Edinburgh the Tuenty fourth day of February J^aj vij^c and four years

A1704/2/57

A1704/2/57¹

Decreet

Decreit The Duke of Queensberry and the Marques of Annandale Againest David Baillie brother to Mannerhall

Anent The Lyble or Letters of Complaint Raised and persewed befoir the Lords of Her Majesties privy Councill at the Instance of Her Majesties Right trusty and Inteirly beloved Cousins and Councellors James Duke of Queensberry and principall secretarie of state to Her Majestie And William Marques of Annandale and president of Her Majesties privy Councill And Sir James Steuart Her Majesties advocat for Her highness intrest Mentioning That where By the Lawes of this and all other well governed Realms The Inventin makeing and uttering by writ or otherwayes of Lies and slanders to the Chairging defaming of any persone and Especially of persones of the highest quality and greatest truste and offices in the Kingdome and in matters of the highest Importance not only touching their honours lives and fortounes But tending to misrepresent them to and raise and Endanger discord betuixt Her Majestie and the persewars as also to raise Jealousies and discords and to occasione most dangerous and pernicious contentions betuixt the persewars and the oether peers of the most eminent quality within the Kingdome Are cimes of ane high nature and ought to be sevearly punished Lykeas By the Acts of parliament followeing It is statute and ordained in manner aftermentioned viz By the act James 1 parliament 2d Caput 43. That all leising makers and tellers of them which may End anger discord betuixt the King and his people shall be challenged by them that power hes and tyne lyfe and goods to the King and By the act James 5th parliament 6th Caput 83 The forsaid act is Ratified and approven and ordained to be put in Executione in all poynts As also the same is againe Ratefied by seaverall subsequent acts of parliament such as James 6th parliament 14th Caput 205, and James 6th parliament 20th Caput 9th and Lastly That by the Lawes boeth of this and all other Realms to Informe againest or slander or accuse persones as abominable suborners and solicitors of others to accuse or bear witnes againest persones of the highest and best quality of the most wicked and horrible crimes of Treason and Lese Majestie, againest Her Majestie and Her Kingdome is a scandle and wicked Crime of the Highest nature and ought to be most sevearly punished Nevertheless, It is of verity That David Baillie brother to Captain Robert Baillie of Mainerhall and now prisoner in the Tolbuith of Edinburgh shakeing of all regaird to truth, Honour, and Honestie and to Her Majesties Lawes and authority and with amost pernicious and wicked designe (as the matter It self declaires) to Engender discord betuixt Her Majestie and Her best subjects as also to raise contentiones, and Inflame, and Incense them one againest the other By most abominable Lies and slanders Did upon ane or other of the dayes of December 1703 and more pairticularly upon the Tuenty second day of the said moneth Take upon hand to wrytt a most false, scandalous, and abominable Information by way of Missive Letter Directed to His Grace the Duke of Hamiltoun Wherin takeing his ryse from the noyse he heard of a plote He affirmes That dureing the last session of parliament The Duke of Queensberry then Her Majesties Commissioner sent for the defender and after great profession of Kyndness alleadged he had it from Good hands That there were designes in Scotland, England, and Ireland, to subvert the Government and restore the Prince of Wales of which he said the said David was not Ignorant and therfore the Duke intreated him for boeth their sakes and for preservation of Her Majesties person and Government to let him know the whole matter upon which demand The said David sayes He Declaired his Innocence and Ignorance But the said Duke still insisting and the said David withdrawing The Duke againe sent for him and questioned him about Three Letters Which when the said David still disouned as Ignorant of them The Duke said Then yow doe not know, Duke Hamiltoune, My Lord Atholl, nor the Chancellor, and never soe much as heard of My Lord Drummond, Belhavine, nor my Lord Tarbat, Blantyre, adding that through the said David would say nothing yet he knew very weell who were pensioners to France, and who not, and that my Lord Atholl, and the Chancellor are among the first of them, now though they have not been soe long as the Duke of Hamilton, Marshall, and Belhaven, for the Duke of Queensberry said he knew the Duke of Hamilton had been soe these many years But the said David goes one affirming that he knew nothing of all informed But belived that the foirnamed persones were the Best of men att which the said David sayes The Duke of Queensberry Cryed out mightylie and told many wicked things of the Duke of Hamilton which the said David sayes that he designes to publish with the whole conferrance to make knowen the Duke of Queensberries practices to gain him to make most horrid lies and most dangerous for David