their own safety, to meet at the way to manadge his dominions and punish his day of September, 1689 years, and to rebells; and albeit he should send no assistance bring alongst with them the number of to them at all, they will all dye with their fencible men; that is to say, each one of them swords in their hands befor they faill in their their proportionall part and number, parti- loyalty; and swore alleadgeance to their sovecularly y'rin enumerat, but it is therby de-reign; and desyres he may then judge what clared, that in case any of the rebells shall as-effect duke Hamilton's letter hes upon them; sault or attack any of the persones mentioned but that they had gotten ane honourable father in the said bond of association, betwixt the for that storie from Ireland, and altho they can date thereof and the forsaid day of randevouze, better tell him how matters goe in Ireland, and they doe solemnly promise to assist one ano- that they pity those on whom such stories hes ther to the outmost of their power; dated the influence, yet since they have no orders to offer 24th day of August, 1689 years; Item, ano- conditions to any rebells, they allow his grace ther bond of associatione betwixt the viscount and the major-generall to believe on, and take of Frendraught, John Grant, of Ballindalloch, their measures by their success till his majestie and others, dated att the 15th day of (the late king) his further orders; and they January 1690 years, whereby, as they pretend thank the major generall for the good meaning in testimonie of their loyalty to their sacred of his invitation, though they are confident be and dread soveraign; and for the security of had no hopes of succes, and that they will their freinds and good neighbours, they vow shortly endeavour to give him a requyteal; and protest befor the Almighty God, and on and that those of them who live in islands have their salvation at the great day, to goe on se- already seen and defyed the prince of Orange cretly and with all the power and strength they his friggatts; and that they had returned duke have to stick and byde by one another, and Hamilton's letter, becaus they had more use when any of them shall be stressed or any for it then they: And after production and ways molested by any pairty or enemie what-reading of the saids two bonds of associatione, somever, they shall repair to their aid with all their strength and power, and that upon the first call without any further murr or delay; and that they shall never be byassed or broken off the said associatione, without the consent of his majestie's generall and the major pairt of themselves, So help them God; as also produced ane letter wryten by the said sir Ewan Cameron, of Lochzell; Mr. Colin McKenzie, uncle to the earle of Seaforth; John Grant, of Ballindalloch; the laird of M'Naughtoua; sir John M'Lane, of Dovart; and others of the highland clans, direct to major Generall M'Kay from Birse, the 17th day of August 1689, in answer to his q'by they acknowledge the recept of the major generall's letter fra Strathbogie, and they said that he gave account to brigadeer Cannon from St. I'nstone, to which he gave a civill return, for by telling that they support themselves by fictions and stories (a thing known all the world over) is no railleing; and that the Christian means (as the major generall said in his last) they make use of to advance their good cause by, is evident to all the world, and the argument they use to move them to address to their government, is consequentiall to the whole; for, instead of telling them what Christians, men of honour, good subjects, and good neighbours, ought to doe, he tells them in both letters that his majestie (the late king) hes hott warrs in Ireland and cannot in baste come to them, which tho it were alse trew, as they know it is not, is onely ane argument from safety and enterest; and that he might know the sentiments of men of honour, they declare to him and all the world, they scorne his usurper and the indemnities of his govern ment, and to save his further trouble by his frequent invitations, they assure him that they are satisfied, their king take his own tyme and and missive letter abovementioned, in audience Frendraught; Mr. Collin M'Kenzie, uncle to James Edmonstoun, of Newtoun of Doune; said backbond bears; as also that the said William earle of Craufurd having ane assignation from the deceist earle of Crawfurd, his father, of all debts and soumes of money, hath right to the soumes dew to him by the said James earle of Dumfermling, his father, on any account whatsoever; and therfor the said William Hallybur-earle of Crawfurd, for himself, and in name Hallyburtone, of of the said countes of Craufurd, his spous, Stewart, of Appin; protested that the doom and sentence of forM'Lean, alias M'Donald, elder, of faulture to be given aud