined separatim, in regard they discorded in some circumstances that were not material to the dictum testis, the main part of the testimony, as the hour of the day, and place of the house where they heard it, &c. The Justice-general rejected them; though Mas card. conclus. 1180 voce Pluralitas, gives an easy rule for reconciling such seeming discrepances inter testes. Then the witnesses, about the subornation, were adduced, who proved against Hugh Wallace, Cragie's chamberlain, his drinking with them till they were drunk, with other sneaking practices, but nothing of bribery directly; because the justices would neither grant a safe conduct to bring in a fugi- because the king's advocate had threatened in tive rebel, viz. one Adam Miller, to be a wit- the beginning to continue the diet against Yet he was received; ness for the pannel, the Court never having Cesnock for two weeks, if he did not pass allowed that practice; nor permit witnesses to from that objection, which had only happened be examined anent tampering with the said through mistake; in which case, all Cesnock's Adam, he being none of the witnesses adduced witnesses, for proving his exculpation, would for the king and it being complained, that the have gone home, he having detained them so guards drunk with the two witnesses led against long in the town from their labouring and Česnock; and though sometimes in vino ve- sowing, with a great deal of difficulty and exritas, yet men are very unfit to depone when pence; and therefore Cesnock's lawyers passed drunk; it was denied, that any such thing from it. But he alledged, that their renunwas allowed; and prohibit to be done for the ciation of it could not prejudge him; yet he future. And the witnesses were ordained to could not reclaim, for they had his warrant for be kept separate, that they might not compare it. The king's advocate alledged against senotes together, nor know what another said. veral of Cesnock's witnesses, that they could I remember Masuerius requires, ut testes de- not be received; because either they were not 6 ponant jejuni.' vious trial taken upon the two objections against nock's tenants, or were not right designed, &c. However, after all this pre- given him in list debito tempore, or were CesIngram and Crawfurd, of malice and corrup--When his own witnesses failed, he fell into a tion, the justices found no sufficient matter to repel them; and therefore ordained them to be received.-Cesnock's advocates protested for a reprobator of their testimonies, which is not usual in criminals. "This was now about 11 o'clock at night, and when the king's advocate and that party thought all was fixed and sure, the Divine Provi great impatience, alledging that this would encourage all rebellion hereafter; for the king and the country should never get witnesses to prove treason in the West; because the Westconceal the discovery of treason. Although land people thought it no sin upon oath to in law, his two witnesses could not be overtaken on perjury, because their former depo sitions were cancelled; and it was declared, to put them in freedom, that whatever they said now, the first should never meet them, yet in foro poli, and before God, they are guilty of gross perjury, and deserve to be declared infamons; for one of their two contradictory depositions is certainly false. Cesnock said three things co-operated to the staging him; 1. His sirname of Campbell, for his chief Argyle's sake. 2. His persuasion, as being repute a strict Presbyterian. 3. his estate: but, in this last, it was alledged they were mistaken, not knowing he was denuded of the fee of all (save 3000 merks) in favours of his eldest son, by his contract of marriage, and which was confirmed long before emitting the treasonable words. It was observed both the factions concurred against him. "The assize having inclosed near one o'clock in the morning, they in a short time cleansed him, and brought him out not guilty, there being no probation against him. Yet he was remanded to prison, because the Duke of York had a very bad opinion of him, and sus pected he was upon the late English fanatic plot which broke out in June 1683; on the jealousy whereof, he had been apprehended, and imprisoned at London, and he, the lord Melvil, sir John Cochrane, &c. were branded as being come then to London to join with the English rebels; but as they could make nothing of this out upon Cesnock, so it was not so much as touched or insert in his eriminal libel, as an aggravation or presumption to inforce a credibility of his guilt in uttering these expressions; and really they who knew how cautious and prudent a man he was, were satisfied with the event; for they could