quis of Hamilton, for furthering the speedy levy and transportation of his men with all possible diligence; these are again to require you to contribute the best help that your authority or endeavours can afford for that effect. Whereof, both out of the regard we have to him, and to that employment, being very confident of your best care; we bid you farewell. From our Court, at Greenwich, the 29th of 'June, 1631.'

After reading of the which Letter of his majesty, it is answered by my Lord Advocate, that the urging of the pannel to have the words' as ' he is informed,' to be repeated in all the rest of the Dittay, wants all reason; the points of the Dittay bearing relation of several deeds done in several times. And where it is alleged by the pannel, that these words, as he was informed,' were true, 'quoad relationem et 'quoad veritatem,' there was no necessity: If this were true, the Dittay were eluded, for the pannel is not accused of a Leasing in respect of the verity of the matter related, but in respect of his discrepance from his author, and that he affirms more than his author, and with greater certainty than his author: and that, not content with both these two excesses, he follows it out to the very point of execution, which is evident in the point of certainty, by these words spoken to his majesty, the business is known,' whilk is more certain by the opposition of the uncertainty of time only, which redoubles the certainty of the business. And in the point of execution, by that pernicious and cruel counsel, do or die:' the effect of which pernicious counsel, if God in mercy had not disposed the royal heart of our wise and gracious sovereign, would have produced more lamentable effects, nor could be quencbed with the pity of tears shed by the pannel. And the conferring of the lord Kea (whom the pannel calls the prime author) with himself, in the progress of his behaviour, will manifest the pannel's guiltiness of the points of the Dittay, wherein he is accused: for the lord Rea, who behoved to have greater certainty than the pannel, never proceeded to the points of positive party, prime agent, plotters; and to say to the supreme sovereign prince, that the business was known, in all which points the pannel has involved himself; but the lord Rea was content to reveal the reports made to him by David Ramsay, and Mr. Robert Meldrum, to the pannel, without adding or paring. And when the pannel, upon the 22d of May, which was the day of the marquis's returning from Scotland to England, came to the lord Rea, and told him, that he had been with the Lord Treasurer, and acquainted him with the passages, which he had from the lord Seaforth, and of the lord marquis's return, and that be had conceived, that it might be dangerous at that time for his majesty; for the which cause the pannel in his deposition saith, that he did advise the king to remove from Greenwich to Whitehall or London; my lord Rea answered,

that the pannel had done evil therein, for there was no such suddenness to be feared: yet notwithstanding hereof, and that his author had reproved his rashness, the pannel went thereafter and attended his majesty at dinner, and at the end of dinner spake these words of the certainty of the plot, uncertainty of the time, and added the counsel. Like as the pannel being asked, hereupon granted that he met with the lord Rea upon that Sunday the marquis came to court, and also that he met with the Lord Treasurer; and counselled his majesty's removing from Greenwich to London. But denies that the lord Rea said, that he thought it was evil done. Notwithstanding hereof, the pannel went thereafter and attended his majesty at dinner, spake the words and gave the counsel; like as his majesty being something wakened by that fearful counsel, sent for the lord Rea, and did acquaint him, that some present danger was suggested to his majesty, upon the marquis's returning. To the which the lord Rea answered by oath, that he knew nothing against the marquis, for any thing he knew, but that he was as good a subject as any his majesty had.

And where the pannel would labour to free himself, by denying the counsel given to him by the lord Rea; it cannot be a warrantable excuse, except he would prove that his author advised him to do it: which is improbable, seeing the lord Rea, his author, neither did it, nor allowed of its being done by the pannel. And where it is alledged by the pannel, that he had sufficient warrant from his informer, he cannot affirm it, as being contrary to the relation made by his author: which is not a syllable of the marquis as prime agent, nor of the three noblemen as Plotters. And whatever the pannel did after the discovery of the business to the Lord-Treasurer, which was upon the 15th of May; it was the pannel's own word, work and deed, as the giving in of the list, expressing the certainty of the plot, and urging the putting in execution. And where the pannel alledges, that all was done upon a good intention, and that God is only judge of the mind; it is true where the mind is not revealed by speech or act punishable of the law: but if either speech or deed be done against the law, the pretext of the mind will never ex. cuse it.

