COMPLETE COLLECTION OF State Trials. 325. Proceedings against HERITORS OF THE SHIRE OF FIFE, for Absence from the King's Host:* 32 CHARLES II. A. D. 1680. [Now first printed from the Records of Justiciary in Edinburgh.] CURIA JUSTICIARIE, S. D. N. Regis tenta in Curia legittime affirmata. Intran, Hay, of Balhousie. James Young, of Kirktoun. Mr. Alexander Nairne, of Litlefreitoun. Sir John Henryson, of Fordell. * Wodrow does not particularise this Pro-hundred and fifty years, they were put in exe secution. However what he says of the proceedings in general against the Absents from the King's Host, is worth insertion: "We have several old laws in Scotland made in the time of our feuds, and almost continual differences among families and clans, and when our kings lived in this kingdom, which do make the not coming out when called to the king's host, a great crime, and ad terrorem severe punishments are by these laws knit to it; but I question, if for these hundred, or VOL. XI. cution, till now they are advanced as an handle against a great many persons, who from different reasons came not out against the West country army. "Matters were laid last year for this prosecution; and, of design, I left them to this place, and so we must look back a little. After the rising at Pentland, little or no stir was made about beritors non-attendance upon the army; but now our managers resolve upon severer courses; and when they find that B his person, when they be requyred be the king and commandit, they shall be chalenged be the king as favourers of sick rebellers; and be the offenders have been punished by forfeitures, confiscations, and banishment. These our resolutions, though taken and formed after much serious debate, are subjected with all dutiful respect to his majesty's royal consideration, by "Your grace's most humble Servant, "ROTHES, Cancel. I. P. D." multitudes, we see, came from Edinburgh, and "The motions for this heavy oppression of I find a letter from the king upon this subwere fallen in with at London. Accordingly, ject, recorded in the justiciary-registers, of the majestie's host and royall standart be hyeinforce the king against nottor rebells againest crymes and severlie punishable; and be the 4th Act, 1st Parliament king James 1, it is statut and ordained, that if any disobeys to what was to arise from the estates of such as had been personally concerned in the rising, would not answer their expectations, a more general oppression of gentlemen and heritors is resolved upon. It was presumed, that such who did not heartily join the army, were well affected to Presbyterians, and no opportunity of bringing such to trouble was left, especially when it was like to bring in large sums of money. Thus I find by the council-registers, November 6, That, at the desire of the lords ⚫ of justiciary, a committee is named to meet ⚫ with them, the chancellor, earls of Argyle, 'Murray, Glencairn, the president, treasurer depute, register, and advocate, and consider 'what shall be the punishment of absents from the king's host. November 8. Their opinion is reported, that the heritors and freeholders guilty, should be fined; the most guilty not above two years valued rent, and the least in a fourth part of their rent: that those who are fined in the least degree, be appointed to take the oath of allegiance and declaration, and, if they refuse, that they be fined in the 'highest rank.' The council approve this report. Thus no small persecution for conscience sake, is mixed with this civil kind of crime. Those proposals are transmitted in a letter to Lawderdale, dated, date, "C. R. "Whitehall, Nov. 18, 1679. "Whereas, albeit by express law, the deserters from our host be punishable by death, yet we are graciously pleased hereby to allow you to proceed against them in the same way, and to the same pains and punishments as you are resolved to proceed against the guiltiest of such as did not come to our host: for doing whereof this shall be your warrant. "LAWDERDALE." "By the proclamation issued out during the rising, the absents from the host were to be punished as deserters of it; but that being death by some antiquated laws, and it not being blood but money, a good many about le ter was procured with relation to deserters, Edinburgh were at this time wanting. This who, I suppose, were not many, in the ordinary sense of the word; and this was a preface to what followed as to the absents. « Edinburgh, November 11, 1679. "May it please your grace; "The just abhorrence we have of the last rebellion, and the too just fears that the same principles may occasion the same distempers, "That same day, a letter is writ to the coundo oblige us to inform his majesty by your cil, approving the proposal in all points, which grace, that if these who went not to assist his they make in theirs of the 11th, and so