[796 regard to a member of the House of Commons / Then the Serjeant at Arms made proclama

being a material evidence for you, you must ❘tion for silence; and afterwards the following

be advised by your counsel (who are to advise you as to matters of law, and the proper methods of application) in what manner you are to make application for that purpose.

Lord Lovat. My lord, I will take your lordship's advice, and will do so; but it will be impossible for me to appear before you, except 1 am better in health.

L. H. S. Gentlemen of the House of Commons, have you any thing to offer, in relation to what my lord Lovat has now said?

Sir W. Yonge. My lords, nothing, but to submit it to your lordships, when you will be pleased to proceed. My lords, the time that the prisoner at the bar has desired is very extraordinary, and will be very inconvenient: but, my lords, a reasonable time the Commons will have no objection to.

Lord Lovat. My lords, I am at your lordships' disposal: I am a prisoner here, and submit entirely to your lordships' determination, be it what it will.

The Lord President moved to adjourn to the Chamber of Parliament; and the Lord High Steward going back to his chair, the House was adjourned accordingly. And then the Lords, and others, returned in the same order' as before.

And the House being resumed in the Chamber of Parliament,

Ordered, That a Message be sent to the House of Commons, by Mr. Sawyer and Mr. Mountague to acquaint them, That the lord Lovat having requested, that Normand Mac Leod, esquire, a member of their House, might be examined as a witness at this Trial, the Lords do desire that they will give leave to the said Normand M'Leod to be so examined at the said Trial: and that their lordships will proceed further thereupon, in Westminster-hall, on Wednesday next, at eleven of the clock in the forenoon.

Ordered, That the lieutenant of the Tower of London or his deputy, do take back the said lord Lovat, and bring him again to the bar of this House in Westminster-hall, on Wednesday next, at eleven of the clock in the forenoon.

THE SIXTH DAY.

Wednesday, March 18, 1746-7.

About eleven of the clock in the forenoon, the Lords, and others, came from the chamber of parliament, in the same order as on the first day, into Westminster-hall: where the Commons and their Managers were in the seats prepared for them respectively, as before. And the Lords took their places in the Court; and the Lord High Steward in his chair.

L. H. S. The House is resumed. Is it your fordships' pleasure that the judges have leave

to be covered?

Lords. Ay, ay.

proclamation:

Serjeant at Arms. Oyes, Oyes, Oyes! Lieutenant of the Tower of London, bring forth your prisoner, Simon lord Lovat, to the bar, pursuant to the Order of the House of Lords, to you directed.

The deputy governor of the Tower brought the prisoner to the bar, in the like form as before. And then he kneeled down.

L. H. S. Your lordship may rise. The Lord High Steward asked leave to go down to the table; and went accordingly. L. H. S. My lord Lovat, your lordship may now proceed to make your Defence.

The Prisoner then acquainted their lordships with his great age and infirmities, which rendered him, as he alleged, incapable of speaking what he had to offer; and that therefore he had put into writing what he had conceived, and was advised to say on this occasion; and which he desired their lordships would be pleased to permit their clerk to read at the bar : and their lordships permitting it, the same was read by the Clerk, as follows; viz.

return

My lords; In my unhappy situation, it is with the highest pleasure and gratitude, that I my acknowledgments to your lordships, for the indulgence you have shewn me, during the course of my long Trial: and had I, my lords, met with any degree of justice from those who have appeared as witnesses against me, it would have been unnecessary for me to have troubled your lordships with any thing in my own defence; but as there can be no security against the oaths of persons who are swayed by malice, or interested by the hopes of life, and fears of punishment, it becomes ne cessary ssary for me to trouble your lordships with a few observations: First, as arising from the particular circumstances of my case; and, Secondly, upon the nature of the evidence that has been produced against me, and the degree of credibility which such sort of evidence de. serves. With respect to the first, my lords, upon being served with a copy of the Articles of Impeachment, 1 immediately applied to your lordships for an order to bring up those witnesses, whom I thought necessary for my defence: and, considering the com complicated nature of the treasons charged upon me, and the great period of time they were intended to comprehend, it cannot surprise your lordships, that my list contained sixty, or thereabouts. But, to my very great misfortune, uncommon methods have been used against me, to prevent their attendance: the ordinary judges have been divested of their offices, and obliged to appoint others, who were recommended by the king's officers to officiate for them: Nay, the ordinary seats of justice have been, in my particular case, forsaken, and new courts erected, to which numbers have been forced under the severest menaces, to attend as wit nesses against me; whilst all whom those new 797]

for High Treason.

found judges and rulers, upon their inquisition, might be serviceable to me in my defence, have been overawed and intimidated; so that they durst not attend my Trial. These, my lords, are facts as notorious in themselves, as unprecedented in these kingdoms; and facts which I can instantly prove, to your lordships' satisfaction, partly by affidavits now in my hands, and partly by witnesses of undoubted credit, who have been brought five hundred miles from the Highlands of Scotland, with a view to be examined against me; and who, it is probable, have been laid aside, lest what I now take the liberty to affirm to your lordships, should, upon their examinations, have been made to appear.

