and renewed the same in presence of his majesty's commissioner and council: and depones that he did not hear the pannel either seek assurance of his life, or any other person offer the same to him.

John duke of Lauderdale, being, sworn, depon's, That his grace was present as the king's commissioner in council, when Mr. James Mitchel was brought to the bar. Depon's his grace saw the pannel's former confession made at the committee of council shewn to him, and he acknowledged it to be his confession, and that he did adhere there to and renew the same in presence of his grace and the council. His grace heard no assurance given to him, and that his grace did not give him any assurance, nor gave commission to any others to give him any assurance, and could not do it, having no particular warrant from his majesty for that effect.

James, archbishop of Saint Andrews, being sworn, depon's, That that day that the pannel did fire a pistol at his grace, he bad a view of him passing from the coach and crossing the street, which had such impression upon his grace, that upon the first sight he saw of him after he was taken, he knew him to be the person who shot the shot. Depon's, his grace saw him at the council-bar in presence of his majesty's commissioner and the council acknowledge his confession made before the committee, and heard him adhere thereto and renew the samen; and there was no assurance

of life given him, nor any sought by him there. Depon's, that his grace himself did never give him any assurance, nor give warrant to any others to do it: only he promised at his first taking, that if he would freely confess the fault, and express his repentance for the same at that time, without farther troubling judicatories therein, his grace would use his best endeavour to favour him, or else leave him to justice: But that he either gave him assurance, or gave warrant to any to give it, it is a false and malicious calumny; and that his grace made no promise to Nicholl Somervel other than that it was best to make a free confession. And this is the truth, as he shall answer to God.

The pannel, Mr. James Mitchel, after swearing of the assize, produced ane copy of ane pretended act of council, and craved that the register of council containing the said act might be produced. And after the examination and depositions of the witnesses upon the Dittay and exculpation, the pannel and his proctors farther urged, that the register of council might be produced. Seeing the pannel produced ane instrument against Mr. Thomas Hay, one of the clerks of council, for giving ane extract thereof; and the pannel and his proctors alledged, that the register of council containing the said act was produced in court the day before, and that the said act was read by several members of court; and being once produced, and ane instrument taken against ne of the clerks of council, who with the

other clerk were cited as witnesses by his majesty's advocate, the clerks ought to be ordained either to give ane extract or produce the register containing the aforesaid act; and the pannal and his proctors desire to be heard in writ upon the said act of council.

His majesty's Advocate answers, That he was not obliged to produce a register for the Pannel; and if any such pretended act was, he should have used a diligence and cited the clerks of council for producing of the registers, or giving any extract; which the Pannel not having done he cannot be allowed a diligence in this state of the process. And if any such act of council was, it was unwarrantable and could not be made use of, after the lord Chancellor, the duke of Lauderdale, the lord Thesaurer Depute, and other lords of council had deponed that there was no such assurance given, as is either pretended by the exculpacil. And be the copy produced it is evident, tion, or insinuate by the pretended act of counthat the design thereof is to take from the pannel any pretended favour he pleads; and if the act be founded one, it cannot be divided; so that ane meer narrative must prove, and the seeing there is nothing more notour and ordinar, statutorie words should not prove: especially than for the council not to consider a narra tive if the statutory words be right. And as the pannel pretends that his confession cannot be divided from the assurance given, but that it must taken with the quality; so much less must this act be divided. And the pretended act is long posterior to the pannel's confession, and even posterior to a former dyet in the justice court appointed for the pannel's trial for the said crime. And farther, no such assurance

could have been granted, seeing none but his majesty can grant remissions.

The Pannel and his Proctors desired the copy produced to be read. ·

His majesty's Advocate consents to the reading of the pretended copy of the Act of Council, and which being publicly read, is of the tenor following.

Edinburgh, March 12, 1674.

"The Lord Commissioner his grace, and the lords of his majesty's privy council having appointed a committee of council to examine Mr. James Mitchel, prisoner in the Tolbuith of Edinburgh; the said Mr. James being brought before the said committee, did make a free and voluntary confession of his accession to the rebellion, and rising in arms in the west; and that after he had notice of the same he went from Edinburgh with colonel Wallace and others, and joined with the rebels there, and from thence came along, and was with them until the night before the fight at Pentlandhills; and that at the desire of Captain Arnot he came then to Edinburgh to speak to some persons there concerning them. And being examined upon the attempt made upon the

the registers of council, until this afternoon that the assize was sworn, after which no diligence can be allowed nor granted in this state of the process be the law of the kingdom, and prac tique of this court; especially seeing it appears be the said copy, that the design was to take away any assurance that the pannel could have pleaded; and that the truth of the narratives! the copy founded upon insinuating that there was ane assurance, is cancelled be the deposi tions of the duke of Lauderdale, then his ma

other members of the committee and council: The said lords therefore ordain the assize to inclose and return their verdict to-morrow at two o'clock in the afternoon.

