and at last be found guilty of no offence? And what satisfaction could be in nature given to that man? I say, if that man could have a crown given him, it could not make him satisfaction for the loss of his liberty all his life, which may be the consequence of this doctrine; and, my lord, there are precedents good store where men have suffered sufficiently for their judgments against the Liberty and Property of the subject, but I never found one that suffered in the defence either of the one or the other. I have shewn, I think, sufficiently what can be meant either in my case or any other, by a cause depending in parliament, when there is no parliament; as also how much inferior courts do meddle with things of much an higher nature, than bail will be; insomuch that truly I should think it might be sufficient to say no more than I have said: but I do not know what may be sufficient in my case; and therefore, my lord, you must pardon me, if 1 do put you in mind of a case wherein you have goue to the merits of the cause itself, when depending in parliament. It is Fitz-Harris his case; and I know very well what answers will be given me; as that that was a case rejected by the lords, and that it was not the same treason for which he was impeached, and other things that I could mention; but I know your lordship will speak by the record of the court (of which I have here a copy,) and the record is that which must satisfy the world an hundred years hence; by which it will appear to them, that he was impeached, and tried, and condemned, depending that impeachment; for he made that his plea, and Mr. Attorney General demurring to it, the court must take the matter pleaded, as confessed and allowed; and this being so, I should think there should be no scruple made in the point of bail; or if there should, there must certainly be very great hardship in one case or the other, and must be very difficult to be answered. But to conclude: besides all this, I am the king's prisoner, and I have the king's pardon; and if I cannot get to be bailed, there is not only a defect of jurisdiction in this court, but a defect of the regal authority and power of the kings of England to administer justice to their subjects; which was never heard of, I think, and I hope I shall never live to hear of it (especially from the king's supreme ordinary court of justice.) And that, my lord, that must make this case the more unhappy at this time is, that we live in days wherein his majesty's prerogatives are so much brought in question: For what prerogative hath he which is more undoubted than his power of pardoning? And yet you see that brought in question to the utmost, and those that are the ablest men that speak against that power, do laugh at the little small triflers who object, that the king may pardon before impeachment, and after the sentence be given, but not betwixt those times: they laugh at this, and tell you that he cannot pardon at all; and it is easily perceived, that if they could reach their design, they would have it understood, That treason may be committed against the people, and by that doctrine another High-Court of Justice may be set up, and the King may be tried by his people, as well as he can try them. My lord, there are a great many consequences attending upon that doctrine, which I am sure will never be countenanced by the King's courts; but I shall not wonder that such men as these be trying their projects, and think themselves in the right to do so, if they find his majesty cannot do so much as a lesser act of grace for his prisoner, which is but to give him ease from too long or perhaps a perpetual imprisonment; for if he hath not power so much as to bail his own prisoner, I shall not wonder if others question whether he hath power to pardon him. My lord, I have seen such keepers of our liberties, from whom I should expect such doctrines: but I thank God that by our laws the king is the keeper of our liberties, and therefore I hope I shall not hear any such doctrine by which he can only be the keeper of us in prisons, but shall have no more power than another man, to set his prisoner at liberty, although his will be only to give his prisoner ease (as the law intends) against indefinite impri sonment. Lastly, My lord, if I should die in prison with this pardon by me, which I have shewed your lordship; or suppose that the House of Commons (if it were but with a design to destroy the pardon) would give some other reason than the pardon (as being better satisfied concerning me, or any thing else) why they would prosecute me no more (of which there be divers precedents;) what a wound would thereby be given to the king's prerogative! and pray how is it possible almost to give it a greater blow than this would be? What a precedent would it be to posterity to say, that a man had lain three, four or five years or more in prison, notwithstanding a pardon, that signified nothing all that time? for that the king would have eased him if he could, and hath shewed his court that he