Frendraught; Mr. Collin M'Kenzie, uncle to James Edmonstoun, of Newtoun of Doune; Hallybur- 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 earle of Crawfurd, for himself, and in name of the said countes of Craufurd, his spous, protested that the doom and sentence of forfaulture to be given aud pronounced against the said James earle of Dumfermling shall not be prejudiciall to their saids debts and claims; but that the estate to be forfaulted shall be burdened and lyable therefore; sicklyke as the said sentence of forfaulture had not been pronounced, and therupon asked and took instruments, which protestation their majesties and the estates of parliament have admitted and admitts; and sicklyke captain Charles Straiton protested, that the doom and sentence of forfaulture to be given and pronounced against the viscount of Dundee, shall not prejudge him of the soume of 5,000 merks a'rents thereof, contained in a bond granted by the late viscount to provest Kennet, and in a translation be him in favours of the said captain Charles Straiton, and which bond was granted several years befor the late happie revolution, which protestation their majesties and the said estates of parliament also have admitted and admitts; And therfore our soveraign lord and lady, and the estates of parliament, by the mouth of John Ritchie, dempster of parliament, decerne and adjudge the name, fame, memory, and honour, of the said viscount of Dundee, and 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, Halyburton, of Pitcurr; -Stewart, of possessions, goods, and gear, moveable and Appin; M'Lean alias M'Donald, elder, off immoveable, whatsomever pertaining to them, Glencoe; Alexander M'Donald, younger, of to belong to their majesties, and to remain perGlengarie; -M'Neill, of Gallachelly; petually with them and their successors in prosir John McLean of Dowart; Donald M'Do-perty; And lykeways their majesties and the nald, younger, of Slait; -Grant, of estates of parliament, by the mouth of the Ballindalloch; and the laird of M'Naughtoun; said John Ritchie, dempster of parliament, haveing past severall votes upon advyseing of decern and adjudge the said James earle of the probation as to each one of y'm, upon Dumfermling; viscount of Frenpronounceing of which interlocutor, William draught; lord Dunkeld; major Wilearle of Crawfurd, for himselfe and in behalfe liam Grahame; collonell Alexander Cannon of dam Henrietta Seton countes of Wigtoun, John Cleilland, of Fasken; Mr. Colin M'Kennow countes of Craufurd, his spous, gave in zie, uncle to the earle of Seaforth; sir John the protestation under wryten, representing, Drummond, of Machanie; William Craufurd, That wheras the said James, earle of Dum- younger, of Ardmillan; James Craufurd, his fermling, upon ane assignatione granted to him brother; the laird of Strowan; Robertson; by the said countes of Craufurd of two thou- David Grahame, brother to the viscount of sand merks of her joynture, did grant to the Dundee; James Edmonston, of Newtoun, of said countes a back bond, dated the 2nd day of Doun; sir Ewin Cameron, of Lochzeel; 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 ; Cameron, his eldest son; Donald M'Donald, younger, of Slait; the laird of M'Naughtoun; -Grant, of Ballindal loch; Stewart, of Appin; M'Lean alias M'Donald, elder, of Glencoe; Alexander McDonald, younger, of Glengary; Donald M'Neill, of Gallahelly; and sir John M'Lean, to be execute to the death, denunced as traitours, and underly the pains of treasone whenever they shall be apprehended, and that at such tymes and places and in such manner as their majesties or the estates of parliament, or the commissioners of justiciary, shall appoynt; and ordains the saids persons, their name, fame, memory, and honours, to be extinct, their blood to be tainted, and their armes to be riven furth and delett out of the books of armes, so that their posterity may never have place nor be able hereafter to brook or joyse any honours, offices, titles or dignities in tyme comeing; and the saids persons imediately abovenamed to have forfaulted, amitted and tint, all and sundry their lands, heretadges, tacks, steedings, roums, possessions, goods, and gear, moveable and immoveable, whatsomever pertaineing to them, to belong to their majesties, and to remain perpetually with them and their successors in property. Which was pronounced for doom; and whereupon their majesties advocat asked and took instruments. 