Att Edinburgh the tuenty fourth of July one thousand seven hundreth and one yeares
D1701/7/21
D1701/7/21
Decreet
Decreet absolvitor Earl of Aboyn Laird of Grant and Knokespack against The Lairds of Glenkindie Camdell and the tutor of Weems
Anent the principall lybell or letters of complaint raised and persued before the Lords of her majesties privie Counsell att the instance of Alexander Strachan of Glenkindie, Captain James Menzies, tutor of Weems, and Alexander Gordon of Camdell, with Concurse of Sir James Stewart her Majesties advocat for his highnes interest in the mater lybelled Conform to the Lords of his Majesties privie Councill ther act and ordinance of the date the second day of August last by past, one thousand seen hunder years, against John Crookshank in Kinnaclara John Cameron, Comonly Called Stewartack, Break Lodovick Grant of that ilk ther master, John Gordon younger thereof, and Adam Gordoun late of Glenbucket, Colinn Bain Mcphatrick Alister some tyme att miln of Larie, new in Richarlarie, and Charles Earle of Aboyn his master, makeing mention That where by the lawes of this and all other weell Governed Realmes, Haim Sucken, thift Stouth releife or Robery, depredation and Speulzie ar hyneous and atrocious Crimes, and ought to be most Leberly punished, Likeas by the lawes and acts of parliament notourly the persones guilty actors airt and pairt of the saids Crimes, are to be punished, for the same, But also all Landlords Bailies Masters and heretors, whither wodsetters or liferenters, within whose whose Ground and bounds the saids persones did live the tyme of Committing the saids Crimes or have since lived and been resett within the bounds of the higlands, and others mentioned in the said act of parliament are lyable for restitution of the goods stollen Robbed Spulzied and away taken and full availl and profeits therof, and for reparation and refounding of all damnages and expenses sustained by the party Injured, and the saids Loandlords heretors and others, are likewayes lyable to present the persones of the saids Criminalls to Justice, if so be they did reside within ther bounds and lands fourty eight houres before or after the fact, over and above the restitution and Reparation forsaid as the saids acts of parliament, viz James sixt parliament eleventh Chap: nynty three nynty four nynty seven and and hundred and third Item parliament fourteen Chap: two hundred and tuenty seven and parliament fifteenth Chap: two hundred and sixty two, and others more fully bear, nevertheless true it is and of verity that John Cruikshank in […] Duncan Cruickshank his son John Cameron Comonly Called Stewartack Brackland […] Grant alias Mcgrigor liveing under Ludovick Grant of that ilk, Earle of Aboyne with severall others ther associats and accomplices, did wpon the tenth day of October one thousand six hunder and nynty eight yeares, or ane or other of the dayes of the said moneth, shakeing of all fear of God, and obedience to his majesties Laues under Cloud and silence of night being armed with Guns swords and other weapons Invasively most masterfully and wrongously attacked the house of the said Alexander Strachan of Glenkindie, brook wp his doors, laid violent hands upon himselfe, and mortally wounded him, and bound him as a Comon theife and malfactor and thereafter Spulzied Robbed and away took furth of the said house the soumes of mooney goods gear Insight plinishing, and others after specified viz a broad sword with a silver hand the pryce twelve pounds scots money Item a small sword worth six pounds scots, Item a sword bell worth three pound Item a pare of Holster pistolls price twenty four pound, Item nyne Gunns worth twelve pound the peice, Item a sword staff, with silver Rivatts worth twelve pound, Item eighteen silver spoons worth six pound the peice, Item two silver Tumblers worth twelve pound the peice Item ane sute of Fine black Clothes with phish Bretches worth seventy five pound Item ane learge Denoon Coat and Bretches pryce tweenty peund Item four Coats and silver buttons on them Estimat to threty four pound the peice, Item five Dozen of silver Buttons not wpon Cloaths worth three pound twlve shilling per dezen Item ane enambled Gold Ring with a large Diamond stone pryce ane hundred peund Item ane other Gold Ring worth ten peund Item sixteen elns of Colored stuff att twenty shilling per elne, Item ten elnes of Striped stuff pryce ten peund, Item twenty ells of linning price fifteen shilling per ell Item ten pare of stockens worth ten peund, nyne shirts worth three peund the peice, Item Linens such as Gravats sleives and nepkines worth fourty pound, Item two pare of shoes and a pare of silver buckles pryce eight pounds Item twenty nyne pare of Blankets worth ten merks the pare Item ten pare of beds sheets att ten merks the pare Item ten Codreears att ten shilling the peice, Item two empty bolsters att three pound the peice a Large Brass pann worth four pound Item Couruteins and hangings of beds worth five pound, Item Linen table Cloathes servets and loules worth twenty four pound, Item two piriwiges worth nyne pound the peice, Item Razor and shirers with a foot of measure worth five pound, Item two horses pryce twenty seven pound the peice, Robbed and away taken of reall Current money the soume of two thousand and five hundreth pounds Scots money Item the annualrent of the said soume since away takeing thereof retention being allowed, Item of damnage and determent done to a pendelum Clock weather Glas, and Cabinet and severall other things about the house, the soume of fifty pounds, all scots money forsaid And true It is that Wiliam Mckonachie sometyme in Bellabeg, now in Achnabyrle Liveing ther under Lauchlan Grant of Belnabo, his master is actor airt and pairt of the said depredation by resett of some of the goods stollen spoulzied and away taken, and Harboureing the above depredators and ther acomplices, and by out hounding and giveing advyce or assisstance for Committing of the saids Crymes, And also, true It is that Grigor Grant alias Org of Dellavorer, and John Grant of Dellavorer his Father, being Foresters of Glenaven, did Correspond with some of the Robers who were in accession to the forsaid Roberie, in ther return therfrae, they haveing resided a Considerable Space in the said Grigor Grant and his Fathers ther Shealling in the said Forest to ther knowledge, and the said Grigor or his fathr gott ane Sword Ladle and other things from them, and likewayes had given prior advyce to some of them for prejudgeing Glenkindie, And sicklie true it is that the said Ludowick Grant of that ilk is principall Landlord house holder heretor or wedsetter, of the lands wherewpon the saids John and Duncan Crukshanks John Cameron and […] Grant alias Mcgrigor, lived the tyme of ther Committing and haveing accssion to the saids Crimes, the said Charles Earle of Aboyne was principall Landlord, householder or wedsetter, of the lands wherewpon Calam Bayne Mcphatcik Alister lived the tyme of Committing of or haveing accession to the saids Crimes, and sicklyke the said Lauchlan Grant of Dalnabo is principall Landlord heretor or householder of the lands wherewpon the said William Mckonachie lived the tyme of the forsaid horid depredation, att least they had lands in tillage and pasturage of ther respective masters above Specified, and were Intertained and resett by them, as ther followers and dependers and Sicklyke albeit John Gordoun elder of Knokespeck and John Gordon younger thereof were herfied in a former proces att Glenkindies instance before the Commissioners of Justiciary for the northern District att Insh the twenty nynth of december last, as Landlords heretors or Masters to Alexander Brember in Eeaster Bucket who was Condemned and hanged for the forsaid depredation, and hame succken, and that they were most unjustly assolzied by the saids Commissioners, yet neverthess true It is and of verity that the said John Gordon late Heretor of Glenbucket, att least in possession therof the tyme of Committing the forsaid Crime, or att least principall Landlords and Masters in the said deceast Alexander Brember who had accession thereto and was hanged therefore as said is, and sicklyke the said John Gordon younger of Knokespeck was Landlord hoseholder or master to the said Alexander Brember, att least the said Alexander Brember was his officer meniall servant or pleugh man, the tyme of Committing the said depredation, and the said John and Adam Gordons was in the knowledge of the saids depredators, being harbored resett and intertained in the said Alexander Brember his house, fourty eight hours before or after Commiting of the said Cryme, And sicklyke true It is that John Mcgillenders sometyme in Keppoch, with others his accomplices, did Come wpon the twelth of September one thousand six hunder and nynty eight yeares or ane or other of the dayes of the said moneth, to the toun Bellchirie, in the parish of Cabroch, and Sreffdome of Bamff in armes, invasive in maner forsaid and did violently and masterfully Robb spoulzie and away take out of the samen bounds of the said toun of Bellachirie, the number and quantity and Species of Catle Belonging to Alexander Leith of Bellchirie, after Specified, to witt sixty head of nolt young and old and three maires, and that the said Alexander Leith would have had of Damnage and loss in Tassalling and Conveening men for recovereing of the forsaids goods, wpwards of the soume of six hundred merks, besides the loss of two of the Catle worth threty pound the peice, which the killed and did eat, and the rest of the Catle being overdriven and weeried by excessive travell and want of meal were rendered almost use less to him before he gott them home, and not worth the halfe of the pryce they were worth before, as they that apprysed them when they Cam home Can witnes, Likeas his loss was yet greater In so farr as the saids three maires by the Burst as said is, took deseases and and infected his whole work horses wherof seven dyed worth twenty pounds the peice to the Loss and damnage he sustained by the depredation would have been wpwards of ane thousand pounds as shall be instructed, In and to the which doeing the said Alexander Strachan of Glenkindie his right by assignation be the said Alexander Leith of the date the twenty fifth day of March one thousand six hunder and nynty nyne years as the samen produced bears and that the said Adam Gordon of Glenbucket and John Gordoun younger of Knockspeck or ane or other of Both of them did out hound advyse assist or Correspond with the said John Mcgillenders, or others his accomplices for and towards ther Comitteing the forsadi depredation and Roberty wpon the said Alexander Leith, att least did meet or tryst with the forsaid depredators, both in Strathdoun and Glenbucket and gave advyce therin, and also to Conspyre against and prejudge Glenkindie wpon the […] day of September one thousand six hundered and nynty eight yeares, or ane or other of the dayes of the said moneth of September agust or July Imediatly preceeding And true it is that Robert Mckerten sometyme in Carrie now in Aird, did resett forth fie and mantain some of the depredators and Robers, of the said Alexander Stratchan of Glenkindie his house in ther return therefrae with some of the goods so stollen and Robbed, And true it is that Endingwig in […] who was one of the depredators and Robers of the said Alexander Strachan of Glenkindie, his house, lived and Resided, att least he had house or land in Tillage, and pasturage of him, and was intertained and resett by him, as his follower and depender, both before att and since Commission of the forsaid Robbery, In Respect whereof the saids John and Duncan Cruikshanks John Cameron Comonly Called Stewartack Break and […] Grant alias Mcgrigor, and Ludovick Grant of that Ilk ther master, Colin Bain Mcphatrick Alester, and Charles Earle of Abyon his master, Wiliam Mckonachie their in Bellmabogg, now in Auchnahoylle, and Lauchlan Grant of Dalnabo his master Grigor Grant alias Oig of Dellavorer, and John Grant of Dellavorer his Father, Adam Gordoun sometyme of Glenbucket, John Gordon Elder of Knokespock now of Glenbucket and John Gordoun younger of Knokespeck Robert Mckerter sometyme in Carrie now in Aird and the said […] as master to the said Angus Mcboill Endanjwies ought and should be made lyable for the Crimes above mentioned, and to the restitution and Reparation above lybelled, as guilty actors airt and parte, or otherwayes lyable for the for the same Conform to the forsaids acts of parliament and that Conjunctllie and severally which being proven they and each of them ought and should be decerned to make payment and satisfaction to the saids persewers of the soumes of money above mentioned and of the avialls and pryces of the goods and gear above specified extending in haill to the soume of […] and als to make payment to the saids persewers of the soume specified for the damnage tascall money and expenses wared out by the said Alexander Strachan in persueing the said Captain James Menzies and Alexander Gordon, But also the expenses and damnage wared one and sustained and to be wared out and sustained by the saids persuers In the termes of the said act and ordinance of the Lords of her majesties privie Counsell and sicklyke further punished in ther persones and goods, and decerned to find Caution for the saids persuers ther security in tymecomeing att sight of the Lords of her majesties privie Counsell to the example and terror of others to Committ the like in tymecomeing And anent the Charge given to the fornamed persones defenders, to have Compeired personally before the saids Lords of her majesties privie Counsell att ane Certain day bygone to have ansuered to the forsaid Complaint and to have heard and seen such ordor and Course taken thereanent as appertains with Certification as in the said principall Letters of Complaint or Lybell raised in the said matter att more length is Contained, And which Lybell wpon the sixth day of march last bypast Called in presence of the saids Lords of his majesties privie Counsell, and the said Alexander Strachan, and James Menzies the two first persuars being oft tymes Called and not Compeireing, and the said Alexander Gordoun of Camdell the third persuar Compeireing personally with Sir David Dalrymple on of his majestis solicitors Mr Robert Forbes senior advocat […] For the haill persuars, and the defenders being partly absent and partly present as they are marked on the Roll, and Sir David Thoirs Sir Alexander Cumming of Culter Mr Francis Grant Mr James Nesmouth and Mr Patrick Leith […] advocats Compeireing as procurators for the haill defenders Gave in the ansuers or defences followeing to the said lybell, for John Gordoun Elder and younger of Knokespeck, and Adam Gordoun of Glenbucket, viz Before thir defenders offer any particular defences to this irrelivant and callumnius lybell, his majesties high Comissioner, and the right honourball the Lords of his majesties privie Counsell, will be pleased to be Informed, That Glenkindie one of the present persuars, haveing by a proces before the Northern Justiciary, Conveened the other two persuars Captain Menzies and Alexander Gordon of Campdell they were thereby Convict of a most Barbarous depredation for repareing whereof Glenkindie obtained decreet against them for twelve thousand merks or therby, Captain Menzies and his tenants being thus overtaken by the Justice of that Judicatorie, and finding no means to evite the execution to follow on Glenkindies decreet, They agree that Captain Menzies and these depending on him should furnish sufficient probation against other responsall persones as guilty of the depredation Committed on Glenkindie, on ther own Charge wpon performance whereof they were to be Discharged: and this accepted of by Glenkindie to serve against the hazard of a suspension which Captain Menzies had obtained against him and other Speciall accompts; Upon this agreement Glenkindie applyes to the Counsell, who knew nothing of the Contrivance, Craveing