lion, he did see non useing or wearing armes Sic Subscribitur. tiall council, depons, he thynks he sawe the panuall John Spreuil, ryding in arms half a myle from Hamiltoun, upon the high way, on the Fryday befor the defate of the rebells at Bothwelbridge, and that he sawe some men with them, but does not knowe it they wer rebells. Depons he was within the breadth of this house to the pannall when he sawe him, and that he sawe some of them have armes, and depous, he never sawe John Spreull befor. Depons, that the pannall, and these that wer in company with him, wer half a myle distant from the James Millar in Milrohaugh aged 25 years, bodie of the rebells; Being interogat if the pannall was reput one of the rebells; depons, unmarried, purged and sworne, depons be he does not knowe if he was reput as one of sawe on who was designed John Spreull rydthem, being interrogat if John Spreull not being on Hamiltoun Muir, in June 1679, and ing reput one of the rebells, why he and those rebells who wer with him did not apprehend him then. Depons he was not in a capacitie. Depones that he mett the pannall in the high way, and parted with him at Moderwell, half a myle from Hamiltoun in the way towards Edinburgh, which is within half a myle to the place wher the corps of ane of the rebells, who was killed by his majesties forces lay, to whose buriall the deponent was going, and depons, that Moderwell was in his road to the said buriall, and depons he never sawe the pansall since, till he saw him in the castle of Edinburgh, and depons, that he thinks the pannall is the man he sawe then, depons he spoke to the pannall at that tyme, about the drought and deepness of the watter, and of no other matter, depons he did not knowe any of the persons, who wer ryding with John Spreull at that tyme, except on man whom he sawe severall tymes therafter ryding throwe Hamiltoun Muir, with the rebells, who was called on Russill, in the parish of Monkland, and that he sawe the same Russill in company with the rebells befor; and, this is the truth, as he shall answer to God. Sic Subscribitur. DAVID CALDWELL. that he was within a verie little distance from Sic Subscribitur. John Spreull, wreitter, in Glasgowe, aged 27 years, unmaried, purged and sworne, depons, That the deponent being with a company of the rebells about twentie or threttie, be mett the pannall in a road about half a myle eastward from the Haggs, about four or fyre dayes befor the break at Bothwelbridge, on horseback, with another ryding with him, and knowes not whither they hade armes or not, nor what collor the pannall's horse was; depons that he himself hade made use of two horses the tyme of the rebellion, whereof one was brown, and another gray; depons he did not see the pannall, at Hamiltoun muir nor HaJames Hamiltoun, in Hamiltoun, called miltoun in company with the rebells, nor any other place, to the best of the deponent's meNepos, aged 40 years, unmarried, purged and sworne. Depons he sawe John Spreuil, the pan-morie, and being interogat, if the pannall was nall goeing single alone throwe Hamiltoun, towards James Mortoun, appothecary, his shope, with a sword about him, and ther was no person speaking with him, and this was four or five dayes before the defate at Bothwelbridge, and depons, that at that tyme ther wer a great many of the rebells within the toun of Hamiltoun, and that he did not hear the pannall to be reput on of them, at that tyme, depons that the rebells wer goeing up and down Hamiltoun, lyke a faire, but he did not hear, nor see the pannall speak to any of them, depones that dureing all the tyme of the rebel against the defenders for the crymes above specified in time coming.' Certainly, in every point of view, it is better, and more suitable, that the judges, like the assize, should enter on the trial, without any previous knowledge or impression of the case," repute, by any of the rebells, or by him, to be one of ther number, depons he cannot remember; and being interogat, when he put away the gray horse, depones he thinks it was some fewe days befor the break, and thinks it was four or five dayes, but cannot be positive; depones that the deponent himself bade a perriwig, the collor of his owne haire, and lighter, and depones that the pannall, the tyme foresaid, that he met him, hade no perriwig, but his own haire; and this is the truth, as he shall answer to God. Sic Subscribitur. Jo. SPREULL. John Aird, merchant, in Glasgow, aged 56 years, married, purged and sworne, depons, That to the best of his knowledge, on the Tuesday, befor the defate at Bothwel-bridge, be sawe John Spreufl, the pannall, in company with Mr. John Welsh and a woman standing George Peirs, Cordener, in Glasgowe, aged 24 years, maried, purged and sworne, depons, he sawe a person, who was designed to him to be John Spreull, ryding in Hamiltoun muir, on a bay horse, with a velvet cape and a cloack, and that he was ryding alone, but knows not, if it was John Spreull, the pannall, or John Spreull, Mr. John Spreull's son, knowes not if he hade armes or not, and that he beard it said that John Spreull, the pannall, was amongst the rebells, and