[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.