relaxation and Indemnity for severall of Captain Menzies tenants against whom he had obtained decreet as neccessary witnesses against others, and this being secunded by petition from the tenants themselves to the same purpose the desyres of both petitiones were granted, parte in audita et periculo petentium, This fraudfull Contributione being so farr advanced Glenkindie persued the said Alexander Gordoun of Campdell and obtains decreet against him for […] merks and the Likewayes persues the saids John Gordons elder and younger of Knokespeck as heretors of the lands of Glenbucket, where Alexander Brebner, who resett the depredators had his residence, and as intertaineing him as a ploughman or servant and as hunders out and abaters of him, and the other depredators But tho Campdell was found guilty, yet Knockbespeck elder and younger were assolzied, after full debate and probation lade, and this prompted Campdell to follow Captain Menzies method for seureing himself so that in the Close these two enter in to a new agreement That for their releife they should provyde probation against Kockespacks elder and younger and Adam Gordoun of Glenbucket, whereby they might be found guilty of the depredation Committed on Glendkindie, being assigned to by him to all that should be recovered on the event, and in prosecution of this shamefull agreement they have intented the present persuit whereby they not only Conveen thir present defenders as lyable for the damnages of the barbarous depredation Comitted on Glenkindie, But Likewayes as out hunding, advyseing, assisting and Corresponding, meeting and trysting, with John Mcgillenders, and others guilty of a late depredation, Committed of late on Bellochirie, to which Glenkindie hes acquired right, This being a plain and obvious Contrivance to free and liberat the guilty from the Just punishment of law, and by ther own testymonies to insnare and overach thir defenders, who are knowen to be Gentlemen of probity, and whose Character in the Countrey they live in is sufficient to vindicat them, from the lest suspicion of the Barbarous Crymes they are not charged with, Its humbly and Confidently expected, That the right honouraball the Lords of his Majesties privie Councell will proceed to the discusseing of this with due reguard to the odious Circumstances premises of the persuars lybell, and to the defenders inocent and peaceable Characters, and the Justice of ther folloueing defences, To rest then denyeing the whole matters of fact, as qualified and Circumstantiat in the lybell the defenders ought to be assolzied, from the generall Conclusion, in als farr as, Glenkindie is truely satisfied and payed either by the decreets recovered att his Instance, against the persones lybelled in the depredation Committed, against him, or otherwayes by transactiones, which is equivolant so that no assignation made by him in favors of Captain Menzies and Gordoun of Camdell with whom he hath agreed is lyable to him in the damnage of the depredation, Can subsist as the ground of his persuit, Secundo et seperatum albeit the persuars title were sustained as it Canot Instantly be, Knockbespecks elder and youger must be assolzied, seing they were formerly Conveened for the same individuall Cryme, Before the northern Justiciary, and probation aduced against them, and wpon advyseing of both lybel and probation, they were both assolzied after which it is positively Contended they Cannot again be Conveened for the same Individuall Crime without the least variation and as all defenders after Crimes are proven are most unfavorable, yet till then they are still presumed innocent; So much more most parties innocence be Secured after the undergoeing of a Rigid tryall, and there being assolized by the sentance of a supream Judicator and its thought Strange that the presuars should have the Confidence to insist in this new lybell before the Councill, which is preceisly the same not only in substance, but in the very words with the former, Before the northern Justiciary, wherein they succumbed and wpon which the defenders were assolzied, and which decreet stands yet unquarrelled or reduced; The defence of res Judicata, Cannot be more favorably urged in any Case then this, For primo it is Certainly Competent tho founded only on a decreet of ane Inferior Judge, which haveing no evident nullity, is relivant untill it be reduced, much more when the same, is founded on the sentance of a Supreeme Judge, and yet more Especially in a Criminall persuit ubj agitur do vita hominis Its true that Alexander Gordoun of Campdell and Captain Menzies, doe in thie proces Joyn with Glenkindie, who was the Loll persuar in the first proces, before the northern Justicary, but that will not alter the Case for as res Judicata, is not only relivant when founded on ane decreet between the persuar and defender, but Likewayes between there predecessors or authors, so much were it must be sustained, In this present Case where Glenkindie is not only auther and Cedent, to the other persuars, who have otherways no right, but where Glenkindies own right is Certainly extinguished, tho keepts wp as a Colour and pretext, whereby the other persuars may overeach and Catch advantage of the present defenders, It is likewayes observable that he present defence of res Judicata may further astructed, from this Circumstance that the former decreet was ane absolvitor, and had not only the same Conclusion, but proceeded wpon the same media Concludendj, which makes it ane absolute and full security in all events to thir defenders, and Lastly as the former decreet whereby the defenders are absolved stands yet unquarrelled, and unredduced, So if it were Covenient to bring the same under a review it would be found very full and formall in all respects, otherwayes without doubt the persuars had attempted before this tyme to have taken off its effects in a Legall way; and as this defence of res Judicata if Sustained, most assolzie the defenders, so on the other hand if It were ever ruled, and thir defenders again subjected to a new tryall, it would found a precedance of very dangerous Consequence for the former decreet whereby thir defenders were absolved is not taxed either of Informality or iniquity by this new lybell, Secundo if the defence of res Judicata were repelled, it Could be too no other effect then to allow, a new probation, and by this method no man Could be secure from perpetuall trouble, and the litigious humour of any persuar might perpetuat Criminall processes, not only dureing mens lives, but revive the same against their aires, which for the generall good and quiet of the nation, ought to be prevented and Tertio this were to make our lawes (which are Introduced for our Security and quiet) ane Incouragement to the worst of men to stetch ther invention, and Imploy their Industrie to procure witneses to prove the Greatest of falsehoods against the most innocent, and by a second thrid of fourth probation to make up what they Could not farely prove att first, and this present occasion thir defenders beg live to represent ther present Circumstances to the Lords Consideration, seing from what is premised, Its evident that the witneses to be aducced against them, are persones who cannot otherwayes secure themselves themselves, but by fixeing the guilt Lybelled wpon others, they are persones who by the Relaxation granted to them wpon ther oun desires, which proves them guilty, have but too great incuragement to attemp the Involveing of others, tho: never so Innocent, in the like Crimes and lastly they are persones who most evidently lose or win on the event of this proces that which is most valuable to all men, Life, Liberty, and fortune, and how dangerous this may be to the people of all Ranks of this nation if once allowed by authority is too obvius Tertio but further satisfaction and adhereing to the former defence, the defenders in the third place doe Content, that they Cannot be Conveeened, as heretors of the lands where the resetters lived, For Besides that ther is no foundation therefore, in the acts of parliament libelled, It is Instantly verified, that John Gordoun elder of Knokbespeck, had not acquired his right to the lands of Glenbucket for a Considerable tyme after the depredation and att the tyme therof, the other defender Adam Gordoun, Can in no Construction of law be understood heretor of the same, for tho his Father died infeft, yet he hes frequently renunced to be air, and the Estate is long since adjudged by many Creditors, who are in ~~a~~ possession by a factor authorized by the Lords on ther apprehending Quarto the defenders Cannot be insisted against as heretors, possessors Landlords, or overloads of the lands where […] Bribnar lived who was hanged as guilty of resetting, Glenkindies depredators Because the lybell acknowledges, and it is not Contraverted, But that he lived in the lands off Easter bucket, and the defenders produce the Seasine of Jean Douglass who liferents these individuall lands, and its known that as the Liferenters and not the Heretrors give bond in the Highlands for the good Behaviour of the possessors and the residenters on the ground So these only and not the former, are lyable and accomptable, for ther thifts and Robberies, this then will sufficiently instruct, that the lands of Easter Bucket, where Brybner the resetter lived, being att present and att the tyme of the depredation, Liferented, and a distinct tenement from the other lands of the Estate of Glenbucket, the defenders in this proces Cannot by lyable, for the depredations Committed by any liveing or resideing wpon the ame, Quinto what the Lybell bears of Knokespeck younger his being accessory hunder out, and on of the accomplices of depredation lybelled, it is not only most Callumnius but likewayes irrelevant not Condescending quo modo he was accomplice had acession or hunded out, and for a further evidence, of the falsehood of this aleadgence, the defenders doe positively inform that Knokespack younger nether Speaks nor understands one word of the HIghland tongue which made his Correspondence with the depredators impracticable; Sexto the aleadgence that Knokespack younger was Landlord, Householder or master, to Alexander Brybner the resetter of the depredators is likewayes Calumnious, But albeit It were true, as it is not, it is sufficiently purged, […] traditione for it is not Contraverted that Brybner was delivered and hanged by the Justiciary, Septimo what is lybelled of Knokespeck younger, his knowledge of the Robbers, being Harboured with Brybner Seems not to be serious For besides that it is absolutely false, naked knowledge in this Case Can Import no Cryme, Especially in a person who by no publict Charter was under the least obligation to apprehend the depredators Octavo after a Congestion of so many false and irrelevant absurdities, the lybell fixes last wpon what may perhaps apear more materiall viz that Glenbucket and Knokbespeck younger out hunded advysed and assisted, John Mcgillenders ane notoreous Robert, and others guilty of a late depredation against Belchirie, to which Glenkindie is assigned But this parte of the Lybell is also shamefull and ill founded as the rest. For first in alls farr as it is generall It is absolute by Irrelivant, and farder it is offered to be proven that the depredation on Bellchirie was Committed by and most of the goods gott back from a Notorious Robert Called the Halked Steer, who resided on Glenkindies own lands both Before and the depredation, and was suplyed by him with money and provision, the very night on which the Roberty was Committed, So that Glenkindie being himselfe lyable for damnage Cannot be the persuar of this proces, and Lastly the lybell ought to have Condescended on the particular acts of out hunding advyseing Corresponding, assisting etc that So the defenders might have been the more able to exculpate; One the whole matter the Lords are intreated to Consider, the Singular and extraordinary Circumstances, of this persuit, handed doun by degrees from the partie first injured; by a depredation, to these who are found guilty of the Cryme, and from these to other accomplices, likewayes Justly overtaken by the Law, without any other design then to ensnare severall peaceable and innocent Gentlemen, who have no small ground to suspect that witneses may be procured against them, for proveing the greatest Calumnies Can be invented, So that if the Justice of this Honouraball Judicatory doe not secure the defenders Innocence, from the danger and hazard of So malicious a Contrivance, and of so unprecedented a persuit, the many lawes made for secureing the peace of the Highlands, will be so farr from workeing there designed effect that on the Contrair they will give occasion to infinite disorders, whereby the most innocent may be most Ready to Suffer, The Lybell and defenders being both Read the persuers declaired they passed from Adam Gordoun of Glenbucket as a partie in this proces and the saids Lords of her majesties privie Councill haveing Considered the Lybell and defences for the defenders, and haveing heard both parties Lawiers fully att the Barr, they admitted the Lybell to the persuars probation, and the witneses Cited in this proces haveing Compeired or being absent as they are marked in the Roll and such of the witnesses as Compeired haveing made faith att the Councill Barr, the Councill nominated and appoynted a Commitie of ther own number for examineing of the saids witnesses and declaired that the witneses are not to be examined, wpon any poynts of fact, wherewpon any witneses have already deponed, before the Comissionars of Justiciary in the north, or otherwayes and granted further dilligence against the witneses Called and not Compeireing, By Caption, and ordained Belchiries assignation to Alexander Strachan of Glenkindie to be produced to the Commitie Before any witnesses be aduced wpon any poynts Contained in the lybell of the depredation Comitted on Belchirie, or examining thereanent, which Commitie haveing mett wpon the threeteenth day of March last the took and received the oaths and depositiones of diverse and Sundrie famous witneses, who being all solemnly sworn and examined in the said matter, wpon ther great oathes Deponed and declaired as ther oathes and depositiones subscribed be them lyeing in proces bears […] Thereafter the said Alexander Strachan of Glenkindie, Captain James Menzies tutor of Weems, Alexander Gordon of Campdell Gave in a petition to the saids Lords of his majesties privie Counsell, Craveing that whereas in the action persued att there instance before the Saids Lords of privie Counsell, and by ther express warrand against John Crookshanks in Kinarra, John Cameron Comonly Called Stewartach Breack, John Gordouns elder and younger of Knokespacks and other to the effect Complices and accessories to the Roberies Commited against the said Glenkindie might be in the feild and that the saids Lords might determine wpon his reparation, according as the degree of ther acession should appear, they obtained a protection to the witneses, till this day, of which protected witneses John Mcartor Brother to Robert Mcartor of Aird, and Wiliam Bay Mcpherson in Pittgallish, are only Brought wp, and that by a second dilligence, But Calym Breake and Grigor Breake his Borther, tho: they were apprehended, and gave bonds of presentation yett they failed, Likeas Rorie Kenneddie in Camiferach Alexander Menzies in Kinclacher Donald Cameron sometyme in Camiferach John Roy Menzies there, and Angus Mccoill vesandinvig in […] notwithstanding of a second dilligence against them Could not be found, But after search made It was understood, that now in the summartyme, some of them were gon to Mull and others else where, And seing that all these seven persones are neccessarie witneses, and therefore have gott protection from the saids Lords, and that they have failzied to Compeir, Notwithstanding of our outmost dilligence, It was Therefore Humbly Craved that the saids Lords would be pleased to Coninou ther