tented he hade bein taken prisoner, out of his own house at Culrose, and all his arms were taken from him, so that when he was sett at libertie, he was putt under the forsaid caution to attend all the dyets of the proces, and so was under an absolute necessity to wait the councill's farder order, seeing the proces was only continued from day to day, and if he hade not appeired at every day he would not only bein declared fugitive, but his cautioner would have forfault the 10,000 merks. My Lord Advocat answers, That 1. He should have made application to the councill, desyreing to knowe what should be his cariage: 2. The proclamation would have defended him if he hade gone, and being the posterior order took off all former restraint: 3. This cane be no defence why he sent not out his men since the councill did not disarme them. The lords continues the dyet againest John Lindsay, of Dowhill, till the third Monday of June nixt. Bandon ad Assisam. Mr. William Beaton, for David Beaton, of Bandon, alleadges, That his wyff was at the poynt of death, and he sent out both horse and foot, as a testificat under the lievtenants hand testifies, and he is content to take the de claration. Balbirne ud Assisam. the saids Robert Cunninghame and Henry Shanks, and discharges all new letters or dittay againest them, for the cryme forsaid in tyme coming. Mr. William Moniepennie, for Mitchell, of Balbardie, alledges, That he being conveined befor the circuit at Coupar, he proponed a relevant essoney, which was proven to the judges so as to him it is res judicata. Mr. John Lauder, for Mr. Charles War-llaw, propons the same defence. His Majesties Advocate takes instruments that the haill pannels, except Hay of Bahoussie, do judicially confesse their absence from his Majesties host. The Lords continue the diet till the twenty fift instant, and ordains parties witnesses and assizers to attend. Interloquitor upon the particular Defences, 25th February, 1680. The lords justice general and commissioners of justiciary find the defence proponed for Thomas Hay, of Balhoussie, foundit upon the passe relevant; as also find the defences proJames Law, of Bruntoun, Mr. Alex. Nairn, of poned for Robert Hamilton, of Kilbrachmont, Little Friertoun, Lundie, of Stratherlie, sir James Sinclair, of Kynnaird, Kynninmond, of that Ilk, David Beaton, of Bandon, sir John Henryson, of Fordell, Robert Balfour, of Balbirnie, and James Melvill, of Cassengray, Mr. James Alexander, for Balfour of Bal-lykeways relevant and remitts the same to the birne, alleadges he was sick at the time, as ane testificat produced bears, and the horse he providit was taken from him, and he is content to take the declaration. Fordell ad Assisam. knowledge of the assize; as also finds the defences proponed for Alexander Durhame, of Largo, Charles Cowan, of Corstoun, David Balcanquhill, of that Ilk, Alexander Nairn, of Samfoord, George Moncrieff, of Redie, and Mr. William Beaton, for sir John Henry-aleviat the punishment, though not to elied the James Weymes, of Gleniestoun, relevant to son, of Fordell, alleadges he sent out three lybell according to his majesties gracious of the assize. letter and remitts the same to the knowledge horse and three men, and at that time he was unable to travell, as ane testificat under the ministers hand bears, and its nottor he was not able thir three years bygone to drawe on ane The lords repell the defences proponed for boot; lykeas he was one of the gentlemen al-James Young, of Kirktoun, and Murray, of lowed to stay at home by the councill's letter, Pitlochie. inhibit by the Lord Chancellar, as a person unfitt for goeing to the host, be reason of his corpulencie and infirmitie. Cassingray ad Assisam. Mr. David Dewar, for Melvill, of Cassingray, produced, ane pass and license for him by the captain to stay at home he wanting horse and his lady being sick. Deserts and discharges Letters. It is alleadged for Robert Cuninghame, of Woodfield, that he has not fourtie pound of valued rent, and lives in Kirkadie, and keeps no horse. For Henry Shanks alleadges the same, and that he commandit the tounsmen of Kinghorne who was in armes for the defence of the Burgh, and for resistance of the rebells. The lords deserts the dyet simpliciter as to Hamilton, of Raploch. Joseph Marjoribanks, of Lenchie. Charles Maitland, of Pitrichie. The