398. The Trial of ALEXANDER HALYBURTON and WM. FRASER, for High Treason: 4 WILLIAM & MARY, A. D. 1692. [Now first printed from the Records of Justiciary in Edinburgh.] CURIA JUSTICIARIÆ, 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 legittime 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 reof Edinburgh. INDYTED and accused, at the instance of sir William Lockhart, there majesties sollicitor; sir Patrick Home, and Mr. Hugh Dalrymple, advocates, assessors to the said sir William, for the majesties interest; That whereas by the comon law, the laws of this and all other well governed nationes, the crymes of treasone and rebellione, and the aiding, assisting, abateing, suppleeing, intercomoneing, and keeping correspondence with, or doeing favours to manifest rebells and traitours, are punisheable with forfaulture of lyfe, lands, and goods; and be the third act of the first parliament of king James the first, It is statute and ordained, that no man openly or notourly rebell against the king's persone, under the pain of forfaulture of lyfe, lands, and goods; and be the thretty seventh act second parliament king James the first, it is statute and ordained, that no man wilfully recept, mantain, or doe favour, to open and manifest rebellors against the king's majesties and the comon law, under the pain of forfaulture; and be the twenty fourth act sixt parliament and fourty nynth act twelt parlia cept, supplie, or doe favours to them; and be the hundreth ffourty and ffourth act parlia ment twelth king James sixt, all his majesties subjects are discharged to supplie or intercomune with traitors or rebells, or give them any relieff or comfort, or any help, redd, or counsell, but to doe there outmost diligence to apprehend or expell them out of the countrey in maner specified in the said act; and be the fyfth act session first parliament first king Charles the second, it is declared, that it shall be high treasone for the subjects of this realme, or any number of them, less or more, upon any pretext whatsomever, to ryse or continow in armes, to make peace or warr, or any treaties or leagues without his majesties speciall approbatione; and be the second act session second parliament first king Charles the second, it is declared high treasone to levie warr or take up armes against the king, or any comissionat by him, or to intyse any stranger or others to invade any of his dominiones, or to wreit, print, or speak any thing that may express or declare such ther treasonable intentiones; and be the comon law, lawes and acts of parliament of this kingdom, airt and pairt, is punishable as the principall cryme: Nevertheless it is of verity, that the saids Alexander Halyburton and Wil liam Fraser, haveing shaken of all fear of God, respect, and regaird to there majesties autho rity and lawes, hes presumed to comitt, and is guilty of the crymes above mentioned, in sua farr as the said Alexander Halyburton, haveing entered into a most wicked and damnable combination with Michael Midletoun, Patrick Roy, and David Dunbar, sometyme prisoner in the Bass, and several other persons, to surprise the fort and garisone of the Bass, where they were prisoners; the said Alexander Halyburton, with his accomplices, did, upon the day of June last, 1691 years, or ane or other of the days of the said moneth, surpryse and make themselves maisters of the said fort and garrisone of the Bass, and notice being given thereof to the lords of ther majesties privie counsell, they, by there act the seventeinth of June last, did recommend to sir Thomas Li. vingstoun, comander in cheiff of there majesties forces in this kingdome, to take such effectual course ffor reducing of the said island from the hands of the foresaids, who were in the possessione thereof, as he should think fitt, and ordained any of there majesties heraulds to pass to the said island of the Bass, with there coatts displayed, in there majesties name, to requyre and comand the said Alexander Halyburtoun, and the other persones above named, his accomplices, to delyver up the said island and fort; and also to render themselves prisoners under the pains of treasone, certifyeing them if they refused they should be treated as traittours, with all rigour and severity, and that without mercie, which warrand was accordingly duely execute againest the said Alexander Halyburtoun, and the other persons above named, his accomplices, as appears by the act of privie counsell and the heraulds execution, and the said Alexander Halyburtoun, and the saids other persones, haveing most contemptuously refused to give obedience to the said charge, the lords of privie counsell did emitt a proclamation, of the dait the first day of Jully thereafter, declareing the said Alexander Halybourtoun, Michaell Midletoun, and the saids other persons, his accomplices, and all who hade joyned themselves with them, in surprysing, mantaing, or defending 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. as shall doe in the contrairie, that they shall be holden and repute, treatted and proceeded against as airt and pairt of and accessory to the forsaid cryme of treasone and rebellion againest the king and his authority with the outmost severity of the law; And yet, notwithstanding the said Alexander Halyburtoàn, with the saids persones and others, his accomplices, did most presumptuously ffortifie, and by open violence defend and mantain, the said garisone of the Bass, against