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In the parliament held at Edinburgh, 25 February 1645 by the estates of parliament, now convened in the second session of this first triennial parliament by virtue of the last act of the last parliament held by his majesty and three estates in 1641, anent the summons of treason and forfeiture raised at the instance of Sir Thomas Hope of Craighall, knight, advocate to our sovereign lord, and also at the instance of Sir Thomas Nicolson of Carnock, Mr Roger Mowat [of Drumbreck], Mr Alexander Pearson, Mr James Baird and Mr Thomas Nicolson, advocates, procurators for the estates of this kingdom, against Robert, earl of Carnwath; that is to say the said Robert, earl of Carnwath to have answered for the crimes, facts and deeds particularly and generally after-specified and all other crimes of that kind which may be laid to his charge, and to have heard and seen himself determined and declared in parliament by the estates thereof to be guilty of the same and therefore to have incurred the pain of high treason against the king's majesty, his highness's crown and the estates of this kingdom, and the pain of forfeiture of life, lands and goods and to be forfeited thereof and the benefit thereof to be applied to the use of the public for relief of their burdens and to be punished according to the pains contained in the declaration after-mentioned, or otherwise in the option and judgement of the parliament to have heard and seen him otherwise censured and punished in his person, name and fame and in his goods and estate by fining, confining or otherwise as the parliament should think expedient, and that in the option, judgement and arbitration of the parliament only to be disposed upon by the parliament, and using of him otherwise in all hostile manner as an open and manifest traitor to the same and estates thereof according to the nature and quality of his crimes, misdeeds and malversations respectively after-specified, according to the laws and practice of this realm and justice, reason, equity and conscience at the determination and judgement of the parliament, according to the sentence, decreet and deliverance of the said estates of parliament to be delivered, given and pronounced against him therein. Because by the common law, laws of nations, laws and practice and custom of this realm and by all justice, equity and reason all leasing makers, tale tellers and false accusers of the estates and subjects of this kingdom of their proceedings to the king's majesty as seditious, rebellious and treasonable, all instigators, framers, those who draw up strange proclamations and declarations made against his highness's subjects and estates are rebels and traitors, all that rise in arms and concur with the adversaries of this kingdom for subduing their native country or for opposing and subduing the armies sent by the estates of this kingdom to the kingdom of England for defence of the true religion and of the mutual league and covenant, all fortifiers, keepers and detainers of strengths or castles against the estates of this kingdom who stand to their covenant for defending the religion, crown and country, all who wittingly and willingly withdraw their assistance from their native country in her extremity and contribute their help and assistance to the adversaries, all who are either authors, abettors, maintainers or suppliers or are art and part or have any hand in the countenancing or concurring with the adversaries of this kingdom to the subduing and destroying thereof, and especially those that have seemed to join with the subjects and estates of this kingdom in subscribing the National Covenant, and generally all committers and others accessory to or who are art and part of the said crimes, misdeeds and malversations above and after-specified incur the pain of high treason and the pain of forfeiture of life, lands and goods to be applied to the use of the public as said is; at the least are otherwise punishable at the judgement of the parliament and in their lives, name and fame and in their goods and estates to be applied to the use of the public as said is by fining, confining or by other ways at the option of the parliament. And true it is that the said Robert, earl of Carnwath has committed and is guilty and capable (at the least is accessory and art and part) of and to the high crimes of treason after-specified; at the least has committed, is guilty, culpable, accessory to and art and part of and to the other crimes, misdeeds and malversations one or more particularly and generally above and after-specified in manner following, namely: in the first the said Robert, earl of Carnwath maliciously traduced the proceedings of this kingdom which were ratified by the king and his estates of parliament in so far as upon occasion of the commissioners who were sent to the king from this kingdom in January 1643 for pressing liberty to go to London, according to their instructions and safe conducts, the said earl proudly