this is the truth, as he shall answer to God. Sic Subscribitur, GEORGE PIERS. John Spreull, wreitter, in Glasgowe, being re-examined, depons, it was a black hatt that he hade, when he was with the rebells, on Hamiltoun muir, and that he hade a black hatt all the tyme of the rebellion. Sic Subscribitur, Jo. SPREULL. Charles Mowatt, appothecary in Glasgowe, aged 40 years, maried, purged and sworne, depones he sawe John Spreull, the pannall, at Kilmarnock, in a chainge house in June 1679, and that he said he was newe come from Ireland, and he craved of the deponent ane accompt he was resting him, and that the other John Spreull was reput to have bein in the rebellion. James Mortoun, appothecary, in Hamiltoun, and aged 30 years, maried, purged and sworne, depons, That John Spreull, the pannall, came in to the deponent's shope, in Hamiltoun, the tyme of the rebellion, and craved him money, but hade no armes, and the deponent trysted him another tyme to gett his money; depons the rebells wer in the toun of Hamiltoun the tyme the pannall came to his shope, and that he took a blank bond from him for his money, as he hade done befor; and this is the truth as he shall answer to God. Dr. Thomas Alstoun, doctor of medicine, aged 26 years, maried, purged and sworn, depons he never sawe the pannall befor he sawe him in the pannall, nor heard that he was out at the rebellion befor he was questioned upon the lybell; and this is truth as he shall answer to God. Sic Subscribitur, THO. ALSTOUN. His Majestie's Advocat, in farder probation, adduced the confession mentioned in the debate, alleadged emmitted be the pannall in presence of the lords of privie councill. Sir George Lockhart, for the pannall, alleadges, That any pretendit confession which his majestie's advocat alleadges was emmitted by the pannall befor the lords of his majestie's VOL. X. privie councill, cannot be repeitted as any mean of probation in this process; first, because the pannall being able to wreitt, ther is no subscribed confession produced under his hand, but on the contrair a coppie of a pretinente offered to the pannall, he did immetendit confession being drawn up and ex incondiatelie disowne, disclaim and reject the same. wher the pannalls are not able to wreitt, it is 2do. In the case of all judiciall confessions the irrefragable opinion of lawyers that the confession should be immediately drawn up and signed by the clerk of court, and acquiesced to by the pannall, but it is most untendit confession ex post facto, and etter a long warrantable to pretend that the terms of preintervall of tyme, cane be proven by the depo sitions of any witneysses of what qualitie, reputation or integritie whatsomever; and the reason of lawe is most evident, because a confession being of so great importance as to men's lives and fortuns, witneysses may mistake as to the tenor, and context and sense, and the way and maner of expression, all which may make a great difference and alteration as to the true cannot be a preparative of more dangerous sense and import of such confessions, and ther consequence then to lay such fundations that depositions of witneysses should be taken to make up pretendit confessions ex post fucto, and efter ane intervall of tyme. 6 3. The said pretendit confession, though it wer produced under the pannall's hand, yet it cane make no faith as being a confession extrajudiciall and not taken coram competente judice as to the proces, and. the crymes and such extrajudicial confessions, even tho consisting in wreitting and taken incontinent, are in lawe revocable et fidem non facit in processu criminali.' And wherin all lawe is so clear and positive that it is but reputed ane extrajudiciall confession tho taken a judice competente, if it is not pro tribunale, as may appear by Mathews page 370, in that title de confessione spontanea per totum.' And by Julius Clarus Quest. 54, and by the authorities and practices of criminall tribunalls by him at great length cited, and the most that ever such pretendit confessions either did, or could operat is but indicium ad torturam which the pannall hes suffered and undergone, and was subjected to the same upon that verie account that he refused to owne or subscrybe the said pretendit confession. Lykeas suitable and consequentiall to the opinion of lawyers and the practise of nations as to this poynt the 90 act of the 2nd parl. K. Ja. 6, does positivelie and in expresse terms requyre that all wreits and documents made use of as a mean of probation should be taken in face and in presence of the inqueist, and so does suppose that it must be taken by the justices sedentes pro tribunale in a formed court, the inquest being sworne and present. Wheras this pretendit confession is alleadged to have bein taken extra circum juris; the lords of his majesties prive councill being noways judges competent to the crimi3 E mall proces and the crymes lybelled, and to irrogate and inflict the condigne punishment of the same all which defences the pannall propons separatim, eather of them being per se et separatim' relevant. And that ther is no lawe or precedent upon record wher ever the like