pronounced against Glencoe; Alexander M'Donald, younger, of the said James earle of Dumfermling shall not Glengarie; David M'Neill, of Gallochelly; be prejudiciall to their saids debts and claims; sir John M'Lean of Dowart; Donald M'Do- but that the estate to be forfaulted shall be nald, younger, of Sclaitt; Grant, of burdened and lyable therefore; sicklyke as the Ballindalloch; and the laird of M'Naughtoun; said sentence of forfaulture had not been prothat the fornamed persons were actually in nounced, and therupon asked and took instruarmes against their majesties after the 4th day ments, which protestation their majesties and of May, 1689, or joyned with any of the rebells the estates of parliament have admitted and who were in armes after the said day; and admitts; and sicklyke captain Charles Straihaving also considered the bonds of association ton protested, that the doom and sentence of and missive letter abovementioned, produced forfaulture to be given and pronounced against by the lord advocat, which he declared he made the viscount of Dundee, shall not prejudge him use of, for adminiculating of the probation of the soume of 5,000 merks a'rents thereof, against the said Donald McDonald, younger, of contained in a bond granted by the late visSclaitt; and Grant, of Ballindalloch; count to provest Kennet, and in a translation they fand and hereby finds the forsaid cryme be him in favours of the said captain Charles of treasone as it is found relevant, viz. that the Straiton, and which bond was granted several fornamed persones were actually in armes years befor the late happie revolution, which against their majesties, after the 4th day of protestation their majesties and the said estates May, 1689 years, or joyned with the rebells of parliament also have admitted and admitts ;. who were in armes after the said day, suffi- And therfore our soveraign lord and lady, and ciently verified and proven against the said John, the estates of parliament, by the mouth of viscount of Dundee; Mr. David Grahame, John Ritchie, dempster of parliament, decerne his brother; major William Grahame, of Baqub- and adjudge the name, fame, memory, and aple; collonell Alexander Cannon; John Cleill- honour, of the said viscount of Dundee, and and of Fasken; James earle of Dumfermling ; viscount of Frendraught; Mr. Colin McKenzie, uncle to the earle of Seaforth; sir John Drummond, of Machanie; William Craufurd, younger, of Ardmillan; James Craufurd, his brother; the laird of Strowan; Robertsone; James Edmonstoun, of Newtoun of Doune; sir Evin Cameron, of Lochzeell; Cameron, his eldest son; Halyburton, of Pitcurr; -Stewart, of Appin; M'Lean alias M'Donald, elder, off Glencoe; Alexander M'Donald, younger, of Glengarie; -M'Neill, of Gallachelly; sir John McLean of Dowart; Donald M'Donald, younger, of Slait; -Grant, of Ballindalloch; and the laird of M'Naughtoun; haveing past severall votes upon advyseing of the probation as to each one of y'm, upon pronounceing of which interlocutor, William earle of Crawfurd, for himselfe and in behalfe of dam Henrietta Seton countes of Wigtoun, now countes of Craufurd, his spous, gave in the protestation under wryten, representing, That wheras the said James, earle of Dumfermling, upon ane assignatione granted to him by the said countes of Craufurd of two thousand merks of her joynture, did grant to the said countes a back bond, dated the 2nd day of May, 1683 years, declareing the samen to have been granted in trust and for the behoove of the said countes and her children, as the Halyburton, of Pitcurr, to be extinct, their blood to be tainted, and their names to be riven furth and be delett out of the book of armes, sua that their posteritie may never have place nor be able hereafter to brook or joyse any honours, offices, titles, or dignities, in tyme comeing; and the said persons to have forfaulted, amitted, and tint, all and sundry their lands, heretadges,tacks, steedings, roumes, possessions, goods, and gear, moveable and immoveable, whatsomever pertaining to them, to belong to their majesties, and to remain perpetually with them and their successors in property; And lykeways their majesties and the estates of parliament, by the mouth of the said John Ritchie, dempster of parliament, decern and adjudge the said James earle of Dumfermling; draught; viscount of Fren lord Dunkeld; major William Grahame; collonell Alexander Cannon; John Cleilland, of Fasken; Mr. Colin McKenzie, uncle to the earle of Seaforth; sir John Drummond, of Machanie; William Craufurd, younger, of Ardmillan; James Craufurd, his brother; the laird of Strowan; Robertson; David Grahame, brother to the viscount of Dundee ; James Edmonston, of Newtoun, of Doun; sir Ewin Cameron, of Lochzeel Cameron, his eldest son; Donald loch; Stewart, of Appin; armes, so that their posterity may never have McLean