says he offered him great preferments and money what he pleased if he would but tell the Queen what the Duke of Queensberry would tell him That is if the said David would goe to the Queen and tell Her Majestie That Duke Hamiltoune, Athole The Chancellor and the other Lords abovenamed were actually pensioners to France and that they had a publict Bank and manadgers to buy up armes and other stores for warr Then he the said Duke would boeth promise and performe and if David would undertake, would let him see a list of all he would have brought into the plote And the Duke said He would swear never to let any persone know but that it was a reall plote and that David had made the first discoverie and soe he would send him to the Queen provyded that David would say after him and swear to it To which David sayes He answered that the advice was good where there was a plote But to a person to swear to a lie to Queen upon persones altogither Innocent He could not think of But with trimbling and detestation and this David sayes He thought fitt to advyse the Duke of Hamilton of But that it seemed That the Duke of Queensberry haveing failled in his attempt Employed the Marques of Annandale on the same designe who he sayes to doe him justice used him after another manner for having got him into his Clutches the very day befoir the Marques went to London would not pairt with him as David said till he went to London with To lett the Queen know how weell she was served by the Duke of Atholl who (said the Marques) he knew had been att the said Davids Chamber with Duke Hamiltoun in Womans cloaths and that all abovenamed came there and the Lord Drummond, Jerviswood and seaverall others to the number of Eighteen and that they treated to bring home the prince of Wales and all that was necessary for that Enterpryse To which when David answered That there was noe such meetting The Marques said They would understand one another better when on English ground for he thought it was unnecessary to tell David that he most not only say but swear the said meeting which If David did, it might be in his power to make himself for ever and to be ane officer off state befoir he left London againe But when the said David refuised to swear and said it was imposible to bring himself to such a thing The Marques he sayes flew out in a passion and suear he would be revenged and when that did not prevaill David sayes the Marques fell a Coxing him again But David pairting said he was his humble servant which he sayes he had been never to have laid open this horrible villanie Though noething sayes David could be more provocking then to be sent for by people he had never any converse with nor obligation to or Dependance upon and to be flattered with great rewards to become a villan and the most perjured of all Liars But threatned to distruction iff he retained his Integritie and Loyaltie But since adds David Let these men pretend what they will noething can be mor disloyall then thus to abuse the Queen and Endanger the best of subjects that would abyde by hre when such as the persewars would desert boeth Queen and Countrie Then David adds That it was the noyse of a plot that made him break his patience and sillance and that now he is ready to die with the apprehensiones of the danger that the Duke of Athole and many other persones are fallen into which he sayes perhaps he might have prevented by Giveing the Duke of Hamiltoun this trouble a little sooner to warne them of the designes of their Enemies Which he hopes Duke Hamiltoune would doe without Farder delay and subscryves himself His Graces most humble servant in all sincerity and truth David Baillie with a Crose at the end of his subscription as his usewall manner Whilk Letter wherof the substance above rehearsed and Coppie herewith given as a pairt of this Lybell and the principall put in the Clerk of Councills hand wher David may freely see as it is a most gross abominable and defamatorie he tending to raise discord and the greatest mischeiffs that can be imagined Lykeas the said David had the wicked confidence after haveing writtin and subscryved this Letter with his owen hand as can be proven by Compearing the same with other writs under his hand he gave into the Comittie off the Councill and are lykewayes in the Clerks of Councills hand where he may see them to give or send the same to the Duke of Hamilton who receaved it and farder when the said David accknowledged befoir the Committee of the Councill That he hade given a wrytten Informatione to the Lord Justice Clerks informer whom he knowes as he said to be the causer of his imprisonment and desired the Lord Justice Clerk to shew boeth his Informer and Communicat the Information As Davids Declaration to the Earle of Eglintoun (wherof a Coppie is also given to him with this Lyble and the principall in the Clerks hands for him to see) Bears and the Justice Clerk had named the Duke of Hamiltoune for his informer, His Grace was pleased when desired by two of the Committee to Exhibit and give up the said principall Letter upon the Clerks