[1640/6/63]¹

Judicial proceeding: regarding the forfeiture of Patrick Ruthven, lord Ettrick

Act 45

Act and decreet regarding the forfeiture of Patrick [Ruthven], lord Ettrick and other commanders having charge under him within the castle of Edinburgh

The estates of parliament, presently convened by his majesty's special authority, having this day caused publicly read in their audience the act and decreet of forfeiture against Patrick, lord Ettrick and other commanders under him within the castle of Edinburgh for not rendering of the same castle to the said estates, according to the summons, warrant and charge given by them to him for that effect, the said estates, after the executor of the summons and witnesses had compeared judicially in the face of parliament, and upon their great oaths, declared the same was truly done as they were set down. The said estates, after voicing, did unanimously agree to the said decreet, and ordained the same to have the force and strength of an act and decreet of forfeiture of parliament, which John White, dempster, pronounced for doom but appointed [Robert Balfour], lord [Balfour of] Burleigh, president of the parliament, to keep the same unbooked for a certain space to see if obedience was given that the decreet might be deleted; which decreet was accordingly taken up by the Lord Burleigh.

Follows the tenor of the decreet of forfeiture:

In the parliament held at Edinburgh, 11 June 1640, regarding the summons, precept and charge of treason raised and executed at the instance of Robert [Balfour], lord [Balfour of] Burleigh, president of the high court of parliament presently convened by his majesty's special authority, against Patrick [Ruthven], lord Ettrick, keeper of the castle of Edinburgh, and the other commanders having charge under him within the said castle, making mention that the estates of this present parliament, considering that forasmuch as albeit by the law of nations the forts and strengths of a free kingdom are appointed for the defence thereof against enemies and strangers, and that by the laws, constitutions and customs of this kingdom the castles of Edinburgh and Dumbarton as the keys of this realm have ever been used and destined for the preservation thereof, and entrusted by the kings and estates of parliament only to the best affected natives of the same; and that by the laws both of nations and municipal, all foreign garrisons are prohibited to be put in any strengths or forts for hurting, destroying, suppressing and keeping under the natives of any free kingdom least these strengths destined for preservation of their lives and liberties should be perverted to their ruin and become instruments of slavery and subjection. Nevertheless, Patrick, lord Ettrick, keeper of the said castle of Edinburgh, and certain other persons having charge under him within the said castle, have received, admitted and maintained a garrison of strangers within the same and have used all manner of hostility against the city of Edinburgh and his majesty's good lieges going on the common highways adjacent thereto by continually shooting muskets and great ordinance out of the said castle, whereby they have killed diverse persons, both men, women and children, walking and conversing therein for their lawful affairs in sober and quiet manner, and ruined, demolished and spoiled diverse houses and tenements within the said city, as is commonly known, seen and understood by the estates of parliament. The which acts and deeds and every one of them the said estates have found and declared to be treasonable in themselves, and the said Patrick, lord Ettrick and other commanders, in doing thereof, to have deserved the pains of treason against this kingdom, and therefore ordained precepts to be directed by the president of the parliament to the lyon and his brethren, commanding them² in name of the said estates and of the said president, the said Patrick, lord Ettrick, keeper of the castle of Edinburgh, and other commanders foresaid, that immediately within 24 hours after they be charged to render and give up to the said Robert, lord Burleigh, in name of the estates, the foresaid castle and all that is within the same, to be disposed upon by the estates for the safety of the kingdom, or else to compear personally before the estates of parliament within the space above-written; with certification if they fail, the estates will proceed against them as traitors to the forfeiting of their lives, estates and lands. And regarding the charge given to the said Patrick, lord Ettrick, keeper of the castle of Edinburgh, and to the other commanders having charge under him within the same for rendering, giving over and delivering to the said president in name of the said estates of parliament as appointed by them the said castle of Edinburgh and all that is within the same, to be used by the estates as they think most fit and expedient for the good of his majesty and well and safety of this kingdom, within 24 hours next after the said charge or else to have compeared personally within the same space before the said estates and show a reasonable cause why the same should not be done, with certification that in case of their disobedience and delaying to obey the said charge within the space foresaid, that as they and every one of them had incurred and deserved the pains and punishment