the world: that she threatened mischief against one 1629 Kerse, who thereupon lost the power of his leg and arm: that she entertained several witches in her house, one of whom went out at the roof in likeness of a cat, and then resumed her own shape: that she took a disease off her husband, laid it under the barn floor, and transferred it to his nephew, who when he came into the barn saw the firlot hopping up and down the floor: that she used the following charm to preserve herself and her cattle from an infectious distemper, viz. to bury a white ox and a cat alive, throwing in a quantity of salt along with them: that she had the devil's mark, &c.

Mr. Laurence Macgill and Mr. David Primrose appeared as counsel for the prisoner. They pleaded, that the mill might have stopped, the boat catched no fish, and the man not prospered in the world, from natural causes; and it was not libelled by what spells she had accomplished them: that, as to the man who had lost the power of his leg and arm, first, she never had the least acquaintance with him; secondly, she offered to prove that he was lame previous to the threatening expressions which she was said to have used: that the charge of laying a disease under a barn floor was a ridiculous fable, taken probably from at similar story in Ariosto; and that two years had elapsed between her husband's illness and his nephew's: that what the prosecutor called the Devil's mark, was nothing else than the scar of an old ulcer; and that the charge of her burying the white ox and the cat, was false.

The celebrated Sir Thomas Hope, who was counsel for the prosecution, replied, that these defences cught to be repelled, and no proof allowed of them,

1629 because contrary to the libel; that is to say, in other words, because what was urged by the prisoner in her defences contradicted what was charged by the public prosecutor in his indictment. The defences for the prisoner were over-ruled.—Is it needful for me to add that she was convicted, strangled, and burned?

This most incredibly absurd and iniquitous doctrine, of repelling defences because contrary to the libel; this system of legal murder, was till the present century a received maxim of criminal jurisprudence in Scotland. Thus, besides in the present, and sundry other trials for witchcraft, when John Young was accused of the murder of Archibald Reid, by `a wound with a hanger on the shakle-bone, i. e. the wrist, given about four or five months preceding his death, he pleaded, that the wrist was not one of the noble parts where a mortal wound could be inflicted: that the indictment set forth the wound to have been given about four or five months preceding the death of the deceased; and it was an established maxim of law, that if a person survived a wound forty days, his death must be imputed to some other cause: that the deceased had a complete reconvalescence, wrought at his usual trade of a smith, reaped his own corn, and gathered it in. The counsel for the prosecution insisted that these defences should be repelled, in respect of dittay, (i. e. as being contrary to the li bel) and the Court over-ruled them.* When a person of the name of Mowat was prosecuted for mutilation by two gentlemen of the name of Cheyne, he pleaded that the wounds he gave were in self-defence. Sir Thomas Hope, Lord Advocate, who in

Rec. of Just. July 30, 1630.

the course of that month was appointed Lord Jutice 1629 General for life, opposed the defence, and insisted it should be repelled as being contrary to the libel. To exclude the prisoner from the benefit of his exculpatory evidence, he added another argument equally founded in good sense and equity, that the 'pursuer's witnesses were examined

upon all prcper interrogatories offered by the prisoner, therefore • there was no necessity for his leading other witnesses." The Court repelled the prisoner's defence, and refused to allow him to adduce witnesses to prove the fact*. When Mr. William Somerville was tried for the murder of Elisabeth Renton, he offered in his defence to prove that the wound given the deceased was not mortal; that she walked on the night she was wounded to her brother's house, three miles distant; that she did not take her bed, but continued to work as a servant in her usual employments for three months. At last, having gone to attend in his illness her brother who died of a spotted fever, she caught the infection, and died of that disease. These defences however were over-ruled, were not admitted to proof, because contrary to the indictment, wherein it was expressly libelled that he gave her a mortal wound.

When William Mackie was tried for killing James Murray in a duel, he pleaded it was in self-defence, for Murray had assaulted him with a drawn sword: to which it was replied, that the defence could not be sustained because the libel expressly charged that they fought in consequence of previous mutual provocation, and the defence was over-ruled. Accord

* Rec. of Just. July 15, 1642.

↑ McKenzie's Criminals, tit. 22, sect. 2.

1629 ing to the same doctrine, the defence of alibi must have been rejected by this dreadful tribunal.*

1630

Alexander Hamilton.

Alexander Hamilton (if we may trust his judicial confession) met the devil in the likeness of a black man riding on a black horse. Hamilton renounced his baptism, and engaged to become the devil's servant, from whom he received four shillings Sterling. When he wanted an audience of his Infernal Majesty, he was instructed to beat the ground thrice with a fir-stick, and say, 'Rise up Foul Thief, and accordingly the devil used to obey the summons, and appeared in the shape of a raven, a cat, or a dog, and gave responses. The devil instructed him how to be revenged of his enemies; also how to cure and transfer diseases; and further, gave him a spell, by which he killed the Lady Ormestone and her daughter, in revenge of the Lady's having refused him the loan of a mare, and having calling him nicknames. Lastly, He declared he had many meetings with the devil, from whom he once got a severe drubbing for not keeping an appointment.

John Neil.

John Neil was charged with taking off and laying. on diseases, the former of which he sometimes effected by making the sick person's shirt be washed in a south-running water. With giving responses con

* See the perplexity with which Sir George Mackenzie expresses himself upon the head of alibi. Mackenzie's Criminal Trials, tit. 22. sect. 3.

+ Records of Justiciary, January 32, 1620.

cerning the time and manner of people's death. 1631 With holding consultation with the devil, and ~ witches, on Coldinghim Law, how to compass the death of Sir George Home of Manderston. That the result of their deliberation was the getting an enchanted dead foal and putting it in Sir George's stable, under his stoned-horse's manger; also a dead hand enchanted by the devil, which they put in Sir George's garden; and that by these means he contracted a grievous disease, of which he could not be recovered, till the dead foal and dead hand were discovered and burned. No pleading, no deposition of witnesses, no confession of the prisoner is recorded; but the jury found the usual verdict, and the usual sentence was pronounced by the Court.

Janet Brown, and others.

An act and commission of parliament was passed 1649 on the 12th of July, and another on the 7th of Aug. ust, 1649, constituting Sir James Melville of Raith, Alexander Orrock of Orrock, Robert Aytoun of Inchdarnie, and certain baillies of Burntisland, judges, with powers to try certain persons for the crime of witchcraft. Janet Brown was first brought before them. She was charged in the indictment with having held a meeting with the devil appearing as a 6 man, at the back of Broomhills, who was at a wanton play with Isobel Gairdner, elder, and Janet 'Thomson; and he vanished away like a whirlwind.'t -With having there renounced her baptism, upon *Rec. of Just. March 26th, 1631.

+ Original MSS. in possession of Major Melville of Murdochcairnie.