THE TRYAL AND PROCESS OF High-Treason AND Doom of Forfaulture AGAINST Mr. Robert Baillie of Jerviswood TRAITOR By His Majesties special Command As a further proof of the late Fanatical Conspiracy Edinburgh Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1685. The Tryal and Process of High-Treason and Doom of Forefaulture against Mr. Robert Baillie of Jerviswood Traitor CVria Justiciariae S. D. N. Regis tenta in praetorio burgi de Edinburgh vigesâ—mo tertio die mensis Decembris 1684. Per nobilem Potentem Comitem Georgium Comitem de Linlithgow Dominum Livingstoun c. Justiciarium generalem totius Regni Scotiae honorabiles viros Domines Jacobum Foulis de Colintoun Justiciariae Clericum Joannem Lockhart de Castlehill Davidem Balfour de Forret Rogerum Hoge de Harcarss Alexandrum Seaton de Pitmedden Patricium Lyon de Carss Commissionarios Justiciariae dicti S. D. N. Regis Curia legitime affirmata Intran 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 abaiting 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 the First The Rebelling openly against the Kings Person and by the thretty seventh Act of His second Parliament The Resetting Maintaining or doing favours to open or not our Rebellers against the Kings Majesty is Declared Treason and punishable by Forefaulture And by the hundred fourty and fourth Act of the twelfth Parliament of King James the Sixth It is Declared Treason to Reset Supply or Intercommune with Traitors And by the first Act of the first Session of His Majesties 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 without His Majesties special Approbation And by the second Act of the second Session of His Majesties said first Parliament To Plot Contrive or intend Death or Destruction or to put any Restraint upon His Majesties Royal Person or to Deprive Depose or Suspend Him from the Exercise of His Royal Government or to levy War or take up Arms against His Majesty or any Commissionated by Him or to intice any Strangers or others to Invade any of His Majesties Dominions or to Write Print or Speak any thing that may express or declare such their Treasonable Intentions is declared Treason and punishable as such Likeas by the second Act of His Majesties third Parliament It is Declared High Treason in any of the Subjects of this Realm by Writing Speaking or any other manner of way to endeavour the alteration Suspension or Diversion of the Right of Succession or debarring the next lawful Successour Nevertheless it is of verity that the said Mr. Robert Baillie of Jerviswood shaking of all fear of God respect and regard to His Majesties Authority and Laws and having conceived most unjustly a great and extraordinary malice and hatred against His Majesties Person and Government and having designed most Traiterously to debar His Royal Highness His Majesties only Brother from His due Right of Succession did amongst many other Traiterous Acts tending to promove that wicked Design endeavour to get himself Elected one of the Commissioners for Negotiating the settlement of a Colony of this Nation in Carolina in one or other of the dayes of the Moneths of January February March April or May One thousand six hundred and eighty three years and that he might thereby have the freer and better access to Treat with the Earls of Shaftsbury and Essex the Lord Russel and others who had entered into a Conspiracy in England against His Majesties Person and Government and with Colonel Rumsay Walcot West and Ferguson and others who had likewise Conspired the Murder of His Majesties Sacred Person and of the Person of His Royal Highness and finding that he could not get himself Elected one of the said Commissioners he resolved to go to London upon his own expenses and declared to severals whom he took great pains to draw inâ—o be his accomplices that his Design was to push foreward the People of England who did nothing but talk that they might go on effectually and after he had settled a Correspondency here he did go up to London in one or other of the saids Moneths with Sir John Cochran and Commissar Monro and did then and there Transact with the saids Conspirators or one or other of them to get a sum of Money to the late Earl of Argile a Declaired Traitor for bringing home of Men and Arms for raising a Rebellion against His Majesty and invading this his Native Countrey and so earnest was he in the said Design that he did chide those English Conspirators for not sending the same timeously and lamented the delayes used in it and perswaded the late Earl of Argile and others in his name to accept of any sum rather than not to engage and amongst the many meetings that he had at London for carrying on the said Traiterous design there was one at his own Chamber where he