of treason, so the said estates would instantly proceed against them and every one of them as traitors and guilty of high treason against this state and kingdom, to the forfeiting of their lives, states and lands, only to be disposed upon by the advice and consent of the estates of parliament, and using of them otherwise as open and manifest traitors and enemies to this state and kingdom, as at more length is contained in the summons of treason and in the execution of the charge used thereupon against the said Patrick, lord Ettrick and other commanders having charge under him within the said castle. Which summons of treason, with the executions thereof, being publicly read in open and plain parliament, and the said Patrick, lord Ettrick and other commanders under him within the said castle being lawfully summoned and charged in manner and to the effect foresaid, were often times publicly called in open and plain parliament as said is, and compeared not, whereupon the estates, having taken to their consideration the grounds and reasons of the said summons of treason, with the said Patrick, lord Ettrick and other commanders under him, their disobedience and contempt of the foresaid charge used and executed against them as said is, and of the certification above-written contained therein, the said estates of parliament, convened by his majesty's authority, find that the reasons above-mentioned whereupon the summons is founded are relevant and sufficient grounds to infer declarator of treason and forfeiture against the contraveners and so find and declare that the said Patrick, lord Ettrick and other commanders having charge under him within the said castle and every one of them have incurred and deserved the pains and punishment of treason, and therefore find and declare them and every one of them to be traitors and guilty of high treason against the state and kingdom to the forfeiting of their lives, states and lands to be disposed upon by the king's majesty, by the advice and consent of the said estates of parliament, and otherwise to be used as open and manifest traitors and enemies to this state and kingdom as said is. Because the foresaid summons being found relevant by the said estates and warrant being given thereby to the lyon king at arms and his brethren heralds and pursuivants to pass to the walls of the said castle of Edinburgh or market cross thereof, having their full coats of arms openly displayed, and in name of the said estates to peremptorily command, warn and charge by sound of trumpet and public reading of the said summons the said Patrick, lord Ettrick and other commanders under him to render, give up and deliver the said castle with all that is within the same to the said Robert, lord Burleigh, in name of the said estates, within 24 hours next after the said charge or else to have compeared personally within the same space before the said estates and show a reasonable cause why the same should not be done, with certification before rehearsed; and according to the foresaid summons and warrant John Malcolm, Ross herald, and John Sawer, Carrick pursuivant, with their full coats of arms openly displayed, in name of the said estates, being approaching toward the said castle of Edinburgh upon 5 June instant, they were debarred from having access thereto by the said Patrick, lord Ettrick and other commanders under him within the same, whereupon they passed immediately thereafter upon the said day to the market cross of Edinburgh and there, having their full coats of arms displayed and in name of the said estates, they peremptorily commanded, warned and charged by sound of trumpet and public reading of the foresaid summons of treason the said Patrick, lord Ettrick, keeper of the foresaid castle of Edinburgh, and other commanders under him within the same to have rendered, given up and delivered the foresaid castle with all that is within the same or else to have compeared personally before the estates of parliament and show a reasonable cause in the contrary in manner, to the effect and with certification before rehearsed, as the said summons of treason and execution thereof bears; which execution was also intimated to David Scrymgeour, constable, in name of the said Lord Ettrick at the castle gate (because the said lord refused himself) and a copy thereof offered to him by Major Cunningham, as was verified and commonly known to the parliament. And the said Patrick, lord Ettrick and other commanders having charge under him within the said castle of Edinburgh, being so lawfully charged in manner as is before declared, and being this day often times called in open and plain parliament, they nor none of them did compear, neither to give obedience to the foresaid charge nor to show any reasonable cause wherefore they should not give obedience thereto, but failed therein as was clearly understood to the said estates of parliament. In respect whereof, and of the reasons and grounds whereupon the said summons is raised, which the estates find relevant as said is, and also find the same sufficiently instructed and proven, the said estates of parliament found that the said Patrick, lord Ettrick and other commanders having charge under him within the said castle of Edinburgh had incurred the pains and punishment of treason and declared them to be traitors in manner before rehearsed.