was Glover's lease and other things, and all for my lady Ivy. Nay, she tells you my lady Ivy was so extraordinary an artist at the managing of such an affair, that this master workman, Duffett, was not so dextrous at it as she; for he could not write the first great letters of the names that were to be put to the forged deeds, but she did that herself, and the rest he did. How far she is to be believed, I must leave to you; you hear what is objected against her about the frog in her belly:* and I do not know what; whether that will take off the credibility of her testimony, I leave to you. She doth give a very free and large account how they used to order their matters to make the ink look old, (as I said) they put saffron in it; then they rubbed the outsides of the deeds in dirty windows, and after that used to lay them in a balcony for the rain to comeupon them in the nights, and to dry them in the sun, or by the fire, to shrivel them up. And this she says was their method, and process they used. All which the plaintiff's counsel urge, to shew the probability that these deeds of theirs are forged. Then they tell you, which is yet somewhat more to strengthen her evidence, there is a woman, that though she speaks out of Mr. Duffett's mouth, and that can be no evidence against my lady Ivy, yet says, she received from him a parcel of letters, which are sworn by sir Charles Cotterel to be all of my lady Ivy's own hand-writing; which letters have been read to you: and they shew a great familiarity between my lady Ivy and Mr. Duffett, a great care and concern for the promotion of this Duffett, the gentlewoman's husband; and of some deeds that were likely to be thought new and suspected. And she tells him at the Jatter end of one, that she is solicitous till the trouble be over: but she was resolved to set on foot sir William Salkhill's mortgage, and if that thing did go well, he should have half. That supports the credibility of the woman's testimony but besides that there is another thing that looks very untoward, because Mrs. Duffett doth directly swear, that out of the 1000l. paid my lady Ivy by sir Charles Cotterel, 2007. was paid and given to her husband, and Mr. Sutton forsooth had 2001. inore: for what service, I wonder, must my lady Ivy be so liberal to Mr. Sutton and Mr. Duffett? Mr. Sutton shuffle and rouse himself as he pleaseth, it will stick upon him; and I must confess it looks untowardly, his getting my lord of Salisbury's lease to pick notes out of it, and then to have such a mortgage trumped up in this manner. It is very rank, I assure you. Concerning the operation which the fact that a female witness had passed a life of incontinency shall have upon her credibility, much was said in the House of Commons upon occasion of the Inquiry into the Conduct of the Duke of York, A. D. 1809. See 12 Cobb, Parl. Debates 179 et seq. This is a substance of the evidence that has been offered by the plaintiff, to prove and induce you to believe these deeds forged. Now, in answer to this, they on the other side would offer, that sir Charles Cotterel's evidence is a surprize upon them. They say they have such a writing, and such and such deeds, Glover's lease, and Salkhill's mortgage; but they are not prepared to give such an answer as they would have done, had they had notice. Here has been likewise great struggling and striving to have the verdict read to overthrow Mrs. Duffett's testimony; but that cannot be allowed to be given in evidence between these parties. Then they would have read her husband's oath, he being dead; but that is no point of evidence at all neither; for in case the man were alive, it would not be evidence what he should have heard his own wife say. If both of them indeed had been heard together, and testified against my lady Ivy, it had been good evidence; or they both might have testified for her. But by the law the husband cannot be a witness against his wife, nor a wife against her husband, to charge them with any thing criminal, except only in cases of hightreason. This is so known a common rule, that I thought it could never have borne any question or debate. This is the substance of the evidence on both sides, as near as I can recollect it; save only that which indeed I should have mentioned before, the defendant had produced an exemplification of a verdict obtained the last Michael mas term. To which they for the plaintiff answer, we were not then prepared to answer your deeds, which were very new, surprizing and unexpected to us: we have now given new evidence that we never gave then, and it was a verdict obtained by surprize: we now shew our boundaries better than we could then; and so that they make to be the result of the whole matter. Now upon the main, after this very long evidence, though the case has been darkened as much as ever any case could be endeavoured to be; and though the event of it be a matter of considerable