[Act taking order with rebels and broken men]

Act regarding the taking order with rebels and broken men, remitted to the council2

Our sovereign lord and estates of parliament, considering the great and heavy prejudice sustained by a great number of his majesty's subjects who having obtained decreets and sentences before the judges competent, either in civil, criminal or other lawful judicatories, and having used all execution thereupon competent of the law by horning, caption and letters of treason for delivery of their houses and notwithstanding thereof the persons against whom the same decreets and executions are used stands and abides out contumaciously and rebelliously, to the great contempt of his majesty's royal authority and evil example to others to commit the like, for remedy whereof his majesty, with consent of the said estates of parliament, ratifies and approves all acts and laws made against fraudulent dispositions in prejudice of lawful creditors, and declares that the not possession of debtors or payment making to them or to their benefit of their goods, ferms or other duties is altogether fraudulent, and that their lawful creditors have just right thereto, notwithstanding of payment made to them or other interposed persons to their benefit and may recall and pursue for the same. And finds and declares that where letters of treason are executed at the instance of the creditor against his debtor in a civil cause for non-payment of money or for not observing of such deeds as he is tied to by bond, decreet or otherwise, that then and in that case the creditor, his heirs and assignees shall have right to the double of the whole sums principal, penalties and annualrents contained in his decreets where the sums are liquidated, and to the double of the value of the heads and obligations whereupon decreet is given where the same are not liquidated, and also to the annualrents of the said liquidated sums and of the value of other heads and obligations of all years and terms after the execution of the said letters of treason and disobedience thereof and yearly thereafter until the obtainers of the said decreets be fully satisfied and their decreets with the double thereof fulfilled to them as said is. It is always provided that the said double is and shall be only in those cases where the principal sums or worth of other deeds contained in the said sentences do not exceed the sum of 5,000 merks of money, but if the same exceed, in that case the said sum of 5,000 merks of money or worth foresaid being doubled it shall be in the power of the lords of secret council or session (before whom the matter shall be drawn in question) to modify such sum or sums by and above the said sum of 5,000 merks and worth foresaid as they shall think fit to be paid or performed to the party at whose instance the said decreets are obtained, according to the proportion of the sums or worth foresaid in so far as the same exceeds the said sum of 5,000 merks and worth thereof proportionally and by rate, with this declaration: that every 5,000 merks or worth thereof shall be doubled and the modification to be for and in respect of the extent so far as it exceeds 5,000 merks or worth thereof. And ordains the lords of session to direct letters of horning, poinding, comprising and all other execution necessary for payment or performance of the said double and annualrents thereof where the same exceeds not 5,000 merks as said is and of such other sums as shall be modified in manner foresaid, proportionally where the same exceeds 5,000 merks or the worth of 5,000 merks, and that in favour of the obtainers of the said decreets, their heirs and assignees. And for the greater terror to the said persons who disobey the letters and charges of treason, whether in civil or criminal causes or in matters of riot pursued before the lords of secret council, it is declared that the party against whom letters of treason shall be directed and disobeyed by him shall be accounted as denounced rebel for a cause which of the nature is criminal; and if he shall happen to be slain or mutilated, that the said horning being objected by way of defence shall liberate the party accused. And also it is declared that the sheriffs of the shires within the which the parties so rebellious dwell shall take the said rebels' houses and keep the same and intromit with their rents and duties and make account and payment to their creditors thereof, deducting off the first and readiest of the said debtors' goods, rents and duties the ordinary charges and expenses that shall happen to be bestowed in the service in taking and keeping of the said houses and uplifting of the said rents. And if the sheriffs be not able to take the said rebels' houses and collect their rents and take their persons, then to require the barons, gentlemen and inhabitants of the said sheriffdom to concur with them to take the said rebels and their houses and to present them to the lords of secret council or put them in the next and surest jail until the council be advertised. And if the inhabitants of the sheriffdom being required refuse, they shall be punished thereof by the lords of secret council and underlie the pains contained in the acts of parliament. And if the sheriff of the sheriffdom with the assistance of the inhabitants be not able to seize upon the said rebels and their houses, it is declared that the lords of secret council upon the supplication of the parties interested shall give command to the next and adjacent sheriffdoms and inhabitants thereof to assist them in the execution of the premises. And also that if cannon or ammunition be requisite for breaching and taking in of the said houses, that the lords of secret council shall upon petition foresaid give command or warrant to the keepers of his majesty's castles to furnish such ammunition as the lords of secret council shall think fit. As also statutes and ordains that if by violence the said debtors shall escape from the said sheriffs and others foresaid or shall resist his highness's officers in execution of their office, then and in that case they shall be liable to simple forfeiture of life, lands and goods, and that their associates, partakers and assisters shall be subject to the like punishment and that their non-compearance before the ordinary judge shall be no stop to the said process. And this present act to be extended as well against all those that have disobeyed and contemned the letters and process of treason foresaid since the beginning of his majesty's reign as in all time coming.

16 November 1641

This being moved in audience of his majesty and estates of parliament, who remit the consideration hereof and to take course herein to the secret council.

[John Elphinstone, lord] Balmerino, in presence of the lords of parliament

At Edinburgh, 8 March 1642

The lords of privy council having taken the act within written to their consideration in respect of the reference therein contained, appoint [David Carnegie], earl of Southesk and [Sir Thomas Hope of Craighall], lord advocate, to consider of the within written, and what they think fit either to add or change therein to report their opinion relating thereto to the council with the first convenience.

[John Campbell, lord] Loudoun [...], in presence of the lords3

  1. NAS, PA6/5, 'November 16 1641'.
  2. This clause is written on the rear of the document.
  3. This clause is written on the rear of the document.