[1585/12/31]¹

Acts of the restitution of the noblemen and others received to the king's majesty's favour, and abolition of the force of processes of forfeiture and other matters concerning them

²Our sovereign lord, deeply considering the many troubles and calamities continuing within this realm since his majesty's coronation through the civil trouble beginning upon the variable disposition of his highness's subjects toward his service, and of the other many dissentions arising thereafter amongst the nobility of his realm, whereby the estate of the commonwealth has been wonderfully afflicted, his majesty, of his princely care and affection, pitying the troubled estate and being most desirous of the union and concord of all his subjects and to continue their hearty love and favour toward his majesty, and to give all his good subjects the better occasion to continue in their obedience in time coming and being fully minded, as he takes God to witness, to govern and rule his subjects and realm in justice and right, and rather by love than by dread, considering therewithal the most humble behaviour of his beloved subjects, John [Hamilton], lord Hamilton, Archibald [Douglas], earl of Angus, lord Douglas and Abernethy, Francis [Stewart], earl of Bothwell, lord Hailes and Crichton, great admiral of this realm, John [Erskine], earl of Mar, lord Erskine, John [Maxwell], earl of Morton, lord Maxwell, Alexander [Home], lord Home, Thomas [Lyon], master of Glamis, Lord Claud Hamilton, commendator of Paisley, William Douglas of Drumlanrig, William Kerr of Cessford, James Home of Cowdenknowes, knights, David [Erskine], commendator of Dryburgh, Adam [Erskine], commendator of Cambuskenneth, Master William Erskine, parson of Campsie, William Baillie of Lamington, James Hamilton of Haggs, his brother, and servants Alexander Hamilton of Innerwick, Robert Hamilton of Bathgate, Robert Hamilton of Silvertonhill, younger, James Hamilton of Stonehouse, John Hamilton of Orbiston, Robert Hamilton of Lickprivick, John Hamilton, younger, of Preston, Patrick Hamilton of Kincavel, James Weir of Blackwood, James Lockhart of Lee, Robert Hamilton of Dalserf, younger, Patrick Hamilton of Dalserf, Master John Hamilton of Barncleuch, Claud Hamilton of Brownhill, Robert Hamilton of Carse, Master Patrick Hamilton of Fairholm, Arthur Hamilton of Bothwellhaugh, James Hamilton of Scherall, John Hamilton of Woodhall, Robert Hamilton, younger, of Newhouse, James Baillie and Alexander Baillie, sons to Alexander Baillie of Littlegill, John Hamilton, parson of Crawfordjohn, James Hamilton of Tweedieside, Thomas Hamilton of Shotts, Thomas Hamilton of Priest Field, with his brother, Oliver Hamilton, burgess of Hamilton, John Fairlie of [...], Richard Johnston, James Hamilton, younger, of Parkhead, James Muirhead, younger, of Lauchope, Robert Baillie of Jerviston, Robert Baillie of Park, Archibald Hamilton of Letham, Walter MacAlister, George Douglas of Parkhead, James Douglas and George Douglas, his sons, John Carmichael of that Ilk, Robert Douglas, brother to William Douglas of Cavers, Walter Douglas in Little Sauchie, John Lyon of Cossins, James Lyon of Easter Ogil, John Ogilvy of Ballinshoe, Henry Ogilvy, his son, James Arbuthnott of Lyntusk, John Arbuthnott, his son, David Arbuthnott, Alexander Lyon and others, their friends, servants and dependants being in their company with them at their repairing to his grace at Stirling on 2 November 1585, their honest and comely demeanour continuously since his majesty has found that they have been and are his obedient lawful and trusty subjects; therefore his highness and three estates in parliament, for propagation of the Christian religion, extinction of all factions, sedition and strife and for the surety of all his lieges and especially of the persons above-specified, their friends, servants and dependants and others who shall have the benefit of this present act and establishing of an universal peace and concord within this realm, has resolved upon the remedies following: first, our sovereign lord and his three estates in parliament, for the good and surety of his lieges and weighty considerations moving him tending to the furtherance and establishing of peace and justice, the quietness of the realm and universal obedience to his authority, have declared, decreed and ordained and, by the tenor hereof, declare, decree and ordain that all and sundry processes and sentences of forfeiture deduced and given in parliaments, justice courts and particular diets, all hornings and penalties following thereupon or proceeding at our sovereign lord's instance for his particular interest, for whatsoever crimes, attempts, facts and deeds done or assisted being or that may be interpreted to be against his majesty since his coronation, and for whatsoever other crimes, causes, and offences specified and contained in the sentences of forfeiture led and processes of horning executed against whatsoever persons, men or women, excepting as shall be declared, at any time heretofore since his majesty's coronation, are, and shall be, void and of no value, strength, force nor effect in all time coming, excepting always the forfeitures led and standing in strength and force against the persons convicted for the cruel, horrible and treasonable murder of [Henry Stewart, lord Darnley], our sovereign lord's late dearest father, the processes of forfeiture and barratry led against James [Beaton], sometime archbishop of Glasgow, John [Leslie], sometime bishop of Ross and William [Chisholm], sometime bishop of Dunblane, with all the consequences and dependants thereof, which are in no way comprehended in this present act but are excepted expressly from that and from every part thereof; in like manner, all and sundry infeftments, charters, precepts, instruments of sasine, presentations, other rights, titles and dispositions whatsoever of lands, heritages, offices, rents, teinds and possessions made, granted and proceeding by and upon the said forfeitures, hornings and penalties to and in favour of whatsoever persons, mediately and immediately, with all decreets and sentences given and pronounced in whatsoever judgement, jurisdiction or court by the lords of his council and session, other judges and ministers of his laws consequent and depending upon the said forfeitures, hornings and penalties are and shall be in all time hereafter of no force, strength nor effect, and that without any special process of reduction or other declaration to follow thereupon; and it is further concluded that this present act of parliament is, and shall be, as viable in all respects to our said sovereign lord's lieges standing under the said dangers, their heirs, successors and posterity as if the said processes, sentences and dooms of forfeiture, hornings, penalties, the aforesaid infeftments, charters, sasines, presentations, other rights, titles and dispositions whatsoever, with the decreets and sentences consequently following thereupon, were specially and orderly retreated and reduced, all parties having interest being specially called thereto. Moreover, our said sovereign lord and his said three estates of parliament, by the tenor hereof, has rehabilitated, reintegrated and restored and, by the tenor hereof, rehabilitate, reintegrate and restore so many of the said persons as are living and the memory of them which are departed this life, their heirs, successors and posterity to their good fame and worldly honour and to use all lawful acts and deeds in judgement and outwith, and to all and sundry their lands, rents, heritages, tacks, steadings, offices, benefices, pensions and possessions whatsoever which they and every one of them had the time of the leading of the said processes and giving of the dooms of forfeiture against them. And also his highness and three estates aforesaid decree and declare that the heirs, successors and posterity, the bairns, lawful and natural, of all and whatsoever persons forfeited since his majesty's aforesaid coronation, excepting as is before excepted, are and shall be able to possess, enjoy and claim whatsoever lands, heritages, teinds, offices and possessions pertaining or that righteously may pertain to them, and all and sundry alienations, infeftments, feu ferms, tacks, rentals, assignations and dispositions whatsoever of lands, heritages, annualrents, steadings, rooms, possessions and goods made by any of the said persons forfeited to any others be as viable and sufficient as if they had not incurred the said sentence. Further, it shall be lawful to every one of the said persons forfeited, yet being alive, and to the heirs, successors, bairns and posterity of them which are departed, to succeed to their predecessors or to any others by whom they can pretend right and title of succession by brieves or otherwise according to the law, likewise and as freely as if the said sentences and dooms of forfeiture had never been given, and notwithstanding his highness's acts of parliament held at Edinburgh in November 1571 and in May 1584 against the posterity of certain special persons and surnames, to the which acts and ordinances of parliament in general and in special his majesty and estates aforesaid have made and make special and express derogation by this act, expressly bidding and commanding that all the aforesaid sentences of forfeiture (excepting as is before excepted), with the said ordinances made against the posterity, whose predecessors by this act are restored in general and in special, both concerning the persons and surnames, shall be erased out of his highness's register and acts of parliament to the effect that no memory remain thereof hereafter, but the same shall be buried and put in perpetual oblivion with all the consequences and dependancies thereof, likewise as if they had never been, and to be of no strength nor effect in all time coming. Likewise all and sundry persons yet alive, who were provided to benefices or pensions and we[...] [...]rit therefrom by sentences of forfeiture, barratry or for not giving confession o[...], or for not acknowledging of his majesty's authority according to the late act of [...] made thereupon at any time since his majesty's aforesaid coronation, shall be restored in their entirety to their said benefices and pensions, the said persons who for this last cause are deprived of their benefices either having already made or offering to make the confession of their faith and to acknowledge his highness's authority; and his highness and estates aforesaid retreat and reduce whatsoever provision made thereof to any persons by reason of the said sentences, and restore the persons first provided and debarred therefrom in their entirety to their said benefices and pensions and in the same estate and case wherein the said benefices and pensions were of before the said sentences, and as if