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Edinburgh, 2 May 1690
[Sir John Dalrymple of Stair], his majesty's advocate, having desired that the process of treason raised before the parliament at his instance against the representatives of the late [John Graham], viscount of Dundee and against [James Seton], earl of Dunfermline and others in this kingdom who rose in actual rebellion against their majesties and still continue in arms may be called, all the persons against whom the aforesaid libel or indictment of high treason is raised were thrice publicly called by macers at the bar and at the great door of the house, and, none of them compearing, the lord advocate desired that the warrant granted by the parliament for passing the aforesaid indictment of treason might be read, which was done accordingly.
Thereafter the libel or indictment in Latin, under the quarter seal, was read, and then a copy thereof in English. After reading whereof the heralds who did execute the indictment and the witnesses to their executions being called and the executions read, they did upon oath verify the executions, as the same extant in process bear.
His majesty's advocate represented that several of the witnesses cited, being publicly called, have not compeared, and therefore he desired a further diligence against them, which, being considered, the lord commissioner's grace and the estates of parliament did grant warrant to direct a second diligence against the witnesses cited and not compearing in the usual form for charging them to compear upon 8 May instant, with certification.
[Henry Erskine], lord Cardross did protest that, according to the grievance represented by the estates to the king's majesty to be redressed in parliament in relation to forfeitures in prejudice of vassals, creditors and heirs of entail, that no sentence of forfeiture to be given in this process prejudice him or his heirs of any right of entail competent to them of the estate of Buchan, as the protestation given in and subscribed by the said Lord Cardross bears.
12 May 1690
His majesty's advocate, having moved that the parliament would proceed in the process of treason, it being continued to this day, it was proposed by a member of parliament and seconded by others that before procedure in the process, the parliament would be pleased to pass an act for securing the creditors of forfeited persons, their widows and heirs of entail, that they be not prejudiced by forfeitures; and did present the draft of an act to that purpose, which, being read, the consideration thereof was remitted to the committee for fines and forfeitures. The lord advocate having declared that he was content the parliament should take that act into their consideration before pronouncing any sentence of forfeiture, but urged that in the meantime the process may go on, whereupon the persons convened were again publicly called by macers at the bar and at the great door of the house, but none compeared.
There was a testificate produced and read in favour of [...] Graham, son to [...] Graham of Duntrune, who is one of those cited, bearing that he has taken the benefit of their majesties' indemnity and sworn the oath of allegiance before the sheriff of Forfar. And likewise another testificate was produced in favour of John Ramsay of Archarran of his taking the benefit of the act of indemnity under the hand of the clerk of the council, which being also read, the consideration thereof was continued until the evidence be advised by the parliament.
The libel or indictment of treason was again read, and then his majesty's advocate did obviate three objections which probably might be made: firstly, that where the executions do not bear that the parties were cited at their dwelling houses but only at the market cross of the head burgh of the shire, he represented that the warrant given by the parliament for raising the process did expressly allow that manner of citation. Secondly, albeit the persons cited be absent, yet the leading of evidence against them although absent is expressly warranted by an act of parliament in 1669. Thirdly, the prosecuting of evidence against persons guilty of treason after their death is according to the 69th act of the sixth parliament of King James V, which act was read. And then he declared that he restricted the libel to those persons being actually in arms against their majesties and those who joined in arms with them at the times and places libelled, namely: the taking of [William Blair], laird of Blair at Perth, Lochaber, Killiecrankie and other places libelled.
It was objected by some members of parliament that no act of hostility or rising in arms could be declared treasonable until 40 days were elapsed after the proclamation of King William and Queen Mary, because by an act of parliament it is declared that acts of parliament are not binding until 40 days after promulgation thereof.
It was answered by his majesty's advocate that there was no law nor necessity requiring 40 days in this case seeing the lieges might be informed in a shorter time more or less according to the distance of place. After debate it was put to the vote and sustained that parties might be convened for treasonable deeds committed by them within a shorter time than 40 days after the proclamation of King William and Queen Mary.
Next it was put to the vote how many days were sufficient. The king's advocate, having declared that he restricted the libel to deeds done after 4 May 1689 (which was 21 days after the proclamation), and the same was sustained.
It was further objected by a member of parliament that the executions could not be sustained because they do not bear that the same was done between 8 o'clock and 12 o'clock in the morning, according to the 85th act of the 11th parliament of King James VI, which requires that all criminal letters which import loss of life and goods should be so executed, and that the same is observed before the justice court.
