[1604/4/22]*[print] [email] [cite] [preceding] [following]
The which day in this present parliament held at Perth, 11 July 1604, by virtue of a special commission granted by his highness to that effect under his majesty's great seal, of the date at Hampton Court, 8 February 1604, Master William Oliphant, in name and on behalf of Sir Thomas Hamilton of Monkland, knight, advocate to our sovereign lord, exhibited and produced before a noble and potent lord John [Graham], earl of Montrose, lord Graham and Mugdock, great commissioner of this present parliament, and before the whole estates thereof, the summons of treason underwritten, raised and pursued at the instance of our sovereign lord, his highness's justice and advocate against William Borthwick of Soutra, whereby he was summoned to compear before our said sovereign lord and estates of parliament on 6 July 1604, with continuation of days, to have answered to the points of treason and other crimes underwritten contained in the said summons, of the which summons the tenor follows:
James, by the grace of God, king of Scots, English, French and Irish, and defender of the faith, gives greetings to our beloved lyon king of arms, Islay, Albany, Ross, Rothesay, Snowdon and Marchmont, heralds, Robert Stewart, David Bryson, Alexander Douglas and James Chalmers, our armsbearers and macers, Ormond, Bute, Unicorn and Carrick, pursuivants, and also William Mackieson, Bute pursuivant, and messengers, and, jointly and severally, our sheriffs specially constituted in that part. We mandate and instruct you to summon lawfully and peremptorily William Borthwick of Soutra at his house of residence of Johnstoneburn in which he has been accustomed to reside before his departure from our kingdom, and also at the market cross of our burgh of Edinburgh and the port of Leith, on notice of sixty days, because at present he is staying outwith our kingdom of Scotland, that he should compear before us, our commissioners and the estates of our realm of Scotland in Edinburgh, or where it happens that our commissioners and the estates of our realm are staying at the time, on 6 July next, in our parliament held and opened on 10 April last and continued until 3 July next, at the time of dealing with cases, with continuation of days, in order to answer to us and at the instance of our beloved familiar Lord Thomas Hamilton of Monkland, knight, our advocate, for our interest. For hearing and seeing, it is decided and decreed, by us and by the decreet and opinion of the estates of our realm, that the said William Borthwick of Soutra has committed the crimes of lese-majesty specified below, and thus as accused of lese-majesty according to the laws and custom of our realm he ought to be punished with the capital penalty and loss of life, goods both immovable and movable, for the reasons and causes which follow. First, because by the act of our parliament held in Edinburgh on 29 July in the year of the Lord 1587 it was established and ordained that if it should happen that anyone possessing in heritage lands, property and possessions (commonly referred to as 'any landed man') should be at any time convicted of the crimes of notorious and manifest theft, reset of theft, or theft with robbery and force (commonly, 'of common theft, receipt of theft or stouthreif'), then and in that case the foresaid persons or person should be thus properly and lawfully convicted, and he should incur the charge and penalty of lese-majesty, namely loss and forfeiture of life, lands and all goods, as the said act of parliament sets out at greater length. And thus it is in reality, because the said William Borthwick, holding lands, property and possessions in heritage, and particularly having the lands of Soutra, Barns, Redhall, Hangingshaw, Nethershiel, Couperflack and Threeburnford, all lying within our sheriffdom of Edinburgh,† and also certain lands of Nenthorn, lying within our sheriffdom of Berwick, or at least any part of the foresaid lands and property pertaining to him in heritage, shamefully and treasonably, against the honour and office of and generous and freeborn man, possessing in heritage lands and property expressly contrary to the intention of the said act of parliament - with his accomplices on 8 July in the year of the Lord 1599 or thereabouts, furtively and with the mind and intention to rob, set out from our burgh of Edinburgh by the crossing and port commonly called Queensferry towards Castle Campbell, and there, in the evening and in the silence of night, broke in by force and plundered that house and stable belonging to James Scrimgeour of Fordell, entered furtively, and after breaking down the doors and plundering the stable, took away four horses belonging to the foresaid James. On them, the said William and his accomplices scattered at will. Therefore, the said William is guilty of the said odious crime of violent theft, namely theft with robbery (commonly referred to as stouthreif), and ought to suffer the penalty of lese-majesty, namely loss and forfeiture of life, lands and goods as has been said. Secondly, in all past times it has been inviolably observed that those who coin false money or issue it or knowing it to be false and adulterated pay or give it to our subjects are held to be guilty as if of lese-majesty, and those convicted of this in the past suffered capital punishment, with, that is to say, loss and forfeiture of life, lands and all goods. And so it is in reality, because the said William Borthwick of Soutra, on account of the impunity of the said crimes perpetrated by him, proceeding from bad to worse, with no respect for the holy spirit or for us, and flouting and despising our authority and laws, with the late Thomas MacAlister of Drummaquhen and the late George Douglas (called of Bangour), and his other accomplices entered upon a plot, and treasonably adulterated our money and struck adulerated coinage, and issued it knowing and aware of its being adulterated currency, namely he issued to our subjects in Scotland five pound pieces and four pound pieces and crowns and various other kinds of money of our realm, both gold and silver, knowing it was false and adulterated, and handed it over to our subjects, not knowing otherwise, as true and sufficient currency. And in particular the said William Borthwick and his accomplices contracted a plot with the late Robert Young in Gogar, and David Johnston, makers of false currency, and plotted with them and frequently deliberated over the striking and open distribution of the said false money. The said William Borthwick and the said late George Douglas, after they had bought and accepted the said adulterated money from the said Robert Young and David Johnston, entering upon this with the sole intention of distributing it by nefarious means to the great and most grave injury and detriment of themselves and our subjects, set off together for our burgh of Ayr and there on 24 June in the year of the Lord 1599, which was the day of