the same had never been given, notwithstanding whatsoever feus, tacks, rentals and other dispositions made thereafter by them who were provided and obtained title through the said forfeitures or other decreets above-specified, and notwithstanding our said sovereign lord's confirmation granted thereupon or whatsoever sentences or decreets following thereupon which his majesty and estates declare, decree and ordain to be of no force, to the end that this restitution may take full effect, providing always that this present act be not extended to beneficed persons that are dead. And further, the persons who have obtained feus, tacks, rentals made to them by the persons who were provided to benefices by the forfeiture of others, as said is, shall have no action against the makers thereof for warranty of the same tacks, feus, rentals, nor yet for refunding of the money and grassum received by them thereof, nor yet shall the said feuars be restricted to pay any of their duties resting owed for their lands and teinds but according to their said feus, tacks and rentals to this crop last, 1585, and the mails of the Martinmas term last exclusively, and nevertheless for the said crop and term and in time coming they shall pay their duties in the quantity as they were accustomed before the said forfeitures and acquiring of their new titles. And also because diverse beneficed persons within these two years bygone are hurt in the rights of their benefices by decreets given contrary to them by his majesty and lords of his secret council and by the judge ordinary upon trial of the cause, his highness, therefore, and three estates in parliament, retreat all and sundry the said decreets and declare the same of no value, and ordain the persons who were dispossessed thereby to be fully repossessed thereto in manner aforesaid, without prejudice of any party's right to be discussed thereafter by the judge ordinary as is appropriate, the persons forfeited before as said is (excepting as is before excepted), so many as are alive and the heirs of them who are deceased and all others dispossessed of their lands and livings by the troubles, shall be restored to the same possession which they and their predecessors respectively had to their lands, heritages, castles, towers, fortalices, rooms, teinds, offices and possessions before the forfeitures led contrary to them or trouble moved to them in their livings, and the beneficed persons and pensioners shall be restored and repossessed to their benefices and pensions in the same manner as they were possessed before the said forfeitures and decreets by letters which shall be granted in all four forms by deliverance of the said lords of council and session for repossessing of them to their livings, and by letters of horning upon a simple charge within the space of ten days for deliverance of castles, towers and fortalices, and that notwithstanding whatsoever decreet or sentence intervening that might appear to impede the full effect of the said repossession. It is always understood and provided by this act that where a person was first forfeited and the other succeeding to his right was forfeited and upon the second forfeiture was dispossessed by the third or last person, the person spiritual or temporal first forfeited and dispossessed shall always have the prerogative of the said repossession and be preferred to all others after the mind and intention of this present act, whereby it is meant that the person first forfeited and dispossessed shall return in the same case wherein he was immediately before the forfeiture, which prerogative shall be extended to the heirs of them who were first dispossessed, albeit their predecessors be dead, without prejudice always of the right of any person to be tried and judged after the said repossession before the judge competent according to the law; and this to have place in their favour who were dispossessed by barratry for not acknowledging of his majesty's authority and giving confession of their faith, the mails, ferms, duties, profits, emoluments of lands, rooms, possessions, teinds, benefices and pensions, the escheated goods of penalties coming in his majesty's hands and already uplifted shall remain with the intromitters therewith, but the persons presently restored shall have power to call and pursue for the rest not yet uplifted of the whole years bygone and to the whole ferms of the crop and year of God 1585 and to the mains and increase of the said year, occupied and laboured by them who had right by the said forfeitures and escheats, with the cattle and plenishing being upon the ground, if they left the same plenished before; and if they find more plenishing than they left, that they shall make the same forthcoming and deliver it to the owners; and to the mails of the Martinmas term last, it shall be as lawful to them to call and pursue for all their moveable goods extant, the debts owing to them and not uplifted by the donators; and where the debtor has purchased the gift of the debt which he was owing to himself or to any others to his benefit, directly or indirectly, he shall nevertheless stand obliged for his debt to his creditors, reducing always the expenses and composition if any be disbursed to our sovereign lord's treasurer for the gift if any be paid for that; the fines, penalties and escheats adjudged in justice courts, and all other sums that may be asked for contravention of any