of the days above lybelled, hade letters or other messages by word or write sent to him out of the Bass, from the said collonell Grahame, with a demand of supplie of some necessaries, such as ane iron chain and staple for their boate, and iron and leather with other particulars necessarie or usefull for the saids rebells, which letters being left at the house of one George Hoge in Weintoun or some other house there or therabout, to be delyvered to him; he gott the same, and according to the direction thereof mett with the bearer and told him so much, and promised that what was demanded should be sent into the Bass; and the said bearer haveing a letter of charge from the said Grahame to be delyvered to the said John Trotter out of his own hand, that he might forward it to France by the way of Rotterdame, and which Graham said was for the late king James, he the said John Trotter gott and tooke the said letter from the bearer when he mett with him att the place called Kitlenaked or therabout, and said he should be carefull of it, and not pleased that it was not left att Wintoune with the other letters that he might have gott it sooner; lykeas he the said John Trotter hade att severall tymes drunk the late king James his health; as also by the meanes and procurement of Trotter, there was provision of butter, bisket, cheese, and the lyke, sent from Cockennie and other places, in one or other of the dayes, moneths and yeires above lybelled, and further in one or other of the dayes of March, 1692, or in one or other of the moneths of the said yeire or other yeires lybelled, he the said John Trotter bought and purchased a boat, and sent her with provisions of shoes, stockens, butter, and suggar loaves, and the lyke into the Bass, and his accompt sent therewith containing more particulars then were sent; he was therafter challenged by ane express from the Bass, who mett with him at the place called Kitlenaked or, therabout, and he answered that he sent these things as he gott them, and he payed for them conforme to the accompt sent; and he the said John Trotter in ane or other of the dayes of the moneths of the yeires forsaid, sent for one William Robertsone, skipper, in Port Seatoun, to come to him to Wintoune, and ther he mett with him in companie with - M'Govan their majesties, and there they and each of them, getting and taking armes, under the command Michael Midletoun, or other commandant upon the place, did stay and continew in the garison to keep out that ffort against their majesties, att least they abod and continowed therin with the saids rebells and gave them their presence; and notwithstanding they the saids James Midletoune and William Nicolson, were with others latelie charged to surrender the said ffort under the paine of treason, yet they disobeyed the said charge and stand therfor denunced rebells; and further ther was a proclamation with letters of intercomuning out against them, notwithstanding of all which they continowed their said rebellious practices in keeping out the said ffort, and in aiding and assisting the garrisone therof soe to doe, untill that latlie in the moneth of May last, or therabout, they were apprehended; lykeas the said William Wetham haveing come in on or other of the dayes of the moneths of the yeires forsaid, and joyned or taken pairt with the saids rebells and rebellious garrison, by presence or otherwayes, for some dayes or moneths, did therafter goe out and went abroad to England, Flanders, and France, and to St. Germanes, in all or one or other of these places, corresponding, acting, or conspyreing traitorouslie against ther majesties, and with their enimies, untill that comeing back lately, with what intelligence and help he could bring to his accomplices in the Bass, he and the other two persones above named did meett together, and in their returne to the Bass were stoped about the darkning of the evening near to Whyt Kirk, where after some resistence made by them, they were taken by some of the king's true leidges and brought in prisoners to Edinburgh; Lykeas the said John Trotter and Alexander M'Leish haveing also shaken off all fear of God and regaird to their majesties, and the lawes and government, and turning most unnaturall and wicked enimies to their majesties and their native countrie, have from the beginning of the suppryseing and revolting of the said rock and fort of the Bass, which wes in the moneth of June, 1691 yeires, and since that tyme in one or other of the dayes of the moneths of the yeire 1691, 1692, 1693, 1694, and untill of late they were taken aiding, assisting, helping, supplyeing, recepting, harM'Clean, who were declared bouring, corresponding, or intercomuning, with rebells come from the Bass; and he proposed the forsaid enimies, and rebells in the Bass, or to the said Robertson to lend his boat, and to one or other