[1543/3/29]*[print] [email] [cite] [preceding] [following]
Regarding the summons raised at the instance of Archibald [Douglas], sometimes earl of Angus, George Douglas, his brother-german, and Archibald Douglas, son and heir of the late Archibald Douglas [of Kilspindie], the said earl's uncle, against a noble and mighty lord James [Hamilton], earl of Arran, lord Hamilton, tutor to our queen's grace and governor of this realm, David Wood of Craig, her grace's comptroller, Master Henry Lauder [of St Germains], advocate to our said sovereign lady, the queen's grace, and all others having interest in the matter specified below, to hear and see the decreet, decision and sentence of forfeiture given in the parliament of our sovereign lord of good mind that last deceased, whom God absolve, held at Edinburgh on 5 September 1528, against the persons foresaid, discerning that the said persons had committed the crime of treason and lese-majesty against our said late sovereign lord's person in the disobedience and refusing to fulfil the command of his highness made by the advice of the lords of his council, and in convocation of his highness's lieges eight days continually, and in the furnishing of the castles of Tantallon and Newark against his majesty, and in the assistance given to [John Johnstone], laird of Johnstone in the burning, wasting and destroying day and night, and in holding of his grace's person against his will for the space of two years and exposing him to diverse battles, he being of tender age; and to hear and see the same retreated, rescinded, made void and annulled, and discerned by the three estates of parliament to be of no strength, force nor effect, together with the annexation of parliament of the lands of the said Archibald, sometimes earl of Angus, and George, his brother-german, with all that followed thereupon; and that they, and each one of them, are to be restored and reinstated to their fame, life, lands and goods whatsoever, in the same state as they and the said late Archibald were before the giving of the said laud and doom of parliament for these reasons and causes following. In the first, because they were summoned to compear before our said late sovereign lord and three estates of his realm in the burgh of Edinburgh in the tolbooth of the same on 4 September 1528, to the effect foresaid, they not having sure passage to come, but only just fear and dread that might fall on steadfast men, because our said late sovereign lord, whom God absolve, after the raising of the said summons, which was of the date 13 June 1528, and after the execution of the same, which was in the month of July 1528, with an army of men and displayed banner invaded the said Archibald and George in the month of August 1528, and they did not resist, but as true lieges and subjects to his highness, being of mind and will to obey him, fled, through which it was manifestly known to them that they might not have sure passage to compear and keep their day by reason of the said fear and dread; and albeit it was contained in the process that there were proclamations made immediately upon 2 September 1528 that it would lawful to come and defend their cause, the proclamations were too soon, for it was not possible for them to come and advise upon such great matters within so short a space of time, and also the said proclamations made them unsure whether to come and to return safely, or pass and repass without danger and fear of their lives, but only made them sure to come. Secondly, because the said persons were summoned to compear on Friday 4 September 1528, to answer and plea upon their lives, lands and heritage and universal goods, and the said sentence of forfeiture was given on 5 September 1528, and the granting of their sure passage to come and defend their cause was but proclaimed on 2 September 1528, and so between the day of the granting of their sure passage and their compearing was but one day and a half, within the which space of time it was not possible for them to have compeared and to have instructed and informed their procurators in so high and weighty cause concerning their lives, lands, heritage and goods and, therefore, the same should be retreated with all that followed thereupon as is similarly alleged. Thirdly, because the execution of the said summons bore and contained that they should compear on Friday 4 September 1528, on the which day the officers and executors of the said summons did not verify their execution nor yet were the witnesses contained therein sworn in that matter, and no probation made by them thereof, but the said matter and summons of treason were continued to the said 5 September 1528, no probation of the execution thereof being proven as said is, albeit according to the law and daily practice all criminal summons, and especially those of treason or any continuation that may be made thereof, the execution of the same should first be proved proven and, therefore, the said process is null. Fourthly, because the said summons of treason was raised against the said persons of the date at Edinburgh, 13 June 1528, to have compeared the said 4 September 1528 thereafter, and the said Archibald, earl of Angus was commanded by letters of our said late sovereign lord, given by advice of his lords of council, of the date at Edinburgh, 8 July 1528, to pass within six days following beyond the water of Spey and there to remain in ward until he was relaxed under the pain of treason, by the which cause it is manifestly apparent that the said process is invalid, null and against all law and equity deduced and given, for it is not possible nor it cannot stand that he might have compeared here on 3 September to answer personally to the summons of treason and to have passed over the water of Spey at command