did meet with the Lord Melvil Sir John Cochran and the Cessnocks Elder and Younger and amongst others with Mr. William Veatch a declared Traitor and there he did treat of the carying on of the said Rebellion and of the money to be furnished by the English for Argyle for buying of Armes And that if the Scots would attempt any thing for their own relief they would get assistance of Horse from England and from that meeting he or ane or other of them did send down Mr. Robert Martin to prevent any rysing till it should be seasonable for carying on of their Designs which Mr. Robert after he came to Scotland did treat with Polwart and others for carying on of the said Rebellion by securing His Majesties Officers of State His Castles and Forces and by putting his Correspondents here and there Associats in readiness to assist the late Earl of Argyle and after the said Mr. Baillie had engadged many of his Countrey-men in England and had assured his Correspondantts here that the English were resolved to seclud his Royal-Highness from his due right of Succession thereby to encourage them to concur in the said Rebellion and Exclusion he flew to that hight that he did particularly and closly correspond with Mr. Robert Ferguson Sir Thomas Armstrong Collonel Rumsay and Walcot who were accessory to that horrid part of the Conspiracy which was designed against the Sacred Life of His Majesty and the Life of His Royal-Highness and did sit up several
nights with them concerting that bloody Massacer at least the said Mr. Robert Baillie of Jerviswood was and is guilty of having correspondence with the late Earl of Argyle and Mr. William Veatch declared Traitors and of being art and part of an Conspiracy for assisting of these who were to rise in armes against His Sacred Majesty and for exclusion of His Royal Brother and of concealing and not revealing the accession and proposals of others for that effect Wherethrow he has committed and is guilty of the Crymes of High Treason Rebellion and others abovespecified and is art and part of the samine which being found by ane Assize he ought to be punished with Forfaulture of Life Land and Goods to the terror of others to commit the like hereafter HIS Majesties Advocat produced an Act and Warrand from the Lords of His Majesties most Honourable Privy Council for pursuing and insisting against the said Mr. Robert Baillie of Jerviswood whereof the Tenor follows Edinburgh The twenty two day of December one thousand six hundred and eighty four years The Lords of His Majesties Privy Council do hereby give Order and Warrand to His Majesties Advocat to pursue a Process of Treason and Forfaulture before the Lords of His Majesties Justiciary against Mr. Robert Baillie of Jerviswood to morrow at two a clock in the afternoon preceisly and the saids Lords do hereby Require and Command Sr. George Lockhart of Carnwath and Sr. John Lauder Advocats to concur and assist in the said Process with His Majesties Advocat from the intenting untill the end thereof as they will be answerable upon their alledgance Extract by me sic subscribitur Colin Mckenzie Cls. Sti. Concilij Pursuers Sir George Mckenzie of Roshaugh Our Soveraign Lords Advocat Sir George Lockhart Sir John Lauder Advocats Procurators in Defence Sir Patrick Hume Mr. Walter Pringle Mr. James Graham Mr. Welliam Fletcher Mr. William Baillie Advocats THE Pannals Procurators produced ane Act of His Majesties Privy Council in their favours wherof the tenor follows Edinburgh the twenty third of December one thousand six hundred eighty four years The Lords of His Majesties Privy Council having considered ane Address made to them by Mr. Robert Baillie of Jerviswood now indited at the instance of His Majesties Advocat before the Lords Commissioners of Justiciary of Treason do hereby Require and Command Sir Patrick Hume Mr. Walter Pringle Mr. James Graham Mr. William Fletcher Mr. James Falconer Mr. William Baillie Advocats to Consult Compear and Debate for the Petitioner in the Process of Treason mentioned in his Address without any hazard as they will be answerable at their peril Extract by me sic Subscribitur William Paterson Cls. Sti. Concilij AFter reading of the Inditement the Lord Justice General required the Pannal to make answer thereto The said Mr. Robert Baillie Pannal pleaded not Guilty MR. Walter Pringle Advocat as Procurator for the said Mr. Robert Baillie of Jerviswood Pannal alleadges that he ought not to passe to the knowledge of an Assize because he had not got a Citation upon fyfteen days or at least on a competent time which is usual and absolutely necessar in all Actions and much more in Criminal Pursuits especially seing if a competent time be not allowed to the Pannal he is precludit of