was heard of or sustained that a pretendit confession should be made up in a criminali proces to import forfaulture of a man's lyff or estate upon the pretendit depositions of witneysses in respect whereof, &c. His Majesties Advocat replies, that as to the first, the not subscribing of the confession by the partie cannot prejudge the probation, since the confession being read to him deliberatlie and reiteratlie it shall be offered to be proven that be could not disowne the confession, which being it is against lawe and reason that the pannall's contumacie should be of advantage to him, since that wer to make one cryme defend another, and it is the constant custome of the justices and assysers, foundit upon excellent reason, to find confessions to be sufficient tho not subscribed by the partie, and thus Gogar, Skein, Stewart, &c.; and all dyed upon confessions which they refused to subscribe. conclusion, and as it wer against all sense, that a man's deliberate confession should not prove against himself, so the interest of the pannall is sufficiently secured by being allowed a libertie to correct himself wher he cane prove his error, and why he should varie from his former confession, which this pannall cannot doe, and if he cane, his majesties advocat is content to admitt it to his probation, and that such confessions are valid, if other arguments concurre, he cits Clarus § finale. Quest. 55. num. 4to. wher it is stated that such a confession is only sufficient ad torturam nisi cum hujusmodi confessione concurrant alia argumenta,' as in this case wher it is most clearlie proven by witneysses beyond all exception, that this person was actuallie upon the place, and conversed actuallie with the rebells, and all that is wanting is whither he was ther animo delinquendi, and what was bis designe, which being that of which a man himself is the most competent judge, his owne confession must be therfor the most concluding and solid probation, and since it is confest, as indeed it cannot be denied, that a confession, even coram judice incompetente' is sufficient to subject a pannall to torture, it most be therfor verie clear that such a confes To the 2d, that this confession was wreittension is of itself a verie great and strong probaand read to the pannall er incontinente. And tion, since by our, nor by no lawe, a mane cane it is positivelie offered to be proven that the be subjected to torture, but upon evident and pannall being advertised of his danger and all strong grounds and presumptions. Nor did the articles read to him one by one, he positive- this pannall suffer the tortor upon this poynt, lie acquiesced in them all excepting only that nor upon no part* of his confession, so that his he did not say that was a rebellion, et ex-confession has not taken effect by tortor, but is ⚫ceptio firmat regulam,' and this hightens and lessens not the cryme, and that ther wer blanks in it at the end of the lines, wherupon by order of the councill that was scored tho most unnecessary, yet to complye with him and then againe read to him, and then he hade nothing to say. To the 3rd, His Majesty's Advocat is unwilling to streach any debatable poynt, and following the temper and example of the king, his master, that the people may knowe howe happie they live under his government, does not debate that this confession tho taken in judicio and wher the pannell was advertised of his hazard, yet that it is only sufficient being adminiculat by, and joyned with other pregnant grounds, evidences, and presumptions, in which conjunction his majesties advocat debates, that it is one of the strongest and validest probations; for who cane knowe a man's accession, better then himself, and tho wreitts may be forged, and witneysses may depone falslie against a man, yet the lawe hes concludit certainlie that a man cane never confess falslie to his owne burt, and therefor, even a confession taken ⚫ coram judice incompetente' is concluding, except the confessor cane showe what induced him to erre, for which his majesties advocat does cite Mascard Conclus. 352, num. 2. That 'judex competens potest cogere confessum ad perseverandum in confessione coram judice incompetente factâ nisi doceat de errore et de causa variand.' which is a most reasonable yet to take effect, and his confession is therfor nowe produced, for to convince that the thing which he himself best knewe, and confest was true. To which is joyned not only the depositions of the witneysses alreadie adduced, and that he cane give no reason of his variation, but that the said John Spreull is universallie knownL to be of these principles, that led men to Bothwel-bridge, and to be the great ringleader ther, and that he will not yet call it a rebellion, and howe cane any man of common sense, besid reason alleadge that he who wished so well to that partie, traffectging so much for them, was so oft with them, and will not disowne it to the hazard of his lyff, being infalablie proven to have been upon the place in armes, and to have confest that he was ther. That confession in muteria rei similis and wher ther is no shadowe why he should have emitted