would do so, but was not able so much as to have him bailed would not this put that prerogative in great hazard? I confess I do wonder that some others besides your lordship have not taken more care of the prerogative of the king, for their own sakes as well as the king's; for it would be very convenient it should be useful, if ever it should become necessary: and it is not improbable, but if the king should hereafter find such a prerogative diminished, he would not only reflect upon his loss, but upon those who might have advised better, or might have better defended this prerogative of the king; and for the subjects liberties, there will never be eyes wanting to inquire after any invasion which shall be made of that kind. Upon the whole, I have troubled your lordship too long, but it hath been upon a subject of the greatest concern to Englishmen: I have such bail to offer to your lordship, as I am sure cannot be denied; and I am in my own con this short account and declaration of myself. science sufficiently satisfied, that I am detained a prisoner from bail, neither by the king, by the lords, nor by the laws; and therefore, my Jord, I do humbly pray your lordship, you would please to accept my bail; and as I here offer your lordship my pardon again, so I again pray the benefit of it, and I desire your lord-prison, and, what is more grievous to me, lain ship it may be read in court. The Lord Chief Justice then spoke, and so did all the rest of the judges, (upon the earl's desiring that they would severally deliver their opinions.) And the Lord Chief Justice, and Mr. Justice Dolben, did deliver their opinions, that the earl could not be relieved by that court. Mr. Justice Jones concluded his discourse with saying, that he could not give his judgment that the earl should be bailed at that time.' Mr. Justice Raymond did say, he could not see but that there would be a failure of justice if so be his lordship should not have liberty upon bail; but that he had not time to view precedents, and therefore it would be very unfit for him at present to be positive in what he did say. And then the Lord Chief Justice did tell the earl, he must be contented to be remanded. But afterwards, on the last day of Hilary term, 1683, the judges delivered their opinions severally, and were unanimous, that the earl ought to be bailed. And accordingly bail was taken in 40,000l. his lordship in a recognizance of 20,000l. and the dukes of Somerset and Albemarle, and the earls of Oxford and Chesterfield in 5,000l. a piece; upon condition that the earl of Danby do appear in the House of Lords the next session of parliament, and not depart without leave of that court. This Case is reported in 2 Shower 335, and Skinner 56, 162. Of these reports, the former is the more full as to the arguments of counsel, the latter the more explicit as to the points ruled by the court. Pritchard's (or Pintchard's) case, which is very strong, is reported in different books. See 1 Lev. 165, 1 Siderfin 245, T. Raym. 120. But the best report which I have seen of it is in 1 Keble. By the four Popish lords said to be bailed out on the same day with Danby, are meaned, lords Powis, Arundel, and Bellasis, and the earl of Tyrone. Lord Petre had died in the Tower, before the accession of king James. Lord Petre denied the Popish Plot with his last breath, as appears from the following Letter, which is stated to have been written by him on his death-bed, to king Charles the second: so long under a false and injurious calumny of an horrid plot and design against your majes ty's person and government; and I am now, by the dispositions of God's providence, called into another world, before I could by a public trial make my innocence appear. I conceived it necessary for me, as an incumbent daty I owe to truth, and my own innocence, to make this ensuing protestation to your majesty and the whole world. That whereas one Titus Oates hath maliciously and falsely sworn, that he saw me receive a commission directed to me from Johannes Paulus de Oliva, constitut ing me lieutenant general of an army, which he pretended was to come into England; ! declare in the presence of the all-seeing God, before whose just tribunal I am shortly to ap pear, that I never saw any such commission directed to me, or any other person whats ever; and do firmly believe, there never was any such. "But of the folly as well as the falshood of the information, the sober part of mankind, are, as I conceive, sufficiently ere this convinced. "And as to those aspersions which the ig norant and malicious have thrown upon the Roman Catholic church (of which I am, and by the grace of God, do die a member) as if murdering of kings, and taking up arms against our sovereigns, were an authorised principle of that religion, I do knowingly affirm, there is nothing with more horror detested by the Catholic church, as being expressly contrary to the command of our Saviour, and Christian doctrine; and as such I renounce and detest it, as I do all plots and conspiracies against your sacred person. "Having thus briefly, and with all sincerity of a dying man, discharged my conscience; I shall end where I began, and with my last breath beg of God to defend your majesty from all your enemies, and to forgive those who by their perjuries, have endeavoured to make me appear to be one: Who am living and dying, as in duty bound, &c.”