330. Proceedings against SEVERAL PERSONS OF LANERKSHIRE, for Treason: 33 CHARLES II. A. D. 1681.* [Now first printed from the Records of Justiciary at Edinburgh.]

CURIA JUSTICIARIE, S. D. N. Regis tenta in highnes enterest, againest John Wilson, wreitPretorio Burgi de Edinburgh decimo ter in Lanerk, and beritor of Stainiepath: Mr. quarto die mensis Martii, 1681, per hono- Thomas Pillans, in Lanerk, James Laurie, rabilis viros Wilielmun Comitem de wreitter ther, William Dick ther, John ThomQueinsberry, Justiciarium Generalem, son, carpenter ther, Alexander Brown ther, Ritchardum Maitland de Duddop Jus-Archibald Symson, ther, David Whytt ticiarie Clericum, Robertum Dominum desmith ther, Thomas Lauchlan, merchand Nairne, Dominos Jacobum Foulis de ther, William Ferguson, weaver ther, WilColintoun, Davidem Balfour de Forret, liam Tweddale, son to Tweddale, Davidem Falconar de Newtoun, et Ro- late balyie ther, Gideon Weir, gunesmith gerum Hoge de Harcarss Commissionarios ther, David Gibson ther, David Robieson ther, Justiciarie dicti Se D. N. Regis. called Possie, James Bannatyne, wright ther, James Park, weaver ther, John Semple, mason ther, David Weir ther, aire to Hugh Weir

Curia legittime affirmata. THE said day anent our soveraigne lords criminall letters of treason, raised, used and excut, at the instance of sir George M'kenzie of Rosehaugh, his majesties advocat, for his

mitti,' but the guilty pannel himself must be personally present, seeing the judge may expiscate much from him, which cannot be done if he was allowed to appear only by a proeu rator.

ther, Hugh Ker, son to William Ker, in Badronald, Thomas Inglis, shoemaker in Lanerk, Robert Haddowe, younger therof, Mr. Robert Black, of Silvertounhill, Jobu Buckle, younger, "March 17 & 18, 1681. At Criminal relevancy and probation? Though it be very Court the heritors of Clidesdale who were inequitable, yet it was thought it would not be the rebellion at Bothwel-bridge in 1679 being permitted, his being only a civil interest. See upon the pannel; It was alledged for Gavin Gayl. lib. 1. de pace pub. e. 10. who proves Hamilton of Hill, son to Raploch, absent, that that in criminalibus procurator non debet adhe could not be declared fugitive (what needs they both be declared fugitive, and a sentence of forfeiture likeways be pronounced against them? might not the last serve for both?) because having been in prison, the privy council had set him at liberty, to appear at a day not yet come. The Justiciars found, notwithstanding of that bond, that he ought to have appeared before them in this court. 2do, alledged, He was illegally summoned at his dwellinghouse of Hill; whereas forty days before that his wife and family dwelt at Stratharen. Answered by the king's advocate, that no defence could be proponed for an absent traitor. Likeas, the forty days were introduced in favours of pursuers, that if a man bad stayed 40 days in a place, though it was not his residence and domicil, yet the pursuer might conveen him there, it founding competentiam fori against him; but not vice versa, that a citation should be unlawful if he were 40 days absent from his own house: "The criminal lords found no defence could be proponed for a traitor unless he were present." Some thought this hard, seeing though we cannot defend in causa, yet I may propone probabilem rationem et causam absentiæ,' an essonzie of sickness, or say that he is absent reipublicae causa,' or not at all cited; now to be cited illegally at the wrong place, and not to be cited at all, are equipollent. "Quæritur, If a creditor of the rebels, whose debt is unconfirmed, may appear for an absent traitor, and produce his interest, videns rem ⚫ suam agi,' so that he may lose his money; and if he will be admitted to object against the

"For others, viz. Muirhead of Bradisholm, &c. It was alledged, that it is true, advo'catus fisci non præsumitur calumniari,' yet gentlemens lives, estates, fortunes and reputa tions, ought not to be brought in question with out he condescend on his informer, that he might subscribe in pœna talionis,' both conform to the civil law, and the law and practice of all nations, and the act 1587; for the very pursuing leaves a stigma, though they be as soilzied 1. 3. e. de generali abolitione. The advocate declared he had no informer, but the privy council and Exchequer having employed one to take up lists of all suspect persons, he, by the Council's warrant, now pursued them.