the public fair of the said burgh, they bought a horse from John Hamilton, servant of [Alan Cathcart], master of Cathcart, for the sum of £26 or thereabouts, which sum the said William Borthwick and George Douglas paid him in false and adulterated gold and the foresaid money, and at the time the foresaid William and George bought a mare at the same fair and paid for it the sum of £20 of the said false money. While they were returning from that town together with the intention of going back to parts of Loudoun with the said horse and mare, the foresaid John Hamilton, who had sold them the said horse, was later informed that the said money was false and adulterated, and followed the said William and the late George. After he had caught up with them, he compelled them to take back the adulterated money. At this, the said late George and the said Thomas MacAlister of Drummaquhen and the late William Maxwell, a servant of the the said William Borthwick, when examined in the presence of our justice by certain of our lords of the privy council, confessed it was true, as their depositions and testimony state. And accordingly by means of the said enquiry they were found guilty of lese-majesty just as the said William, guilty of the said crimes for which his foresaid accomplices had been convicted and punished with the penalty for lese-majesty, and aware of his guilt and in terror of the punishment inflicted on his foresaid accomplices for their treasonable crimes mentioned above, fled from Scotland to the shores and borders of England where he spent his time among nefarious men of the same ill fame, as if a manifest and notorious robber, until it seemed right to God to move us to our sceptre of England, whence a little later, when he began to be unable to hide, on account of fear of punishment, he decided to make his way to overseas parts, where he still remains, guilty of the said crimes. And so it ought to be decided by the decreet and sentence of the said estates of our realm in our parliament that the said William has committed the foresaid crimes of lese-majesty, and ought to be punished as guilty of this crime according to the laws and custom of our realm by the capital and ultimate punishment and loss and forfeiture of life, lands and goods, for the causes and reasons stated above. Therefore you are to summon Lord John Cockburn of Ormiston, knight, justice clerk, Master William Hart of Preston, justice depute, to compear before us and our commissioners and the foresaid estates of our realm of Scotland, on the foresaid day and in the foresaid place, at the time of hearing cases, with continuation of days, to bear true and loyal testimony in the foresaid case on pain of rebellion, and putting to the horn, making it clear that if they do not compear, another letter of ours will be addressed, by which they will be declared as rebels against us and put to the horn. To carry this out, we grant you and any of you jointly and severally full authority by this letter of ours, to be handed over, duly and lawfully endorsed, to the bearer of the present document, to be passed on and delivered. Given under testimony of our great seal at Edinburgh on 2 May in the year of the Lord 1604 and in the thirty-seventh year of our reign in Scotland, and the second year of our reign in England, France and Ireland.
Here follows the tenor of the executions and endorsements of the said summons of treason upon 5 May 1604:
I, William Mackieson, Bute pursuivant, passed at command of these our sovereign lord's letters within written, and lawfully summoned, warned and charged William Borthwick of Soutra at his dwelling place of Johnstoneburn, where his wife and bairns make residence and where he dwelt with them at his departing out of this realm, and affixed and left a just and authentic copy hereof upon the gate of his said dwelling place after I had knocked six times thereat, to compear before the three estates of parliament, day and place mentioned within, in the hour of cause, with continuation of days, to answer at the instance of our sovereign lord's advocate in manner, to the effect and with intimation and certification as is contained within, according to the tenor and command of these our sovereign lord's letters within written in all points. And this I did before these witnesses, John Cass, writer, and Oliver Selby, servant to Mark [Kerr], lord Newbattle, with diverse others. And for the more verification to this my execution, subscribed with my hand, my signet is affixed. It is thus subscribed, William Mackieson, Bute pursuivant.
And likewise upon the same 5 May, the year of God above-written, I, the said William Mackieson, Bute pursuivant, passed at command of these our said sovereign lord's letters to the market cross of the burgh of Edinburgh and there, by open proclamation in his highness's name and authority, lawfully summoned, warned and charged the said William Borthwick of Soutra, upon 60 days' warning because he is presently out of this realm of Scotland, to compear before the three estates of parliament, day and place mentioned within, in the hour of cause, with continuation of days, to answer at the instance of our sovereign lord's advocate in manner, to the effect and with intimation and certification as is contained within, according to the tenor and charge of these our sovereign lord's letters within written in all points; of the which I affixed and left a just copy upon the said market cross. And this I did before these witnesses, the said John Cass, writer, Robert Lowrie, messenger, and John Gillespie, servant to Robert Gardener, writer, with diverse others. And for the more verification to this my execution,† subscribed with my hand, my signet is affixed. It is thus subscribed, William Mackieson, Bute pursuivant.
And likewise upon the same 5 May, the year of God above-written, I, the said William Mackieson, Bute pursuivant, passed at command of these our sovereign lord's letters to the shore and pier of Leith and there, by open proclamation in his highness's name and authority, lawfully summoned, warned and charged the said William Borthwick of Soutra, upon 60 days' warning because he is presently out of this realm, to compear before the three estates of parliament, day and place mentioned within, in the hour of cause, with continuation of days, to answer at the instance of our sovereign lord's advocate in manner, to the effect and with intimation and certification as contained within, according to the tenor and charge of these our sovereign lord's letters within written in all points; of the which I affixed and left a just copy upon the said shore and pier of Leith. And this I did before these witnesses, the said John Cass, writer, Robert Lowrie, messenger, and the said John Gillespie, servant to the said Robert Gardener, writer, with diverse others. And for the more verification to this my execution, subscribed with my hand, my signet is affixed. It is thus subscribed, William Mackieson, Bute pursuivant.