it needs majesty against these rebels, or deserted the not be insert here. When they are thus warking's host, be not punished, we cannot pro-ranted to begin their finings upon this head, mise his majesty will have any proportional they go roundly to work, and letters are writ force against any future insurrections, since to the sheriffs in each shire, that they send in we find, by our great experience, that these the books of valuation, or attested copies of who were at daily expence and hazard in that them to Edinburgh; and the officers of the expedition, are much discouraged, when they army are appointed to send in lists of the hesee others who stayed at home, or deserted, ritors in each shire, who did not attend the suffer nothing; and that such as stayed at king's host. home, from a principle of unkindness to his "In December and January, citations are majesty's government, do treat the dutifulness ordered to be given to some hundreds of genof such as went there, as an officious and un-tlemen, heritors, and freeholders, by the justiregarded forwardness: withal, your grace ciary: it took some time before the lists could may inform his majesty, that we are resolved be made up, and the witnesses condescended to pursue so moderately these offenders, as on, and the managers themselves seem not to may shew that this punishment should be be fully agreed, and severals were for moderate rather a warning; these most guilty being not courses, gentlemens excuses being found many to be finell above two years valued rest, fhilst of them highly reasonable for not attending achers, who are less guilty, are to be fined at mosters, and coming to the host. But the best in a fourth part of a year's valued rent, violent party prevailed. and which is Inde more than what they be howed an have spent in the expetition: whereas, derable gentlemen, heritors, and feuars are the statutes against the crimes, having left the pannelled belong the justiciary for absence pament to be proportioned according to the from the host, and receive their indictment. mal cacumstances that duruld occur, such Good numbers of the ablest lawyers were em "Thos, February 25, a great many consi 57th Act, 18th Parliament king James 2, it is ordained, that all maner of men that has land or goods be readie horsed and geared efter the facultie of his lands and goods for the defence of the realme at the commandment of the king's letters, and whoso beis not, he shall be punished in his person and goods, especiallie when they are requyred therto be his majestie's proclamation for subdueing of traiterous ployed by the gentlemen, and their defences are long, and pleadings very large upon the matter in general, and the particular circumstances of the pannels. The advocate gives large replies, and enforces his reasonings with the weight of the letter from the king to the council upon this head, dated November 18, which was noticed just now. "This argument from a resolution in council, backed with royal approbation, no doubt was unanswerable; and so the lords give sentence against the gentlemen. I cannot insert all who were fined now and afterwards; only, for a taste at this time, James Young of Kirktoun is fined in 1870l. Scots, of PitJochie in 7001. Alexander Durham of Largo in 1850/. David Balcanquel of that ilk in 500/. Alexander Nairn of Samford in 2941. George Moncrief of Redie in 300/. James Weems in Glencorstoun in 1757. and multitudes of others. "At other diets of the justiciary in February, I find vast numbers of gentlemen and heritors in the shires of Lothian, the Merse, and other places, pannelled, and more than a hundred of them fined in very considerable sums; and, towards the end of March, the Lords are taken up in the same work: sentences are past against as many as in February, if not more, and discharges are produced of the payment of former fines, some of them several thousand pounds. and seditious rebells, who hade most traiterouslie assumed and taken the boldnes to burne his majestie's lawes and acts of parliament, at the marcat croce of the burghe of Rutherglen, upon the twentie-nynth of May last, a day appointed for are solemne anniversary thanksgiving for his majestie's restauration to the royall government of this kingdome, and who hade most treasonablie convocat and astime graciously pleased to excuse them from a criminal process, yet we will not suffer absents and deserters to escape without some punishment by way of fining, which we desire you to signify to our justice-court. So we bid you, &c. "How it came to pass that such a letter as this, of the date, June 1, was not intimated, till July 26, I shall not enquire; certainly somebody or other found their advantage by it. This letter is intimated and recorded in the criminal books, and all processes in dependence before them are deserted, and in their room succeed the processes for forfeiture of life after Airs-moss. "When this matter comes before the council, they go closely to work, and their registers for some months are mostly taken up with those processes. Many hundreds are cited before them, the diets of some are continued, others are deserted (not without compositions and money privately given.) Multitudes are fined in absence, and some declared fugitive. chapter too much. Let me give only a few To enter upon particulars would swell this instauces. July 13, Dundas of Borthwick is 'fined in a year's rent. August 1, the laird of Riddel's excuses for absence not sustained, he is fined in two years rent, which is 6,000l. 