My lords, by these and such-like methods, have my witnesses been terrified from appearing; at least, so very few have had the resolution to venture, that they scarcely deserve to be named, and cannot be material for my de fence, without the assistance of the others. I am therefore under the hard necessity to forget yet a little longer the inconveniences of a close aud tedious imprisonment, and to stifle that desire of liberty which is so natural to me, for some longer time, till, by your lordships effectual interposition, I can command the attendance of my witnesses; and, of consequence, justify my innocence: for, if your lordships consider, that my very words and actions have been made the subject of a critical examination, from the year 1719, my case must appear extremely hard, and necessarily require a very circumstantial proof, by examination of those persons with whom I have had any intercourse, from that period till now: but, if your lordships should instantly oblige me to proceed upon my Defence, unprepared as I am, I must submit. Locked up a prisoner in the Tower, I cannot make your lordships' Order effectual against the several persons in the list I gave in to this honourable House; and to proceed to trial, whilst I am under these circumstances, has the appearance of so much hardship, that I flatter myself it will move your lordships effectually to interpose, and order some proper method, by which my witnesses can be forced to attend; and not suffer a peer of the realm to be destroyed, because he cannot work impossibilities, or oblige me, like the Israelites of old, to make brick without straw. I must therefore humbly move, and insist with your lordships, not to introduce a precedent in my case, which may be attended with the worst of consequences to any lord who shall hereafter be brought to your lordships' bar. And, indeed, my lords, I say this not altogether out of a regard to myself: I am now fourscore* years of age, have suffered many changes, and, thank my God, have no unbecoming fear for any thing I can yet suffer: I know, by the quick advances and frailties of old age, that, in the course of nature, I am hastening to my end;

* In his Letter to the duke of Cumberland, he called himself past seventy. See p. 714.

and, by the favour of the Almighty, I have been long preparing for that great and solemn change: but this, my lords, may produce a precedent that shall prove fatal to many of younger years. And, surely, your lordships must be convinced I have the greater reason to insist on this demand, upon considering what I propose to lay before your lordships, in the second place, namely, a few observations upon the nature of the evidence, and the credit that those witnesses deserve who have sworn against me.

In general, your lordships have undoubtedly perceived the high improbability that runs through the whole of Chevis's oath: He, my lords, takes upon him to swear to conversations as far back as the year 1719; and mentions as if I was then engaged in plots against his late majesty, at the very time many of your lordships know, and that it is notorious, I was highly in his favour. It might, my lords, carry the air of vanity for me to mention to your lordships the many particular services I was thought to have done his majesty in the year 1715: but allow me, my lords, to say, they were services of such a nature, as made his majesty think me entitled to very distinguishing marks of his favour, as will appear by several letters, which, by his majesty's orders, I had the honour to receive from the late lord Stanhope, my great and very worthy friend: so that, my lords, Chevis's accounts are even more than improbable; besides, that the minute and particular manner in which he swears to circumstances that have happened so long ago, must render his testimony too suspicious to be believed. And allow me to observe a very remarkable circumstance, That he has carefully avoided to name any one man who was present at any one of those conversations, and could possibly have been brought to confront him, lest the same providence which. detected the elder, in the case of Susanna, might have detected Chevis. A farther circumstance your lordships will also allow me to observe, That it is not to be supposed, that I, or any man of common sense, should have talked so often, and so freely, upon a subject of that delicate nature, to a person, who, if your lordships can possibly believe himself, was always so openly and zealously affected to the present establishment. But can your lordships yet conceive any good opinion of a person who voluntarily offers himself as an evidence to litthe trifling conversations, which the only opportunity he had of hearing was his eating at my table, when he must have starved at his own, and perished for cold, unless my money had furnished him with clothes? In evidence of this, I was, till very lately, possessed of many of his accepted notes, for greater sums than I am afraid he is yet able to pay, I having prevailed with a friend to let me have money upon them, to supply my present wants; and I should be sorry if he shall suffer by his friendship to me. The next three evidences who have appeared at your lordships' bar against me, are those infamous fellows, who call themselves secre. | they were said to have been found. How weak