said protection and dilligence till the first of Agust Inclusive, that in the mean tyme they may bring them up be vertue of the said Captain, And also to ordain, that the said John Mccarter, William Bayn Mcpherson, togather with William Farpson in Tomintoull, James Menzies in Gaw Largo John Grant ther and James Crookshank in Auchinhandat who are all heir in toun may be examined before a Comitty of ther Lordships number, appoynted for that effect, and that the said protection, as to such of them as is therein Contained may also be Continued untill they be examined, and a few dayes thereafter, as the saids Lords of prive Counsell shall see Cause, as the said petition bears, which petition being wpon the first day of July Instant read in presence of the saids Lords of his Majesties privie Counsell, they by ther deliverance therewpon that day allowed the Earle of Aboyne, Laird of Grant and John Gordons elder and younger of Knokespack, gave in the ansuers followeing, Camdell being Justly overtaken, for tou Barbarous depredations Comitted on Glenkindie and Belchirie, does freet all his loss, But takes very unjusticeable methods, for repareing it by ane Indefatigable, makeing such witneses against the defenders (as if they could be be admitted) ther is no man secure of his life or fortune But it was weell fallen out, That of Campdells protected witneses, some have shrunk and ther Curage failzied them to Come wp, and of the two who are arrived, one of them named Mcarthur is in prison by warrand from his majesties advocat, and is truely one of the most villanous Criminalls in the nation, as may be knowen to some of the Honourable boord, Tho: this be a swatch of the peice, yet Campdell hes taken the Confidence after expyreing of the former protection and a second dilligence to Crave a new protection, and dilligence against a parcell of notorius Robers mentioned in his petition, as also that his other witnesses Come wp may be examined, It is ansuered to this last that the defenders doe not decline the examination of four witneses for whom protection is not asked, provideing they be only examined wpon Glenkindies depredation in the in the termes of the Interloquitor in march last, declaireing that no witneses were to be alloued to depone wpon any poynts, wherwpon ther was probation already laid before the Comissioners of Justiciary, for the northern district. But as to the depredation on Belchirie, ther Can be no witneses admitted to make faith or be examined therewpon Because the forsaid Interloquitor allowes no such probation, till Belchiries assignation (which is the title of this proces) be produced and this is never done to this hour. It is true It is Informed, that ther is a new assignation from Belchirie, dated in this present year Seventeen hunder and one, putt in the Clerks hands, with injunctions not to permitt the defenders to see it, as indeed ther is reason for this Caution: For it is Impossible that such ane assignation in Seventeen hunder and one Can sustaine a proces which was raised and expressly lybelled att the letter wherewpon ane assignation dated the twenty fifth of march one thousand six hunder and nynty nyne, no more then a sone Can exist before his Father, or ane effect without its Cause Especially Considering, that the first assignation was not truely against these defenders, as to the new protection, and new second dilligence for the other witneses mentioned in the petition It is ansuered, that it is humbly and Confidently hoped these will never be granted for the Reasons followeing, Primo Because by the sixth act parliament one thousand Six hunder and eighty one Its declaired that the Counsell may grant protectiones for such few dayes, as the persones may Come and give ther appearance, and dureing ther neccessary stay, and some few dayes for ther return not exceeding a moneth in all, But this moneth is already given and expyred, and Consequently the door is shutt wpon them, For as the words of the act are explicite in the Case, that only such tyme be granted, as they may Come, and give ther appearance (But does not say that they actually Come) and allowes only a moneth for all the indulgence that is to be given them, So if the moneth were reiterat, the act which is So express would Import nothing, for the witneses might still stay att home, and also oft without meaasure be protected, nether is a new second Diligence allowed by any formes that ever have been used in Councill, and as a second, second dilligence is ane incongruity in Spech, so the reason of the law is most evident here, both in resoect that the dyets att the least after second dilligence is ane once granted and elapsed are peremptorly, nor are defenders to be weasted with Continuall attendance, and because it is evident that the persuer hes used unfair means for overcomeing those witneses whom he was not able to fix dureing the Correncie of the first and second dilligence, But Further such priveledges beyon the Comon Course of law, ought least of any to be allowed, in this Circumstantiat Case, For secundo the petitioner gott both prtection, and second dilligence in march last, the protection to endure frome the first of June to the first of July and the second dilligence to endure for the whole tyme betwixt the sixt of March and the first of July dureing which Space Campdell (who is truely now the only persuer, the other two Gentlemens names, being no more then borrowed haveing been ashamed of what hes already occurred in the proces) was not idle in the North amongest these witneses, and his or his friends over them is not unknowen, as a Competent evidence, wherof ther is hereto subjoyned Coppies of severall letters thereanent which are so black in their true Import that the defenders would not have published them, were it not for ther necessary selfe defence, and that it may be knowen it is not without the best ground, that they are affrayed of such tampered Rascalls, and use the benefeit of Law for obstructing ther being let loose wpon them. As to the two formerly pretended witneses which are here on the place, one of them is Comitted for Capitall Crimes, that are Flagrant and nottour, and if the defenders property is to be Subjected to the faith of such a person, who will still be the more incensed that his Comming hither, hes given opurtunity of Catching him, the Lords of Counsell, Can easely Judge; Especially Considering That by the staitute of King Robert (Which the rule of our objections against witneses) Carcere detentus fore a Capitall Cryme is rejected, Ant the other witneses who is Said to be here hes no protection, and the second dilligence dirrected against him is expyred, whence nether of them ought to be received in relation to him tho: he waits the service wpon the grounds above represented, In respect whereof the desyre of the petition ought to be refused, both as to granteing either a new protection or a new second dilligence, and as to examineing the witneses present wpon Bellchiries depredation the assignation by him not being seen, or it will be found possterier to this proces, and the witneses in prison for a Capitall Crime, ought to be rejected, and the other who offers ought nether to be protected, nor a new dilligence issued against him Espeally Considereing that all of them are the most profligat Rogues in the Highlands and the very scum of mankind; Followes the Coppies of the letters written by Alexander Gordon of Camdell direct to the witneses he was to make use of in this proces and of the other letters followeing and relateing to the said affair to evidence the said Alexander Gordoun his prenicus practice he was Careing on in order to overtake the defenders And as to the first letter that the true meaneing and design thereof may be the better understood, It is to be observed that the same is direct and written to Callum Grierson of Ballatar, alias Callum og Mcgrigor, on of the principall depredators, against whom decreet is pronunced by the northern Justiciary, and yet by portion after severall meetings its agreed that he be not prosecute as a party But only Cited as a witnes, and de facto is Cited as Such, the tenor of which first letter followes Camdell the threteenth of november seventeen hunder, Sire It wonders me yow have never Come to me as yet, ther is a litle tyme for getting protection to the witneses, And I am here waiteing to send ane express, on that head, and if yow be a Stop or delay in this, yow will both wrong your selfe and me, which hes obleidged me Cause Alexander Robertson goe to yow with this letter, that yow or your son pretend not ignorance. Tyme is precius and still running; this from your freind as yow are dilligent att present sic subscribitur Alexander Gordoun poscrip bring Callum Bain with yow, Nota this letter Imports a doun right partion in so farr as Camdell says that any Stop or relay may wrong them both, and he mentions Alexander Robertson bearer, which Imports verball transcations, and Concludes he is a friend as they are dilligent, As to the second letter from Camdell, it will be particularly observed that it is direct to the same Callum and his sonn Alexander, as if they had been his whole trusties and managers of this affair not with standing that he was on of his witneses, and even for practiseing and getting the said Alexander Gordoun other witneses as appears by the Coppoy of the said letter in maner under written, The second letter Killdrumie the fourteenth of december seventeen hunder, Sir this day I received yours after I parted with the messanger, I am sory yow Come not here as I ordored, I send a line with the messenger to meet me att Breamarr on yoole evening, therefor be active and stirring now or never, and be ready to goe allongest with me, and have Callum Bread and his brother Ready, and such others as are Concerned, for proveing Callam Bains residence as will be proper; and if yow think fitt any other be Cited, either in Glengern or Strathdon he will doe it, and give yow execution thereon to bring to me, as to Callam Bain if he had been free, and keep to what was promised by him Before his uncle and Ronald Mcdonald, I would have been still friendly to him, and yet if he please to goe forward to Edinburgh with me and yow I by this promise him all the friendship I Can nor I shall I desyre any but ye and I know his Lodgeing, or he appear publict, while ye and I understand and Consider how to behave nether hes he att all any hazard untill he be Called before the Counsell, Before which tyme he and we both may have our resolves Its fitt yow dispatch your son in al hasste to Rannach, to assisst the getting the other witneses to gather, I again intreat yow keep this last tyrst for all with your assured friend sic subscribitur Alexander Gordoun, As to the third letter written by Camdell to Callam Bain was likewayes Cited by Camdell as a party, But wpon the like partion, as with Callam Og when they mett togather, after recevieing of the followeing letter he is Cited only as a witnes, the tenor of which letter followes, Tomintoull the twenty third of december seventen hunder, Sir I thought what I wrote to your freind, which he tells me he did see, would have satisfied yow of my friendly inclinationes towards yow and if you Could deall with your uncle, meet me att Breamarr, wednesday morning, being twesday att Cassiltoun, I would endeavour to satisfie him and yow of all friendship in my power, to yow and if yow take my advyce and rely on it, assure your selfe of the reall friendship of your assured friend sic subscribitur Alexander Gordoun, And as to the fourth letter, which is directed and written to his forsaid trusty witnes Wiliam Grierson, It is to be observed that Callum Bain, thought himselfe not secure by takeing back his Charge as a party, Citeing him as a witnes and not relayeing thereon, the said Camdell writes the followeing letter to Calum Grierson, in farther security to the said Calum Bain, and this letter was Imediatly written at the table in presence of both the saids Callums and other witneses as the said letter will testifie where of the tenor followes, Fourth letter, Sir it wonders me Callum Bayn is so suspicious of me, after what severall tymes past betwixt us, yet to Certifie him further, I write this to yow to assure him that in caise he prove so friendly and just as he promises, and professes, and that I gett a decernitur against Knokespack or his sone, my Lord Aboyn shall be no sufferer, and therefore lett Callum be honest and friendly, and both he and yow may be assured of the friendship, and doun right honesty in what I promise, and that I wish weell both to your Selves and your whole friends, being your assured friend Alexander Gordon, Breamarr, the twenty sixth december seventeent hunder, Directed this to Callam Ballater, as to the fifth letter, It may be observed that the same is from the said Callum Grierson to Camdell (designed in the direction, Tillisoul) In ansuer to these of his asureing him, of all his service possible, and telling him of his haveing two viz witneses who designed to srve him, to the outtmost of his power, viz Callan Break and his brother mentioned in Camdells second leter and whereof the tenor followes eighteenth febrij seventeen hunder and and one, Sir I long very much, to hear from yow, Bot since I Come to this Countrey from the tyme I saw yow, except eight or ten dayes the weather hes been so unconstants and the storm so great as it hes been thes fifteen years, I was allwayes expecting to hear from yow by the Aberdeens post, and since I thought long to hear from yow, I have sent these to know your mind, or what Can be here possible Can serve yow, the two young men is dayly and hourly waiteing a Call from yow, and would have att least some of them, leist this Countrey were not, they are designedly sett a purpose to srve yow with all ther pouer and might in what they Can or are able they desyre ye send att least ane true double of the protection if it be gotten, and your positive Information, of what they are to doe or what Srvice they Can Doe for yow, there Can be non more readier, I have keept Callum Bain fully right, to be short, I have obleidged in your name ye will not be his enemy what ever way the mater goes; I am your unchangeable humble servant C: G: Directed thus, to Alexander Gordon of Tilliesoul, as to the sixth letter It is to be observed that the same is written, by the forsaid Callum Bain, to the Earle of Abyon, one of the defenders, that Camdell had promised not to truble, him as a party provideing he deponed against the defenders The said letter Bears, that he had been sometymes with Camdell, who had proposed to him, that he should not be troubled in this action, provideing he would apear, as a witnes, and declaire that the did see Knokespack younger with Brekenar, and heard him order Brekner to desyre the Catrine to plunder Glenkindies house and least he should not Condescend to that, he would find Rynach witneses to prove against himselfe, From all which letters Campdells undue and dishonest practises for suborning of the witneses he was to aduce in this proces, is so evident that he ought to be so farr from being indulged with the favor of a new protection, or dilligence that is stoped, if these letters had been made knowen att first, the Lords of privie Counsell would have refused Camdells witneses any protection and its now hoped when these letters are made knowen the saids Lords will not only refuse protection, but also Censure Campdell as such practiques deserves, as the saids ansuers bears, Which petition with the ansuers forsaids given in therto, being read and Considered be the saids Lords of privie Counsell, they by ther interloquitori of the tenth of July instant, refused and hereby refuses, the desyre of the said petition given in be the said Alexander Strachan of Glenkindie, Captain James Menzies tutor of Weem, and Alexander Gordon of Camdell In respect of the ansuers forsaids given in thereto, Thereafter John Grant in Gaw Largo, Wiliam Farqrson in Tomintoull, James Menzies in Achnahyle, and