[1593/4/20]¹

²The decreet of reduction of the process, sentence and doom of forfeiture led and prosecuted against the late John Lindsay of Wauchope

Regarding the summons raised at the instance of James Lindsay of Barcloy, great-grandson and heir by progress to the late John Lindsay of Wauchope, his great-grandfather, and so having good interest and action to reduce the pretended process, sentence and doom of forfeiture underwritten, which was prosecuted and given against the said late John, his great-grandfather, against Master David MacGill of Cranstoun-Riddel, advocate to our sovereign lord, David Seaton of Parbroath, his highness's comptroller, Sir Thomas Lyon of Auldbar, knight, treasurer, Sir Robert Melville of Murdocairnie, knight, treasurer depute, and all others having or pretending to have interest in the action and cause underwritten touching the exhibition and production with them before our said sovereign lord and estates of parliament of the pretended processes, sentence and doom of forfeiture led, given and pronounced against the said late John Lindsay of Wauchope by our said sovereign lord's most noble great-grandfather of worthy memory, James IV, by the grace of God, then king of this realm, and three estates of the same for the time in their parliament held and begun at Edinburgh 3 February the year of God 1505 [1506]; whereby it was warded, found, delivered and for doom by act of the said parliament pronounced that the said late John Lindsay had committed and done treason against our said sovereign lord's late most noble great-grandfather and his realm in the alleged treasonable accessory of the slaughter of the late Bartholomew Glendinning, sheriff in that part, executing letters of poinding at the instance of the late Margaret [...], mother in law to the said late John Lindsay, and for certain other pretended crimes of treason and lese-majesty; and therefore adjudging and by doom foresaid pronounced the said late John Lindsay of Wauchope to have forfeited to our sovereign lord's late dearest great-grandfather his life, his lands, goods, offices and all other his possessions whatsoever he had within this realm, ever more to remain with our said sovereign lord's late most noble great-grandfather, his heirs and successors, as in the said pretended sentence and doom of forfeiture at more length is contained; together with the pretended letters of summons allegedly executed against the said late John Lindsay of Wauchope, to have compeared personally before our said sovereign lord's late most noble great-grandfather or his justice in his parliament above-mentioned on 3 October then next to come, with continuation of days, to answer to our said sovereign lord's late most noble great-grandfather, or to his justice foresaid, upon the alleged treasonable crimes above-rehearsed, as at more length is contained in the said summons raised thereupon of the date at Linlithgow 20 June and of our said sovereign lord's grandfather's reign the 17th year, or of whatsoever other date or dates the same before-named sentence and doom of forfeiture or summons above-mentioned whereupon the same proceeded be, together with the executions and endorsements of the said pretended summons used and allegedly executed upon the said late John Lindsay to the effect above-written; and likewise all and sundry writs and depositions of witnesses and other probations, if any was used and produced in the said process, against the said late John for proving of the points of the said summons and pretended crimes foresaid therein contained whereupon the said pretended sentence and doom proceeded, to have been seen and considered by our said sovereign lord and the said estates of this realm in the parliament above-mentioned to be held as said is, and to hear and see the same pretended processes, sentence and doom of forfeiture above-specified retreated, rescinded, reduced, made void and annulled, decreed and declared by decreet of the said parliament to have been from the beginning and likewise to be in all time coming null and of no value, force, strength nor effect with all that has followed or may follow thereupon; and to hear and see the said James Lindsay now of Barcloy, great-grandson and heir to the said late John Lindsay, his great-grandfather, restored, decreed and declared by decreet of the said parliament to have been from the beginning and likewise to be in all times coming be restored and reintegrated for him, his heirs and successors in its entirety against the said pretended processes, sentence and doom of forfeiture, and their honour, loyalty of blood, fame, state and estimation whereby they may hold, enjoy and possess all lands, heritages, rents, goods, offices and possessions whatsoever pertaining or that may pertain to the said James Lindsay or his foresaids or which pertained of before to the said late John Lindsay of Wauchope or his predecessors likewise as freely, peaceably and in the same manner as if the said pretended process, sentence and doom of forfeiture had never been led, given nor pronounced.