taries; the one, and on this occasion 1 name Murray, the most abandoned of mankind, who, forgetting his allegiance to his king and country, has, according to his own confession, endeavoured to destroy both like another Çataline, to patch up a broken fortune upon the ruin and distress of his native country; to-day stealing into France to enter into engagements upon, your lordships may believe, the most sacred oaths of fidelity; soon after, like a sanguinary monster, putting his hand and seal to a bloody proclamation, full of rewards for the apprehending the sacred person of his majesty; and, lest the cup of his iniquity had not been filled, to sum up all in one, impudently appears at your lordships' bar, to betray those very secrets, which he confessed he had drawn from the person he called his lord, bis prince, and master, under the strongest confidence. Your lordships will perceive, I have yet forbore to mentior the other circumstances of his having received since the battle of Culloden, $5,000 louis-d'ors, which he yet expects to live and riot on; but my lords, who can consider the price of blood and treachery, and not bestow that sort of pity, which Murray, the greatest criminal, the true disciple of his master Iscariot, calls for? One thing more, my lords, I cannot omit; and that is, to take some notice of the indecent and scandalous liberty the wretch has attempted to take, by aspersing a number of very noble, worthy, and honourable persons, of whose innocence your lordships were so fully persuaded, as to stop him in his career, lest, like one of Samson's foxes, he should destroy some of the worthiest members of the commonwealth. But if, after all that I have said, your lordships can pay the most distant regard to this secretary's evidence, it is hard to determine how many of his majesty's other faithful subjects may escape the licentious liberty of his impeachment; for let him once think, that upon the multiplicity of his accusations, his worthless life depends, and there is no reason to apprehend any of the most faithful subjects can boast of a long security. I will not, my lords, trouble your lordships much upon the objections, to which my counsel have spoke against the competence of this witness; but, if a desire of life to so wicked a person, who must be afraid to die, can be any inducement to swear falsely, it is apprehended impossible any of your lordships can give the least degree of credit to the oath of the villain secretary Murray.

My lords, the next secretary I choose to trouble your lordships with, is Robert Fraser, a person who never had the good fortune to be worth a shilling, and whose veracity and truth never exceeded his riches, He, my lords, has taken upon him to swear to letters wrote by himself, and many of them not pretended to have been signed by me: Others, my lords, have neither date or direction; and no sort of proof has been attempted to be brought by the managers, where, or in whose custody,

an evidence, therefore, this is to fix so heavy a charge as high treason upon a peer of this realm, is humbly submitted. But, my lords, this witness has also, to go through the whole drudgery of swearing, framed a very improbable and awkward tale to your lordships, of his having found, in a writing-desk in my house, a copy of a pretended patent, creating me duke of Fraser, which, by-the-bye, the managers have not offered to produce; and I must leave it with your lordships, whether it is at all likely, that, if I had been possessed of such a patent, I should have left it so carelessly loose; or that, if I had, this witness should have been the only person in my numerous family to have seen it; for I am not now speaking of the testimony of the other witness Hugh Fraser. My lords, is it, or can your lordships think it possible I could have had the copy, and not have had the original? The one was quite as easily sent as the other; and your lordships all know that it is a mighty unusnal thing to send copies of patents, where dignities are intended to be conferred. As to the other part of Robert Fraser's testimony, that relates to his writing for arms, powder, and ball, I am persuaded it cannot make the least impression upon your lordships: First, because he has not deposed to express quantities; and, secondly, that it might have been so easy for the Managers to have brought a positive proof, had the fact been true, by the persons from whom these things were said to have been bought; or, at least, by those who carried them to my, house, though indeed I can make no manner. of doubt, that had this gentleman, Robert Fraser, thought it material, he would have gone a little farther, and sworn to that, as he is one of those honest gentlemen, whose mouth, seldom opens, but for their tongues to lie.

My lords, I must next trouble your lordships with Hugh Fraser, and again repeat a general observation, that a person, himself in the rebellion, and who did, upon his oath, declare at your lordships' bar, that he would give no evi dence, except in expectation of life, cannot be reckoned an unsuspected witness; for, according to the value which he shall set upon his own life, must his evidence be less or more hurtful to me; since, my lords, life is the purchase, and his giving evidence the only price. He says, that I shewed him a copy of the patent; and yet, long after this pretended time of shewing, he, my lords, was the very person to whom Murray declared, he knew nothing of such a patent. He was also the person who received those treasonable letters that have been read against me; and it is not pretended, that after this interview with Murray at Glasgow, I ever saw him, or had any intercourse with him, till I was brought to your lordships? bar; nor is it laid to my charge, that I ever re ceived any of those letters or commissions, which Fraser is said to have brought from Glasgow. And bere, my lords, I must repeat the same observation against Fraser of Dans balloch, who was himself in the rebellion; and | deration will naturally occur to your lordships,

therefore in like manner swearing away my life to preserve his own.