Assize lawfullie sworn, no objection in the contrair. depons he sawe Lawe, of Bruntoun, lyeing sick the tyme of the host, and lyeing bedfast. Sic Subscribitur, R. BALFOUR. His Majesties Advocate took instruments that the haill Pannels, except Balhoussie, hade acknowledged their absence from the host, and that Balhoussie acknowledges his deserting of the samen. The defenders for proveing of their innocence and grounds of exculpation, adduced the witnesses and other evidence after mentioned, viz. Patrick Murray fiar of Auchtertyre, aged 32 years, unmarried, purged and sworne, depones, That he saw Thomas Hay, of Balhousie in the king's host, in summer last, and that to the best of his knowledge he was in bade conditione of health, and that if he hade stayed he would have been in danger be reason of sickness, and that he sawe him coming off in this bade condition, and that he sawe him have the marquis of Montrose passe, who was his cap: tain, and that he left three or four men well appointed behind him in the army causa scientia he was present, and this is the truth as he shall answer to God. Mr. Thomas Stewart, son to Mr. Hary Stewart, in Pearth, purged and sworne, depons conformis precedenti, except that he did not see the passe, and knows that he hade two horses left behind with the host at least, and did not see him come off; and that to his knowledge his staying would have endangered his health. Sic Subscribitur, STEUART. Mr. Robert Colt, for farder probation, repeatts the marquis of Montrose passe, and licence to the pannell to return home. David lord Newark being sworne, depons, that it was the common report of the country that Robert Hamilton of Kilbrachmonts' horses were taken away, and that he sawe him coming on his foot to the randevouze to tell this, causa scientia, he is his near neighbour. Sic Subscribitur, NEWARK. The said James Lawe, of Bruntoun, produced lykwayes the minister of Markinch, and Dr. Alexander Balfour's testificats upon his being sick of the measils the tyme of the host Mr. William Moniepennie, for Mr. Alexander Nairn, of Litle- Freirtoun, repeits the bishop of Dunkell's testificat of his sicknes the tyme of the host upon soul and conscience, and that he is ane well affacted person to the present government, and lykways repeits his mother's lyffrent infeftment. That Stratherlie's brother's horse and arms wer James Craufurd, collector of Fyff, depons, taken away by the rebells, and Stratherlie himself was not in use to keep horse. Sic Subscribitur, J. CRAUFORD. James Pitcairne, writter, in Edinburgh, depons, That Stratherlie's brother declared in Dune that his horses and armes wer taken away by the rebells, and that this was the common report of the country. Sic Subscribitur, JAMES PITCAIRNE. Dr. Andrew Balfour depons, that he gave constant advise to sir James Sinclair, of Kynnaird, the tyme of the host, he being sick of ane ague at that tyme. A. BALFOUR. Sic Subscribitur, James Melvill, of Cassingray, being so- The said sir James Sinclair, in farder evilemnlie sworne, depons, he saw two of Hamil-dence of his innocencie and defence, produced ton of Kilbrachmonts' horses in the rebells hands who robed him, the foresaid rebells having come to his house to have robbed the deponent's horses. ane testificat of his sicknes (the tyme of the host) under the hand of Dr. Alexander Balfour, and another under the hand of the mi nister and elders of Ebdie. Sic Subscribitur, JAMES MELVILL. Colin Pitscottie, son to generall major PitsThe said Robert Hamilton produced lyke.cottie, aged threttie years, purged and sworne, ways ane testificate under the hand of Mr. depons, that Kyninmond of that ilk was so sick Wm. Hay, minister of Kilconquar, testifieing and unwell the tyme of the host that he was that he is ane orderlie person and cherisher of not able to come abroad, and that he sawe his horses at the host at Bothwell-bridge. the regular and orthodox clergie, and that his horses wer robb'd and servants sick the tyme of the host, and yet recruited himself and advanced some considerable part of the way till he heard the rebells wer defate. Jumes Crawfurd, collector of Fyff, depons he sawe Lawe, of Burntoun, lyeing verie sick the day of the randevouze, and that the doctor who was with him said it was the misles. Sic Subscribitur, J. CRAUFORD. Robert Balfour, of Balbirno, being