the king and his authority; As also, the said William Fraser haveing entered into a most wicked and traitterous contryvance with the said Michaell Midletoun, who was a declaired traittour by the forsaid proclamation, and —— Crawfurd, of Ardmillan, younger, a forfaulted persone and others, his accomplices, for supplyeing the Bass with provisiones efter it was surprysed by the said Alexander Halyburtoun and the other persons above named, he the said William Fraser with others, his accom plices, haveing hyred a boat under pretence of carryeing some provisiones and hushold furniture from Leith to the Elie, upon the lady Ardross accompt, and there being a certain quantity of meall, bisket, pease, butter and brandie, and other provisions put aboard the said boatt, and when the boatt was sett to sea, and steering over to the Elie, the said William Fraser and his accomplices did force the boatmen to alter there course and goe straight to the Bass; and when some of the boatmen seemed to be refractorie and unwilling, the said William Fraser did beat some of them upon the face, and did thraw about there uose; And when the boat arryved at the Bass, the said William Fraser was very active in helping up the provisions to the rebells in the Bass, and so soon as he came there he was made gunner, and did fyre severall canons at fisher boatts and others as they came by, of designe to have sunk them, or otherwayes to have yielded to these rebells; and he and his other accomplices did keep the boatmen prisoners in the Bass for severall days, and hade almost sterved them for hunger; And ordered them to put on a red coat, take up armes, and stand centry to there assistance; off the which treasonable crymes above specified, or ane or other of them, the saids Alexander Halyburtoun and William Fraser are actors, airt and pairt, which being 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. 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 lybellut 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-abe day of January, 1692 yeares. "The lords of there majesties privie counsell "doe hereby perremptorly appoint and requyre "there majesties sollicitor or his assystants, "without delay, to intent and prosecute an In"dytment of treasone befor the lords commis“sioners of justiciarie againest Alexander Ha "lyburtoun, and William Fraser, prisoners in "the Tolbooth of Edinburgh, which they were "appoynted to doe by a former Interloquitor " and hes neglected. Extracted by me, "Sic Subscrib. D. MONCREIFE, Cl. S. Con." 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 depones that they ordered them to stay with the boatt a litle tyme, till another litle boatt belong. Sir Robert Coll and Mr. Charles Gray, ad-ing to the Bass came into the cran, with two vocatts, being allowed to propone defences for barrells of aile and two dozen of whyt loaves, the pannells, they declaired that they would or thereby, was taken up from the boat, and propone no defences for the pannalls. ordered them to stay till that was taken, least 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. remitted to the knowledge of the inquest. scientie, he was for a considerable tyme before a souldier in the Bass, and saw and knew AlexThe Lords justice generall, and commission-ander Halyburtoun, the pannall, and heard him ers of justiciarie, baving 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. ASSISA. Home, of Nynewalls. James Brown, merchant, in Edinburgh. Robert Sandielands, merchand. The Assyse lawfully sworne; no objection of the law in the contrair. The Persewer for probation adduced the witnesses efter deponeing. John Liddell, souldier, at Castletoun, aged twenty-two yeares, unmarryed, purged of malice, prejudice, hatred, ill-will, and partiall counsell, and solemnly sworne, depones that upon the fyfteint of June the deponent being imployed to carry coalls from a vessell up to Causa Sic Subscribitur, LOTHIAN, I. P. D. Ritchard Midletoun, souldier, at Castletour, aged twenty-eight yeares, solutus, purged of 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 o" his wounds when he came to the boatt, and at the first persone that appeared to the depoand the rest who were in the boat, imediau fter 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 pauuall threattened the deponent, he said, if the deponent and the rest would goe away with the boat and not offer to come up, they would sustain no prejudice, otherwayes he would kill; and thereafter the deponent saw the pannall and the other two persones upon the wall bead in the Bass. Causa scientie, he was a souldier two yeares in the Bass, and knew the said Alexander Halyburtoun, and saw and heard as he bes deponed; and this is the trueth as he shall answer to God, and depones he cannot Sic Subscribitur, wreitt. LOTHIAN. I. P. D. C. George Porteous, Marchemount herauld, solemnly sworne. purged of malice, prejudice, and partiall counsell, and aged fourty-six yeares, or