'Scots; George Douglas of Bonjedburgh fined in 6,000l. Scots; Ker of Cherrytrees in 3,000 "Upon the 26th of July, this matter of ab- merks; James Scot of Thirlstane in 2776l.; sence from the king's host, is taken out of the Francis Scot of Greenhill in 800l. It is nohands of the justiciary, and put in the hands of ticed, that they all refused the declaration, the council. This was a more arbitrary court, probably otherwise they might have had their and gave not themselves the trouble of lawyers, and legal defences. That day, I find the ad'excuses sustained, or been fined vastly down ' of those sums; and so they are properly sufvocate produced a letter from the king, offerers for their opinion in point of prelacy. the date, "C. R. Windsor, June 1, 1680. "Right trusty, &c. We are sensible of the small effects that have followed by the trial of such who have been absent from our host, before the justiciary; and being informed that summons are issued out to cite many others through the shires for that crime, it is now our will and pleasure, that they be proceeded against, not criminally, but by way of fining, according to the degrees of their guilt, not admitting frivolous excuses for absence or desertion, which we look upon as preparatives of dangerous consequence to our service. We desire none benorth Tay be troubled with trials or citations, these only excepted who are known to be notoriously disaffected to our government in church and state: for though we are at this August 9, the following persons in Berwick"shire, are fined for absence from the host; Patrick Wardlaw in 4,000!. Scots, Robert Brown of Blackburn 1,200l. Pringle of Greenknow 1,500l. Alexander Hume in St. 'Bathans 2007. Samuel Spence 4007. Clappertoun of Wylie-cleugh 1,000 merks, George 'Hume of Bassenden 1,000 merks.' They are all ordained to pay in six days. But particular instances would be endless. Nov. 11, I find the council appoint, That caption be executed 'with concurrence of parties of soldiers, for the 'fines of the absents from the bost; that their escheats be gifted in name of his majesty's cash-keeper; that in time coming, all found guilty of absence shall be kept in custody till 'they pay the fine.' This obliged many not to compear, and then the soldiers execute the sen⚫ tence pronounced in absence.” sembled, not only without but againest his majestic's authoritie, to the number of fyve or six hundreth, and took the boldnes to invade and sett upon some troups of bis majestie's forces at Lowdoun-hill, wher having killed and woundit severall of his majestie's subjects and souldiers, and being therby imboldned, they did swell and growe to the number of nyn or ten thousand, to which his majestie's modeled forces wer nowayes equal; and his majestie, for the preservation of his royall greatnes honour and government, the happienes, quyet, and tranquilitie, of his good and dutiefull subjects, having by his proclamation of the 7th of June last,* called out, requyred * This Proclamation, among others, was issued upon occasion of the disturbances in the West of Scotland; it is inserted in the Appendix to the second volume of Wodrow's History (N 17,) as follows: PROCLAMATION Calling out Heritors to attend the King's Host, June 7, 1679. and commanded, all heritors and freeholders, sensible [fensible] persons ther servants and followers, to come out upon horseback within the be under the command of general Dalziel; the shire of Haddingtoun to meet at Beinstounmuir the 11th day of June instant, and to be under the cominand of the viscount of Kingstoun; Stirling and Clackmannan to meet at the town of Surling, and from thence to march to the links of Leith upon the 11th day of June instant, and to be under the command of the lord Elphingstoun; Berwick to meet at Fogo-muir upon the 11th day of June instant, and to be under the command of the earl of Hume, and in his absence, his brother Charles Hume; Roxburgh and Selkirk to meet at Ancrum-bridge upon the 16th day of June instant, and to be under the command of the lord Elibank, and the laird of Stobs, who are to command according to the division of the militia troops; Fife to meet at Cowpar the 12th day