[A1651/3/13]¹

[Summons and charge against Colonel Strachan and others]

[Sir Thomas Nicolson of Carnock], king's advocate, against Colonel Strachan and others²

Charles, by the grace of God, king of Great Britain, France and Ireland, defender of the faith, to our beloved [...], messengers, our sheriffs in that part conjointly and severally, especially constituted greeting. Our will is and we charge you that you peremptorily summon, warn and charge Colonel Archibald Strachan, Walter Dundas, younger, of that ilk, Major Andrew Abernethy, John Swinton, younger, of that ilk, William Dundas, brother to [George Dundas], laird of Duddingston, Lieutenant William Govan, Major William Johnston, lately in Colonel Arnott's regiment, and John Home, servant to the said Walter Dundas, younger, of that ilk, by open proclamation at the market cross of our burgh of Perth and at the cross, pier and shore of our burgh of Burntisland in manner following, namely: so many of them as shall happen to be within this our realm at the time of their citation upon 40 days' warning, and so many of them as shall happen to be outwith thereof upon 60 days' warning (which manner of citation we and our committee of estates have declared and by this act declare to be as valid and sufficient as if the said defenders were summoned personally or at their dwelling places and by open proclamation at the market crosses of the head burghs of the jurisdictions within which they dwell; or by open proclamation at the said market cross of our burgh of Edinburgh, pier and shore of Leith in respect there is not safe access to them or their dwelling places or to the said market cross of Edinburgh, pier and shore of Leith being presently under the public enemy's power) to compear personally before our estates of parliament, or their committee of estates, or either of them, who shall be sitting for the time at Perth, or where it shall happen them to be for the time on 24 March next to come, with continuation of days, to answer at the instance of our trusty and familiar councillor Sir Thomas Nicolson, our advocate, for our interest in the action underwritten.

