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Trial of the Earl of Wintoun.

meet that fate with readiness, which in a state mended in the prayers of, my very good lord,
of uncertainty I expect with uneasiness. Iyour most affectionate kinsman, &c.
must also be pressing with your lordship, that

“ KENMURE." if, in case of death, any paper under my name “ From my Prison in the Tower should come out as pretended to be written by of London, Feb. 23, 1715." me, is the manner or form of a speech, you will not believe it to be genuine; for I that am When the lord Kepmure was brought on the heartily sorry for disowning my principles, in scaffold, he was attended by two divines, Mr. one spoken before your lordship, and the rest H- -s and Mr. Cockburn, the latter beof my peers, will never add to that act of in- ing not sent for till the night before, and told discretion, by saying any thing on the scaffold, by him, He had so little thoughts of dying but my prayers, for the forgiveness of my then, that he had not provided a black suit, poor self, and those that have brought me to that he might have died with more decency ; be a spectacle to men and angels, especially for which he was sorry. As soon as he came siuce I must speak in my last moments ac- on the scaffold he kneeled down, leaning one cording to the dictates of my conscience, and of bis hands on the rail, and the divines praynot prevaricate, as I did before the Lords, for ed with him. He seemed to be very sincere which I take shame to myself; and such a and fervent in bis 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

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 tbing to say, or any speech to deliver ? he gions of everlasting joy and happiness : To saíd, No. He prayed for the Pretender,and re, which blessed state of immortality, your lord pented of his having pleaded guilty, and died ship shall also, while I am living, be recom- after a very courageous manner.

from grace.

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. 1716.7
January 9, 1716.

House of Lords : and it was ordered that the

said Earl, with the other impeached lords, The Earl of Wintoun was impeached of should

be brought to the bar of the House of bigb-treason ; and the Articles were brought Lords the next day, to hear the said Articles up against him and read the same day in the read, and to abide such further order as the

As to various particulars respecting form were accordingly called by name at the doors of proceeding in this Case, see 4 Hats. Prec. and windows of the Court, and upon their nonand the Journals as referred to by him. appearance, the lords found they had incurred

† Upon looking into the books of Adjournal the penalty of single and liferent escheat, to at Edinburgh I find that,

be brought in for his majesty's use. Fined On the 6th September, 1715, Sir James them and each of them in the sum of 500l. Stuart, solicitor for the king, presented to the sterling for his majesty's use, and doomed Court an order for raising criminal letters them to be imprisoned for one year; conform against the earl of Seaforth and others, to to stat. 2 George 1. compear at Edinburgh for the purpose therein Sept. 16. The same form was gone through mentioned. Warrant to this effect was then as to the viscount Kingston, sir Hugh Patersigned by the justice clerk.

son of Bannockburn, Stirling of Keir, On the 15th the solicitor represented, that he and sir Donald M‘Donald; and the same senhad obtained letters for citing several persons to tence was pronounced upon their not appearing. appear before their lordships; that he had Sept. 17. James Malcolm, viscount of Kil. executed them against the earls of Wintoun syth, the lords Nairne and Rollo, master and Linlithgow, and Mr. Maule, brother of Nairne the eldest son of lord Nairne, George the earl of Panmure. And he begged that Home of Whitfield, Grahame of Buckthey might be called in virtue thereof, and if Vyvie, and Mr. Seton of Touch, were cited in they did not appear, that their lordships would same manner to appear, and á like sentence was proceed against them according to law. They pronounced.

House should think fit to make concerning the Lord Chancellor asked them severally what them.

they bad to say thereunto, and acquainted them, January 10, 1716.

that if they had any thing to request of the

House, this was their proper time. The earl of Wintoun and the other im- Thereupon the earl of Wintoun acquainted peached lords were brought to the bar in the the House he was unprepared, and very usual |form ; ' then the said Articles of Im- ignorant of the forin of their lordships' judicapeachment were read unto them; after which ture, and desired be might bave a copy of the

On the same day, sir William Erskine, the Tbe same day Pat. Murray was adlord Lyon, appeared to answer his citation, and mitted to bail in virtue of a letter from the was committed to the castle of Edinburgh a king, authorising bail to be accepted. prisoner.