And albeit it be true, as the pannel alledges, "Quod delicta non præsumuntur sed probantur,' yet it is as true, Quod in delictis præsumitur 'dolus nisi probatur contrarium.' And in the case of this Dittay, we have a law prohibiting Leasings and Calumnies under the pain of death; and seeing by the Dittay, there are three particulars libelled, which his majesty in his Letter of the date of the 29th of June, has called false informations, and which directly fall within the compass of the law, as reflecting upon the life, honour and estate of the noblemen; the pannel's excuse by intention is too slender, to free him from the punishment of the law. And where it is alledged by the pannel,

that he has named his author, and that he was present the time of his relation, and did not contradict him therein, which the pannel alledges for a sufficient ground of his exoneration; the contrary is true: for the lord Rea, in his Examination upon the 21st of June, doth acknowledge the pannel's Examination to be true in all points, saving the explanations thereafter subjoined. But this approbation cannot exceed the subject; and also the subject must be restricted according to the conditions of the explanation; but so it is, that in the pannel's examination, which is approven by the lord Rea; there is not one syllable of the lord marquis as party or prime Agent, or of the three noblemen as Plotters.

And therefore that falls not within the compass of the approbation, and where it may appear that in the pannel's examination upon the 20th of June, it is granted, that on Monday the 16th of May, he delivered to the Lord Treasurer the list of names; that is not a part of the pannel's relation approved by the lord Rea: but it is the pannel's answer to an interrogatory, asked of him by the counsel, which could have no respect to the lord Rea's relation. Like as the pannel being examined thereupon the 24th of June, grants that the list was made by himself and that the lord Rea was not privy to the making thereof, which is also confessed by the lord Rea himself in his examination the 21st of June, 1631, and last article thereof. Wherein he depones, not only that he was not acquainted with the list of names delivered to the Lord-Treasurer, but that he had nothing to do therein; which both excludes the concourse of the making of the list, and his knowledge of the purpose of it. And where it is alledged by the pannel that after the reveal ing to the Lord-Treasurer, he could not abstain from the remanent passages of his behaviour, because it was actus continuatus by the lord Rea to the pannel, from the 13th of May to the 20th of May; it is answered, that after the first revealing, the pannel had no more to do in the necessity of duty, because his author was revealed and whatever followed after discovery made by the pannel, would have tied the author and not the pannel; there being no law that might have punished the pannel for shifting his course after the revealing. But there being manifest hazard and danger in law, to follow further after the revealing of the business, which the author thought neither clear Dor certain; and the pannel not being conscious upon what mind the lord Rea made his first information to him, which might very readily have been upon malecontentment, grudging and malice, his credulity to him was cruelty against the noblemen. And his going forwards after the revealing, was a manifest engagement of himself, in the malice of the author, and drawing upon himself the opinion of greater.

And where it is alledged by the pannel, that his behaviour cannot be counted in the nature of Leasings, punished by act of parliament, bat allanerly by way of illation and sinister

construction; the contrary is clear, by the three points of the Dittay. And the pursuer, in his reply, has most justly challenged the pannel as a defamer of noblemen; because their fame, honour and credit was unblameable before it was taxed by the pannel; and the lord marquis brought under danger of the loss of life, honour and estate.