James Crookshank in Achnhannock, Gave in the petition to the saids Lords of privie Counsell, Showeing that where the petitioners haveing in december last been Cited as witneses in the action depending before the saids Lords of privie Counsell, att the instance of Alexander Gordon of Campdell, against the Earle of Aboyn, Laird of Grant, the Lairds of Knokespack elder and younger, and others, did in obedience thereto Come some myles from our houses in order to have Come south, until wee mett with the said Alexander Gordon, who att that tyme, not only discharged, us from Comeing Because (as he then pretended) of a Submission betuixt him and some of the defenders, in the proces against whom we were to be aduced, But also assured as of fair and tymous premonition, In caise ther were necessity for our Comeing In place whereof he in June last did threaten us with Caption, and obleadged ws give bands of presentation, under penaltyes the tenor whereof are not weell knowen, by such of ws as are illeterat and Cannot write the samen haveing been written by his Brother in law, and the Initiall leters of our names affixed thereto by one Alexander Robertson tenant to the said Alexander Gordon, his Leading our hands, And which bonds are of a narrative that we were att the tyme under Caption, altho: it was not So; all of purpose to evite the payment of our expenses And seing your petitioners not comeing wpon the first Citation was allenarly occasioned, by the said Alexander Gordoun himself, which he Cannot deny wpon his Conscience, and oath of verity whereunto if need bees we referr the Samen Simpliciter, He was therefore Craved that the saids Lords of privie Counsell would be pleased in decern the the said Alexander Gordon to deliver wp and give back the forsaids bonds, of presentation and to make payment to them and ilk ane of them of such soumes of money for their expenses, as the saids Lords of privie Counsell shall be pleased to modifie, as the said petition bears, which petition being wpon the fifteenth of July Instant read in presence of the saids Lords of privie Counsell they by ther deliverance theron on the said day, allowed the said Alexander Gordon of Campdell to See and ansuer the samen And the said Alexander Gordon haveing gotten wp the said petition to See and answer he gave in thereto by way of petition, For Alexander Strachan of Glenkindie, Captain James Menzies tutor of Weems and himselfe, Shewin that where the saids Lords of his Majesties privie Counsell have been pleased to refuse the desyre of their last bill the same did extreamly surpryse and astonish them and they would not truely give the saids Lords any further trouble thereanent, were it nott that some of the petitioners doe wholly depend wpon the event of this proces, and the petitioners humbly Intreats the saids Lords of privie Counsell would Consider Seriously, these followeing reasons, Why the protection and dilligence should be further propogat, primo the Spoulzie Committed wpon Glenkindie was of a most Barbarous Nature accompanied with many agravateing Circumstances, and Campbdell who was formerly persued, was rendored obnoxius and thereby obleidged to agree, and the same witneses and in the same maner now Concluded for against the saids defenders, and it appears very hard, that since he was overtaken, and made and agreement att the Sight of the saids Lords authority that he Canot in the same maner, and by the same probation overtake others who had any accession, to the said depredation, and that nothing was pretended, against Campdell, But his being Landlord to one of the Rogues, Secundo this persuit hes been Carried one by warand of the saids Lords of privie Councill, and wherein their Lordships acted most Justly that so all those who had any the least accession to the forsaid horrid depredation might be brought in the feild and Condingly punished, Tertio It was not possible for the saids Lords petitioners to have acted more dilligently then they have doen in order to have had the whole matter laid before the saids Lords of privie Counsell, they haveing Gripped some witneses and brought them heire and did procure from others bonds of presentation wpon the second dilligence, and were att extraordinary pains and expenses, in searcheing for others who had the benefeit of a protection, but Could not find them, by reason some of them, were now in the Summar tyme removed to Mull, and others elswhere, so that they Could doe no more and truely if they had been any maneer of way in mora, or were Indeavoureing to protract tyme thereby to putt the defenders, to expenses, some thing might be pretended, But when this ther dilligence is so weell instructed, and that the saids Lords petitioners are most earnest and bent to have the mater fully laid before ther Lordships the petitioners Cannot but presume, it will yet be reconsidered. Quarto the defenders take a great liberty to themselves in representing so many Callumnies against the saids Lords petitioners, and as to what is aleadged anent Grierson of Ballater, he was att first persued as a party be Glenkindie, prior to any decernitor against Camdell, and a decreet in absence against him before the Commisioners of Justiciary But finding he was not able to pay the same he might Justly be desired to make a discovery of the whole matter, and to Concurr by his Information to discover, all the accessories to the forsaid depredation, which was the end of the saids Lords of privie Counsell ther warrand to insist in this proces Quinto the defenders make a great ruise with Camdells letters; all which he both will and Can Justifie to all the world, the Same Contameing now undue steps But only an accompt of this dilligence, in order to have a full discovery of the whole matter, made as he will Clearly make appear, when the proces Comes to be Concluded, and advysed and hartely subject all to their Lordships, Consideration and it is perfectly knowen, that unless methods be taken, with all persones, discoveries in matters of Robberies Can never be made, Sexto as to what is Represented anent Callam Bain tenant to the Earle of Aboyn, he was still insisted against as a pairty, and never intended to be made use of as a witness, nor have the persuars any execution against him as such, and it is not understood how it Could be any Cryme, or in the least ane illegall Step, tho kindness should have been offered him a defender, provideing he would ingeniously discover, all the Intrigues of the matter, and what associationes were entered into betwixt him, and Inverebrue Knokespacks brother, as burdern bearer for the said brother and nephew, thereby to bind wp the said Callam Bain, from makeing any discoverie, Septimo The objection made against the assignation from Bellchirie Cannot have the least force, for that the first assignation, was produced, and alltho the same is fallen by yet nothing Hinders Belchirie from reneweing the first and it is Jus tertij to the defenders to quarell the same, The defenders doe not rest in getting the desyre of our bill refused But likewayes, obleidge these witneses who were brought wp by a second dilligence to apply to your Lordships for expenses To which it is ansuered that no expenses Can be due to witneses who were brought up by vertue of a Caption, and who gave bonds of presentation as the effect of the said Caption, as they acknowledge themselves, But secundo it were above measure hard to obleidge the persuars to pay them expenses and yet that ther despositiones should not be taken tho they were brought up in due tyme and they so oft desyred, by which means the persuars Could not have, the least benefeit, but this step of the defenders doe sufficiently evidence their vexatious humour, in the said mater, These things being truely Considered be the saids Lords of privie Counsell, and the very hard Circumstances to which Camdell is brought by this proces first and last, he haveing been tendered lyable in ane Considerable soume, and that by the said Lords of privie Counsell ther sentance, So that he was neccessitat to yeild, and what he now presents Is by warrand of the saids Lords of privie Counsell which Certainly Caries the more authority with it It was therefore Craved that the saids Lords of privie Counsell would be pleased seriously to Consider the premises, and yet to revise your former interloquitor, and allow the protection and Second dilligence to be prorogat to what tyme the said Lords shall think fitt, and to ordain the witneses wpon the place to be aduced that so they may be alloued yet the opurtunity of discovereing this hidden mistery and every one who had the least accession to the forsaid Barbarity, may have ther own Share in the punishment due by Law, and likewayes to find that the petitioners are not lyable for any expenses to those who were brought wp by vertue of a second dilligence and wpon ther own bonds of presentation, as the said petition by way of ansuer beares, Which petition Given in be the said John Grant, and other witnesses with a petition be way of ansuers thereto, be the saids Lairds of Glenkindie Captain James Menzies tutor of Weem And Alexander Gordon of Campdell being read and Considered in presence of the saids Lords of his majesties privie Counsell, they by ther Interloquitor of the date the seventeenth day of July Instant adheared to ther former Interloquitor, of the date the tenth day of July instant, as to the protection and Caption, and allowed the witneses who are Cited and not examined and were not Contained in the said protection and Caption to be received be the former Commity and as to the expenses Craved for the witneses in the saids proces refused to give ansuer, thereto untill the Conclusion or advyseing of the Caise and the said Alexander Strachan of Glenkindie Captain James Strachan tutor of Weem and Alexander Gordon of Camdell Gave in a new petition to the saids Lords of privie Counsell Representing that where, ther Lordships petitioners humbly beg pardon for giveing them such frequent truble, which the petitioners hops ther Lordships will be pleased to Interpret favorably wpon ther parte, and were it not that the petitioners interest lyes so much att the stake they would not be guilty of this presumption By the former proces against the said Alexander Gordon of Camdell The saids Lords of his Majesties privie Counsell were pleased to find him lyable, and allowed these to be aduced as witneses who were not only sorij Criminis, But even they themselves found guilty, as haveing accession to the barbareous depredationes, and Roberries Commited wpon Glenkindie and Belchirie wherein he was obleidged to acquiesce being so found by the saids Lords, and with the same beneath ther Lordships were pleased to allow the petitioners to Concurr togather in order to bring all these in the feild who had any the least accession, to the said Roberrie Wpon the faith whereof he the said Alexander Gordain was not only forced to transport with Glenkindie etc, But Likewayes to intent proces before the saids Lords of his majesties privie Counsell in order to make discovery of those who were Concerned in the said Robery, That so all those who were Concerned therein might be brought in to the feild, and each person punished, Conform to his demerite, and the lawes of this nation, and the saids Lords haveing been pleased to grant protection to these witneses, who were Concerned in the said Robery and a second dilligence against the witneses who were Concerned in the said Robery and Cited, that so the whole matter might be laid plainly and fairly before the saids Lords of privie Counsell, In obedience to their Lordships Interloquitor Search hes been dilligently made for the witneses so protected and others have granted bonds of presentation in order to Compear before the saids Lords of privie Counsell, and declare the truth, but all his proven ineffectuall, hitherto by the absconding of some, and the non Compearance of others, notwithstanding of these saids bonds and some were here present in order to depone wpon the petitioners Complaint And the said Represented to the saids Lords Craveing that they might be examined and that the protection and second dilligence might be prorogat for some tyme, yett the the saids Lords of his majesties privie Counsell were pleased to refuse the same, The petitioners will not reclaim against what the saids Lords have done, But only begg live to Represent the hardships under which Captain Menzies and Camdell are trysted with, Such as primo the former Complaint is sustained relivant, against them att Glenkindies instance and they found lyable to be proven by witneses protected, and which they now Crave may be admired, Conform to the saids Lords former Interloquitor, and the saids Captain Menzies and Campdell humbly supposes, that they are als habile now for them, as they were teir against them Secundo it was supposed that it did still redound, to the interest of the Government and the safety and interest of each particular subject, that all might be discovered who had any accession to the said Roberies wpon the faith wherof they were att pains and great expenses to try out for every dividuall person, who was Concerned therein, and therefore had some witneses in toun to be examined, and were timeously offered before the dayes of the protection were runn out although they were trysted with many difficulties therin, Tertio, They have not any maner of way been in mora, and Considereing with whom they have to doe, who are not negligent to Improve all advantages, it is a wonder, they had any witneses here att all and the petitioners Can never make themselves beleive the saids Lords will refuse their testimonies to be aduced, Considereing what methods have been used to dissapoynt any probation, and they did represent in ther former petition, and that after they had been att pains and expenses, to bring wp John Mackarter as a witnes, he was taken and Committed to prison, By which means, no other protected witnes, will adventure to appear, by which no discovery Can be made of any who had acession to the said Roberies It was therefore humbly intreated that the saids Lords would yet be pleased to Consider the petitioners Circumstances who humbly acquiesced in their Lordships former Interloquitor against them and wpon the faith wherof did Commence this Complaint and who were decerned wpon the depositiones of witneses formerly Convicted and protected to witnes against them, That therefore the saids Lords of his majesties privie Counsell would be pleased to ordain the said John Mcartor to be sett att Liberty, and to Continue ther protection to him, and Wiliam Bain, Both here in toun untill they be examined by the Commitie, and some few dayes thereafter, as the said petition bears which petition being wpon the day and date hereof Read in presence of and Considered by the saids Lords of his majesties privie Counsell they by there deliverance theron of the same date have refused and hereby refuses, the desyre of the said petition, and the saids Lords of his majesties privie Counsell, haveing Considered the above lybell, att the instance of the said Alexander Strachan of Glenkindie Captain James Menzies tutor of Weems and Alexander Gordon of Camdell with Concurse of his majesties advocat, against the Earle of Aboyne, Ludovick Grant of that ilk and John Gordon elder and younger of Knokespack, with ther former Interloquitor thereon, as also the decreet absolvitor In favors of the saids John Gordons elder and younger of Knockespack before the Justiciarij for the northern district, and haveing this day advysed the depositiones of the witneses laid be the persuars they find that Alexander Brebner was no meniall servant to Knokespack younger, and also that ther was no other poynt of the lybell proven against the saids defenders, And therefore have assolzied and hereby assolzies the saids defenders above named from the haill poynts and articles lybelled against them, and have declaired and hereby declaires them quyte therof and free ther frae now and in all tyme comeing Extracted by me