Sept. 31. Alexander Robertson of Struan, was Sept. 19. Viscount Stratballan, Wal- cited and sentenced. kinshaw of Barafield. The lord Drummond, Oct. 1. Marquis of Huptly, Robert Stew. and William Drummond bis servant were cited art of Appine, and Jobn Stewart of Ardseal, and sentenced.

were cited and sentenced. Sept. 20. Viscount Stormont, sir Patrick Oct. 3. John Cameron younger of Lochiel, Murray of Ochtertyre, and Mr. William Mur- was cited and sentenced. ray of Ocbtertyre were cited. Sir P. Murray Oct. 4. John Campbell of Auchallader, was appeared and was committed to the castle. cited and sentenced. The rest were sentenced as above.

Oct. 6. Sir Duncan Campbell of Lochnell, Sept. 21. Earl of Carnwath, Francis Steuart was cited and sentenced. brother to the earl of Murray, and John Drum- On the 16th December, Sir D. Campbell mond brother to lord Drummond, were cited presented a Petition, stating that he had ar: and sentenced.

rived in town the evening of the day on which Sept. 23. Letters had been issued on 3rd he was summoned to attend, and had imme. against the viscount Stratballan, Lyon of diately waited on the lord justice clerk, but Auchterhouse, Balfour of Fairnes and was too late ; and for these reasons praying to Balfour of Dunboig; the lord advocate repre- be reponed. He also presented a letter from sented that these letters had been executed the king authorising him to be admitted to bail. against Balfour of Fairnes and Dunboig, the The Petition was granted, and the bail reearl of Nithiscale and viscount of Kenmure. ceived. Sentence was then pronounced against them Oct. 7. The laird of M-Kinnon, and William 'for non-appearance.

M.Kintosh younger of Borlum, cited and sen. Sept. 24. Drummond of Logie, and his bro- tenced. ther, were cited and sentenced.

Oct. 10. Sir John M Lean laird of M.Lean, Sept. 26. The earls of Panmure and South- and Allan M.Donald, laird of Clanronald, were esk, and Mr. Murray, master of Stormont, cited and sentenced. were cited and sentenced.

Oct. 13. The earls of Marr, Marisbale, and Sept. 27. Upon the earl of Bredalbane Seaforth, lieutenant general George Hamilton, being called, a Petition for him was presented, the laird of Glengairy, the laird of Rippoch, stating, that from the infirmities of age he Alexander M.Kenzie of Frazerdale, Allan Ca. was unable to appear at Edinburgb, where he meron brother to Lochiel, and, William Drumwas cited, as shown per certificate under the mond brother to Logie, were cited and senhands of John Murray, doctor of medicine in tenced. Perth, and Mr. Alexander Convry, minister of June 4, 1716. Lord Glenorchy presented a the gospel at Kepmure ; therefore prays their letter from his majesty, allowing bim to be lordships to continue the diet of bis appear- bailed. ance till such day as they shall please, or June 6. The earl of Wigton presented a until he is able to attend.

Petition, stating, that he had been committed Sept. 29. - Lyon of Auchterhouse, and in virtue of a warraut from major general John Jord Glenorchy were cited and sentenced. Whithan, directed to colonel James Stuart, de

Upon considering the Petition of the earl of puty governor of Edinburgh Castle, and dated Bredalbane, the lords also find, “ that the tes- August 20, 1715. The Petition prayed that tificate produced for John earl of Bredalbane he might be set at liberty because the said not being judicially instructed and proved, is warrant did not express a cause or reason for not of itself a sufficient essonzie. And fur- the imprisonment, as was shewed by an atther the same being redargued by an evi- tested copy thereof, under the hand of major dence upon oath, proving that the said earl Lindsey. was at a place called Logierate several miles June 29. The earl of Wigton, who had been from his own hưuse, 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 comunitted in virtue of a warafter the pretended testificate is dated." There- rant from general Prevost, wbich did not exfore for disobedience and contumacy they pro. press the cause of his imprisonment. The nounce sentence against him.