the benefit of ane exculpation without which he cannot prove his Objections against Witnesses or Assyzers or any other Legal or competent Defences And by the late Act of Parliament concerning the Justice Court all Pannalls are allowed to raise Precepts of Exculpation and thereupon to cite Witnesses for proving the Objections against Witnesses and Assyzers which necessarily pre-supposeth that a competent time must be allowed to the Pannal to execut his diligence or otherwise how is it possible he can prove an Defence of alibi or any other just Defence and as this is most consonant to that clear Act of Parliament and to material Justice and to the Rules of Humanity so this point has been already fully and often decided and lately in the case of one Robertson in July 1673. The Instance whereof is given by His Majesties Advocat in his Book of Criminals and Title of Libels where the Lords found that albeit Robertson got his Inditement in Prison yet he behoved to get it upon fifteen dayes HIs Majesties Advocat oppons the constant Tract of Decisions whereby it is found that a person Incarcerated may be Tryed upon twenty four houres and the late Act of Parliament is only in the case where a Summons or Libel is to be Raised but here there is no Libel or Summons but only an Inditement nor was any Exculpation sought in this case before the Tryal which is the case provided for by the Act of Parliament THe Lords Justice-General Justice-Clerk and Commissioners of Justiciary Repell the Defence in respect the Pannal is a Prisoner and that it has been the constant Custom of the Court and that the Pannal made no former application for an Exculpation SIr Patrick Hume for the Pannal alleadges alwayes denying the Libel and whole Members and Qualifications thereof that in so far as the Libel is founded upon Harbouring maintaining and Intercommuning with the persons mentioned in the Dittay the Pannal ought to be assoylzied because it is res hactenus judicata he having been formerly pursued before the Lords of his Majesties Privy Council for the same Crimes and Fined in an considerable Sum and therefore that Crime cannot now be made use of as a ground of Treason against the Pannal HIs Majesties Advocat answers That he Restricts his Libel to the Pannals entering in a Conspiracy for raising Rebellion and for procuring Money to be sent to the late Earl of Argile for carrying on the said Rebellion and for concealing and not revealing neither of which is referred to his Oath and consequently was not res judicata there being nothing referred to his Oath but his Converse and Correspondence with some Ministers and others within the Kingdom and his own Gardiner and his Writing Letters to my Lord Argile and oppons the Decreet of Council it self and restricts the Libel to all the Crimes not insisted on in the Decreet SIr Patrick Hume Replyes That as to the Corresponding with the late Earl of Argile at any time since his Forefaulture was expresly proponed as an Interrogator to the Pannal in that Pursuit at His Majesties Advocat's Instance against him before the Lords of His Majesties Privy Council and that not only his own Correspondence by himself but also by Major Holms Mr. Carstares Robert West Thomas Shepherd Richard Rumbold and Collonel Rumsay as the Interrogator bears as appears by a double of the Act of Council written by the Clerk of Councils Servant and is offered to be proven by my Lord Advocats Oath And as to any Correspondency with Mr. Veitch it is not Relevant since he was not Declared Rebel SIr John Lauder for His Majesties Interest answers That he oppons the Decreet of Privy Council
where no such Interrogator was put to the Pannal and the Decreet must make more Faith than any pretended Scroll and cannot be taken away by His Majesties Advocats Oath to His Majesties prejudice and for Mr. William Veitch he stands expresly Forefault in anno 1667. and the Doom of Forefaulture is Ratified in the Parliament 1669. SIr Patrick Hume oppons the Reply That as to the Corresponding with Mr. Veitch it does not appear that he is the person mentioned in the Act of Parliament and albeit he were as he is not he having thereafter come home to Scoland all the punishment inflicted upon him was Banishment not to return under the pain of Death which did take off any former Punishment and it was no Crime in any Person to Intercommune with him especially in another Kingdom and by the late Act of Council in anno 1683. Even the Conversing and Intercommuning with declared Traitors is restricted to an Arbitrary punishment HIs Majesties Advocat oppons the standing Doom of Forefaulture against Veitch and the Proclamation or Act of Council it â—elf THe Lords Justice-General Justice-Clerk and Commissioners of