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493. The Trial* of ALEXANDER STEWART, for maintaining the Title of the Pretender: 1 GEORGE I. A. D. 1715. [Now first published from the Records of Justiciary at Edinburgh.]

CURIA JUSTICIARIA S. D. N. Regis, Tenta in realms, every such person or persons, shall prætorio burgi de Edinburgh, Decimo incurr the danger and penalty of Premunire, Octavo die Mensis Julij Millesimo Sep- mentioned in the statute of Premunire made tingentesimo decimo quinto Per Hono-in England in the 16th year of the reigne rabiles Viros, Adamum Cockburn de of Richard the second. Yet nevertheless, he Ormistoun Justiciarum Clericum, Do- the said Alexander Stuart, shaking off all fear minos Gilbertum Eliot de Minto, Ja- of God, and regaird to his majesties laws and cobum M'Kenzie de Roystoun et authority, and in contempt of his just and unGulielmum Calderwood de Polton, Ma- doubted right and title to the crown of these gistros Jacobum Hamilton de Pancait-realms, did on the 10th day of June 1715 land et Davidem Erskine de Dun Com-years, or one or other of the days of the said missionarios Justiciarij Dict. S. D. N. moneth, betwixt the hours of ten and twelve at Regis.

Curia legittime affirmata.

Intran'

Alexander Stewart, drover, in the Brae of Forth, now prisoner in the Tolbooth of Edinburgh.

night or thereby, a little above the weigh house of Edinburgh, on the high street thereof, going before a considerable number of people with his sword drawn in his hand, flourishing the same, did in a very insolent and insulting manner challenge those you mett with, saying, Whom are you for, and particularly William Aytoun one of the constables of the city of Edinburgh, asking him as above mentioned with his sword

you for king James, and adding I am for king James, whereupon he was presently apprehended, and the day thereafter upon a precognition of his said crime taken by the magis trates of Edinburgh, committed him to their prison. From which facts above ly belled, he is guilty actor art and part of the whole or one or other of the crimes above mentioned, which being found proven by the verdict of an assyse, before the lords justice general, justice clerk and commissioners of justiciary, he ought to be severely punished. And particularly in the terms of the said statute of Premunire, conform to the act above lybelled, to the example and terror of others to commit the like in time coming.-Sic Subscribitur, JA. STEWART. Informations ordered.

INDICTED and accused at the instance of sir David Dalrymple of Hailes, baronet, his ma-pointed at his breast, Whom are you for, are jesties advocate for his highnes interest, for the crime of asserting the Pretender's title in manner mentioned in his inditement raised against him thereanent; making mention, that where by the laws of this, and of all other well governed kingdoms, the denying and questioning his majesties just and undoubted right and title to the crown of these realms, and asserting the same to belong to any other, or owning and affirming the right of any other person to the title of king of these realms, and designing them as such, in prejudice and contempt of his majesties foresaid just right and title, and challenging and threatening his majesties dutifull and loyal subjects with hostile and invasive weapons, to deny and refuse his majesties said just right and title,, and their alledgance to him, and to own the right and title of king of these realms to belong to any other person, and to acknowledge alledgiance to him are crimes highly and severely punishable, more especially, whereas by an act of the parliament of Great Britain, made in the 6th year of the reign of her late majestie queen Anne, intituled, An Act for the security of her majestie's person and government, and of the succession to the crown of Britain in the Protestant line, it is amongst other things enacted, that if person or persons, shall maliciously and directly by preaching, teaching, and advysed speaking, declair, maintain, and affirm, that the pretended prince of Wales, who now styles himself king of Great Britain, or king of England, by the name of James the third, or king of Scotland by the name of James the eight, has any right or title to the crown of these

* See the preceding and following Cases.

July 19th, 1715.

INFORMATION for his Majesties Advocate

AGAINST

Alexander Stewart drover in the Brae of
Forth, now prisoner in the Tolbooth of
Edinburgh.

The said Alexander Stewart being indited and accused at the instance of his majesty's Advocat, for the denying and questioning his majesties just and undoubted title to the crown of these realms, and asserting the same to belong to the Pretender, who takes to himself the title of king James the 3d of England and Great-Britain, and of king James the eight of Scotland, and owning and affirming the right

* As to precognition see vol. 10, p. 782. + So the Record, see p. 793.

