Judicial proceeding: process of forfeiture; protest

In the presence of the king's grace and lords and three estates of parliament compeared Master John Ballantyne, servant and secretary to Archibald [Douglas], earl of Angus, and gave in these reasons underwritten, and protested after the form and tenor the same, of which the tenor follows:

These are the reasons that we, Archibald, earl of Angus, George Douglas, his brother, and Archibald Douglas of Kilspindie allege for us why we should not be accused nor compelled to answer at this time to the pretended summons of treason made on us at our sovereign lord's instance.

In the first, we, being called upon our lives, lands and goods, being no men of law ourselves, we can get no procurator or advocate to speak for us and so we should not be accused nor compelled to answer without having an advocate given to us upon our expenses, which, by the law, every judge ought to do to any person who is called before him, and without which we ought not to answer; and protests, if we get no advocate and any process is led against us, for remedy of justice when and where it is appropriate.

Secondly, we understand that the time is now feriat2 and no court may be held, parliament nor any other, in feriat time, except with a dispensation had of the superior thereupon. And in this case there is no superior to the king's grace to dispense with him to hold his parliament in this feriat time, for he has no superior on the earth in temporality. And albeit it be said that his grace and three estates may dispense themselves, no man may dispense with himself for that must come from a superior and, therefore, by all laws, civil and canon, the king's grace may no more hold his parliament in this feriat time, nor may he hold it on Easter Day or Yule Day, which we trust no man will think he may do it, and therefore we protest as above.

Item, adhering to these our protestations and not passing therefrom, we propose these defences against the points of the summons made upon Archibald, earl of Angus, George Douglas and Archibald Douglas, not admitting the time or place, the relevance or exception of the summons, but protesting that we may oppose against the same, and also retraction and restitution if anything is done against us to our harm when and where it is appropriate.

In the first, we were summoned for treasonably disobeying the king's command, we being charged under the pain of treason that I, Archibald, earl of Angus, should pass to north of the water of Spey and enter my brother and Archibald, my uncle, in ward in the castle of Edinburgh, each one to release from surety the other, we say that, although the king's grace, by counsel of our enemies, was caused to charge us to such things that were dangerous to our lives and which we dare not do for doubt of our lives, the unfulfilment thereof is not treason, for if such a thing was treason, the king's highness might ever, when he would charge any lord or baron to do anything that he dare not do for danger of his life, and when he left it undone, forfeit him of life, land and goods, which is a step too far and a dangerous example for all the king's lieges.

Item, to the second point, where we are summoned for gathering and convocation making against the king's grace at his coming to Edinburgh before the [...] day of [...], we answer that we never gathered any man against his grace, but were ever to do his grace's true and faithful service and ever obeyed his will and pleasure, likewise at that time we, at his will, departed from the town of Edinburgh, wherewith we intended nothing against his grace but to do him service as we shall ever yet do, albeit we presume to defend our persons from our enemies with the help of our friends, which is lawful to all men and not treason.

The third point of treasonable assistance to [John Johnstone], laird of Johnstone in the depopulation of the country, we know nothing of the laird of Johnstone's doings in that matter, nor ever gave him counsel, help or assistance thereto. And also we understand the trouble that fell out between [Robert Maxwell], lord Maxwell and the Laird of Johnstone was a crime of treason but a particular action of neighbourly war, each one of them burnt and slew the other's lands, men and servants for their own particular actions, and this was no depopulation of the country, one party against another, to do such things; and if it was treason to the one of them, it was treason to the other; and, however, it was that we had neither art nor part, wit nor knowledge thereof except when the common voice of the country brought it to us; and also neither of them are yet convicted of treason, and until the principal is convicted there can no other be convicted of assistance.

Item, to the point of treasonable provisioning and furnishing of the house of Tantallon, Cockburnspath, Newark and Douglas against the king's grace, we deny any treason in that behalf. We never provisioned houses against the king's grace, but all our houses always were and are ready to do [for] his grace that lawfully is to any man that has a house where he and his household should dwell, to have provision therein to spend and munitions to keep both themselves and their houses from their enemies, and there is no law against that matter, nor touching house-holding, but an act of parliament only bearing that where any persons suspected to the king's grace are given shelter and held in any house, the persons who own the house should let the king's servants and officers come to search and inspect and see if any suspected persons were there or not, but their officers should not take the houses from those who own them by no way; and there is no reason to ask men's houses from them, or otherwise, nor is it no treason for men to keep still their own houses, they being opened to the king's grace, his servants and officers to the effect of searching who is in them.

And as to the point of holding of the king's person in our charge and rule contrary to the ordinance of the council, we did never such thing as is well known. The king's grace rode wherever he pleased with many or few these three years bygone, and often never one called Douglas in his company, which we refer to all the country. And further, if at any time we had misconducted ourselves in that part, we have a remission of his grace for all things before the [...] day of [...] 1520, excepting no manner of crime, and desire that the same remission be kept to us in all things before the date of it, and since the date of it we deny all crimes of treason, for we have committed none.

Item, regarding the debates that were made at Melrose and Linlithgow touching our bearing to the king's grace, at those times we have a declaration of parliament bearing that we committed no crimes at those times, but showed us true, faithful and good barons to his grace and deserving, therefore, perpetual thanks and reward; and further, our adversaries at that time were convicted of treason and so many as were put to accusation, and so we are innocent.

  1. NAS, PA2/8, I, f.62v-63v.
  2. That is, a time in which it is not lawful for courts to be held; the days or period of time of vacation.