of the letters given on 8 July 1528, to have remained there in ward; and in the case that he had obeyed the one, he would have disobeyed the other; and also the command contained in the said process charging him to pass in ward and the alleged disobedience committed thereby was of the date 7 and 8 July 1528, and so after the date of the said summons of treason, which was 13 June 1528 and immediately preceding the same and, therefore, might not stand nor come in disputation of the said summons by reason that the said sentence and process of forfeiture might not be given upon the alleged crimes after the date of the execution of the same and, therefore, is null and should be similarly reduced. Fifthly, the said persons are discerned to have committed treason against our sovereign lord, whom God absolve, and therefore to have forfeited their life, lands, heritage and goods because they did not enter into ward, but disobeyed the command given to them, albeit in common law not fulfilling the prince's command is not a crime of lese-majesty, nor yet in the common law municipal of this realm is it sufficient cause to forfeit a man for not obeying the same, wherefore the said sentence of forfeiture, discerning the said persons to have forfeited their life, lands and goods for not obeying the said command, is ill-given and against all law, natural reason and equity and, therefore, should be reduced. Sixthly, the said decreet discerns that the said persons committed treason for the disobedience of one command of our sovereign lord, not stating what manner of command nor what the same contained. Seventhly, the said decreet of forfeiture is given against the said persons, discerning them to have committed treason in the convocation of the lieges of his grace, the king, for the space of eight days continually preceding 1 July 1528, which cause makes the said process manifestly false and inept by reason that the summons whereupon the same proceeded was of the date of 13 June immediately preceding and so the said process of forfeiture was given for a crime committed and done after the date of the said summons and execution of the same, albeit no cause nor crime committed after the said 13 June could come into dispute by reason of the said summons, whereby the said decreet should be reduced. Eighthly, because the said persons were summoned for the munition and holding of the castles of Tantallon and Newark with men, victuals and artillery against the authority of our sovereign lord and the said decreet was given generally thereupon, neither stating nor declaring by what manner and sort the said castles were held, stuffed and furnished, or if the said persons were commanded by our said late sovereign lord or his letters to deliver the said castles to him or any others of his command and that they refused to do the same, or if they were besieged by him or his army and resisted by the said persons and they disobedient in that matter, otherwise any baron of the king may victual and furnish his houses and castles thereby incurring no crime, on account of which the said cause, neither qualifying nor explaining these matters, is not relevant and, therefore, should be reduced. Ninthly, they were discerned to have incurred treason for the assistance and maintenance of the Laird of Johnstone in his burning of certain lands within the realm, which cause was inept and the manner of the assistance and maintenance, namely the time, the year and the place, was not stated generally; and also he, as the principal, was never convicted himself, and so in law and in practice no assisters can be convicted until the time the principal has been convicted; also, it was no crime of treason but a private action between party and party, and for that reason the said decreet is ill-given and should be similarly reduced. Tenthly and finally, they are discerned to have committed treason in the holding of our said sovereign lord's person against his will for the space of two years against a decreet of parliament and exposing his person to diverse battles during the said space of time, not stating by what manner he was held against his will or during what years, or if he was stopped by the said persons to go anywhere within his realm where his grace pleased, or if that the lords contained in the act of parliament ordained to keep his highness quarterly came and desired to do the same and the said persons refused and resisted and would not obey the same, which of the law ought and should have been contained specially in the said summons, otherwise the same was not relevant; and also the said Archibald, earl of Angus, and persons foresaid, by decreet of parliament, are discerned innocent, good, true and faithful lieges of any fault or crime regarding the fields of Melrose and Linlithgow and all other places at which our said late sovereign lord was present, and made clear and free thereof, and so the said decreet of forfeiture is ill-given and should be reduced and the persons foresaid restored and reinstated entirely against the same to their honours, fame, offices, heritage, goods, moveable and unmoveable, and restored to the same estates as they were of before the giving of the said decreet and the act of parliament of annexation of their lands dissolved for the causes foresaid and for diverse other reasons and causes, as at more length is contained in the said summons. The said Archibald, George and Archibald being personally present, my said lord governor, comptroller and the said advocate for our said sovereign lady's interest, being all personally present, and all others for their interest in the said matter being lawfully summoned to this action† by open proclamation at the market crosses of Edinburgh, Haddington, Jedburgh, Selkirk, Lanark, Perth, Forfar and Dundee, as the endorsements and executions of the said letters underwritten purport, often times called and not compearing, of the which endorsements the tenor follows:
On 29 January 1542 [1543], I, Bute pursuivant, one of the sheriffs in that part within-written, passed at the command of these our sovereign lady's letters of summons and summoned one noble and mighty lord James [Hamilton], earl of Arran and lord Hamilton, our sovereign lady's tutor and governor of her realm, Master Henry Lauder, her advocate, and David Wood of Craig, her grace's comptroller, in her name and for her right and interest, all personally apprehended, to compear before our said sovereign lady's dearest cousin and tutor and three estates of this realm in her highness's next parliament to be held in the burgh of Edinburgh in the tolbooth of the same on 25 March 1543, with continuation of days, to answer at the instance of Archibald, sometimes earl of Angus, George Douglas, his brother-german, and Archibald Douglas, son and heir of the late Archibald Douglas of Kilspindie, uncle to the foresaid sometime earl, to hear and see the pretended sentence, decision and decreet of forfeiture alleged, led, given and pronounced in our said sovereign lady's most noble father's parliament of good mind, whom God absolve, held at Edinburgh on 5 September 1528, against the said Archibald, sometimes earl of Angus, George Douglas, his brother-german, and the said late Archibald Douglas of Kilspindie, as at more length is contained in the said pretended process; and to hear and see the same retreated, rescinded, made void and annulled and discerned by decreet and judgement of parliament foresaid to have been from the beginning and to be now, in all times coming, of no value, force nor effect, and the said persons, and each one of them, restored to their fame, life, lands and goods in the same state as they were at the time of the deducing of the said pretended process and sentence, for diverse reasons and causes contained in our said sovereign lady's letters of summons, with intimation as is within specified, and further, to answer at the instance of the said persons and to all the points, articles and reasons contained in the same after the form and tenor thereof, and delivered with authentic copies hereof to the said Master Henry. And this I did before these witnesses: Carrick and Ormond pursuivants, Alexander Hutton, messenger, and William Lyon, with diverse others. On the same 29th day of January 1542 [1543], I, the said Bute pursuivant, one of the sheriffs in that part foresaid, passed at command of these our sovereign lady's letters of summons to the market cross of the burgh of Edinburgh and there, by open proclamation, summoned all persons having or pretending to have interest to the action and matter specified within to compear before our sovereign lady's tutor and three estates of this realm in her grace's parliament to be held at the day and place foresaid, in the hour of cause, with continuation of days, to answer at the instance of the said Archibald, sometimes earl of Angus, George Douglas, his brother-german, and Archibald Douglas, son and heir of the late Archibald Douglas of Kilspindie, and to all the points and articles contained in these our sovereign lady's letters of summons in all points after the form and tenor of the same, with intimation to those as are specified with. And this I did before these witnesses: Carrick and Ormond pursuivants, Alexander Hutton, messenger, James Thomson and John Guthrie, with diverse others. On the same day and year of God foresaid, I, the said Bute pursuivant, passed at command of these our sovereign lady's letters of summons to the market cross of Haddington and there, by open proclamation, summoned all persons having or pretending to have interest in the matter and action specified within to compear before our sovereign lady's tutor and governor foresaid, at the day and place above-written, in the hour of cause, with continuation of days, to answer at the instance of the foresaid Archibald, George and Archibald, and to all the points and articles contained in these our sovereign lady's letters of summons written within, with intimation to those as are specified within after the form and tenor of the same. And this I did before these witnesses: William Thomson, John Guthrie, David Robeson, Alexander Thomson, James Thomson and John Douglas, with diverse others. On 30 January 1543, I, the said Bute pursuivant, sheriff in that part foresaid, passed at command of these our sovereign lady's letters of summons to the market cross of the burgh of Jedburgh and there, by open proclamation, summoned all persons having or pretending to have interest to the action and cause specified within to compear before our said sovereign lady's tutor and governor and three estates of her realm in her next parliament to be held at the day and place written within, in the hour of cause, with continuation of days, to answer at the instance of the foresaid Archibald, George and Archibald Douglas and to all the points and articles contained in these our sovereign lady's letters of summons after the form and tenor of the same, with intimation to them as are specified within. And this I did before these witnesses: Steven Riddall, Patrick Hardy, John Guthrie and James Thomson, with diverse others. On the last day of the same month, I, the said Bute pursuivant, passed at command of these our sovereign lady's letters of summons to the market cross of the burgh of Selkirk and there, by open proclamation, summoned all persons having interest to the matter and action specified within to compear before our sovereign lady's tutor and governor and three estates of her realm in her parliament to be held at the day and place above-written, in