value, yet the matter of fact is as clear as the sun at noon day; and a plain point of fact it is, and must depend upon. If we do admit all their deeds to be good deeds, without any consideration of the forgery, pro or con, yet if the mill-ponds, ditches, orchards, gardens, &c. can be taken to be seven acres; then the boundaries upon the mill or hilly-bank, which may well be Fox's-lane, that will answer both the deeds of the plaintiff and of the defendant, and though never so many houses be built upon it, it will signify nothing in the case. And that it is so, whereas the defendant's surveyor swears, that 130 acres will not be made up without the lands in question; the plaintiff has brought two surveyors, that swear there is full 130 acres, and more, without them. So you have two surveyors on the one side, and one on the other; and you yourselves have viewed it. After this long evidence, gentlemen, you have had as good an account of the substance of it, as I can by my notes and memory recollect. If any of the gentlemen that are of the counsel for the plaintiff or for the defendant, do think I have omitted any thing that is material, on either side, they have free liberty to remind the court of it. You are the judges of this fact, whether this land do of right belong to the plaintiff or to the defendant: And I leave it to your consideration. After which, the jury withdrew to consider of their verdict, and the court arose. That evening the jury gave in a private verdict before a judge and appearing the next morning at the bar, were called over, and demanded if they did abide by the verdict they had given the night before; to which they answered, Yes: which being declared by the secondary to be" for the plaintiff," the jury were discharged. Then a motion was made by the plaintiff's counsel, that several deeds produced by the defendant, that were detected of forgery, might be left in court, in order to have them pursued, and convicted of the forgery. The court, upon debate of the matter, and the plaintiff's counsel declaring they would prosecute an information of forgery, the deeds of the 13th of November, and the 22d of December, 2 and 3 Philip and Mary, were ordered to be left with the clerk of the crown till further order, and in the mean time the plaintiff to have copies of them from the Clerk; and by a rule of court a trial at bar is ordered in Michaelmas term. In Trinity-term there was an information against lady Ivy, for forging and publishing the said two indentures, as follows: REX versus Ivy. INFORMATION against the lady Ivy, for forging and publishing two Indentures, Trin. 36 Car. Secund. Rot. 48. ss. Quod Theodosia Bryan, de, &c. alias dict' Theodosia Ivy, de, &c. vid. die anno, &c. Vi et Armis, &c. apud Westm. in Com. Midd' ex suo propr. capite et imaginatione subtilit' falso et fraudulent' fabricavit et fecit et fieri et fabrieari causavit quoddam falsum factum continen' < materiam sequen' videlicet, This Indenture made the 13th day of November, in the 2d and 3d year of the reign of our lord and lady, Philip and Mary, by the grace of God, king and queen of England, Spain, France and 'Ireland; defenders of the faith, arch-dukes of Austria, dukes of Burgundy, Milan, and Brabant; counts of Hasburg, Flanders and Tyrol: Between Marcellus Hall of Radcliff, miller, on the one part, and Richard Roper, 'citizen and salter of London, of the other part, 'witnesseth,' &c. prout per pred' falsum et controfact' factum plenius liquet et apparet Domina T. Ivy postea, scilicet die, anno, &c. Quodq; pred' Theodosia Bryan alias dict' apud, &c. scient' subtilit' et falso pred' falsum causavit ut verum factum pred' Marcelli Hall et fabricatum factum publicavit et publicari sigillat' et deliberat' p. prefat' M. H. ubi revera eadem T. B. alias dict' Domina T. I. adtunc et ibidem bene scivit et intellexit dictum factum fore falsum controfact' et fabricat' Anglice forged, et non fuisse factum pred' M. H. nec Coron' et Attorn' dicti Dom' Regis pro eodem p. ipsum sigillat' et deliberat' Et ulterius pred' Domino Rege dat' Cur' hic intelligi et infor mari quod eadem T. B. alias, &c. die et anno suprad' &c. vi et armis, &c. apud, &c. ex suo falso et fraudulent' fabricavit et fecit et fieri et proprio capite et imaginatione scient' subtilit' fabricari causavit quoddam al' falsum factum continen' materiam sequén' videlicet, 'This Intionat' falsum et controfactum factum plenius' denture, made, &c.' prout per pred' ult" menliquet et apparet et pred' T. B. alias, &c. postea scilicet die anno suprad', &c. apud, &c. scient' subtilit' et falso pred' falsum et fabricatum factum ult' mentionat' publicavit et publicari causavit ut verum factum pred' M. H. sigillat' et deliberat' per prefat' M. H. ubi revera eadem T. B. alias, &c. adtunc et ibid. bene scivit et intellexit dictum ult' mentionat' factum fore falsum controfact' et fabricat' Anglice forged, et non fuisse factum pred' M. H. nec