Joch;

Stewart, of Appin; M'Lean alias M'Donald, elder, of Glencoe; Alexander McDonald, younger, of Glengary; Donald M'Neill, of Gallahelly; and sir John M'Lean, to be execute to the death, denunced as traitours, and underly the pains of treasone whenever they shall be apprehended, and that | at such tymes and places and in such manner as their majesties or the estates of parliament, or the commissioners of justiciary, shall appoynt; and ordains the saids persons, their name, fame, memory, and honours, to be extinct, their blood to be tainted, and their armes to be riven furth and delett out of the books of

armes, so that their posterity may never have place nor be able hereafter to brook or joyse any honours, offices, titles or dignities in tyme comeing; and the saids persons imediately abovenamed to have forfaulted, amitted and tint, all and sundry their lands, heretadges, tacks, steedings, roums, possessions, goods, and gear, moveable and immoveable, whatsomever pertaineing to them, to belong to their majesties, and to remain perpetually with them and their successors in property. Which was pronounced for doom; and whereupon their majesties advocat asked and took instruments.

398. The Trial of ALEXANDER HALYBURTON and WM. FRASER, for High Treason: 4 WILLIAM & MARY, A. D. 1692. [Now first printed from the Records of Justiciary in Edinburgh.]

CURIA JUSTICIARIE, S. D. N. Regis et Reginæ ment king James the second, it is statute and tenta in Pretorio Burgi de Edinburgh, ordained, that if any man comitt treasone septimo die mensis Martij 1692, per no- against the king's persone or his majestie, or bilem et potentem comitem Robertum ryses in fear of weir againest him, or recepts Comitem de Lothian Justiciarium Ge- any that hes comitted treasone, or supplies neralem, et honorabiles viros, Dominum them in help, redd, or counsell, or stuffs the Colinum Campbell, de Aberuchill, magis- houss of them that are convict of treasone, and trum Davidem Home, de Croserig, Jo- holds them, againest the king, or that stuffs the hanem Lauder de Fountainhall, magis-houss of there owne in furthering of the king's trum Archibaldum Hope de Rankeillor, et magistrum Jacobum Falconer de Pheasdo, Commissionarios Justiciariæ dicti S. D. N. Regis et Reginæ.

Curia legittimæ affirmata.

Intran'

Alexander Halyburton,

rebells, or that assailzies the king's castles, shall be punished as traitours; and if any persone or persons be slandered or suspect of treasone, they shall be taken and remaine in firmance while the tyme they have tholed ane assyse, whether they be guylte or foull; and be the nynty seventh act parliament seventh king James the fyth, all persons were comanded to

William Fraser, prisoners in the Tolbooth apprehend rebells and are discharged to reof Edinburgh.

INDYTED and accused, at the instance of sir William Lockhart, there majesties sollicitor; sir Patrick Home, and Mr. Hugh Dalrymple, advocates, assessors to the said sir William, for the majesties interest; That whereas by the comon law, the laws of this and all other well governed nationes, the crymes of treasone and rebellione, and the aiding, assisting, abateing, suppleeing, intercomoneing, and keeping correspondence with, or doeing favours to manifest rebells and traitours, are punisheable with forfaulture of lyfe, lands, and goods; and be the third act of the first parliament of king James the first, It is statute and ordained, that no man openly or notourly rebell against the king's persone, under the pain of forfaulture of lyfe, lands, and goods; and be the thretty seventh act second parliament king James the first, it is statute and ordained, that no man wilfully recept, mantain, or doe favour, to open and manifest rebellors against the king's majesties and the comon law, under the pain of forfaulture; and be the twenty fourth act sixt parliament and fourty nynth act twelt parlia

cept, supplie, or doe favours to them; and be the hundreth fourty and fourth act parliament twelth king James sixt, all his majesties subjects are discharged to supplie or intercomune with traitors or rebells, or give them any relieff or comfort, or any help, redd, or counsell, but to doe there outmost diligence to apprehend or expell them out of the countrey in maner specified in the said act; and be the fyfth act session first parliament first king Charles the second, it is declared, that it shall be high treasone for the subjects of this realme, or any number of them, less or more, upon any pretext whatsomever, to ryse or continow in armes, to make peace or warr, or any treaties or leagues without his majesties speciall approbatione; and be the second act session second parliament first king Charles the second, it is declared high treasone to levie warr or take up armes against the king, or any comissionat by him, or to intyse any stranger or others to invade any of his dominiones, or to wreit, print, or speak any thing that may express or declare such ther treasonable intentiones; and be the comon law, lawes and acts of parliament of this kingdom, airt and pairt, is punishable as the

and takeing' in, and keeping out, there majes ties fort and garisone of the Bass, againest there majesties and there authority, in maner mentioned in there lybell ut in die precedente.' Persewer-Mr. Hugh Dalrymple, advocat, assessor to there majestie's sollicitor.