—1 Ralph, 825. The case of Seymour, lord Sudley, mentioned by Mr. Luders, in the passage cited in a note, p. 625 of this volume, is reported, vol. 1, p. 483, of this Collection. The proceedings against his brother, the duke of Somerset, are reported, pp. 509. 515, of the same volume. The Indictment against the latter, set forth in pp. 518, et seq. of that volume, occurs also in Cok. Entries, 482. 340. Proceedings against RICHARD RUMBOLD, for High Treason:* 1 JAMES II. A. D. 1685. [Now first printed from the Records of Privy Council and Court of Justiciary at Edinburgh.] · Apud Hallirudhouse vigesimo die Junii, 1685, Chancellor Thesaurer principall, Errol, Marishall, Kintore, Tarbet, Kinnaird, Advocate, Justice Clerk, President of Session, Sir George Monro. THE Lords of his majestie's privy councill doe hereby require and command the magistrates of Edinburgh, as soon as Rumbold, called colJonell Rumbold, traitor, comes to the watergate, to putt him in a cart, and cause the hangman to put a rope about his neck, and go behind him, and the rope in his hand, and the hangman's man goeing befor leading the horse: Rumbold being fettered and bare headed in the litter, and ordaines captain Graeme, with his whol company, collours displayed and drums beatting, to receave the said Rumbold at the said Wattergate, and guard him to the castle of Edinburgh, where he is to be receaved pri soner. Apud Edinburgum, 23d June 1685, &c. The lords of his majestie's privy councill doe hereby give order and warrant to his majestie's advocate for processing Rumbold, the malster, before the lords justice general, justice See the Introduction to the Trials for the Rye-House Plot, vol. 9, p. 357, and the Trials themselves in the same Volume. +"Not long after the earl [of Argyle], that gallant and good man, colonel Rumbold, was taken. I have no distinct account of the manner or place, but am told that being attacked by the country militia, he made his way easily through them, and being of great courage, skill, and strength, when two or three attacked him at once, he was abundantly able for them, and maintained a running fight, and was like to get off, till one of them, wiser than the rest, came up and cut his horse's legs miserably, and disabled him so that he was no longer of use to him, and then he was soon oppressed with numbers, and terribly wounded." Wodrow. About the same time perished Ayloffe, another of the adherents of Monmouth and Argyle, concerning whom Burnet writes thus: "Ailoffe had a mind to prevent the course of justice, and having got a penknife into his hands gave himself several stabs. And thinking be was certainly a dead man, he cried out, and said, now he defied his enemies. Yet he had not pierced his guts: so his wounds were not mortal. And, it being believed that he could make great discoveries, he was brought up to London." "When Ailoffe was brought up to London, clerk,and remanent commissioners of justiciary, for high treason and rebellion againest the king and government. Apud Edinburgum, 25th June, 1685, &c. The Lords of his Majesties Privy Councill doe hereby recommend to the Lords Justice General, Justice Clerk, and remaneut Commissioners of his Majesties justiciarie, to meet to-morrow by ten o'clock in the fornoon, and to call the dittay of High Treason and rebellion against Rumbold, commonly called colloDell Rumbold, or the inaltster, and after he is found guilty of the saids crymes, doe recommend to the saids lords to cause him the said Rumbold to be immediately taken from their barr to the laigh toun counsell house to be examined by the magistrates and hear prayer in the ordinary way, and that order may be given by them to the saids magistrats that a scaffold and a high gibbet be erected above the cross towards the West,and that after he is examined and prayer heard, they cause him be led down by the hangman, having his hatt on to the scaffold, and there to be hoised up the gibbet with a rop about his neck, and immediately to the king examined him, but could draw nothing from him, but one severe repartee. He being sullen, and refusing to discover any thing, the king said to him; Mr. Ailoffe, you know it is in my power to pardon you, therefore say that which may deserve it. It was said that he answered, that though it was in his power, yet it was not in his nature to pardon. He was nephew to the old earl of Clarendon by marriage; for Ailoffe's aunt was his first wife, but she had no children. It was thought, that the nearness of his relation to the king's children might have moved him to pardon him, which would have been the most effectual confutation of his bold repartee: but he suffered with the rest," [upon a