And where it is pretended by the pannel, that the cause of his speaking of these words to his majesty, upon the Sunday of the marquis's coming to court, was because the lord Rea told the pannel that the lord Seaforth had assured him, that the Plot was for taking off the king and the queen; first, that excuse has no warrant from the lord Rea's deposition; next, in that same conference betwixt the pannel and the lord Rea upon the said Sunday, the lord Rea told him it was an idle fear; and thirdly, it cannot be a pretext, because that passage of the taking the king and queen, is contained in the relation made by the lord Rea upon the 18th of May; and so cannot be pretended as a new information lately come to his knowledge, to waken the pannel to such a pernicious counsel. And this shall suffice for answer to the duply, which is closed with that which is contained in the reply; that the pannel had no warrant of his speeches and proceedings positive against the marquis; nor colour of warrant against the three earls, and neither warrant nor colour at all against the earl of Buccleugh, against whom the pannel, by his own confession, had nothing but the guess of the lord Rea; which the lord Rea not the less refuses, and affirms to be the nomination of the pannel. But howsoever it is only a guess, by his own confession, from his author, and yet in his list he makes him a plotter. And albeit the like evidence of the pannel's calumnies against the other two earls being undoubted, as having no warrant at all from the lord Rea's relation, wherein there is no syllable of these noblemen; and that the excuse made by the pannel of a verbal relation by the lord Rea, has no proba bility, and also is contradicted by the lord Rea, being poised thereupon: yet in these two noblemen the pannel covers himself under the shadow of a verbal relation, against that which himself drew up in writing; but in the lord Buccleugh's he is excluded from all verbal relation, in respect of his own deposition, whereby he is manifestly convinced of incurring the punishment of the acts of parliament whereupon the dittay is formed, as having named him plotter, when by his own deposition he grants it to be a guess of the lord Rea.

It is quadruplyed by the pannel, that for answer to the triply, made by the Lord Advocate his pursuer, he repeats and oppones his defences contained in the former exception and duply. And further the pannel adds, that where it is objected by my lord advocate against the pannel, that he had no ground nor cause from the lord Rea's relation, from the pannel by word, to call the two earls of Haddington and Roxburgh plotters; but by the contrary,

that the lord Rea refuses and denies the same; again the which objection, the pannel does repeat and adhere to that article of his second deposition, dated the 24th of June in these words following: he saith, the lord Rea did affirm to the examinant, that he had the foresaid report, anent the earls of Melros and Roxburgh, from the lord Seaforth, before the pannel then examined, made or delivered this said paper or list to the treasurer. And in the article proceding, in the same deposition, the pannel affirms the lord Rea told him this; whereby it evidently appears by the two articles joined together, that the pannel had ground for that part of his representation.

And whereas it is affirmed by my Lord Advocate, that the lord Rea denies the same, this comparing of the pannel's assertion, and the words of the lord Rea's denial together, the lord Rea's words will be found to import no direct nor clear denial; the pannel affirms that the lord Rea told him, that the earl of Seaforth told him, that the said two earls were upon the secrets of the business of the marquis; my lord Rea's words in his denial bearing, that the first time the lord Seaforth had any speech with him, | touching the said earls of Haddington and Roxburgh, their being privy to the particulars and secrets of the lord Hamilton's business, was on the Monday after the marquis's coming out of Scotland. The pannel arms, that the lord Rea told him such a thing; the lord Rea says, the lord Seaforth spake not to him any such matter before such a day: how do these two agree or contradict one another? The pannel affirms the lord Rea told him; my lord Rea affirms my lord Seaforth told him not such a thing before such a day: what is that to the pannel, if the lord Seaforth had never told that to the lord Rea, the lord Rea might have told it to the pannel for all that? And where it is alledged for the fortifying of the triply by my lord advocate, that the lord Rea in his deposition, denieth that he was acquainted with the list of names, delivered by the pannel, or had any thing to do therein; the pannel affirms, that this eludes not the particular words concerning the two earls; because of the denial of the general list, wherein they were ingrossed: for the manner of the discovery was left to the pannel, when the direction of the discovery was given him. And so it was not needful that the lord Rea should be acquainted with the papers, with the pen, the ink, the hour and the manner of the writing; because that was left to the pannel. Neither can the general denial of one piece of paper take away the pannel's testimony of the certain, determined, condescended upon by word. And for his word that he had no hand therein, is not meant de materia, affirmed by the pannel, reported to him against the said two earls; because he grants the substance in the preceding deposition made by him thereanent. And as to that relation by that list, concerning the earl of Buccleugh as plotter, for defence of the pannel's deposition it is produced in these words, bearing, And further saith (to wit the pannel),

