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Trial of the Earl of Wintoun.

I

"KENMURE."

"From my Prison in the Tower
of London, Feb. 28, 1715."

When the lord Kenmure was brought on the
scaffold, he was attended by two divines, Mr.
-s and Mr. Cockburn, the latter be-
H-
ing not sent for till the night before, and told
by him, He had so little thoughts of dying
then, that he had not provided a black suit,
that he might have died with more decency;
for which he was sorry.

meet that fate with readiness, which in a state | mended in the prayers of, my very good lord, your most affectionate kinsman, &c. of uncertainty I expect with uneasiness. must also be pressing with your lordship, that under if, in case of death, any paper my name should come out as pretended to be written by me, in the manner or form of a speech, you will not believe it to be genuine; for I that am heartily sorry for disowning my principles, in one spoken before your lordship, and the rest of my peers, will never add to that act of indiscretion, by saying any thing on the scaffold, but my prayers, for the forgiveness of my As soon as he came poor self, and those that have brought me to be a spectacle to men and angels, especially on the scaffold he kneeled down, leaning one since I must speak in my last moments according to the dictates of my conscience, and of his hands on the rail, and the divines prayHe seemed to be very sincere not prevaricate, as I did before the Lords, for ed with him. which I take shame to myself; and such a and fervent in his devotions, often lifting method of proceeding might do injury to my up his hands and eyes to heaven: He had brother Carnwath, who, I am told, is in a much the undertaker, Mr. Roome, with him, to fairer way than I am, of being not excluded take care of his body, and a surgeon, who was from grace. I have nothing farther than to to direct the executioner in doing his office, implore your lordship to charge your memory which he did, by drawing his finger over that with the recommendations I gave you to my part of his neck where the blow was to be given. wife, and the rest of my children; beseeching The viscount kissed the officers and gentlemen God, that he will so sanctify their afflictions, on the scaffold all round, and some of them twice that after the pains and terrors of this mortal or thrice; and being asked, Whether he had life, they may with me be translated to the re- any thing to say, or any speech to deliver? he gions of everlasting joy and happiness: To said, No. He prayed for the Pretender, and rewhich blessed state of immortality, your lord-pented of his having pleaded guilty, and died after a very courageous manner. ship shall also, while I am living, be recom

450. The Trial of GEORGE Earl of WINTOUN, before the House of Lords, upon an Impeachment for High-Treason:* March 15, 16, 19: 2 GEORGE I. A. D. 1716.†

January 9, 1716.

THE Earl of Wintoun was impeached of high-treason; and the Articles were brought up against him and read the same day in the

As to various particulars respecting form of proceeding in this Case, see 4 Hats. Prec. and the Journals as referred to by him.

+ Upon looking into the books of Adjournal at Edinburgh I find that,

On the 6th September, 1715, Sir James Stuart, solicitor for the king, presented to the Court an order for raising criminal letters against the earl of Seaforth and others, to compear at Edinburgh for the purpose therein mentioned. Warrant to this effect was then signed by the justice clerk.

On the 15th the solicitor represented, that he had obtained letters for citing several persons to appear before their lordships; that he had executed them against the earls of Wintoun and Linlithgow, and Mr. Maule, brother of the earl of Panmure. And he begged that they might be called in virtue thereof, and if they did not appear, that their lordships would proceed against them according to law. They

House of Lords: and it was ordered that the said Earl, with the other impeached lords, should be brought to the bar of the House of Lords the next day, to hear the said Articles read, and to abide such further order as the

Fined

were accordingly called by name at the doors
and windows of the Court, and upon their non-
appearance, the lords found they had incurred
the penalty of single and liferent escheat, to
be brought in for his majesty's use.
them and each of them in the sum of 5001.
sterling for his majesty's use, and doomed
them to be imprisoned for one year; conform
to stat. 2 George 1.

Sept. 16. The same form was gone through as to the viscount Kingston, sir Hugh PaterStirling of Keir, son of Bannockburn,

and sir Donald McDonald; and the same sentence was pronounced upon their not appearing.

Sept. 17. James Malcolm, viscount of Kilsyth, the lords Nairne and Rollo, master Grahame of BuckNairne the eldest son of lord Nairne, George Home of Whitfield, lyvie, and Mr. Seton of Touch, were cited in same manner to appear, and a like sentence was pronounced.

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House should think fit to make concerning them.

January 10, 1716.