Att Edinburgh the tuenty fourth of July one thousand seven hundreth and one yeares
D1701/7/21
Decreet
Decreet absolvitor Earl of Aboyn Laird of Grant and Knokespack against The Lairds of Glenkindie Camdell and the tutor of Weems
Anent the principall lybell or letters of complaint raised and persued before the Lords of her majesties privie Counsell att the instance of Alexander Strachan of Glenkindie, Captain James Menzies, tutor of Weems, and Alexander Gordon of Camdell, with Concurse of Sir James Stewart her Majesties advocat for his highnes interest in the mater lybelled Conform to the Lords of his Majesties privie Councill ther act and ordinance of the date the second day of August last by past, one thousand seen hunder years, against John Crookshank in Kinnaclara John Cameron, Comonly Called Stewartack, Break Lodovick Grant of that ilk ther master, John Gordon younger thereof, and Adam Gordoun late of Glenbucket, Colinn Bain Mcphatrick Alister some tyme att miln of Larie, new in Richarlarie, and Charles Earle of Aboyn his master, makeing mention That where by the lawes of this and all other weell Governed Realmes, Haim Sucken, thift Stouth releife or Robery, depredation and Speulzie ar hyneous and atrocious Crimes, and ought to be most Leberly punished, Likeas by the lawes and acts of parliament notourly the persones guilty actors airt and pairt of the saids Crimes, are to be punished, for the same, But also all Landlords Bailies Masters and heretors, whither wodsetters or liferenters, within whose whose Ground and bounds the saids persones did live the tyme of Committing the saids Crimes or have since lived and been resett within the bounds of the higlands, and others mentioned in the said act of parliament are lyable for restitution of the goods stollen Robbed Spulzied and away taken and full availl and profeits therof, and for reparation and refounding of all damnages and expenses sustained by the party Injured, and the saids Loandlords heretors and others, are likewayes lyable to present the persones of the saids Criminalls to Justice, if so be they did reside within ther bounds and lands fourty eight houres before or after the fact, over and above the restitution and Reparation forsaid as the saids acts of parliament, viz James sixt parliament eleventh Chap: nynty three nynty four nynty seven and and hundred and third Item parliament fourteen Chap: two hundred and tuenty seven and parliament fifteenth Chap: two hundred and sixty two, and others more fully bear, nevertheless true it is and of verity that John Cruikshank in […] Duncan Cruickshank his son John Cameron Comonly Called Stewartack Brackland […] Grant alias Mcgrigor liveing under Ludovick Grant of that ilk, Earle of Aboyne with severall others ther associats and accomplices, did wpon the tenth day of October one thousand six hunder and nynty eight yeares, or ane or other of the dayes of the said moneth, shakeing of all fear of God, and obedience to his majesties Laues under Cloud and silence of night being armed with Guns swords and other weapons Invasively most masterfully and wrongously attacked the house of the said Alexander Strachan of Glenkindie, brook wp his doors, laid violent hands upon himselfe, and mortally wounded him, and bound him as a Comon theife and malfactor and thereafter Spulzied Robbed and away took furth of the said house the soumes of mooney goods gear Insight plinishing, and others after specified viz a broad sword with a silver hand the pryce twelve pounds scots money Item a small sword worth six pounds scots, Item a sword bell worth three pound Item a pare of Holster pistolls price twenty four pound, Item nyne Gunns worth twelve pound the peice, Item a sword staff, with silver Rivatts worth twelve pound, Item eighteen silver spoons worth six pound the peice, Item two silver Tumblers worth twelve pound the peice Item ane sute of Fine black Clothes with phish Bretches worth seventy five pound Item ane learge Denoon Coat and Bretches pryce tweenty peund Item four Coats and silver buttons on them Estimat to threty four pound the peice, Item five Dozen of silver Buttons not wpon Cloaths worth three pound twlve shilling per dezen Item ane enambled Gold Ring with a large Diamond stone pryce ane hundred peund Item ane other Gold Ring worth ten peund Item sixteen elns of Colored stuff att twenty shilling per elne, Item ten elnes of Striped stuff pryce ten peund, Item twenty ells of linning price fifteen shilling per ell Item ten pare of stockens worth ten peund, nyne shirts worth three peund the peice, Item Linens such as Gravats sleives and nepkines worth fourty pound, Item two pare of shoes and a pare of silver buckles pryce eight pounds Item twenty nyne pare of Blankets worth ten merks the pare Item ten pare of beds sheets att ten merks the pare Item ten Codreears att ten shilling the peice, Item two empty bolsters att three pound the peice a Large Brass pann worth four pound Item Couruteins and hangings of beds worth five pound, Item Linen table Cloathes servets and loules worth twenty four pound, Item two piriwiges worth nyne pound the peice, Item Razor and shirers with a foot of measure worth five pound, Item two horses pryce twenty seven pound the peice, Robbed and away taken of reall Current money the soume of two thousand and five hundreth pounds Scots money Item the annualrent of the said soume since away takeing thereof retention being allowed, Item of damnage and determent done to a pendelum Clock weather Glas, and Cabinet and severall other things about the house, the soume of fifty pounds, all scots money forsaid And true It is that Wiliam Mckonachie sometyme in Bellabeg, now in Achnabyrle Liveing ther under Lauchlan Grant of Belnabo, his master is actor airt and pairt of the said depredation by resett of some of the goods stollen spoulzied and away taken, and Harboureing the above depredators and ther acomplices, and by out hounding and giveing advyce or assisstance for Committing of the saids Crymes, And also, true It is that Grigor Grant alias Org of Dellavorer, and John Grant of Dellavorer his Father, being Foresters of Glenaven, did Correspond with some of the Robers who were in accession to the forsaid Roberie, in ther return therfrae, they haveing resided a Considerable Space in the said Grigor Grant and his Fathers ther Shealling in the said Forest to ther knowledge, and the said Grigor or his fathr gott ane Sword Ladle and other things from them, and likewayes had given prior advyce to some of them for prejudgeing Glenkindie, And sicklie true it is that the said Ludowick Grant of that ilk is principall Landlord house holder heretor or wedsetter, of the lands wherewpon the saids John and Duncan Crukshanks John Cameron and […] Grant alias Mcgrigor, lived the tyme of ther Committing and haveing accssion to the saids Crimes, the said Charles Earle of Aboyne was principall Landlord, householder or wedsetter, of the lands wherewpon Calam Bayne Mcphatcik Alister lived the tyme of Committing of or haveing accession to the saids Crimes, and sicklyke the said Lauchlan Grant of Dalnabo is principall Landlord heretor or householder of the lands wherewpon the said William Mckonachie lived the tyme of the forsaid horid depredation, att least they had lands in tillage and pasturage of ther respective masters above Specified, and were Intertained and resett by them, as ther followers and dependers and Sicklyke albeit John Gordoun elder of Knokespeck and John Gordon younger thereof were herfied in a former proces att Glenkindies instance before the Commissioners of Justiciary for the northern District att Insh the twenty nynth of december last, as Landlords heretors or Masters to Alexander Brember in Eeaster Bucket who was Condemned and hanged for the forsaid depredation, and hame succken, and that they were most unjustly assolzied by the saids Commissioners, yet neverthess true It is and of verity that the said John Gordon late Heretor of Glenbucket, att least in possession therof the tyme of Committing the forsaid Crime, or att least principall Landlords and Masters in the said deceast Alexander Brember who had accession thereto and was hanged therefore as said is, and sicklyke the said John Gordon younger of Knokespeck was Landlord hoseholder or master to the said Alexander Brember, att least the said Alexander Brember was his officer meniall servant or pleugh man, the tyme of Committing the said depredation, and the said John and Adam Gordons was in the knowledge of the saids depredators, being harbored resett and intertained in the said Alexander Brember his house, fourty eight hours before or after Commiting of the said Cryme, And sicklyke true It is that John Mcgillenders sometyme in Keppoch, with others his accomplices, did Come wpon the twelth of September one thousand six hunder and nynty eight yeares or ane or other of the dayes of the said moneth, to the toun Bellchirie, in the parish of Cabroch, and Sreffdome of Bamff in armes, invasive in maner forsaid and did violently and masterfully Robb spoulzie and away take out of the samen bounds of the said toun of Bellachirie, the number and quantity and Species of Catle Belonging to Alexander Leith of Bellchirie, after Specified, to witt sixty head of nolt young and old and three maires, and that the said Alexander Leith would have had of Damnage and loss in Tassalling and Conveening men for recovereing of the forsaids goods, wpwards of the soume of six hundred merks, besides the loss of two of the Catle worth threty pound the peice, which the killed and did eat, and the rest of the Catle being overdriven and weeried by excessive travell and want of meal were rendered almost use less to him before he gott them home, and not worth the halfe of the pryce they were worth before, as they that apprysed them when they Cam home Can witnes, Likeas his loss was yet greater In so farr as the saids three maires by the Burst as said is, took deseases and and infected his whole work horses wherof seven dyed worth twenty pounds the peice to the Loss and damnage he sustained by the depredation would have been wpwards of ane thousand pounds as shall be instructed, In and to the which doeing the said Alexander Strachan of Glenkindie his right by assignation be the said Alexander Leith of the date the twenty fifth day of March one thousand six hunder and nynty nyne years as the samen produced bears and that the said Adam Gordon of Glenbucket and John Gordoun younger of Knockspeck or ane or other of Both of them did out hound advyse assist or Correspond with the said John Mcgillenders, or others his accomplices for and towards ther Comitteing the forsadi depredation and Roberty wpon the said Alexander Leith, att least did meet or tryst with the forsaid depredators, both in Strathdoun and Glenbucket and gave advyce therin, and also to Conspyre against and prejudge Glenkindie wpon the […] day of September one thousand six hundered and nynty eight yeares, or ane or other of the dayes of the said moneth of September agust or July Imediatly preceeding And true it is that Robert Mckerten sometyme in Carrie now in Aird, did resett forth fie and mantain some of the depredators and Robers, of the said Alexander Stratchan of Glenkindie his house in ther return therefrae with some of the goods so stollen and Robbed, And true it is that Endingwig in […] who was one of the depredators and Robers of the said Alexander Strachan of Glenkindie, his house, lived and Resided, att least he had house or land in Tillage, and pasturage of him, and was intertained and resett by him, as his follower and depender, both before att and since Commission of the forsaid Robbery, In Respect whereof the saids John and Duncan Cruikshanks John Cameron Comonly Called Stewartack Break and […] Grant alias Mcgrigor, and Ludovick Grant of that Ilk ther master, Colin Bain Mcphatrick Alester, and Charles Earle of Abyon his master, Wiliam Mckonachie their in Bellmabogg, now in Auchnahoylle, and Lauchlan Grant of Dalnabo his master Grigor Grant alias Oig of Dellavorer, and John Grant of Dellavorer his Father, Adam Gordoun sometyme of Glenbucket, John Gordon Elder of Knokespock now of Glenbucket and John Gordoun younger of Knokespeck Robert Mckerter sometyme in Carrie now in Aird and the said […] as master to the said Angus Mcboill Endanjwies ought and should be made lyable for the Crimes above mentioned, and to the restitution and Reparation above lybelled, as guilty actors airt and parte, or otherwayes lyable for the for the same Conform to the forsaids acts of parliament and that Conjunctllie and severally which being proven they and each of them ought and should be decerned to make payment and satisfaction to the saids persewers of the soumes of money above mentioned and of the avialls and pryces of the goods and gear above specified extending in haill to the soume of […] and als to make payment to the saids persewers of the soume specified for the damnage tascall money and expenses wared out by the said Alexander Strachan in persueing the said Captain James Menzies and Alexander Gordon, But also the expenses and damnage wared one and sustained and to be wared out and sustained by the saids persuers In the termes of the said act and ordinance of the Lords of her majesties privie Counsell and sicklyke further punished in ther persones and goods, and decerned to find Caution for the saids persuers ther security in tymecomeing att sight of the Lords of her majesties privie Counsell to the example and terror of others to Committ the like in tymecomeing And anent the Charge given to the fornamed persones defenders, to have Compeired personally before the saids Lords of her majesties privie Counsell att ane Certain day bygone to have ansuered to the forsaid Complaint and to have heard and seen such ordor and Course taken thereanent as appertains with Certification as in the said principall Letters of Complaint or Lybell raised in the said matter att more length is Contained, And which Lybell wpon the sixth day of march last bypast Called in presence of the saids Lords of his majesties privie Counsell, and the said Alexander Strachan, and James Menzies the two first persuars being oft tymes Called and not Compeireing, and the said Alexander Gordoun of Camdell the third persuar Compeireing personally with Sir David Dalrymple on of his majestis solicitors Mr Robert Forbes senior advocat […] For the haill persuars, and the defenders being partly absent and partly present as they are marked on the Roll, and Sir David Thoirs Sir Alexander Cumming of Culter Mr Francis Grant Mr James Nesmouth and Mr Patrick Leith […] advocats Compeireing as procurators for the haill defenders Gave in the ansuers or defences followeing to the said lybell, for John Gordoun Elder and younger of Knokespeck, and Adam Gordoun of Glenbucket, viz Before thir defenders offer any particular defences to this irrelivant and callumnius lybell, his majesties high Comissioner, and the right honourball the Lords of his majesties privie Counsell, will be pleased to be Informed, That Glenkindie one of the present persuars, haveing by a proces before the Northern Justiciary, Conveened the other two persuars Captain Menzies and Alexander Gordon of Campdell they were thereby Convict of a most Barbarous depredation for repareing whereof Glenkindie obtained decreet against them for twelve thousand merks or therby, Captain Menzies and his tenants being thus overtaken by the Justice of that Judicatorie, and finding no means to evite the execution to follow on Glenkindies decreet, They agree that Captain Menzies and these depending on him should furnish sufficient probation against other responsall persones as guilty of the depredation Committed on Glenkindie, on ther own Charge wpon performance whereof they were to be Discharged: and this accepted of by Glenkindie to serve against the hazard of a suspension which Captain Menzies had obtained against him and other Speciall accompts; Upon this agreement Glenkindie applyes to the Counsell, who knew nothing of the Contrivance, Craveing