Petition was granted.

for High Treason.

said Articles, and such time to answer as the the advising him in naming other counsel, in-
House should think fit, and that counsel might stead of those who have refused.
be assigned to assist him. He was directed to Whereas by order of this House on Tuesday
withdraw; and being accordingly withdrawn, last, the lords impeached were to put in their
the House took his requests into consideration, respective Answers to the Articles of Impeach-
and thereupon

ment of high-treason exhibited against them Ordered, That bis lordship should be al- by the House of Commons on Saturday last : Jowed a copy of the said Articles of Impeach- the House being this day moved at the request ment, and time until Saturday next to put in of the earl of Derwentwater and lord Widbis Answer thereunto; and that counsel should drington, to grant them further time to put be assigned bim in order to assist bim in pre- in their Answers to the said Articles of I'mparing his Answer, and likewise in his defence peachment: It is ordered, that all the said in matters of law,

lords have hereby further time allowed to put Then his lordship was called in again, and in their respective Answers to the said Articles the Lord Chancellor acquainted him with the till Monday next at one o'clock. said order, and that the House expected he should name such counsel as he desired to have.

January 16, 1716. To which he answered, that nobody was

Whereas by order of this House on Thursday allowed to come to him, he was a stranger and last, the lords impeached were allowed time to unprepared, and desired to be allowed time

to put in their Answers till this day to the Articles Dame bis counsel.

of Impeachment exhibited against them, the Then his lordship being again withdrawn, House being this day moved in regard the After some time he was again called in, and counsel assigned some of the said lords refused the Lord Chancellor, by order of the House, to be concerned for them, that Thursday next acquainted him, that the House was pleased in their several Answers to the said Articles : It

may be appointed peremptorily for them to put besides counsel, to allow him a solicitor, and to give bim leare to name whom he desired to is ordered, that the several lords do peremp; come to him this evening, or to-morrow morn

torily put in their several Answers to the said ing, in order to advise him in the naming of Articles on Thursday next at one o'clock; and couosel and solicitor.

that the lieutenant of bis majesty's Tower of To which purpose the earl of Wintoun London do bring to this House, on that day, by named Mr. Hereot, a clergyman, Mr. Menzies, that time, the said several lords for the pur. major Sinclair, and Mr. George Lessly, a

poses aforesaid ; and that notice be forth with lawyer.

given them of this order. And then he again withdrew.

January 19, 1716. And the names of the several persons men. tioned by the earl of Wintoun being read to him, by the gentleman-usber of the Black Rod,

The earl of Wintoun was brought to the

bar, Ordered, That they have leave to repair to the said Earl at any convenient hour, any time directed him to rise, and his lordship ac

where he kneeled until the Lord Chancellor before the sitting of the House to-morrow,

in order to advise him in the naming of counsel, and demanded of him if he was ready to put in

quainted him with the above-mentioned order, and a solicitor to assist him in his defence.

his Answer. Ordered, That the several lords impeached,

He said he had a Petition to present to the or any of them, bave liberty to cause search to

House: he was an entire stranger to the be made, and copies of Records and Journals to be taken out, in order to their defence; and

nature of their lordships' proceedings, and de

sired his Petition might be read; and the same that the said lords sball have summons issued

was read as follows: for such witnesses as they shall respectively send in the names of, to be by them made use of To the Right Honourable the Lords Spiritual at their trials; which witnesses shall have the protection of this House for their safe coming

and Temporal in Parliament assembled ;

The HUMBLE PETITION of GEORGE Earl of and goiog, during the time of the said trials.

January 12, 1716.

Humbly Sheweth, A petition of George earl of Wintoun was That on Thursday last I having applied to presented to the House and read, praying that your lordships, representing how I had caused he may have some further time for nominating application to be made to two lawyers, to act counsel and a solicitor to act for him, and in as counsel for me, in the Impeachment exhithe mean time to allow his friends formerly bited before your lordships against me by the hamed to have access to him; be having caused honourable House of Commons, and that they application to be made to sir Thomas Powis, both declined to meddle, for reasons then given; and Mr. Mead, to have appeared for him, but your lordships were pleased to allow me some they both excused themselves.

more time for nominating of counsel and soliOrdered, That the same persons before al- citors, and this day for giving in my Answers; lowed to go to the petitioner, have leave to resort but by reason of my close confinement, and to him at any seasonable time, before eleven that your lordships order for allowing some o'clock 10-morrow in the forenoon, in order to persons to have access to me, expired on Friday


last at eleven forenoon, I have had no opportu- the Tower, the gentleman usher was comnity of naming other counsel and solicitors ; manded to bring him to the bar, where he nor can I have the assistance of any, till they kneeled until be was directed by the Lord are appointed by your lordships, and they al. Chancellor to rise ; and his lordship acquainted lowed access to me.

bim that this was the peremptory day appointThat your petitioner bas several specialities ed by the House for his putting in his Answer and matters of great moment, which he cone to the Articles of Impeachment exhibited ceives necessary to be a part of his Answer, against him by the House of Cominons, and and which cannot be drawn into form, without asked bim if he was ready to put in his Anthe assistance of his counsel and solicitors.