Which summons, with the executions and endorsements thereof respectively foresaid, being this instant day read in presence of the said lord commissioner and whole estates of parliament, first in Latin and next in Scots, and the said William Borthwick of Soutra being often called at the tolbooth window of the said burgh of Perth to have compeared and answered to the said summons and reasons contained therein, and he not compearing to have defended in the said matter and to have answered to the said summons of treason, the said Master William Oliphant, substitute for our said sovereign lord's advocate, desired the estates' declaration if the reasons of the said summons were relevant against the said William Borthwick; which estates, all in one voice, found the said summons and both the reasons contained therein and either of them relevant against the said William Borthwick. Therefore, the said Master William Oliphant, in name of our said sovereign lord's advocate, for proving of the said reasons contained in the said summons of treason, produced and repeated diverse sasines and contracts bearing the said William Borthwick to be infeft in sundry lands and annualrents, and also produced and repeated the doom and sentence pronounced before the justice against the late George Douglas in Bangour, Thomas MacAlister of Drummaquhen, James Johnstone, sometime servant to the late John Johnstone, writer, and William Maxwell, servant to the said William Borthwick, and their depositions and confessions, which doom was pronounced against them upon 29 May 1601, notoriety of the facts and deeds mentioned in the said summons, and repeated the whole process and pieces produced by him in the said matter for verifying of the said summons and reasons contained therein, and desired the foresaid estates of parliament to advise upon the probation of the said summons and reasons thereof and to pronounce their sentence of parliament therein according to the same probations and their consciences. And thereafter the depositions of the said persons executed to the death, whole writs and probations being read, seen and considered by the said whole estates of parliament in presence of our said sovereign lord's said great commissioner, and they therewith being ripely advised, the said lord commissioner and whole estates of parliament find, decree and declare that the said William Borthwick of Soutra has done treason in the committing of theft in manner specified in the said first reason, and also find that the said William Borthwick has committed treason by using and outing of false and adulterous coinage in manner specified in the said last reason. And, therefore, it was given for doom by the mouth of William Hay in Perth, dempster of parliament, in manner and form as follows:
This court of parliament shows for law that the said William Borthwick of Soutra has committed and incurred the crimes of treason above-written, in manner at length contained in the reasons of the said summons, and therefore finds and declares that the said William Borthwick has lost, been deprived and forfeited for ever all his lands, heritages, rooms, possessions, offices, goods and gear whatsoever belonging to him in any manner of way, and discerns the same to have appertained and to appertain to our said sovereign lord, to be confiscated and remain with his highness as his property in all time coming; and also that the said William Borthwick has lost his same honour and dignity, and decrees him to be punished as a traitor according to the laws of this realm. And this I give for doom.
[1604/4/23]*[print] [email] [cite] [preceding] [following]
The which day Master Thomas Rollock, depute for Sir Thomas Hamilton of Monkland, knight, advocate to our sovereign lord and in his highness's name, produced in presence of a noble and potent lord John [Graham], earl of Montrose, lord Graham and Mugdock, great commissioner of this present parliament, and in presence of the whole estates thereof, the summons of treason underwritten, raised at the instance of our said sovereign lord and also at the instance of his highness's advocate for his interest against Thomas Kennedy of Drummurchie, brother-german to the late Gilbert Kennedy of Bargany, for certain crimes of treason specified therein, which summons were produced by the said advocate of before at Edinburgh in presence of the lords of articles upon 28 April last, of the which summons of treason the tenor follows:
James, by the grace of God, king of English, Scots, French and Irish, and defender of the faith, gives greetings to our beloved lyon king of arms, Albany, Snowdon, Marchmont, Rothesay, Islay, Ross etc., and any of you, jointly and severally. We mandate and instruct you to summon lawfully Thomas Kennedy of Drummurchie, full brother of the late Gilbert Kennedy of Bargany, in person if you can have his presence in person, or otherwise at his place of dwelling and also at the market crosses of our burghs of Ayr, Irvine and Maybole and at our ports of Ayr and Leith, and at any other necessary places, on notice of sixty days, for the reason that the said Thomas Kennedy is said to be staying at present outwith our realm of Scotland, that he should compear before us, our commissioners and lieutenants and the estates of our realm of Scotland in Edinburgh on 20 April next, in our parliament to be opened on 10 April, at the time of dealing with cases, with continuation of days, in order to answer to us and at the instance of our beloved councillor Lord Thomas Hamilton of Monkland, knight, our advocate for our interest; that is, Thomas Kennedy of Drummurchie, for the treasonable and nefarious siege by him and his accomplices to the number of 50 armed men, of the mansion and manor of the lands of Auchensoul, lying within our sheriffdom of Ayr, to which our beloved kinswoman Jean [Fleming], countess of Cassilis, accompanied by seven or eight servants and companions, had fled for her safety when the said Jean and her servants were journeying from their home of Inch in Galloway to another home of hers in the town of Maybole, in the bailiary of Carrick and within our sheriffdom of Ayr, on 18 May last in the year of the Lord 1603; also for the malevolent, cruel, nefarious, abominable and dastardly setting fire to the manor in which the said Lady Jean, countess of Cassilis and her servants had taken refuge to avoid the risk of death. When the mansion and manor of Auchensoul had been set on fire from all sides and was burning, they were forced, by fear of violent death, flames and smoke, to leave, and then when the said Lady Jean, countess of Cassilis had left, the late Hugh Kennedy, full brother and heir apparent of our beloved kinsman John [Kennedy], earl of Cassilis, lord Kennedy, John MacIlvain, younger, of Grimmet, John Dick of Barbieston, Andrew Cunningham of Knockindoun, Quentin Crawford, Robert Hay and William Kennedy, servants