relaxation and Indemnity for severall of Captain Menzies tenants against whom he had obtained decreet as neccessary witnesses against others, and this being secunded by petition from the tenants themselves to the same purpose the desyres of both petitiones were granted, parte in audita et periculo petentium, This fraudfull Contributione being so farr advanced Glenkindie persued the said Alexander Gordoun of Campdell and obtains decreet against him for […] merks and the Likewayes persues the saids John Gordons elder and younger of Knokespeck as heretors of the lands of Glenbucket, where Alexander Brebner, who resett the depredators had his residence, and as intertaineing him as a ploughman or servant and as hunders out and abaters of him, and the other depredators But tho Campdell was found guilty, yet Knockbespeck elder and younger were assolzied, after full debate and probation lade, and this prompted Campdell to follow Captain Menzies method for seureing himself so that in the Close these two enter in to a new agreement That for their releife they should provyde probation against Kockespacks elder and younger and Adam Gordoun of Glenbucket, whereby they might be found guilty of the depredation Committed on Glendkindie, being assigned to by him to all that should be recovered on the event, and in prosecution of this shamefull agreement they have intented the present persuit whereby they not only Conveen thir present defenders as lyable for the damnages of the barbarous depredation Comitted on Glenkindie, But Likewayes as out hunding, advyseing, assisting and Corresponding, meeting and trysting, with John Mcgillenders, and others guilty of a late depredation, Committed of late on Bellochirie, to which Glenkindie hes acquired right, This being a plain and obvious Contrivance to free and liberat the guilty from the Just punishment of law, and by ther own testymonies to insnare and overach thir defenders, who are knowen to be Gentlemen of probity, and whose Character in the Countrey they live in is sufficient to vindicat them, from the lest suspicion of the Barbarous Crymes they are not charged with, Its humbly and Confidently expected, That the right honouraball the Lords of his Majesties privie Councell will proceed to the discusseing of this with due reguard to the odious Circumstances premises of the persuars lybell, and to the defenders inocent and peaceable Characters, and the Justice of ther folloueing defences, To rest then denyeing the whole matters of fact, as qualified and Circumstantiat in the lybell the defenders ought to be assolzied, from the generall Conclusion, in als farr as, Glenkindie is truely satisfied and payed either by the decreets recovered att his Instance, against the persones lybelled in the depredation Committed, against him, or otherwayes by transactiones, which is equivolant so that no assignation made by him in favors of Captain Menzies and Gordoun of Camdell with whom he hath agreed is lyable to him in the damnage of the depredation, Can subsist as the ground of his persuit, Secundo et seperatum albeit the persuars title were sustained as it Canot Instantly be, Knockbespecks elder and youger must be assolzied, seing they were formerly Conveened for the same individuall Cryme, Before the northern Justiciary, and probation aduced against them, and wpon advyseing of both lybel and probation, they were both assolzied after which it is positively Contended they Cannot again be Conveened for the same Individuall Crime without the least variation and as all defenders after Crimes are proven are most unfavorable, yet till then they are still presumed innocent; So much more most parties innocence be Secured after the undergoeing of a Rigid tryall, and there being assolized by the sentance of a supream Judicator and its thought Strange that the presuars should have the Confidence to insist in this new lybell before the Councill, which is preceisly the same not only in substance, but in the very words with the former, Before the northern Justiciary, wherein they succumbed and wpon which the defenders were assolzied, and which decreet stands yet unquarrelled or reduced; The defence of res Judicata, Cannot be more favorably urged in any Case then this, For primo it is Certainly Competent tho founded only on a decreet of ane Inferior Judge, which haveing no evident nullity, is relivant untill it be reduced, much more when the same, is founded on the sentance of a Supreeme Judge, and yet more Especially in a Criminall persuit ubj agitur do vita hominis Its true that Alexander Gordoun of Campdell and Captain Menzies, doe in thie proces Joyn with Glenkindie, who was the Loll persuar in the first proces, before the northern Justicary, but that will not alter the Case for as res Judicata, is not only relivant when founded on ane decreet between the persuar and defender, but Likewayes between there predecessors or authors, so much were it must be sustained, In this present Case where Glenkindie is not only auther and Cedent, to the other persuars, who have otherways no right, but where Glenkindies own right is Certainly extinguished, tho keepts wp as a Colour and pretext, whereby the other persuars may overeach and Catch advantage of the present defenders, It is likewayes observable that he present defence of res Judicata may further astructed, from this Circumstance that the former decreet was ane absolvitor, and had not only the same Conclusion, but proceeded wpon the same media Concludendj, which makes it ane absolute and full security in all events to thir defenders, and Lastly as the former decreet whereby the defenders are absolved stands yet unquarrelled, and unredduced, So if it were Covenient to bring the same under a review it would be found very full and formall in all respects, otherwayes without doubt the persuars had attempted before this tyme to have taken off its effects in a Legall way; and as this defence of res Judicata if Sustained, most assolzie the defenders, so on the other hand if It were ever ruled, and thir defenders again subjected to a new tryall, it would found a precedance of very dangerous Consequence for the former decreet whereby thir defenders were absolved is not taxed either of Informality or iniquity by this new lybell, Secundo if the defence of res Judicata were repelled, it Could be too no other effect then to allow, a new probation, and by this method no man Could be secure from perpetuall trouble, and the litigious humour of any persuar might perpetuat Criminall processes, not only dureing mens lives, but revive the same against their aires, which for the generall good and quiet of the nation, ought to be prevented and Tertio this were to make our lawes (which are Introduced for our Security and quiet) ane Incouragement to the worst of men to stetch ther invention, and Imploy their Industrie to procure witneses to prove the Greatest of falsehoods against the most innocent, and by a second thrid of fourth probation to make up what they Could not farely prove att first, and this present occasion thir defenders beg live to represent ther present Circumstances to the Lords Consideration, seing from what is premised, Its evident that the witneses to be aducced against them, are persones who cannot otherwayes secure themselves themselves, but by fixeing the guilt Lybelled wpon others, they are persones who by the Relaxation granted to them wpon ther oun desires, which proves them guilty, have but too great incuragement to attemp the Involveing of others, tho: never so Innocent, in the like Crimes and lastly they are persones who most evidently lose or win on the event of this proces that which is most valuable to all men, Life, Liberty, and fortune, and how dangerous this may be to the people of all Ranks of this nation if once allowed by authority is too obvius Tertio but further satisfaction and adhereing to the former defence, the defenders in the third place doe Content, that they Cannot be Conveeened, as heretors of the lands where the resetters lived, For Besides that ther is no foundation therefore, in the acts of parliament libelled, It is Instantly verified, that John Gordoun elder of Knokbespeck, had not acquired his right to the lands of Glenbucket for a Considerable tyme after the depredation and att the tyme therof, the other defender Adam Gordoun, Can in no Construction of law be understood heretor of the same, for tho his Father died infeft, yet he hes frequently renunced to be air, and the Estate is long since adjudged by many Creditors, who are in ~~a~~ possession by a factor authorized by the Lords on ther apprehending Quarto the defenders Cannot be insisted against as heretors, possessors Landlords, or overloads of the lands where […] Bribnar lived who was hanged as guilty of resetting, Glenkindies depredators Because the lybell acknowledges, and it is not Contraverted, But that he lived in the lands off Easter bucket, and the defenders produce the Seasine of Jean Douglass who liferents these individuall lands, and its known that as the Liferenters and not the Heretrors give bond in the Highlands for the good Behaviour of the possessors and the residenters on the ground So these only and not the former, are lyable and accomptable, for ther thifts and Robberies, this then will sufficiently instruct, that the lands of Easter Bucket, where Brybner the resetter lived, being att present and att the tyme of the depredation, Liferented, and a distinct tenement from the other lands of the Estate of Glenbucket, the defenders in this proces Cannot by lyable, for the depredations Committed by any liveing or resideing wpon the ame, Quinto what the Lybell bears of Knokespeck younger his being accessory hunder out, and on of the accomplices of depredation lybelled, it is not only most Callumnius but likewayes irrelevant not Condescending quo modo he was accomplice had acession or hunded out, and for a further evidence, of the falsehood of this aleadgence, the defenders doe positively inform that Knokespack younger nether Speaks nor understands one word of the HIghland tongue which made his Correspondence with the depredators impracticable; Sexto the aleadgence that Knokespack younger was Landlord, Householder or master, to Alexander Brybner the resetter of the depredators is likewayes Calumnious, But albeit It were true, as it is not, it is sufficiently purged, […] traditione for it is not Contraverted that Brybner was delivered and hanged by the Justiciary, Septimo what is lybelled of Knokespeck younger, his knowledge of the Robbers, being Harboured with Brybner Seems not to be serious For besides that it is absolutely false, naked knowledge in this Case Can Import no Cryme, Especially in a person who by no publict Charter was under the least obligation to apprehend the depredators Octavo after a Congestion of so many false and irrelevant absurdities, the lybell fixes last wpon what may perhaps apear more materiall viz that Glenbucket and Knokbespeck younger out hunded advysed and assisted, John Mcgillenders ane notoreous Robert, and others guilty of a late depredation against Belchirie, to which Glenkindie is assigned But this parte of the Lybell is also shamefull and ill founded as the rest. For first in alls farr as it is generall It is absolute by Irrelivant, and farder it is offered to be proven that the depredation on Bellchirie was Committed by and most of the goods gott back from a Notorious Robert Called the Halked Steer, who resided on Glenkindies own lands both Before and the depredation, and was suplyed by him with money and provision, the very night on which the Roberty was Committed, So that Glenkindie being himselfe lyable for damnage Cannot be the persuar of this proces, and Lastly the lybell ought to have Condescended on the particular acts of out hunding advyseing Corresponding, assisting etc that So the defenders might have been the more able to exculpate; One the whole matter the Lords are intreated to Consider, the Singular and extraordinary Circumstances, of this persuit, handed doun by degrees from the partie first injured; by a depredation, to these who are found guilty of the Cryme, and from these to other accomplices, likewayes Justly overtaken by the Law, without any other design then to ensnare severall peaceable and innocent Gentlemen, who have no small ground to suspect that witneses may be procured against them, for proveing the greatest Calumnies Can be invented, So that if the Justice of this Honouraball Judicatory doe not secure the defenders Innocence, from the danger and hazard of So malicious a Contrivance, and of so unprecedented a persuit, the many lawes made for secureing the peace of the Highlands, will be so farr from workeing there designed effect that on the Contrair they will give occasion to infinite disorders, whereby the most innocent may be most Ready to Suffer, The Lybell and defenders being both Read the persuers declaired they passed from Adam Gordoun of Glenbucket as a partie in this proces and the saids Lords of her majesties privie Councill haveing Considered the Lybell and defences for the defenders, and haveing heard both parties Lawiers fully att the Barr, they admitted the Lybell to the persuars probation, and the witneses Cited in this proces haveing Compeired or being absent as they are marked in the Roll and such of the witnesses as Compeired haveing made faith att the Councill Barr, the Councill nominated and appoynted a Commitie of ther own number for examineing of the saids witnesses and declaired that the witneses are not to be examined, wpon any poynts of fact, wherewpon any witneses have already deponed, before the Comissionars of Justiciary in the north, or otherwayes and granted further dilligence against the witneses Called and not Compeireing, By Caption, and ordained Belchiries assignation to Alexander Strachan of Glenkindie to be produced to the Commitie Before any witnesses be aduced wpon any poynts Contained in the lybell of the depredation Comitted on Belchirie, or examining thereanent, which Commitie haveing mett wpon the threeteenth day of March last the took and received the oaths and depositiones of diverse and Sundrie famous witneses, who being all solemnly sworn and examined in the said matter, wpon ther great oathes Deponed and declaired as ther oathes and depositiones subscribed be them lyeing in proces bears […] Thereafter the said Alexander Strachan of Glenkindie, Captain James Menzies tutor of Weems, Alexander Gordon of Campdell Gave in a petition to the saids Lords of his majesties privie Counsell, Craveing that whereas in the action persued att there instance before the Saids Lords of privie Counsell, and by ther express warrand against John Crookshanks in Kinarra, John Cameron Comonly Called Stewartach Breack, John Gordouns elder and younger of Knokespacks and other to the effect Complices and accessories to the Roberies Commited against the said Glenkindie might be in the feild and that the saids Lords might determine wpon his reparation, according as the degree of ther acession should appear, they obtained a protection to the witneses, till this day, of which protected witneses John Mcartor Brother to Robert Mcartor of Aird, and Wiliam Bay Mcpherson in Pittgallish, are only Brought wp, and that by a second dilligence, But Calym Breake and Grigor Breake his Borther, tho: they were apprehended, and gave bonds of presentation yett they failed, Likeas Rorie Kenneddie in Camiferach Alexander Menzies in Kinclacher Donald Cameron sometyme in Camiferach John Roy Menzies there, and Angus Mccoill vesandinvig in […] notwithstanding of a second dilligence against them Could not be found, But after search made It was understood, that now in the summartyme, some of them were gon to Mull and others else where, And seing that all these seven persones are neccessarie witneses, and therefore have gott protection from the saids Lords, and that they have failzied to Compeir, Notwithstanding of our outmost dilligence, It was Therefore Humbly Craved that the saids Lords would be pleased to Coninou ther said