Justiciary having considered the Libel pursued by His Majesties Advocat against Mr. Robert Baillie of Jerviswood with the Lord Advocats Declaration whereby he Restricts the same to the Crimes not insisted on in the Decreet of Council formerly pronunced against the Pannal They find the same Relevant as it is restricted to infer the pain of Treason and remits the same to the knowledge of the Assize and Repells the remnant Defences proponed for the Pannal in respect of the Decreet of Council produced bearing no such thing as is alleadged and of the answers made by His Majesties Advocat thereto Assisa The Earl of Strathmore The Earl of Belcarras Sir George Skeen Provost of Aberdene Sir James Fleming late Provest of Edinburgh Sir John Ramsay of Whitehill Adam Hepburn of Humby Andrew Bruâ—e of Earleshall John Stuart Tutor of Alpin Alexander Miln of Carrin Mr. James Elies of Stenhopsmilns Sir William Drummond of Halthornden Major Andrew White Lieutennent of Edinburgh Castle Mr. David Grahame Sheriff of Wigtoun Colin M ckenzie Collector of Ross. David Burnet Merchant THe Assise lawfully Sworn no Objection of the Law in the contrary HIis Majesties Advocat for Probation adduced the Witnesses and Writs aftermentioned and first Walter Earl of Tarras SIr Patrick Hume Procurator for the Pannal objects against the Earl of Tarras that he cannot be a Witness because he is socius particeps criminis and it is clear by the 34. Chap. Stat 2. Rob. 1. Concerning these that are excluded from bearing of Testimony that socij participes ejusdem criminis vel incarcerati vinculati cannot bear Testimony As also the Earl of Tarras being presently under an Inditement of High Treason and under the Impressions of Fear and Death no person in his Circumstances can be admitted a Witness as is not only clear from the foresaid Statute but from the Common Law HIs Majesties Advocat answers That it is an exception from that Rule both by the Common Law and ours that in the Crime of lese Majestie and especially that Branch therof which we call a Conspiracy socius criminis may be a witnes and which is introduced very reasonably by Lawyers to secure the common interest of mankind which is the chief of all Interests and because Conspiracies cannot be otherwayes proved and not to allow this manner of Probation were to allow Treason since no man can prove a Plot but he that is upon it and how can a man object against him as a Witness whom himself trusted with his Life his Fortune and their common Plot nor is the intenting of the lybel any stronger qualification since every man that is socius criminis is under the same impression and it would rather seem the greater and nearer apprehensions a man has of death he will be the more sincere and faithful Nor has the Earl of Tarras nor did he ever seek any security in order to his deponing And this has been constantly and latlie conform to the common Law as may be seen in the hundreds of Citations set down by Mascard de probationibus vol. 4. conclus 1318. num 21. and the contrary citations prove only that regularly socius criminis cannot be a Witnes SIr Patrick Hume replyes that the Statutes of Robert the first is opponed and non est distinguendum ubi lex non distinguit and not only was he socius criminis which is acknowledged but he is incarceratus and lying under an Indytment of high Treason and has thrown himself on the Kings Mercy and it is not proper he should be a Wintess seing he is in the Kings Mercy who may give him his life or not and there was never a Person in these circumstances that ever was admitted a Witness MR. Walter Pringle adds That the Earl of Tarras is not only in the case of a person who stands Indyted for High-Treason but must be look'd upon as a person condemned for the said Cryme seing he fully and amply confest the Cryme confessus habetur pâ—o convicto and never any Lawyer asserted That damnatus criminis lesa Majestatis could be admitted as a Witnes and there is nothing more clear then that by the common Law and the Law of all Nations this Objection ought to be sustained for the Civil Law is clear leg 11. cod de testibus and Matheus in his title de probationibus cap. de testibus doth assert positivlie that the Cryme of lese Majestie Heresie and generally all these Crymes quae sine sociis non possuut facile admitti are not excepted And he asserts that the Lawyers viz. Gomesius Decianus who are of another Opinion do acknowledge nominatum a reo damnandum non esse and that they contravert only An nominatio rei sit indicium sufficiens ad torquendum nominatum SIr George Lockhart Repeats and oppons the Answer and the Cryme lybelled being a Conspiration of Treason which of it's own nature is manadged and caryed on by Secrecie and Contrivance and which