said to the king's majesty in presence of some noblemen these words or words to this purpose: 'Sir, it is a strange thing to see that they were not content to come in to this kingdom against you, sir, to ruin your majesty themselves, but they will also come in and assist this rebellion and ruin you here'. Whereupon the said earl being cited before the convention of estates of this kingdom upon 24 June 1643 to answer for the said slanderous and opprobrious speeches, the said earl disobeyed the said charge and citation, and thereupon decreet was given against him as contumacious. Secondly, albeit by the large treaty ratified in the last parliament in 1641 it was statute and ordained that in case any of the subjects of any of the kingdoms of Scotland and England shall rise in arms or make war against any other of the kingdoms and subjects thereof without consent of the parliament of that kingdom whereof they are subjects or upon which they do depend, that they shall be held, reputed and demeaned as traitors to the estates whereof they are subjects; and also albeit by the fifth article of the mutual declaration between the two kingdoms emitted by the convention of estates of this kingdom of Scotland upon 6 January last and by the parliament of the kingdom of England upon the 30 of the said month for both kingdoms of Scotland and England joined in arms for vindication and defence of their religion, liberties and laws against the popish, prelatical and malignant party, it is declared on behalf of the kingdom of Scotland that if any of the Scottish nation who have joined themselves in arms with the said popish, prelatical and malignant party against the parliament and kingdom of England, not considering the nature of the cause in which they had engaged themselves nor the deep interest of the church and kingdom of Scotland upon which the said war was to turn in the end, should either continue in arms after 1 March 1644 or should withhold their help and assistance from their native country in the time of trouble and danger, that they are to be censured and punished as public enemies to religion and country, perfidious transgressors of their National Covenant, and their estates disposed upon to the use of the public; and albeit by the said fifth article of the mutual declaration they be warned speedily to withdraw themselves from that malignant faction and to confess their mistakes and join in the covenant and cause of both kingdoms before the said 1 March 1644, yet notwithstanding thereof the said Robert, earl of Carnwath has risen and joined himself in arms not only with the popish, prelatical and malignant party in England against the parliament of England and the subjects of the said kingdom and that without the advice of the estates of parliament of this kingdom of Scotland whereof the said Robert, earl of Carnwath is a subject, but also has assisted the armies of the said malignant party against the armies sent into England by the convention of the estates of Scotland for defence of religion and of the mutual league and covenant in so far as the said Robert, earl of Carnwath has been in arms with and assisted [William Cavendish], marquis of Newcastle, chief leader and commander of the armies of the popish, prelatical and malignant party, and had charge under the said marquis of Newcastle in his army and had the command of a horse troop; at the least he levied the said horse troop upon his own charges and paid for the arms and horse thereof. Likewise in the month of March 1644, after the first day thereof when the armies sent into England by the convention of estates were at Sunderland, the said Robert, earl of Carnwath was in person upon horseback and was present on the fields with the said marquis of Newcastle and in his army at the battle near Sunderland, which was fought between the Scottish army and the army of the said malignant party led by the said marquis of Newcastle, and shot his pistol. Likewise the said Robert, earl of Carnwath has ever since continued and continues in his said employment and has not concurred and assisted his native kingdom and country in the time of her trouble and danger, and therefore ought to be punished and censured as a public enemy to religion and country and perfidious transgressor of the National Covenant and his estate disposed upon for the use of the public and ought to be reputed, declared and punished as a traitor to his country and native kingdom in manner before rehearsed, as the said summons of treason granted by deliverance of the commissioners of the convention of estates dated 26 March 1644 and signed on 1 April the same year purports and bears, and anent the charge given to the said Robert, earl of Carnwath by James Currie, Islay herald, upon 2 and 3 April 1644 at the market cross of Edinburgh and pier and shore of Leith and at every one of the same places respectively by open proclamation, public reading of the summons and sound of trumpet to have compeared before the estates of parliament at Edinburgh or where