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of the said Pretender thereto. And particularly, upon the act made in the parliament of Great Britain in the 6th year of the reigne of her late majestie queen Anne, entituled An Act for the security of her majesties person and government, and of the succession to the crown of Britain in the Protestant line, as in the said inditement more fully contains.

It was offered in defence for the pannel, that in so far as the inditement was founded upon the said act of parliament, of the 6th of queen Anne, the lybel did not subsume in the terms thereof, in regaird that the words of the act are, that if any person shall maliciously and directly by preaching, teaching, or advysed speaking, declair, maintain and affirm, which words are to be taken jointly, yet the inditement does not lybel the fact contained therein, to be done maliciously and advysedly, nor can the words lybelled to be spoken by the pannel, be said to be a declining, maintaining, and affirming.

To which it was answered, that where any fact or words in themselves, and in the nature and propriety thereof, imply malice, the addition of that circumstance to a lybel, that the same was maliciously done, is altogether superfluous, and the words of the act can import no more, than a denying of his majesties right and title to the crown of these realms, or asserting the same to belong to another, with a designe to deny and assert as aforesaid, ffor therein consists the malice, and cannot be otherwise understood, than as a malicious reflection against the soveraigne, to say, that he has no right to govern, or that any other than he has a right to govern.

2do. As to the words declare, maintain and affirm,' the lybel is sufficiently relevant upon that head, seeing whosoever owns any other person than his present majestie, as king of these realms, does expressly declare, maintain and affirm, that that person has the sole right and title to the crown of these realms, and as expressly denys, that his present majestie has any right or title whatsoever, seeing the exercise of the regal power and right thereto cannot be separate.

It was furder alledged for the pannel, that the indictment did not proceed in the terms of the said act of parliament, the said act requiring, that no person should be prosecute for words spoken, unless information thereof were made upon oath, within three days after the words were emitted.

To which it was answered, that the inditement bears expressly that information was taken thereof by the magistrates of Edinburgh the very next day after the same happened, upon which the pannel was imprisoned, and this is sufficient to support the inditement in the terms of the said statute, seeing that the acts of parliament of Great Britain, are alwayes to be understood, to be fully execute, when observed in such manner as is consistent, and conform to our forms and manner of procedure in the like cases, and it being certain,

that no information at never so great distance of time, in matters criminal, is admitted against any person in England, except the same be given in upon oath, the foresaid clause of the act of parliament founded upon cannot be understood to extend furder, than the fixing a precise short time, within which information shall be exhibite against persons offending against the said act. Whereby its plain, that information being given within the said space, in the manner that our law prescribes, comes fully up to what is required by the said act. And it were absurd to think, that an information given in such manner as to be a sufficient ground for imprisoning the offender, shall not also be sufficient for founding a prosecution against him for his offence.

But further giving, but not granting, that the lybel were not relevantly founded upon the said act of parliament, yet still the fact as lybelled, is sufficiently relevant upon the general grounds of the laws of this, and all other well governed realms, to inferr an arbitrary punishment, and his majesties advocat thinks the inditement might stand sufficiently rele vant upon that foot, as well as the above cited act. In respect whereof, &c.

Sic Subscribitur, JA. STEWART.

INFORMATION for Alexander Stewart
AGAINST

His Majesties Advocate.

The said Alexander Stewart is conveened in a criminal process before the Lords of Justiciary, at the instance of his majesties advocate lybelling on the act of parliament of Great Britain, Sexto Reginæ Annæ, entituled An Act for the security of her majesties person and government, &c. Which provided, that whoever maliciously and directly shall maintain and affirm, that he who now styles himself king of England, by the name of James the third, or king of Scotland by the name of James the eight, hath any right or title to the crown, shall incurr the penalty of Præmunire.

Against the relevancy of this inditement as founded upon the act of parliament, it was alledged for the pannel, that the lybel does not subsume in the terms thereof, that the pannell did maliciously and directly affirm, and by advysed speaking, did declare mantain and affirm, any person's right to the crown, but only made use of the words king James, which could not be called a malicious declairing the Pretender's right.