The justices found the council's warrant sufficient to liberate the advocate from condescending upon any other informer;" though this may evacuate the force of the said just act of parliament.

"Somerville of Urat was cleansed by the assize. Vide the assize pursued for it, 16th June 1681. [See the Case p. 75, of this Volume.]

"Then the advocat offering to continue the diet against the rest of the heritors, it was alledged, The diet was peremptory, and behoved either to be deserted, or else they immediately tried and put to the knowledge of an assize. "The lords found the advocate ought to insist

mason and wright in Lanerk, Alexander | Balyie, smith ther, Alexander Anderson, lievtennent to captain Wilson, heritor ther, John Pumphray ther, Thomas Hinselwood ther, against such whose witnesses in the list were all present; but as to these who were not in that case, continued them to June next, he peremptorily bringing in all his witnesses, and insisting then; otherwise the diet should be de

serted."

6

James Muirhead, smith ther, John Jack in Nemphler, Robert Fram ther, William Padzean, mason ther, Hew Somervaill, of Wellfrads, John Hutchieson, of Hairlawe, Somermet with harder measures, as David White smith in Lanerk, and other forty six belonging to Lanerk shire, whose names are insert in the proclamation, of the date October 8. These had probation led against them in absence, and all that is proven against most of them is converse with rebels, when they were going up and down that shire, and lying in camp there, in which the whole shire was necessarily at that time involved; and they are all forfeited in common form, and ordered to be executed as traitors, when they shall be apprehended.

have all, who did not resign their lands, to be concluded under the same condemnation."

"At this time, the criminal lords got a precognition what the witnesses could say with closs doors, though not upon oath, yet caused them subscribe their declarations, that quoad such as they found no probation against they might desert the diet; which abridged their labour, there being upwards of seventy or "A few others are brought off by the vereighty on the pannel; but it was clearly pro- dict of the assize, as not having their indictditio testimonii,' and a dangerous novelty en- ment proven against them: Indeed the probagaging the witnesses to bide at what they say tion against them who are forfeited is abunbehind the pannel's back, and very irregular indantly lame; but, it seems, the advocate would the Criminal Court, where by act of parliament 1587, no probation can be taken, but in presence of the pannels and assize: And the use of these precognitions have only been as sumed by the privy council. Some of them who were continued, or deserted, (seeing new letters might hereafter be raised against them,) desired their witnesses in defence and exculpation might be received, to ly in retentis ad ⚫ probationem innocentia,' lest they should die medio tempore. This was refused, seeing the king ran the same risque with his; yet they had precognosced; but that declaration (if the witnesses died) would not prove." Fountainhall.

Upon the 18th and 21st of March, I find, by the registers, great numbers of heritors in the shire of Lanerk are present, and called: I may class them in two branches; some of them make a resignation of their lands, and are dismissed; and others of them stand their trial, and are forfeited, many of them in absence. Of the first sort, John Williamson, son to Joseph Williamson heritor in Holl, John Spreul younger, writer in Glasgow, James Walker younger of Hacketburn, William Tweddale late Bailie of Lanerk, Hugh Weir merchant there, being pannelled, they have an offer made to them of the king's indemnity, and accept of it, and renounce and resign in favours of the king, commissioners of the treasury, and their donators, all lands and heritages fallen to them, or which they had a right to, before his majesty's act of grace, and as to them the lords desert the diet in perpetuum. This was a kind of composition by voluntary parting with that part of their heritage, which they had a right to in their own person, and then at the death of their parents they came in to the rest of the lands. Thus somewhat at least was preserved, but it was but few got this favour.

"The far greater number, who were, as the former, cited to this diet, and indicted in comanon form, as guilty of the rebellion at Bothwel,

"June, 1681. It being represented to the Wigtoun, and Dumfries, who were in the late council, that many persons in Kirkcudbright, tromit with their estates, the sheriffs and rebellion, continue in their houses, and inother magistrates are ordained to seize and present them to justice, and at the same time to secure their rents and lands for his majesty's use: It is likewise recommended to them to secure the country from field-conventicles, and punish such as are guilty, with certification, that if they fail, the council will send in forces.

