Procedure, 24 December 1702, Edinburgh

Att Edinburgh the 8th July 1702

D1702/7/9

D1702/7/9¹

Act

Act in favours of the Earl of Kintore for burning the book emitted by Barras at the Cross by the hands of the Hangman

Anent the lybell or letters of Complaint purchased and raised before the Lords of her majesties privie Counsell att the Instance of John Earle of Kintore knight Marishall of this ancient Kingdom of Scotland, With Concurse of Sir James Stewart her majesties advocat for her highnes interest in the matter under written, That where evry mans honour ought to be dear to him as his life and that ane Injurie by way of defamation in poynt of truth and honour and tending to Robb any person, thereof Especially where his truth and Honour is Concerned as the most delicat and tender matters, is a most attrocious Injurie not only most sensible in the person Injured, but aimeing to expose him in the view and Construction of all men, and Therefore by the law of this and all other weell governed realmes, most severely punishable Nevertheles It is of verity that Sir William Ogilvie of Barras Knight is guilty of the forsaid Cryme of defamation and that in the most Injurious and insolent maner In so farr as Sir George Ogilvie Father to the said Sir William, haveing been bred and brought wp from a very low and obscure beggineing by the deceast Earle Marishall and in his famely, and haveing about the year J^aj vj^c and fifty one, been made Livetenant of the Garieson of Dunnottar, by the said Earle the keeper of the said Castle by this means the honours of this said Kingdom, viz the Croun Scepter and Sword which by King Charles the Second when att that tyme goeing for England were Committed to the said Earle to be secured in the said Castle of Dunnottar fell to be in some maner, under the Charge of the said Sir George, According to the trust the Earle had reposed in him but the Earle haveing Loadged the honors in a Secret place of the Castle, and Thereafter Commeing to be unluckely, Suprized, with severall other noblemen att Eliot, and with them made prisoners and Caried to London, he was neccessitat to send his privat orders with the keyes of that secret place, where the honors were which he allwayes keept about him, to the Countes of Marishall his mother, prayeing her to take Care of the honours, it being no more in his power to look after them, wherewpon she intrusted them to the Care and keepeing of the said Sir George, as Livetenant of the place, as Said is who though the received the said trust yett in effect had proved very unluckie in it If the said Earle of Kintore persuar then Mr John Keith, had not Albeit very young by a happy foresight prevented the great hazard in as much as when the Commitie of States had about that tyme ordered the Lord Ballcarras to receive the honours, out of the said Castle of Dunnotter, and the said Sir George was very much affraid to deny the Commities order yet the said persuar apprehending the danger refused to give them out to the said Earle of Ballcarras, which did very visibly in the in the² event prevent them falling into the English hands when within a litle thereafter, the Englishes became masters of all Scotland, the Honours haveing thus Escaped this hazard were Still keept in the Castle, but the English marching northward towards Dunnottar, the forsaids Countes ordered the honours to be Convoyed privatly out of the^{3 4}way which was done a few dayes thereafter by the very faithfull assistance of one Mr James Granger a minister att Kinneff who by his wife and his maid Caused bring the honours in a bundle of flax into his own house,⁵ and then loged them in the Church, with a very exact Caution and gave the Countes of Marishall a recept, beareing particullarly the place of the Kirk where they were hidd, and which indeed wes the Security of the honours through the good Conduct of the Countes and the faithfull service of the minister and his wife dureing the whole tyme of the English usurpation for the English thereafter haveing besidged Dunnottar It was surrendered, by Sir George the Livetenant, wpon a very mean Capitulation, and the Livetenant was thereby bound to deliver the honours or give a rationall accompt of them, Wherewpon when Sir George and his wife were requyred they asserted the honours were Caried abroad, by the persuer and delivred to the King att Paris, which was indeed the Contrivance that the Complainer then advysed and the principall Cause of his goeing abroad, But Sir George not haveing att that tyme gott the Earles declaratione from Paris, he and his wife were keept prisoners, untill the Earle wrott home, from Paris owneing that he had the honours, and delivered them as said is, which proved the means of Sir George his Liberatione But the Earle haveing thus farr Concerned himselfe for the preservation of the honours, he was Constrained for to remain abrood for fear of the English untill the Earle of Midletoun, Came over to Scotland, and then the persuar accompanied him in that expedition in which he mett with Severall hardshipps being att first taken by the English and ther Constrained to And then