that the lord Rea had told him, he could not 'guess who also should be in the plot unless it were the lord Bucclengh; of whom the lord Rea 'said, he heard him speak terrible words against the king, at his own table in Holland.' There it is affirmed, that he suspected the lord Buccleugh to be upon the plot: if suspected to be on the plot by the lord Rea, and told by him to the pannel; the pannel was necessitated to reveal the same, yea in iisdem terminis, to reveal him to be a plotter; whom he said, he suspected to be upon the plot. To this my lord advocate objected, my lord Rea's denial, which are in these words: That the pannel and lord Rea having some speech together, who might be looked for in Scotland to take arms; the pannel, and not the lord Rea, named the lord Buccleugh. Whereupon the lord Rea told, that at the siege of the Busse, the lord Rea heard the lord Buccleugh use some words, whereby the lord Rea took the lord Buccleugh to have come malecontent out of England. In this presumed denial, there is contained a discourse betwixt the pannel and the lord Rea, as the lord Rea alledges. And in this discourse, that the pannel should have named the lord Buccleugh, and not the lord Rea; this naming is a naming in the respect of time first or last; for the lord Rea grants that he did name the lord Buccleugh, because of the last words of that clause; so that his denial respects only priority of time, but no ways the pannel's asser tion for not a word of his assertion is denied. But by the contrary, for corroboration of the pannel's just ground, concerning the earl of Buccleugh; the lerd Rea makes addition of more nor the pannel had remembrance of; and so fortifies his affirmation, and proves no denial thereof.

The pannel adds further, for cluding of the mistaking of these his words, Sir, we know the 'business, but not the time, therefore do or 'die.' It is atfirmed by the lord Rea, that he did hear of his majesty that there was a danger suggested to him; which danger my lord advocate alledges to have come from the panne's words. If a danger but by the king's self apprehended, then not a persecution, for a danger imports defensive remedies, and not violent and malicious attempts; yea, it imports and implies a preventing, and not a prosecuting, And lastly, it clearly confirms the mentioned intention of the pannel's expressing of those words, which was to prevent his majesty's dan ger. This the pannel's alledgeance, is cleared in the lord Rea's deposition, made the 21st of June; yea, this is my lord Rea's relation, to whom the pannel never spake, since the pannel and he entered to their trial. As for the words, Sir, we know the business infallibly, this is no lie;' because the pannel and the lord Rea was at his majesty's ten days before, and affirmed the same: the pannel by relation from the lord Rea, and the lord Rea from others, and so that is no lie.' And that the pannel did not know the time, it is alledged in the contrary, ergo, not no lie. As for the

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6

words do or die,' by my lord advocate's declaration, it is but concilium perniciosum.' And that it is not mendacium,' neither can it be made nor interpreted mendacium,' by any probability or sense, and no malicious council, as is alledged against the pannel; considering the pannel's declared intent, and the lord Rea's before-mentioned examination, wherein it is called a danger, so not a he, and therefore not rightly subsumed.

My Lord Advocate repeats his former replies and triples, and desires my Lord Justice to close this process, so that there be no further dispensation or reasoning herein, till anent the relevance or irrelevance of the indictment. The Justice by Interloquitor declares the process to be closed; and continues Interloquitor upon the alledgeances proponed by the pannel against the ditay, and auswers made thereto by his majesty's advocate, to Wednesday next, the seventh of December instant; the persons of assize warned apud acta, to compear the said day in the hour of cause, ilk person under the pain of 1,000 marks. And ordained the pannel to be returned to ward, therein to remain in the mean time: whereupon my Lord Advocate asked instruments.