and companions of the said countess on this occasion, were taken prisoner by the said Thomas Kennedy of Drummurchie and his accomplices, taken away and detained in private prisons. Accordingly, by the decreet and judgment of our parliament and of the three estates of our realm, the said Thomas has incurred, for seeing and hearing, the charge of lese-majesty, and hence ought to be punished as if guilty of lese-majesty, by the capital and ultimate punishment, and loss of all his goods, movable and immovable, and lands and tenements which the said Thomas has or could claim to have in our realm of Scotland in future, for the following reason and cause: for the reason that it has been agreed by an act of parliament of James V, most illustrious king of Scots, our grandfather, held and opened in Edinburgh on 22 January in the year of the Lord 1528 [1529], that if anyone burns people in their houses he shall be guilty of lese-majesty, and also that all settings fire to houses or granaries and all fires that are deliberate or malicious are crimes of lese-majesty, and that in loathing of fire-raisers, whom the laws order to be seriously punished, as is contained at greater length in the said statute. This statute was repeated and renewed in our parliament held in Edinburgh on [1]5 December in the year of the Lord 1567, and that deservedly, as the number and boldness of fire-raisers in our kingdom has been increasing, as is contained at greater length in the said earlier statute. And thus it is in the case of the said Thomas Kennedy of Drummurchie: accompanied by around 50 armed horsemen he set an ambush and blocked the way of our said beloved kinswoman Jean, countess of Cassilis who was going from her home of Inch in Galloway, in our sheriffdom of Wigtown, to another house of hers in the town of Maybole, in our bailiary of Carrick and our sheriffdom of Ayr, on 18 May in the year of the Lord 1603. Spurring on their horses, they attacked our beloved kinswoman and her servants and companions as they made their journey and forced them off the public road, in fear of their lives. When she made at speed for refuge, with her companions and servants, spurring on their horses, towards a certain mansion of Auchensoul, occupied at the time by Duncan Crawford of Auchensoul, as it seemed to be a place convenient for escape, when they caught sight from that place of our beloved kinswoman and her servants and companions, and saw that it was not possible to get her out of there unless they set fire to the house, they brought fire and burned the house and its surroundings from all sides, and as the smoke increased and the flames burst inwards, they were all reduced to extreme danger, and our beloved kinswoman, with her servants and companions, fell into the hands of the fire-raisers as captives. One of them, by the name of John MacGrane, was overcome by flames, came out of the foresaid house and before he could take breath he was cruelly and nefariously killed with swords and other war-like devices by the said Thomas and his foresaid accomplices. The rest of the companions of our said beloved kinswoman, namely Hugh Kennedy, full brother and heir apparent of our said beloved councillor John, earl of Cassilis, John MacIlvain, younger, of Grimmet, John Dick of Barbieston, Andrew Cunningham of Knokdone, Quentin Crawford, Robert Hay and William Kennedy were taken captive by the said fire-raisers and plunderers, and at their will taken away and treasonably kept in custody and detained by them in their houses, fortalices and castles of Ardstinchar and in the Coiff of Craiganes,† within our foresaid sheriffdom of Ayr, for 15 days or thereabouts, and were not freed and ransomed from that captivity until they were obliged by themselves and those standing surety for them [to swear that] they would utterly desert our kinsman John, lord Cassilis, whom they were bound to serve as their master and magnate, and if they acted differently they would pay a large sum of money, having been compelled to devote themselves with dire [threats] if they did the opposite. In so doing, not only were they aggravated in their crime of highway robbery and treasonable arson, but also made themselves guilty of treasonable usurpation of our authority, and so that all these notorious things might happen, the same Thomas Kennedy (called 'of Drummurchie') in the presence of the lords of our privy council behaved stubbornly when due to respond to the foresaid treasonable crime of arson and capture of the foresaid free persons and other things mentioned above, and for that reason was proclaimed and announced to be in rebellion against us, as is set out at greater length in our letter delivered on that subject. Therefore, it is decreed, by us and by the decreet and opinion of our parliament and of the estates of our realm, that the said Thomas Kennedy of Drummurchie has committed the crime of lese-majesty, and thus as accused of lese-majesty he ought to be punished with the capital and ultimate penalty, and with loss of all the goods, both immovable and movable, lands and tenements which the said Thomas has or will be able to have and claim in future, and also it ought to be decreed and declared by our said parliament and by the estates of our realm that they belong to us, for the reason and cause mentioned above. Further, it is intimated to the said Thomas that whether he has compeared on the said day and in the said place, with continuation of days, or not, either we or our justice shall proceed in regard to the foregoing, in line with justice. Further, you are to cite peremptorily before witnesses Alan Cathcart of Drumjoan, Peter Algeo, servant of Master James Donaldson, advocate, David Crawford and Alexander Crawford, servants of Lord Ker, Duncan Crawford, John Muir of Carquhen, James MacTrutor in Knockdone, Gilbert Muir in Auchensoul, Gilbert Kennedy of Monunsioun, Arthur Kennedy, son of David Kennedy of Balsarroch, John Wilson in Dalrymple, Archibald Gillies, cook, Hugh Kennedy of Garryhorn, Alan MacTeir in Layne, James Goudie in Lauderdale, James MacTrutor in Traboyak, to compear before us or our justice on the said day and in the said place, with continuation of days, to demonstrate loyal testimony in the foresaid case, under pain of the law. Also, you shall hand over the said letter, duly executed and endorsed, to their bearer. Also you who have served writs in person are to be on the said day in the said place, in the presence of ourselves or our judge, bearing with you written proof of your summons in relation to the foregoing, or witnesses themselves. We give authority to you, and to whomsoever of you, our sheriffs in this regard, jointly and severally. Given under testimony of our great seal, at Edinburgh on 13 February in the year of the Lord 1604, and in the thirty-seventh year of our reign in Scotland and the first in England, France and Ireland.
