some cases, what he had to say why it should not be pronounced. His return was, My lords, I have little to say, I pray the Lord may save the king, whatever come of me! which shewed him to be a better Christian and subject than such who persecuted him.

His sentence drew compassion and tears from many of the onlookers, to see so good, old, and innocent a gentleinan exposed to such bardships for imaginary crimes; yea, the hard measure he met with was regretted by some, persons in the government after it was over; and I am well assured, that even sir George Mackenzie used to cast the blame of this procedure off himself, and term Douchal My lord Melford's martyr.'

And such was the equity of those times, that the very person who was his judge, had got a previous promise of his estate, which was in due time made good; and July 1686, by the king's gift the earl of Melford was made donator to his personal and heretable estate, so that he had more reason than every body to find him guilty. 1685, March 22d. John Porterfield, late of Douchal, and Alexander Porterfield his son, supplicate the council for liberty. The first is refused, because under a sentence of forfeiture. His son is let out, on bond for the sum in which he is fined. July 23d. Douchal is allowed the liberty of the town of Edinburgh upon his petition, but confined thereunto. And September 3d, the council transmit the following petition from him to the secretaries; That whereas the petitioner being desired by sir John Cochran to give some charity to the lord Argyle, did heartily refuse the same, and having concealed the design of the said sir John, and not timeously revealed the same, which he did out of ignorance, and not out of any evil design, but did freely confess the same, which otherwise could not be proven against him, wherefore your petitioner is forfeited, and hath a long time been prisoner; and seeing his life is near at an end, Î being of the age of seventy two years, and under many infirmities contracted in the said prison, it is therefore humbly desired that your lordships would recommend your petitioner to his most sacred majesty, for a remission to be passed gratis, containing Rehabilitation, &c. And it is hoped his sacred majesty will he so gracious (considering that the petitioner's crime was not intentional, but in a manner ignorantly) out of that gracious benignity and goodness which princes have been in use always to bestow upon the worst of their subjects, being penitent, and allow your petitioner a competency to live upon, out of his own estate, and take some seen course with his debt, which is very grievous to his spirit, and your petitioner shall ever pray: John Porterfield.' And I find, says Wodrow, September 16th, an address to the council from Alexander Porterfield his son, shewing that he hath nothing to pay his fine with, seeing his father is forfeited, and begs his fine may be remitted, considering his long imprisonment. The council transmit this ad

dress to the duke of Queensberry.-See 2 Wodrow, 420, 422, 478.

The following is Fountainhall's Report of this Case:

“November 27, and 28, 1684. Porterfield of Duchole was thir days pannelled before secretary Lundy, and the justice clerk, as commissioned by the king to hold the circuit for Clydesdale, and their power was to expire on the 1st of December, for these crimes of treason; 1mo. That be had harboured and reset one Holmes his officer, after he had come back from Bothwel-bridge; and also had oft harboured and entertained Porterfield his brother, who was excepted out of the act of indemnity for being at Pentland-bills. 2do, That sir John Cochran had come to him, and desired that he might lend 1,000 merks to a poor distressed friend, and he asking if he meaned my lord Argyle, he did not deny it; and though he had refused to contribute any thing towards his assistance, yet he treasonably concealed that design of raising money to my lord Argyle, then a declared traitor.-Though he confessed the matter of fact, except resetting the officer, yet he alledged that the resetting his brother could not import any thing against him; seeing resetting in law must be a concealing, abstracting, or hindering a rebel from being brought to justice or punishment; whereas his brother these eighteen years has conversed openly at kirk and market with all ranks of persons, even with the officers of the king's army, unquestioned by any, and went to London and componed the gift of his own forfeiture, and took it in another person's name (because he himself refused the declaration) but to his own behoof; so that Duchole was in bona fide to converse with him; and it was nothing but parsimony in not bestowing the expence that kept him from a remission; and this not being adverted to, he has infected all the gentry in the west by conversing with them. As to the second, answered, That he knew not certainly if sir John Cochrane meaned my lord Argyle, when he craved the subsistance and contribution. 2do, There was none present who heard sir John seek it but himself; so if he had revealed it, he could not have proven the same; and thus by the 49th act parl. 1587, succumbing in proving another guilty of treason he became guilty of the same treason himself.--Yet regent Morton was execute for concealing, though he could not have proven it. See sir George M'Kenz. Criminals, page 48. who thinks this concealing to be no treason. It was great simplicity in Duchole to confess; for they having no way of proving, if they had referred it to his oath, it would have restricted the hazard to an arbitrary pain. But the reset would have forfeited him, unless he had purged and restricted it, by taking the test; which he would not do. Stio, He alledged what was given to strengthen a rebel to rise in arms were certainly treason; but here it was only charity towards alimenting