Mr. Hugh Dalrymple produced ane warrand of privie counsell for persewing the pannalls, whereof the tenor followes: " Edinburgh, the "twenty-ane day of January, 1692 yeares. "The lords of there majesties privie counsell "doe hereby perremptorly appoint and requyre "there majesties sollicitor or his assystants, "without delay, to intent and prosecute an In"dytment of treasone befor the lords commis"sioners of justiciarie againest Alexander Ha"lyburtoun, and William Fraser, prisoners in "the Tolbooth of Edinburgh, which they were "appoynted to doe by a former Interloquitor "and hes neglected. Extracted by me,

|

the Bass, according to their uswall maner, with some others of the souldiers, the deponent heard a shot of a gune goe off, and a crye followed, and immediately thereafter the deponent saw ensigne Roy and ensigne Dunbar, who wer Alexander Haleyburtoun, the pannall, with ther prisoners in the Bass, come to the wall head, with three guns in there hands presented to the deponent and others, who were in the boat, lyeing imediatly under the entrie of the Bass, and did threatten the deponent and the rest who were in the boatt to shoott at them, and kill them if they offered to come into the Bass, and would not instantly goe away with the boat and depones, that when the deponent came last out of the Bass to the said boat the day forsaid, he left John Hamilton the centinell standing upon his centinell post wholl and sound; and that he was, efter the said shott, putt down to the boatt with the cran, and was shott through the shoulder; and Sic Subscrib. D. MONCREIFE, Cl. S. Con." depones that they ordered them to stay with the Sir Robert Coll and Mr. Charles Gray, ad-ing to the Bass came into the cran, with two boatt a litle tyme, till another litle boat belong. Vocatts, being allowed to propone defences for barrells of aile and two dozen of whyt loaves, the pannells, they declaired that they would or thereby, was taken up from the boat, and propone no defences for the pannalls. ordered them to stay till that was taken, least there removeing should scarr the little boat from comeing in with the provisions. scientie, he was for a considerable tyme before a souldier in the Bass, and saw and knew AlexThe Lords justice generall, and commissioners of justiciarie, having considered the indyt-distinctly speak the threattening words over the ander Halyburtoun, the pannall, and heard him ment persewed by there majesties sollicitor and pannalls; depons he cannot wreit. his assystants, againest Alexander Halyburtoun and William Fraser, prisoners, they ffind the said indytement relivant to inferr the crymes and paines of treasone lybelled, and remitts the same to the knowledge of ane Assyse.

Mr. Hugh Dalrymple, as persewar, desyred therefor that the lybell might be advysed and remitted to the knowledge of the inquest.

Sic Subscribitur, LOTHIAN, I. P. D.

ASSISA.

Home, of Nynewalls.
William Cuninghame, off Buchguhan.
Capt. Patrick Chalmers, beltmaker.
Arskin, of Balgowin.

James Brown, merchant, in Edinburgh.
James Livingstoun, merchant, yr.

John Blackstoun, periwig-maker, younger.
Alexander Robertson, glover.
Andrew Brown, watchmaker.
John Bruce, feltmaker.

Robert Sandielands, merchand.
Andrew Milner, masson.
Alexander Haiges, wright.
Alexander Robertson, armorer.
John Naismith, wright.

The Assyse lawfully sworne; no objection of the law in the contrair.

The Persewer for probation adduced the witnesses efter deponeing.