receipt on ane attested double By all which it is evident That the forsaid David Baillie as guilty airt and pairt of Most abominable Leasing makeing and most defamatorie lybleing in wrytting and wenting the same as said is and that aggrevate with all the pernicious and Mischeivious consequences abovementioned All which being found proven Befoir the Lords of Her Majesties privy Councill The forsaid David Baillie ought to be sevearly punished for the same with the pains of Law at least conforme to the fourth act of the Last Session of this Current parliament Entituled Annent Leasing makers In his persone and goods to the Example and terror of others to Committ the lyke in tyme Comeing And Anent The Chairge given to the said David Baillie defender To have Compeired befoir the Lords of Her Majesties privy Councill upon the day and date of thir presents To have answered to the forsaid Complaint and to have heard and seen such order and Course taken thereanent as appertains as the saids Lords of privy Councill shall think fitt under the pain of Rebellion and putting of him to the horne with Certefication as in the Lyble or Letters of Complaint and Executione therof at mor length is Contained In answer whereunto There being a Complaint Raised at the Instance of James Duke of Queensberry and the Marques of Annandale with Concurse of Her Majesties advocat against David Baillie befoir the privy Councill Makeing Mention That By the Laws of this and all other weell governed nationes The inventing and uttering by wreat or otherwayes, of Leasing and slanders to the Chairging and defaming of any persones Especially of the highest quality are Crimes of ane high nature and lybels upon the Lawes and acts of parliament againest leasing makers, and tellers of them to the Engendering discord betuixt the King and his people and subsumes upon a Letter wrytten By Master Baillie to his Grace the Duke of Hamilton in December Last Wherin takeing his ryse from the noyse of aplott he affirmes that dureing the last session of parliament The Duke of Queensberry Then her Majesties Commissioner sent for him and after great professione of kyndness alleadged he had it from good hands That there were designes in Scotland, England and Ireland to subvert the Government and Restore the Prince of Wales of which he said Master Baillie was not Ignorant and therefor the Duke intreated him for boeth their sakes and for preservation of Her Majesties persone and Government to let him know the whole matter upon which demand Master Baillie sayes he declaired his Innocence and Ignorance But the Duke still insisting and Master Baillie withdrawing The Duke againe sent for him and questioned him about Three Letters Which when Master Baillie still disouned as being ignorant of them The Duke said Then yow doe not know Duke Hamilton, My Lord Athole nor the Chancellor and never soe much as heard of My Lord Drummond Belhaven nor my Lord Tarbat nor Blantyre adding that the said Mr Baillie would say nothing yet he knew very who wer pensioners to France and who not and that my Lord Athole and the Chancellor are amongest the first of them now tho they have not been soe long as the Duke of Hamilton Marshell and Bel-haven for the Duke of Queensberry said he knew the Duke of Hamiltoun had been soe these manny² years But Mr Baillie goes on affirming that he knew nothing of all informed But beleeved that the foirnamed persones were the bestmen in the nation at which Master Baillie sayes The Duke of Queensberry cryed out mightily and told many wicked things of the Ducke of Hamiltoun Which Master Baillie sayes He designes to publish with the whole conferrences to make knowen The Duke of Queensberry’s practices to gain him to make most horrible lies and most dangerous For Mr Baillie³ sayes, he offered him great preferments and money what he pleased if he would but tell the Queen what the⁴ Duke of Queensberry would tell him That is If Master Baillie would goe to the Queen and tell Her Majestie That Duke Hamilton, Athole, The Chancellor and Lords above named were actually pentioners to France, and that they had a publict Bank and managers to buy up arms and other stores for warr, Then he the said Duke would boeth promise and performe and if Master Baillie would undertake, would let him see a list of all he would have brought into the plott and the Duke said he would suear never to lett any person know but that it was a reall plott and Master Baillie had made the first Discovery and soe would send him to the Queen provided that Mr Baillie would say after him and suear to it To which Mr Baillie, sayes he answered That the advyce was good where there was aplott But for aperson to swear a lie to a Queen altogither Innocent, He would not think of it But with trimbling and detestation, and this Mr Baillie sayes he thought fitt to advyse the Duke of Hamilton off But that it seemed That the Duke of Queensberry haveing failled in his attempt Imployed the Marques of Annandale on the same designe who he sayes to doe him Justice used him after another manner For haveing gotten him into