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1684.

"3. That this law may be made practica- In the entry of this year new ble by imprisonment of wives. To which commissions are granted to the folit is answered, that neither has the law ap-lowing persons. This method saved them the charges and solemnity of a circuit, and did their business as effectually and more arbitrarily. January 3d commission is granted as follows. "Charles R. To all our loving subjects: forasmuch as we being informed, that divers desperate rebels do haunt and frequent about Glasgow, Dumfries, and other places in the shire of Lanark, and other western shires, some whereof are apprehended and imprisoned for being in the late rebellion, who treasonably justify the same, or deny and disown our author

pointed imprisonment, and if we must recur to inferences and consequences, the one is as reasonable as the other: but it is impossible to make the act practicable by imprisonment, for offenders know we cannot imprison so many as may be guilty; but fines is a present punishment, and so terrible, the one makes the husband active to persuade the wife, but the other does not; and if a fine once become a debt by a sentence, no woman can be imprisoned for debt during marriage.

“4. This may be dangerous to loyal hus-ity and sovereignty: and we finding it

necessary for our service, that justice be done upon the place upon such desperate and malicious rebels, which may be more expeditely done, and of greater example, we, with advice of our privy council, hereby give and grant full power and authority, and express commission to the present provost of Glasgow, the bailie of the regality there, the sheriff-depute of Lanark, Sir James Turner and lieutenant-colonel

bands. To which it is answered, that the case by experience is known to occur seldom: for before this way of execution there were many offenders; yet it is now known there are very few honest men in those circumstances, and if they be, they are in the mercy of a king, who is compassionate even to rebels, and his majesty may empower his council as to this."

The occasion of this letter was a petition from Sir William Scot of Harden, who, we heard, was most exorbitantly fined last year, and continued in prison for his lady's irregularities. It would seem, the bulk of the council were not for insisting on the fine as to him. This will come in afterwards on his sufferings, and yet the matter was put over upon the king, and this letter and reasons appointed to be sent him, and the lords of the clergy, such counsellors as are lawyers, and duke Hamilton were appointed to draw them. An answer from the king comes down, February 12th bearing, "that his majesty approves husbands being fined for their wives, but authorizes the council to dispense with the fines on loyal husbands, who do not connive at their obstinate wives' ways, and are willing to deliver them prisoners."*

The following plain statements by bishop Burnet confirm and illustrate the account given of this matter by our historian. "The churches were now all well kept by the Inen: but their wives not being named in the act of parliament, none of them went to church. The matter was laid before the council: and a debate arose upon it; whether, man and wife making one person in law, husbands should not be fined for their wives' offences, as well as for

their own. Lord Aberdeen stood upon this, that the act did not mention the wives: it did

:

indeed make the husbands liable to a fine, if their wives went to conventicles; for they had it in their power to restrain them and since the law provided in the one case, that the husband should suffer for his wife's fault, but had made no provision in the other case, as to their going to church, he thought the fining them on that account could not be legally done. Lord Queensberry was for every thing that would bring money into the treasury; so since, in those parts, the ladies had for many years withdrawn wholly from the churches, he reckoned the setting fines on their husbands to the rigour would make all selling them outright would not have answered the estates of the country be at mercy; for the this demand for the offences of so many years. The earl of Perth struck in with this, and seemed to set it up for a maxim, that the pres. byterians could not be governed, but with the extremity of rigour; and that they were irreconcileable enemies to the king and the duke, and that therefore they ought to be extirpated. The ministry in Scotland being thus divided, they referred the decision of the point to the king and lord Perth came up to have his resolution upon it. The king determined against the ladies; which was thought very indecent: for in dubious cases the nobleness of a prince's temper should always turn him to the merciful side. This was the less expected from the king, who had all his life time expressed as great a neglect of women's consciences, as esteem for their persons."-Hist. of His Own Time, vol. ii. pp. 994. 995. 12mo. edit. London 1725. — Ed.

1684.