that confession, the confession einitted, as said is, should not operat against him, being adminiculat as said is. Sir George Lockhart duplyes, that the pannali's procurators doe not at all conceave them selves in the least streatened by the instances condescendit on by his majesties advocat, of Gogar, Skein, and these other traitors, who were justlie condemned, in respect they doe nowayes relate to nor concerne the poynt in question, but on the contrair retorts the instances, in suae fare as in the case of all these pannalls they wer * Sic in orig. sisted judicially before the justices, and they did repeit the same judiciall confessions in presence of the justices and the inqueist, and rane to the highest transports of furie and treason in disowning the king's authoritie, and the authoritie of all judicatories dirived and acting by Vertue of his majesties authoritie, and so wer in crimine fraglante' and owneing and committing of treason in the face of the court, so that what collor or pretence of lawe cane be urged from these instances to the poynt nowe in question. that being to lay a fundation for drawing the lives and reputations of all men, into evident hazard, and the pannall's procurators oppons the authorities cited, and the lawe said well that nisi totâ lege perspectâ,' it is absurd' de eâ judicare,' and the words immediately following the place cited by Clarus, does clear the citation, and dounright militates against his majesties advocate, and as to all the concurrance and qualifications of the other adminicles insisted on by his majesties advocate, they are neither proper to be debated nor answered hoc loco, but only proper to be represented to the inqueist, and then shall be sufficientlie taken off, answered and satisfied. Mr. David Thoris farder adds and repeits the decision of this court in the case of Robertson, who having confest the murder befor advocat, and the confession being subscribed by three commissioners of justiciary and the king's the three Lords, Advocat and Clerk, the Lords refused to sustain the said confession either as plenam' or semiplenam probationem.' In respect it was not taken by four of the justices (who are only a quorum) pro tribunale se 'dente.' 6 The Lords Justice Generall, Justice Clerk, and Commissioners of Justiciary having considered the debate, they refuse to sustaine the confession (to be proven by witneysses) as a inean of probation either plenarie or adminiculat. His majesties advocat desyres the panall should be interogat be the lords of justiciary whither or not he thinks the being at Bothwelbridge a rebellion. 2do. There is no lawyer, and the lords of justiciary are desyred to cast ther eyes upon the lawyers produced, if ever it did enter into the thought or imagination of any lawyer, that a pretendit confession of crymes import forfaulture of lyf and estate, not extant nor produced under the hand of a judge, wher the partie can. not wreitt but offered to be proven by the depositions of witneysses, was ever heard of or sustained, which not only the generall principle of all lawe has reprobat, but even the lawe of this kingdome even in judicio civili, wher the import is nothing else but a pecuniary interest for parties confessions being but nuda emissio verborum,' depositions of witneysses are not admitted to prove the same, even to the value of ane hundreth pounds Scots, and it is a nottor and known case that a pretendit judicial confession alleadged, made befor the lords of session, in the case of Oseburn and Buchanan, tho produced under the clerks hand, was not sustained to be binding or make faith unlesse it hade been subscribed by the partie: and ane decreit given by the English judges for the tyme, upon that ground against Buchanan, was reduced since, his majesties restouration, by the lords of session, as being absurd, irrelevant, and contrair to lawe, and it wer a strainge streatch and consequence that if the depositions of witneysses cannot be admitted to prove a confession, even as to the meanest civill effect, that they should be allowed, and sustained, in a criminall proces or witneysses heard to depone, as to the tenor of parties confessions thereupon to make any mean of probation, and against which the act of parliament abovementioned is repeited, against which ther ney-assolizie. ther is nor cane be any thing answered. As to these pretences that extrajudiciall confes sions tho taken coram judice incompetente' may be adduced in modum adminiculi nisi 6 'doceatur de errore,' does not at all concerne the poynt; because it is only true wher' constat et apparet de veritate actus' by production of the confession itself, in which case it is acknowledged that whither it be the case of judiciall confessions or extrajudiciall, if the partie be able docere de errore' he may retract and be heard against the confession, but here the poynt debated, is that the confession de natură suâ requirit scripturam,' and most be reducta in scriptis incontinenter' when a partie emitts it, whither it be a judiciall confession or extrajudiciall, which is not in this case, and is not the subject of probation by witneysses, The pannall