it should happen them to be on 4 June then next to come and now past, with continuation of days, to have answered at the instance of his majesty's advocate above-named and at the instance of the other advocates above-written, procurators for the estates of the kingdom, for the cause and to the effect, under the pain and with certification above and after-specified under the pain of treason and forfeiture or other pain or pains to be inflicted by the parliament at the option of the parliament, and the benefit thereof to be applied to the use of the public as said is. With certification to the said Robert, earl of Carnwath that if he compeared not, the estates of parliament would then instantly proceed against him as guilty of high treason against the king's majesty, the estates and kingdom to the forfeiting of his life, lands and goods to the use of the public, and that his absence and contumacy should be held as a manifest probation of his guilt without necessity of any further probation, but if he compeared and remained present throughout the procedure, then the parliament would proceed against him upon lawful probation to the forfeiting of his life, lands and goods to the use of the public as said is, or otherwise censure and punish him in his person, name and fame by fining, confining or otherwise using him according to the nature of his crimes, misdeeds and malversations, and that in the option, judgement and arbitration of the parliament only to be disposed upon by the parliament and using of him otherwise in all hostile manner as an open and manifest traitor and enemy to the same, as the aforesaid execution subscribed and stamped by the said James Currie, executor thereof, likewise purports and bears. Which summons and execution thereof were publicly exhibited in presence of the parliament upon the said 4 June last by Mr Thomas Nicolson, one of the procurators of estate, for himself and in name of the said Sir Thomas Hope of Craighall, his highness's advocate, and of the said Sir Thomas Nicolson, Mr Roger Mowat, Mr Alexander Pearson and Mr James Baird, procurators for the estates of this kingdom and pursuers of the said summons. Likewise the said Robert, earl of Carnwath (being lawfully summoned in manner and to the effect above-written) was then, namely the said 4 June, three times publicly called in audience of the parliament then convened and at the great door of the parliament house to the effect above-specified and compeared not, neither by himself nor none to answer for him, but was contumacious of the charge and citation aforesaid given to him as said is, whereupon the said Mr Thomas Nicolson, for himself and in name and on behalf aforesaid, asked instruments. Thereafter the estates of parliament then convened did upon the [...] day of June 1644 nominate and appoint a committee of their own number to consider, discuss, receive and advise the relevance and probation of the aforesaid summons of treason produced according to the power and warrant given by the parliament to that committee contained in the commission granted to them relating thereto, appointing the said committee to report their proceedings to the parliament, as the said commission bears. According thereto and for obedience whereof, the said committee having various times met and convened to the effect aforesaid during the sitting of the parliament in 1644, the said Sir Thomas Hope of Craighall, his majesty's advocate, and the other above-named procurators of the estates all compeared personally in presence of the said committee and declared that they proceeded in the first place upon the second member of the said summons founded upon the mutual declaration emitted by the said kingdoms of England and Scotland and upon the article above-written of the said large treaty in 1641, and craved the said commissioners to proceed in the trying and discussing of the relevancy and probation thereof according to the probation carried out therein. And the said Robert, earl of Carnwath, being likewise often called before the said committee at the parliament door of the parliament house where the committee sat by one of the macers of parliament to have compeared before the said committee and to have heard and seen the relevance and probation of the aforesaid summons of treason discussed, received and advised by the committee against him, compeared not, but failed therein, whereupon the said committee proceeded to discuss the relevance of the aforesaid summons and receiving of the probation thereof against the said Robert, earl of Carnwath for the members thereof above-written proceeded upon in manner before declared. And the said committee having at various and several times met and convened to that effect and discussed the relevance of the said summons proceeded upon, as also received and advised the depositions of sundry famous witnesses with the writs and other probation led and used for proving the points above-written of the aforesaid summons proceeded upon against the said Robert, earl of