Constrained to Joyn with Generall Midleton and the rest in the Hills untill they were all defeat att which tyme, the persuar foreseeing his danger, fell wpon a most happy Contrivance both for the Security of his own person, and Likewayes the Safety of the Honours for Generall Midletoun being to leave Scotland the persuar took a recept of the honours under his hand, as if delivered to him att Paris by the Kings order, so that when the persuar Came to be included in the Marques of Montrose Capitulation Generall Monk, and Collonell Cobbat, were very Closs and severe wpon him, but he produceing Midletouns recept and standing to it with a firm Countenance and exact ansuers, he was includit in the Capitulation and thus the honours were also Secured till the Kings restoration, in the year J^aj vj^c and Sixtij att which tyme the Countes of Marishall writtes to the king to know his pleasure anent the honours, and had a very kynd return of hanks for her good srvice with orders to deliver the honours to the Earle Marishall, Lord privy Sale but also, gave the persuar the patent of Knight Marishall, with ane honourable fiee and both in that patent and in the persuars patent as Earle of Kintore,⁶ his forsaid srvice and preservation of the honours is very honorably narrated, and the lord Lyon was appoynted to give the persuar Croun Sceptor and Sword as adittions to his Coat of armes, Notwithstanding whereof the forsaid Sir George Ogilvie not Content with the acknowledgements he might pretend to, for the small srvice he had done in the said matter, and which acknowlegement was also bestowed wpon him, by his being made a knight barronet, and receiveing some other reward, and remarks of his Royall favor, had yet the Confidence to send yet wp his son nor the said Sir Wiliam to London, about the same tyme, and arragatting to himselfe the Soll preservation of the honours, and makeing his and makeing his address to his majesties by the Lord Ogilvie thereafter Earle of Early, the Countes Marishall was neccessitat, to send the Londoun a Gentleman express, and also to give a true Information of the whole matter to the Earle of Midletoun, for Repressing Sir George his forsaid presumption, and arrogancy, which was accordingly done, for the Earle of Midletoun, haveing represented the affair to the King his majestie refused to give any more ear to Sir George his false Sugestions, which putt ane end to that attempt. If Sir George had keeped himselfe within bounds, nether the Countes of Marishall who had that Concern for him, as to recommend him to his majesties favor, nor any of the famely of Marishall, would have grudged him the Just reward of his faithfull and discreet service, but his arrogant Impudence to have the whole Care and good service of haveing presrved the honours, asscryved to himselfe with some other practises, used att home for that effect and thereby designeing to robb the Earles of Marishall and the persuar of ther true merite and belye his majesties patent, was that which Justly offended, But tho Sir George was putt to Silence and did for many yeares thereafter Content himselfe with the reward he had gott, without pretending any further, yet the said Sir Wiliam, his Sone, hath of late had the Confidence, to Cause printt and publish a most foollish and Reproachfull pamphlett thereby reflecting on the memory of the said Countes of Marishall, he also presumes openly, to Cast all the Reproach and disgrace, he Can wpon the persuar, as if he had falsly asscribed to⁷ himselfe a Concern and interest in preserveing the said honours, and thereby Surprized the King and gott from him, places and patents, which he had no pretence to, for in his forsaid villanous pamphlet, page tenth and eleventh, he Sayes that the old Countes Marishall wrott to the king that her Son (John Keith (now the persuar) had preserved the honours, though he sayes, that the persuar was then abroad, and knew nothing of the matter, and then adds, that the king knoweing nothing of Sir George his mothers srvice, in respect they did not timely apply, Did wpon the said Countes her misrepresentation, Creat her son first knight marishall, and then Earle of Kintore and ordered him a pension, for his pretended presrvation, of the honours, and then this pamphlet gives ane accompt, how the said Sir George practised the said minister Mr James Grainger, and gott the scepter from him and Likewayes Surprized the Earle Marishall, to give him a recept of the haill honors as if these had been parts of his good srvices whereas its knowen and can be made appear by write under Mr James Graingers hand that both these attemps were fraudulent and purposely designed to Support these false pretentions, which the Father Sir George did long time So Impudently lett wp, and now the Sone, doth no less insolently boast, of, and this does most falsly and basely defame and reproach the persuar by offereing to Robb, him of his Just merite and honour, and Likewayes to belye his majesties patents, in favors of the persuar, and through the blackest slander, wpon the persuars name, honour and fame, all which being evidently made out by the said