It was answered by his majesty's advocate, firstly, that form of execution is not requisite in processes before the parliament, and the act of parliament does not require that the execution should bear that the letters were executed at that time; secondly, the objection is not competent to be proposed unless the parties were compearing, and offering to prove that the execution was in the afternoon. And the objection being a fact, it is not receivable especially seeing the herald's execution bears that the parties were lawfully cited and that he has testified upon the verity of the execution.
It was put to the vote if the executions should be sustained notwithstanding of the objection, and it was carried to sustain the executions.
It was further objected by a member of parliament that the execution at the market cross where the party is not cited personally or at his dwelling house could not be sustained, especially seeing there was free access to several of the parties' dwelling houses.
His majesty's advocate opposed the warrant of parliament expressly allowing the citation to be at the market cross of the head burgh of the shire.
Then the libel as qualified by his majesty's advocate, being put to the vote, was found relevant as the interlocutor extant in process bears.
Thereafter the witnesses cited being called, Lieutenant James Colt, one of the witnesses, being sworn, was examined in presence of the parliament, as his deposition extant in process bears.
14 May 1690
The other two of the witnesses cited by his majesty's advocate in the process of treason, namely: Lieutenant John Nisbet and James Osborne, trooper, were sworn and examined in presence of the parliament, as their depositions extant in process bear.
His majesty's advocate craved a further diligence against the witnesses who are not compearing, which was granted.
30 May 1690
The lord advocate proceeded to have the rest of the witnesses cited by him in the process of treason examined, namely: James Malcolm, son to the laird of Balbedie, Charles Stewart, younger, of Ballachan, and Lieutenant John Hay, son to the laird of Naughton. And these three witnesses were sworn and examined in presence of the parliament, as their depositions extant in process bear.
10 June 1690
His majesty's advocate moved that the evidence cited in the process of treason against the rebels might be advised. And the whole depositions of the witnesses being read, he declared that he proceeded first to have the evidence advised against the late viscount of Dundee. And these parts of the depositions relating to him being read, the libel according as it was found relevant was by a vote of parliament found proven against him. And thereafter the lord advocate having proceeded for advising of the evidence against the persons named below, namely: [James Galloway], lord Dunkeld, Major William Graham of Boquhapple, Colonel Cannon and John Clelland of Faskin, and these parts of the depositions of the witnesses relating to them being read, the libel was by distinct votes of parliament found proven as to each one of them, as the interlocutor extant in process bears.
13 June 1690
His majesty's advocate proceeded that the evidence may be advised against the earl of Dunfermline. And the depositions of the witnesses concerning him being read, the libel by a vote of parliament was found proven against him.
[William Lindsay], earl of Crawford did protest, for himself and in name of his lady, that the doom and sentence of forfeiture to be pronounced against the earl of Dunfermline may not prejudice them of their debts and claims upon the grounds mentioned in the protestation given in and signed by the said earl, and produced the back-bond mentioned in the protestation, which protestation was admitted.
Thereafter the lord advocate proceeded that the evidence may be advised against [William Erskine], earl of Buchan. And the depositions of the witnesses concerning him being read and it being put to a vote, the libel was found proven against him.
The Lord Cardross did renew his former protestation given in by him on 2 May last, which protestation was admitted.
The depositions of the witnesses concerning [Lewis Crichton], viscount of Frendraught being read, the libel by a vote of the house was found proven against him.
The depositions of the witnesses concerning Mr Colin MacKenzie, uncle to [Kenneth MacKenzie], earl of Seaforth, being read, it was objected by a member of parliament that the libel was not proven against him, the depositions not concurring as to the same facts at the same places. To which it was answered by his majesty's advocate that however the position may hold as to one individual act libelled, yet here where there is libelled treason in a rebellion carried on in several places in a tract of time, it is sufficient to prove that the witnesses saw him at different places in the same rebellion; and they do all testify that they saw him in arms. And, it being put to the vote, the libel was found proven against the said Mr Colin MacKenzie.
The depositions of the witnesses concerning Sir John Drummond of Machany, William Crawford, younger, of Ardmillan, James Crawford, his brother, [Alexander Robertson], laird of Struan, David Graham, brother to the late viscount of Dundee, and James Edmonstone of Newton, being read, the libel was by a separate vote of parliament found proven as to each one of them.