Here follows the tenor of the executions and endorsements of the said summons of treason:
Upon 15 February 1604, I, James Borthwick, Rothesay herald, passed at command of the summons of treason within written to the pier and shore of Leith and there, by open proclamation, summoned Thomas Kennedy of Drummurchie, brother-german to the late Gilbert Kennedy of Bargany, and left a copy upon the said pier and shore of Leith of the said summons after the reading of the same, to compear before our sovereign lord and his highness's commissioners or lieutenant for the time and estates of this realm of Scotland, 20 April next, in the parliament to be held and begun 10 April, in the hour of cause, with continuation of days, to answer at the instance of our said sovereign lord and also at the instance of his highness's familiar councillor Sir Thomas Hamilton of Monkland, knight, his highness's advocate for his majesty's interest, for the causes specified within, to the effect rehearsed within after the form and tenor of the said summons. This I did before these witnesses: James Gowdie, Patrick Hamilton, servants to John [Kennedy], earl of Cassilis, and Daniel Boyle, messengers, with diverse others. And for the more verification to this my execution and endorsement, subscribed with my hand, my seal is affixed. It is thus subscribed, James Borthwick, Rothesay herald, upon 17 February, the year of God foresaid.
I, the said James Borthwick, Rothesay herald above-named, passed at command of the said summons of treason written within to the market cross of Irvine and there, by open proclamation, summoned the said Thomas Kennedy to compear before our said sovereign lord and his highness's commissioners or lieutenant for the time and estates of this realm of Scotland the said 20 April next, with continuation of days, in the parliament to be and begin the said 10 April, in the hour of cause, with continuation of days, to answer at the instance of our said sovereign lord and also at the instance of his highness's advocate above-named, to the effect written within, after the form and tenor of the said summons; of the which I affixed an authentic copy upon the said market cross after the form and tenor of the said summons. This I did before these witnesses: John Muir in Woodland and William Carnoquhan, his servant, with diverse others. And for the more verification to this my execution, subscribed with my hand, my seal is affixed. It is thus subscribed, James Borthwick, Rothesay herald, upon 18 February, the year of God foresaid.
I, the said James Borthwick, Rothesay herald above-named, passed at command of the said summons to the market cross of the burgh of Ayr and shore and port thereof respectively, and there, by open proclamation at the said market cross, shore and port foresaid, I summoned the said Thomas Kennedy to compear [before]† our said sovereign lord, his highness's commissioners and lieutenant and the estates of this realm, day and place above and within contained, with continuation of days. And also upon the same 18 February the year of God foresaid, I, the said James Borthwick, Rothesay herald above-named, passed at command of the said summons to the market cross of Maybole and there, by open proclamation, I summoned the said Thomas Kennedy to compear before our said sovereign lord, his highness's commissioners and lieutenant and estates of this realm, day and place above and within contained, to answer at the instance of our said sovereign lord and his highness's advocate foresaid, to the effect specified within, after the form and tenor of the said summons; of the which I affixed an authentic copy upon the said market cross after I had read the same. This I did before these witnesses: John Muir in Woodland and William Carnoquhan, his servant. And for the more witnessing hereof, subscribed with my hand, my seal is affixed. It is thus subscribed, James Borthwick, Rothesay herald, upon 19 February the year of God foresaid.
I, the said James Borthwick, Rothesay herald above-named, passed and summoned the said Thomas Kennedy at the dwelling house of John Wallace in Ballantrae, where the said Thomas Kennedy remained commonly before his departure out of Scotland, to compear before our sovereign lord, his highness's commissioners or lieutenant and estates of this realm, day and place above and within contained, to answer at the instance of our said sovereign lord and his highness's advocate foresaid, to the effect specified within, after the form and tenor of the said summons; of the which I affixed an authentic copy upon the door of the said John Wallace's dwelling house in Ballantrae after I read the same summons and knocked six sundry times thereat. This I did before these witnesses: William Carnoquhan, servant to the said John Muir in Woodland and John Baird, servant to John Baird in Maybole, with others diverse. And for the more verification hereof, subscribed with my hand, my signet is affixed. It is thus subscribed, James Borthwick, Rothesay herald.