Windram, or any three of them, as our judges in that part, for judging the persons guilty of the said crimes, who are or shall be apprehended, in the shires of Lanark or Dumbarton or jurisdictions within the same, they not being heritors. And to James Alexander sheriff-depute of Dumfries, the eldest bailie for the time there, James Johnston of Westeraw stewart-depute of Annandale, Thomas Lidderdale of Isle stewart-depute of Kirkcudbright, David Graham brother to Claverhouse, Bruce of Abbotshall, captain Strachan, William Graham cornet to Claverhouse, or any three of them, for trying and judging such persons in Dumfries, Kirkcudbright, Wigton, and Annandale. With power to meet when and where they please, to hold courts, create members, call before them the persons foresaid not being heritors, and put them to the trial of an assize, and pass sentence, and see justice done accordingly, conform to law, and this commission to continue till recalled, recommending to the advocate and the clerk of the justice-court, to send fit and qualified persons to serve as deputes for them, before our said justices, promitten. to hold firm and stable.

"D. Falconer,
Jam. Fowlis,
Suothesk,
Livingstone,
Jo. Edinburgh,
Douglas,

February 19th I find another commission granted in the very same terms, and with the same powers, only Renfrew and Ayrshire are included, to the Lord Ross, the provost of Glasgow, Sir William Fleming of Ferm, lieutenant-colonel Windram, lieutenant-colonel Buchan, Sir James Turner, Somerwell of Spittle, and William Stirling bailie of the regality of Glasgow, or any five of them.

Several persons were condemned, by virtue of this commission, at Glasgow, in March, and I scarce think they would spare all who came before them at Dumfries, the commissioners being a set of the most violent persecutors of that time, yet I have no accounts of their procedure. The account of those executed at Glasgow, I shall delay till the third section, where the public executions will come in.

Montrose, Linlithgow, Aberdeen Cancel. Queensberry, Athole."

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Meanwhile I find those commissioners corresponding with the council, and receiving directions from them. February 28th The lords of his majesty's privy council, having considered a letter from the commissioners of justiciary at Glasgow, containing some doubts and queries as to their procedure against the persons indicted before them, in the cases where pannels are silent, or make no direct answers, such who, albeit guilty, yet offer to take the test. In those the lords allow them to de lay procedure against them, and administer the test to such as desire it, and to acquaint the council with their particular causes and repentance, that they may give particular directions therein. And the lords expect, where probation is clear as to any who were actually in the rebellion, and assert treasonable principles, that they will proceed against such, and cause justice be done according to their commission.' The same orders are repeated to the justices at Dumfries, with this alteration, that when the pannels refuse to answer, and there is no probation, the justices send them into Edinburgh. And upon another case, which offered as to persons without the bounds specified in their commission, April 22d the council declare, 'That their commissioners for judging rebels in the several shires, ought to proceed against rebels without the bounds of their commission, wherever they formerly lived, or were apprehended, as against those within the same shire, they being brought to them, and to proceed in all respects, as if this had been a clause of their commission.' This is all I meet with as to these justiciary commissions. They are plain instances of the bloodiness of this time. There had been very lately circuits, the justice court was sitting at Edinburgh, and this year we shall meet with new circuits: yet to awe the poor country, and to despatch the people they had apprehended in their searches, and were daily catching, this power is granted, and was exercised with much severity. Perhaps it might be to prepare matters for this country justiciary, that the laird of Meldrum, January 14th, gets commission to make trial for rebels in Lanarkshire. The reason given is, the council

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was informed of some disorders and insolencies committed in Carstairs and Lesmahago, by stabbing some dragoons' horses, and taking away some goods and corns belonging to rebels.

It seems, all their diligence for recovering the fines got into the hands of undermagistrates, and the uplifting of what was not paid, had little effect through the country. And therefore a new commission to colonel Thomas Buchan, is granted by the council, to uplift those fines in the shire of Ayr, much in the same terms of some granted last year. That same day, April last, the council make another act, which was the occasion of further sore oppression of the country. The lords of council being informed, that since the justice court (the circuits I suppose are meant) divers of these rebels denounced for not appearing before the justices, have been harboured, reset, entertained by several disaffected persons in the western shires, to the great encouragement of them to persist in those rebellious courses, give orders to the sheriffs and other deputes, and the ordinary magistrates and officers of the army, to inform themselves of the persons guilty of the reset of rebels, and to lead probation for proving thereof before themselves, and where they find the same proven, to search for and apprehend the persons guilty of the reset of rebels, and imprison them till they be brought to justice; recommending to the commissioners of the justiciary in the several shires, to do justice upon some of those, not being heritors, most guilty, and the heritors to be tried and judged by the justice court; and recommend it to the lord treasurer and treasurer-depute, to commissionate some fit persons in the country, to sequestrate, secure, sell, and dispose upon the goods and moveables of these resetters, whether heritors or not, after they shall be found guilty as aforesaid, and have subscribed lists of their names from those who shall adduce probation against them, to be made forthcoming for his majesty's

use.