the hour of cause, with continuation of days, to answer at the instance of the foresaid Archibald, George and Archibald, and to all the points and articles contained in these our sovereign lady's letters of summons after the form and tenor of the same, with intimation to those as are specified with. And this I did before these witnesses: John Braid, John Braidfoot, David Robeson, John Guthrie and James Thomson, with diverse others. On 3 February 1542 [1543], I, the said Bute pursuivant, one of the sheriffs in that part foresaid, passed at command of these our sovereign lady's letters of summons to the market cross of the burgh of Lanark and there, by open proclamation, summoned all persons having interest to the matter and action written within to compear before our said sovereign lady's tutor and governor foresaid and three estates of this realm at the day and place foresaid, in the hour of cause, with continuation of days, to answer at the instance of the foresaid Archibald, George and Archibald, and to all the points contained in these our sovereign lady's letters of summons after the form and tenor of the same, with intimation to those as are written within. And this I did before these witnesses: John† Mowat, William† Pewter, David Robeson and James Thomson, with diverse others. And for the more witnessing to these my executions and endorsements, my signet is affixed. On 30 January 1542 [1543],† I, Carrick pursuivant, one of the sheriffs in that part written within, passed at command of [the authentic double]†of our sovereign lady's letters of summons directed out of her chancery and under her quarter seal, passed at command thereof to the market cross of the burgh of Perth and there, by open proclamation, summoned all persons having or pretending to have interest to the matter and action foresaid, in the hour of cause, with continuation of days, to answer at the instance of the foresaid Archibald, George and Archibald Douglas, and to all the points and articles contained in the said summons as is above-written, after the form and tenor thereof, with intimation to those as are specified within. And this I did before these witnesses: John Christie, Thomas Davidson, John Maxwell and Adam Ramsay, with diverse others. On 31 January 1542 [1543], I, the said Carrick [pursuivant], one of the sheriffs in that part foresaid, passed at command of the authentic double of the summons as said is to the market cross of the burgh of Forfar and there, by open proclamation, summoned all persons having or pretending to have interest in the matter and action specified within, to compear before our said sovereign lady's tutor and governor foresaid and three estates of this realm in her highness's next parliament to be held at the day and place foresaid, in the hour of cause, with continuation of days, to answer at the instance of the foresaid Archibald, George and Archibald Douglas, and to all the points and articles contained in these our sovereign lady's letters of summons and after the form and tenor thereof, with intimation to those as are specified within. And this I did before these witnesses: Archibald Hutton, Kerstiall Monteith, David Simpson and William Graham, with diverse others. On 1 February 1542 [1543], I, the said Carrick pursuivant, one of the sheriffs that part foresaid, passed at command of the authentic double of these our sovereign lady's letters of summons as said is to the market cross of the burgh of Dundee and there, by open proclamation, summoned all persons having or pretending to have interest to the matter and action written within to compear before our said sovereign lady's tutor and governor foresaid and three estates of her realm in her parliament to be held at the day and place foresaid, in the hour of cause, with continuation of days, to answer at the instance of the said Archibald, sometimes earl, George and Archibald, and to all the points and articles contained in these our sovereign lady's letters of summons after the form and tenor thereof, with intimation to those as are specified within. This I did before these witnesses: David Rollock, James Wedderburn and Master David Strachan, with diverse others, and for the more witnessing to these my executions and endorsements my signet is affixed. And the said endorsements and executions being lawfully and sufficiently proved in face of parliament by the officers and witnesses contained in the same, being present and sworn thereto as is above-written, my said lord governor, with the advice of the three estates of parliament and by judgement of the same, retreats, rescinds, makes void and annuls the said pretended decision and doom of forfeiture led and given against the said Archibald Douglas, sometime earl of Angus, George Douglas, his brother-german, and the late Archibald Douglas, their uncle, is manner foresaid, and decrees and declares the same by judgement of this present parliament to have been from the beginning, with the annexation of parliament of the lands of the said Archibald, sometime earl of Angus, and George, his brother-german, with all that followed thereupon, of no value, force nor effect in time to come for the reasons and causes foresaid; and the said Archibald, earl of Angus, George, his brother, and Archibald Douglas, son and heir of the late Archibald, their uncle, to be restored and restores them in their first state regarding their life, fame, honours, lands, goods, moveable and unmoveable whatsoever as they were before the giving of the said decreet and doom of forfeiture for the causes foresaid; and letters to be directed hereupon to make publication at all places needful of this present declaration and retraction of the said decreet and doom of forfeiture done and given by judgement of parliament in the appropriate form.