Follows the tenor of the execution and endorsements of the said summons upon 17 March the year of God 1592 [1593]: I, Adam Lindsay, one of the sheriffs in that part within constitute, passed at command of these our sovereign lord's letters and lawfully summoned, warned and charged Master David MacGill of Cranstoun-Riddel, advocate to our sovereign lord, at his dwelling place in Edinburgh in the Cowgate, Sir Thomas Lyon of Auldbar, knight, treasurer to our said sovereign lord, at his dwelling place in Edinburgh in Gilbert MacQuhirrie's lodging, David Seaton of Parbroath, comptroller to our said sovereign lord, at his dwelling place in Edinburgh in the lodging above the Nether [Bow] on the south side of the high street thereof, and Sir Robert Melville of Murdocairnie, knight, treasurer depute to our said sovereign lord, at his dwelling place in Edinburgh in James Adamson's house, because I could not apprehend them personally; and after I had knocked six sundry knocks with the mair at the gates of their said dwelling houses respectively and could not get entry, I affixed and left a copy of these within written letters upon the gates of every one of their said dwelling houses respectively foresaid to compear before the estates of this realm in the parliament to be held day and place within contained in the hour of cause, with continuation of days, bringing with them the pretended processes and doom of forfeiture within rehearsed to answer at the instance of the complainer within named for the cause within mentioned, and made intimation as is within specified after the form and tenor of the said letters in all points; and this I did before these witnesses, John Baillie, John Arnott and William Lauder, with diverse others; and for the more verification hereof, my signet is affixed. Upon 26 March the year of God 1593, I, John Hutton, messenger, one of the sheriffs in that part within constituted, passed at command of these our sovereign lord's letters to the market cross of the burgh of Dumfries, which is the head burgh of the shire, and by open proclamation thereat and by reading of the letters within written lawfully summoned, warned and charged all and sundry persons having or pretending to have interest in the action and cause underwritten to compear before the estates of this realm in the parliament to be held day and place within contained in the hour of cause, with continuation of days, bringing with them the pretended processes and doom of forfeiture within rehearsed, and to answer at the instance of the complainer within named for the cause and to the effect within mentioned, and made intimation as is within rehearsed after the form and tenor of the said letters in all points; of the which letters I affixed and left a copy upon the said market cross, and this I did before these witnesses, Donald Richie in Traquair and John Edgar there; and for the more verification hereof, my signet is affixed. Upon 31 March the year of God 1593, I, Ninian Weir, messenger, one of the sheriffs in that part within constitute, passed at command of our sovereign lord's letters to the market cross of the burgh of Edinburgh, which is the head burgh of the shire, and there by open proclamation thereat and by reading of the said letters lawfully summoned, warned and charged all and sundry persons having and pretending to have interest in the action and cause within specified to compear before the estates of this realm in the parliament to be held day and place within contained in the hour of cause, with continuation of days, bringing with them the pretended process and doom of forfeiture within rehearsed, and to answer at the instance of the complainer within named for the cause and to the effect within mentioned; and made intimation, as is within rehearsed, after the form and tenor of the said letters in all points; of the which letters I affixed and left a copy upon the said market cross, and this I did before these witnesses, Robert Liddell and Richie Kirk, with diverse others; and for the more verification hereof, my signet is affixed, as at more length is contained in the said principal summons and executions thereof. Which executions and endorsements were presently verified in face of parliament by the officers, executors thereof, and witnesses inserted therein. The said James Lindsay now of Barcloy, being properly present with Master William Oliphant, his prolocutor, and the said Master David MacGill, advocate to our sovereign lord, David Seaton of Parbroath, comptroller, his highness's treasurer, and all others having or pretending to have interest in the said matter, being all lawfully summoned to this action, ofttimes called and not compeared, the foresaid party compearing, rights, reasons, allegations with the foresaid sentence and doom of forfeiture led and pronounced against the said late John Lindsay of Wauchope of the date above-written, with certain instruments of sasine, retours, other writs and probations produced for the part of the said James Lindsay now of Barcloy, for proving of his reason of reduction after-specified, heard, seen, understood and his highness and estates of parliament therewith being ripely advised, the king's majesty and estates of parliament retreat, rescind, reduce, makes void and annul the foresaid process, sentence and doom