[1578/7/34]¹

Procedure: commission

A commission granted to certain lords to decide in a cause between the Gordons and the Forbeses

Concerning our sovereign lord's letters purchased at the instance of William [Forbes], lord Forbes, John [Forbes], master of Forbes, William Forbes of Fodderbus, John Forbes of Fiddich, Master Duncan Forbes of Monymusk, John Forbes of Abircatrie and the remainder, their kin, friends and dependants, and especially the old, kindly possessors of the lands and barony of Craig and Monymusk, against George [Gordon], earl of Huntly, Adam Gordon of Auchindoun, Patrick Gordon in Moyness, his curators, for their interest, and all others having or pretending to have interest in the matter underwritten, making mention that where the said William, lord Forbes, his colleagues and others aforesaid and their predecessors have been possessors and occupiers of all and whole the said lands and barony by themselves and their tenants of there, only imputing and outputting at their pleasure as principal, and old, kindly possessors and tenants thereof under the archbishops of St Andrews, to whom the same pertains, as a part of their patrimony in all time bygone, past memory of man, preceding the pretended infeftment of feu ferm thereof made to the late George [Gordon], earl of Huntly, grandfather to George, now earl of Huntly, in manner following, until that the late David [Beaton], cardinal archbishop of St Andrews for the time, having contracted a new familiarity with George, sometime earl of Huntly for some great affairs which they had thereto by treating amongst themselves, most unkindly set the said complainers' native rooms over their heads to the said George, earl of Huntly, his heirs and assignees, the said cardinal and archbishop always looking that thereby the said complainers should not have been removed or had their rents raised by their old duties paid by him and his predecessors, but only to have shown his favour and love to the said late earl, who, also upon consideration that the said complainers were so old, kindly possessors and enjoyers of the said lands and barony under the said archbishops and many of their friends born thereon, so that the same being kirklands he could pretend to have no further privilege nor duty of them but as the said archbishops got of before, according to the old and loveable custom concerning kirklands, so in that respect the said late earl was for worthy considerations moved to infeft certain of the principals of the said complainers heritably and set tacks to others, each one for their kindly rooms, whereby they enjoyed possession of and used the same lands by themselves and their tenants in their names continually since, without molestation or trouble, there never being question of removing intended against them or any of them before, until of late occasion and quarrel borne amongst them for their constant profession and true abiding of the righteous cause of defending of our sovereign lord's authority and royal person in time past, when the said enemies and declared traitors sought to have bereft and enjoyed the supreme place of his grace's government, it has pleased George, now earl of Huntly, and others of his surname and friends in whom his late father transferred his right of diverse of the said lands, to make warnings to the said complainers to remove from the said old and kindly possessions, whereupon they have pursued actions against them before the lords of session, and intend to have them removed thereby, thinking under colour of law to put them therefrom, albeit the intention of the said George, earl of Huntly and his said friends and kinsmen, pursuers of the said removings, be altogether to displace the said complainers of their said native rooms for their true and thankful service done to [Mary], our sovereign and his dearest mother, in time of his authority; and namely at such special time as the earls of Huntly plainly rebelled, as in the month of October or thereabouts in 1562, when as the said late George, earl of Huntly died with displayed banner against our sovereign lord's dearest mother, and in the late rebellion begun by George, earl of Huntly, father to the said George, earl of Huntly, who now is against our said sovereign lord and his authority royal; for defence and maintenance whereof, a great number of the said complainers' name and friendship spent their lives in the battles at Tillyangus and Craibstone, some of their houses, wives and bairns being therein were utterly wrecked and burnt, the other towers, castles and fortalices pertaining to them most barbarously ruined, their moveable goods, furnishings and plenishing and chattel stolen and taken away, their orchards, woods, policies, yards and planting cut and destroyed, the mails, ferms and duties of their lands intromitted with and dispersed; and that for the most part in manifest contempt of our sovereign lord's authority after the conclusion of the abstinence taken at Leith on 31 July 1572, against the said abstinence, their own consent and oath and against the law of all nations. And albeit at last when the forces of the said earl and rest of his adherence failed in such sort as they could not longer abide the rigour of our said sovereign lord's authority then arising, they accepted the conditions of pacification then concluded at Perth in February 1572 [1573], and ratified and approved in parliament held at Edinburgh in April 1573, to the conditions of the which pacification our said sovereign lord nor his estates would never condescend to it, upon provision that the whole injuries and attempts committed of before and especially since the conclusion of the first abstinence to the time thereof should be repaired to the simple value; and, to that effect, judges and places of sitting were appointed and time of the space of a year and a day likewise appointed to the pursuit and finishing of the process thereupon. And albeit the said complainers did exact diligence, as is well known, that they behoved to raise writs in the said matters under the pain of horning, with our sovereign lord's letters to denounce them rebels, yet the most part of them, being persons of estate, caused the said letters to be suspended; and so that the said complainers having consumed without profit the time appointed for their judgement, they thereafter gave plain answer that after the end of the year and day they had no jurisdiction and so were the said complainers' travails and expenses lost and their expedience of administration of justice frustrated, so that that manner of dealing made, as appears, plain