bond or act made to his majesty for the obedience of his authority, either from the principals or their cautioners, which as yet rests unlifted and received, shall be and are by this act freely remitted and discharged; as also the acts, bonds and obligations whatsoever made for the assured keeping of the pacification accorded at Perth on 24 February 1582,³ ratified and approved in the parliament held at Edinburgh in the month of April next thereafter, and all other acts and obligations made for communicating, assisting and supplying with any of his majesty's subjects forfeited and at the horn, and all bonds, acts and obligations registered by the which the persons, principals, and their cautioners and sureties are acted, bound and obliged for entry of their persons in ward in any castle or prescribed place at the instance of our sovereign lord upon his proper interest only, or by the which they and their cautioners are obliged to depart and pass out of the realm with all decreets interposed thereto, if any be, with all penalties and sequels thereof are from the beginning declared to be of no value and in all time coming to be of no strength, force nor effect. Our sovereign lord, following his natural good inclination to quietness and peace, being now minded to settle his estate in perfect union and concord, and by removing of all occasions of further jealousy and dissidence between his highness, his nobility and people, to manifest himself in deed a careful father of his commonwealth, seeking by all loving means to win of his whole lieges an inward love and hearty disposition to his obedience and service, has decreed, declared, statute and ordained and, by the authority of this present parliament, decrees, declares, statutes and ordains that all and whatsoever deed, fact, enterprise, device and execution invented, done, assisted, executed and performed by any of his lieges and subjects of whatsoever estate, quality or degree they be of, in any assemblies, councils, treatises, conventions, conferences, private or public gatherings, convocation of his lieges in arms, raising of bands of men of war, intelligences and treatises with foreign princes or others in matters of estate, and whatsoever thing devised, attempted, done or executed in any common cause what his majesty's lieges by numbers were assembled together for reformation of things discontenting them in the administration and government of the realm, or for apprehension, searching and seeking of whatsoever persons or for acts to his highness's presence and all hurts, slaughters, mutilations, plunder, reives, oppressions, depredations, pillaging, both to burgh and land, damages and hurts whatsoever committed, done or assisted at the times of the said conventions, assemblies, enterprises and common causes following and depending thereupon, and all taking and besieging of our sovereign lord's houses, castles and fortalices, detaining of the same and intromitting with the goods being therein, taking of prisoners, breaking of wards and prisons and relieving of the prisoners being therein, intercommuning of rebels and persons forfeited, assisting, helping and supplying of them departing out of this realm without licence, all actions and causes of barratry, deforcement of officers and all other crimes, offences, treasons, transgressions of whatsoever quality they be, and for the which our sovereign lord, his heirs and successors, upon their particular and proper interest might or may move quarrel, or action perpetrated and committed, devised, consulted, assisted, approved and ratified by any of his said subjects of whatsoever quality and estate, as said is, since the time of his majesty's coronation, shall be and are, by the authority of this present parliament, buried and put in perpetual oblivion and never to be moved hereafter in judgement, nor otherwise by his majesty, his heirs and successors to and against any of his subjects at any time more than they had never been, but the same from this time forth is, and shall be, utterly extinct and expired with all action and suit, criminal, civil or pecuniary, that may follow thereupon, and all sequels, dependancies and consequences of the same. And further, by the advice of the said three estates in parliament, our sovereign lord wills and grants that this act shall be as good and effectual in the law to all and every one of his subjects as if the same had contained special mention by their names of all offences, causes, matters, suits, quarrels, executions, judgements, penalties and trespasses whatsoever done, committed or suffered in the said common causes and debts at any time since his majesty's aforesaid coronation, without any obstacle, challenge or impediment, abolishing the same from all remembrance to come simply and forever discharging the lords of his highness's council and session, his advocates present and being for the time, his justice clerks and all others, his officers and ministers of his laws, of all arresting, pursuing, troubling or accusing of any of his lieges and subjects in and for the premises and of their offices in that part. It is always provided that in the aforesaid oblivion and abolition is not, nor shall be, comprehended the horrible and treasonable murder of our sovereign lord's dearest father of good memory, nor any other voluntary murders or slaughters, fire-raising, burning of corns and houses, hoching⁴ of oxen, breaking of