of forfeiture led, given and pronounced against the said late John Lindsay of Wauchope by our said sovereign lord's most noble great-grandfather King James IV and estates of parliament for the time held at Edinburgh 3 February the year of God 1505 [1506]; and decrees and declares the said process, sentence and doom of forfeiture to have been from the beginning and likewise to be in all time coming null and of no value, force, strength nor effect with all that has followed or may follow thereupon; and decrees and declares by decreet of this present parliament the said James Lindsay now of Barcloy, great-grandson and heir to the said late John Lindsay, his great-grandfather, to be restored and reintegrates him, his heirs and successors in its entirety against the said pretended process, sentence and doom of forfeiture, and presently restores them to their honour, loyalty of blood, fame, state and estimation, whereby they may hold, enjoy and possess all lands, heritages, rents, goods, offices and possessions whatsoever pertaining or that may pertain to the said James Lindsay and his foresaids, or which pertained of before to the said late John Lindsay of Wauchope or his predecessors, likewise as freely, peaceably and in the same manner as if the said pretended process, sentence and doom of forfeiture had never been led, given nor pronounced, because the said John Lindsay, sometime of Wauchope, was never lawfully summoned to have compeared in our said sovereign lord's most noble great-grandfather parliament held at the time above-specified to have answered upon the pretended crimes of treason above-written, neither personally nor at his dwelling place for the time, according to the special charge and command contained in the said summons and as was necessarily required both of the law and practice of this realm, but only was summoned at the market cross of the burgh of Dumfries without any affixing of a copy of the said pretended summons, as was necessarily requisite in all such kinds of citations. Neither is there any mention or report made in the endorsement of the said pretended summons nor yet was otherwise warded in the said parliament that there was any lawful cause or impediment why the executor of the same summons could not at that time have sure access to the personal presence of the said late John Lindsay or else to his dwelling place for the time, as was expressly commanded and directed in the command of the forenamed summons given to the same executor thereof; and so he put not the said summons to due execution upon the said late John according to the command and direction therein contained and according to the common law and daily practice of this realm inviolably observed in the execution of all such summons continually in all times bypast. Through which it appears in no way nor can be evident that the said late John Lindsay was lawfully summoned to the effect above-written, nor that the summons could come probably to his knowledge, without the which manner of lawful citation no sentence nor doom of forfeiture could have been lawfully or justly given against him in manner and upon the pretended crimes above-specified. And if he had been lawfully summoned to that effect through which the same might have come to his knowledge, then he would have compeared, stated a defence and objected, likewise the said James Lindsay, his great-grandson and heir by progress, now representing his person, has sufficient interest and place to proceed and use the defences underwritten against the said pretended summons, sentence and doom of forfeiture following thereupon, which would have been sufficient to have annulled the said pretended summons of treason and whole contents thereof and to have stopped any such sentence or doom to have followed thereupon if the same had been proposed in due time before the giving thereof. And consequently the same being given for null defence and non-comperance of the said late John Lindsay, are now competent to the said pursuer, and are sufficient reasons and causes to rescind, reduce and annul the said pretended summons, sentence and doom of forfeiture above-mentioned, namely: there was no crime of treason nor lese-majesty contained in the summons above-rehearsed that of the law and practice of this realm might justly infer the forfeiture and loss of the said late John Lindsay's life, lands, goods, offices and possessions, for as to the alleged slaughter of the late Bartholomew Glendinning, officer and sheriff in that part, and of the late Simon Glendinning, his brother, in the execution of their office of a sheriff in that part, albeit that crime by itself was weighty and deserved to have been punished by the death of the committer thereof and confiscation of his moveable goods, nevertheless it was not sufficient by itself to have induced a crime, penalty and doom of treason or lese-majesty, nor yet by the common law, civil or municipal laws the slaughter of an officer, sheriff in that part, in the execution of his office might nor could have inferred forfeiture of lands and heritage; neither could the convocation of our said sovereign lord's most noble grandfather's lieges to that effect be esteemed or adjudged a crime of treason or lese-majesty. And as to the other pretended crimes specified in the said summons and