never obtain from themselves a belief, that so foolish and insignificant a thing could escape him, as to give such treasonable counsel to three mean fellows accidentally on the high way; whereas (if he had been inclined) he could have done that party more effectual service another way. But they having strong suspicions of his guilt, and hoping to reach him on some other head, did still detain him prisoner. "This trial lasted longer than Argyle's, Blackwood's, Mr. James Mitchel's, or any since the king's Restoration; for it took up a day and three full afternoons. It was not so much as proven that the persons with whom he was alledged to have spoke, at Galston bridge, were or had been in the rebellion; and the king's advocate adduced no probation anent the harbouring contained in the second additional libel; and he passed from the third indictment, of his dissuading his tenants in Balgray from taking the bond, and his being at the burial of one captain Campbell a rebel, who was drowned in the water of Irvine. They were so enraged, that they brought the two witnesses who had failed them, out of the castle, and put them in irons in the Tolbooth of Edinburgh; and alledged Cesnock's friends had corrupted them to go back from what they had so clearly deponed formerly. The king's advocate threatened he would pursue Craigintinny and some of the assizers, as guilty of a riot in carrying themselves tomultuously at the trial, by disturbing the Court, and dashing and confounding the king's evidences; but they deny any thing wherein they exceeded their duty. This disappointment drove them to great extremities, for it was reported, that Perth and the Treasurer-depute his brother had assured the king, and duchess of Portsmouth, that they had sufficient grounds whereon to forfeit Cesnock, and that one of her sons by the king was to get the gift of his forefeiture; and they did not think that he was denuded of so much in favours of his son. Others said, the earl of Dumbarton was to get a part of his forfeiture. "On the 3d April 1684, they brought down the two witnesses, Crawfurd and Ingram, to a privy council held in the Abbay, and there they abode positively at what they first deponed of his guilt; and being asked why they resiled at the barr, answered, that they were dashed, confounded and nipped, every one murmuring in their ear, "what, will you by your swearing take the honest old man's life ?" This declaration was given after they were kept five days in the irons. Then the council gave order to raise a libel against Alexander Nisbet of Craigintinny, sir Patric Maxwell of Sprinkell, and Somervell of Drum, three of the assizers, for their misbehaviour; and named a committee to revise the debate made by Cesnock's lawyers, and to excerpt if there were any treasonable, indecent or dangerous expressions in it; and the justice-general caused raze out the latter part of the interlocutor sustaining the second additional libel anent his resetting rebels, as an aggravation; and did insert a declaration of the king's advocate's just before the interlocutor, that he passed from the second and third additional indictments, only pro loco et tempore.' This alteration was said to be made contrary to what was truly done; that they might yet raise a new indictment against Cesnock for these things, as if it had not been tried already; to the effect, by this or some other means, they may get him yet forfeited, if possible. "It was expected that sir George Lockhart, and the king's advocate should have debated this point, that the pannel's running to the act of indemnity was an acknowledging of the crime, like the using a private remission; but it would seem they did not think this argument tenable in law, and so did not urge it; and the king's advocate's own opinion is contrary, both in his Criminals and in his Institutions." "June 4, 1684. At Privy Council, Sir Patrick Maxwell of Sprinkell, Ålexander Nisbet of Craigintinny, and Hugh Somervell of Drum, are pursued by his majesty's advocate for a riot, in disturbing and interrupting the court in Cesnock's trial, and for confounding and dashing the witnesses in their deponing, and making a noise and confusion in the court, contrary to the honour and gravity thereof. Alledged for them, that assizers are judges to the probation; and by the 90th and 91st acts of parliament 1587, ad informandum suam conscientiam,' they may ask questions at the witnesses, or lords, for clearing dubious points; and all they did was, the witnesses having twice or thrice upon oath declared that they had no more to say, and remembered no more, they thought it was not fit to press or urge them any farther. The king's advocate alledged, the