per ipsum sigillat' aut deliberat' Ad grave dampn' ejusdem G. B. in contempt' dicti Domini Regis nunc Legumq; suar' in malum et pernitiosum exemplum omn' al' in tali casu delinquen' ac contra pacem dicti Domini Regis nunc Coron' et Dignitat' suas, &ç. $14. The Trial of ROBERT BAILLIE," of Jerviswood, in Scotland, for High Treason: 56 CHARLES II. A. D. 1684. CURIA JUSTICIARLE, S. D. N. Regis tenta in prætorio Burgi de Edinburgh vigesimo tertio die mensis Decembris, 1684, per Nobilem et Potentem Comitem Georgium Comitem de Linlithgow, Dominum Livingstown, &c. Justiciarium generalem totius Regni Scotine, et honorabiles viros Dominos Jacobum Foulis de Colintoun Justiciaria Clericum, Joannem Lockhart de Castlehill, Davidem Balfour de Forret, Rogerum Hoge de Harcarss, Alexandram Seaton de Pitmedden, et Patricium Lyon de Carss, Commissionarios Justiciariæ dicti S. D. N. Regis. Curia legitime affirmata. Intrat Mr. Robert Baillie of Jerviswood, Prisoner, INDITED and accused, That where notwithstanding by the common law of this, and all other well-governed nations, the conspiring to overturn the government of the monarchy, or of the established government of this kingdom, or the concealing, and not revealing of any treasonable design, project, or discourse tending thereto; or the assisting, aiding, or abetting such as have any such designs, does infer the pains and punishment of treason. And by the third act of the first parliament of king James 1. The rebelling openly against the king's person; and by the thretty-seventh act of his second parliament, The resetting, maintaining, or doing favours to open or notour rebellers against the king's majesty is declared treason, and punishable by forfaulture. And by the hundred fourty and fourth act of the twelfth parliament of king James 6. It is declared treason to reset, supply, or intercommune with traitors. And by the first act of the first session of his majesty's first parliament, It is declared, That it shall be high-treason for the subjects of this realm, or any number of them, less or more, upon any ground or pretext whatsomever, to rise, or continue in arms, to make peace or war, "Upon what was thus screwed out of only fine and imprison. It was to no purpose these two persons, the earl of Tarras, who had for him to say, that by no law, unless it was married the duchess of Monmouth's elder in a court of inquisition, a man could be resister, and six or seven gentlemen of quality, quired to swear against himself, the temptawere clapt up. The ministers of state were tion to perjury being so strong when self-prestill most earnestly set on Baillie's destruction;servation was in the case, that it seemed though he was now in so languishing a state, occasioned chiefly by the bad usage he met with in prison, that if his death would have satisfied the malice of the court, that seemed to be very near. But they knew how acceptable a sacrifice his dying in a more violent way would prove. So they continued even in that extremity to use him barbarously. They were also trying what could be drawn from those gentlemen against him. Tarras had married his niece, who was his second wife. So they concluded that their confidence was entire. Baillie's illness increased daily and his wife prayed for leave to attend on him: and, if they feared an escape, she was willing to be put in irons: but that was denied. Nor would they suffer his daughter, a child of twelve years old, to attend him, even when he was so low, that it was not probable he could live many weeks, his legs being much swelled. But upon these examinations a new method in proceeding against him was taken. An accusation was sent him, not in the form of an indictment, nor grounded on any law, but on a letter of the king's, in which he charged him not only for a conspiracy to raise rebellion, but for being engaged in the Rye-plot; of all which he was now required to purge himself by oath, otherwise the council would hold him guilty of it, and proceed accordingly. He was not, as they said, now in a criminal court upon his life, but before the council, who did against all law and religion to lay such a snare in a man's way. But to answer all this, it was pretended he was not now on his life, and that whatsoever he confessed was not to be made use of against his life; as if the ruin of his family, which consisted of nine children, and perpetual imprisonment, were not more terrible, especially to one so near his end as he was, than death itself. But he had to do with inexorable men: so he was required to take this oath within two days. And by that time, he not being able to appear before the council, a committee of council was sent to tender him the oath, and to take his examination. He told them, he was not able to speak by reason of the low state of his health, which appeared very evidently to them: for he had almost died while they were with him. He in general protested his innocence, and