Curia Justiciariæ S. D. N. Regis tenta in Prætorio Burgi de Edenburgo, Decimo de Mensis Januarii, 1678, Per honorabiles viros Dominos Archibaldum Primrose de Car ringtoun Justiciarium Generalem, Jacobum Foulis de Colintoun, Robertum Naira de Strathurd, Joannem Lockhart de Castle hill, Davidem Balfour de Ferret, et Tho mam Murray de Glendoick, Commission arios Justiciariæ dicti S. D. N. Regis.

Curia legitime affirmata.

person of the archbishop of St. Andrews, and who shot the pistol at the said archbishop, when the bishop of Orkuey was hurt in the month of July 1663, he did declare that at that time, and the day that the said attempt was made he was in the town of Edinburgh; and that he had bought the pistol, which was about bin charged with three balls when he was apprehended, about that time when the bishop was shot, from Alexander Logan, dager-maker in Leithwynd: but refused that he was the person that made the said attempt until having re-jesty's commissioner, the lord chancellor, and tired a pace with one of the said committee, he did confess upon his knees that he was the person, upon assurance given him by one of the committee, as to his life, who had warrant from the lord commissioner and the council to grant the same. And did thereafter confess freely, before all the lords that was upon the said committee, that he shot the foresaid pistol at the said archbishop, and did subscribe his confession in presence of the said committee, which is also subscribed by them. And thereafter the said Mr. James in presence of the commissioner his grace and council, did renew and adhere to the said confession, both as to the accession to the rebellion and the attempt foresaid; and acknowledged he made the said attempt because he thought that the said archbishop had ane hand in troubling and persecuting those that were in the rebellion. And nevertheless, being brought before the lords commissioners of the justiciary, and asked if he did own the confession foresaid, he did altogether refuse to answer and adhere to his saids confessions, notwithstanding he was told by the lords commissioners of justiciary and his majesty's advocate that if he would adhere to his saids confessions, he should have the benefit of the said assurance and if otherways, that he should lose the same. Therefore the lord commissioner his grace, and the Lords of his majesty's privy council, do declare, that they are free, and that the said Mr. James ought not to have the benefit of any such promise or assurance, and that the same is altogether void; and that the Lords of the justiciary and the assise ought to proceed without any respect to the same. And farder do declare, that the said Mr. James Mitchel is the person intended and meaued in the proclamation in the years 1666 and 1667 discharging any intercomoning with the rebels therein mentioned, and excepting the said Mr. James, and the other persons therein, from his majesty's favour and indempnity, and no other under the name of Mr. James Mitchel, though there had been any other of that name involved in the said rebellion.

“The Pannel and his Proctors renew their desire, and crave to be heard to debate upon the act of council in writ,

The lords commissioners of justiciary considering that the copy of the pretended Act of Council produced was never urged, nor made use of, nor any diligence craved for producing

The said day the persons who past upon the assize of master James Mitchel, returned the Verdict in presence of the said lords: whereaf the tenor follows:

"As to the first part of the libel, founded upon the 4 act, 16 parl. king James 6. the chancellor and whole assize, with one voice, find it proven conform to the lords interlogator.

and wounding the bishop of Orkney, sicc "As to the invading of bishops and ministers, proven with one voice.

"As to the third part of the lords interloqu tor concerning his confession, first before: committee, and thereafter before his majestyy i size with one voice find it proven conform to the high commissioner and council, the whole as lords interloquitor..

loquitor concerning the exculpation, the who "As to the fourth and last part of the inter assize with one voice find it no ways proves And further concerning the exculpation, whe the pannel was pressing it strongly upon # lord chancellor the whole assize heard his ow confession and acknowledgment of the fact

(Sic Subscribitur,) Jo. HAY, Chancellor."