The earl of Wintoun and the other impeached lords were brought to the bar in the usual form; then the said Articles of Impeachment were read unto them; after which

On the same day, sir William Erskine, the lord Lyon, appeared to answer his citation, and was committed to the castle of Edinburgh a prisoner.

Sept. 19. Viscount Strathallan, Walkinshaw of Barafield. The lord Drummond,` and William Drummond his servant were cited and sentenced.

Sept. 20. Viscount Stormont, sir Patrick Murray of Ochtertyre, and Mr. William Murray of Ochtertyre were cited. Sir P. Murray appeared and was committed to the castle. The rest were sentenced as above.

Sept. 21. Earl of Carnwath, Francis Steuart brother to the earl of Murray, and John Drummond brother to lord Drummond, were cited and sentenced.

Sept. 23. Letters had been issued on 3rd against the viscount Strathallan, Lyon of Auchterhouse, Balfour of Fairnes and Balfour of Dunboig; the lord advocate represented that these letters had been executed against Balfour of Fairnes and Dunboig, the earl of Nithisdale and viscount of Kenmure. Sentence was then pronounced against them 'for non-appearance.

the Lord Chancellor asked them severally what they had to say thereunto, and acquainted them, that if they had any thing to request of the House, this was their proper time.

Thereupon the earl of Wintoun acquainted the House he was unprepared, and very ignorant of the form of their lordships' judicature, and desired he might have a copy of the

The same day sir Pat. Murray was admitted to bail in virtue of a letter from the king, authorising bail to be accepted.

Sept. 81. Alexander Robertson of Struan, was cited and sentenced.

Oct. 1. Marquis of Huntly, Robert Stewart of Appiue, and John Stewart of Ardseal, were cited and sentenced.

Oct. 3. John Cameron younger of Lochiel, was cited and sentenced.

Oct. 4. John Campbell of Auchallader, was cited and sentenced.

Oct. 6. Sir Duncan Campbell of Lochnell, was cited and sentenced.

On the 16th December, Sir D. Campbell presented a Petition, stating that he had arrived in town the evening of the day on which he was summoned to attend, and had immediately waited on the lord justice clerk, but was too late; and for these reasons praying to be reponed. He also presented a letter from the king authorising him to be admitted to bail. The Petition was granted, and the bail received.

Oct. 7. The laird of McKinnon, and William McKintosh younger of Borlum, cited and sen

Sept. 24. Drummond of Logie, and his bro-tenced. ther, were cited and sentenced.

Sept. 26. The earls of Panmure and Southesk, and Mr. Murray, master of Stormont, were cited and sentenced.

Sept. 27. Upon the earl of Bredalbane being called, a Petition for him was presented, stating, that from the infirmities of age he was unable to appear at Edinburgh, where he was cited, as shown per certificate under the hands of John Murray, doctor of medicine in Perth, and Mr. Alexander Convry, minister of the gospel at Kenmure; therefore prays their lordships to continue the diet of his appearance till such day as they shall please, or until he is able to attend.

Oct. 10. Sir John McLean laird of M'Lean, and Allan M‘Donald, laird of Clanronald, were cited and sentenced.

Oct. 13. The earls of Marr, Marisbale, and Seaforth, lieutenant general George Hamilton, the laird of Glengairy, the laird of Rippoch, Alexander M'Kenzie of Frazerdale, Allan Cameron brother to Lochiel, and, William Drummond brother to Logie, were cited and sentenced.

June 4, 1716. Lord Glenorchy presented a letter from his majesty, allowing him to be bailed.

June 6. The earl of Wigton presented a Petition, stating, that he had been committed in virtue of a warrant from major general Whithan, directed to colonel James Stuart, deputy governor of Edinburgh Castle, and dated August 20, 1715. The Petition prayed that he might be set at liberty because the said warrant did not express a cause or reason for the imprisonment, as was shewed by an attested copy thereof, under the hand of major Lindsey.

Sept. 29. Lyon of Auchterhouse, and John lord Glenorchy were cited and sentenced. Upon considering the Petition of the earl of Bredalbane, the lords also find, "that the testificate produced for John earl of Bredalbane not being judicially instructed and proved, is not of itself a sufficient essonzie. And further the same being redargued by an evidence upon oath, proving that the said earl was at a place called Logierate several miles June 29. The earl of Wigton, who had been from his own house, where he came to the committed to prison on the 20th August, 1715, marquis of Tullibardine and earl of Mar, on presented a Petition for liberation, stating, the next day by 11 o'clock in the forenoon that he had been committed in virtue of a warafter the pretended testificate is dated." There- rant from general Prevost, which did not exfore for disobedience and contumacy they pre-press the cause of his imprisonment. The nounce sentence against him. Petition was granted.

said Articles, and such time to answer as the House should think fit, and that counsel might be assigned to assist him. He was directed to withdraw; and being accordingly withdrawn, the House took his requests into consideration, and thereupon

Ordered, That his lordship should be allowed a copy of the said Articles of Impeachment, and time until Saturday next to put in bis Answer thereunto; and that counsel should be assigned him in order to assist him in preparing his Answer, and likewise in his defence in matters of law.