sworne, VOL. XI. Sic Subscribitur, COLIN PITSCOTTIE. James Abercrombie, of Lochgellie, sworne, depons Kynninmond of that ilk was so unwell the tyme of the host that he could not come abroad, and that he sent out his horse to the host. Sic Subscribitur, JAMES ABERCROMBIE. The defender repeats likewayes the minister's testificat and phisitian's letter, bearing his being unwell all the tyme of the host. D David Spitle, servant to the minister of Markinch, depons Balbirno was sick and unable to travell the tyme of the host, and he providit ane horse to send to the host, but the horse was stollen and taken away by the rebells, and he cannot wrytt. Sic Subscribitur, GEO. M'KENZIE. I. P. D. John Dowe, servant to the laird of Bruntoun, depcas conformis to David Spitle in omnibus, and he cannot wreitt. Sic Subscribitur, GEO. M'KENZIE. I. P. D. James Melvill, of Cassingray, in vindication of his innocence produced ane testificat, under the hand of David Lord Newark, whereof the tenor followes: I, David Lord Newark, doe hereby testifie and declaire, that James Melvill of Cassingray, having conforme to the proclamation appeired at the randevouze with the rest of the heritors of the shyre, and he having told me his lady's condition, who hade bein for severall moneth befor verie sick, which being well knowen to me and the rest of the gentlemen, I did therupon dismisse him, and allowe him to goe home to wait upon his lady; as witnes my hand at Coupar, the second day of October, Sic Subscribitur, NEWARK. 1679. John Williamson, servant to Pitlour, depons be knowes Charles Cowan of Courstoun's horse was taken away by the rebells; he cannot wreitt. Sic Subscribitur, GEO. M'KENZIE. I. P. D. George Scott, of Pitlochie, depons that he heard Balcanquhill's horse was taken away, and being walking in the fields he sawe some horses with the rebells, and one of the deponent's servants told him that one of these horses belonged to Balcanquhill as he thought. Sic Subscribitur, GEORGE SCOTT. The said John Williamson lykwayes depons, that the common report of the countrey was that the laird of Balcanquhill's horse was taken away by the rebells. Sic Subscribitur, GEO. M'KENZIE, I. P. D. John Henryson, in Fordelgrein, depons weymes of Glenistoun hade a man and horse armed at the host, who attendit all the tyme. Sic Subscribitur, J. HENDERSON. of Lewchat, depons conformis to John HenAlexander Danskin,* servant to the laird ryson. Sic Subscribitur, ALEXANDER DANSKIN. His Majesties Advocat, declaires he holds the defence proponed for Alexander Nairn of Samfurd that he sent out his horse and armes to the host as proven. George Moncrieff, of Redie, for proveing of his defences produced the testificats under wreitten, whereof the tenor follows: These are testifieing that I keept the randevouze at Coltoun, of Balgownie, in June last, in name of George Moncrieff, of Redie, my brother-in-lawe, with the said George Moncrieff, his servants, horses, and armes, and *This variation occurs in the transcript from the Record. The Assyse be one voice, be the mouth of George Drummond, ther Chancellar, finds the defences for Alexander Durhame, of Largo, Charles Cowan, of Corstoun, David Balcanqubill, of that Ilk, Alexander Nairn, of Samfurd, George Moncreiff, of Redie, and David Weymes, of Glenistoun, pannalls contained in the second class, proven. depons Moncreiff of Redie sent out his brother-in-lawe, to the king's host with this expresse condition, if he wer not accepted of he would go himself, causa scientia, he was with him, and heard as he has deponed. Jo. MONCREIFF. Sic Subscrib., GEO. DRUMMOND, Chan. The Assyse all in one voice, be the mouth of George Drummond, ther Chancellar, finds Mur. James Young, of Kirktoun, and ray, of Pitlochie, guilty of ther remaining, and abyding frae the king's host in June last. Sic Subscrib., GEO. DRUMMOND, Chan. Efter oppining and reading of the whilk verdict of Assyse, The lords justice general, justice clerk, and commissioners of justiciary, absolved and assulyed, and be thir presents absolves and assolyies the haill persons contained in the first classe from the libell and dittay above mentioned, and dischairged, and be thir presents discharges all new letters or dittay to be raised or taken up against the defenders for the cryme above specifit, in all tyme coming, wherupon they and