words 'do or die,' by my lord advocate's declaration, it is but concilium perniciosum.' And that it is not mendacium,' neither can it be made nor interpreted mendacium,' by any probability or sense, and no malicious council, as is alledged against the pannel; considering the pannel's declared intent, and the lord Rea's before-mentioned examination, wherein it is called a danger, so not a lie,' and therefore not rightly subsumed.

My Lord Advocate repeats his former replies and triples, and desires my Lord Justice to close this process, so that there be no further dispensation or reasoning herein, till anent the relevance or irrelevance of the indictment. The Justice by Interloquitor declares the process to be closed; and continues Interloquitor upon the alledgeances proponed by the pannel against the dirtay, and answers made thereto by his majesty's advocate, to Wednesday next, the seventh of December instant; the persons of assize warned apud acta, to compear the said day in the hour of cause, ilk person under the pain of 1,000 marks. And ordained the pannel to be returned to ward, therein to remain in the mean time: whereupon my Lord Advocate asked instruments.

Curia Justiciaria S. D. N. Regis tent' in prætorio burgi de Edinburgh, septimo die mensis Decembris, anno Dom. millesimo, sexcentesimo, trigesimo primo, per honorabiles et discretos viros, magistros Alexandrum Colville de Blair, et Jacobum Robertoun Advocatum, Justiciarios deputatos nobilis et potentis comitis Willielmi comitis de Stratherne et Menteith, dom. Graham, Kilbryde, et Kynpont, et Præsidis secreti Concilio et Justiciarii generalis dict. S. D. N. Regis totius regni sui Scotia, ubilibet constitut. sectis vocatis et Curia legitime affirmata. Intran'

James lord Uchiltrie, delated of the crimes foresaid, mentioned in his indictment.

Whereanent the extract of this act shall be unto them a warrant, extractum de libris ac'torum secreti consilii S. D. N. Regis, per me Jacobum Prymrose clericum ejusdem, sub meis signo et subscriptione manualibus, sic subscribitur Jacobus Prymrose. According to the which Act of Council, warrant and command aforesaid, therein contained, the Justice continues all further trial and proceeding against the said James lord Uchiltrie, upon the crimes aforesaid, unto the said 1st day of February next to come: and ordained him to be taken back again to his ward, therein to remain in sure firmance, till the said day. The whole persons of assize, called upon by their names, are of new warned, apud acta, to compear be fore his majesty's justice, the said 1st day of February next to come, in the hour of cause; ilk person under the pain of 1,000 marks. Whereupon my Lord Advocate asked instru

ments.

Extractum de libris actorum adjournalis S. D. N. Regis, per me Johannem Bannatyne, Clericum deputatum honorabilis viri, dom. Georgii Elphingston de Blythiswood, militis, Clerici Justiciarii principalis dicti S. D. N. Regis, et dictorum Curiarum, Testan. his meo signo et subscriptione manualibus. Sic subscribitur, JOHANNIS BANNATYNE Clericus deputatus Clerici Justiciaria Generalis S. D. N. Regis, Testan. his meis signo et subscriptione.

The lord Uchiltrie, appearing on the said 1st of February, was sentenced to perpetual Impri

sonment.

:

*

"The lord Uchiltrie, a man of a subtil spirit and good parts, had not those endowments of his mind been stained with some ill qualities his malice against the marquis of Hamil ton was hereditary, he being the son of capt. James Stewart, who in king James's minority, when the Hamiltons were groundlessly and in a mock parliament attainted, carried the title of earl of Arran, and possessed their fortunes." Burnet's Memoirs of the dukes of Hamilton, Prolocutors in Defence.-Mr.Robert Nairne, p. 11, and 12. where he relates the whole buMr. Alexander Pierson, Gilbert Neilson, Ad-siness; and p. 12, says, "This was a calumny,

Pursuer. Sir Thomas Hope of Craighall, knight and baronet; his majesty's advocate for his highness's entries.

vocates.

The lord Uchiltrie being entered upon pannel, produced to my Lord Justice, an Act of the lords of his majesty's secret Council, for continuation of this Diet, and of all further trial or proceeding against him, for the crimes contained in his Dittay, to the first day of February next to come; of the whilk act of council the tenor follows: Apud Halyrudhouse sexto die mensis Decembris, anno Dom. millesimo, 'sexcentesimo, tricesimo primo. The Lords of the secret Council, for some special causes and considerations, ordains and commands his 'majesty's justice, justice-clerk and their de'puties, to continue all farther Trial and proceeding against James lord Uchiltrie, upon the crimes whereof he has been accused before them, till the 1st day of February next.