Carnwath, they, after consideration and advising thereof and and what they had found concerning the aforesaid relevance and probation, drew up their report and what they had found relating thereto in writing, as the same dated 22 July 1644 and subscribed by John [Elphinstone], lord Balmerino, president of the aforesaid committee, in itself purports. Which report so subscribed was thereafter produced in parliament in July 1644 to have been then heard, advised and sentence pronounced therein by the estates of parliament as they should have thought expedient; and now being this 25 February 1645 produced in presence of the estates of parliament by the said Mr Thomas Nicolson, personally present for himself and in name and on behalf aforesaid, and being publicly read in audience of the parliament, the said Robert, earl of Carnwath was of again on this day publicly called in audience of the parliament and at the great door of the parliament house three times by the macers of parliament to have heard and seen the aforesaid summons and report produced considered by the estates of parliament and sentence pronounced against him therein, according to the desire and conclusion of the aforesaid summons of treason and according to the report produced; and he compeared not, neither by himself nor no other to answer for him, but was contumacious thereof and of the citation above-written given to him to the effect above-mentioned. Whereupon the estates of parliament, having read, considered and advised the aforesaid summons and report produced with the depositions of various famous witnesses led and carried out by the procurators of estates, with the writs and instructions produced by them for proving of these members above-written of the aforesaid summons proceeded upon, according to the said report, and they therewith and with the humble supplication given in to them by Gavin [Dalzell], lord Dalzell, eldest lawful son to the said Robert, earl of Carnwath, bearing that he stands infeft in fee in a great part of his said father's estate albeit the same be under reversion to his said father for payment of an angel of gold, and that ever since the beginning of the troubles he has joined himself in covenant and concurred with the kingdom in advancing the public cause, and therefore humbly desiring that such course might be taken by the estates of parliament as he may possess the lands, living and estate of his said father with the title, honour and dignity of the earldom of Carnwath notwithstanding of any sentence to be pronounced against his said father, he paying such sums of money to the use of the public as the estates of parliament shall appoint, being well and ripely advised, the said estates of parliament find that the said Robert, earl of Carnwath has committed the crimes of treason particularly above-specified proceeded upon and ratify the aforesaid report made relating thereto with the reservation of the sole and only power of censuring and punishing of the said Robert, earl of Carnwath in their own hands in manner after-following, and therefore they find that the said Robert, earl of Carnwath has lost and forfeited to the use of the public and to be disposed upon in manner specified all lands, lordships, baronies, towers, fortalices, patronages of kirks or chaplainries, teinds, reversions, superiorities, annualrents, offices and other rights and titles whatsoever of whatsoever lands, baronies, teinds, mills, woods, fishings, salmon fishings or other fishings and other heritage whatsoever pertaining to him or his predecessors to whom he is heir or apparent heir or to his authors from whom he has right and held or to be held by him as well of his majesty as of other superiors, together with all tacks, assedations as well of lands as teinds, bonds, obligations, contracts containing sums of money moveable or immoveable and all other goods and gear, rights, titles and securities whatsoever pertaining to him in heritage, liferent, tack or otherwise, and they declare all and whatsoever rights made by the said Robert, earl of Carnwath to whatsoever person or persons of the aforesaid lands, baronies, teinds, patronages, bonds, contracts and others above-specified, with all bonds or contracts bearing sums of money made by him to whatsoever person or persons at any time since the committing of the crimes above-specified or any of them, to be null and void, and also that he has lost and forfeited during all the days of his lifetime all title, honour and dignity of earl, lord, knight or other honour or dignity whatsoever and has become incapable to hold or possess the same in his person. And they find the said Robert, earl of Carnwath to have incurred the pain of death and ordain him to be publicly executed as a traitor and that it shall be lawful to any of his majesty's lieges to take, apprehend him and present him to justice or to kill him, and if he should flee to strengths, to raise fire and to use all warlike weapons against him to the effect aforesaid. And yet nevertheless