That is to say the said defenders to hear and see it found, declared, verified and proven in presence of our said estates of parliament, or their committee of estates aforesaid, or either of them who shall happen to be sitting for the time, that they have committed the crimes of treason and other crimes, deeds and malversations underwritten in manner and at the times after-specified, and to hear and see it found and declared that the said defenders have incurred the pain and punishment of high treason, and to hear and see the sentence and doom of forfeiture pronounced against them for the same: that is forfeiture of honour, life, lands, estate and goods, or otherwise to hear and see themselves ordained to be punished by death, or otherwise censured in their persons, lands, goods, means, estate, name and fame by fining, confining or otherwise as our said estates of parliament or their committee of estates aforesaid shall think fit. With certification to the said defenders if they compear not personally at the said day and place, our said estates of parliament or their committee of estates aforesaid will proceed to take trial and cognition of the crimes of treason and other crimes, deeds and malversations after-expressed and to the pronouncing of the sentence and doom of forfeiture against them for the same: that is forfeiture of honour, life, lands, estate and goods, or otherwise to the punishing of them by death, or otherwise to the censuring of them in their persons, lands, goods, means, estate, name and fame by fining, confining or otherwise as our said estates of parliament or their committee of estates aforesaid shall think fit, for the reasons and causes following: in the first because by the common law, laws and acts of parliament and by all justice, conscience, equity and reason, all that rise in arms and concur with the enemies of this kingdom for subduing their native country, all who fortify and assist the enemies and adversaries of this kingdom, all who keep correspondence and intelligence with the public enemies of this kingdom, and all who being entrusted with charge in the army and forces of this kingdom desert their charge and go in to the common enemy and frequent and resort in these places that are under the enemy's power, especially those that have seemed to join with us and our good subjects in the covenant and in the league and covenant, and all who are guilty of the said crimes, misdeeds and malversations, or any of them, are guilty of treason and incur the pain and punishment of treason and the pain and punishment of forfeiture of life, lands and goods, or otherwise they are censurable and punishable in their persons, lands, goods, means and estate, name and fame by fining, confining or otherwise as we and the said estates of parliament or their committee shall think expedient; all who being entrusted with the keeping of the castles of Edinburgh, Stirling or Dumbarton (which by the laws of this kingdom are appointed to be kept for defence of the kingdom) and renders any of the said castles without necessity to the common enemy of the kingdom, likewise, by the 18th act of the second parliament of our late dearest father of eternal memory made in 1640, all those who are entrusted with any power, charge or office within our castles of Edinburgh, Stirling or Dumbarton, or any of them, and does not employ their said power, charge and office as far as in them lies for our honour and safety and for the peace, safety, good and prosperity of this our kingdom, and to the preservation and advancement of the true reformed religion therein presently established and professed, incurs the pain of treason. And true it is that the said Walter Dundas, younger, of that ilk, having been entrusted by the committee of estates of parliament of this our kingdom with the keeping of our said castle of Edinburgh, the chief strength and fort of this our kingdom, and the said Major Andrew Abernethy, being also entrusted by the said committee of estates with the keeping of the said castle, as next in charge and office under the said Walter Dundas, and they being bound in duty to have employed all the power, charge and service committed to them within the said castle for our honour and safety and for the peace, safety, good and prosperity of this our kingdom, and to the preservation and advancement of the true reformed religion therein presently established and professed, and albeit our said castle of Edinburgh was sufficiently provided with provision of victual and ammunition to have held out against the common enemy, yet the said Walter Dundas, governor aforesaid, and the said Major Andrew Abernethy not only did not employ the power entrusted to them in our said castle for the end and use aforesaid, but on the contrary during the time of their keeping and holding our said castle and until the time that they traitorously and perfidiously rendered the same to the common enemy now presently within this kingdom (which was in in the month of December 1650), the whole tract of their carriage has been corresponding with the said public enemy, desisting to go actively about to use the power entrusted to them against the said enemy, until in end they did perfidiously and traitorously against the trust committed to them render the said castle in the said month of December to the common enemy, in so far as the said Walter Dundas and Major Andrew Abernethy did not give orders to the gunners of the said castle to shoot at the enemy's army marching from the west upon 16 October last when the said enemy was marching towards Leith by the north side of the castle of Edinburgh, but on the contrary the said Walter Dundas and Major Abernethy did several times forbid Thomas Binning, gunner, to shoot any without his express command. Likewise the said Major Abernethy, in the presence and hearing of the said Walter Dundas one day at the parade, in the presence and hearing of the said Walter Dundas, did forbid that Thomas Binning should shoot any at any time thereafter without express command from the governor's own mouth. Likewise that night that the enemy brought up their cannon to Robert Davieson's house, the said Thomas Binning, gunner, being laying some guns to shoot at them, and he having sent to the said Walter Dundas for orders to shoot, the said Walter came himself to the said Thomas Binning and discharged him from shooting until he would give orders, telling him that there was too much shot already and wished the blood to be on his own head. Likewise when John Home, servant to the said Walter Dundas, was challenged for giving intelligence to the enemy, and after he had confessed the same and acknowledged a letter of intelligence cast over the castle wall to be his own handwriting, and after the ministers that were in the said castle for the time had desired that martial law should have been executed upon him, yet the same was not done. Likewise upon the [...] day of December last in a public conference amongst the officers and ministers in the castle, the said Walter Dundas and Major Abernethy declared that they would not act any more against the enemy and would not own the malignant interest. By all which particulars, their corresponding daily with the enemy and their desisting to act against the enemy is clear, in which course they continued until about 24 December last, there being sufficient provision of victual and ammunition within the said castle, they delivered over the same to the enemy, notwithstanding that the ministers who were in the castle for the time did frequently dissuade them from this, and at last, not prevailing, did give in a protestation in writing against the same. In doing whereof, the said Walter Dundas and Major Andrew Abernethy have committed treason against us and the estates of this our kingdom, and have incurred the pain and punishment thereof: namely, forfeiture of life, lands and goods. Likewise the said John Home, being within our said castle of Edinburgh before the same was delivered up to the said enemy, and having received permission to go out to the town of Edinburgh with the said Walter Dundas, his children, he went of purpose to meet with Mr Downing, one of the enemy's army, and there, after discourse with him, the said John Home undertook to give him intelligence and to certify him what was done in the castle of Edinburgh, and that he made appointment with Mr Downing to cast his letters of intelligence over the wall to the mouth of the enemy's minds. Likewise, in prosecution of his keeping correspondence and giving intelligence to the enemy, as he had promised, he did write three letters of intelligence to the said Mr Downing and cast them over the wall, whereby he gave notice to the enemy what ammunition was spent and what was unspent within the castle, and desired the said Mr Downing to give a summons to the said castle, affirming that the said John Home was confident that business would go well with the said enemy within the castle. Likewise the said John Home gave intelligence to the said Mr Downing and told him of the number of the soldiers within the castle, and that the powder lay in vaults, and in what vaults and houses the said powder lay, and gave certain other particular intelligence of the condition of the said castle, as is particularly contained in the said John Home's deposition and confession under his own hand, dated 13 December last, taken in presence of Major Abernethy, Captain Kerr, Captain Henderson, Thomas Kniblo, George Munro, Thomas Binning and the whole ministers within the castle for the time, in which confession the said John Home has acknowledged a letter bearing the intelligence above-written found cast over the castle wall to the enemy to be his own handwriting, written by him upon 6 December, and that he cast it over the wall at about 10 o'clock at night. By which keeping of correspondence and giving of intelligence to the enemy in manner aforesaid, the said John Home has incurred the pain and punishment of treason: that is forfeiture of life, lands and goods or otherwise is censurable and punishable in his person, lands, goods, means and estate, name and fame by fining, confining or otherwise as we and the said estates of parliament or their committee shall think expedient. Likewise the said Colonel Archibald Strachan, having been employed as a colonel in the forces of this kingdom raised for defence of the same against the said common enemy, and the said John Swinton, younger, of that ilk, having been employed as lieutenant colonel and having had the charge of a troop of horse, and the said Major William Johnston and Lieutenant William Govan, having had charge likewise in our said army, they and every one of them did in the months of September, October, November, December last and January instant, or one or other of the said months, desert their said charge respectively and went in to the said common enemy of this our kingdom, who has invaded and does now oppress the same, and has had their frequent residence and has resorted with the said public enemy at various and several times since then in our towns of Edinburgh, Canongate and Leith, or one or other of them, the said John Swinton, younger, of that ilk, Colonel Strachan and Major Johnston carrying their swords about them, and so have declared themselves to be of the said enemy's party. Likewise the said William Dundas in the said months of September, October, November, December and January respectively, or one or other of the said months, did go in to the said enemy and kept frequent company with them, and has had his frequent residence and has resorted with the said common enemy at various and several times in our said towns of Edinburgh, Canongate and Leith, or one or other of them, and so has declared himself to be of the said enemy's party as said is. In doing whereof, they have committed the crimes of treason and the pain and punishment of treason: namely, forfeiture of life, lands, estate and goods ought to be inflicted upon them.