his Clutches the very day befoir the Marques went to London would not pairt with him as Mr Baillie said till he went to London with him To let the Queen know how weell she was served by the Duke of Athole who said the Marques he knew had been at Mr Baillies chamber with Duke Hamilton in womens cloaths and that all above named came there and the Lord Drummond and Jerviswood and seaverall others to the number off Eighteen and that they treated to bring home The Prince of Wales and all that was necessary for that Enterpryse To which when Mr Baillie answered That ther was noe such meeting The Marques said they would understand one another better when on English ground for he thought Itt was necessary to tell Mr Baillie That he must not only say But swear the said meeting Which if Mr Baillie Did It might be in his power to make himself for ever and be ane officer of state befoir he left London againe But when⁵ Mr Baillie refuised to swear and said it was impossible for him to bring him self to such a thing The Marques he sayes flew out in apassion and swore he would be revenged and when that did not prevaill Mr Baillie sayes the Marques fell a Coxing of him again But Mr Baillie pairting said he was his humble servant which he sayes he would have been never to have laid open this horrid villany tho nothing sayes Mr Baillie could be more provocking then to be sent for by people he had never any Converse with or obligation to or Dependance upon and to be flattered with great rewards to become a villan and the most perjured of all Liars, But threatned to distructione if he retained his Integrity and Loyalty But sure adds Mr Baillie Let these men pretend what they will nothing can be more disloyall then this to abuse the Queen and Indanger the best of subjects that would abyd by her whyle such as the Duke of Queensberry and Marques of Annandale would desert boeth Queen and Country Then Mr Baillie adds That it was the noise of aplote that made him break his patience and silence and that now heis ready to die with the apprehensions of danger That the Duke of Athole and many other persones are fallen into which he sayes perhapps he might have prevented By giveing the Duke of Hamilton this Trouble a little sooner To warn them of the designes of their Enemies, Which he hopes Duke Hamilton will doe without further delay a Coppie of which Letter given as a pairt of the Lybell (The principall being put in the Clerks hands) Is heirto subjoyned and Further when Mr Baillie accknowledged befoir the Committee of Councill That he had given a wrytten Informatione to the Lord Justice Clerks Informer whom he knew as he said to be the Cause of his Imprisonment and desired the Lord Justice Clerk to shew boeth his Informer and Communicat the Information as Mr Baillies Declaration to the Earle of Eglingtoun (Off which a Coppie given also as apairt of the Lybell lykewayes hereto subjoyned) Bears and the Justice Clerk Haveing named The Duke of Hamiltoun for his Informer is Grace was pleased if desired by two of the Committee To Exhibit and give up the said principall Letter and Concluds that Mr Baillie is guilty airt and pairt of Leasing makeing and defamatory Lybleing and venting the same and ought to be punished by ane arbitrary punishment Conforme to the fourth act of the Last Session of this Current parliament Entituled Act anent Leasing makers It is answered for Mr Baillies primo That the subject of the Complaint being amatter of great Importance to him and that the Letter which is the ground therof makeing mention of aplot In relation to which the Declarationes and affidavtis of seaverall persones are taken at London that may tend much to the clearing this matter of which at present Mr Baillie is not Master but is in hopes to recover them or probablie they will be sent doun here to the Councill and that it seems as yet there is not a full discovery made of the plott Therefor he humblie creaves That the Councill may be pleased to referr the said Complaint to the parliament or at least to delay the proceeding therin at present that he may have Time to recover the Declarationes and affidavtis that have been taken at London and other papers that he is to make use of for his defence and untill the Inquyrie as to the plott be fully concluded And humbly desires That the Councill may take this point to their consideration in the first place Secundo The complaint being principally at the instance of the Duke of Queensberry and the Marques of Annandale and only with concurse of Her Majesties Advocat which goes of course when aprocess is raised at the instance of particular persones ad vindictam privatam and these noble Lords not being present to insist in the action process ought not to be sustained at their Instance it being the knowen and incontraverted practice That in all criminall actions either intented befoir the privy Councill or Lords of Justiciary process is not sustained unless the perseuer be present And the reason is evident – Because If he wer present The defender might seek his oath of Calumny if he have just reason to