John Liddell, souldier, at Castletoun, aged twenty-two yeares, unmarryed, purged of malice, prejudice, hatred, ill-will, and partiall counsell, and solemnly sworne, depones that upon the fytteint of June the deponent being imployed to carry coalls from a vessell up to

Sic Subscribitur,

Causa

LOTHIAN, I. P. D.

aged twenty-eight yeares, solutus, purged of
Ritchard Midletoun, souldier, at Castletoun,
malice, prejudice, batred, ill-will, and partiall
[councill] and solemnly sworne, depones con
formis precedenti in omnibus; and farder adds,
that Hamilton, the centinell, was all bleeding
of his wounds when he came to the boatt, and
that the first persone that appeared to the depo
nent and the rest who were in the boat, imedi-
atly after surprising the Bass, was Alexander
Halyburtoun, the pannel, with a gun in his
hand at the stair head, and threattened the de-
ponent and the rest who were in the boat, if they
offered to come up to the Bass he would kill
them; and the deponent haveing asked the
pannall what he meaned, the said Alexander
Halyburtoun answered, that what he did was
for his liberation out of the Bass, and when the
panuall threattened the deponent, he said, if the
deponent and the rest would goe away with
sustain no prejudice, otherwayes he would kill;
the boat and not offer to come up, they would
and thereafter the deponent saw the pannall
and the other two persones upon the wall head
in the Bass. Causa scientie, he was a souldier
two yeares in the Bass, and knew the said
Alexander Halyburtoun, and saw and heard as
he hes deponed; and this is the trueth as he
shall answer to God, and depones he cannot
wreitt.
Sic Subscribitur,
LOTHIAN. I. P. D. C.

pryseall of the Bass in June last, he was one of those that was imployed to lye at Castletoun to wait the motion of those that were within that island, and that about the end of harvest he was sent in with a drummer and two mariners, with a printed act of indemnity, to make ane offer thereof to him who commanded the garison for himself and the rest, if they would surrender the Basse to his majesty, and according

George Porteous, Marchemount herauld, solemnly sworne. purged of malice, prejudice, and partiall counsell, and aged fourty-six yeares, or thereby, marryed, and interrogat upon the trueth and veritie of ane execution, under his hand, daited the twenty-first of June last, in obedience to ane act and ordnance of counsell, dated the sixteint of the said month of June, ordering the deponent to charge Alexander Halyburtoun, the pannell, and others, toly he was permitted to enter the rock and called surrender up the Bass, and to render themselves prisoners, under the paine of treasone, as the said act and ordnance more fully beares; depones that in obedience and conforme to the said act and ordnance, the deponent did truely and reallie execute the same, conforme to the tenor of the said execution in all points befor the witness therein contained; which act, ordinance, and execution, were judicially read and showen to the deponent; and farder depones, that efter he hade execute the said act and order of the counsell in the way and maner contained in the said executione, a man who owned his name to be Halyburtoun, spoke to the deponent over the wall, and told the deponent that they could not render the Bass, ffor they thought they would be in no better state then they were in before causa patet; and this is the trueth, as he shall answer to God. Sic Subscribitur,

G. PORTEOUS.

for the commanding officer, and one Mr. Midletoun came to him and owned himself to be the person who commanded there in cheiff, to whom he delyvered his comission, and gave him the act in his hands, who after reading thereof huffed and appeared verie dissatisfyed; but cannot be positive whether Mr. Hallyburtoun, the pannell, was present there, when he first requyred the governour, or if he came sometyme after; but depons he heard them speaking together anent the said indemnity, and heard them express their detestation againest the present government, and heard them say they would receive comand from none but king James, who was the rightfull king, and that he knew Mr. Hallyburton, and that he hade a sword about him and a gune, and that they detained the deponent prisoner, from Thursday at two o'clock, till Friday in the evening, upon the pretence that the king's souldiers hade taken away there boat; aud Henrie Fraser, Ross herauld, aged fourty-haveing taken a view of William Fraser, priyears, marryed, purged of malice, prejudice, partiall counsell, and solemnly sworne, depones conformis precedenti in omnibus, with this variation, that he does not remember that the person who spoke over the wall head owned his name to be Halyburtoun; but he heard the boatmen say that it was Alexander Halyburtoan and ensigne Midletoun with him; but he could not distinctly know him, the wall head being so high from the place where the deponent was, which act and ordinance of counsel, with the execution thereof, were showen to the deponent. Causa scientie patet, ffarder depones, that when the papers were towed up the rock, to the best of his memory, he heard of the men who spoke over the wall say, they would not render the Bass; and this is the trueth as he shall answer to God.