It was answered, That the words lybelled in their own nature and propriety, imply malice, and therefore, it was altogether superfluous to lybel that they were; and that the words of the act, can import no more than denying his majesties right and title to the crown, or asserting the same to belong to another.

2. The words 'declare, maintain and affirm,' need not expressly be contained in the lybel, seeing whoever owns any other person's right

as king of these realms, except his present majesties, he does sufficiently declaire, maintain and affirm, that that person has the solemn right.

This the Lords would readily perceive, is using a greater freedome with the act, than it will permitt. The statute introduces a new crime, and the legislator being sensible that it might be the foundation of several prosecutions, to prevent vexatious and troublesome pursuits for every light or mistaken expression, does upon this account fence the act with several expressions which seem absolutely necessary to found a crime upon it, so that these words are not idle and of no signification, but in order to found the crime mentioned in that act, it is necessary that it should bear, that the pannel used words that maliciously and directly mantain and affirm a right to the crown in opposition to his majestie, which the using of the words king James does not import.

For if the legislator had meaned any such thing, it had been easy where the statute mentions the pretended Prince of Wales, who now styles himself king of England, by the name of James the Sd, to have expressly made the using the words of king James the 3d, or king James the 8th criminal, but the statute means no such thing when it requires, that it shall be maintained, that the persons who designs himself so hath a right and title, and therefore the defence stands relevant.

It was furder offered for the pannel, that the lybel does not bear an information to have been given to a justice of peace, within three days after such words had been spoken, which the act necessarily requires.

To this it was answered, that the lybel bears a precognition to have been taken by the magistrates of Edinburgh, the day after the words were spoke, which is sufficient, and the acts of Great Britain are fully satisfied, when observed in such a manner, as is consistent with our forms and manner of procedure.

according to the different constitutions of men, to work upon the mind by dulling it, and mak ing it less fit for any reasonable thinking, or by making it too light and airy, apt to rediculous mirth, which shows itself either by appish gestures or more foolish rapsodes of the tongue; and this it is, which makes lawiers consider persons in drink, under the same class with such as are furious; and therefore demanding the same degree of compassion and pity. This Gigas in his treatise, de Crimine legæ Majestatis, says, "Ebrietas mentis exilium inducit, Et ubi est ebrietas, ubi est furor." And therefore brings drunkards under the sanction of the law; 14 sec. "De officio præsidis quod satis furori ipso puniantur." This ground of exculpation the pannel hops will be sustained by their lordships, especially since drunken expressions are but like the dreams of children without designe and of no import, and ever attended with folly, but never with malice or dole, which is the substance of all crimes. And Clarus paragrapho finali quæst. 60 num. 11, cites the example of Pisistratus one of the famous tyrants of Athens, who when his curtions instigate him to cause kill a drunken man for powering reproches upon him, on account of his

cruelty, answered, "non magis sed illi

quæm si quis obligatis occulis in se occurrisset." The tongue is an unruly member [See p. 765] at any time, but it were out of measure hard to make every idle thoughtless word a crime.

The lybel only concluding upon the act sexto Reginæ, there needs no notice to be taken off any thing else contained in the inditement. In respect whereof, &c.

Sic Subscribitur,

GEO. MACKENZIE.

July 21, 1715. of Justiciary, having considered the lybel at the The Lords Justice Clerk and Commissioners instance of his majesties Advocate for his highnes's interest, against the said Alexander StewBut this is still to turn the act into whatever art pannel, with the foregoing debate there shape the pursuer pleases, the words of the upon; they find the lybel as founded on the act of the 6th year of queen Anne, intituled An statute are express and universal binding in pursuits of this sort, and the law is not to be Act for security of her majesties person and satisfied in any other manner than what is pre-of Great Britain in the Protestant line, not rele government, and of the succession to the crown scribed, and therefore a precognition is not suf-vant to inferr the pain of Præmunire mentioned ficient, and it is certain, that criminal statutes in the said act, in respect the lybel does not nether ought nor can be justly extended. And bear the information to be taken on oath in the the reason why an information is required, terms of the said act, but finds the pannel at seems to be that the pannel in case of his being the tyme and place lybelled, his having a found innocent, may have access against the drawn sword in his hand, and challenging perinformer for the damnage and expence of his unjust prosecution, and therefore seeing the they were for, and declairing himself to be for sons with whom he mett, to declare for whom lybel bears no information to have been given, king James, relevant to inferr an arbitrary pu the defence upon this part of the act of parlia-nishment, and repell the defences proponed

ment seems well founded.