pretended doom of forfeiture, such as the alleged making of leagues and bonds with the lieges and subjects of this realm against our said sovereign lord's late most noble great-grandfather and his realm for the time, and allegedly committing upon his true lieges depredations, robberies, spuilzies, harrying and raising of fire in treasonable manner, and the alleged invading of this realm by way of arms and battle, the most part of the said crimes, albeit they had been relevantly and specially libelled, as they are not yet of their own nature, they are not treason, and none of them was relevantly and specially qualified, neither designing with what persons in particular, at what time or times, in what place, against whom in special and for what particular and special cause the said pretended leagues and bonds were allegedly made, nor against what persons in special, at what time or times and in what place or places the said pretended depredations, robberies, spuilzies and fire-raising were allegedly done committed by the said late John Lindsay, nor yet with whom, how and in what place or places the said pretended invasion was likewise done or committed by the said late John. Without specification and qualification of the which necessary circumstances in particular, no summons nor indictment of treason nor no other criminal accusations could stand nor be sufficient, but was altogether general and inept. And albeit all the said pretended crimes of treason and lese-majesty had been relevantly and specially qualified, as is above-designed, nevertheless before any lawful sentence or doom of forfeiture might or could justly have been given thereupon, and before the said late John Lindsay ought or could have been through this justly condemned of treason or lese-majesty before everything, the execution and endorsements of the said pretended summons and indictment therein contained according to the common law and practice of this realm all times observed in such cases ought and should have been, as was not, sufficiently verified and proven by the officer and sheriff in that part there immediately, and by the persons whom he took witness at the time of the alleged citations and summoning of the said late John Lindsay, and the said sheriff and his witnesses ought to have been solemnly sworn that he executed the said pretended summons the days and in manner respectively contained in the pretended endorsements thereof; and that the said witnesses stood beside, heard and saw the same executed and publicly proclaimed according to the said endorsements and were taken witnesses, which was not done. And likewise the said pretended summons and execution, with the committing of the alleged crimes above-mentioned contained therein, ought and should have been sufficiently verified and proven against him either by witness, writs or else some other lawful mark of probation and trial, which was in no way done in the said pretended process, whereupon the said pretended process and doom of forfeiture proceeded before the giving or pronouncing thereof. But true it is there was no witness produced, sworn nor examined nor no other lawful kind of probation or sufficient trial used nor prosecuted against the said late John Lindsay upon the said pretended summons, indictment and crimes above-expressed for proving thereof that might justly have induced the said sentence and doom of forfeiture to have followed and been pronounced against him. And consequently, the same was wrongfully, rashly and evilly given and pronounced against the order and form of the laws and practice of the realm in all times bygone observed in such cases, and therefore the said pretended sentence and doom of forfeiture ought and should be reduced, retreated, rescinded, made void and annulled and decreed and declared by decreet of our said sovereign lord and his highness's parliament to have been from the beginning and likewise to be in all time coming null and of no value, force nor effect with all that has followed or may follow thereupon; and the said James Lindsay now of Barcloy, great-grandson and heir by progress to his said late great-grandfather, for him, his heirs and successors and assignees, ought and should be restored by decreet foresaid in its entirety against the said pretended sentence and doom to their honour, loyalty of blood, fame, state and estimation whereby they may hold and possess all and sundry their lands, rents, heritage, goods, gear and offices pertaining or that may lawfully pertain to him or them or which pertained of before to the said late John Lindsay of Wauchope, his great-grandfather, likewise in all respects as if the said pretended sentence and doom of forfeiture had never been given. Which reason of reduction being found relevant by the king's majesty and estates of this present parliament, the same was referred to the said pursuer's probation, who presently verified the same reason by production of the foresaid process, sentence and doom of forfeiture, certain sasines, other writs and probation sufficiently likewise as was clearly understood to the said estates of parliament, and therefore they gave their decreet in manner before-specified, and ordain letters to be direct to make publication at all places needful of this present decreet of parliament in the appropriate form.