this procedure, to prevent quarrelling, is ratified by the 7th act of parl. 1685."

The act of parliament is as follows:

Act anent Porterfield, of Duchall, and con'cealing of Supply given to Rebels, May '6, 1685.

Our soveraign lord, and estates of parlia ment, do ratifie, approve, and confirm the 'sentence of forfalture pronounced by the com'missioners of justiciary against John Porter'field, sometime of Duchall, and the interlo'cutors, and whole procedure of the saids commissioners in that process. And declares, that 'the same was conform to the laws of this kingdom. And in general, statutes and declares, 'that the concealing and not revealing of sup'plys given to, or demanded for traitors for'faulted for treason against the king's person or government, is treason, and to be judged ac'cordingly.'

Wodrow, after observing upon "two other most iniquous acts," says of this "their third act this day runs yet deeper, and was framed not only to look back to what was past, but to catch a great many gentlemen and others and to bring them to ruin in their bodies and estates. The illegal and harsh sentence passed by the Justiciary, at the direction of the Council, against that excellent gentleman and christian John Porterfield, of Douchal, made a terrible noise, and was plainly enough perceived to have been in order to gratify a particular maIt was necessary then nager with his estate. ex post facto, to confirm this sentence by a posterior law."

321. Case of WALTER Earl of TARRAS, for Treason, and recepting of Traitors: 36 CHARLES II. A. D. 1685. [Now first printed from the Records of Justiciary in Edinburgh.]

And be the second act, second session of his majesties first parliament, It is statute and ordained that if any person or persons shall, herefter, plot, contrive, or intend death, or destruction to his majesty, or any bodily harme tending to death of destruction, or any restraint upon his royall person, or to deprive depose or suspend him from the style honour or the kinglie name of the imperial crown of this realm, or any others his majesties dominions, or to suspend his majestie from the exercise of his royall government, or to levie warr or take up armes against his majestie or any commissionat by him, or shall intyse any strangers to invade any of his majesties dominions, and shall by wryting, printing, and other malicious and advysed, speaking, express and declare such their treasonable intentions, efter such person or persons being upon sufficient probation legallie convict therof, shall be deemed, declared and adjudged traitors, and shall suffer forefaulture of life, honours, lands and goods, as in the cases of treason. Lyk as, by the second act of his majesties third parliament, It is declared high treason in any of the subjects of this realm by wryting speaking or any other manner of way to endeavour the extirpation, suspension or divertion of the right of succession to the imperiall crown of this realme, or the debarring the nixt lawfull successor from the inmediat actuall, full and free administration of the government conform to the lawes of this realm, and that all such attempts and designs shall inferr against them the pain of