VOL. III.

than which hell could not have forged a fouler, for lord Uchiltrie judged that this would infallibly have produced one of two effects, either raised such a jealousy in the king's thoughts, as to have quite ruined the marquis, since few ministers are proof against such whispers, or at least it would have stopped his voyage for a while, till he was tried, and the smallest delay in that would have scattered his soldiers, (which the king was to send under the marquis's com mand, to assist the king of Sweden to recover the Palatinate) so that this design failing, in which his honour was now so far engaged, a stain should lie on him through all Europe. Lord Weston carried this story to the king, whether provoked to it out of hatred to the marquis, or moved from his zeal and duty to the king, shall not be determined; though the

21

last was pretended by him, in many of his let- | free trial for his false charge before the Justiceters to the marquis. But his majesty knew the General, and such assessors as were appointed marquis too well, and understood all his mo- to sit with him, by the privy-council; and had tions and the progress of this affair, too exactly the marquis repaid him in his own coin, he to give any credit to this forgery And p. 13. | could not have escaped capital punishment. "But the marquis was not able to lie under But he was satisfied with his own justification, such terrible imputations, wherefore he pressed and such a censure put on the calumniator, that Uchiltrie might be put to it, to prove what as might deter others from the like attempts. he had alledged: but all he offered against Wherefore he was condemned to perpetual imRamsay was only a presumption, which Ram- | prisonment in Blackness Castle, and he contisay denied, and Rea afirmed; so that they nued there for twenty years."-He was releas were both put under bail, and nothing appeared ed by Cromwell. The severity of the Sentence that did touch the marquis: for though Rain against lord Uchiltrie seems to have deterred say had been as guilty as the lord Rea called the earl of Rothes from maintaining the charge him, that left no imputation on him, since none which he advanced against the Lord Register of can be made answerable for those they em- falsely reporting the votes of the Scots parliaploy, unless it appear that they followed the ment in 1633, respecting the confirmation of Instructions given them. So the_marquis nas the statutes concerning religion, as then prodispatched to Germany. Lord Uchiltrie had fessed, and the grant to king Charles the 1st of charged the marquis with Treason, and failing the power to regulate ecclesiastical habits. See so totally in his probation, was sent down to 3 Laing's Hist. of Scotland, 103, 104, and thie Scotland to be tried, where he had a legal and authorities there referred to.

140. Proceedings in the Court of Chivalry,* on an Appeal of HighTreason: by DONALD Lord REA, against Mr. DAVID RAMSEY, 7 CHARLES I. A. D. 1631. [Sanderson's Charles the First, 164. 2 Rushw. Coll. 62, 106, 112, 142.]

66

["The following Case is an instance of awarding a Trial by Duel in the Court of Chivalry, though afterwards the duel was prevented. There are two accounts of it, which we shall submit to our readers. One is from "Sanderson's History of the Life and Reign of Charles the First;" the other from Rushworth's Historical Collections." Bishop Burnet relates the history of the accusation in his "Lives of the Dukes of Hamilton," principally with a view to justify the first duke of Hamilton, whose naine was involved in the affair. See Burnet's Memoirs of the

*"It seemeth that by the antient Common Law one accuser or witness was not sufficient to convict any person of High Treason, for in that case where is but one accuser it shall be tried before the Constable or Marshal by combat, as by many records appeareth." Lord Coke's 3d Inst. c. 2, p. 26. See more concerning this .Court in 4th Inst. c. 17.

"The Court of Chivalry, of which we also formerly spoke as a military court, or court of honour, when held before the earl marshal only, is also a criminal court, when held before the lord high constable of England jointly with the earl marshal. And then it has jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it. But the criminal, as well as civil part of its authority, is fallen into entire disuse; there having been no permanent high constable of England (but only pro hac vice at coronations and the like) since the attainder and execution of Stalford duke of Buckingham in the 13th year of Henry 8; the authority and charge, both in war and peace, being deemed too ample for a

Dukes of Hamilton, p. 11. to 14. The bishop, it is observable, charges Sanderson with giving a journal of the procedure on lord Rea's appeal, in order to impeach the duke of Hamilton's loyalty. In Rushworth there is a Letter from Charles the first to the duke of Hamilton, which explains what was done in the Court of Chivalry, and amply proves, that the king was quite satisfied of the duke's innocence. This Letter forins a part of Rushworth's relation, As to the account in the Annals of James and Charles the first, it is merely a copy of Sanderson, with the addisubject: so ample, that when the chief justice Fineux was asked by king Henry the 8th, how far they extended, he declined answering; and said, the decision of that question belonged to the law of arms, and not to the law of England." Bl. Comm. b. iv. c. 19. § 4.