It was likewise urged for the pannel, that at the time lybelled he was seized with drink, which seems sufficient to exculpate any foolish expressions he might have been guilty of. It is certain there is no excess a man can committ that brings such a damp upon the understanding, as that of drinking, which never faills,

and remitt the pannel and lybel as found releagainst that part of the lybel found relevant, vant to the knowledge of an assyse.

Sic Subscribitur, AD. COCKBURNE, I. P. D.

Assyse.
John Chrystie, indweller in Edinburgh.
Henry Burd, weaver there.

The Lords ordain the assyse presently to inclose, and to return their verdict to-morrow at twelve a clock, and the haill fifteen to be present, each under the pain of 100 merks, and ordain the pannel to be carried back to prison. July 26th, 1715.

George Thorburn, impolsterer there.
Robert Brown, wig-maker there.
John Baillie, brewer there.
James Beatson, wright there.
John Clark, glazier there.
William Reoch, wright there.
David Ramsay, merchant there.
Charles Bruce, glazier there.
Hugh Pringle, wig-maker there.
John Thomson, masson there.
Andrew Tarrence, wright there.
Robert Denholm, wright there.
John Hutton, weaver there.

The above assyse having inclosed, and no objection of the law in the contrair.

His Majesties Advocat, Depute and Solicitor for probation, adduced the witnesses after deponing, viz.

John Grant, merchant in Edinburgh, aged 55 years or thereby, married, solemnly sworn, purged of malice, prejudice and partial council, examined upon the lybel and interrogate, depons, That he did see the pannel the time and place lybelled, with a drawn sword in his hand, flourishing it towards William Ayton's breast, and heard him repeat several times these words, Whom are you for? but does not remember the words that William Ayton answered, but heard the pannel reply, I am for king James. Causa scientia, he was standing at the pannels back at the time, and heard and saw as he has deponed, and this is the truth as he shall answer to God.

Sic Subscribitur,

JOHN GRANT. AD. COCKBURNE.

William Ayton, merchant in Edinburgh, aged fourty years or thereby, married, solemoly sworn, purged of malice, prejudice and partial council, examined and interrogate, depons, That upon the 10th of June last about eleven a clock at night, the deponent saw Alexander Stewart the pannel with a drawn sword in his hand upon the street before the coach-houses, toward the Castle-hill, with a company of other persons behind him, and the pannel pointed his sword several times towards the deponent saying, Are you for him? Are you for him? but does not remember what answer the pannel gave himself when the deponent asked, whom should he be for. Causa scientia patet, and this is the truth as he should answer to God.

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Intran'

Alexander Stewart, prisoner in the Tolbooth of Edinburgh.

The said day, the persons who past upon the assyse of the said pannel, returned their verdict in presence of the said lords, whereof the tenor follows:

EDINBURGH, 25th July 1715.

choyse of Robert Denholme, wright, to be their The above assyse having inclosed, made chancelior, and John Baillie, brewer, to be their clerk, and having considered the lybel at the instance of his majesties Advocate for his highnel, the Lords Justice Clerk and Commisnesses interest, against Alexander Stewart pansioners of Justiciary, their interloquitor thereupon, and depositions of the witnesses adduced for proving thereof, all in one voice finds Proven, about the tyme lybelled, that the pannel had a drawn sword in his hand flourishing towards William Ayton's breast, and finds it not proven, that he named king James. In witness whereof thir presents are subscribed by our said chancellor and clerk in our names place and date foresaid.

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494. The Trial of JAMES GEDDES and JOHN CRAWFOORD (Servants of Lord Southesk,†) for drinking the Health of the Pretender, and cursing the King: 1 GEORGE I. A. D. 1715. [Now first published from the Records of Justiciary at Edinburgh.]