Then his lordship was called in again, and the Lord Chancellor acquainted him with the said order, and that the House expected he should name such counsel as he desired to have.

To which he answered, that nobody was allowed to come to him, he was a stranger and unprepared, and desired to be allowed time to name his counsel.

Then his lordship being again withdrawn, After some time he was again called in, and the Lord Chancellor, by order of the House, acquainted him, that the House was pleased, besides counsel, to allow him a solicitor, and to give him leave to name whom he desired to come to him this evening, or to-morrow morning, in order to advise him in the naming of

counsel and solicitor.

To which purpose the earl of Wintoun named Mr. Hereot, a clergyman, Mr. Menzies, major Sinclair, and Mr. George Lessly, a lawyer.

And then he again withdrew.

And the names of the several persons mentioned by the earl of Wintoun being read to him, Ordered, That they have leave to repair to the said Earl at any convenient hour, any time before the sitting of the House to-morrow, in order to advise him in the naming of counsel, and a solicitor to assist him in his defence.

Ordered, That the several lords impeached, or any of them, have liberty to cause search to be made, and copies of Records and Journals to be taken out, in order to their defence; and that the said lords shall have summons issued for such witnesses as they shall respectively send in the names of, to be by them made use of at their trials; which witnesses shall have the protection of this House for their safe coming and going, during the time of the said trials.

January 12, 1716.

A petition of George earl of Wintoun was presented to the House and read, praying that he may have some further time for nominating counsel and a solicitor to act for him, and in the mean time to allow his friends formerly named to have access to him; he having caused application to be made to sir Thomas Powis, and Mr. Mead, to have appeared for him, but they both excused themselves.

Ordered, That the same persons before allowed to go to the petitioner, have leave to resort to him at any seasonable time, before eleven o'clock to-morrow in the forenoon, in order to

the advising him in naming other counsel, instead of those who have refused.

Whereas by order of this House on Tuesday last, the lords impeached were to put in their respective Answers to the Articles of Impeachment of high-treason exhibited against them by the House of Commons on Saturday last: the House being this day moved at the request of the earl of Derwentwater and lord Widdrington, to grant them further time to put in their Answers to the said Articles of Impeachment: It is ordered, that all the said lords have hereby further time allowed to put in their respective Answers to the said Articles till Monday next at one o'clock.

January 16, 1716.

Whereas by order of this House on Thursday last, the lords impeached were allowed time to put in their Answers till this day to the Articles of Impeachment exhibited against them, the House being this day moved in regard the counsel assigned some of the said lords refused to be concerned for them, that Thursday next may be appointed peremptorily for them to put in their several Answers to the said Articles: It is ordered, that the several lords do peremptorily put in their several Answers to the said Articles on Thursday next at one o'clock; and that the lieutenant of his majesty's Tower of London do bring to this House, on that day, by that time, the said several lords for the purposes aforesaid; and that notice be forthwith given them of this order.

January 19, 1716.

The earl of Wintoun was brought to the bar, by the gentleman-usher of the Black Rod,

where he kneeled until the Lord Chancellor directed him to rise, and his lordship acquainted him with the above-mentioned order, and demanded of him if he was ready to put in his Answer.

He said he had a Petition to present to the House: nature of their lordships' proceedings, and dehe was an entire stranger to the sired his Petition might be read; and the same was read as follows:

To the Right Honourable the Lords Spiritual and Temporal in Parliament assembled ; The HUMBLE PETITION of GEORGE Earl of WINTOUN :

Humbly Sheweth,

That on Thursday last I having applied to your lordships, representing how I had caused application to be made to two lawyers, to act as counsel for me, in the Impeachment exhibited before your lordships against me by the honourable House of Commons, and that they both declined to meddle, for reasons then given; your lordships were pleased to allow me some more time for nominating of counsel and solicitors, and this day for giving in my Answers; but by reason of my close confinement, and that your lordships' order for allowing some persons to have access to me, expired on Friday

Jast at eleven forenoon, I have had no opportunity of naming other counsel and solicitors; nor can I have the assistance of any, till they are appointed by your lordships, and they allowed access to me.