of them, and hade furnished them serve in her with some men that he and the with meatt and drink, house, harbour, victwall, rebells were to putt on board to surprise capor something els usefull or comfortable to them, tain Burd's ship, which was appointed to watch or hade sent, caried, or caused carye to them the Bass, and offerred him ffourtie pound steermeatt and drink, or something else helpefullling for that service, but Robertsone refuseing, or comfortable to them; or hade intelligence with them by word, write, message, or some other way, or hade sent or caused send letters or messages to, or receaved letters or messages from them; and particularlie he the said John Trotter in the moneths of November 1691, or Janwarie, Februarie, or March 1692, or in ane or other of the dayes thereof, or on one or other he the said John Trotter treated with him to M'Clean, at the same time told that he hade gott threttie pund starlin to make provision for the Bass, and that he hade not made them but keept the money, and therafter meiting again with Robertsone be gave him two dollars more to encourage him in his undertaking; and meiting with him in Leith, he gave him money to buy a number of hames for the Bass, which Robertsone did, and he the said Trotter gave him money to pay them; lykeas the said John Trotter persisting in his said wicked and traiterous practices in the moneths of December and Janwarie last, or in one or other of the dayes therof, or in one or other of the dayes of ye moneths and yeires above lybelled, came to Dumbar and having changed his name (the better to cover his traiterous trafecqueings) from Trotter to Dods, he with the said Alexander M'Cleish, both or either of them treated with certain seamen, viz. William Smellie, Alexander Wood, George Ker, and Robert Spevin, and one or other of them to carye them into the Bass, and gave them good deed for that end, and also threatned them if they would not, and they refuseing he left with Alexander M'Cleish a letter to be sent into the Bass, which was sent in by the same seamen, and Alexander M'Cleish received a letter in answer from the Bass directed for him, which was sealled upon him when he was taken, and he ordoured the wife of James Hamilton, in Dumbar, in whose house he was taken, to burne the said letter, with two letters more that he gave her; lykeas there were found upon him, when he was taken, or at least he left with his said landlady, severall recepts and accompts and other notes and papers, aither writen by himself or others, all relateing to the said treasonable correpondence with and supplieing of the saids rebells in the Bass, which were held as repeated brevitatis causa, and should be showen to him or his lawiers before his tryeall, and then should be produced in judgment against him; as also be the said Alexander M'Cleish did upon one or other of the dayes of the moneths and yeires forsaid, meitt with the said skipper, William RobertM'Clean, att Aberdour, about the furnishing the rebells in the Bass; and lately in November, December, or Janwarie last, and upon one or other of the dayes therof, he the said Alexander M Leish hyred the forsaid four seamen, and treated with all or one or other of them, to carye in two men in their boat to the Bass, under pretext that they were to carie them only to a ship lyeing out at sea about nyne or ten a clock att night, but so he hade contrived it that those two men being armed should constraine and force the seamen to carye them to the Bass, which they lykewayes did, calling when they came near, a Hacket! a Hacket! which was the name of one of the said rebells, and probably of one of the said two; and the seamen haveing gott a guinie for their paines, he the said Alexander M'Cleish changed the said guinea, and destribute the money amongst them att their reVOL. XIII. son, M'Govan and turne, and bid them keep the matter quyet, for it would hang them as well as himselfe; and therafter, on one or other of the days forsaid, he again treated with the said seamen to carye in ale to the Bass, and de facto brought a barrell of ale to the boat syde that they might take it in, but they refused it; and further, upon one or other of the dayes forsaid he byred them, giveing them ale and money to goe into the Bass with a letter, which they caried in and delyvered at the Bass, and gott and brought ane letter in answere back againe and delyvered it to him; and he was also present when the said Trotter, under the name of Dods, and he and Trotter, or either of them, treated with the said seamen to carye in the said Trotter to the Bass, as lykewayes to serve Trotter to and from the Bass for a yeire if could have agreed with him; and in these villanous and traiterous practices, he and the said John Trotter were surprysed and taken, and by the haill forsaid practices, and by his accession therto, the haill forsaid persones all or each of them are guilty of the crimes of treason and oppen bostility or conspiracie against their majesties, at least were open enimies to their majesties and the kingdome, or airt and pairt of the samen, which being found be ane assyse, the ought to he punished by fforefaulture of their lyfe, lands, and goods, to the example aud terrour of others not to doe the lyke in tyme coming: JS. STEWART. Sic Subscribitur, advocat; sir James Ogilvie, of that ilk, yr maPersewars.