alias M'Donald, elder, of Glencoe; place nor be able hereafter to brook or joyse Alexander McDonald, younger, of Glengary; any honours, offices, titles or dignities in tyme Donald M'Neill, of Gallahelly; and sir John comeing; and the saids persons imediately McLean, to be execute to the death, denunced abovenamed to have forfaulted, amitted and as traitours, and underly the pains of treasone tint, all and sundry their lands, heretadges, whenever they shall be apprehended, and that tacks, steedings, roums, possessions, goods, at such tymes and places and in such manner and gear, moveable and immoveable, whatsomas their majesties or the estates of parliament, ever pertaineing to them, to belong to their maor the commissioners of justiciary, shall ap-jesties, and to remain perpetually with them poynt; 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 and their successors in property. Which was pronounced for doom; and whereupon their majesties advocat asked and took instruments. 398. The Trial of ALEXANDER HALY BURTON 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 tenta in Pretorio Burgi de Edinburgh, septimo die mensis Martij 1692, per nobilem et potentem comitem Robertum Comitem de Lothian Justiciarium Generalem, et honorabiles viros, Dominum Colinum Campbell, de Aberuchill, magistrum Davidem Home, de Croserig, Johanem Lauder de Fountainhall, magistrum 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, ment king James the second, it is statute and ordained, that if any man comitt treasone against the king's persone or his majestie, or ryses in fear of weir againest him, or recepts any that hes comitted treasone, or supplies them in help, redd, or counsell, or stuffs the houss of them that are convict of treasone, and holds them, againest the king, or that stuffs the houss of there owne in furthering of the king's 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 re of Edinburgh. 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 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 currespondence with, or doeing favours to mani-be high treasone for the subjects of this realme, fest 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 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 principall cryme: Nevertheless it is of verity, as shall doe in the contrairie, that they shall be that the saids Alexander Halyburton and Wil- holden and repute, treatted and proceeded against liam Fraser, haveing shaken of all fear of God, as airt and pairt of and accessory to the forsaid respect, and regaird to there majesties autho- cryme of treasone and rebellion againest the rity and lawes, hes presumed to comitt, and is king and his authority with the outmost seveguilty of the crymes above mentioned, in sua rity of the law; And yet, notwithstanding the farr as the said Alexander Halyburton, haveing said Alexander Halyburtoun, with the saids entered into a most wicked and damnable com- persones and others, his accomplices, did most bination with Michael Midletoun, Patrick Roy, presumptuously ffortifie, and by open violence and David Dunbar, sometyme prisoner in the defend and mantain, the said garisone of the Bass, and several other persons, to surprise the Bass, against the king and his authority; As fort and garisone of the Bass, where they were also, the said William Fraser haveing entered prisoners; the said Alexander Halyburton, into a most wicked and traitterous contryvance with his accomplices, did, upon the day with the said Michaell Midletoun, who was a of June* last, 1691 years, or ane or other of declaired traittour by the forsaid proclamathe days of the said moneth, surpryse and tion, and Crawfurd, of Ardmillan, younger, make themselves maisters of the said fort and a forfaulted persone and others, his accomplices, garrisone of the Bass, and notice being given for supplyeing the Bass with provisiones efter thereof to the lords of ther majesties privie it was surprysed by the said Alexander Halycounsell, they, by there act the seventeinth of burtoun and the other persons above named, he June last, did recommend to sir Thomas Li- the said William Fraser with others, his accomvingstoun, comander in cheiff of there majes- plices, haveing hyred a boat under pretence of ties forces in this kingdome, to take such ef- carryeing some provisiones and hushold furnifectual course for reducing of the said island ture from Leith to the Elie, upon the lady from the hands of the foresaids, who were in Ardross accompt, and there being a certain the possessione thereof, as he should think fitt, quantity of meall, bisket, pease, butter and and ordained any of there majesties heraulds to brandie, and other provisions put aboard the pass to the said island of the Bass, with there said boatt, and when the boatt was sett to sea, coatts displayed, in there majesties name, to re- and