Forasmuch therefore, as this affair is to me He thereupon made some excuses, and deof the greatest importance ; may it please your sired further time for that purpose; Jordships to assign sir Constantine Phipps, ** And was directed to withdraw. 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, opon conmy solicitors; and to order that they may have sidering bis petition on Saturday last, for furaccess 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 bim, did reallow Mr. George Hereot, a minister of the jeci 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 furAnd your petitioner shall ever pray, &c. ther time, and that the consequence of his re

WINTOUN. fusing to plead which will ensue in law is, that

Judgment will be awarded against bim, as if The said earl of Wintoun was directed to he bad pleaded Guilty. Then, withdraw; and being withdrawn accordingly, He was accordingly called in, and the Lord

The order made on Thursday last upon his Chancellor acquainted him with the said petition was read, as also the several orders matter. made on Monday last.

He thereupon delivered in at the bar bis AnOrdered, That the counsel mentioned in the swer fairly engrossed on parchment, which was said petition be assigned him, and that either read. of the said solicitors be likewise assigned, and

January 28, 1716. that he have time to put in his Answer to the said Articles till Monday next. And that the earl of Wintoun.

The Commons replied to the Answer of the clergyman mentioned in his petition, being his relation, may have access to bim, provided he

February 8, 1716. will stay in custody with him during his confinement.

Ordered, by the Lords spiritual and temporal Then the earl of Wintoun was again called 16th day of this instant February be, and is

in parliament assembled, That Thursday the in, and the Lord Chancellor acquainted him, hereby appointed for the Trial of George earl of that the House had considered his petition, and

Wintoun at the har of this House in Westminassigned him the counsel be desired ; and would assign him either of the two solicitors he

ster-ball upon the Impeachment of High Trea. should chuse; and that the clergyman above

son exhibited against him by the House of mentioned might come to him upon the condi


February 10, 1716. tion before expressed. Then the said earl of Wintoun naming Mr. Menzies, the House ac- Upon reading the petition of George earl of cordingly assigned him for his solicitor, and or. Wintoun, setting forth, That he had a petition dered, that the said counsel and solicitor may in the House on Wednesday last, when their have access to him from time to time at all lordships appointed Thársday next for the peseasonable hours ; and he withdrew.

titioner's trial, desiring that consideration might Junuary 21, 1716.

be had to the distance of the place, and the sea

son of the year, for bringiog ap of his wit. A petition of George earl of Wintoun was nesses, both men and women, from Scotland presented to the House and read, praying that and other parts ; but the noble peer who proiheir lordships would allow him such further mised, and would have moved the said petition, time for putting in his Answer, as their lord not being present at the time of making the ships shall think fit.

motion for appointing a day of trial, the said Ordered, That the said petition be rejected. petition was not presented in form, which ocJanuary 23, 1716.

casioned the appointment of so short a time,

wherein it is altogether impossible to prepare The earl of Wintoun being brought to the any thing in order for the said trial: and prayHouse according to order by the lieutenant of ing that this House will graut an order to com

pel the several witnesses following, (viz.) John See a note to the Case of Dr. Sacheverell, Gordon, George Trotter, George Hogg, Joba in the present volume.

Stewart, all servitors to the earl of Wintoun, Beautoun, wife to Mr. David Nicholson to make good the same; And being withdrawn, in Tranent, Adam Purvis, clerk of the episco- It was moved to reject the petition. pal meeting-house in Tranent, Christopher Se. And the question being put whether the said ton in Port Seton, lieutenant general petition shall be rejected, it was resolved in the Wills, Forster, esq.