of June instant, and to be under the command of the lord Newark; Perth to meet "Forasmuch as the insurrection in the at Perth the 13th day of June instant and Western shires is grown to an open rebellion, to be under the command of the marquis of and that the number of these desperate rebels Montrose, and such persons under him as he do increase so, that all his majesty's loyal sub- shall appoint; Forfar to meet at Forfar upon jects in their several shires, ought timeously to the 13th day of June instant, and to be under look to their own security, and put themselves the command of the earl of Southesk; Kin. in a posture to defend the king's authority, and cardin and Marshal's part of Aberdeen to meet to oppose all attempts of desperate and wicked at Aberdeen links upon the 19th day of rebels and albeit his majesty's privy council June instant, and to be under the command of have already issued forth their orders for draw- the earl of Aboyn; Bamil and Errol's part of ing forth the militia forces, horse and foot, in Aberdeen to meet at Turreff upon the 19th day several shires, and appointed particular days of June instant, and to be under the command of rendevouz, and upon such occasions may re- of the earl of Kintore; Elgin, Forres, Nairn quire all fencible persons, betwixt sixty and six- and this side Ness, to meet at Forres upon teen, to rise for suppressing of these rebels; the 20th day of June instant, and to be under at this time, they have thought fit only to call the command of the earl of Murray, and in his out and require the regiments of the foot absence the lord Duffus; Ross to meet at militia, in the shires aftermentioned; and all Chanry the 23rd day of June instant, and beritors and freeholders, who are fencible per- to be under the command of the earl of Seasons, and their servants and followers, to come forth; and ordain all the heritors and freeout upon horseback; and for this cause, to for-holders of the shires benorth Forth, to march bear to require the militia troops, in these skires underwritten, at this time, notwithstanding of the orders already issued forth, in so far as concerns the horse militia allenarly; and do hereby require and command all heritors and freeholders, who are fencible persons, with so many of their servants and followers as they can bring on horseback with arms, within the shires of Edinburgh, Linlithgow, and Peebles, Haddington, Stirling and Clackmannan, Berwick, Roxburgh and Selkirk, Fife, Perth, Forfar, Kincardin and Marshal's part of Aberdeen, Banff and Errol's part of Aberdeen, Ross, Elgin, Forres, Nairn, and this side of Ness, to convene at the places and times aftermentioned, and to receive their orders, and to be under the command of the persons underwritten, viz. Edinburgh to meet at the links of Leith upon the 11th day of June instant, and to be under the command of the lord Collingtoun; Linlithgow and Peebles to meet at the links of Leith the 11th day of June instant, and to immediately after the rendevouz to the bridge of Stirling, and all the heritors and freeholders of the shires on the south side of Forth to march after the rendevouz to the Links of Leith, there to continue till further order: with full power to them to seize upon all disaffected persons, and in case of resist ance, to use them as enemies, within their respective bounds, or such as shall be suspected to be going out of the shire to the rebels: with power likewise to the said com anders, to appoint officers under them, to command in the several divisions of the shires abovementioned; ordaining berchy the respective commanders aforesaid, to cause publio proclamation and intimation to be made hereof to the respective shires under their command, at the several places already appointed for the first day's rendevouz of the militia, that the said meetings may be punctually kept; certifying hereby all such heritors, and others aforesaid, as shall not come out upon horseback them. shyres of Fyff, Edinburgh, Linlithgowe, Pee bles, Haddingtoun, Stirlin, Clackmanan, Berwick, Roxburgh, Selkirk, Perth, and others therein mentioned; yet the persons aboveselves with their best horses and arms, with so many of their servants and followers as they can bring out upon horseback, they shall be liable to the pains and penalties provided by the acts of parliament against such as do not attend the king's host, or desert the same, and looked upon as disaffected persons, and favourers and compliers with rebels, and pursued and punished accordingly. And ordain these presents to be printed and published at the market-cross of Edinburgh, and other places, foresaid, that none pretend ignorance. "THO. HAY, Cl. Secr. Conc. "God save the king." Wodrow observes, that "the narrative of this proclamation shews it was formed when the regular forces coming back towards Glasgow, thought good