the said estates of parliament have found, likewise by this decreet they find that the said Gavin, lord Dalzell, his son, has behaved himself as a faithful and dutiful subject ever since the beginning of these troubles, and they being willing to encourage the well-deserving subjects to continue in their loyalty, fidelity and affection to the country, religion and covenant, therefore and for the sum of 100,000 merks Scots money paid by the said Gavin, lord Dalzell for the use of the public as is after-specified the said estates of parliament have ratified and approved and by this decreet ratify and approve all charters, infeftments and other rights and securities made by the said Robert, sometime earl of Carnwath to the said Gavin, lord Dalzell, his heirs and assignees of whatsoever of his lands, baronies, patronages, teinds, offices and others whatsoever conveyed by his said father to him, and has discharged and by this decreet discharge all reversion or reversions contained in the said rights or made separately with all other conditions, liberties, privileges and reservations of whatsoever nature introduced in favour of the said Robert, sometime earl of Carnwath and which he may claim by infeftment, other writ or verbal promise or any other way whatsoever, and has declared and declare the same to remain with the said Gavin, lord Dalzell, his heirs and assignees whatsoever heritably and irredeemably in all time coming. And further the said estates of parliament have conveyed and by this decreet convey to the said Gavin, lord Dalzell, his heirs and assignees whatsoever all lands, lordships, baronies, towers, fortalices, mills, multures, salmon fishing and other fishings, forests, woods, offices, reversions, patronages of kirks and chaplainries, teinds, superiorities and other whatsoever pertaining to the said Robert, sometime earl of Carnwath as well heritably as in liferent or otherwise and held by him either of our sovereign lord or of other superiors or to the which he may have right as heir or apparent heir to any of his predecessors; and that it shall be lawful to the said Gavin, lord Dalzell and his heirs whatsoever to serve and retour themselves heirs generally or specially to any of the predecessors of the said Robert, sometime earl of Carnwath at any time after the decease of the said Robert, sometime earl of Carnwath. Moreover, in case it shall happen that the said Robert, late earl of Carnwath gains the possession of and acquires any lands, heritages, teinds, patronages or any other goods or gear whatsoever at any time after the date hereof, in that case the estates of parliament declare that the same shall accrue to the said Gavin, lord Dalzell, his son, as being his only lawful son and apparent heir, his heirs and assignees; and to the effect the right thereof may be formally established in his person, the said estates of parliament dispense with the said Gavin, lord Dalzell and his heirs to serve and retour themselves heirs therein to the said Robert, sometime earl of Carnwath notwithstanding of the said act, and ordain infeftment to pass under the great seal to the said Gavin, lord Dalzell and his heirs whatsoever and his and their assignees of so many of the said lands and others aforesaid as are held of his majesty or the prince, and they ordain presentations to be passed in favour of the said Gavin, lord Dalzell and his aforesaids of so many of the lands and other above-mentioned as are held of other superiors, and that freely without any composition to be paid in exchequer for the said infeftments and presentations and signatures of the same. And they convey and assign to the said Gavin, lord Dalzell and his aforesaids the whole mails, ferms and duties of the lands, teinds and other things aforesaid of the crop and year of God 1644 and the whole balance and arrears of all preceding crops still owing not accounted for to the public and yearly and termly in time coming, except such sums of money whereof the said Gavin, lord Dalzell has made payment to the public out of the duties of the said lands of the crop 1644 whereof he is to have no restitution, but the same to remain with the public without repayment thereof, allowance or compensation. Likewise the said estates of parliament by this decreet discharge the said Gavin, lord Dalzell and his cautioners of the whole tenor of a bond and obligation of the date the [...] day of [...] 