[1604/4/24]¹

²The summons of treason of the late Walter Muir of Cloncaird passed from simply by our sovereign lord's advocate

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 Coiff³ 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,⁴ 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.