The which summons of treason, with the executions and endorsements thereof bearing and containing as is above-written, were produced by the said Sir Thomas Hamilton of Monkland, advocate to our said sovereign lord, in presence of the said lord commissioner and whole estates of this present parliament at Edinburgh, 26 April last, and the foresaid executions of the said summons were then sufficiently verified by the foresaid officers, executors thereof, and the said witnesses inserted in the same executions; likewise the same executions were this instant day of new verified and proven by the same officers and witnesses in presence of the said lord commissioner and whole estates. And also the said advocate produced letters of relaxation, relaxing the said Thomas Kennedy from all process of horning led and deduced against him for whatsoever cause, and thereafter the said Thomas Kennedy, being thrice called at the tolbooth window to have answered to the said summons of treason, he compeared not to answer thereto. And therefore the said advocate (after that the foresaid cause of the said summons of treason was found relevant by the said whole estates against the said Thomas Kennedy of Drummurchie), for proving of the points of the said summons of treason against the said Thomas Kennedy and of the reason and cause contained therein, repeated the depositions of the witnesses received, admitted, sworn and examined in presence of the said whole estates upon the foresaid reason and cause, and also repeated the notoriety of the fact of the burning and the said Thomas Kennedy acknowledging his own guiltiness and taking of the said crimes upon him through being fugitive and denounced rebel for not compearing before our said sovereign lord's justice and lords of his highness's privy council respectively, in manner contained in the letters of horning raised thereupon. And likewise the said advocate produced diverse other writs and probations for proving of the said summons of treason, and desired the said estates of parliament to advise the foresaid probations and to give forth their doom and sentence therein according to justice. And thereafter, the foresaid whole probations and summons of treason being read, heard, seen and considered by the said estates and they therewith being ripely advised, the said whole estates of parliament find, decree and declare that the said Thomas Kennedy of Drummurchie has committed treason in raising of the said fire and burning of the said place of Auchensoul in manner specified in the foresaid summons and, therefore, decree and ordain the doom underwritten to be pronounced and given forth against him by the mouth of David Lindsay, dempster, of the which doom the tenor follows:
This court of parliament shows for law that the said Thomas Kennedy of Drummurchie has committed treason in raising of fire and burning of the said place of Auchensoul pertaining to the said Duncan Crawford, the time and in manner specified in the said summons of treason pursued by his highness's said advocate for his grace's interest against him and, therefore, finds and declares that the said Thomas Kennedy has lost and been deprived of and forfeited for ever all his lands, heritages, rooms, possessions, offices, goods and gear whatsoever belonging to him in any manner of way and which he has had, might have or claim within this realm of Scotland, and discerns the same to have appertained and to appertain to our said sovereign lord, to be confiscated and to remain with his highness as his property in all time coming; and also finds and declares that the said Thomas Kennedy has lost his same honours and dignity and he to be punished as a traitor according to the laws of this realm. And this I give for doom.
[1604/4/24]*[print] [email] [cite] [preceding] [following]
The which day Master Thomas Rollock, depute for Sir Thomas Hamilton of Monkland, knight, advocate to our sovereign lord, and in his highness's name, reproduced in presence of a noble and potent lord John [Graham], earl of Montrose, lord Graham and Mugdock, great commissioner of this present parliament, and in presence of the whole estates thereof the summons of treason underwritten, which was produced by the said advocate of before at Edinburgh in presence of the lords of articles upon 28 April last, of the which summons of treason the tenor follows:
James, by the grace of God, king of English, Scots, French and Irish, and defender of the faith, gives greetings to our beloved lyon king of arms, Albany, Snowdon, Marchmont, Rothesay, Islay, Ross, Bute, Carrick, Ormond, Unicorn pursuivants, David Bryson, Robert Stewart, Alexander Douglas and James Chalmers, our macers, and John Ferguson and John Wilkinson, messengers, and any of you, jointly and severally. We mandate and instruct you to summon lawfully Thomas Kennedy of Drummurchie, full brother of the late Gilbert Kennedy of Bargany, in person if you can have his presence in person, or otherwise at his place of dwelling and also at the market crosses of our burghs of Ayr, Irvine and Maybole and at our ports of Ayr and Leith, and at any other necessary places, on notice of sixty days, for the reason that the said Thomas Kennedy is said to be staying at present outwith our realm of Scotland; and also you are to summon lawfully Robert Muir, full brother and heir apparent of the late Walter Muir of Cloncaird, Janet Muir, his full sister, in person if you can have their presence in person, or otherwise at their places of domicile and habitation, and also the said Robert and Janet and other relations on the male side and other relations of the said late Walter Muir of Cloncaird and everyone who has or claims an interest, and also the tutors and curators of the said Robert and Janet Muir, if they have any, at the said market crosses of our said burghs of Ayr, Irvine and Maybole, and other necessary places, that they should compear before us, our commissioners and lieutenants and also the estates of our realm of Scotland in Edinburgh on 20 April next, in our parliament to be opened on 10 April, at the time of dealing with cases, with continuation of days, in order to answer to us and at the instance of our beloved and loyal councillor Lord Thomas Hamilton of Monkland, knight, our advocate for our interest. That is to say, you are to summon Thomas Kennedy of Drummurchie on account of his nefarious, dastardly, criminal and treasonable murder and slaughter of the late Sir Thomas Kennedy of Coiff† carried out by him, his accomplices and fellow conspirators in the said homicide perpetrated, as a great crime, as follows: on 11 May in the year of the Lord 1602, and also for his dastardly, nefarious and manifest theft with violent robbery (commonly called 'stouthreif') of the purse or wallet of the said late Sir Thomas Kennedy of Coiff with a large sum of money, gold and silver coin to the total of 2,000 merks, which the said late Thomas was carrying with him, with various gold rings with precious stones and many other gold pins, a tailored doublet, tunic and breeches of the said late Thomas, to the value of £100, in the act of perpetrating the homicide. Also, because of the treasonable and