-Sir James Stewart, yr majesties jesties solicitor. Procurators in defence.-Sir Patrick Hume ; Mr. David Forbes; Mr. John Frank. My lord advocat produced acts and warrands of councill for processing and persewing of the fornamed pannalls, for high treason, befor the justices, whereof the tenors followes: EDENBURG, May 30, 1693, Their majesties high commissioner, and the lords of privie councill do heirby give ordour and warrand to sir James Stewart, their majesties advocat, to raise and prosecute ane indictment of high treason befor the lords commissioners of justiciarie, against captain James Midletoun, William Wotham, ane Englishman, some tyme padge to the earle of Dumbarton, and William Nicolsone, late serjeant in collonell Pottors regement, in Flanders, under the king of Spaine, three of the rebells in the Bass, seased since their coming from thence, and now prisoners in the Tolbooth of Edinburgh. (Sic Subscribitur,) Tweddal, Mel vill, Drumlangrig, Argyll, Erroll, Linlithgow, Strathmore, Annandale, Selkirk. Extracte by me, Sic Subscribitur, PA. MONCRIEFF, C. St. Con. EDENBURGH, Feb. 1, 1694. The lords of their majesties privie councill doe hereby approve of the committment of 31 John Trotter, —— M'Cleish, and Gavin Johnstoune, and recomends to sir James Stewart, their majesties advocat, to raise and follow furth a criminall indictment before the lords justice generall, justice clerk, and commissioners of justiciarie, against the fornamed persones, and Hamilton, for high treason and corresponding with their majesties enemies and rebells in the Bass. (Sic Subscribitur,) Tweddale, Chan. Southerland, Leven, Forfar, Kintore, Raith, Ross, Balhaven, T. Livingston. Extracted by me, PA. MONCRIEFF, C. S. CON. My lord advocat declares, he insists against Midletoun, Wetham, and William Nicolson, for having joyned themselves to the rebells in the Bass, and borne arms with them in holding out that fort, and as being airt and pairt of their rebellion, conforme to the indytment exhibet against them. Sir Patrick Hume for captain James Midletoun, William Nicolson, and William Wetham, the pannalls, allwayes denyeing the indytment, and baill members and qualifications therof, alleadges ffirst, that that pairt of the indytment bearing that the be the common lawe and lawes and acts of parliament of this kingdome, the holding out or assisting others to hold out in armes or otherwayes any of the king's fforts against the king, or the usurping of the same without his lawe or warrant, is no otherwayes relevant, then as the samen is founded upon the speciall lawes and acts of parliament mentioned in the indytment, which doeth not meit this case. 2. The particular tyme when it is alleadged the saids crimes were committed, is not condescended upon as ought to be in all criminall indytments. 4. If the defenders hade bein sent over under the command of a superior officer, as their comeing over could be no crime for the reason foresaid, so their getting and takeing armes when they were in the Bass could be noe crime, because they were still in the same hazeard, and under the same impressions of fear of being hanged and shott to death, in caice they disobeyed, and whatever might have bein pretended if they had bein once at freeedome and att their own libertie, and thereafter come and subjected themselves to the command, but seing it is acknowledged that they were in the power of the enemie before they came over, and were sent from beyond sea, under command, as their comeing over upon that consitinewing in armes in the Bass after they deration could be noe crime, so their concame over could be no crime, seeing they were still under the same command and impression of fear. gett and take armes in the Bass, allways de 5. Whereas it is lybelled that the pannels.did nying the same, it is not relevant, not only for the reasons foresaids, but also for this reason that the simple presence in armes with an enimie is not relevant to infer the pain of treason, unless there be some act of hostilitie or other public deed that did clearlie intimat their designe of opposing the government, and therfor it is that the lawes and acts of parliament lybelled, are only against oppen and nottorious, rebells, which necessarilie imports that there must be some publict or open act of hostility, other then the simple having of armes to make, the