is only known to the Complices of the Treason and which cannot be commited sine sociis the Law of this Kingdom and of all Nations do allow socios criminis to be testes habiles and not only are they admitted in the case of such Conjurations but generally in omnibus criminibus exceptis amongst which the Crime of Perduellion and lese Majestie is the chief and it is absolutly impossible that Plots and Conspirations of Treason can be otherwayes proven then per socios and such as are participes criminis and which is the common opinion of all Lawyers as may appear by Farin Quest 45. And the Authorities cited by him and which is the inviolable practique of this Kingdom and as to that pretence that the Earl of Tarras is under a Process of Treason and has submitted to His Majesties mercy and that confessus habetur pro convicto it
Carstares and further this Deponent saith not sic subscribitur Zac. Bourn Jurat coram L. Jenkins HIs Majesties Advocat likewise produced several Warrands and Papers to prove that those Depositions are sign'd by Sir Leolin Jenkins HIs Majesties Advocat also produced the Books of Adjournal bearing Mr. William Veitch to be a Forefault Traitor and the Act of Parliament whereby the Forefaulture is Ratified His Majesties Advocat's Speech to the Inquest My Lords and Gentlemen YOu have now a Conspiracy against His Majesties Sacred Person and Royal Government so fully discover'd that they must want Reason as well as Loyalty who do not believe the Discovery and they must be enemies to sincerity as well as to the King who do not acknowledge it Beside that the Councils of all the three Nations thought the proof sufficient for Indicting a General Thanksgiving through all these Nations and that the Judges of England thought the same strong enough to infer Forefaulture of Life and Estate against some of all Ranks there you have a Discovery made here from the late E. of Argiles own Letters and the Confession of his own Emissaries the two surest proofs that Law ever invented or the nature of Humane Affairs can allow and I am this day to add to all this a new Sett of Proofs in the Process that I now lead against this Pannal from the Confessions of Noblemen and Gentlemen who have been engaged in this wicked Conspiracy and who from a sense of their Guilt are content freely to Depose against their nearest Relation and their most intimate Friend in which having thus cleared to you that there was really such a Conspiracy I shall in the next place proceed to prove this Pannals Accession to it It cannot be imagined that we would willingly involve our Countrey men in it without a Conviction stronger then our kindness to Scotland nor did His Majesties Servants accuse this Pannal without the opinion of the ablest Lawyers of the Kingdom who did with them concur to think that there was not the least occasision of doubting left to the most indifferent Inqueist of his guilt after they had seriously and with reflection read over and pondered the probation now laid before you The Person accused of accession to this Cryme is the Ring-leader of all those who in this Kingdom concurr'd with the English Conspirators as you may see by the Testimonies of all who have Deposed and it was indeed sit and just to begin with the most guilty so that if he be not convicted there should no man be punished for this Conspiracie all the noise we have heard of it is but a Cheat the Kings Judges have been Murderers all the Witnesses have been Knaves and such as dyed for it have been Martyrs The Accession charged on this Pannal is not an accidental escape nor is it proved by Witnesses who can be suspected of unkindnes to his Person or his Cause for it is a long tract of a continued design gone about with the greatest deliberation and concern imaginable and proved by his nearest Relations and persons so deeply engadged in that Cause for which he Suffers that they were content with him to venture their Lives and Fortunes in that quarrel He is not accused of a Crime that can amount only to a single Murder though that be a dreadful Cryme but a Rebellion which was to draw upon us a Civil War that Murder of Murders in which hundreths of thousands were to fall and to Crown all he was to begin and to be the chief promoter of a Rebellion in which one of the first steps was to kill His Sacred Majestie and his Royal Brother and one of the chief Witnesses which I have led against him is Bourn which Bourn confessed that he was to kill the King and who confesses the Pannal sat up several nights with Ferguson the other contriver of the Kings Murder and so familiar was he with him that Bourn depons that the said Pannal had been with Ferguson at the drawing of the manifesto whereby he was not only to be an Actor