The lord advocate declared that, besides the depositions of the witnesses cited against Sir Ewan Cameron of Lochiel, Donald MacDonald, younger, of Sleat, the laird of MacNaughton and [...] Grant of Ballindalloch, he made use of two bonds of association entered into and signed by the laird of Lochiel and other Highlanders, one at the castle of Blair in August 1689 and another bond in January 1690, subscribed by the viscount of Frendraught and others, by which bonds they oblige themselves to stick to one another in his majesty's service (which, by the place and persons, appears to be the late King James), which bonds of association he produced. And likewise produced a missive letter written by the chiefs of clans to Major General MacKay dated 17 August 1689, and declared he made use of the said bonds of association and missive letter for corroborating the evidence against the said persons, subscribers thereof, which bonds of association and missive letter were read.
Thereafter the depositions of the witnesses concerning Sir Ewan Cameron of Lochiel and [...] Cameron, his eldest son, being read, the libel by a vote of parliament was found proven against them..
14 June 1690
The lord advocate proceeded for advising the evidence cited against Donald MacDonald, younger, of Sleat, the laird of MacNaughton, [David Haliburton], laird of Pitcur and [...] Grant of Ballindalloch, and the depositions of the witnesses concerning Donald MacDonald, younger, of Sleat, with the bonds of association and missive letter produced by his majesty's advocate, which he declared he made use of for corroborating the evidence, being read and considered, the libel by a vote of parliament was found proven against the said Donald MacDonald, younger, of Sleat.
The libel was also found proven by the depositions of the witnesses and the aforesaid missive letter against the laird of MacNaughton and [...] Grant of Ballindalloch, the parliament having passed a separate vote as to each of them.
The depositions of the witnesses concerning the deceased [David] Haliburton of Pitcur being read, the libel by a vote was found proven against him.
14 July 1690
The depositions of the witnesses concerning [...] Stewart of Appin, [Alastair] MacLean, alias MacDonald, elder, of Glencoe, Alexander MacDonald, younger, of Glengarry, [...] MacNeill of Gallachoille and Sir John MacLean of Duart, the libel was found proven against all the said persons, the estates having passed a separate vote upon advising of the evidence as to each one of them.
His majesty's advocate did represent to the parliament that the warrant granted to him for processing of the rebels did not contain a clause for citing such as were out of the kingdom upon 60 days, whereupon they being all cited upon 25 days; and that Sir William Wallace of Craigie amongst the rest was cited, but, being informed since that at the time of the citation he was in Ireland, it was resolved by the parliament that the said Sir William Wallace of Craigie should not be proceeded against.
A petition was given in for Captain Charles Straiton representing that there was a debt due by the deceased viscount of Dundee to Mr Thomas Stewart of 6,000 merks to which Provost Reynold was assigned, and the assignation intimated and the same transferred by Provost Reynold to the petitioner, and desiring that the forfeiture might be burdened with the said debt, or at least that he might be allowed to protest that the sentence of forfeiture does not prejudice him of the said debt, which protestation was admitted.
The Lord Cardross, having renewed the former protestation made by him in relation to the earl of Buchan, did urge that his protestation might be inserted in the sentence of forfeiture against the said earl, and that his rights and debts may be reserved therein. The lord advocate declared that he did not proceed at this time against the earl of Buchan, in regard their majesties' commissioner signified that he had an account by a letter from [William Forbes], master of Forbes of his being taken prisoner lately, which the lord commissioner's grace did intimate in parliament, whereupon it was ordered that his name should not be inserted in the sentence of forfeiture.
His majesty's advocate craved that sentence and doom of forfeiture may be pronounced against all these persons against whom the libel is sustained and found proven, except the earl of Buchan. And accordingly the sentences of forfeiture being drawn, namely: one against the deceased viscount of Dundee and the laird of Pitcur, and another against the rest of the persons as to whom the libel is found proven, and both the sentences being read, the same were put to the vote and approved. And thereafter the persons whose names are contained in the sentences being called by macers at the bar and at the great doors of the parliament house after sound of trumpet, the heralds being present with their coats of arms displayed, the two sentences of forfeiture were pronounced with the usual solemnities. And thereafter the coats of arms of the persons forfeited were reversed and torn by the lyon depute and his brethren heralds in presence of their majesties' commissioner and the estates of parliament. And thereafter the heralds with the trumpeters went to the market cross of Edinburgh to perfect the formality with the usual solemnities.