make warr against the king's lieges, and that wher any traitors of rebels repairs in any part of this kingdom, none of his majesties liedges shall presume to recept, supplie, or intercomune with them, or give them any meat, drink, hous, barbour, or any relieff, or comfort, under the same pain, for whilk they are forefaulted and put to the horn, and that immediately upon knowledge of their repairing in the bounds, all his majesties obedient subjects doe their exact diligence to the uttmost of their power, in searching, seeking, taking, and apprehending the saids rebells and traitors, and presenting them to justice, or in following of them till they be taken, and expelled and put out of the shyre, and that immediately they make intimation to the magistrates and persons of power and authority in the nixt shyre, who shall be holden to doe the lyke diligence without delay, and sua from shyre to shyre, till they be apprehended, and brought to justice, or expelled and put out of this realme; and farder, when ever any manner of trators and rebells happens to repair in the countrey, all his majesties liedges knowing them, or amongst whom they resort, shall with all possible speed certifie his majesty, or some of his majesties privie councill, or some of the chief persons of authority, or credit, dwelling within the same shyre, that such persons (if they be known) are within the same, and if they be unknown, showing their tockens under the paines that the rebells and traitors ought to have sustained in their bodies or goods, themselves, in case they had bein apprehended, presented and convict be justice. And be the four-treason. Notwithstanding whereof ther being teinth act, sixt parliament, king James the second, it is declared that all who shall recept such as are justified by crymes, if the crime be nottour, and the tresspassor convict or declared guilty, are ordained to be punished as the principall tresspassor, and by the nyntie seventh act, seventh parliament, king James the fyfth, all sheriffs, bailzies, and others, are or Juncto lykewayes of the Scottish nation dained to doe diligence to apprehend all rebells called up by them, and who did meet and aswho are at the horn, for capitall crymes, and semble themselves together at London, in the that no man willfully or willingly recept, sup- moneths of February, March, April or May plie, mantaine, defend, or doe favour to any of 1683 years, at which meeting were present, his majesties rebells, and being at the horne The lord Melvill, Mr. Robert Baillie of Jerviswithin their houses, bounds, lands, and bailziea- wood, sir Hugh Campbell of Cessnock, and sir ries, under the paine of death, and confiscation George Campbell his son, Montgomerie of of moveables. And by the fyfth act first ses- Langshaw, sir John Cochran, Mr. Robert sion of his majesties first parliament, it is de- Martine, Mr. William Veitch, ane outlawed clared, that it shall be high treason for the sub- preacher, and declared and forfault traitor and jects of this realme, or any number of them, less others. Wher efter they had most treasonably or more, upon any ground or pretext whatsom- and seditiously misrepresented his majesties ever to rise or continue in armes, to make peace or government, especially in Scotland, and the warr without his majesties speciall authority and administration of his royal highness his maapprobation first interponed thereto. And be the jesties commissioner, and his judicators there, first act eighteinth parliament, king James the therby to excite one another to the designed sixt, the estates of parliament faithfully pro- conspiracy and rising intended against him, mise perpetually to obey, mantaine and de-aud to serve as a pretext and blind to excuse fend the prerogative royal of bis sacred majesty his airs and successors, and priviledges of his highnes crown with their lives, lands and goods.

As to this, see the Case of lord Loudoun and others, as before referred to.

a treasonable design in England, for riseing in arms against the king our soveraigne (whom God preserve) and for killing or at least seizing on his sacred person, and the person of his royall highness, and for forcing his majestie to condescend to such proposalls as they the said damnable conspirators should make, ther was a

their wicked and treasonable design of joyning with the conspirators in England, they did send master Robert Martine with a commission into Scotland, and he carryed letters, particularly a letter from the said Jerviswood to the said Walter earle of Tarras, and the said Mr. Ro

efter.

Persewer, Sir George M'Kenzie of Rosehaugh, his Majesties Advocat.

His Majesties Advocat produced a Warrand of Privy Council, for persewing and insisting against the said earle, whereof the tenour followes:

"Edinburgh the day of November 1684, the Lords of his Majesties Privy Councill doe heirby give order and warrand, to his Majesties Advocat to persew a proces of treason before the Lords Commissioners of Justiciary, against Walter earle of Tarras for the crymes of treason and rebellion, and others whereupon his Majesties Advocat shall indyt him. Extract by me, WILLIAM PATERSON.”

Sic Subscribitur.

The earle of Tarras produced a Petition under his hand direct to the king's most sacred Majesty, whereof the tenor followes:

bert having arryved here in Scotland, in the | and example of others to committ the like hermoneth of May, 1683 years, he did address himself to the laird of Torwoodlie, and they sent for the laird of Polwart, Philiphaugh, and the said Walter earle of Tarras, and before Polwort came the said Mr. Robert Martyne, and the said Walter earle of Tarras, or at least the said Walter earle of Tarras and the said Philiphaugh did talk of a rising in armes upon a supposition, if the countrey party in England, should have thoughts of going to arms, and if it were not fit in that case to seize upon the officers of state, and other officers here, and to surprize Berwick, and his majesties garrisons of Sterling and others, and his troops of horse, and dragoons within this kingdom, after which the said Walter earle of Tarras went to Gallowsheills, wher he did meet with the lairds of Gallowsheills and Polwart, and after the said pannall had tryed if the laird of Gallowsheills would be secret, he did at last formally talk of rysing in arms, and of concurring with the late earle of Argile a declared "To his most sacred Majestie, the humble traitor, who should land in the West, and of bringing the king by petitions or by force to Submission and Petition of Walter earle of abandon his royall brother, and of delyvering Tarras, humbly sheweth, That his Majesties him up to a legal tryall as a sure remedy for petitioner having received ane indytment of settling all disorders, and repairing all dis- High Treason, at the instance of his Majesties orders, and repairing all grievances both in Advocat, for the crymes of treason therein England and here, and as a certane stepp for mentioned, and the petitioner being concious secluding him from the succession to the im- to himself of his haynous guilt therein; he is perial crown, of this his majesties auncient resolved in place of all other defences to through kingdom. And if this was not done in the himself at his Majesties feet, and submitt to king's own lyfetyme the opportunity would be his Majesties mercy, his only hopes and trust lost, and that these overtures were concerted being in his sacred Majesties clemency and betwixt the pannal's friends at London, and the goodness, that his Majestie would be graciously countrey partie (for so he called the saids con- pleased to pardon the petitioner's crymes and spirators) and then it was positivelie talked off, by the sparing of his life, giving him opportunity by ane or other of them that upon the certane for the tyme to come in some measure to exnewes of England's being in the fields, those of piat his former cryms and offences by his the southern shyres should presently rise and dutifull and loyall deportment to his Majesty get also as many as they could who should be and his successors, which by the grace of Alable to deal with stragglers, and that officers mighty God, the petitioner will for ever hershould be trysted to command. And that then efter inviolablie preserve. So he doth most the late earle of Argile was to come from humblie acknowledge his guilt conforme to his beyond sea, and sir John Còchran from Eng-Confession given under his hand to the Lords land to the west country, and ther was a sign of the Secret Committee the day of November and a word appoynted for thes they call honest last, to which he does adhere, and holds the same as here repeated, and freely confesses men to know ane another by. And that upon the news the said pannal and they were to that by his crymes therein specified, his life have from England, they were to meet upon and fortune are justlie at his sacred Majesties middsummer therafter. Which overtures or mercy, and seeing now his Majesties petitioner ane or other of them, the said Walter earle of has a deep sense of the haynousness of his Tarras himself made or heard and concealed guilt, and a just abhorrence of all such treasonthe same or at least he did talk what was to be able principles and practices, into which he has done, if England should rise, and did treat of been formerly grossly mislead to his great regiving them or the late earle of Argile a de-grate.-Therfore, humbly craving his sacred clared traitor, some assistance here; or the said pannall being present wher these or some such overtures as thes wer treated he did conceal and not reveal the samen. Through the committing of the which crymes above written, or either of them, he was guilty of the committing High Treason, and is actor, art and part thereof; which being found be ane assyse he ought to be punished with forfaulture of life, lands, and goods, to the terror

Majestie to take the petitioner's case to his commiseration and according to his Majesties inherent and usuall goodness and clemency, to his penitent subjects, be graciously pleased to grant mercy and pardon, to the petitioner, and he does faithfully promise as a Christian, and a gentleman, that he shall ever be a loyall and faithfull subject to his sacred Majestie and his royall successors.

Sic Subscribitur.

TARRAS."

The Lords having considered the Indytment persewed be his Majesties Advocat, against the earl of Tarras, they find the same relevant as it is lybelled to inferr the cryme of treason,* and remitts the same to the knowledge of the inqueist.

ASSISA.†

The Earle of Strathmoir.
The Earle of Lauderdale.
The Earle of Panmuir.
The Earle of Belcarras.
The Lord Sinclair.

The Lord Bargany.

The Lord Rollo.

The Mr. of Balmirrinoch.

Sir William Douglas, of Cavers.

Sir William Drummond, of Halthornden.
Scott of Scotstarbat.