but to be the Justifier of that horrid Villanie and therefore Bourns depons that Ferguson the best Judge in that case looked upon him as the chief man next to Argyle But because no man is presumed to go to such a hight without previous inclination and motives I shall to convince you that this Gentleman was very capable of all that was lybelled against him remember you that he is Nephew and Son in Law to the late Warâ—stoun bred up in his Family and under his Tutory about the time of this Plot it was undenyably known and is now sufficiently proved by two present Witnesses the Earl of Tarras and Commissar Monro that he thought himself desperat knowing himself to be guilty of Treason by Blackwoods Case and as it 's presumable that a man that 's guilty of one point of Treason will commit another so when a man is desperat as to his Life and Fortune he is capable of any thing he was likewise animated to commit this Cryme by the intelligence he had that there was a Plot in England carryed on by men of so great Parts Fortune and Influence and by the too probable hopes that they would get all the Western Shires to joyn with them here because of the common guilt in which they had engadged themselves by their late extravagances they made and account of an assistance of twenty thousand men and by Philiphaughs Deposition that these Gentlemen expected the concurse of the Southern-Shires and thus I am to prove to you a Cryme which is in it self so probable and liklie that it should need little probation tho I have adduced for your conviction sufficient evidences albeit the Cryme were in it self very unliklie The Crymes which I hope I have proved are That Jerviswood the Pannal transacted for Money to the late Earl of Argyl a declared Traitor 2. That he designed to raise a Rebellion 3. That he intercommuned with the Earl of Argyle and Mr. Veitch declared Traitors 4. That he was present where it was treated either that Argyle should have Money from the English and assistance from Scotland or that a Rebellion should be raised and that he did not reveal the samine and all these being found relevant separatim it is sufficient for me to have proved any one of them And if a Gentleman was lately found guilty of High-Treason by the opinion of all the Lords of Session for not revealing that Sir John Cochran sought fifty pound Sterling from him though he refused the same and tho he believed it was sought for a charitable subsistance to preserve him from starving what deserves this Pannal who sought thirty thousand pound sterling to buy him Arms to invade his Native Countrey That Jerviswood was designing to carry on a Rebellion or at least was accessory or as our Law terms it was Art and Part thereof is clearly prov'd but that in this occult and hidden
of the King and the Council of England upon a Letter from His Majesties Officers of State here In which Deposition Shepard one of the VVitnesses deposes that Baillie came frequently to him and desired him to advance the Money and lamented the delays and that there was so little to be advanced and who should be better believed then one who was his own Trustie and a Person who was able to advance so great a Sum Bourn another of the VVitnesses Deposes that Ferguson told him that the Pannal spoke frequently to him concerning the same Money and that he sat up several nights with Ferguson upon the said Conspiracy and who should be better believed then Fergusons confident and one who was so far trusted in the whole affair that he was to take away that Sacred Life which Heaven has preserv'd by so many Miracls Against these three Depositions you have heard it objected that non testimonia sed testes probant especially by our Law in which by an express Act of Parliament no Probation is to be led but in presence of the Assise and Pannal To which it is answered that these Depositions are not meer Testimonies for I call a Testimony a voluntar Declaration emitted without an Oath and a Judge but these Depositions are taken under the awe of an Oath and by the direction of a Judge â— Shepard was confronted with the Pannal himself and he had nothing to say against him whereas the great thing that can be objected against Testimonies and by our Statute especially is that if the Party who emits the Testimony had been confronted with the Pannal the impression of seeing a person that was to die by his Deposition would have made him afraid to Depose laxly and the Pannal likewise might by proposing Interrogators and Questions have cleared himself and satisfi'd the Judges in many things Depos'd against him But so it is that Mr. Shepard having been confronted with the Pannal before the King Himself who is as far above other Judges in His Reason and Justice as He is in