999. Proceedings against Captain JAMES MIDDLETOUN and others, for High Treason: 5 WILLIAM & MARY: A. D. 1694. [Now first published from the Records of Justiciary at Edinburgh.]

their majesties, and there they and each of of the days above lybelled, hade letters or other them, getting and taking armes, under the messages by word or write sent to him out of command Michael Midletoun, or other com- the Bass, from the said collonell Grahame, mandant upon the place, did stay and continew with a demand of supplie of some necessaries, in the garison to keep out that ffort against such as ane iron chain and staple for their boate, their majesties, att least they abod and conti- and iron and leather with other particulars nenowed therin with the saids rebells and gave cessarie or usefull for the saids rebells, which them their presence; and notwithstanding letters being left at the house of one George they the saids James Midletoune and William Hoge in Weintoun or some other house there or Nicolson, were with others latelie charged to therabout, to be delyvered to him; he gott the surrender the said ffort under the paine of trea- same, and according to the direction thereof son, yet they disobeyed the said charge and mett with the bearer and told him so much, stand therfor denunced rebells; and further and promised that what was demanded should ther was a proclamation with letters of interco- be sent into the Bass; and the said bearer muning out against them, notwithstanding of all haveing a letter of charge from the said Grawhich they continowed their said rebellious hame to be delyvered to the said John Trotter practices in keeping out the said ffort, and in out of his own hand, that he might forward it aiding and assisting the garrisone therof soe to to France by the way of Rotterdame, and which 'doe, untill that fatlie in the moneth of May last, Graham said was for the late king James, be or therabout, they were apprebended; lykeas the said John Trotter gott and tooke the said the said William Wetham baveing come in on letter from the bearer when he mett with him or other of the dayes of the moneths of the att the place called Kitlenaked or therabout, yeires forsaid, and joyned or taken pairt with and said he should be carefall of it, and not the saids rebells and rebellious garrison, by pleased that it was not left att Wintoune with presence or otherwayes, for some dayes or the other letters that he might have gott it moneths, did therafter goe out and went abroad sooner; lykeas he the said John Trotter hade to England, Flanders, and France, and to St. att severall tymes drunk the late king James Germanes, in all or one or other of these places, his health; as also by the meanes and procurecorresponding, acting, or conspyreing traito- ment of Trotter, there was provision of butter, rouslie against ther majesties, and with their bisket, cheese, and the lyke, sent from Cockenenimies, untill that comeing back lately, with nie and other places, in one or other of the what intelligence and help he could bring to dayes, moneths and yeires above lybelled, and his accomplices in the Bass, he and the other further in one or other of the dayes of March, two persones above named did meett together, 1692, or in one or other of the moneths of the and in their returne to the Bass were stoped said yeire or other yeires lybelled, he the said about the darkning of the evening near to John Trotter bought and purchased a boat, and Whyt Kirk, where after some resistence made sent her with provisions of shoes, stockens, butby them, they were taken by some of the king's ter, and suggar loaves, and the lyke into the true leidges and brought in prisoners to Edin- Bass, and his accompt sent therewith containburgh; Lykeas the said John Trotter and Alex- ing more particulars then were sent; he was ander M'Leish haveing also shaken off all fear therafter challenged by ane express from of God and regaird to their majesties, and the the Bass, who mett with him at the place lawes and government, and turning most unna- called Kitlenaked or therabout, and be anturall and wicked enimies to their majesties and swered that he sent these things as he got their native countrie, have from the beginning them, and he payed for them conforme to of the suppryseing and revolting of the said the accompt sent; and he the said John rock and fort of the Bass, which wes in the Trotter in ane or other of the dayes of the moneth of June, 1691 yeires, and since that moneths of the yeires forsaid, sent for one tyme in one or other of the dayes of the William Robertsone, skipper, in Port Seatoun, moneths of the yeire 1691, 1692, 1693, 1694, to come to him to Wintoune, and ther he met and untill of late they were taken aiding, as- with him in companie with M'Govan sisting, 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 bade 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 be 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

and

he the said John Trotter treated with him to
carye in some provisions, as meall from Leith,
and some drinking bear from Aberdour to the
Bass in his boat; and he promised to him for
this last busines to repaire to him the loss of a
boat that the rebells of the Bass_bad taken
from him, and gave him a crowne in earnest ;
and the saids
M'Govan and

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 jencourage 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 Decem-
ber 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 Alex-
ander 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 sup-
plieing 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 he 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 Robert-
M'Govan and
M'Clean,
att Aberdour, about the furnishing the rebells
in the Bass; and lately in November, Decem-
ber, or Janwarie last, and upon one or other of
the dayes therof, he the said Alexander M'Leish
byred 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 lyke-
wayes 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 hanged the said guinea, and destri-
bute the money amongst them att their re-

son,

VOL. XIII.

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 bar-
rell 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 hyred
them, giveing them ale and money to go 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 dely vered
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 hos-
tility or conspiracie against their majesties,
at least were open enimies to their majesties
and the kingdome, or airt and pairt of the sa-
men, which being found be ane assyse, the
ought to he punished by fforefaulture of their
lyfe, lands, and goods, to the example aud ter-
Tour of others not to doe the lyke in tyme
coming.
Js. STEWART.

Sic Subscribitur,

Persewars.-Sir James Stewart, yr majesties advocat; sir James Ogilvie, of that ilk, yr majesties 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 panualls, 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 haill members and qualifications therof, alleadges first, 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 special 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 and were sent from beyond sea, under compower of the enemie before they came over, mand, 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.

5. Whereas it is lybelled that the pannels did gett and take armes in the Bass, allways denying 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 ther for 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 a partie guilty of treason; and for that reason the lords of justiciary, in the case of M'Leod, of Assint, who was conveined for garisoning the house of Ardbreck, and convocating their majesties leidges, to the number of 400 men, 3. Whereas it is alledged, that the pannalls they by interlocutor, in Ffebruarie, 1674, recame 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 owue, 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 kingdóme, 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 weeklic or dayly pay, and that all this was done after the publication of the letters of fire and sword against him.

6. That alternative in the indictment, that at least the defenders continewed to abyde in the Bass, with the other persons that were in it, and gave them their presence, is not relevant, for it simple presence with armes be not relevant, farr less simple presence without armes, especially the defenders being sent to the Bass, from abroad, and being under command as said is.

7. Whereas it is lybelled, that James Middletoune and Willam Nicolson were with others charged 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