Many other particulars, my lords, I purposely omit, reserving my observations, till I shall have your lordships' order to bring up my witnesses; and then, my lords, I shall be able to falsify those particulars, and indeed, the whole substance of this heavy charge against me.

that the revenge or malice of power cannot operate in felonies; but may in treason.

If, my lords, I should be told, it has been established by custom, I must beg leave to say, that, as it seems contrary to justice and reason to trust to the evidence, which an accomplice unpardoned is to give, it is incapable of being hallowed by custom; since I am assured, that it is an established rule, that, unless a custom is reasonable, and according to justice,

it is void.

But allow me, my lords, to ask, what reason can be given, why these confessed rebels have not been honoured with a pardon previous to my trial? If it is that the government believe, in that case, they would not swear the truth, can the wit of man invent a stronger argument why your lordships, in equal diffidence, should not believe them when they have no pardon, for, if they are such abandoned villains (and, in truth, my lords, I believe them such) as to perjure themselves after a pardon, when they can neither gain nor lose by the evidence they are to give, surely your lordships ought not to trust them, when their lives depend upon giving such evidence as may convict me, who have yet the honour to be a brother peer.

I must, my lords, beg your lordships' pardon for taking up so much of your time. I labour under so many disadvantages from old age, and the decay of the faculties of the mind, that it is no wonder I should make a bad defence for myself, unassisted either by counsel or solicitor; and that so many great and eminent persons, skilled in the laws, and masters of Ciceronian eloquence, have appeared to manage the prosecution against me. But I hope, in your lordships hands my old life is safe; and that your lordships, whose noble blood is like so ❘ many fountains, from whence issues streams of humanity, justice, and honour, will not, nay, cannot, find me guilty upon the evidence of such witnesses as have defiled your bar, and have no other method left to expiate their own crimes, but by laying them upon me: For your lordships must allow me to observe, that all the witnesses, except sir Everard Fawkener, have both their lives and estates depending upon their giving such evidence as may convict me: And even as to sir Everard, he has judgment enough to know, that, should I be acquitted, he would find it difficult to defend an action at my instance, for reparation of uncommon wrongs, and acts of violence, done by his order upon my estate, in cutting very valuable woods, and appointing receivers of my rents; and consequently he has too great an interest in my conviction, to be considered or received by your lordships as an unexceptionable wit-expect.

ness.

My lords, to me, who am no lawyer, it appears extremely strange and unreasonable, that socii criminis should be admitted witnesses be fore they are pardoned; but if it is true, that the law of England differs in this respect from the law and usage of all other nations, I should be glad to know, how that difference has been introduced. I take it, my lords, for granted, that it is not by the force of any statute; for, I am sure, the great learning and ingenuity of the managers have omitted to mention none that concerns the case of treason; and, if it is by the common law, my objection is entire, and can only be determined by your lordships, as in this case my jury.

In some sort of felonies, my lords, I remember to have often heard of statutes which authorise a proof of that nature; but, in treason, I never heard of one: And, indeed, the necessity does by no means appear to me to be the same; 1st, because the one is not so common as the other; and 2dly, because there can be no room to plead a penury of witnesses in treason, which is laid to my charge: whereas there may in felonies. Another strong consiVOL, XVIII.

One thing more, my lords, and I have done; and that is, should this sort of proof be once established, I may venture to say, that delatores would become greater nuisances here than ever they were at Rome; and that all our noble and ancient families, will be, by degrees, cut off, upon pretence of Jacobite or republican plots; since the history, my lords, of all ages shews, that power can make plots; and fatal experience proves, that in every age are villains ready, like my three secretaries, to prove what power shall hereafter dictate or

Thus far I thought it my duty, in vindication of myself, to trouble your lordships, and, without further trespassing upon your patience, freely submit my life, my fortune, my honours, and, what is dearest of all, my posterity, to your lordships.

:

L. H. S. My lord Lovat, do you think fit to call any witnesses?

Lord Loval. No, my lords.

1

Sol. Gen. My lords; Though the noble lord perseveres in denying the charge, yet, as he has called no witnesses, but rests his defence altogether upon complaints, observations, and objections to the force and credibility of the evidence against him, if I was to follow my own inclination and judgment, 1 should think it unnecessary to say any thing upon a matter already sufficiently understood.