sentence of outlawry passed in the reign of Charles.] Of Burnet's story concerning the severe repartee, Mr. Fox says, "This is one of those anecdotes which is believed rather on account of the air of nature that belongs to them than on any very good traditional authority, and which ought therefore when any material inference with respect either to fact or character is to be drawn from them, to be received with great caution." The treatment of Rumbold was a good deal like that of Hackstoun, of Rathillet. See his Case, vol. 10, p. 791. In that Case, also, the Council took upon them, previously to his trial, to determine the manner of his execution. be lett down and the rop being about his neck, his heart to be cutt out by the hangman and shown to the people upon the point of a bayinet or dager, round about on the scaffold, who is to expresse these words (Here is the heart of a bloodie traitor and murderer); and which thereafter the hangman is with disdain to cast in a fire prepared of purpose on the scaffold; and thereafter his head to be cutt off and shown to the people by the hangman in manner forsaid and expressing the former words; and then his body to be quartered, and one part thereof to be affixed at the Port or Tolbuith of Glasgow, another at Jedburgh, a third at Dumfries, | and a fourth at the Newtoun of Galloway; his head being to be affixed at the West Port of Edinburgh on a high pole, and to ordain the magistrates of Edinburgh to see this order putt in execution accordingly. CURIA JUSTICIARII S. D. N. Regis, tenta in pretorio Burgi de Edinburgh, vigesimo quinto, die mensis, Junii Anno millesimo, sexcentesimo octuagesimo quinto, per Honourabiles Viros, Dominos, Jacobum Foulis, de Colintoun, Justiciarii Clericum, et Alexandrum Seton, de Pitmedden unus, ex Commissionariis Justiciarii, dicti S. D. N. Regis. * The Lords continue the dyet against Ritchard Rumbold, Englishman, for treason and rebellion, till to-morrow at nyne o'clock, and ordaines witneysses and assysers to attend ilk persone under the paine of two hundreth merks. CURIA JUSTICIARIE, S. D. N. Regis tenta in 1683 or any bodilie harme to him, or the depryving, deposing or suspending him from the style, honour or kinglie name of the imperial crown of this realme, or the overturning of the government of the monarchie, or the rysing in arme or rebellion against his majesty or his authori tie upon any cause or pretext whatsomever, er the concealing and the not revealing of any of thes crymes, are crymes of high-treason, and punishable with forfaulture of lyffe, lands, and goods. Neverthelesse it is of verity, that the said Richard Rumbold being the most execrable of all traitors, did conspyre, undertake and endeavour to kill and murther our gracious soveraigne and his late majesty of ever glorious memory, at the said Richard his own house at Rye, in England, and with his own hand, in their returne from New Mercat to London in the moneth of years. But God of his great mercy and good ness having preserved our present and late gracious soveraigne from his horrid and bloodie cat than was designed by reason of an accider hands, by their coming sooner from Newmar tall fire happening ther, yet he the said Richard continued in his horrid plotts and contrivances, curitie he fled over to Holland, and to the late and for promoting thereof, and for his own se earle of Argyle, and with him and other execrable traitors there proceed further and further in the saids plotts, and did conspire the overturning of the government of these kingdomes, and accordinglie he and the said late earle of Argile, and severall other rebells and traitors, did invade this kingdom, with ships, men, armes, and amunition, and landed with them in the West Highlands of Scotland upon the day of May last, and there issued furth their treasonable proclamations and declarations, did convocat and gather together his majestie's highlands and islands thereabout, in open rebelsubjects within the shyres of Argile Tarbat lion against his majestie and his authoritie, did take in and maintaine forts, strengths, and gar pretorio Burgi de Edinburgh vigesimo sexto die mensis Junii anno millesimo sexcentesimo octuagesimo quinto, per no bilem et potentem Comitem Georgium Comitem de Linlithgow, Justiciarium Generalem, et Honorabiles viros Dominos Jacobum Foulis, de Collingtoun, Justi-risons, against him and his forces, did robb and ciariæ Clericum, Johannem Lockhart de Castlehill, Davidem Balfour de Forret, Rogerum Hog de Harcarss, et Alexandrum Seton de Pitmedden, Commissionarios Justiciariæ dicti S. D. N. Regis. - Curia legitime affirmata. Intran, Richard Rumbold, designed collonel Rumbold, maltster at Rye, in the countie of Hartford in England, indyted and accused, that wher notwithstanding be the common law, lawes and acts of parliament of this and all other well governed nations, particularly be the second act, second session, and flyft and first session first parliament king Charles the second: The plotting, contryving, or intending the death or destruction of the king's most sacred majestie, * So in the original. See a note in p. 881, of the tenth Volume of this Collection. plunder the goods and houses of his majestie's tinue in open rebellion against his majesty and Persewer.