Curia Justiciaria S. D. N. Regis tent' in prætorio burgi de Edinburgh, septimo die mensis Decembris, anno Dom. millesimo, sexcentesimo, trigesimo primo, per honorabiles et discretos viros, magistros Alexandrum Colville de Blair, et Jacobum Robertoun Advocatum, Justiciarios deputatos nobilis et potentis comitis Willielini comitis de Stratherne et Menteith, dom. Graham, Kilbryde, et Kyupont, et Præsidis secreti Concilio et Justiciarii generalis dict. S. D. N. Regis totius regni sui Scotia, ubilibet constitut. sectis vocatis et Curia legitime affirmata.

Intran'

James lord Uchiltrie, delated of the crimes foresaid, mentioned in his indictment.

Pursuer. Sir Thomas Hope of Craighall, knight and baronet; his majesty's advocate for his highness's entries.

Whereanent the extract of this act shall be 'unto them a warrant, extractum de libris ac'torum secreti consilii S. D. N. Regis, per me Jacobum Prymrose clericum ejusdem, sub meis signo et subscriptione manualibus, sie 'subscribitur Jacobus Prymrose.' According to the which Act of Council, warrant and command aforesaid, therein contained, the Justice continues all further trial and proceeding against the said James lord Uchiltrie, upon the crimes aforesaid, unto the said 1st day of February next to come: and ordained him to be taken back again to his ward, therein to remain in sure firmance, till the said day. The whole persons of assize, called upon by their names, are of new warned, apud acta, to compear before his majesty's justice, the said 1st day of February next to come, in the hour of cause; ilk person under the pain of 1,000 marks. Whereupon my Lord Advocate asked instru

ments.

Extractum de libris actorum adjournalis S. D. N. Regis, per me Johannem Bannatyne, Clericum deputatum honorabilis viri, dom. Georgii Elphingston de Blythiswood, militis, Clerici Justiciarii principalis dicti S. D. N. Regis, et dictorum Curiarum, Testan. his meo signo et subscriptione manualibus. Sie subscribitur, JOHANNIS BANNATYNE Clericus deputatus Clerici Justiciaria Generalis S. D. N. Regis, Testan. his meis signo et subscriptione.

The lord Uchiltrie, appearing on the said 1st of February, was sentenced to perpetual Impri

sonment.*

"The lord Uchiltrie, a man of a subtil spirit and good parts, had not those endowments of his mind been stained with some ill qualities: his malice against the marquis of Hamil ton was hereditary, he being the son of capt. James Stewart, who in king James's minority, when the Hamiltons were groundlessly and in a mock parliament attainted, carried the title of earl of Arran, and possessed their fortunes." Burnet's Memoirs of the dukes of Hamilton, p. 11, and 12. where he relates the whole bu

vocates.

The lord Uchiltrie being entered upon pannel, produced to my Lord Justice, an Act of the lords of his majesty's secret Council, for continuation of this Diet, and of all further trial or proceeding against him, for the crimes contained in his Dittay, to the first day of February next to come; of the whilk act of council the tenor follows: Apud Halyrudhouse sexto 'die mensis Decembris, anno Dom. millesimo, 'sexcentesimo, tricesimo primo. The Lords ' of the secret Council, for some special causes ' and considerations, ordains and commands his 'majesty's justice, justice-clerk and their de'puties, to continue all farther Trial and pro⚫ceeding against James lord Uchiitrie, upon the crimes whereof he has been accused before ⚫ them, till the 1st day of February next.

VOL. III.

than which hell could not have forged a fouler, for lord Uchiltrie judged that this would infallibly have produced one of two effects, either raised such a jealousy in the king's thoughts, as to have quite ruined the marquis, since few ministers are proof against such whispers, or at least it would have stopped his voyage for a while, till he was tried, and the smallest delay in that would have scattered his soldiers, (which the king was to send under the marquis's com mand, to assist the king of Sweden to recover the Palatinate) so that this design failing, in which his honour was now so far engaged, a stain should lie on him through all Europe. Lord Weston carried this story to the king, whether provoked to it out of hatred to the marquis, or moved from his zeal and duty to the king, shall not be determined; though the