That your petitioner has several specialities and matters of great moment, which he conceives necessary to be a part of his Answer, and which cannot be drawn into form, without the assistance of his counsel and solicitors.

the Tower, the gentleman usher was commanded to bring him to the bar, where he kneeled until he was directed by the Lord Chancellor to rise; and his lordship acquainted him that this was the peremptory day appointed by the House for his putting in his Answer to the Articles of Impeachment exhibited against him by the House of Commons, and asked him if he was ready to put in his An

swer.

He thereupon made some excuses, and desired further time for that purpose;

And was directed to withdraw.

Forasmuch therefore, as this affair is to me of the greatest importance; may it please your lordships to assign sir Constantine 'Phipps,* and Mr. Peer Williams, to be counsel, and Ordered, That the earl of Wintoun be called Charles Menzies, and Mr. James Leslie to be in, and acquainted, that this House, upon conmy solicitors; and to order that they may have sidering his petition on Saturday last, for fur access to me from time to time during my trial; ther time to put in his Answer to the Articles of as also that your lordships would be pleased to Impeachment exhibited against him, did reallow Mr. George Hereot, a minister of the ject his said petition; and having indulged Church of England, to have access to me from him more than any of the lords impeached, are time to time, seeing I am confined in a room still of opinion (this being the peremptory day alone. for putting in his Answer) to allow him no further time, and that the consequence of his refusing to plead which will ensue in law is, that Judgment will be awarded against him, as if he had pleaded Guilty. Then,

And your petitioner shall ever pray, &c.

WINTOUN.

The said earl of Wintoun was directed to withdraw; and being withdrawn accordingly, The order made on Thursday last upon his petition was read, as also the several orders made on Monday last.

Ordered, That the counsel mentioned in the said petition be assigned him, and that either of the said solicitors be likewise assigned, and that he have time to put in his Answer to the said Articles till Monday next. And that the clergyman mentioned in his petition, being his relation, may have access to him, provided he will stay in custody with him during his confinement.

He was accordingly called in, and the Lord Chancellor acquainted him with the said matter.

He thereupon delivered in at the bar his An-
swer fairly engrossed on parchment, which was
read.
January 28, 1716.

earl of Wintoun.
The Commons replied to the Answer of the

February 8, 1716.

Ordered, by the Lords spiritual and temporal 16th day of this instant February be, and is parliament assembled, That Thursday the hereby appointed for the Trial of George earl of ster-ball upon the Impeachment of High Trea son exhibited against him by the House of Commons.

Wintoun at the bar of this House in Westmin

Then the earl of Wintoun was again called in in, and the Lord Chancellor acquainted him, that the House had considered his petition, and assigned him the counsel he desired; and would assign him either of the two solicitors he should chuse; and that the clergyman abovementioned might come to him upon the condition before expressed. Then the said earl of Wintoun naming Mr. Menzies, the House accordingly assigned him for his solicitor, and ordered, that the said counsel and solicitor may have access to him from time to time at all seasonable hours; and he withdrew.

January 21, 1716.

A petition of George earl of Wintoun was presented to the House and read, praying that their lordships would allow him such further time for putting in his Answer, as their lordships shall think fit.

Ordered, That the said petition be rejected.

January 23, 1716.

The earl of Wintoun being brought to the House according to order by the lieutenant of

See a note to the Case of Dr. Sacheverell, in the present volume.

February 10, 1716.

Upon reading the petition of George earl of Wintoun, setting forth, That he had a petition in the House on Wednesday last, when their lordships appointed Thursday next for the petitioner's trial, desiring that consideration might be had to the distance of the place, and the season of the year, for bringing up of his witnesses, both men and women, from Scotland and other parts; but the noble peer who promised, and would have moved the said petition, not being present at the time of making the motion for appointing a day of trial, the said petition was not presented in form, which oc casioned the appointment of so short a time, wherein it is altogether impossible to prepare any thing in order for the said trial: and praying that this House will grant an order to com pel the several witnesses following, (viz.) John Gordon, George Trotter, George Hogg, Joha Stewart, all servitors to the earl of Wintoun,

813]

for High Treason. Beautoun, wife to Mr. David Nicholson in Tranent, Adam Purvis, clerk of the episcopal meeting-house in Tranent, Christopher Se ton in Port Seton, lieutenant general Wills,

Forster, esq.