pamphlet whereof a printed Coppie is herewith produced in the Clerks hands, it is Clear that the forsaid Sir Wiliam, is guilty airt and pairt of a most injurius defamation and atrocius slander which he ought not only to be made to retreat as a manifast villany but Likewayes he ought to be further punished in his person and goods, att the sight of the Lords of her⁸ majesties privie Counsell, to the example and terror of others, to Committ the like in tyme comeing, as also the forsaid Ignominious pamphlet ought to be brunt by the hand by the hand of the hangman, and all other made to the said persuar of his honour fame and good name that Can be proper, against such ane injurious and Reproachfull undertakeing,⁹ anent the Charge given to the fore¹⁰ said defender to have Compeared before the saids Lords of privie Councill att ane Certain day bygone to have ansuered to the poynts of the forsaid Complaint, and to have heard and seen such order and Cause taken thereanent as the saids Lords of privie Councill should have thought fitt under the pain of Rebellion and putting of them to the Horn, with Certification as in the said principall lybell and executions therof att more length is Contained, which lybell being wpon the day and date of thir presents Called in presence of the saids Lords of privie Counsell and the said persuar Compeareing personally att the bar with Sir James Stewart her majesties advocat Sir David Dalrymple and Mr Wiliam Carmichaell her majesties Sollicitors Mr Robert Forbes Mr Wiliam Black and Mr Patrick Leith, his advocats, and the said Sir Wiliam Ogilvie defender being oft tymes Called and not Compeareing personaly but by Sir David Thoires Sir David Cunnighame Mr Francis Grant, and Mr Mungo Carnegie his advocats, who produced two testificats one of them under the hands of Mr Alexander Thomson, Doctor of Medicine, att Montrose, wherein he declaires on Soull and Conscience, that the defender Sir Wiliam Ogilvie is under such a weakness and Indisposition of body, that he Cannot travell to Edinburgh without manifast danger of his life and the other under the hands of the Minister and the elder, of the paroch of Kinneff wherein they also declaire that he hes been valitudinary for these severall years bygone and particularly Since martimes last to the best of ther knowlege and Skill, and that he is So weak that he Cannot travell to Edinburgh, without manifast hazard of his life both dated att Barras the twenty Sixth of June Seventeen hunder and two years and the persuar to verifie and Instruct his lybell, produced ane patent of honour under his majesties great Seall Creating him knight marishall, of the kingdom of Scotland for the Causes within and therein Specified dated att the Court of Whytehall the Second day of Januarij Sixteenn hunder and Sixty Six yeares, as also produced ane pamphlett Intituled ane true accompt, of the presrvation of the Regalia of Scotland, viz the Croun Scepter and Sword, from falling into the hands of the English usurpers, by Sir George Ogilvie of Barras knight and barronet as also ane recept granted by Mr James Grainger Minister att Kinneff, to the Countes Marishall, beareing him to have in his Custody, the honors of the kingdom, viz the Croun Scepter and Sword, and where the Samen were absconded, that the said Countes might have access thereto, dated the […] day of […] J^aj vj^c […] yeares and Likewayes, produced ane declaration under the said Mr James Granger his hand, anent the way and maner of presrveing of the honoures, by the Countes Marishall dated the nynteenth day of october J^aj vj^c and Sixty yeares, with ane missive letter from the said minister to the Countes marishall, dated the dated the twelth of november J^aj vj^c and Sixty with ane other letter from the Earle of Midletoun, to the said Countes Marishall, dated the fifteenth of november J^aj vj^c and Sixty, with two letters from his majestie King Charles the Second, to the said Countes Marishell, the one whereof dated the the¹¹ fourth of Januarij J^aj vj^c and fifty five, and the other the fourth September J^aj vj^c and Sixty, and the lybell testificats produced for the defender, patent of Honour pamphlet, recept and Instructions above mentioned being fully Read in presence of his Grace, her majesties high Commissioner and the Lords of her majesties privie Counsell, and they haveing duely Considered the Samen, His Grace her majesties high Commissioner and the Lords of her majesties privie Counsell ordains, the said pamphlet as injurious Ignominious and villanous defameing the said Earle of Kintore persuar, to be brunt by the hands of the Common hangman, of the burgh of Edinburgh, att the Crose of the said burgh, wpon Fryday nixt being the tenth instant betwixt the houres of Eleven and twelve in the forenoon, and ordains the magistrats of Edinburgh, to see the samen effectuall and putt to due execution, wpon the said day as they will be ansuerable and in respect of the Certificats produced Continues the proces against the defender as to the personall Conclusion against him and the other poynts Contained in the lybell, untill the Sixteenth of July instant,