"In a little time, those orders are more generally extended to the shires of Lanerk, because I have not seen in print, and it contains Air, and Galloway, in a proclamation, which a good many of such as were forfeited last year and this, I have given it here from the registers:

Charles, &c. greeting. Forasmuch as the 'persons underwritten, are by decreet of the lords commissioners of justiciary, forfeited in 'their lives, lands and goods, for their treasonable rising in arms in the late rebellion at 'Bothwel-bridge, viz. David White smith in Lanerk, Gideon Weir gunsmith there, David 'Gibson there, John Wilson writer there, Mr. 'Thomas Pillans there, James Lawrie writer 'there, Archibald Simpson there, Thomas 'Lauchlan there, William Fergusson there, John Semple mason there, Thomas Ingles there, Alexander Anderson there, John Pumphray there, John Jack in Neruplair, William Padzean mason in Lanerk, Robert Lockhart of Birkhill, James Weir of Johnshilp, John Steil in Overwaterhead, John Haddow in Douglas, James White there, William Falconer in Hamiltoun, Arthur Tacket there, Gavin Wotherspoon of Heathrie-know, John Eastoun portioner of Quarryneen, Robert Goodwine maltman in Glasgow, James Cuningham merchant there, Isaac

!

M'Quharrie of Scorieholm, John Steill, in
Overwatterhead, John Whyat, of Neak,
Muirhead of Breidisholme, * John Haddowe,
in Douglas, James Whytt ther, James Semple

6

"Blackwel son to Thomas Blackwel there, risdiction; and, in case of assistance or hostil Willam Riddel feuar in Rutherglen, Robert opposition, to pursue them to the death by Fleming of Auchinfin, John Hamilton feuar 'force of arms, or drive them forth of the in Rogertoun, Thomas Craig feuar in Jack-bounds of their shires and jurisdictions; and, toun, John Miller feuar of Longcalderwood, if need be, are to call to their assistance such John Wilson of Highfleet, Robert Steven 'numbers of our good subjects, as they shall feuar of Newland, John Steil of Windhill, find necessary for their assistance, who are John Cochran of Cragie, James Dykes por- hereby ordained to concur with, fortify and ❝tioner of Halburn, John Carduf feuar in Jack- 'assist our commisioners foresaid in this our toun, Thomas Paton at Old-kirk of Camne- ' service, as they will be answerable at their ut" than, John Whytlaw of Bothwel-sheil, John 'most peril. And if, in prosecution of the said 'Paterson there, John White of Newk, Tho- ' rebels and traitors, any of them shall be mu'mas Lin of Blairachin, John Weddale of tilate or slain by any of our said commisChisdale, John Clyde in Kilbride, all insioners assisting them, we declare that they Lanerk shire; Gilbert M'lewrath of Dum-shall never be pursued or called in question

maltman in Hamiltoun, James Lockhart called younger, Udingstoun, James Cores ther, Alexfaird Lockhart, in Hamiltoun, William Fal- ander Corss his son, James Rae, son to John conar ther, Arthur Tarbet ther, William Pol-Rae, fewer ther, John Wilkie, son to John lock, smith ther, John Scotts, elder and Wilkie, in Knowhead, John Scott, in Kenmuir,

this circuit at Glasgow receives a new indictment, which being but short, 1 insert from the original. James Muirhead of Bradisholm younger, you are indicted for the crime of high treason and rebellion in joyning with the rebels June 1679, and being in their company with arms at the Schawhead-muir Hamiltoun, Hamiltoun-muir, and several other places, aiding and assisting them, giving and sending out meat to them, or otherwise supplying them, sending out horses and servants to them, countenancing and favouring of rebels, accessory to the late rebellion, harbouring and resetting of them in your house, upon the ground of your land as tenants, receiving mail and duty from them, conversing and intercommuning with them, particularly you reset and kept Robert Turner in Goodochill upon your lands, as your tenant, and receives mail and duty from him; for all which crimes you are to underly

'the law.'

'adjournal, by me, Mr. Thomas Gordon clerk
to the justice court.' THOMAS GORDON.
"At this time there was no security for anys
body who had ever favoured Presbyterians,
and so, notwithstanding of this second absolvi-
ture by the criminal court, next year at the
circuit he is again put into the porteous rolls
for the same pretended accession to Bothwel;
and when he would not purge himself by taking
the test, he is remitted to Edinburgh, when
he is libelled before the council for reset, con-
verse, keeping conventicles and other points,
and his oath is taken upon the articles of the
libel. And because in his deposition, he as-
knowledges his having had four times Presby
terian ministers in his house since the indem-
nity, and that they went about family-wor-
ship, with not above six present more than his
family, be is found guilty of keeping house-
conventicles, and fined, according to a wrong
account given in of his valuation, as an heritor,
in four thousand merks, and was kept in prison
about fourteen months at Edinburgh. All
this I have given the more distinctly, because
every part of it is vouched by principal papers
before me. And this was the case of a great
many other worthy gentlemen next year and
this."