But I am told by the opinion of those, whose opinion is to me a law, that I shall not do my duty, nor perform the part assigned me, unless I close this solemn trial, by calling back your lordships' memory and attention to the princi

* See vol. 11, p. 288.

3 F

4

pal grounds upon which we have proceeded ;* | by the statute of the 25th of Edward the third.

especially as they have now been objected to as insufficient, and complained of as setting an example, which may be dangerous to innocence hereafter.

The gentlemen who manage this prosecution have, in the course of it, meant to do justice to their trust in such a manner, that the noble lord at the bar should feel the weight of truth, but not of his accusers: and it is not to aggravate guilt, or to press down the load heavier upon him, that I am at this time commanded to speak; but to satisfy your lordships now, and the world hereafter, from the nature of the evidence by which this accusation has been supported, why no part is attempted to be answered.

He has put your lordships in mind, that the law requires you, as his judges, to be his counsel; which is certainly true: and I am persuaded, compassion, inseparable from noble minds, has been ingenious to suggest to your thoughts, doubts and objections, in favour of one standing in that place, who certainly labours under some infirmities, and is allowed to defend himself by no other tongue than his

own.

If scruples have arisen in the minds of any of your lordships, they will gain strength from that consideration; and the honest prejudice you must feel from his want of assistance, may be of more advantage to him, than the ablest assistance he could have had..

It is proper, therefore, it may even be necessary, to endeavour to set the whole in such a view, as may tend to obviate every possibility of doubt.

There are but two things for your lordships' consideration upon this occasion:

First, Whether the evidence given is a convincing and legal proof of the charge, if it be believed? and next, whether there be any reason to induce your lordships not to believe it ?

The only thing, in the course of this proeeeding, which has not yet been done to satisfy your lordships with regard to both these points, is, to apply the particular evidence that has been given to the principal overt acts laid in the Articles of Impeachment.

As this is the only thing which has not yet been done, it is the only thing which I shall attempt to do.

There are three kinds or species of treason, of which the noble lord at the bar stands ac. cused by the Articles :

Compassing and imagining the death of the king:

Levying war against his majesty within the realm;

And Corresponding, contrary to a late act of parliament.

The two first are treasons, declared to be so

As to the right to reply, though no witnesses were called in defence, see in this Collection the Trial of Horne Tooke for a Libel, A, D, 1777.

Compassing or imagining the death of the king is an inward thought, or operation of the mind; and therefore, as God alone can judge of thoughts, because he alone can know them, so, for this kind of treason, no man can be convicted, unless he does some open act, which proves the secret intention of his mind. It is not necessary, that the open act should have an immediate tendency to take away the natural life of the king; but any design to subvert his government, or to raise war against him, which may, in consequence, draw on his death, has been long settled to be an overt act of this species of treason.

In high treason, for greater security, the law requires a formal, as well as convincing proof; and therefore no man can be found guilty of high treason, which is not proved by the testimony of two witnesses. One, let his credit be never so good, let him be supported by never so many circumstances, is not sufficient.

But it is not necessary, that two witnesses should give proof of the same overt acts: If they give evidence in proof of distinct overt acts, it is enough, provided they are overt acts of the same species of treason.

Having mentioned what legal proof is required (for this was the law before the 7th of king William, and is therefore applicable to the present occasion,) I will state the overt acts of each species of treason, whereof the noble lord stands impeached; and apply the evidence to them.

Of compassing and imagining the death of the king, the principal overt acts laid in the Articles are three:

1st. That he conspired, with several of the king's subjects, to induce a foreign power (the French) to invade this kingdom.

2d. That he corresponded with the Pretender, in order to dethrone the king, and, with that view, solicited, and accepted, a commission from him to be lieutenant-general of the Highlands; and also solicited and obtained from him a patent creating him duke, as a reward of his engaging in that design.

3d. That he conspired to raise war and rebellion against his majesty within this realm. That conspiring with a foreign power to invade the kingdom is an overt act of compassing the death of the king, cannot now be

doubted.

As to the proof:

Robert Chevis proves, That, in Jupe 1739, he heard lord Lovat propose to William Drummond of Bochaldie the project of an invasion;

That, in 1740, he heard him say, there was an association; and drank success to it.

Robert Fraser proves a letter of the 14th of January, 1746, from the noble lord to his son, to have been dictated by him, afterwards read over to him, approved of, and sent; in which are these words:

"1 was one of those that entered into a formal