lords of justiciary, in the case of M'Leod, a partie guilty of treason; and for that reason of Assint, who was conveined for garisoning the house of Ardbreck, and convocating their 3. Whereas it is alledged, that the pannalls they by interlocutor, in Ffebruarie, 1674, remajesties leidges, to the number of 400 men, came under the command of collonell Gra-fused to sustain that indictment, in relation to hame, or some other person from beyond sea, the raising of men, or disposing any of them with others, for recruiting the garison of the in companies, under collours, to be relevant, Bass, it is not relevant to inferr the crimes ly-except it were alleadged that they were 200 belled, because it being acknowledged by the indytment that the defenders were souldiers, and came over under the command of a superior officer they behoved to obey, so that the coming over not being voluntar or ane act of choise of the defender's owne, but it being acknowledged that they were commanded to it by superior officers, whose command they could not disobey, otherwayes they would have bein shott to death upon the place; if it were true that the defenders came over in manner lybelled it could not inferr a crime against them, farr less the crime of treasone, according to that excellent rule in lawe, Leg. 167, 'de Re'gulis juris qui Jusu Judicis vell superiors,' which is all one aliquid facit non videtur dolo malo facere, qua parere necesse habet,' especiallie seing it is acknowledged that the defenders did not goe in here to recruite the Bass in this kingdome, but were sent from beyond sea when they were in the enemies power, and could not resist their commands. men and upwards, and were under colours. and mustered, or under weeklie or dayly pay, and that all this was done after the publication of the letters of fire and sword against him. least the defenders continewed to abyde in the 6. That alternative in the indictment, that at Bass, with the other persons that were in it, and gave them their presence, is not relevant, for if simple presence with armes be not rele vant, farr less simple presence without armes, especially the defenders being sent to the Bass, from abroad, and being under command as said is. toune and Willam Nicolson were with others 7. Whereas it is lybelled, that James Middlecharged to surrender the said fort under the paine of treason, yet they disobeyed, upon. which they were denunced and intercomoned, and continewed to keep out the ffort, and aiding and assisting the garison y'r of it is not relevant; first, because if it could be made, appear that the defenders were in the Bass, no such charge came to their knowledge. 2d. Albeit it had come to their knowledge, yet it was not in their power to have given obedience, because it was acknowledged by the indictment that they were under the command of Michael Middletoune, or some other commandant, and whatever effect a charge might have hade against a commanding officer, yet it was never heard of that a single soldier in a garrison which was charged to render is guilty of treasou, when the superior officer, whose com mands be is obliged to obey so long as he is under his command, refuses to surrender the garrison; so that it not being in the defenders power to surrender the ffort, thair not doeing it after the charge can never be imputed to them as a crime: 3. As it was not in their power to surrender the ffort, so their staying there after the charge cannot be understood a keeping out of the ffort, or aiding or assisting the garrison:-4. The pretended keeping out of the ffort, or aiding and assisting the garrison after the charge, being only lybelled in generall termes, is not relevant, unless some particular acts of keeping out, and aiding and assisting, hade bein condescended upon; and it is not lybelled, that after the said charge, the saids Middletoune or Nicolsone did use any acts of hostility, nor so much as that they did bear armes in the garison after that tyme; 5. The pretended charge is ipso jure null as to William Nicolson, seing he is not designed, but his name only sett doune blank Nicolsone; and it is clear by the act of parliament, that all executions where the pairttie, name and surname are not sett doan with their designations, the same are null: 6. They gave obedience to the charge, seing it appears by the execution that the charge was given the fyfth of May; and it is acknowledged by the indytment, that the said James Midletoun and William Nicolson, came out after the 13th of the said moneth, which is some few days therafter: so that if it could be made appear that they hade bein in the Bass, yet it is evident that they laid hold upon the first occasion to leave the garrisone, seeing it is acknowledged, that they came out some few dayes therafter: 7. As to James Midletoun, if it could be made appear, that he was in the