With respect to the great number of witnesses examined, Wodrow says, as a Note,

"Because this may appear strange to such as know not the methods of this time, it would be noticed, that in the year 1681, many more witnesses than 700 were cited in to Edinburgh from the West-country against the gentlemen then indicted, and they were all interrogate with respect to each gentleman who stood his trial."

The whilk day anent a petition presented to the lords by James Muirhead of Bradisholm younger, shewing. That he being formerly (1681,) convened before the said lords for his alledged being in the late rebellion at Both⚫ wel, and exact trial made, and seven hundred It farther appears from Wodrow, Vol. 2, p ' witnesses or thereby being examined against 428, " that in December 1684, a decreet was him, nothing of guilt could be made appear, passed by the council against James Muirhead and the petitioner having then pressed to go of Bradisholm, and others: their libel was mere to trial, and having an act of council for that non conformity, and alleadged reset, and coneffect, the lords at that time deserted the verse, and refusing the oath of allegiance with diet simpliciter, and discharged all new letters the king's prerogative annexed, which they and dittays, except by a warrant in præ- did not reckon themselves obliged in law to 'sentia: And yet, without any such warrant, take;" whereupon the council fined them in he was put in the porteous roll, appeared at different sums; Muirhead's fine was 4,000 Glasgow, urged trial, and was continued merks. It seems that Muirhead was afterto Edinburgh, where he offered of new towards imprisoned; for, Wodrow notes, under abide a trial, but was committed to prison. Therefore craving, that seeing the petitioner hath been so oft troubled, and always appeared and is now ready to pass to the knowledge of an assize for clearing his innocence, and is ready presently to exculpate himself by famous witnesses, that he be ordained to be set at liberty, and the diet deserted simpliciter. The lord justice clerk and commissioners of the justiciary, having considered the said petition, do ordain the petitioner to be set at liberty. Extracted forth of the books of

་

date September 11, 1685, that Muirhead, of Bradisholm, was liberate under a bond of 4000 merks to re-enter October 12. In treating of the proceedings of the circuit courts, held in different parts of the country in the year 1683, Wodrow says, that the porteous roll for the shire of Air, so far as he could guess, when he folded it out, "consists of upwards of 300 sheets of paper; that of the shire of Lanerk is upwards of 200 sheets, and contains the whole gentry of that shire almost without exception." Vol. 2, pp. 316,317.

Haddock, in Easterseat, John Williamson, younger, heritor of the lands of Holl, and John Williamson, son to Robert Williamson, called lord of Shoteleucgh, makand mention that wer notwithstanding be the common lawe, lawe of nations, lawes, acts of parliament of this kingdom, and constant practice therof, The ryseing of his majestie's subjects, or any number of them, the joyning and assembling togither in armes without and contrair to his majesties command, warrand and authoritie, and the abaiting, assisting, recepting, intercommoning and keeping correspondence with such rebells, and supplieing of them with levies of men, horse, money, armes, and fur nishing them with meat, drink, powder, ball, and other munition bellicall, are most detasta