steering over to the Elie, the said William quyre and comand the said Alexander Haly- Fraser and his accomplices did force the boatburtoun, and the other persones above named, men to alter there course and goe straight to his accomplices, to delyver up the said island the Bass; and when some of the boatmen and fort; and also to render themselves pri- seemed to be refractorie and unwilling, the said soners under the pains of treasone, certifyeing William Fraser did beat some of them upon them if they refused they should be treated the face, and did thraw about there nose; And as traittours, with all rigour and severity, when the boat arryved at the Bass, the said and that without mercie, which warrand William Fraser was very active in helping up was accordingly duely execute againest the the provisions to the rebells in the Bass, and so said Alexander Halyburtoun, and the other soon as he came there he was made gunner, persons above named, his accomplices, as and did fyre severall canons at fisher boatts and appears by the act of privie counsell and others as they came by, of designe to have sunk the heraulds execution, and the said Alex- them, or otherwayes to have yielded to these ander Halyburtoun, and the saids other per- rebells; and he and his other accomplices did sones, haveing most contemptuously refused to keep the boatmen prisoners in the Bass for segive obedience to the said charge, the lords of verall days, and hade almost sterved them for privie counsell did emitt a proclamation, of the hunger; And ordered them to put on a red dait the first day of Jully thereafter, declareing coat, take up armes, and stand centry to there the said Alexander Halybourtoun, Michaell assistance; off the which treasonable crymes Midletoun, and the saids other persons, his ac- above specified, or ane or other of them, the complices, and all who hade joyned themselves saids Alexander Halyburtoun and William with them, in surprysing, mantaing, or defend-Fraser are actors, airt and pairt, which being ing the said garisone of the Bass, guilty of open and manifest treasone and rebellion, and ought to be persewed as traitors to the king, and discharged and comanded all there majesties subjects, that no persone presume to aid, abate, assist, harbor, or any wayes supplie the saids traittours, or any of them, under the pain of high-treasone; and that they doe not keep correspondence or intercommuneing with them without warrand of the privie counsell for that effect, under the pain forsaid, certifyeing such This word which occurs frequently in the MS. is uniformly so written, that it may be June or Jany. The context seems to require the former. VOL. XIII. found be ane assyse, they ought to be punished with forfaultur of lyfe, land, and goods, to the terror and example of others to comitt the lyke hereafter. Persewar-Mr. Hugh Dalrymple, advocat as assessor to there majesties sollicitor. Continued till next day at 2 o'clock. Intran' March 8th, 1692. and takeing in, and keeping out, there majesties 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 commissioners 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 Alexander Haleyburtoun, the pannall, with ensigne Roy and ensigne Dunbar, who wer 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 boatt belongvocatts, 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 Mr. Hugh Dalrymple, as persewar, desyred there removeing should scarr the little boat therefor that the lybell might be advysed and from comeing in with the provisions. Causa remitted to the knowledge of the inquest. scientie, he was for a considerable tyme before The Lords justice generall, and commission-ander Halyburtoun, the pannail, and heard him a souldier in the Bass, and saw and knew Alexers of justiciarie, having considered the indyt- distinctly speak the threattening words over the 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. Sic Subscribitur, LOTHIAN, I. P. D. John Naismith, wright.. Sic Subscribitur, LOTHIAN, I, P. D. aged twenty-eight yeares, solutus, purged of Ritchard Midletoun, souldier, at Castletour, malice, prejudice, hatred, ill-will, and partiall [councill] and solemnly sworne, depones conformis 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 deponent and the rest who were in the boat, imediatly after surprising the Bass, was Alexander Halyburtoun, the pannel, with a gun in his hand at the stair head, and threattened the deponent 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 pannall threattened the deponent, he said, if the deponent and the rest would goe away with The Assyse lawfully sworne; no objection of the boat and not offer to come up, they would 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 fyfieint of June the deponent being imployed to carry coalls from a vessell up to sustain no prejudice, otherwayes he would kill; |