his abborrence of all designs against the king, or the duke's life : for the other interrogatories, he desired they might be left with him, and he would consider them. They persisted to require him to take his oath but be as firmly refused it. So, upon their report, the council construed this refusal to be a confession: and fined him 6,000l. and ordered him to lie still in prison till it was paid. After this it was thought that this matter was at an end, and that this was a final sentence: but he was still kept shut up, and denied all attendance or assistance. He seemed all the while so composed, and even so without his majesty's special approbation. And by the second act of the second session of his majesty's said first parliament, to plot, contrive, or intend death, or destruction, or to put any restraint upon his majesty's royal person, or to deprive, depose, or suspend him from cheerful, that his behaviour looked like the reviving of the spirit of the noblest of the old Greeks or Romans, or rather of the primitive Christians, and first martyrs in those best days of the church. But the duke was not satisfied with all this. So the ministry applied their arts to Tarras, and the other prisoners, threatening them with all the extremities of misery, if they would not witness treasonable matter against Baillie. They also practised on their wives, and frightning them set them on their husbands. In conclusion, they gained what had been so much laboured: Tarras, and one Murray of Philipshaugh, did depose some discourses that Baillie had with them before he went up to London, disposing them to a rebellion. In these they swelled up the matter beyond the truth. Yet all did not amount to a full proof. So the ministers, being afraid that a jury might not be so easy as they expected, ordered Carstair's confession to be read in court, not as an evidence, (for that had been promised him should not be done,) but as that which would fully satisfy the jury, and dispose them to believe the witnesses. So Baillie was hurried on to a trial. And upon the evidence he was found guilty, and condemned to be executed that same day: so afraid they were lest death should be too quick for them. He was very little disturbed at all this: his languishing in so solitary a manner made death a very acceptable deliverance to him. He in his last speech shewed, that in several particulars the witnesses had wronged him: he still denied all knowledge of any de sign against the king's life, or the duke's; and denied any plot against the government: he though it was lawful for subjects, being under such pressures, to try how they might be relieved from them: and their design never went further but he would enter into no particulars. Thus a learned, and a worthy gentleman, after twenty months hard usage, was brought to such a death, in a way so full in all the steps of it of the spirit and practice of the courts of inquisition, that one is tempted to think that the methods taken in it were suggested by one well studied, if not practised in them. The only excuse that was ever pretended for this infamous prosecution was, that they were sure he was guilty; and that the whole secret of the negotiation between the two kingdoms was trusted to him; and that, since he would not discover it, all methods might be taken to destroy him not considering what a precedent they made on this occasion, by which, if men were once possessed of an ill opinion of a man, they were to spare neither artifice nor violence, but to hunt him down by any means. I have been perhaps too the exercise of his royal government, or to levy war, or take up arms against his majesty, or any commissionated by him, or to entice any strangers or others to invade any of his majesty's dominions, or to write, print, or speak any thing that may express or declare such long in this particular, but the case was so singular, and my relation to the person was so near, and my value for him was so great, that I hope I need make no apology for it." 1 Burnet, 585. About eight years before this trial, Baillie of Jerviswood had incurred the displeasure and experienced the severity of the Council of ScotWodrow, (vol. 1, p. 421,) gives the following account of what occurred upon that land. occasion: "About the middle of June this year, there fell in an attempt upon the reverend Mr. James Kirktoun, before the restoration minister at Martin, and since the revolution a most usefuĺ minister for a good many years in the city of Edinburgh, well known to this church. This, affair kindled a great flame, and was the occasion of some very considerable changes. I shall give an account of the matter of fact, from a narrative left of it by himself, who could only give the account of some circumstances relative to it, and whose veracity I know will be depended upon; and then I shall subjoin what I meet with anent it in the council-records: and my account of this is