-Sir George M'Kenzie, of Rosehaugh, his majestie's Advocat, declares he restricts his lybel to the second part thereof, viz. that the pannall did associat liimself with that * See a Note in Vol. 10, p. 807. execrable traitor, Archibald Campbell, somtyme earle of Argile, and invad this kingdome in armes in manner lybelled. farder sayes that he heard James Stewart had. Sic Subscribitur, Followes the Verdict of the Assyse. The Lords Justice General, Justice Clerk and Commissioners of Justiciary, having considered the lybell persewed be his majesty's Advocate against Richard Rumbold, with his majestie's The Assyse all in one voice finds the pannall advocates declaration, whereby he restricts the Richard Rumbold, guilty, of the treasonable same, they find the lybell relevant as it is re-invading this kingdome in armes in manner stricted to inferr the paines of treason, and relybelled in respect of his own judiciall conmitts the same to the knowledge of the Assyse. fession. ASSISA. James Paterson, brewer. The Assyse lawfullie sworne, no objection of the law in the contrair. The pannall Richard Rumbold, confesses, and declares in presence of the justices and assyse, that he did associat himself to Archibald Campbell, late earle of Argile, and with him and others invadit this kingdome in the moneth of May last in armes, and that he was a commander of a partie of the rebells under Argile, who assaulted a partie of his majesties forces, under the marques of Atholl, at Ardkinglass, and that ther was on killed on each syde, being interrogat if he knew John Balfour, of Kinloch, ane of the archbishop of St. Andrew's murtherers, declaires he did not know him till he came a shipboard, and confesses that the said John Balfour was designed to be a cornet of horse, and was present with the late Argile him and others in the highlands; confesses he knowes James Stewart, and hes met several times with him in Holland; and that James Stewart did know of his coming to invade Scotland, and sir John Cochran told him that James Stewart said to him before they parted from Holland, that the late earle of Argile would spoile all by his landing in the highlands, and lingering there, and that the best and surest way was for them to land in the main land of the west of Scotland, and to offer armes to such as would take them; and that he heard the late earle of Argile or some other say, that James Stewart was for asserting the duke of Monmouth's title to the crown, and See sir Patrick Hume's Narrative published by Mr. Rose, with His Observations on Mr. Fox's Historical Work. Sic Subscribitur, E. SNOW, Chancellor. The Lords Justice Generall, Justice Clerk,and Commissioners of Justiciary, having considered the said Verdict of Assyse, therfor be the moutla of John Leslie Dempster* of court decerned and adjudged the said Richard Rumbold to be caryed from the barr to the laigh councill house of Edinburgh, and from thence in a hurdle or sledge, to be led be the hangman,. to the mercat crose of Edinburgh, and there to. be hanged on a gibbet, and immediatlie let doun alive, and the rope being about his neck, his heart to be cut out by the hangman, and showen to the people upon the poynt of a bygonet or dager round about the scaffold, at the foot of the gibbet errected for that purpose, and the hangman is to express these words: "There is the heart of a bloodie traitor and murderer.” And which therefter the hangman is to cast into a fire prepared on purpose on the scaffold; and ordains the said Richard Rumbold's head to be cut off and showen to the people in manner forsaid, and expressing the forsaids words, and then his body to be quartered, and one part thereof to be affixed on the Tolbuith of Glasgow, another at Jedburgh, a third at Dumfries, and the fourth at the Newtoun, of Galloway; and ordaines his head to be affixed on the west port of Edinburgh, on a high pick or pole erected for that purpose; and ordains this sentence to be put to execution this present 26th of June+ betwixt two and fyve o'clock in the afternoon preceislie, and ordaines his name, fame, memory, and honours to be extinct, his blood to be tainted, and his armes to be riven furth and delate out of the books of armes, sua that his posterity may never have place nor be able herefter to bruik or injoy any honour, officers, titles, or dignities within this realme, in tyme coming, and to have forfault amitted and tint all and sundrie his lands, heretages, tacks, steddings, roumes, possessions, goods and geir, whatsomever pertaining to him to our soveraigne lord, to remaine perpetuallie with his highness in propertie. Which was pronounced for doom. The following Account of the Execution of Rumbold is inserted in the Western Martyrology: As to this, see vol. 10, p. 108. + See a Note in p. 844, of vol. 10... |