protection and dilligence till the first of Agust Inclusive, that in the mean tyme they may bring them up be vertue of the said Captain, And also to ordain, that the said John Mccarter, William Bayn Mcpherson, togather with William Farpson in Tomintoull, James Menzies in Gaw Largo John Grant ther and James Crookshank in Auchinhandat who are all heir in toun may be examined before a Comitty of ther Lordships number, appoynted for that effect, and that the said protection, as to such of them as is therein Contained may also be Continued untill they be examined, and a few dayes thereafter, as the saids Lords of prive Counsell shall see Cause, as the said petition bears, which petition being wpon the first day of July Instant read in presence of the saids Lords of his Majesties privie Counsell, they by ther deliverance therewpon that day allowed the Earle of Aboyne, Laird of Grant and John Gordons elder and younger of Knokespack, gave in the ansuers followeing, Camdell being Justly overtaken, for tou Barbarous depredations Comitted on Glenkindie and Belchirie, does freet all his loss, But takes very unjusticeable methods, for repareing it by ane Indefatigable, makeing such witneses against the defenders (as if they could be be admitted) ther is no man secure of his life or fortune But it was weell fallen out, That of Campdells protected witneses, some have shrunk and ther Curage failzied them to Come wp, and of the two who are arrived, one of them named Mcarthur is in prison by warrand from his majesties advocat, and is truely one of the most villanous Criminalls in the nation, as may be knowen to some of the Honourable boord, Tho: this be a swatch of the peice, yet Campdell hes taken the Confidence after expyreing of the former protection and a second dilligence to Crave a new protection, and dilligence against a parcell of notorius Robers mentioned in his petition, as also that his other witnesses Come wp may be examined, It is ansuered to this last that the defenders doe not decline the examination of four witneses for whom protection is not asked, provideing they be only examined wpon Glenkindies depredation in the in the termes of the Interloquitor in march last, declaireing that no witneses were to be alloued to depone wpon any poynts, wherwpon ther was probation already laid before the Comissioners of Justiciary, for the northern district. But as to the depredation on Belchirie, ther Can be no witneses admitted to make faith or be examined therewpon Because the forsaid Interloquitor allowes no such probation, till Belchiries assignation (which is the title of this proces) be produced and this is never done to this hour. It is true It is Informed, that ther is a new assignation from Belchirie, dated in this present year Seventeen hunder and one, putt in the Clerks hands, with injunctions not to permitt the defenders to see it, as indeed ther is reason for this Caution: For it is Impossible that such ane assignation in Seventeen hunder and one Can sustaine a proces which was raised and expressly lybelled att the letter wherewpon ane assignation dated the twenty fifth of march one thousand six hunder and nynty nyne, no more then a sone Can exist before his Father, or ane effect without its Cause Especially Considering, that the first assignation was not truely against these defenders, as to the new protection, and new second dilligence for the other witneses mentioned in the petition It is ansuered, that it is humbly and Confidently hoped these will never be granted for the Reasons followeing, Primo Because by the sixth act parliament one thousand Six hunder and eighty one Its declaired that the Counsell may grant protectiones for such few dayes, as the persones may Come and give ther appearance, and dureing ther neccessary stay, and some few dayes for ther return not exceeding a moneth in all, But this moneth is already given and expyred, and Consequently the door is shutt wpon them, For as the words of the act are explicite in the Case, that only such tyme be granted, as they may Come, and give ther appearance (But does not say that they actually Come) and allowes only a moneth for all the indulgence that is to be given them, So if the moneth were reiterat, the act which is So express would Import nothing, for the witneses might still stay att home, and also oft without meaasure be protected, nether is a new second Diligence allowed by any formes that ever have been used in Councill, and as a second, second dilligence is ane incongruity in Spech, so the reason of the law is most evident here, both in resoect that the dyets att the least after second dilligence is ane once granted and elapsed are peremptorly, nor are defenders to be weasted with Continuall attendance, and because it is evident that the persuer hes used unfair means for overcomeing those witneses whom he was not able to fix dureing the Correncie of the first and second dilligence, But Further such priveledges beyon the Comon Course of law, ought least of any to be allowed, in this Circumstantiat Case, For secundo the petitioner gott both prtection, and second dilligence in march last, the protection to endure frome the first of June to the first of July and the second dilligence to endure for the whole tyme betwixt the sixt of March and the first of July dureing which Space Campdell (who is truely now the only persuer, the other two Gentlemens names, being no more then borrowed haveing been ashamed of what hes already occurred in the proces) was not idle in the North amongest these witneses, and his or his friends over them is not unknowen, as a Competent evidence, wherof ther is hereto subjoyned Coppies of severall letters thereanent which are so black in their true Import that the defenders would not have published them, were it not for ther necessary selfe defence, and that it may be knowen it is not without the best ground, that they are affrayed of such tampered Rascalls, and use the benefeit of Law for obstructing ther being let loose wpon them. As to the two formerly pretended witneses which are here on the place, one of them is Comitted for Capitall Crimes, that are Flagrant and nottour, and if the defenders property is to be Subjected to the faith of such a person, who will still be the more incensed that his Comming hither, hes given opurtunity of Catching him, the Lords of Counsell, Can easely Judge; Especially Considering That by the staitute of King Robert (Which the rule of our objections against witneses) Carcere detentus fore a Capitall Cryme is rejected, Ant the other witneses who is Said to be here hes no protection, and the second dilligence dirrected against him is expyred, whence nether of them ought to be received in relation to him tho: he waits the service wpon the grounds above represented, In respect whereof the desyre of the petition ought to be refused, both as to granteing either a new protection or a new second dilligence, and as to examineing the witneses present wpon Bellchiries depredation the assignation by him not being seen, or it will be found possterier to this proces, and the witneses in prison for a Capitall Crime, ought to be rejected, and the other who offers ought nether to be protected, nor a new dilligence issued against him Espeally Considereing that all of them are the most profligat Rogues in the Highlands and the very scum of mankind; Followes the Coppies of the letters written by Alexander Gordon of Camdell direct to the witneses he was to make use of in this proces and of the other letters followeing and relateing to the said affair to evidence the said Alexander Gordoun his prenicus practice he was Careing on in order to overtake the defenders And as to the first letter that the true meaneing and design thereof may be the better understood, It is to be observed that the same is direct and written to Callum Grierson of Ballatar, alias Callum og Mcgrigor, on of the principall depredators, against whom decreet is pronunced by the northern Justiciary, and yet by portion after severall meetings its agreed that he be not prosecute as a party But only Cited as a witnes, and de facto is Cited as Such, the tenor of which first letter followes Camdell the threteenth of november seventeen hunder, Sire It wonders me yow have never Come to me as yet, ther is a litle tyme for getting protection to the witneses, And I am here waiteing to send ane express, on that head, and if yow be a Stop or delay in this, yow will both wrong your selfe and me, which hes obleidged me Cause Alexander Robertson goe to yow with this letter, that yow or your son pretend not ignorance. Tyme is precius and still running; this from your freind as yow are dilligent att present sic subscribitur Alexander Gordoun poscrip bring Callum Bain with yow, Nota this letter Imports a doun right partion in so farr as Camdell says that any Stop or relay may wrong them both, and he mentions Alexander Robertson bearer, which Imports verball transcations, and Concludes he is a friend as they are dilligent, As to the second letter from Camdell, it will be particularly observed that it is direct to the same Callum and his sonn Alexander, as if they had been his whole trusties and managers of this affair not with standing that he was on of his witneses, and even for practiseing and getting the said Alexander Gordoun other witneses as appears by the Coppoy of the said letter in maner under written, The second letter Killdrumie the fourteenth of december seventeen hunder, Sir this day I received yours after I parted with the messanger, I am sory yow Come not here as I ordored, I send a line with the messenger to meet me att Breamarr on yoole evening, therefor be active and stirring now or never, and be ready to goe allongest with me, and have Callum Bread and his brother Ready, and such others as are Concerned, for proveing Callam Bains residence as will be proper; and if yow think fitt any other be Cited, either in Glengern or Strathdon he will doe it, and give yow execution thereon to bring to me, as to Callam Bain if he had been free, and keep to what was promised by him Before his uncle and Ronald Mcdonald, I would have been still friendly to him, and yet if he please to goe forward to Edinburgh with me and yow I by this promise him all the friendship I Can nor I shall I desyre any but ye and I know his Lodgeing, or he appear publict, while ye and I understand and Consider how to behave nether hes he att all any hazard untill he be Called before the Counsell, Before which tyme he and we both may have our resolves Its fitt yow dispatch your son in al hasste to Rannach, to assisst the getting the other witneses to gather, I again intreat yow keep this last tyrst for all with your assured friend sic subscribitur Alexander Gordoun, As to the third letter written by Camdell to Callam Bain was likewayes Cited by Camdell as a party, But wpon the like partion, as with Callam Og when they mett togather, after recevieing of the followeing letter he is Cited only as a witnes, the tenor of which letter followes, Tomintoull the twenty third of december seventen hunder, Sir I thought what I wrote to your freind, which he tells me he did see, would have satisfied yow of my friendly inclinationes towards yow and if you Could deall with your uncle, meet me att Breamarr, wednesday morning, being twesday att Cassiltoun, I would endeavour to satisfie him and yow of all friendship in my power, to yow and if yow take my advyce and rely on it, assure your selfe of the reall friendship of your assured friend sic subscribitur Alexander Gordoun, And as to the fourth letter, which is directed and written to his forsaid trusty witnes Wiliam Grierson, It is to be observed that Callum Bain, thought himselfe not secure by takeing back his Charge as a party, Citeing him as a witnes and not relayeing thereon, the said Camdell writes the followeing letter to Calum Grierson, in farther security to the said Calum Bain, and this letter was Imediatly written at the table in presence of both the saids Callums and other witneses as the said letter will testifie where of the tenor followes, Fourth letter, Sir it wonders me Callum Bayn is so suspicious of me, after what severall tymes past betwixt us, yet to Certifie him further, I write this to yow to assure him that in caise he prove so friendly and just as he promises, and professes, and that I gett a decernitur against Knokespack or his sone, my Lord Aboyn shall be no sufferer, and therefore lett Callum be honest and friendly, and both he and yow may be assured of the friendship, and doun right honesty in what I promise, and that I wish weell both to your Selves and your whole friends, being your assured friend Alexander Gordon, Breamarr, the twenty sixth december seventeent hunder, Directed this to Callam Ballater, as to the fifth letter, It may be observed that the same is from the said Callum Grierson to Camdell (designed in the direction, Tillisoul) In ansuer to these of his asureing him, of all his service possible, and telling him of his haveing two viz witneses who designed to srve him, to the outtmost of his power, viz Callan Break and his brother mentioned in Camdells second leter and whereof the tenor followes eighteenth febrij seventeen hunder and and one, Sir I long very much, to hear from yow, Bot since I Come to this Countrey from the tyme I saw yow, except eight or ten dayes the weather hes been so unconstants and the storm so great as it hes been thes fifteen years, I was allwayes expecting to hear from yow by the Aberdeens post, and since I thought long to hear from yow, I have sent these to know your mind, or what Can be here possible Can serve yow, the two young men is dayly and hourly waiteing a Call from yow, and would have att least some of them, leist this Countrey were not, they are designedly sett a purpose to srve yow with all ther pouer and might in what they Can or are able they desyre ye send att least ane true double of the protection if it be gotten, and your positive Information, of what they are to doe or what Srvice they Can Doe for yow, there Can be non more readier, I have keept Callum Bain fully right, to be short, I have obleidged in your name ye will not be his enemy what ever way the mater goes; I am your unchangeable humble servant C: G: Directed thus, to Alexander Gordon of Tilliesoul, as to the sixth letter It is to be observed that the same is written, by the forsaid Callum Bain, to the Earle of Abyon, one of the defenders, that Camdell had promised not to truble, him as a party provideing he deponed against the defenders The said letter Bears, that he had been sometymes with Camdell, who had proposed to him, that he should not be troubled in this action, provideing he would apear, as a witnes, and declaire that the did see Knokespack younger with Brekenar, and heard him order Brekner to desyre the Catrine to plunder Glenkindies house and least he should not Condescend to that, he would find Rynach witneses to prove against himselfe, From all which letters Campdells undue and dishonest practises for suborning of the witneses he was to aduce in this proces, is so evident that he ought to be so farr from being indulged with the favor of a new protection, or dilligence that is stoped, if these letters had been made knowen att first, the Lords of privie Counsell would have refused Camdells witneses any protection and its now hoped when these letters are made knowen the saids Lords will not only refuse protection, but also Censure Campdell as such practiques deserves, as the saids ansuers bears, Which petition with the ansuers forsaids given in therto, being read and Considered be the saids Lords of privie Counsell, they by ther interloquitori of the tenth of July instant, refused and hereby refuses, the desyre of the said petition given in be the said Alexander Strachan of Glenkindie, Captain James Menzies tutor of Weem, and Alexander Gordon of Camdell In respect of the ansuers forsaids given in thereto, Thereafter John Grant in Gaw Largo, Wiliam Farqrson in Tomintoull, James Menzies in Achnahyle, and James