the larger, because this incident hath been very falsly represented to the public in print. "Mr. Kirktoun, about the time mentioned, one day walking in the street of Edinburgh about noon, was accosted very civilly by a young gentleman, (we shall afterward find him to be captain Carstairs) and another gentleman, and a lackey: he knew none of them, but came afterwards to know both to his cost. Carstairs desired to speak a word with Mr. Kirktoun ; to which he answered, He would wait on him, suspecting no evil. When walking off towards the side of the street, he asked at the other (James Scot of Tushilaw) who this young gentleman was, for he was perfectly a stranger to him: Scot answered him with silence and staring; and then Mr. Kirktoun found he was trepaned, and a prisoner. However, he was glad when they carried him to a private house, and not to the prison, which was near by. "The place they brought him unto, was Carstairs's own chamber, an ugly dark hole, in one Robert Alexander a messenger his house. As soon as Carstairs got him into his chamber, he sent off Scot and his footman, probably to bring some more of their companions. When they were gone, Mr. Kirktoun asked what he meant to do with him. Carstairs answered, Sir, you owe me money. Mr. Kirktoun asked him, whom he took him to be, and told him, He owed him nothing. The other replied, Are you not John Wardlaw? Mr. Kirktoun said he was not, and ingenu. manner of way, to endeavour the alteration, their treasonable intentions, is declared treason "Next council-day, June 22d, The lords having considered the libel given in by his majesty's advocate against Mr. Robert Baillie of Jerviswood, for his rescuing of Mr. James Kirktoun, and deforcing captain Carstairs, who had orders to apprehend Mr. Kirktoun, find the libel_relevant, and proven, by the warrant produced by the captain, and that Jerviswood is guilty of an insolent riot and deforcement, and fine him in 500l. sterling, and appoint him to lie in prison till he pay it. That day, I am toid, the council were in a terrible rage, so that when several of the inhabitants of Edinburgh had got in to see what the council would do in so odious a case, the question was stated, whether all the people in the lobby should be imprisoned or not? they escaped confinement but by one vote. "The council remit to the committee of public affairs, the examination of Andrew Stevenson, and Patrick Johnstoun, who are delated, as being art and part with Jerviswood in the deforcement: and in July they are fined, Mr. Stevenson in 1000l. Scots, and Mr. Johnstoun 1000 merks; and they were to continue in prison till payment. "This prosecution was mightily cried out upon. The reason given by the managers for this severity was, that Jerviswood and the others Thus Mr. Kirktoun escaped; but the were guilty of resistance to lawful authority, others inclined not to quit their game so, but because captain Carstairs was a commissioned resolved to turn their private violence to state- officer, and had produced his commission for service, and so go straight to Haltoun, and tell apprehending outed ministers, and suspect pertheir own story, who presently calls the coun- sons, at the council-board: but this reason cil, almost in time of dinner, as if all Edin- could not satisfy impartial observers, who knew burgh had been in arms to resist lawful autho- how matters stood. It was indeed true, that rity. When the council got together, Haltoun Carstairs, some time before this, had a wartells the story, as the villains had represented rant to this purpose, granted him by the archit to him, That some of their public officers bishop of St. Andrews; but it was well known, had catched a Phanatic minister, and that he that, I do not know from what cause, he burnt was rescued by a numerous tumult of the peo- this warrant a month before this, in the earl of ple of Edinburgh. The council made a dili-Kincardin's house, before severals, and produced gent enquiry into the matter, and could find nothing in it to fix upon. Mr. Kirktoun had taken care to inform his friends that it was a real robbery they designed, and a little money would have delivered him, if he and Carstairs had got leave to finish their communing. "Jerviswood was brought before them, and gave them a very candid account, as above; and when the council had gone their utmost, they could find no more in it; and many of them were of opinion it were best to drop it. This bishop Sharp violently opposed, and al no warrant to Jerviswood and the rest, when they rescued Mr. Kirktoun, neither once so much as pretended any such thing. "And his production of a warrant before the council was afterwards found to be a trick and contrivance of the primate, which will be the more easily credited, when the reader comes to the case of Mr. James Mitchel, and to observe his carriage in that matter. The thing * See Mitchel's Case in this Collection, vol. 6, p. 1207. |