witnesses only opposed and demurred a little, being dashed; and in that case the Justice General might very lawfully interrogate them further, what they knew more; and that these West-land witnesses are loth to tell the truth against rebels, till they be pressed to it; and the assizers exceeded their duty in offering to stop this expiscation, and attempting to teach the justices their duty; and they gave occasion to an irregular and tumultuary noise that was raised in the court. The council repelled the defences; and admitted the libel to probation; and the criminal lords were led to be witnesses of it; at which they were very ill pleased. All this was done to palliate the affront they had suffered by the witnesses miscarrying; and some said, if assizers were thus used, it would make their office very troublesome, and very few would serve in that capacity." "April 17, 1684. Hugh Wallace, servitor to sir William Wallace of Cragie, pursues Hugh Campbell, Cesnock's son, and Mr. Hugh Archibald Agent, for calumny and defamation of him, in alledging he had tampered to corrupt and seduce the witnesses against Cesnock. The defence by way of reconvention was, 1st, That the condescending on him in the criminal court as the practicer of the witnesses was necessary, being forced thereto by the Justice General, who repelled the objections of subornation otherwise proponed in general. 2dly, They had probable grounds to think he had been over active, for some of Cesnock's witnesses deponed that he had drunk with them, and given one of them a little money, and pumped what they could say against Cesnock and 'quævis probabilis causa excusat a ca'lumnia.' The lords found both the libel and reconvention relevant; and admitted both to probation." elder and younger, are liberate out of prison, on “August 6, 1685. Campbel of Cesnock, but nothing reserved to them or their creditors a remission by his majesty for their lives only, of their fortunes; only they had Queensberry the commissioner's promise of some small allowance out of their estate." "October 4, 1685. There arrived two letters from the King to his privy council, the first anent the two Cesnocks, ordaining them (though liberate) to be reimprisoned in the Bass, notwithstanding the remission given them, which was only for their life because sir John Cochran had deponed on their deep guilt, though they with great confidence always denied it. Quæritur, How far the remission should protect them from perpetual imprisonment, this being no new crime. They were liberate upon another letter from his Majesty in January 1686." "By the written Minutes before me of this Sederunt, I find that Cesnock's bill for exculpation, was this day, May 1, [1685] before the Lords of the Articles, consisting of his defences, that he was alibi, that such as he had conversed with who were at Bothwell, had taken the bond, that his case was res hactenus judicata,' and an enumeration of the steps of his loyalty, but the short hints before me do not bear what was done about it. We shall find him afterwards forfeited." 2 Wodrow. 519. I have not been able to discover any record of this proceeding before the Lords of Articles. 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.] Dumfreise. Southesque. Panmuir. Justice Clerk. * Sir George Monro. Claverhouse. THE Lords of his Majesties privie councill having considered a Petition, presented by the earle of Loudoun, representing, that he being cited to appear before the lords commissioners of justiciary, the eight of Apryle instant, to answer for severall alleadged crymes contained in the dittay. But being furth of the kingdome, the tyme of the citatione, and yet is, and in a very sickly and distrest conditione, and altogether unable to travell as is instructed by certificats, produced upon soull and conscience, he cannot appear at the dyet to vindicat his innocency. And therfore, bumblie supplicating, that the dyet might be deserted or continued to some competent tyme, that he may be in a condition to appear. The saids Lords doe referr it to the lords commissioners of justiciary, to grant the supplicant The Justice-Clerk, as the style of his office indicates, was not originally one of the judges, but only clerk of the justice-court: the earliest sederunt of Justiciary, in which the name of Justice-Clerk, as one of the judges of the court, is inserted, is that of December 1st 1663; and the insertion of his name upon that occasion seems to have taken place in obedience to an order of the privy council relative to the case of one George Graham. "It may, however, be conjectured (says Mr. Hume,) that this attempt thus indirectly to call the clerk of court from the table to the bench, had