After opening and reading of the whilk Ver dict of Assize, the lords commissioners of jes ticiary, by the mouth of Adam Auld, dempster James Mitchel to be taken to the Grass Ma of court, decerned and adjudged the said M ket of Edinburgh, upon Friday the 18th day January instant, betwixt two and four o'clock in the afternoon, and there to be hanged ane gibbet till he dead, and all his moveable goods and gear to be escheat and inbrought t his majesty's use; which was pronounced for

doom. Upon which day he was executed according to the sentence.*

He had prepared a Speech, which be intended to have delivered, but being interrupted by the beating of drums he threw it over the scaffold; it was as follows:

"Christian People,

charity will be such to me (a dying man) as no to misconstruct me therein, especially when it is so notourly adminiculat by an act of the se cret council, and yet denied upon oath by the principal officers of state, present in council at the making of the said act, and which the act bears to have been present thereat; the duke "It being rumoured abroad immediately of Lauderdale being then his majesty's commisafter I had received my Sentence, that I would sioner, and which act of council was by the not get liberty to speak in this place, therefore lords of justiciary their interloquitor most illeI have not prepared a formal discourse and ac- gally repelled; but I shall have charity to some count of these pretended crimes, for which I of these lords, whom I knew would have given was accused and sentenced, neither did I think law and justice place, even as to my just absoit very necessary, the fame of your process hav-lution, if they had not been overpowered by the ing gone so much abroad, what by a former in-plurality of votes of those who were over-awed dictment given me near four years since, the and dared by the lords of the secret council. dyet whereof was suffered to desert in respect But that will not absolve their consciences at the late advocate could not find a just way to the last day. As to my advocats and lawyers, reach me, with that extrajudicial confession I ingenuously acknowledge their care, fidelity they opponed unto me. All know he was zea- and zeal in my defence, and which, I hope, lous in it, yet my charity is such unto him, that shall be some standing fame to them for this, he would not suffer unwarrantable zeal so far to and all future generations. So thus much as a blind him, as to overstretch all laws of the land short account of that affair, for which 1 am beyond their due limits, in prejudice of the life brought unjustly to this place. But I acknowof any natural subject, and next by an extreme ledge my particular and private sins have been enquiry of torture, and then by exiling me to such, as have merited a worse death unto me: the Bass, and after all, giving me a new indict- but I die in the hope of the merits of Jesus ment at the instance of the new advocate, who Christ to be freed from those eternal punishbefore was one of mine, when I received the ments due to me for sin; yet I am confident, first indictment, to which new indictment and God doth not plead with me in this for my pridebate in that process I remit you, and parti-vate and particular sins; but I am brought cularly to these two defences of extrajudicial confession, and to the promise of life given to me thereupon by my lord chancellor, upon his own, and the public faith of the kingdom, upon the verity whereof I am ready to die, and consent to lay down my life. And I hope, your

here, that the work of God may be made manifest, and for the trial of faith, Joh. ix. ver. 3. and 1 Pet. i. ver. 7, and that I may be a witness for his despised truth and interest in this land, who am called to seal the same with my blood. And I wish heartily that this my poor life may put an end to the persecution of the true members of Christ in this kingdom, so much cheated by these perfidious prelates, and in opposition to whom, and in testimony of the cause of Christ, I at this time willingly lay down my life. And I thank God, that he hath thought me so worthy as to do the same for his glory` and interest. Finally, conceiving it a Christian duty in a singular and extraordinary case anent my particular judgment concerning both church and state, it is evidently declared and manifested more fully elsewhere. So farewell all earthly enjoyments, and welcome Father, Son, and Holy Spirit, into whose hands I commit JAMES MITCHEL."

"Doubtless the fanaticism of Mitchel was of the most daring and atrocious nature; but the guilt of that fanatic is lost in the complicated perfidy, cruelty, perjury and revenge which accomplished his death. It was the ardent desire of ministers to involve the whole body of presbyterians in his guilt; but in the prosecution of this object they incurred the just imputation of more detestable crimes. Horror and universal execration were excited by the treachery and almost unexampled perjuries of the first ministers in the church and in the state; and the precautions employed by Sharp for his safety and revenge, contributed two years after-my spirit. wards to his disastrous fate." 4 Laing, 80.

See the following Case.

239. Proceedings before the Lords of the Articles, &c. against CHARLES MAITLAND, of Halton, Treasurer Depute, for Perjury, in having given a false Testimony, at the Trial of JAMES MITCHEL: 33 CHARLES II. A. D. 1681.*

A PARLIAMENT being summoned and holden at Edinburgh the 28th day of July,

1681, by his Royal Highness, the king's Highday of. - William Noble, of Denotter, did deliver the following Petition, or accusation, into the hands

This case is inserted in this place, out of Commissioner, on the chronological order, on account of its connection with the preceding Article.

of the Lord Register, to be by his lordship presented to his Royal Highness, and the Lords of the Articles:

To his Royal Highness, his Majesty's HighCommissioner, and the Right Honourable the Lords of the Articles.

the Rebellion, and that he was excepted by name out of the act of indemnity, and so let him see his condition, and to be led to execu tion this was done very soon, and against hu next examination he confessed his being with the rebels, but denied this assassination of the archbishop, yet acknowledged his being in town at that time; and that the pistol he was taken with he had bought at that time; so it was moved by one, That the Chancellor migh take him apart, to see what he would thea say this being done, upon assurance of life, he fell upon his knees, and confessed it was he that shot the bishop of Orkney, and which he aimed at the archbishop; and here is his confession, the double of it signed by Lim, the Chancellor, and us. His punishment, it s thought, will be the loss of his right hand, and condemned to perpetual imprisonment in the

"It is humbly represented, "That, whereas the deceased Mr. James Mitchel being convened before the justices, for attempting to assassinate the late archbishop of St. Andrews, and his confession before the duke of Lauderdale, his majesty's commissioner for the time, and the Lords of the privy-council, being adduced in modum probationis, against him, the said Mr. James proponed this defence, that his confession was emitted upon promise and assurance of life made to him; for proving whereof, he did adduce Charles Maitland, Lord Theasurer-De-Bass. I think I told you before, that his grace had retrenched his allowance to ten pounds pute, as a witness, who deponed negative, notwithstanding that by letters under his hand, di- sterling a day, since the 20th; though ha rected to the late earl of Kincardin, he express- charge be little retrenched, for his table holds ly writes, That the said Mr. James had con- yet 24 persons. I hope, when matters are over, fessed upon assurance made to him of his life.' you will give us some account of his majesty's And that he now thought that his punish-pleasure about the Miners affairs, wherewith ye 'ment would be the loss of his right hand,' which perjury will be clearly proven by production of the said Letters and Deposition; for which is humbly craved, a warrant may be granted against the Havers for exhibition of the same, and that the Lord Theasurer-Depute may be declared infamous, and suffer the other pains appointed by law in such cases.

(Sic Subscribitur) "W. NOBLE." The Letters which the Petition refers to, and upon which the whole Accusation is founded, are these two that follow, both sent to my lord of Kincardin:

"Holyrood-house, Feb. 10, 1674. "This afternoon yours came, which should have come this morning, so that the post is now more regular. I read it all, and it is a full account of all passages: I hope shortly we may find matters grow better, and indeed there is great need of it here, for at present we are out of joint. Saturday last, in the morning, iuformation was given, That one Mr. James Mitchel, who was alledged to have shot at the archbishop of St. Andrewes, was disovered by

and sir William Sharp, and being seen to come down sir William's own close, by sir William, and two of his brother's footmen, he called to Mitchel, and carried him back to his house (the signet-office). He had a long iron pistol, and a short sword about him, in shoes and stockings; and though he was so armed, yet he did not resist, though none came up to him, but sir William alone, till he came up his stair. Being asked his name, he denied it, and varied in several others of his answers; and by warrant of the Chancellor, was committed close prisoner. This day he was examined by Order of Council, by the Chancellor, Register, Advocate, and me: the Commissioner had ordered us to charge him with his being in

know their friends have been sufficiently re proached, without any shadow of reason. "Ard so, my good Lord, Adieu.”

"Holyrood-House, 12 Feb. 1674.

"This day, Mr. Mitchel, who assassinate the Archbishop of St. Andrews, was again examined in face of the council, and said nothing but what he said to us of the committee: bes Indictments, and Sentence, to have his righ remitted to the justice court, to receive hand cut off at the cross of Edinburgh, aut the forfeiture of his whole goods and posterity, This last part is not to be put in execution: his majesty be acquainted, because assuranc of his life was given him upon his confession The cutting off his hand is to be executed by the hand of the hangman."

The Deposition which is pretended to b contradictory to what is delivered here in these will be found at p. 1256). two Letters, from whence perjury is inferred

This Petition being read, the Lord Treasure" Depute desired that he might have it deliveres to him in common form, and might have herty to put in his Answer to it; and becam further an humble and earnest suitor to ther lordships, that he might be put to a speec trial, whereby he might make his innocence appear to the parliament, and the whole wor which his royal highness, and the Lords of the Articles, were pleased to grant; not bec# 1 they found any thing in the accusation relevan against him, but that they might gratify lordship's earnest desire, of being put upon trial. Afterwards, William Noble was cale in, who owned his accusation, and did aga sign it in presence of bis royal highness, Lords of the Articles; and being asked by the president of parliament, the marquis of Ath