"The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn. The appellee, when appealed of felony, pleads Not Guilty, and throws down his glove, and declares he will defend the same by his body: the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonist, swears to this effect. Hoc audi, homo, quem per manum teneo,' &c. Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way

tion of the king's Letter from Rushworth." | earl of Pembroke, lord chamberlain of the kings Hargrave.]

SANDERSON'S RELATION.

WHEN friends fall out their faults are found, as appears by the quarrel between Donuold lord Rea, a Scotish highlander, or rather more northward of the isles Orkney, and one David Ramsey, a true Scot courtier, concerning words and designs of treason against the king and kingdom, which because Ramsey denied, they are admitted the Trial by Combate, the manner being as followeth.

The day prefixt for trial was the 28th of Nov. 1631, before Robert earl of Lindsey, lord highchamberlain of England, and now pro tempore deputed lord high constable of England. Tho. earl of Arundel, earl marshal of England, the

houshoid, the earl of Dorset, chamberlain to the queen's houshold, the earl of Carlisle, earl of Mulgrave, earl of Morton, viscount Wimbleton, viscount Wentworth, viscount Falkland, sir Henry Vane.

The place was the Painted Chamber at Westminster: at the upper end thereof a bench was erected four feet high for the constable, and marshal, and lords assistants. Under them seats about a square table, filled with the heralds of arms, and serjeants at aïs, and other officers of the court. Directly under the upper bench sate the register doctor Dethick, and over against him doctor Duck the king's advocate for the marshals court. Behind him at the bar were the two pews for the appellant and defendant.

degrees.

The earl marshal rises, makes obedience to the constable, and passing forward meets sir William Seager king of heralds, and both of thein present to the constable his commission, which he received with his hat off: and delivered it to the register to reade, in effect,

At eight a clock comes the earl marshal guilty of the said felony. So help me God, (ushered in with me heralds, and three serand the saints; and this I will deiend against jeants at arms) bearing his marshai truncheon thee by my body, as this court shall award.' of gold, tipped with black, and commanding To which the appellant replies, holding the room, and giving orders, retired into the upper bible and his antagonist's hand in the same house of parliament, and then returned into manner as the other: Hear this, O man whom the court, as to make way for the high constaI hold by the hand, who callest thyself Tho-ble, who followed, and all took place in their mas by the name of baptism, that thou art perjured; and therefore perjured, because that 'thou feloniously didst murder my father, William by name. So help ine God and the saints; and this I will prove against thee by my body, as this court shall award.' The battel is then to be fought with the same weapons, viz. batons, the same solemnity, and the same oath against amulets and sorcery, that are used in the civil combat; and if the appellee be so far vanquished, that he cannot or will not fight any longer, he shall be adjudged to be hanged immediately; and then, as well as if he be killed in battel, providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain the fight from sunrising till the stars appear in the evening, he shall be acquitted. So also if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem, and become infamons; and the appellee shall recover his damages, and also be for ever quit, not only of the appeal, but of all indictments likewise for the same offence." Bl. Comin. b. iv. c. 27. § 3.

In Co. Litt. lib. 2, c. 3. sect. 102, a case is mentioned which went off by reason of what seems to have been a denial of justice. Lord Coke's words are, Regina noluit constituere Constabularium Angliæ, &c. et ideò dormivit ' Appellum.' See too sect. 153. 745.

That his majesty being informed by Donnold lord Rey, how David Ramsey esq. had plotted, and was privy unto divers Treasons and Con'spiracies against his royal person, government, and kingdoms. In the search whereof the king had used all ways and means for the discovery of the truth: the one of them accusing, the other denying, and so no certain security to his own person and his subjects: therefore he doth authorize the said Robert Bartie earl of Lindsey lord high constable, for to call unto 'hm Thomas earl of Arundel earl marshal, and with him such other peers, sheritis, and officers, as he thinks fit, to hold a marshal's court, for sifting the truth between the said partics, &c.'

Then the king of heralds delivers to the constable, his silver verge or staff, half a yard in length, headed with a crown of gold. Then the earl marshal delivered a key to a herald, to fetch in the Appellant ushered in by the herald, and accompanied with his sureties, sir Pierce Crosby, sir Walter Crosby, sir William Forbiez, sir Robert Gordon, and sir William Evers. He Concerning the Constable and Marshal, see was apparelled in black velvet trimmed with also Madox's Hist. of the Exchequer, 27. Dr. silver buttons, his sword in a silver imbroidered Oldis v. Donmille, Shower's Parl. Cas. 58. belt, in his order of a Scotish baronet, about Some curious matter concerning Duels, aud his neck, and so with reverence entered into the Courts of the Constable, Marshal and High his pew. His council doctor Reeves standing Steward, are to be found in the Bodleian Liby. His behaviour (like himself, tall, swarthy, brary in Oxford, Tanner's MSS. Nos. 14, 84, 85, 89, 103, 176, 278. and a treatise in MS. by Sir John Burgh in the library of the Inner Temple.

black, but comely) very post-like aud of staid

countenance.