Crookshank in Achnhannock, Gave in the petition to the saids Lords of privie Counsell, Showeing that where the petitioners haveing in december last been Cited as witneses in the action depending before the saids Lords of privie Counsell, att the instance of Alexander Gordon of Campdell, against the Earle of Aboyn, Laird of Grant, the Lairds of Knokespack elder and younger, and others, did in obedience thereto Come some myles from our houses in order to have Come south, until wee mett with the said Alexander Gordon, who att that tyme, not only discharged, us from Comeing Because (as he then pretended) of a Submission betuixt him and some of the defenders, in the proces against whom we were to be aduced, But also assured as of fair and tymous premonition, In caise ther were necessity for our Comeing In place whereof he in June last did threaten us with Caption, and obleadged ws give bands of presentation, under penaltyes the tenor whereof are not weell knowen, by such of ws as are illeterat and Cannot write the samen haveing been written by his Brother in law, and the Initiall leters of our names affixed thereto by one Alexander Robertson tenant to the said Alexander Gordon, his Leading our hands, And which bonds are of a narrative that we were att the tyme under Caption, altho: it was not So; all of purpose to evite the payment of our expenses And seing your petitioners not comeing wpon the first Citation was allenarly occasioned, by the said Alexander Gordoun himself, which he Cannot deny wpon his Conscience, and oath of verity whereunto if need bees we referr the Samen Simpliciter, He was therefore Craved that the saids Lords of privie Counsell would be pleased in decern the the said Alexander Gordon to deliver wp and give back the forsaids bonds, of presentation and to make payment to them and ilk ane of them of such soumes of money for their expenses, as the saids Lords of privie Counsell shall be pleased to modifie, as the said petition bears, which petition being wpon the fifteenth of July Instant read in presence of the saids Lords of privie Counsell they by ther deliverance theron on the said day, allowed the said Alexander Gordon of Campdell to See and ansuer the samen And the said Alexander Gordon haveing gotten wp the said petition to See and answer he gave in thereto by way of petition, For Alexander Strachan of Glenkindie, Captain James Menzies tutor of Weems and himselfe, Shewin that where the saids Lords of his Majesties privie Counsell have been pleased to refuse the desyre of their last bill the same did extreamly surpryse and astonish them and they would not truely give the saids Lords any further trouble thereanent, were it nott that some of the petitioners doe wholly depend wpon the event of this proces, and the petitioners humbly Intreats the saids Lords of privie Counsell would Consider Seriously, these followeing reasons, Why the protection and dilligence should be further propogat, primo the Spoulzie Committed wpon Glenkindie was of a most Barbarous Nature accompanied with many agravateing Circumstances, and Campbdell who was formerly persued, was rendored obnoxius and thereby obleidged to agree, and the same witneses and in the same maner now Concluded for against the saids defenders, and it appears very hard, that since he was overtaken, and made and agreement att the Sight of the saids Lords authority that he Canot in the same maner, and by the same probation overtake others who had any accession, to the said depredation, and that nothing was pretended, against Campdell, But his being Landlord to one of the Rogues, Secundo this persuit hes been Carried one by warand of the saids Lords of privie Councill, and wherein their Lordships acted most Justly that so all those who had any the least accession to the forsaid horrid depredation might be brought in the feild and Condingly punished, Tertio It was not possible for the saids Lords petitioners to have acted more dilligently then they have doen in order to have had the whole matter laid before the saids Lords of privie Counsell, they haveing Gripped some witneses and brought them heire and did procure from others bonds of presentation wpon the second dilligence, and were att extraordinary pains and expenses, in searcheing for others who had the benefeit of a protection, but Could not find them, by reason some of them, were now in the Summar tyme removed to Mull, and others elswhere, so that they Could doe no more and truely if they had been any maneer of way in mora, or were Indeavoureing to protract tyme thereby to putt the defenders, to expenses, some thing might be pretended, But when this ther dilligence is so weell instructed, and that the saids Lords petitioners are most earnest and bent to have the mater fully laid before ther Lordships the petitioners Cannot but presume, it will yet be reconsidered. Quarto the defenders take a great liberty to themselves in representing so many Callumnies against the saids Lords petitioners, and as to what is aleadged anent Grierson of Ballater, he was att first persued as a party be Glenkindie, prior to any decernitor against Camdell, and a decreet in absence against him before the Commisioners of Justiciary But finding he was not able to pay the same he might Justly be desired to make a discovery of the whole matter, and to Concurr by his Information to discover, all the accessories to the forsaid depredation, which was the end of the saids Lords of privie Counsell ther warrand to insist in this proces Quinto the defenders make a great ruise with Camdells letters; all which he both will and Can Justifie to all the world, the Same Contameing now undue steps But only an accompt of this dilligence, in order to have a full discovery of the whole matter, made as he will Clearly make appear, when the proces Comes to be Concluded, and advysed and hartely subject all to their Lordships, Consideration and it is perfectly knowen, that unless methods be taken, with all persones, discoveries in matters of Robberies Can never be made, Sexto as to what is Represented anent Callam Bain tenant to the Earle of Aboyn, he was still insisted against as a pairty, and never intended to be made use of as a witness, nor have the persuars any execution against him as such, and it is not understood how it Could be any Cryme, or in the least ane illegall Step, tho kindness should have been offered him a defender, provideing he would ingeniously discover, all the Intrigues of the matter, and what associationes were entered into betwixt him, and Inverebrue Knokespacks brother, as burdern bearer for the said brother and nephew, thereby to bind wp the said Callam Bain, from makeing any discoverie, Septimo The objection made against the assignation from Bellchirie Cannot have the least force, for that the first assignation, was produced, and alltho the same is fallen by yet nothing Hinders Belchirie from reneweing the first and it is Jus tertij to the defenders to quarell the same, The defenders doe not rest in getting the desyre of our bill refused But likewayes, obleidge these witneses who were brought wp by a second dilligence to apply to your Lordships for expenses To which it is ansuered that no expenses Can be due to witneses who were brought up by vertue of a Caption, and who gave bonds of presentation as the effect of the said Caption, as they acknowledge themselves, But secundo it were above measure hard to obleidge the persuars to pay them expenses and yet that ther despositiones should not be taken tho they were brought up in due tyme and they so oft desyred, by which means the persuars Could not have, the least benefeit, but this step of the defenders doe sufficiently evidence their vexatious humour, in the said mater, These things being truely Considered be the saids Lords of privie Counsell, and the very hard Circumstances to which Camdell is brought by this proces first and last, he haveing been tendered lyable in ane Considerable soume, and that by the said Lords of privie Counsell ther sentance, So that he was neccessitat to yeild, and what he now presents Is by warrand of the saids Lords of privie Counsell which Certainly Caries the more authority with it It was therefore Craved that the saids Lords of privie Counsell would be pleased seriously to Consider the premises, and yet to revise your former interloquitor, and allow the protection and Second dilligence to be prorogat to what tyme the said Lords shall think fitt, and to ordain the witneses wpon the place to be aduced that so they may be alloued yet the opurtunity of discovereing this hidden mistery and every one who had the least accession to the forsaid Barbarity, may have ther own Share in the punishment due by Law, and likewayes to find that the petitioners are not lyable for any expenses to those who were brought wp by vertue of a second dilligence and wpon ther own bonds of presentation, as the said petition by way of ansuer beares, Which petition Given in be the said John Grant, and other witnesses with a petition be way of ansuers thereto, be the saids Lairds of Glenkindie Captain James Menzies tutor of Weem And Alexander Gordon of Campdell being read and Considered in presence of the saids Lords of his majesties privie Counsell, they by ther Interloquitor of the date the seventeenth day of July Instant adheared to ther former Interloquitor, of the date the tenth day of July instant, as to the protection and Caption, and allowed the witneses who are Cited and not examined and were not Contained in the said protection and Caption to be received be the former Commity and as to the expenses Craved for the witneses in the saids proces refused to give ansuer, thereto untill the Conclusion or advyseing of the Caise and the said Alexander Strachan of Glenkindie Captain James Strachan tutor of Weem and Alexander Gordon of Camdell Gave in a new petition to the saids Lords of privie Counsell Representing that where, ther Lordships petitioners humbly beg pardon for giveing them such frequent truble, which the petitioners hops ther Lordships will be pleased to Interpret favorably wpon ther parte, and were it not that the petitioners interest lyes so much att the stake they would not be guilty of this presumption By the former proces against the said Alexander Gordon of Camdell The saids Lords of his Majesties privie Counsell were pleased to find him lyable, and allowed these to be aduced as witneses who were not only sorij Criminis, But even they themselves found guilty, as haveing accession to the barbareous depredationes, and Roberries Commited wpon Glenkindie and Belchirie wherein he was obleidged to acquiesce being so found by the saids Lords, and with the same beneath ther Lordships were pleased to allow the petitioners to Concurr togather in order to bring all these in the feild who had any the least accession, to the said Roberrie Wpon the faith whereof he the said Alexander Gordain was not only forced to transport with Glenkindie etc, But Likewayes to intent proces before the saids Lords of his majesties privie Counsell in order to make discovery of those who were Concerned in the said Robery, That so all those who were Concerned therein might be brought in to the feild, and each person punished, Conform to his demerite, and the lawes of this nation, and the saids Lords haveing been pleased to grant protection to these witneses, who were Concerned in the said Robery and a second dilligence against the witneses who were Concerned in the said Robery and Cited, that so the whole matter might be laid plainly and fairly before the saids Lords of privie Counsell, In obedience to their Lordships Interloquitor Search hes been dilligently made for the witneses so protected and others have granted bonds of presentation in order to Compear before the saids Lords of privie Counsell, and declare the truth, but all his proven ineffectuall, hitherto by the absconding of some, and the non Compearance of others, notwithstanding of these saids bonds and some were here present in order to depone wpon the petitioners Complaint And the said Represented to the saids Lords Craveing that they might be examined and that the protection and second dilligence might be prorogat for some tyme, yett the the saids Lords of his majesties privie Counsell were pleased to refuse the same, The petitioners will not reclaim against what the saids Lords have done, But only begg live to Represent the hardships under which Captain Menzies and Camdell are trysted with, Such as primo the former Complaint is sustained relivant, against them att Glenkindies instance and they found lyable to be proven by witneses protected, and which they now Crave may be admired, Conform to the saids Lords former Interloquitor, and the saids Captain Menzies and Campdell humbly supposes, that they are als habile now for them, as they were teir against them Secundo it was supposed that it did still redound, to the interest of the Government and the safety and interest of each particular subject, that all might be discovered who had any accession to the said Roberies wpon the faith wherof they were att pains and great expenses to try out for every dividuall person, who was Concerned therein, and therefore had some witneses in toun to be examined, and were timeously offered before the dayes of the protection were runn out although they were trysted with many difficulties therin, Tertio, They have not any maner of way been in mora, and Considereing with whom they have to doe, who are not negligent to Improve all advantages, it is a wonder, they had any witneses here att all and the petitioners Can never make themselves beleive the saids Lords will refuse their testimonies to be aduced, Considereing what methods have been used to dissapoynt any probation, and they did represent in ther former petition, and that after they had been att pains and expenses, to bring wp John Mackarter as a witnes, he was taken and Committed to prison, By which means, no other protected witnes, will adventure to appear, by which no discovery Can be made of any who had acession to the said Roberies It was therefore humbly intreated that the saids Lords would yet be pleased to Consider the petitioners Circumstances who humbly acquiesced in their Lordships former Interloquitor against them and wpon the faith wherof did Commence this Complaint and who were decerned wpon the depositiones of witneses formerly Convicted and protected to witnes against them, That therefore the saids Lords of his majesties privie Counsell would be pleased to ordain the said John Mcartor to be sett att Liberty, and to Continue ther protection to him, and Wiliam Bain, Both here in toun untill they be examined by the Commitie, and some few dayes thereafter, as the said petition bears which petition being wpon the day and date hereof Read in presence of and Considered by the saids Lords of his majesties privie Counsell they by there deliverance theron of the same date have refused and hereby refuses, the desyre of the said petition, and the saids Lords of his majesties privie Counsell, haveing Considered the above lybell, att the instance of the said Alexander Strachan of Glenkindie Captain James Menzies tutor of Weems and Alexander Gordon of Camdell with Concurse of his majesties advocat, against the Earle of Aboyne, Ludovick Grant of that ilk and John Gordon elder and younger of Knokespack, with ther former Interloquitor thereon, as also the decreet absolvitor In favors of the saids John Gordons elder and younger of Knockespack before the Justiciarij for the northern district, and haveing this day advysed the depositiones of the witneses laid be the persuars they find that Alexander Brebner was no meniall servant to Knokespack younger, and also that ther was no other poynt of the lybell proven against the saids defenders, And therefore have assolzied and hereby assolzies the saids defenders above named from the haill poynts and articles lybelled against them, and have declaired and hereby declaires them quyte therof and free ther frae now and in all tyme comeing Extracted by me