nefarious siege mounted by him and his accomplices (numbering 50 armed men) of the mansion and manor of the lands of Auchensoul, lying within our sheriffdom of Ayr, to which, in the circumstances described below, our beloved kinswoman Jean [Fleming], countess of Cassilis had fled for her life, accompanied by seven or eight servants and companions, when the said Lady Jean and her servants were travelling from their home at Inch in Galloway in the direction of another house of hers in the town of Maybole, in the bailiary of Carrick and within our sheriffdom of Ayr, on 18 May 1603, and also because of the malicious, cruel, nefarious, abominable and dastardly setting fire to the manor, in which, to avoid the danger of death, the said Lady Jean, countess of Cassilis and her servants took refuge. When the manor was set alight and was burning on all sides, in fear of violent death, flames and smoke, they were forced to leave the mansion and manor, and after the departure of the said Lady Jean, countess of Cassilis, the late Hugh Kennedy, full brother and heir apparent of our beloved kinsman John [Kennedy], earl of Cassilis, lord Kennedy, John MacIlvain, younger, of Grimmet, John Dick of Barbieston, Andrew Cunningham in Knockdone, Quentin Crawford, Robert Hay, William Kennedy, servants and companions at the time of the said countess on this occasion, were taken prisoner by the said Thomas Kennedy of Drummurchie and his accomplices, and, as mentioned below, were taken away and detained in private prisons. Therefore it is decreed, for seeing and hearing, by us and by the decreet and opinion of our parliament and of the estates of our realm, that the said Thomas has committed the crime of lese-majesty, and thus as accused of lese-majesty he ought to be punished with the capital and ultimate penalty, and with loss of all the goods, both immovable and movable, lands and tenements which the said Thomas has in our kingdom of Scotland or will be able to have and claim in future. Further, the said Robert Muir, full brother and heir apparent of the said late Walter Muir of Cloncaird, and Janet Muir, his full sister, and all the other relatives and kinsmen of the said late Walter, and the tutors and curators of the said Robert and Janet, if they have any, and all those who have or claim to have an interest, [are to be summoned] for seeing and hearing, as it has been decided and proclaimed by the estates of our realm in our parliament mentioned above, that the said late Walter Muir of Cloncaird was and is guilty of lese-majesty as having been the agent, facilitator and perpetrator of the said crimes, along with the said Thomas Kennedy of Drummurchie, in the shape and form described below. On account of this, the memory and reputation of the said late Walter should be damned and abolished, and all his goods, movable and immovable, lands, tenements and everything else which he has had in our kingdom of Scotland, or could have had, should be decreed to belong to us, and that the said Robert, his brother, and Janet, his sister, and everyone else descended from them ought to be excluded from the same in perpetuity for the following reasons and causes. Because in our parliament held in our burgh of Edinburgh in Scotland on 29 July in the year of the Lord 1587 by us and by the three estates of our said realm it was established that if it should happen that any of our subjects of the said kingdom of Scotland who possesses lands belonging to him in heritage (as in common speech it is said in the said statute 'any landed man') should be at any time in future after that statute, lawfully and according to the rule of law, convicted of manifest theft, or theft with robbery and force (that is, of stouthreif), therefore they should incur the charge and penalty of lese-majesty, namely loss and forfeiture of life, lands and goods, as is contained most clearly in the said statute. And thus it is in reality, because the said Thomas Kennedy of Drummurchie and the foresaid late Walter Muir of Cloncaird, with their accomplices and companions, seven in number, with arms, war machines and carbines prohibited by law, and trusting in their horses on the said 12 May 1602 were rebels and were put to the horn, as can be seen clearly in our letter and denunciation of rebellion. As part of a premeditated crime, they attacked the said Sir Thomas Kennedy of Coiff, who was unprepared and did not expect this, when he was travelling, accompanied by one servant, from his residence of Coiff towards our said burgh of Ayr, intending to go from there to Edinburgh to conduct his business, at the chapel called of St Leonard's half a mile from Ayr. They assaulted him with war machines, ran him through with lances and cruelly killed him, and with plundering and force accompanying the theft (that is, stouthreif), from the pouch and wallet of the said late Thomas Kennedy of Coiff they violently stole and bore away the sum of 2,000 merks in rose nobles and five pound pieces of angel nobles and Portuguese ducats, with various rings with precious stones and many other gold pins, and tailored doublet, tunic and breeches of the said late Thomas to the value of £100. For this crime they were called before our justice to submit to the law, being stubborn they were declared rebels and put to the horn, as can be clearly seen in our letters and denunciation of rebellion. Also, it has been agreed by an act of parliament of James V, of most illustrious memory, king of Scots, our grandfather, held and opened in Edinburgh on 22 January in the year of the Lord 1528 [1529] that if anyone burns people in their houses, he shall be guilty of lese-majesty, and also that all settings fire to houses or granaries and all fires that are deliberate or malicious are crimes of lese-majesty, and that in loathing of fire-raisers, whom the laws order to be seriously punished, as is contained at greater length in the said statute. This statute was repeated and renewed in our parliament held in Edinburgh on [1]5 December in the year of the Lord 1567, and that deservedly, as the number and boldness of fire-raisers in our kingdom has been increasing, as is contained at greater length in the said earlier statute. And thus it is, because the said Thomas Kennedy of Drummurchie and the said late Walter Muir of Cloncaird, accompanied by around 50 armed horsemen, set an ambush and blocked the way of our said beloved kinswoman Jean, countess of Cassilis who was going from her home of Inch in Galloway, in our sheriffdom of Wigtown, to another house of hers in the town of Maybole, in our bailiary of Carrick and our sheriffdom of Ayr, on 18 May in the year of the Lord 1603. Spurring on their horses, they attacked our beloved kinswoman and her servants and companions as they made their journey and forced them off the public road, in fear of their lives. When she made at speed for refuge, with her companions and servants, spurring on their horses, towards a mansion of Auchensoul, occupied at the time by Duncan Crawford of Auchensoul, as it seemed to be a place convenient for escape, and when they saw that it would not be possible to get our beloved kinswoman and her servants and companions