His Power and Authority He Deposes that the Pannal was the chief Mannager of this Conspiracy next to Argile and that he was so passionat to have this Money to buy Arms that he lamented the delays and can it be imagined that Mr. Shepard whom he trusted with his Life and his Fortune and whom all their Party trusted with their Cash would have Depos'd any thing against him that was not true especially when he knew that what he was to Depose was to take away his Life and his Fortune or that if the Pannal had been innocent he would not when he was confronted with Mr. Shepard before the King Himself have roar'd against Mr. Shepard if he had not been conscious to his own Guilt There is a surprise in innocence which makes the innocent exclaim and it inspires men with a courage which enables them to confound those who Depose falsly against them and in what occasion could either of these have appear'd more than in this wherein this Gentleman was charg'd to have Conspir'd with the greatest of Rascals against the best of Princes and that too in presence of the Prince himself against whom he had Conspir'd but Guilt stupifies indeed and it did never more than in this Gentlemans Case whose silence was a more convincing Witness than Mr. Shepard could be Mr. Carstares likewise knew when he was to Depone that his Deposition was to be used against Jerviswood and he stood more in awe of his love to his Friend than of the fear of the Torture and hazarded rather to die for Jerviswood than that Jerviswood should die by him How can it then be imagin'd that if this man had seen Jerviswood in his Tryal it would have altered his Deposition or that this kindness which we all admir'd in him would have suffer'd him to forget any thing in his Deposition which might have been advantageous in the least to his Friend And they understand ill this hight of Friendship who think that it would not have been more nice and careful than any Advocat could have been and if Carstares had forgot at one time would he not have supplyed it at another but especially at this last time when he knew his Friend was already brought upon his Tryal and that this renew'd Testimony was yet a further confirmation of what was said against him and albeit the Kings Servants were forced to engage that Carstares himself should not be made use of as a Witness against Jerviswood yet I think this kind scrupulosity in Carstares for Jerviswood should convince you more than twenty suspect nay than even indifferent Witnesses nor can it be imagined that the one of these Witnesses would not have been as much afraid of God and his Oath at London as at Edinburgh and the other in the Council-Chamber in the Forenoon as in the Justice-Court in the Afternoon 3. The Statute founded on does not discharge the producing of Testimonies otherways than after the Jury is inclos'd for then indeed they might be dangerous because the party could not object against them But since the Statute only discharges to produce Writ or Witnesses after the Jury is inclos'd it seems clearly to insinuat that they ought to prove when they are produc'd in presence of the Party himself as now they are And though the Civil Law did not allow their Judges to believe Testimonies because they were confin'd to observe strict Law yet it does not from that follow that our Juries whom the Law allows to be a Law to themselves and to be confin'd by no Rule but their Conscience may not trust intirely to the Depositions of Witnesses though not taken before themselves when they know that the Witnesses by whom and the Judges before whom these Depositions were emited are persons beyond all suspition as in our case But yet for all this I produce these Testimonies as Adminicles here only to connect the Depositions of the present Witnesses and not to be equivalent to Witnesses in this legal Process albeit as to the conviction of mankind they are stronger than any ordinary Witnesses When you my Lords and Gentlemen remember that it is not the revenge of a privat party that accuses in this case and that even in privat Crimes such as Forgery or the murder of Children c. many Juries here have proceeded upon meer presumptions and that even Solomon himself founded his illustrious Decision approv'd by God Almighty upon the presum'd assertion of a Mother I hope ye will think two Friends Deposing as present Witnesses adminiculated and connected by the Depositions of others though absent should beget in you an intire belief especially against a Pannal who has been alwayes known to incline this way and who though he was desired in the Tolbooth to vindicat himself from those Crimes would not say any thing in his own defence and though he offers to clear himself of his accession to the Kings Murder