And therefore the said defenders have committed the crimes of treason and other crimes, deeds and malversations above-specified, and through this have incurred the pain and punishment of high treason, and they ought and should be punished with the sentence and doom of forfeiture for the same: that is forfeiture of honour, life, lands, estate and goods, or otherwise they ought and should be punished by death, or otherwise censured in their persons, lands, goods, means, estate, name and fame by fining, confining or otherwise as we and our said estates of parliament or their committee of estates shall think fit for the reasons and causes aforesaid and others etc., or else to allege a reasonable cause why the same should not be done according to justice, and to be called summarily against, so many of the said defenders as shall happen to be within this our realm the time of their citation upon 40 days' warning, and against so many of them as shall happen to be outwith thereof upon 60 days' warning, without further diet, table or continuation of other summons because the said action is for crimes of treason and other crimes, deeds and malversations done and committed by them against us, our estates of parliament and the standing laws and public good and peace of this our kingdom, and therefore ought to have summary process, according to the daily practice observed in similar cases, and a deliverance granted by our committee of estates relating thereto as you will answer to us thereupon. The which to do we commit to you conjointly and severally our full power by this our letters, delivering them by you duly executed and endorsed again to the bearer. Given under our signet at Perth on 30 January [and of our reign the] second year 1651.

From the deliberation of the lords of the commission of parliament.

5 February 1651

John Rowan, written by John Tweedy, younger, my servant

Perth, 31 March 1651

The king's majesty and estates of parliament do remit the summons above-written and all other summons directed against the defenders above-mentioned in the state in which they are now to the committee of estates, with power to them to discuss the relevancy and probation thereof and to pronounce sentence and decide therein.

Mr David Hay