out of there unless they set fire to the house, they brought fire and burned the house and its surroundings from all sides, and as the smoke increased and the flames burst inwards, they were all reduced to extreme danger, and our beloved kinswoman, with her servants and companions, fell into the hands of the fire-raisers as captives. One of them, by the name of John MacGrane, was overcome by flames, came out of the foresaid house and before he could take breath he was cruelly and nefariously killed with swords and other war-like devices by the said Thomas and his foresaid accomplices. The rest of the companions of our said beloved kinswoman, namely Hugh Kennedy, full brother and heir apparent of our said beloved councillor John, earl of Cassilis, John MacIlvain, younger, of Grimmet, John Dick of Barbieston, Andrew Cunningham of Knockdone, Quentin Crawford, Robert Hay and William Kennedy were taken captive by the said fire-raisers and plunderers, and at their will taken away and treasonably kept in custody and detained by them in their houses, fortalices and castles of Ardstinchar and in the Coiff of Craiganes,† within our foresaid sheriffdom of Ayr, for 15 days or thereabouts, and were not freed and ransomed from that captivity until they were obliged by themselves and those standing surety for them [to swear that] they would utterly desert our kinsman John, lord Cassilis, whom they were bound to serve as their master and magnate, and if they acted differently they would pay a large sum of money, having been compelled to devote themselves with dire oaths if they did the opposite. In so doing, not only were they aggravated in their crime of burglary, strouthreif, highway robbery and treasonable arson, but also made themselves guilty of treasonable usurpation of our authority, and so that all these notorious things might happen, the same Thomas Kennedy of Drummurchie and the said Walter Muir of Cloncaird, called before the lords of our privy council, behaved stubbornly when due to respond to the foresaid treasonable crime of arson and capture of the foresaid free persons and other things mentioned above, and for that reason were proclaimed and denounced rebels against us, as is set out at greater length in our letter delivered on that subject. Therefore it is decreed, by us and by the decreet and opinion of our parliament and of the estates of our realm, that the said Thomas Kennedy of Drummurchie has committed the crime of lese-majesty, and thus as accused of lese-majesty he ought to be punished with the capital and ultimate penalty, and with loss of all the goods, both immovable and movable, lands and tenements which the said Thomas has or will be able to have and claim in future, and also it ought to be decreed and declared by our said parliament and by the estates of our realm that the said late Walter Muir of Cloncaird was and is guilty of the said crime of lese-majesty as being the agent, arranger and perpetrator of the said crimes respectively mentioned above, with the said Thomas Kennedy of Drummurchie, in the mode and form already mentioned. On account of this, the memory and reputation of the said late Walter should be abolished and damned and all his goods, movable and immovable, lands, tenements and everything else which he has had in our kingdom of Scotland, or could have had, or that the foresaid Robert and Janet, their relatives, kinsmen and all descended from them have or could claim to have in future, should be decreed to belong to us, and that the said Robert, his full brother, and Janet, his full sister, and everyone else descending or ascending from them and any others at all should be excluded in perpetuity, for the reasons and causes mentioned above. Further, it is intimated to the above-mentioned persons and any of them respectively that whether they have compeared on the said day and in the said place, with continuation of days, or not, either we or our justice shall proceed in regard to the foregoing, in line with justice. Further, you are to cite peremptorily before witnesses Alan Cathcart of Drumjoan, Peter Algeo, servant of Master James Donaldson, advocate, David Crawford and Alexander Crawford, servants of Lord Ker, Duncan Crawford, John Muir of Tarquyne, James MacArthur of Knockdone, Gilbert Muir in Auchensoul, Gilbert Kennedy of Monunsioun, Arthur Kennedy, son of David Kennedy of Balsarroch, John Wilson in Dalrymple, Archibald Gillies, cook, Hugh Kennedy of Garryhorn, Alan MacTeir in Layne, James Goudie in Lauderdale, James MacTrutor in Traboyak, to compear before us or our justice on the said day and in the said place, with continuation of days, to demonstrate loyal testimony in the foresaid case, under pain of the law. Also, you shall hand over the said letter, duly executed and endorsed, to their bearer. Also you who have served writs in person are to be on the said day in the said place, in the presence of ourselves or our judge, bearing with you written proof of your summons in relation to the foregoing, or witnesses themselves. We give authority to you, and to whomsoever of you, our sheriffs in this regard, jointly and severally. Given under testimony of our great seal, at Edinburgh on 13 February 1604, and in the thirty-seventh year of our reign in Scotland and the first in England, France and Ireland.
The which summons, with the executions and endorsements thereof, were produced by the said Sir Thomas Hamilton of Monkland, knight, advocate to our sovereign lord, in presence of the said [John Graham], earl of Montrose, great commissioner of this present parliament, and whole estates of the same parliament first upon 26 April last, and thereafter the same was produced in their presence and presence of the lords of articles upon 28 April last, upon the which 28 April the said Sir Thomas Hamilton, advocate to our sovereign lord, in his highness's name, passed simply from the pursuit of the said Robert Muir, brother-german and apparent heir to the said late Walter Muir of Cloncaird, and Janet Muir, his sister, and their tutors and curators for their interest, as also passed simply from the whole reasons, whole points and articles contained in the said summons of treason, bearing and containing as is above-written, so far as the same extends or may be extended to the said Robert and Janet Muir. Likewise also this instant day in presence of my lord great commissioner and whole estates of parliament the said Master Thomas Rollock, advocate depute, in absence of the said Sir Thomas Hamilton, principal advocate, likewise passed simply from the pursuit of the said Robert and Janet Muir and their said tutors and curators for their interest, and also passed simply from the whole reasons, whole points and articles contained in the said summons of treason, so far as the same extends or may be extended to the said Robert and Janet Muir and their said tutors and curators, likewise the said Sir Thomas Hamilton, principal advocate foresaid, upon the said 28 April last, had passed simply from the same of before in presence of the said lords of articles. Upon the which whole premise, the said Robert Muir, for himself and his said sister, asked instruments.