answers that he conceaves he is not obliged to answer, because it is not the cryme lybeiled, and he may be as well interogat upon any poynt of treason. The lords having interrogat the pannall if he acknowledged the ryseing at Bothwelbridge to be a rebellion, The pannall answered that it was not a part of the cryme lybelled, and that his future lyff should witnes him to be both a good subject, and good Christian. His majesties advocat closes the probation, and protests for ane assyse of error against the inqueist in case they The Lords ordaine the assyse to inclose and returne their verdict to morrowe at 8 o'clock. CURIA JUSTICIARIE, S. D. N. Regis tenta in Pretorio Burgi de Edinburgh, decimo quarto die mensis Junii 1681, per Nobilem et Potentem Comitem Guhelium Comitem de Queensberry, Justiciarium Generalem, Ritchardum Maitlaud de Duddop, Justiciarie Clericum, Robertum Dominum de Nairn Dominos Jacobum Foulis de Colintoun, Davidem Balfour de Forret, et Davidem Falconar de Newtoun Commissionarios Justiciarie dicti S. D. N. Regis. Curia legitime affirmata. The persons who past upon the assyse of Robert Ferguson of Letterpin returned ther 1 The pannall and his procurators takes instruments upon the verdict, and craved the pannall John Spreull may be sett at liberty. His majesties advocat produced ane act of Councill ordaining him to be detained in prison, fourteint day of June, 1681. The lords of whereof the tenor followes: "Edinburgh, the his majesties privie councill doe hereby give ordor and warrand to the justices, notwithstanding of any verdict or sentance returned or to be pronounced by them thereupon, upon the Spreull, to detaine him in prison untill he be criminall dittay lathe persewed against John examined upon severall other poynts, they have to lay to his chairge. Extract by me. "Sic subscribitur, PA. MENZEIS." The Lords Commissioners of Justiciary, in respect of the said Act of Councill, did renut the said John Spreull back to prison. 316. Trial of DAVID HACKSTOUN, Laird of Rathillet, for Treason and Sacrilegious Murder: 32 CHARLES II. A. D. 1680. [Now first printed from the Records of Justiciary in Edinburgh.] CURIA JUSTICIARIE, S. D. N. Regis tenta in nishing of them, with meat, drink, powder, ball, pretorio burgi de Edinburgh, SO die Julii or other munition bellicall, are most detestable, 1680, per honorabilis viros Gulielmum horrid, hynous, and abominable crymes of reComitem de Queinsbery Justiciarium Ge-bellion, treason and icse mujestie, and are puneralem, Ritchardum Maitland de Dudop, | Justiciarie Clericum, Dominos Jacobum Foulis de Colintoun, Robertum Nairn de Strathurd, Davidem Balfour de Forret, Davidem Falconer de Newtoun, et Rogerum Hoge de Harcarss. Curia legitime affirmata. David Hackstoun, of Rathilet, Prisoner. nishable with forfaultour of lyff, lands, heretages, and escheat of moveables, and be the first act of the 18 parliament king James 6th, the estates of parliament faithfullie promise perpetually to obey, maintaine, and defend the prerogative royal of his sacred majestie, his aires, and successors, and priviledges of his hynes crown, with ther lives, lands, and goods, and be the 5th act, 1st session of his majestie's first parliament; it is declared that it shall be hye treason to the subjects of this kingdome or any number of them, more or lesse, upon any ground or pretext whatsomever to ryse or continue in armes, to make peace or warr, or to make any treaties or leagues with foreign princes, or estates, or amongst themselves, without his majestie's special authoritie and approbation, first interpoued thereto, and all his majesties leidges are discharged upon any pretext whatsoever, to attempt any of these things, under the painé of treason; and be the 7 act, 1 session of his majesties first parliament, the late Solemne League and Covenant, or any other covenant, or public oath is discharged to be taken be any of his majestie's subjects, upon ther highest perrill. And be the 2d act, 2d session of his majesties first parliament, it is statute and ordained, that if any YE are indyted and accused, that wher notwithstanding from the lawe of God, the lawe of nations, and the municipal lawe of this kingdome, and the alleadgiance of the subjects thereof, ther lye great obligations and bonds upon them and you, to maintaine and defend the royall and sovereigne power and authoritie of the king's majestie, and that be the common lawe, the lawe of nations and acts of parliament of this kingdome and constant practice thereof, the ryseing of his majesties subjects, or any number of them joyning and assembleing together in armes without, and contrary to his ma jesties royal command, warrand, and authoritie, and the abaiting, assisting, recepting, intercommuning, and keeping correspondence with such rebells, and supplieing of them with levies of men, horse, money, armes, and fur-person or persons shall herefter plott, con trive, or intend death, or destruction to the king's majestie, or any bodiely harme tending to death, or destruction, or any restraint upon his royal person, or to depryve, depose, or sus pend him from the style honour and kinglie |