Miller, esq. affirmative. capt. Alexander Streton, Mackintosh of

March 13, 1716. Bordlim, — Aenslie, and Todd, bailiffs of Musselbrough, and the schoolmaster of Fi. Several orders were made for preserving the sheran, to appear before tbis House at the trial, peace, and touching the course of proceeding, to give evidence on behalf of the petitioner ; to and at the ensuing trial; and among them, and to allow such time for their coming hither, Ordered, that the counsel assigned the said as, in regard to the distance of the place, and earl of Wintoun may be present when he is at the season of the year, and the importance of the bar, in order to be heard touching any the affair, their lordships in their great wisdom point or matter of law, if any such shall arise. and justice shall think reasonable: It is order

March 14, 1716. ed, That the

time appointed for the trial of the petitioner in Westminster-ball be, and is here- Upon reading the petition of George earl of by, enlarged to Thursday the eighth day of Wiutoun, praying that this House will be March next: and that the several persons pleased to assign and add Mr. Kettelby and afore-named be, and are hereby, required to Dr. Straban to his counsel formerly named, attend this House on Thursday the said eighth and that they may have access to him during day of March, as witnesses on behalf of the pe- his confinement: It is ordered, that the counsel titioner, except such of the said persons as are above-mentioned be assigned the petitioner, to now prisoners for bigh treason ; and that they be heard to matters of law, but not to matters shall have the protection of this House for their of fact,* so as not to put off the petitioner's safe coming and going, during the time of the trial, and that they, or either of them, have ac. said trial.

cess to the petitioner from time to time, at all

seasonable times. March 5, 1716.

A motion being made, that the following Upon reading the petition of George earl of persons, whose names were contained in a list Wintoun, setting forth, that his agents have exhibited at the same time, on behalf of the used all diligence possible in serving the order earl of Wintoun, might be summoned as witof this House for the attendance of his wit- nesses for the said earl at bis trial ; being then, nesses ; and now they are all on their way as alleged, in or near the city of London, hitber, part by sea and part by land: And that Ordered, by the Lords spiritual and tem, the nature of his defence is such, that if the poral in parliament assembled, that John witnesses were arrived, as none of them are, Gordon of Kirkhill, Alexander Nisbet writer in the time would be too short to prepare his Edinburgh, William Knox, Thomas Bain, Joba briefs, and instruct his couilsel; and praying Wattesone, all three of Seaton, Mrs. Magthat the time appointed for his said trial may be dalen Corsbie of Canongate, Agnes Duncan of enlarged for such time as their lordships, in their Seaton, Dr. Lidderdale, a physician, doctor great justice and wisdom, shall think proper, in Cockburne a divine, Dr. John Inglis, major a case of so great consequence: It is ordered, Sinclaire, George Trotter, and George Hogg of that the time appointed for the petitioner's trial Seaton, be and are bereby required to attend be, and is bereby, enlarged, till Thursday the this House in Westminster-ball, to morrow at 15th day of this instant March at ten of the ten of the clock in the forennon, in order to be clock in the forenoon.

examined as witnesses on the behalf of George

earl of Wintoun at his trial. March 12, 1716.

The House being informed that the earl of A petition of George earl of Wintoun was Wintoun desired that general Carpenter might presented to the House and read, setting forth, be examined as a witness at his trial: that his agents have used all possible diligence The said general Carpenter being a member in getting his witnesses hitber, and several of of the House of Commons: them are lately arrived, but four of the most A Message was sent to that House by Mr. material of them, though they all be on their Holford and Mr. Lovibond, to acquaint them, way hither, are not yet come up, some of them that the Lords do desire that they will give leave being lame and others very infirm, so that they to the said general Carpenter to be examined are not able to travel so quickly ; and praying, at the said Earl's trial. that the time appointed for his trial may be en. Ordered, that the witnesses which shall be larged for such time as their lordships, in their produced by the earl of Wintoun to be exagreat justice and wisdom, shall think proper, mined in his defence, shall be examined upon in a case of so great concern.

oath, which oath to be administered to the witAnd after debate thereupon, and reading the orders made in relation to the said trial, Charles * The stat. 7 W. 3, s. 1, did not allow the Menzies, the petitioner's solicitor, was called in, assistance of counsel as to matters of fact in and examined upon oath at the bar, touching impeachments for treason, but the stat

. 20 the allegations of the said petition; and failing G. %, c. 30, nas extended it to such cases.

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