John Scott, his son, Robert Corss, wodsetter in Udugstoun, John Corse, in Clydsmiln, James Thomson, portioner of Garnquhen, John Thomson his son, George Robertsons, elder and younger, in Easter Glentorie, John Russill of Eastfield, Gavin Weatherspone, fewar of Heatherieknowe, William Wallace, portioner of Mainhill, James Gray, elder, of Chrystoun, Gray his son, John Easton, portioner of Garnquhen, James Gray, of Berrieknowe, Walter Donaldson, portioner, of Rabrestoup, Mr. John Spreull, of Blairqubam, wreitter in Glasgowe, John Spreull his son, John Spreull, appothecary ther, Gavin Wood, wright ther, Robert Goodvin, maltman, James Cunninghame, merchant in Glasgow, Isack Blackwell, son to Thomas Blackwell, callander ther, John Govan, portioner of Shetlestoun, Alex-ble, horrid, hynous and abominable crymes of ander Wardrop, portioner of Midlequarter, rebellion, treason and lese majestie, and are John Robieson, weaver and portioner, of Shet punishable with forfaulture of lyff, lands, lestoun, William Riddell, fewar and mason, heritages and escheat of ther movables, and be in Rutherglen, John Brown taylor and fewar the third act of the first parliament of king ther, Hagh Ker, of Bowehouse, Robert Fley- James the first, It is statut and ordained, that ming, of Auchinfine, William Park, fewar of no man oppinlie nor nottoriouslie rebell Lairfaid, John Hamiltoun, fewar of Rogertoun, againest the king's person under the paine of Thomas Craig fewar of Jackstoun, David Linde- forfaulting lyff, land and goods: and be the say portioner thereof, John Millar younger, threttie sevinth act of the second parliament of fewar in Long Catherwood, John Wilson, in king James the First, it is statut, that no man Highflett, James Reid, fewar in Kittochsyd, wilfullie receipt, mantaine, or doe favour to op Robert Steiven, fewar in Newland, John Steil pin or manifest rebells againest the king's ma of Windhill, John Cochrane, of Craig, John jestie or common lawe under the paine of forCochrane, portioner of Chappell, James faulture; and be the fourteint act of the sext Young, of Peilhill, Thomas Leper, por- parliament of king James the second, it is tioner of Fieldhead, James Dycks, portioner statut, that no man rebell againest the king's of Halburne, John Carnduff, fewar in Stra- person or authoritie, or make ware againest the ven, James Hamilton, elder, in Pryorhill, king's leidges, and whoso does in the contrair Ritchard Meikle, in Tweidiesyd, James to be punished efter the qualitie and quantitie Walker, younger, of Halketburn, Thomas of sick rebellion, and be the twentie fyft act of Patton, at the old kirk of Camnethan, John bis sext parliament, it is statut, that if any Gray of Darngavill, Robert Steill, in Stanie, man committ or doe treason againest the king's John Whitlawe, in Bothwelsheills, John Pa- person, or ryse in fear of wear againest him, terson ther, William Wardroper, portioner of or recepts any that has committed treason, or Easter Catherhead, John Catherhead, younger, supplies them in help, redd or councill, shall portioner of Windieedge, Robert Russill, por- be punished as traitors; and be the hundreth tioner therof, John Millar, of Wattershaugh, fourtie and fourth act of the twelth parliament John Nimmo in the fforth, John Whytt younger, of king James the sixt, It is statut, that of Stockbridges, Thomas Linn, of Blairreckon wherever any declaired traitors repairs in any ing, George Muirhead, of Steinstoum, Archi- part of this realme non of his majestie's leidges bald Cleiland, of Kuowoblehill, James Hamil-shall presume to receipt, supplie or interton of Halsyd, James Hamilton, of Stonehall, Thomas and James Alstouns, of Maines, John Marshall, fewar in Hamilton, William Dycks, of Lambbill, Robert and William Gilmours, portioners of Priestgill, Alexander Murray, of Udstounhead, and Dycks Gavin Semple, portioner of Kirkwood, Thomas Brownlie, portioner of Curfett, Thomas Leper, portioner of feildhead, John Holmes, of Newtoun, James Aikenhead, in Kittochsyd, James Wilson in Rigehead of Carduff, John Grainger of Flackfield, John Wattther, James Dyck, in Kitochsyd Rob, Russill, portioner of Windiedges, Henry Boswell, portioner of Dunsystoun, John Wardroper, portioner of Denishill, James Meik, younger, portioner of Fartisset, Archibald Prentise in Sthine, John Weir, in Strangelench, Thomas Robertson portioner of Hisilden, John

comon with them, or give them any releiff or comfort, and that immediately upon knowledge of ther repairing in the bounds, all his majes tie's obedient subjects doe ther exact dilligence in searching and apprehending the said traitors and rebells, and that with all speed they certifie his majestie, or some of his privie councill, or some persons of authoritie or cre dit within the shyre, that such rebells are within the same, under the paine that tlie saids traitors and rebells ought to sustaine if they wer apprehendit and convict be justice; lykeas be the fyft act of the first session of his majestie's first parliament, it is declaired, that it shall be bye treason to the subjects of this kingdome, or any number of them, more or lesse, upon any ground or pretext whatsomever, to ryse or continue in armes, to make peace or ware, or