ploughs, oppressions, plunder, ejections, intrusions and all other actions and suits, criminal and civil, whatsoever preceding between person and person upon their particular motion and interest and not following and depending upon the said common causes; excepting also theft, incest, witchcraft, ravishing of women, striking, bringing in and putting out of false coin, manslaughter in houses, in the highway and passage or beside the same, not depending upon the common cause as said is. And also reserving to our sovereign lord, his treasurer, comptroller and collector general, their suits and actions for his highness's property, casualties and thirds of benefices resting to his highness and for whatsoever jewels, apparel, goods moveable and unmoveable pertaining to [Mary], his highness's dearest mother, or himself and all actions depending or that may be moved thereupon, penalties and fines coming upon the said common causes only excepted, which are by the said abolition, discharged; and also excepting all other crimes, actions, matters, causes and offences between private parties upon their own private causes, in no way proceeding and following upon the said common causes, which are not meant to be comprehended under the said general abolition and oblivion and wherein any of his subjects are damaged and offended, which it shall be lawful to the party to pursue as they might have done before, notwithstanding the premises. And because the said ordinances are made for the good and tranquillity of the realm and whole subjects for a universal concord and union to follow in time coming, it is statute and ordained, and our sovereign lord and his estates of parliament willing that the same be inviolably and irrevocably kept to all his subjects without any restriction or interpretation, for him and his successors, decrees and ordains that the same shall, at no time hereafter, be abrogated in all or derogated in any part thereof, neither by his majesty and successors, nor yet by the three estates in parliament, and that no manner of person nor persons of whatsoever quality or degree they be pretend to argue, impugn, travail, solicit or labour for the infringing, breaking, misinterpretation, abrogation or derogation thereof, directly or indirectly, under the pain of treason and lese-majesty to be executed with all rigour upon the breakers thereof. Likewise forasmuch as since the processes of forfeiture led against the said persons since they were denounced rebels and put to the horn, charged to ward and to depart of the realm, or for other necessary and probable causes were absent or out of the realm, had not sure access to compear for pursuit and defence of their actions, sundry processes are led and decreets given, not only against themselves but also against the minors who were in their tutelage and come to their great prejudice and hurt, therefore our sovereign lord and his three estates, for remedy thereof, retreat and rescind so much of the said processes as are led and deduced, and the whole decreets and sentences which are given within the time aforesaid and that necessity and probability of their absence shall be tried, either by way of suspension, exception or reply in the first instance, without any further processes or summons of reduction, specially the decreet of removing at the instance of John Wishart of Pittarrow and decreet of translation following thereupon against John, earl of Mar for removing from a part of the lands of the Brae of Mar; the decreet reductive at the instance of James Hamilton of Liberton against James [Hamilton], earl of Arran and his tutor, touching reduction of certain contracts and infeftments of the lands of Draffan; the decreet at the instance of Dame Margaret Maxwell, countess of Angus, lady Lamington, against Archibald, earl of Angus and his tenants for her terce of the earldom of Angus; the decreet at the instance of Sir Thomas Kerr of Ferniehirst, knight, against Archibald, earl of Angus for the teinds of Inverletham; the decreet obtained by David Balfour of Inchrye against Adam [Erskine], commendator of Cambuskenneth. Also because the lands coming in our said sovereign lord's hands by the said forfeitures were, before the leading thereof, burdened with diverse alienations of annualrents and of the property held of themselves, and the persons which were infeft by the forfeiture have nevertheless intromitted with the whole profit, having no respect to the aforesaid wadsets and alienations, through which the ground stands yet contracted; therefore it is ordained by his majesty and three estates of parliament that the said persons infeft by the said forfeitures shall pay the whole duties, charges and wadsets of the ground so far as is unpaid, and relieve the ground thereof so far as is resting owed of all years of their intromission with the said profits, and that execution pass hereupon against the said intromitters for the aforesaid payment and relief by letters in all the four forms, at the instances of the persons who were forfeited and their heirs, or at the instances of the said persons who have right by the said alienations and wadsets, always without prejudice of their recourse to the lands at their option and pleasure as they shall think expedient; providing always that they who have already given confession of their faiths give the same of new so often as they shall be required to do the same by his majesty or the kirk.