thereby, marryed, and interrogat upon the trueth and veritie of ane execution, under his hand, daited the twenty-first of June last, in obedience to ane act and ordnance of counsell, dated the sixteint of the said month of June, ordering the deponent to charge Alexander Halyburtoun, the pannell, and others, to surrender up the Bass, and to render themselves prisoners, under the paine of treasone, as the said act and ordnance more fully beares; depones that in obedience and conforme to the said act and ordnance, the deponent did truely and reallie execute the same, conforme to the tenor of the said execution in all points befor the witness therein contained; which act, ordinance, and execution, were judicially read and showen to the deponent; and farder depones, that efter he hade execute the said act and order of the counsell in the way and maner contained in the said executione, a man who owned his name to be Halyburtoun, spoke to the deponent over the wall, and told the deponent that they could not render the Bass, ffor they thought they would be in no better state then they were in before causa patet; and this is the trueth, as he shall answer to God. pryseall of the Bass in June last, he was one of those that was imployed to lye at Castletoun to wait the motion of those that were within that island, and that about the end of harvest he was sent in with a drummer and two mariners, with a printed act of indemnity, to make ane offer thereof to him who commanded the garison for himself and the rest, if they would surrender the Basse to his majesty, and accordingly he was permitted to enter the rock and called for the commanding officer, and one Mr. Midletoun came to him and owned himself to be the person who commanded there in cheiff, to whom he delyvered his comission, and gave him the act in his hands, who after reading thereof huffed and appeared verie dissatisfyed; but cannot be positive whether Mr. Hallyburtoun, the pannell, was present there, when he first requyred the governour, or if he came sometyme after; but depons he heard them speaking together anent the said indemnity, and heard them express their detestation againest the present government, and heard them say they would receive comand from none but king James, who was the rightfull king, and that he knew Mr. Hallyburton, and that he hade a sword about him and a gune, and that they detained the deponent prisoner, from Thursday at two o'clock, till Friday in the evening, upon the pretence that the king's souldiers hade taken away there boat; and haveing taken a view of William Fraser, prisoner at the bar, he thinks he sawe him in the Bass at that tyme, when he went in with the offer of the indemnity, causa patet; and this is the truth as he shall answer to God. Sic Subscribitur, JOHN SLOSS. t Henrie Fraser, Ross herauld, aged fourtyyears, marryed, purged of malice, prejudice, partiall counsell, and solemnly sworne, depones conformis precedenti in omnibus, with this variation, that he does not remember that the person who spoke over the wall head owned his name to be Halyburtoun; but he heard the boatmen say that it was Alexander Halybur- James Wishart, a drummer in the earle of toun and ensigne Midletoun with him; but he Leven's regiment, aged thretty-three years, could not distinctly know him, the wall head marryed, purged of malice, prejudice, hatred, being so bigh from the place where the deponent ill-will, and partiall counsell; depons that he was, which act and ordinance of counsel, with went along with serjeant Sloass from Castlethe execution thereof, were showen to the depo-toun to the Bass, in the end of harvest of last, nent. Causa scientie patet, ffarder depones, that when the papers were towed up the rock, to the best of his memory, he heard of the men who spoke over the wall say, they would not render the Bass; and this is the trueth as he shall answer to God. Sic Subscribitur, with ane offer of the indemnity to those who had surprised the rock, and that the serjeant went first up, and left him and the two mariners in the boat, and that afterwards he and the sea men were called for, and a litle English boy was put by them in the boat, and when he came up he sawe Mr. Hallyburton, and two or three more communing with the serjeant, but did not know what past betwixt them, but they thrust the two seamen in to the holl, and did detain the serjeant and the deponent all night, and forced them to drink king Jameses health, and ane other boat haveing come off from the land to see what was become of them, Mr. Midletoun gave orders for styleing a canon to shoot at it, but Mr. Hallyburtoun was against it, and the deponent thinks the distance was so great as the canon would have done no skaith; and farder depons, that they forced him to pull the feathers off the sollen goose, and that when he was goeing away with his drum, Mr. Midletoun caused take it and his sticks from him, but cannot charge their incivilities upon |