Bass, which is denyed, it is offered to be proven that he came out before the charge was given to surrender the said fort, the charge not being given till the fyfth of May, and he came out the sabbath day before the 2d of May. 8. Whereas it is alleadged as to William Wotham, that he came in about the tyme forsaid, and was some tyme in the Bass, and did thereafter goe abroad to England, Flanders, France, in all these places corresponding and conspyreing against their majesties, and that he came back with inteligence, alwayes denyeing the same, yet it is not relevant, not only for the reasons forsaids, but lykewayes for thir reasons, that he being ane Englishman borne, he was but a young boy the tyme of the Revolution, about fourtein yeires of age, or therby; and being att that tyme the earle of Dumbarton's padge, he went over to France with the earle, and gott a pass from the king to goe over to France, with his servants, and the pannall continowed with the earle till he died; and he is not yet above nyntein yeires of age, soe that he was incapable to conspyre or correspond against their majesties; 2. It is acknowledged by the indytment, that as he was none of these that surprysed the Bass, so he was not in it when the governour and other persons were charged, do delyver it, nor is he mentioned in the conncill's ordour, which is the warrand of the charge; and albeit he hade bein once in the Bass, yet seing he left it some short tyme thereafter, as is acknowledged, his simple being there cannot inferr a crime against him, ffar less the crime of treason: 3. That the said William Wetham did conspyre and correspond against ther majesties and with ther enimies, being only in general termes, is not relevant, unless the particular acts of conspireing and corresponding were condescended upon : 4. It is denyed that he came back with inteligence, or gave any help to those in the Bass, nor is it relevant, the inteligence and helpeing not being condescended upon. 9. Whereas it is lybelled that the defenders did meitt together thinking to returne to the Bass, but were stoped; it cannot be so much as a qualification of the crime, for ffirst what their designe was being actus animi is not punishable, nixt the pretended designe did take no effect, as is acknowledged, and soe can import no crime: 3. Their meitting together could be no evidence of their designe to goe to the Bass, for if they hade such a designe they might have made it much more effectwall, by goeing single allon, then goeing altogethar; but it appears by the wholl tract of the affair, even as it is mentioned in the lybell, that if it could be made appear, that the defenders hade bein in the Bass, that they came out of it with a designe not to returne, ffor otherwayes they would not have come out. 10. The indictment of treason cannott be sustained against the pannalls; because it is denyed that they were the king's subjects, and the lawes and acts of parliament against treason is only in relation to subjects who bare dew alleadgeance, seing the crime of treason takes only place where alleadgeance is dew, as is clear from all the lawiers that have written upon that subject, and particularlie Clarus. Lib. parag. Lese Majest. numb. 6, who is positive, Quod ille qui non est subditus principi, 'non dicitur contra eum Committere Crimen 'Lesice Majestatis et it eo licet aliquo particu lari' Jure ut offendi, veluti quis officiatur de foro alicujus, principis si tamen ratione originis_vell domicilij non sit subditus non dicitur Committere contra eum Crimen Legce Majestatis.' And affirms it hes bein many tymes so determined, and albeit fforraigners opposing any king or state, may be looked upon as enimies, yet they are not guilty of treason, as is clear from sir Edward Coke, in his title of High Treason, page 11, where he makes a distinction betwixt a fforraigner, who is ane enimie, and a subject who ryses in rebellion, that ane enimie committing open hoslity in the nation and taken, is only to be punished by the marshall lawe, or ransomed, but that he cannot be indicted of treason. 11. It is alleadged separatim for James Midleton, allwayes adhereing to the forsaid defences, that it is offered to be proven, that he is a fforraigner, being a Fiandrian borne, att least holden and repute to be so, so that as to him there cannott be the least question, that the indytment of treason can be sustained against him, and he can onlie be treated as a prisoner of ware; but there will be no neid of any such probatione, it being sufficient to give him the benefite of a prisoner of ware, seing that it is acknowledged that he came from abroad. subjects are taken prisoners fighting against the French king, they are treated as prisoners of warr, and relieved and ransomed as other prisoners, and how many of the British subjects are in the French armie, and actwallie