insist in the action and propon seaverall objectiones againest the Lyble and verefie them, by the perseuars oath that might Exclude the persuit of which benefit the defender is deprived when the persewar is absent And Her Majesties advocat hath noe Intrest to persew this action by himself Because it being actio Injuriarum Which is but privata actio leg: 7 God de Jujur. Injuriarum causa non publici Judicii sed privati continuet Querelam; and the advocat Ratione officii can only persue actions ad vindictam publicam But not ad vindictam privatam adhearing to the former Defences Tertio The complaint is soe far as it is founded upon the Laws and acts of parliament againest Leasing makers and tellers of them is noe wayes relevant to Infer the Conclusion lybled Because as to the 9th act parliament 20th James 6th It is only of such who shall by word, or writ, devise, utter, or publish any false slanderous or Reproachfull speeches, or writs of the Estate, people or Countrey of England tending to the remembrance of the antient grudges born in tyme of by past troubles which does not at all concern this caice And as to the other acts of parliament They are only in relation to Leasing makers to the King of his barrons, great men, and Lieges, and of these that makes any evill information of his barrons and Leeges to the King But does noe wayes concern Leasing makeing or slandering of one subject to another as is clear from the acts of parliament mentioned in the Complaint Quarto If the Duke of Queensberry spoke such things To Mr Baillie in privat in relation to the Duke of Hamilton and the other noble persons which the Lyble mentiosn to be contained in the Letter and if such Expressions spoken of subjects to a subject would infer the Crime of Leasing makeing then he behove to reveall it under the pain of being guilty of leasing makeing himself It being Expressly provyded by the 209th act, parliament 14th, James 6th anent leasing makers, and authors of slanders which ratefies the former Laws anent leasing makeing and further statutes That the Conceallers and not reveallers shall incurr the lyke pain and punishment soe that if any such thing had been said to Mr Baillie He being obleidged to reveall it by the Law It was no crime and consequentially he cannot be lyable to any punishment according to that rule in Law l.169.de reg. Tul. Ejus vero nulla culpa est cui parere necesse sit Quinto as the lyble is not relivant to infer leasing makeing for the reason’s abovementioned, soe it is not relivant to inferr the Crime of defamatory lybleing Because the Letter was only written to the Duke of Hamilton for privat Information non animo injuriandi But only animo informandi as appears from the very begining of the Letter wher it mentions That the noise which is every where made of a plot made him think it his duety To informe the Duke of Hamilton of the matter of fact contained in the Letter And the said Letter was never published or spread abroad by Mr Baillie soe that it is evident he had noe designe to calumniat or injure these noble Lords as it is clear from the common law and all Lawyers that have wrytten upon that subject Actionem Injuriarum nunquam competere nisi dolus et animus Injurandi adsit quia nec Injuria absque dolle et animo Injurandi committitur which can never be said when a man makes discovery only for privat Information and it is arule in Law That non factum sed faciendi causam inspeciendam l.39.ff. de furtis. Sexto By the law and practique of all well governed nationes Informers of crimes (whither there be ground for the Information or not for that depends upon Expiscation and tryall) ought to be encuraged especially as to things relating to the publick soe that when any man offers to Informe or make discoveries he ought not to be punished as aleasing maker or slanderer albeit he cannot prove what he informs for ordinarly the greatest of crimes such as treason, murder, theift, and the lyke are committed with the greatest privacy and secresie and noe man commonly uses to committ these crimes publictly because then the probation would be clear againest him As for instance if any man were informed of a conspiracie againest the Queen and the Government and he should discover it as in duty he is obleidged and would be guilty of treason if he did it not It wer most absurd to pretend that he ought to be punished as a Leesing make or slanderer because he cannot prove what he informes and the lyke in other crimes such as if a person designed to murder or assassinat another and if this designe were communicated to a Thrid pairty And he should accquant the persone againest whom the murder or assassination wer intended It were againest sense to think That the thrid person againest whom the murder were intended should be lyable as aleasing maker or slanderer because he could not prove the designe for if that were allowed noe person hereafter would ever Discover any crime of which they have not clear probation and by this means the greatest crimes should goe undiscovered and unpunished Wheras if these crimes had been tymely