ther procurators asked and took instruments. His Majesties Advocat produced his majesty's gracious letter direct to the lords of his most honourable privie council, anent the punishing of the absents from, and deserters of his Sic Subscribitur, hynes host, and desyred the saids lords might Thomas Gilchrist, in Auchtermoughty, de- proceed conforme therunto, and to his majesties pons he knowes Redie sent out his brother-in-other gracious letter direct to ther lordships of lawe to his majestie's host with this the same date, and recordit in the books of Adcondition, that if he wer not accepted of, he journal, upon the twentie sext day of November would goe himself or send his son, and knowes last: followes the tenor of his majesties said letter direct to his privie councill: his lady was sick at the tyme. expresse Sic Subscribitur, THOMAS GILCHRIST. The Lords ordaines the Assyse to inclose and returne ther Verdict upon the 27th instant, and ordaines all parties to attend. 27th February 1680.-The said day the persons who past upon the absent heritors from the host in Fyff-shire, returned ther Verdict in presence of the saids lords, wherof the tenor followes: Edinburgh 25 February 1680.The Assyse finds the lybell proven, as also the assyse be one voice be the mouth of ther chancellor George Drummond, finds the defences for Robert Hamilton, of Kilbrachmont, James Lawe, of Burntoun, Mr. Alexander Nairn, of Litlefreirtoun, Lundy, of Stratherlie, sir James Sinclair, of Kinnaird, Kininmond, of that Ilk, David Beaton of Bandon, sir John Henryson, of Fordell, Robert Balfour, of Balbirno, James Melvill, of Cassingray, and Thomas Hay, of Balhousie, pannalls, contained in the first classe, proven, except Beaton, of Bandon's defence of his wyff's sicknes, which the assyse finds not proven, but the rest of the said Beaton of Bandon's defence they find proven. Sic Subscrib., GEO. DRUMMOND, Chan. CHARLES R. Right trustie and welbeloved cousin and councellor, right trustie and welbeloved cousins and councellors, right trusty and welbeloved councellors, and trusty, and welbeloved councellors, We greet you well. Having sein and considered your letter of the elivinth instant to the duke of Lauderdale, our secretarie, concerning those who did not assist us in suppressing the late rebellion, and those who deserted our host at that tyme: we are fullie convinced that it would prove a great discouragement to our faithfull subjects, who, in the discharge of ther duty, have bein at a great deall of expense, trouble and hazard in that expedition, if they should not see some suitable punishment inflicted upon those who (without any reasonable excuse) did not come to our assistance at that tyme, and upon those who efter coming to our host, deserted the same; and therefore we doe readlie approve the resolution you have taken, to fyne the most guilty, not above two years of ther valued rent, whilst others who are lesse guilty are to be fyned at least in the fourth part of a year's valued rent, which we take to be so moderat (considering howe dismall the effects of ther cryme might have hein if God of his infinit goodnes hade not prevented them,) that (as you say serie well, it may rather be thought a warning then a punishment, for we doe well knowe that such of fenders have formerlie bein punished by for faultors, confiscations and banishments; and so we bid you heartly farewell. Given at our conrt at Whithall, the 18th day of November, 1679, and of our reigne the 31st year: By his majesties command. LAUDERDALE. ! The books of Adjournal for this period contain Records of the proceedings against several other heritors, who were brought to trial on the hike indictments. But between them and the case here reported there does not appear to be difference sufficient to render the insertion of them either interesting or in| structive. Fountainhall's account, under dates Feb. 23 and 25, 1680 (1 Decisions, 37) of this procedure, is as follows: « At the Criminal Court the absents from the king's host in Jane last, to the number of 35 gentlemen of Fife, are now pannelled. Nota, this is not the third part of these who were absent in the shire of Fife, and there is another indictment raised against the rest. and aproints. Answered, Their private knowledge supplied that defect. The lords justice generall, justice clerk, and