fighting against our king, yet when any of them comes to be taken prisoners they are not pu nished as traitors, but as prisoners of warr, and the king's practyse in those caices ought certainly to be the rule in this, and when there were many prisoners taken at Cromdale, when actwallie in armes feighting against the king, and albeit for the most pairt they were all Scots subjects, yet ther was none of them persewed for treason, but were all of them treated as prisoners of warr, and were sett at libertie upon finding caution only to live peaceablie and not disturb the government; and the defenders, when they were apprehended, were not in armes nor useing any acts of hostility against the government, but were demaining themselves peaceablie in the countrie, and they should not be worse treated then those who were taken in armes actwallie fighting against their majesties, and dewreing all the tyme of the late civil warres in Brittaine, albeit there were many prisoners taken upon both syds, yet ther was non of them persewed for treason, but were used as prisoners of warr, and therfor the pannalls ought not to pass to the knowledge of ane inquest. 12. The indictment as to William Wytham and Nicolson, always adhering to the foresaid defences, is not relevant, albeit it could be proven that they were subjects borne, yet they having quitte and deserted these nations, and haveing fixed and taken up their residence in fforraigne nationes animo remanendi, the said William Nicolson haveing gone abroad about 20 yeirs hence, and William Wytham when he was but 14 yeirs of age, they cannot now be considered as the king leidge men, but as florraigners, it being the constant practice of all nations that 'Civis originarius renuncians et domicilium'also 'transferance [alio transferens] civis esse desinit:' as to all effects, as is clear from the common lawe, Leg. 5, parag. ult. dig. de captivo et post linun [postliminio] and Gail, Lib. 2, observ. 36, num 7, and the lawiers there by him cited, and Perez upon that title of Cod. de municipis, [municipibus] et originariis num. 19 and 20, so that the said William Nicolson and William Wetham upon that consideration lykewayes can onlie be looked upon as prisoners of warr, and are in the same case as if Ffrenchmen or other fforaigners hade come to recruite the Bass, who if they hade bein taken could not have bein convened for treason, but behooved to be used as prisoners of warr; and the lords of justiciarie may be pleased to consider, what may be the consequence of this if it were otherwayes sustained, for there are many thousands of people that come from France, and other parts of the French dominions, who hade taken up their residence in Brittaine and Ireland and other dominions belonging to the king of Brittaine, who have absolutely quitt France and the French dominions, and are now no more looked upon to be French subjects, but subjects to the king of Brittaine; and if any of those or others of the French refugies, whereof there are verie many in the king's armies, should be taken prisoners fighting against the French king, then by his rule they could have no quarter; but the French king might proceed against them for treason, and yet wee sei dayly that ther is no such thing practised, but when any of the refugees or others who were formerlie French Sir James Ogilie replies, that he oppons the lybell as declared by lord advocat, and which is relevant notwithstanding of the defences proponed, the crimes lybelled being expresslie contrair to the acts of parliament condescended upon: And wheras it is pretended that the saids acts doe not meit the caise, it is answered, that ther is no disparitie condescended upon in the defence, and lybell and acts are opponed. 2. Wheras it is pretended that ther is no speciall tyme condescended upon, the indytment, is opponed, wherin the yeires, moneths, and dayes are particularlie mentioned. 3. The pretence is no wayes relevant that the pannalls came from beyond sea, under the command of a superior officer, neither does be ly bell, came onlie in these termes; for first, it is lybelled allternative that they came by commission or without it; and altho they hade bein under command, that can no wayes warrand them for ryseing in armes against their native soveraigne, and assisting those who mantaine the ffort of the Bass against authority, and wheras it is pretended that if they hade disobeyed their superior officer they might have bein in hazeard of their lives, it is answered, first, that is denyed that they were in any such hazeard, but esto they hade, they can blame non but themselves that they were in these circumstances. 4. The pretence that they were under fear and bazeard when in the Bass merits no answer, seing their goeing there and concurring with those who maintained it against the goverment, was in itself a crime. |