declaration that the promise of redress of their said damage was proposed to persuade them to their contentment at this present time, seeing there has followed so little good effect thereupon to their favour. And nonetheless, the said earl of Huntly, his father and his friends, having all their suits against the said complainers, received free expedition before the lords of session, judges arbitrators, that all infeftments of lands assigned to them by reason of their forfeiture led against them, and especially of the said lands of Keig and Monymusk of long time withdrawn, notwithstanding that the said complainers therefore spent great sums of money and therewith all are left unrepaired of their said damages, looking for no other recompense but by this, their late suit, to be removed from their said lands and possessions, which are their native and kindly rooms. And concerning the charge given to the said earl and his said tutors and curators and all others having interest to have compeared before our sovereign lord and three estates of parliament, to have heard and seen impartial judges appointed to sit and decide in the actions written also intended by the said pursuers to the final end and decision thereof, or else to have alleged a reasonable cause why the same should not have been done, as at more length is contained in the said letters, the said John, master of Forbes, being personally present, and the remaining persons above-mentioned compearing by Masters John Sharp and Clement Little, their procurators, and the said George, earl of Huntly and the said Adam Gordon of Auchindoun and Patrick Gordon, his curators, compearing by Mr Thomas Craig, their procurator, who sent cautioners, namely, Alexander Gordon of Aberfeldy and John Gordon of Pitlurg, that he and his curators should hold firm and stable the judgement and defence of the said cause, and that he and they shall ratify and approve the same, according to the law; and all others having or pretending to have interest, being all lawfully summoned to this action, oftentimes called and not compearing, and thereafter all their rights, reasons, allegations of the party compearing heard, seen and understood first before the lords of articles and thereafter by the king's majesty and three estates in parliament, and they therewith being timeously advised, the king's grace and three estates of parliament present have given and granted, likewise they, by the tenor hereof, give and grant to these persons underwritten: that is to say, Robert [Douglas], earl of Buchan, William [Ruthven], lord Ruthven, Robert [Boyd], lord Boyd, Alexander [Colville], commendator of Culross, Master Thomas MacCalzean of Cliftonhall and Mr Robert Crichton of Eliock, advocate, or any four of them jointly, as impartial judges to sit and decide in the faiths, causes also intended by the said pursuers to the final end and decision thereof, whom they ordain to sit for taking cognition thereto within the tolbooth of Edinburgh, dispensing with the place and making the same as lawful as it were within any part of the said sheriffdom. And the said Earl of Buchan, Lord Ruthven, Lord Robert Boyd, Alexander, commendator of Culross and Master Robert Crichton have instantly accepted the decision of the said matters in and upon them, and have made faith for due administration thereto; and also have given and give power to the lords of session, or any of them, to receive the oath of the said Mr Thomas MacCalzean for doing of justice in the said causes, and likewise make and constitute David Lawtie and Archibald Millar, jointly, clerks and notaries in the said cause to the final end thereof, with power to the said judges, or any one of them, to receive their oaths to that effect; and have appointed and ordained the said judges, or any four of them, to sit and begin within the said tolbooth of Edinburgh for doing of justice to the said parties in the said causes on 1 November 1578, and in the meantime to direct precepts at the instance of the said pursuers to the said day or any otherwise as the said pursuers require, as they please, libel thereupon for process to be led in the said matters where they left or of new to begin, or for translations in the said action, or any of them, active or passive, as the cause requires, and as hereafter shall please the said pursuers to be libel, and thereafter to proceed in the said actions and do justice thereto to the final end and decision thereof; and to give out their decreet according to the probations and deduction of the process to be led before them within 18 months after 1 November 1578, namely, before 1 May 1580. And to the effect aforesaid, witnesses to cause be summoned, sworn and examined etc., providing always that the said pursuers do their diligence for pursuing of the said actions and obtaining of the decreet before the said judges thereto within the space aforesaid. With certification to them if they fail therein, the said 18 months being past and no lawful diligence done by them, the said actions shall expire and be proscribed and they never heard to pursue for the same hereafter. And also give power to the said judges to create serjeants and other members of court as is needed, if the same be required, according to the law because the said Earl of Huntly, his said curators and all others, having or pretending to have interest in the said matter, were lawfully summoned to have compeared before our said sovereign lord and three estates of parliament at a certain day now past, to have heard and seen impartial judges appointed to sit and decide in the said actions also intended and to the final end and decision thereof, or else to have alleged a reasonable cause why the same should not have been done. With certification to them if they fail therein, the said judges would be appointed and given in manner above-mentioned. And they being all lawfully summoned to that effect, and the said earl and his said curators compearing by their said procurators, as said is, first before the lords of articles, after that they were chosen by the three estates in public parliament, and thereafter in presence of the king's grace and three estates aforesaid, and all others, the said Earl of Huntly's tutors and curators, if he had any, and all others having or pretending to have interest in the said matter as said is, being all lawfully summoned and not compearing, showing no reasonable cause in the contrary, as was clearly understood by our said sovereign lord, lords of articles and three estates aforesaid; and ordain letters to be directed on this point, if need be, in the appropriate form.