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last was pretended by him, in many of his let- | ters to the marquis. But his majesty knew the marquis too well, and understood all his motions and the progress of this affair, too exactly to give any credit to this forgery' And p. 13. "But the marquis was not able to lie under such terrible imputations, wherefore be pressed that Uchiltrie might be put to it, to prove what he had alledged: but all he offered against Ramsay was only a presumption, which Ram- | say denied, and Rea attired; so that they were both put under bail, and nothing appeared that did touch the marquis: for thongh Ram say had been as guilty as the lord Rea called him, that left no imputation on him, since none can be made answerable for those they employ, unless it appear that they followed the Instructions given them. So the marquis was dispatched to Germany. Lord Uchiltrie had charged the marquis with Treason, and failing so totally in his probation, was sent down to Scotland to be tried, where he had a legal and

free trial for his false charge before the JusticeGeneral, and such assessors as were appointed to sit with him, by the privy-council; and bad the marquis repaid him in his own coin, he could not have escaped capital punishment. But he was satisfied with his own justification, and such a censure put on the calumniator, as might deter others from the like attempts. Wherefore he was condemned to perpetual imprisonment in Blackness Castle, and he contihued there for twenty years."-He was released by Cromwell. The severity of the Sentence against lord Uchiltrie seems to have deterred the carl of Rothes from maintaining the charge which he advanced against the Lord Register of falsely reporting the votes of the Scots parliament in 1633, respecting the confirmation of the statutes concerning religion, as then professed, and the grant to king Charles the 1st of the power to regulate ecclesiastical habits. See 3 Laing's Hist. of Scotland, 103, 104, and the authorities there referred to.

["The following Case is an instance of awarding a Trial by Duel in the Court of Chivalry, though afterwards the duet was prevented. There are two accounts of it, which we shall submit to our readers. One is from "Sanderson's History of the Life and Reign of Charles the First;" the other from "Rushworth's Historical Collections." Bishop Burnet relates the history of the accusation in his "Lives of the Dukes of Hamilton," principally with a view to justify the first duke of Hamilton, whose name was involved in the affair. See Burnet's Memoirs of the

* "It seemeth that by the antient Common Law one accuser or witness was not sufficient to convict any person of High Treason, for in that case where is but one accuser it shall be tried before the Constable or Marshal by combat, as by many records appeareth." Lord Coke's 3d Inst. c. 2, p. 26. See more concerning this Court in 4th Inst. c. 17.

"The Court of Chivalry, of which we also formerly spoke as a military court, or court of honour, when held before the earl marshal only, is also a criminal court, when held before the lord high constable of England jointly with the earl marshal. And then it has jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it. But the criminal, as well as civil part of its authority, is fallen into entire disuse; there having been no permanent high constable of England (but only pro hac vice at coronations and the like) since the attainder and execution of Stafford duke of Buckingham in the 13th year of Henry 8; the authority and charge, both in war and peace, being deemed too ample for al

|

Dukes of Hamilton, p. 11. to 14. The bishop, it is observable, charges Sanderson with giving a journal of the procedure on lord Rea's appeal, in order to impeach the duke of Hamilton's loyalty. In Rushworth there is a Letter from Charles the first to the duke of Hamilton, which explains what was done in the Court of Chivalry, and amply proves, that the king was quite satisfied of the duke's innocence. This Letter forms a part of Rushworth's relation. As to the account in the Annals of James and Charles the first, it is merely a copy of Sanderson, with the addisubject: so ample, that when the chief justice Fineux was asked by king Henry the 8th, how far they extended, he declined answering; and said, the decision of that question belonged to the law of arms, and net to the law of England.” Bl. Comm. b. iv. c. 19. § 4.

"The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn. The appellee, when appealed of felony, pleads Not Guilty, and throws down his glove, and declares he will defend the same by his body: the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonist, swears to this effect. Hoc audi, homo, quem per manum teneo,' &c. Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, 'that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way