met with some resistance, or at least, was not received without displeasure. For in the sederunt of the 10th of December 1663, there is produced a second act of council, dated the 8th of that month, which, after directing the Chancellor. Glasgow. Sederunt, Kintour. Theasurer Principal. Hamilton. Dowgle. M core. Erro Marisshall. Linlithgow. Perth. Panmuir. Tweeddale. Belcarres. Livingstoun. Kinnaird. General Dalyell. President of Session. Theasurer Deput. Register. Advocat. Justice Clerk. Castlehill. Gosfoord. The Lords of his Majesties privie councill, haveing considered ane Addresse made by James earle of Loudoun, supplicating, That as the councill upon a former petitione, had for the reasons therein contained, recommended to the lords commissioners of justiciary to continue the dyet in the criminall process against the petitioner, so ordor might be granted for stopping any denunciation against him for not getting cautione, for appearance for some competent tyme, that he may be in a condition to provide a cautioner, have thought fitt heirby of new again to recommend to the saids lords commissioners of justiciary, to give order for stopping any denunciation against the supplicant, for not getting of cautione for appearance for some competent time, that he may be in a conditione to provide a cautioner, he being now sick and furth of the kingdome, as was verified justice and his assessors to do in the case of the said George Graham according to law, proceeds as follows; " And fardir declaires, That the Lord Justice-Clerk is ane of the Judges of the Justice Court, and has powar to sitt and voatt therein, and that the said assessors have, lyke as the council give powar, authority, and commissione to them to meet, sitt, voatt, and determine with the said Justice Clerk and Justice Depute in the said mattir." In this oblique and irregular manner, did the justice clerk enlarge, or transform the charter of his office; and obtain a seat and presidency in the court; which were afterwards confirmed to him, upon the new establishment of the present judicature in 1671." See the History of the Court of the Justiciar in the first Volume of Mr. Hume's Commentaries, Chap. 1. 991] STATE TRIALS, 36 CHARLES II. 1684.-Proceedings against by certificates produced upon soull and con- The lords of his majesties privie councill CURIA JUSTICIARIE, S. D. N. Regis tenta in prætorio Burgi de Edinburgh, octavo die mensis Aprilis, anno millesimo sexcentesimo octuagesimo quarto, per nobilem et potentem Comitem, Jacobum Comitem de Perth, Justiciarium Generalem, et honorabiles viros Dominos Jacobum Foulis de Collingtoune, Justiciariæ Clericum, Johannem Lockart de Castlehill, Davidem Balfour de Forret, Rogerum Hog de Harcarss, Alexandrum Seton de Pit medden, et Patricium Lyon de Carss,* Commissionarios Justiciariæ dicti S. D. N. Regis. Curia legitime affirmata. [992 | act of his second parliament,* and be the ninth and ane hundreth and fourty fourt act twelth act twelth parliament, king Jamnes the second, parliament king James the sixt.+ It is statute ment are very concise. Of this 3d act of the Many of the antient Scots acts of parlia1st parliament of king James 1st, the title and enactment are as follows: That na man rebell against the kingis 'persane. man openlie or notourlie rebell against the 37th act (the 12th act of his second parliament) Receepteres of Rebelles suld be forefaulted. man wilfullie sull receipt, mainteine, or do together correct. In the copy of "The Laws king James 6, (the 29th of bis 12th parliament,) rebelles. The said day anent our Sovereigne Lord's Criminall Letters of Treason, raised, used and execute at the instance of sir George M Ken-pointes. zie of Rosehaugh, his majesties Advocat, for clared traytoures, or rebelles, repairs in ony And specially quhair ever ony dehis highnes intrest against James earle of Lou- parte of this realme, nane of our soveraine doun, George lord Melville, sir John Cochran, lordis leiges-sall presume to receipt, supply or of Ochiltree, and John Cochran, of Watersyde, enter-commoun with them: or to give them his sone, maken mention, that wher notwith-meate, drinke, house, harbery 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 forefaulted, or put to the horne: and that *This sir Patrick Lyon of Carss, lording in the bounds, that all his hienesses obedient immediatily upon knawledge of their repairHailes (note 82 to his Catalogue of the Lords of Session 4to. 1767,) says " had been a professor of philosophy in the Old College of St. Andrew's and afterwards admiral-depute. He drew up the Decisions of the court of session from NoTember 1682 July to 1687." subjects doe their exact diligence at the utter- |