It hath been frequently observed, that nonconformity, reset, and converse are at this time the two great pretexts made use of for persecution, the most part of such

1684.

who were actually in the risings being
either cut off, or out of the country;
and we see how carefully the managers prose-
cute both. This last, of reset and converse,
was what the whole country were one way
or other engaged in, since people concerned
in the risings were overlooked for two or
three years, and frequented fairs and markets,
and all other public meetings, undisturbed.
And now by this act, the leading probation
against, and trial of such persons, is com-
mitted to the officers of the army, with
power to search for, apprehend, and im-
prison persons guilty. Thus the execution
of the laws and justice is committed to the
army, the consequences of which need not
be insisted upon. We shall have a view of
them in the general hints of persecution
this year, to be cast together in the last
section. I only remark as to the persecu-
tion for nonconformity, it turned more ex-
tensive, by the turning out of the indulged
ministers, which was almost completed
this year, and so the persecutors had new
matter to work on, in many parishes for-
merly not open to them.

Another thing the council are taken up with, is the banishment and transportation of a great many of the meaner sort, and some others to the plantations. Indeed, by the methods we have heard of, the prisons were overstocked, and there was not room for these they were daily apprehending : therefore, in a letter to the king, April 11th, they humbly offer to his majesty's consideration, whether it be not fit to empower his council to send abroad such of the rebels as appear penitent, though they take not the test, because the prisons are full, and ships are going to the plantations, and they have reason to believe, that if this be granted, it will encourage other planters to free the nation of such persons. To this request comes an answer, dated April 24th, Wherein the king declares it is his pleasure, that such of the rebels as are found penitent, be sent to the plantations, though they have not taken the test, within the time prescribed by act of parliament. In pursuance of this, May 5th they write to the commissioners, appointed anent disorders in several shires, for accounts of the condition of the prisoners, men or women,

ly withdrew from the iniquity of this time And, if I mistake not, the excellent and truly noble lord Cardross left his native country at the same time.

Captain James Gibson commanded the vessel, and is represented to have been very rude to the poor prisoners, who were about thirty-two. And his seamen and underofficers, were yet harsher. Any small money their friends had scraped together for them before they sailed, was taken from them, and they could have no redress. They were disturbed when at worship under deck, and threatened, and whenever they began to sing psalms, the hatches were closed upon them. They had their water given them in very scanty measure: one man was allowed only a mutchkin in twenty-four hours. And when there happened to be a mutchkin or less over, it was carefully distributed among them all, or they would parcel it out by spoonfuls to such as were most necessitous. All this was really from ill nature, for there was no strait. When they came ashore in Carolina, they had fourteen hogsheads of water to cast out, besides a good number of hogsheads of beer remaining. At the beginning of their voyage, every eight of them had a Scots pint of pottage allowed them, and a little beer: their other food was salt beef, with a few pease, three or four years old, sodden in salt water; this they had literally by weight, two ounces and a half to every two of them, with a biscuit which was old enough. Their bread was indeed so ill, that they could not eat it, but bartered it with the seamen for the rainwater they gathered. The sick were miserably treated, and had no other thing allowed them but what the rest had. Sorne of the prisoners who were sick, desired to be put ashore at Bermudas, offering all security to captain Gibson, if they recovered, I find them lying in Greenock road, ready to come to Carolina. At first the captain to sail towards the beginning of July. There promised, but, when he found so many sick, is before me a particular account of the altered his mind. The very ship's crew hardships they met with in their passage, were like to mutiny for want of water, and of which I shall insert an abstract, if once John Alexander died of thirst, as was 1 had noticed, that it was in this same ship, thought. When they landed in Carolina, I suppose, the Reverend Mr William Dun- all the prisoners almost were sick; they lop, formerly mentioned, whom I can never were taken out, and put into houses under name without the greatest regard to his a guard: some cloth and other things given memory, transported himself, and voluntari- by their friends in Scotland, to be sold at