CURIA JUSTICIARIA, S. D. N. Regis, tenta in Pretorio Burgi de Edinburgh, vigesimo quinto die mensis Julij millesimo septingentesimo decimo quinto, Per honorabiles viros, Adamum Cockburn de Ormistoun, Justiciarium Clericum Dominos Gilbertum Eliot de Minto, Jacobum Mackenzie de Roystoun et Gulielmum Calderwood de Polton, et Magistros Jacobum Hamilton de Pancaitland et Davidem Erskine de Dun Commissionarios Justiciarij Dict. S. D. N. Regis.

Curia legittime affirmata.

and insulting manner in the face of the sun, in publick places of towns, and at the time of publick meetings of the people, from the neighbourhood, in manifest contempt and defyance of his majesties laws and authority, to the scandal and reproach of all civil government and Christian society. Yet nevertheless, the said James Geddes and John Crawfoord, servants to the earl of Southesque, were guilty actors art and part of the haill or one or other of the crimes above mentioned. In so far as, the said John Crawfoord and James Geddes, did upon the tenth or one or other of the dayes of June 1715 years, in the afternoon, come to the THE sai E said day anent the criminal letters raised town of Breechine, where many people from at the instance of sir David Dalrymple of different places were gathered together, apon Hailes, baronet, his majesties Advocat for his occasion of the Trinity fair holden there the majesties interest, against James Geddes and said day, and having called for wine out of the John Crawfoord servants to the earl of South-house of John Knox vintner there to his clos esque-makeing mention, That where, by the head in the public street of the said town, there laws of this, and all other well governed realms, and then in the view and hearing of many pesthe uttering of speeches tending to excite sedi-ple, the said James Geddes and John Crawtion and alienat the affection of his majesties foord did drink the Pretender's health, under person and government, by questioning or de- the title of king James the eight, and that with nying his majesties just and undoubted right a loud and audible voice, thereby setting up and title to the crown of these realms, or by and asserting the said Pretender's right and setting up or asserting the right of any other title to the crown of these realms, in manifest person thereto, are crimes of a high nature and opposition to, and denyal of his majesties just severely punishable. As also, that by the law and undoubted title thereto. As also, the said of God, the laws of this, and all other well go- James Geddes and John Crawfoord, or either verned nations, the cursing of his majestie, and of them, did imprecate many curses upon bis imprecating evils upon him, the cursing and majestie king George, the Presbiterians, and all imprecating evils upon any of his subjects, and the friends and adherents to his majesties just threatening evils to them, for their just and right and title, frequently imprecating, that jutiful owning of, and adhering to his un- God might damn his majestie, and the devil doubted right and title to the crown of these might burn him, and they or either of them realms. As also, the importuning and pressing prayed, that many evils might befal themany of his majesties leidges, to pertake of the selves, if they or any of them, would not make said crimes above mentioned, and violently and collops of the Presbiterians and all his majesties cruelly beating, cutting and wounding any friends and adherents, and make branders of person, when in an dutiful and inoffensive man- their ribs to rost their soulls on in bell, and ner admonishing and diswading from the com- would ripe them up, and use them as the do mission of the crimes above mentioned, are the swine, and many other such malicious excrimes of a high nature, tending to the dis- pressions, attended with horrid oaths curses and quiet and dishonour of all civil and well esta- threatenings. As also they or either of them blished government, and severely punishable urged and pressed severals to drink the especially when committed in an open insolent foresaid Pretender's health, under the title of king James the eight, publickly boasting, that they would go and drink the said Pretender's health under the title of king James the eight, at the Cross of the said burgh, though they should be hanged for it; and accordingly the said James Geddes and Joha Crawfoord, did go to the Cross of Breechine, takeing several bottles of wine with them, and there publickly and before many spectators, did again renew the drinking of the said Pre

* See the three preceding Cases.

†The earl of Southesk took a part in the rebellion of 1715, for which he was attainted. He escaped to France, and died there in 1729. Bishop Burnet (Own Times, vol. 1, p. 319, 8vo ed. of 1809) relates a curious anecdote concerning king James 2, when duke of York, and an earl of Southesk, who I believe was grandfather of the lord mentioned in the text.

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