164[...] whereby he and his cautioners nominated therein obliged themselves to be accountable to the public for the mails and duties of the aforesaid lands and others above-specified of the crop and year of God 1644. And they assign and convey to him and his aforesaids all contracts, bonds, obligations, reversions and other securities made to the said Robert, sometime earl of Carnwath or any of his predecessors of or concerning the said lands, baronies, teinds, reversions or other things aforesaid by whatsoever person or persons or conceived in their favour, and they assign and convey to the said Gavin, lord Dalzell and his aforesaids all bonds, obligations, contracts and other rights aforesaid of whatsoever sums of money or annualrents made to the said Robert, sometime earl of Carnwath or his predecessors or to any other to their use or conceived in their favour, together with all goods and gear moveable and immoveable, furniture, plenishing and other things whatsoever and the whole right thereof pertaining or competent to the said Robert, late earl of Carnwath or his predecessors or authors or that shall happen to pertain or be competent to him before or at the time of his death, excepting from the said assignation of the sums of money aforesaid all sums of money paid to the said estates for the use of the public by whatsoever persons who are debtors to the said Robert, sometime earl of Carnwath or persons entrusted or interposed by him before the date hereof. And also the said estates have declared and by this decreet determine and declare the said Gavin, lord Dalzell and his heirs whatsoever to hold, enjoy and possess the title, honour and dignity of earl of Carnwath and Lord Dalzell and that notwithstanding of whatsoever of the crimes committed by the said Robert, sometime earl of Carnwath, his father or of the sentence and doom following thereupon; and they transfer the same out and from the person of the said Robert, sometime earl of Carnwath and devolve and establish the said title, honour and dignity with all privileges belonging thereto in the person of the said Gavin, lord Dalzell and his heirs whatsoever from the day and date of this decreet to be held by them presently and in all time coming likewise as if the said Robert, sometime earl of Carnwath was naturally dead. With power to the said Gavin, lord Dalzell and his aforesaids to call and pursue for the writs and evidences of the aforesaid lands and others above-written and for payment of all sums of money or annualrents indebted in manner above-mentioned and to charge the debtors of the late earl of Carnwath for payment of the same sums and annualrents either in the names of the procurators for the estate or in that of the said Gavin, lord Dalzell, now earl of Carnwath. It is always provided that neither this decreet nor any claim mentioned therein shall be prejudicial or derogatory to whatsoever charters, infeftments or other securities of whatsoever lands and teinds and other things in which Dame Margaret Carnegie, lady Dalzell, spouse to the said Gavin, lord Dalzell stands infeft or provided by bond, contract or otherwise whatsoever, but that the same shall stand effectual to her during her lifetime, and which the said estates of parliament by this decreet ratify to the effect aforesaid in so far as concerns her liferent of the same. And in respect that the said estates of parliament have devolved and established in the person of the said Gavin, lord Dalzell and his aforesaids the whole living, estate, title, honour and dignity aforesaid, therefore they ordain the said Gavin, lord Dalzell to pay for the use of the public the said sum of 100,000 merks Scots, which sum of 100,000 merks the said Gavin, lord Dalzell, for obedience of the said ordinance and according thereto, has instantly paid and delivered to Sir Adam Hepburn of Humbie, treasurer of the armies and collector general to the estates of this kingdom, and to others in his name, according to the discharge granted by the said Sir Adam Hepburn of Humbie to the said Gavin, lord Dalzell upon the receipt of the said sum of 100,000 merks of the date of this decreet. And to the effect that the said Gavin, lord Dalzell may hold the said lands and other things hereby conveyed, the said estates of parliament annul and discharge all and whatsoever acts and precepts made or drawn upon the estate of the said Robert, sometime earl of Carnwath or upon the said Gavin, lord Dalzell or other commissioners having power to meddle therewith in so far as the said acts and precepts are made and drawn upon the said rent and estate, and they declare the said acts and precepts to be void and null in all time coming, reserving to the earls [John Leslie, earl of] Rothes and [John Lyon, earl of] Kinghorn their summons and action against Robert, sometime earl of Carnwath, Sir John Dalzell, Sir Lewis Stewart, Mr John Stewart, his son, and Mr George Lawson for delivery to the said earls of the bonds and assignations contained in their said summons. Excepting also out of this present decreet and sentence and without derogation of a precept or act flowing from the committee to the said Sir John Dalzell, reserving to the Lord Dalzell his defences against the same as by law. Which decreet and sentence of forfeiture above-mentioned, being publicly read in audience of the parliament, was pronounced and given forth for doom by the mouth of John Milne, dempster of parliament, against the said Robert, sometime earl of Carnwath after that he was publicly called by the macers of parliament at the most patent door of the parliament house and compeared not in manner aforesaid.