discovered by ane Informer they might either have been prevented or the Committers therof brought to condign punishment Septimo, Mr Baillie being called to be the Queens evidence and to give Information of what he knew in relation to the plott that was soe much talked of If when he was examined befoir the Committee of Councill he had declared all that was contained in the Letter upon his Examination It would have been noe crime and he could not have been therupon conveened as a Leasing maker or slanderer But soe it is That the Letter wrytten to the Duke of Hamilton being produced befoir the privy Councill by order of the Committee It was equivalent and the same upon the matter as if Mr Baillie had emitted that Declaration befoir the Committee and the Letter to the Earle of Eglingtoun mentions he desired the Information may be produced which was not verball but in wrytting and that it might be presented to the Councill that he might have ane opportunity to own it And therefor if he had emitted the forsaid Declaration befoir the Committee of Councill as it would have been noe Crime but his duty to have declared all he knew in that matter, he being called as the Queens evidence soe by the same reason he cannot be said to be guilty of any crime the Letter being brought befoir the Councill and made publict by order of the Committee as said is Octavo, That Mr Baillie had noe designe to calumniat these noble Lords may appear not only from a Letter wrytten to him by Mr Steuart The Duke of Queensberry’s secretary ready to be produced and from what The Lord president of the Session was soe Just as to accknowledge in a Committee of Councill with relation to what Mr Baillie had then signefied to them concerning the Cyphered Letters mentioned in his Letter to Duke Hamilton and from such other circumstantiall adminicles as Mr Baillie sayes he can adduce But also from hi willingness to give his oath of Calumny that he had noe designe to calumniat or injure these noble Lords which ought to be admitted according to the opinion of the most eminent Lawyers that have wrytten upon that subject and particularly Carprou: in his practic: nov: Criminall pars: 2, Quest, 97, Queindo et quibus casibus locus non sit actioni injuriarum Numb: 5 and 6; who is express That ad probationem quod animi injurandi quis non habuerit non requiruntur exactes et plenes probationes sed suffiecint conjectures et pressumptiones et si, reus conjecturis indicis intentionem suam sufficienter probare nequeat nihill ominus tamen constanter perseveret se verbei animo conjuciando non protulise Juramentum purgatorium de super ipsi deferendum Et si juret ab actione injuriarum absolvendus est, and Gail: lib: 2: observ: 106; and many other Lawyers by him cited and he mentiones it to have been soe decided in the Imperiall Chamber So if Mr Baillie had been ane accuser as he is only but a privat informer yet seeing he is willing to give his oath of Calumny that he had noe designe to calumniat or Injure these noble Lords it ought to liberat him from the Imputation of a Leasing maker and slanderer according to the Law and constant practice in such caices as the saids answers bears The Lyble at the instance of His Grace the Duke of Queensberry principall secretary of state William Marques of Annandale Lord president of privy⁶ Councill and Sir James Steuart Her Majesties advocat against David Baillie brother to Captain Robert Baillie of Mannerhall and now prisoner in the Tolbooth of Edinburgh being cited And the Lord Advocat with Sir David Dalrumple and Mr William Carmichaell Her Majesties solicitors Compearing personally at the Barr and the said David Baillie defender Compearing also with Sir Patrick Home, Sir John Erskine, Mr David Forbes, Mr Alexander McCleod, Mr James Hamilton, and Mr John Fleming his advocats and the Lyble with answers therto being read and boeth pairtes and their advocats heard at the barr and removed The saids Lords of her Majesties privy Councill Have Repelled and heirby Repells The Dilators proponed by the Defenders procurators as said is and have Found and heirby Finds The within Lybell relevant to inferr ane arbitrary punishment and proven by the Defenders Judiciall accknowledgement at the Barr That the Two Letters lybled on wer all his hand wryt and subscryved by him and Therfore have Declaired and heirby Declaires That the said David Baillie To be infamous and have Banished and heirby Banishes him furth of this Kingdome for ever And have also appointed and ordained and heirby appoints and ordaines The said David Baillie To be Transported to the West Indies and to he in prison ay and whyll he be transported And have appointed and ordained and heirby appoints and ordaines The said David Baillie befoir he be transported To be set on the pillarie at the Tron and there to stand from Eleven to Tuelf of the Clock in the foirnoon and that upon such day and in such a manner as the saids Lords of Her Majesties privie Councill shall think fitt and the said David Baillie being called in Did hear the sentance publictly Intimat to him accordingly.