Syme, Hugh Syme, William Syme, 1684. John Alexander, John Marshal, Matthew Machen, John Paton, John Gibson, John Young, Arthur Cunningham, George Smith, and John Dowart. Two of them, John Buchanan and Arthur Cunningham, add to their names a confession, that they had fainted in giving consent to their own banishment. The matter stood thus, as far as I can gather it from the accounts before me. Most part of them had been picked up at searches and otherwise, in Glasgow, Eastwood, Eaglesham, and other places round about, and had continued in prison some months. Walter Gibson and his brother were sending off a ship to Carolina, and had come to some of them, asking if they were willing to go with them to the plantations; promising if so be they would go with them, they would make interest and get their lives spared, and if not, they assured them they would be publicly executed. Some of them yielded to this, but afterwards when it was represented by some as an owning of guilt, and having a share in their own banishment, they acknowledge it as a step of fainting: So hardly put to it were these honest good people upon all hands. John Dick, in the forementioned letter, very modestly vindicates this step, and observes that their sentence had no relation to this dealing with Gibson, neither was it at all judicially considered. Those persons, with some others, after sentence, were given to the Gibsons, and this year were transported to Carolina. I have letters written by several of them, and their particular testimonies, with some of their examinations; but they all running upon the ordinary topics at this time, the king's supremacy, popery and prelacy, &c. I do not swell this work with them.

the best advantage, and distributed among them in Carolina, was otherwise disposed of, and they had none of it. John Dick, formerly mentioned, having paid his freight to thirty shillings, though he offered his bond for it, and a comrade of his offered to serve in his room, till that remainder of his freight was paid, yet the captain would in nowise yield to it, but forced him up the country with him as his servant, where he died. His case differed from the rest of the prisoners, because of the contract he had entered into with the captain, but no faith was kept to him. Two of the prisoners, John Smith and John Paton, offering to make their escape, were discovered, and most barbarously used, being beaten eight times every day, and condemned to perpetual servitude.

1684.

to the prisoners, and means were
essaying to procure their escape,
though he had given bond to the coun-
cil of Scotland for two and thirty of them
at a thousand merks per piece. The gov-
ernor told him, that could not be, since, as
he was informed, she was taken after she
made her escape. To this he answered
nothing, but that he had an order from
lieutenant-colonel Windram to keep her,
for she was such a rebel as ought not to be
permitted to stay in the nation. The gov-
ernor desired him to produce this order, the
other answered he had it only by word of
mouth. Whereupon the court ordered her
liberation, and allowed her the following
extract. At a council held at Charleston,
October 17th, 1684. "Upon the reading of
the petition of Elizabeth Linning, against
captain James Gibson, commander of the
Carolina merchant, in a full council, it was
ordered as follows. Whereas upon the
confession of Captain Gibson, that the
within written Elizabeth Linning, was,
without the consent of the said Elizabeth,
brought to this province by force, and by a
pretended order from lieutenant-colonel
John Windram, but the said Gibson produc-
ing none, it is ordered that the said Eliza-
beth be set at liberty as a free woman."

My account of banishments this year, shall be ended with an instance of severity great enough. When these prisoners were lying ready to sail from Clyde, Elizabeth Linning, yet alive, attesting this account, came down to visit the prisoners, some of them being her relations; when she came aboard, captain Gibson ordered her to be kept and taken with them, though he had nothing to charge her with: she perceiving this, took an opportunity, when those who were watching her were asleep, to get ashore. She was soon missed, and the captain ordered most of the crew ashore in search of her; they found her and brought her back, and carried her to Carolina with them. After they arrived there, and the prisoners were set ashore, she fell indisposed. One day she heard the captain say, when he did not know she was within hearing, "Since she is sickly, let her go a-return to the proceedings of council at Edshore, but see that she come aboard every night till we get her sold." Upon this she took the first opportunity to get ashore, and went straight to the governor, and acquainted him how she was forced to that place, and what she had heard. The governor was very civil, and caused cite the captain to the next court-day, where he ap-are in town, are appointed to meet in the pearing was interrogate, if he brought the intervals of council, and empowered to do girl from Scotland without sentence, or her every thing they shall find necessary for his own consent; the captain owned he had, majesty's service, the exigence of the govand trumped up a story, which she utterly ernment, and peace of the country, and rerefused, that she had come with letters ceive accounts from magistrates of burghs

In short, most part of the prisoners died in Carolina, and scarce half a dozen of them ever returned to their native land; and a great many years after, their commander, with the ship he was in, perished in the American seas, after a most unfortunate voyage. Many others were banished this and the following year, of whom I shall be scarce able to give any account: but I now

inburgh.

Toward the end of April, in the vacation of the session, a good many of the managers were in the country, and yet they were not willing any sist should be in the per ecution, therefore the following order is made, April 22d. "The counsellors who

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