Sic Subscribitur,..
HENRY FRASER.

soner at the bar, he thinks he sawe him in the Bass at that tyme, when he went in with the offer of the indemnity, causa patet ; and this is the truth as he shall answer to God.

Sic Subscribitur,

JOHN SLOSS.

James Wishart, a drummer in the earle of Leven's regiment, aged thretty-three years, marryed, purged of malice, prejudice, hatred, ill-will, and partiall counsell; depons that he went along with serjeant Sloass from Castletoun to the Bass, in the end of harvest of last, with ane offer of the indemnity to those who had surprised the rock, and that the serjeant went first up, and left him and the two mariners in the boat, and that afterwards he and the sea men were called for, and a litle English boy was put by them in the boat, and when he came up he sawe Mr. Hallyburton, and two or three more communing with the serjeant, but did not know what past betwixt them, but they thrust the two seamen in to the holl, and did detain forced them to drink king Jameses health, and the serjeant and the deponent all night, and ane other boat haveing come off from the land to see what was become of them, Mr. Midletoun gave orders for styleing a canon to shoot at it, but Mr. Hallyburtoun was against it, and the deponent thinks the distance was so great as the canon would have done no skaith ; and farder depons, that they forced him to pull the feathers off the sollen goose, and that when he was goeing away with his drum, Mr. Midletoun caused take it and his sticks from him, but cannot charge their incivilities upon

Mr. Hallyburton the pannal; and depones he begone; and that Mr. Fraser offered the deposawe Mr. Hallyburton, the pannall, have a nent a reed coat, and he swore he would never gunn in his hand; and this is the trueth as he take up armes against king William, whereon shall answer to God; depons he cannot wreitt. Mr. Halyburtoun desyred William Fraser to Sic Subscribitur, LOTIHAN, I. P. D. C. let him allone to save his oath; and depones, that they were very ill used, haveing only a peck of meall in the week among four of them; and this is the trueth as he shall answer to God; depones he cannot wreitt.

David Christall, boatman and skipper of the Janet, of Burntisland, aged thretty-eight yeares, marryed, purged of malice, prejudice, ill-will, and partial counsell, and solemnly sworne, depones that in the moneth of August last, the boat called the Janet, of Burntisland, whereof the deponent was one of the saillors, being lyeing then at Leith, was fraughted to the Ffyffe-syde to carrie some provisions to the north side, and that amongst other passengers, William Fraser, the paunal now at the barr, and one Middletoun, were two, and when they were out, these two persons and others fell upon the deponent and the other boatmen, and comanded them to change their course, and steir straight to the Bass, and the deponent and the other seamen showing their unwillingness, they did beat them, and threatened to kill them if they refused; and that Mr. Midletoun did hold a loaded pistoll and a bygonett to the deponents breast, who was then sitting at the helme, and that when they came to the Bass, passengers took out all the provisions, consisting of meall, bisket, butter, brandy, &c. up to the Bass, and took the deponent and the other boatmen alongst with them, and keeped them there about the space of six days; and that he sawe William Fraser as active and busie as any other; and that he heard severalls shotts they tyme he was there, which he conceaves were levelled at fisher boatts goeing by; that he and the rest were forced to stand centries in the night tyme; and this is the trueth as he shall answer to God; depcnes he cannot wreitt.

the

Sic Subscribitur, LOTHIAN, I. P. D. C.

Alexander Rankeiller, seaman in Burntisland, aged fourty yeirs, or thereby, marryed, purged, and sworne; depones that he was one of the seamen in the boat forsaid, and that when they were about Inshkeith he saw William Fraser, the pannell, with the rest, compell the seamen to steir towards the Bass; and in regaird of some of there aversion he sawe him beat Edward Serples on the mouth, and take John Thomson by the nose, and that William Fraser wes verie bussie in the disloadeing the boatt; and that the deponent being taken prisoner with the rest he saw him shoot on of the guns on the Bass at a boat goeing by, and that he would have forced the deponent to put on a reed coat, which he altogether refus ed, but he was necessitat to stand centry in the night with the rest of his neighbours, whenever he was comanded; and depones that Mr. Halyburtoun carryed very civilly to him; and this is the trueth as he shall answer to God.