The Defendant was alike ushered in by ano ther herald. His sureties were the lord Rox

1

state was so out of frame as must tend to a change, if not desolation. That therefore he had abandoned the kingdom, to live where now he was, and to expect a mutation forthwith, to which end he had brought present monies to maintain him at 67. a day for three years. That marquess Hamilton had a great army promised to him, for pay whereof the king had given in hand 10,000l., and all the wine customes in Scotland for 16 years, presently to be sold for the armies subsistence. And that he staid for ammunition and powder to come over, for which his lordship was to mediate with his majesty of Sweden and the states, and then link themselves together, of whose minde Rey should know hereafter.

After O yes! the earl Marshal told them the effect of the commission, and the power of this court, which was not of any strange nature, but legal and justifiable as any other trial in Westminster-hall; and that there had been no more nor other trials of this kind of late, we were to attribute it to Gods goodness, the justice of the king, and loyalty of the subject, with the providence of state, and wished there might be no more in time to come; and that to expect any combate, this court he hoped would prevent it by the discovery of the light, and so magna est veritas, et prævalebit.'

He referred the further proceedings unto Dr. Duck, the king's Advocate, who spake thus in effect:

That the kings majesty had committed the trial of the business to your grace my lord high constable, the earl marshal, and this court, which course was warrantable by the laws of other nations, and also by our own, who have used the same manner of trial.—That our law admitted sundry proofs for Treason, which in other matters it did not: that all subjects were bound to discover treasons: and cited two ancient civilians, Hieronymus and Tiberius, who gave their reasons for this kinde of trial. And he mentioned sundry records of our own chronicles and examples herein, as the duke of Norfolk combating against the duke of Hartford in Henry 4, his time; Jo. Ely and William Scroop against Ballamon at Burdeaux, the king being there; the lod Morley impeached Montague earl of Salisbury; and that Thomas | of Walsingham and Thomas of Woodstock in their learned writings, expressed sundry precedents for this manner of proceeding; wishing the court in Gods name to go on to the trial, and the Appellant to give in his evidence.

Then the Appellant came up upon the table, to whom the earl marshal delivered the petition, which he had the day before exhibited to the king. And the Defendant being also called up, the petition was read, which was in effect, That he having accused Ramsey of treason, and also Meldram his kinsman, and of confederacy, against whom captain Nothwick was witness, therefore had desired, that the court would proceed against Meldram first.

But he was told by the court, that their cases differing, the Appellant was ordered to deliver in his Charge against the Defendant, which he did, in writing by bill, containing sundry particulars, viz.

That in May last in the Low-Countries, Ramsey complained to him against the court of England. That the matters of church and

His

That their friends in Scotland had gotten therefore arms and powder out of England, and that what be should procure in Holland was to be brought over by the marquess; and that all Scotlan i were sure to them except three. That France and Spain thirsted for England, but Hamilton would defeat them for himself. onely fear was of Denmark, where he meant to land, and either to take him off, or make a party. That afterwards at Amsterdam, Ramsey with Alexander Hamilton solicited him the lord Rey to be true to them, and to be of their council, though as yet they durst not reveal too much of Hamilton's secrets, but if he repaired to England, he would intrust him with letters; and that his brother in law Sea-port knew all. This being the effect of the charge. He added,

That if Ramsey would deny it, he was a villain and a traitour, which he would make good, And therewith cast him his glove.

Ramsey denied all, and said, Rey was a liar, a barbarous villain, and threw down his glove, protesting, to gar him dy for it, if he had had him in place for that purpose.

Rey was temperate, without any passion, but smiling, replied, Mr. Ramsey, we will not contend here. Answer to my bill.

Then Ramsey offered some reasons of the impossibility of the Charge, the slender numbers of men from England, but 6,000 raw souldiers, against three kingdoms, whom the first proclamation might dissipate. That the marquess was neither so wicked, nor weak in judgnient : and if he should conceit to surprize the king, what hope had he against his children and kindred? And therefore, said he, my lord Rey is a barbarous villain, and a liar, and he will gar him dy for it, or lose his dearest bloud.

He was interrupted by the Earl Marshal, telling him, he must not stand upon conjectures, but answer the bill of form according to law, and was advised to take counsel therein.

Then Ramsey in general acknowledged all the particular circumstances of time and place alleged by Rey, and the discourse to that effect; but concluded, that no treason was intended or uttered, and craved counsel to answer, which was granted.

And so the court adjourned to the 5th of December, but upon a fresh arrest by the Earl