Miller, esq. Mackintosh of capt. Alexander Streton, Bordlim, Aenslie, and- - Todd, bailiffs of Musselbrough, and the schoolmaster of Fisherau, to appear before this House at the trial, to give evidence on behalf of the petitioner; and to allow such time for their coming hither, as, in regard to the distance of the place, and the season of the year, and the importance of the affair, their lordships in their great wisdom and justice shall think reasonable: It is ordered, That the time appointed for the trial of the petitioner in Westminster-hall be, and is hereby, enlarged to Thursday the eighth day of March next: and that the several persons afore-named be, and are hereby, required to attend this House on Thursday the said eighth day of March, as witnesses on behalf of the petitioner, except such of the said persons as are now prisoners for high treason; and that they shall have the protection of this House for their safe coming and going, during the time of the said trial.

March 5, 1716.

Upon reading the petition of George earl of Wintoun, setting forth, that his agents have used all diligence possible in serving the order of this House for the attendance of his witnesses; and now they are all on their way hither, part by sea and part by land: And that the nature of his defence is such, that if the witnesses were arrived, as none of them are, the time would be too short to prepare his briefs, and instruct his counsel; and praying that the time appointed for his said trial may be enlarged for such time as their lordships, in their great justice and wisdom, shall think proper, in a case of so great consequence: It is ordered, that the time appointed for the petitioner's trial be, and is hereby, enlarged, till Thursday the 15th day of this instant March at ten of the clock in the forenoon.

March 12, 1716.

A petition of George earl of Wintoun was presented to the House and read, setting forth, that his agents have used all possible diligence in getting his witnesses hither, and several of them are lately arrived, but four of the most material of them, though they all be on their way hither, are not yet come up, some of them being lame and others very infirm, so that they are not able to travel so quickly; and praying, that the time appointed for his trial may be enlarged for such time as their lordships, in their great justice and wisdom, shall think proper, in a case of so great concern.

And after debate thereupon, and reading the orders made in relation to the said trial, Charles Menzies, the petitioner's solicitor, was called in, and examined upon oath at the bar, touching the allegations of the said petition; and failing

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to make good the same; And being withdrawn, It was moved to reject the petition.

And the question being put whether the said petition shall be rejected, it was resolved in the affirmative.

March 18, 1716.

Several orders were made for preserving the peace, and touching the course of proceeding, to and at the ensuing trial; and among them,

Ordered, that the counsel assigned the said earl of Wintoun may be present when he is at the bar, in order to be heard touching any point or matter of law, if any such shall arise. .March 14, 1716.

Upon reading the petition of George earl of Wintoun, praying that this House will be pleased to assign and add Mr. Kettelby and Dr. Strahan to his counsel formerly named, and that they may have access to him during his confinement: It is ordered, that the counsel above-mentioned be assigned the petitioner, to be heard to matters of law, but not to matters of fact, so as not to put off the petitioner's trial, and that they, or either of them, have access to the petitioner from time to time, at all seasonable times.

*

A motion being made, that the following persons, whose names were contained in a list exhibited at the same time, on behalf of the earl of Wintoun, might be summoned as witnesses for the said earl at his trial; being then, as alleged, in or near the city of London,

Ordered, by the Lords spiritual and temporal in parliament assembled, that John Gordon of Kirkhill, Alexander Nisbet writer in Edinburgh, William Knox, Thomas Bain, John Wattesone, all three of Seaton, Mrs. Magdalen Corsbie of Canongate, Agnes Duncan of Seaton, Dr. Lidderdale, a physician, doctor Cockburne a divine, Dr. John Inglis, major Sinclaire, George Trotter, and George Hogg of Seaton, be and are hereby required to attend this House in Westminster-hall, to morrow at ten of the clock in the forenoon, in order to be examined as witnesses on the behalf of George earl of Wintoun at his trial.

The House being informed that the earl of Wintoun desired that general Carpenter might be examined as a witness at his trial:

The said general Carpenter being a member of the House of Commons:

A Message was sent to that House by Mr. Holford and Mr. Lovibond, to acquaint them, that the Lords do desire that they will give leave to the said general Carpenter to be examined at the said Earl's trial.

Ordered, that the witnesses which shall be produced by the earl of Wintoun to be examined in his defence, shall be examined upon oath, which oath to be administered to the wit

* The stat. 7 W. 3, s. 1, did not allow the assistance of counsel as to matters of fact in impeachments for treason, but the stat. 20 G. 2, c. 30, nas extended it to such cases.

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