Sir James Richardson, of Smeitoun.
Sir Alexander Torbes, of Tolquhon..
Sir Robert Baird, of Saughtonhall.
Mr. John Bayne, of Delney.

The Assyse lawfully sworne, no objection of the law in the contrair.

* Concerning Interlocutor of Relevancy, see p. 1061, of this volume.

His Majesties Advocat for Probation adduces the pannall's judicial Confession in presence of the Justices and Assizers, wherof the tenor followes:

Walter earl of Tarras, after reading of his indytment in presence of the Justices and Assizers, confesses that about the tyme sir John Cochran and commissar Monro gott their commission for the Carolina business from London, Mr. Robert Baillie, of Jerviswood, desired the pannall to speak to Commissar Monro, to try if he could get him added to that commission, and that Jerviswood told the pannall that he was to goe to London, however upon his own expences, and that his and their going about the Carolina business was but a pretence, and a blind; but that the true designe was to press forward the people of England, (who would doe nothing but talk) to goe more effectuallie about the business and doe somthing. Confesses that Jerviswood did setle a correspondence with him the pannall, wherby he was

degree. But, although it often happened that noblemen were summoned to the assize on such occasions, as there was an obvious propriety in granting such an indulgence where it could conveniently be done; yet it does not absolute rule, of composing a nobleman's appear that we ever came to acknowledge an

the major part, but only of landed men. And indeed for long, and until the full establishment of parliamentary representation, the order of sals of the crown, were truly one and the same, noblemen and other barons, or immediate vasand therefore peers to each other in the strict sense of law. Thus, on the trial of Janet Douglas, lady Glamyss, July 14th, 16th, 18th, the assize; on that of the earl of Orkney, 1537, for treason, only five noblemen sat on four landed men; on that of lord Balmerino, February 1st, 1615, eleven noblemen sat, and February 11th, and March 20th, 1635, eight noblemen, six baronets, and one landed man; on that of the viscount Frendraught, July 4th, 1664, two noblemen only, lord Blantyre and lord Dunkeld; and on that of the earl of Argyle, December 13th, 1681, four landed

+ We in some measure pay regard to the maxim of trying a man by his peers, or persons of a degree not inferior to his own. In this view, our practice seems once to have re-assize either entirely of noblemen, or even for quired, that the assize for the trial of a landed man should all be men of that condition; and if he were a baron, or immediate vassal of the crown, that at least half of the assize should be barons also. To which effect judgment was given after full debate, in the trial of Douglas of Spott, for the murder of Home of Eccles, May 9th, 1667." The Justice findis the objectioun against the present assyze relevant, and ordeins the persewars to summond ane new assysse to the fourth day of June next to come, to which day they continue the tryall of this actioune; the most part of which assyse to be of the laird of Spott his owne qualitie, vizt. Barouns holding of the King, and the rest landit gentlemen, holding either of the King, or of ane uther superior be chartir." In later times, without relinquishing the principle, our Judges have thus far conveniently modified the rule for such cases, that a majority only of the assize are landed men, and these, indifferently, vassals holding of the crown, or of a subject.

"According to certain old, but not very conclusive authorities, (Statuit Dominus Rex, quod nullus debet recipere judicium, neque judicari, a minori personâ quam a suo pari; scilicet, Comes per Comites, Baro per Barones, Vacassor per Vacassores, et Burgensis per Burgenses. Quoniam Attachiamenta, c. 67; also, Skene on Crimes, c. 4. sect. 3.) the same maxim was to be applied to the case of noblemen also, who were to be tried therefore by an assize consisting of persons of their own high

men, along with eleven noblemen. What is more express; on November 14th, 1655, the earl of Traquair [see MS. abstract of the for there is not now extant any original record books of adjournal, in the advocates' library; of 1655], having claimed a jury of noblemen, the judges of that time found in substance, that the precedents which he appealed to were only in cases of treason, and therefore repelled his plea in law; but ex gratiá, appointed three noblemen to sit on the assize along with the others, who were all of the degree of Baronet." Hume's Comment, chap. 11th, vol. 2, p. 97, et seq. See also in this Collection, the Protest of lord Linlithgow, in the Case of the earl of Loudon, p. 1002, of this volume. See too p. 1043.