to return, since it represents that the insurrection in the western shires is now named, did presume to abyd and remain frae his majestie's host and royal! standart, and they and ilk ane of them, are actors airt and part thereof, which being found be ane assyse, wish they may prove as effectually beneficial for the true and lasting interest of his majesty and his kingdoms, as I am bound in charity to suppose they were affectionately meant for the good of both. “To apply this to our present commotions: though. I cannot positively charge those who are at the helm, of any underhand contrivance, or certainly conclude the same from the outward appearance of their actings, it being possible that such important suddenties, as have now fallen out, may prompt them to over-reach themselves in their commands, as well as us in our, may be more zealous and forward, than well advised and really dutiful obedience: but, as long ago it was told me, by a witness of a certain great man's behaviour at the engagement, Anno 1648, that he would not say, for all the world, that he had betrayed them, yet full of gold to betray them, he could have done he could justly say, that if he had got a house grown to an open rebellion :" and he proceeds, This proclamation was matter of very griev ous fining to a great many gentlemen and no more; so I will not assert, with the church others, who, for different reasons, could not ator state fanatics of this time, that our countend the king's host. All or most part of the of-sellors are really designing to introduce upon ficers named for that host, were the most violent persecutors of Presbyterians, and there were not a few among them, favourers of Popery, and some professed Papists. This was plainly contrary to law and their own late proclamation this very year, and flowed from the strength of the duke of York's party in council." He also inserts in the same Appendix (No. 18) the following paper writ by a very able hand' intituled "A Letter of Advice writ by a gentleman to his friend, on the occasion of his going out to wait upon the army conform to the proclamation, June 7, 1679."" us, Popery and arbitrary government, and are catching the advantage of the present confusions in prosecution thereof; but in reason I may say, that had they the most real and forward intention of so doing, they could hardly have fallen upon more likely and favourable courses, for that end, than some of those they are taking. 66 There is much talking of a Popish Plot, and if there be such a design of arbitrary power, it being also a work of darkness, that dares not assault us with open face, and meet to go in hands with the other, I may call it another Plot, which must work underboard until hell be prepared to defend it. And these two proclamations, the one for volunteers, whereby all the Papists in the kingdom are armed, and called out to the fields; and the other charging, under highest pains, the whole nobility, gentry, and heritors to attend the army, under the command of officers appointed by the council, are like two mines sprung upon the chief bastions of our liberties and religion, and we, likė fools, hear the noise, and gaze upon the smoke, but discern not, nor consider what it hath carried away with it. Opportunity is the life of action, without which the deepest and most subtilly devised counsels prove abortive. Statesmen know, that for all designs, which otherwise might be startled at, there is no opportunity comparable to that of sudden emergents, whether happy or unhappy, if they appear of any great concern for mens spirits, by those being set aloft, and so rendered unwary and inadvertent, fair pretexts are then likely to take, if ever; because at such times, men have not, or take not leisure to search to the bottom of things, or to consider them on all sides, and according to all "For my own part, to give you my judgtheir present and future importance. A recent ment freely, as you have desired it; amongst instance of this, are several grants of the par- all the grievances which we have been comliaments, both of Scotland and England, to his plaining so much of, these years by past, there present majesty, upon the happy and amazing are but few, that either better deserve the name, surprisal of his restauration, which neither he, or are indeed of greater weight than this; nei, por king Charles 1, nor yet king James his ther know I any one step, whereby Popery and fifty years peaceable reign, though all assisted arbitrary power have had occasion of making with very wise and politick counsellors and swifter progress towards their settlement profound devices, could ever be able to work amongst us, or whereby they have gained more out, till that opportune juncture had made wayground of us, than by these two acts, however for them. Of which I shall only say, that lightly regarded. |