commissioners of Justiciary, having considered the lybell and verdict of assyse above wreitten, togither with his majesties gracious letters, significing his royalk will and pleasure, anent the punishments to be inflicted upon the absents from, and deserters of his hynes host. They be the mouth of James Henryson, macer of court, decerned and judged the said "They first proponed general defences: James Young, of Kirktoun, to be in ane ua- and alledged, that they having put out their lawe and amerciament of ane thousand eight militia, they were not obliged to attend in perhundreth and seventie pounds Scotts, son, the parliament having consented to the Murray, of Pitlochie, in the soume of seven militia in place of that servitude. This was hundredth pounds Scots, Alexander Durham, not sustained. 2. Alledged, the proclamation of Largo, in the soume of ane thousand eight calling them out was not published at the hundreth fyftie three pounds Scotts, David Bal-several m.ket-crosses, as it expressly bears canquill, of that lik, in the soume of fyve hundreth pounds Scotts, Alexander Nairne, of Hamford, in the sum of two hundreth nyntie Their particular defences founded upon four pounds ten shilling Scotts, George Mon- specialities, were, 1. That some were sick. creiff, of Radie, in the soume of three hun- But the Lords found testificates from minisdreth pounds Scotts, and James Weymes, of ters, physicians, officers of the army, &c. not Glemestoun, in the soure of ane hundreth sufficient, without witnesses were adduced by seventie fyve pound Scotts, and ordained them an exculpation, for testibus non testimoniis to grant bond for payment of the forsaids'est credendum.' See a pleasant story in sommes to his majestie's cash keeper for his bynes use, at the terme of Lan.bes nixt, and to find caution for presenting ther persons, before the lords commissioners of his majesties thesaurie, the last Friday of July nixt, under the pains respectively above mentioned, and ordaines them to be caryed to prison, there to remain till they subscrybe the said bond, and find the sovertie, which was pronunced for doom. The said day John Murray, of Pitlochie, being of tymes called to have compeired befor the said lords this day and place, in the hour of cause to have heard and sein doom and sentence, pronounced against him for his remaining and abyding frae his majesties host and royall standart, and to have granted bond for payment of his unlawe, and found caution for presenting of his person to that effect conforme to the sentence lawfull time of day bidden, and he not enterand nor appeirand." The lords justica general, justice clerk and commissstoners of justiciarie, therefor be the mouth of James Henryson, macer of court, decerned and adjudged the said John Murray of Pitlochie, to be outlawe and fugitive frae his majesties Jawes, and to be putt to the borne and all his movable goods and gear to be escheat and inbrought to our soveraigne lord's use, for his hye contempt and disobedience, which was pronounced for doom. Philip Cominus* how Lewis 11th of France fined some gentlemen for flying from his host against the duke of Burgundy, and they offered to prove others were spared, who fled 9 miles further off than they did-Though physicians pretend a privilege not to testify upon soul and conscience, yet the justices declared, they would reject all testificates that wanted it. 2. It was alledged for some, that they were past the age of 60. This was found relevant, they proving it instantly, providing they had sent out their best horses, and their best men well appointed. 3. Some pretended they were officers of the militia, and went out with it, or that they had lands in another shire, and answered there. These were found relevant. 4. Hay of Balkousie founded his defence on a pass to return from the marquis of Montrose, his superior officer: Answered, He not being in the king's guard, Montrose was not his officer. 2do. Commanders have no power to give them licence to desert, else the half of the army might be dismissed. Replied, 1mo, deserting is not libelled, but only not coming. 2do, Grotius de jure belli et pacis is very clear that other officers besides the general may give salvum conductum de redeundo, and if the granter have exceeded his duty, then blame him. Duplied, deserting is *So printed in the book. |