Procedure, 24 December 1702, Edinburgh

Att Edinburgh the 30 July 1702

D1702/7/28

D1702/7/28¹

Decreet

Decreet the Earle of Kintore against Ogilvie of Barras

Anent the lybell or letters of Complaint raised and persued before the lords of her majesties ² privie Councell att the instance of John Earle of Kintore knight marishall of her majesties ancient kingdom of Scotland with concurse of Sir James Stewart her majesties advocat for her highnes interest in the matter under wryten makeing mention that where evry mans honor, ought to be dear to him as his life and that ane Injurie by way of defamation in poynt thereof, Specially where his truth and honour, is Concerned in the most delicat and tender matters, is a most attrocous Injurie not only most sensible to 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 Realms, most Severely punishable, nevertheles It is of verity, that Sir Wiliam Ogilvie of Barras and David Ogilvie his Son, are guilty of the forsaid Cryme of defamation, and that in the most injurious and insolent manner, In So farr as Sir George Ogilvie Father to the said Sir Wiliam, haveing been bred and brought up, from a very low and obscure beginning, by the deceast Earle marishall and in his famely, and haveing about the Sixteen hunder and fifty one, been made Livt of the Garrison of Dunnottar, by the said Earle the keeper of the said Castle, by this means the honors of the said Kingdom viz the Croun Sceptor and Sword which by King Charles the Second when all that tyme goeing to England were Committed to the said Earle to be Secured in the said Castle of Dunnottar, fall 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 Lodged the honors in a Secreet place of the Castle, and thereafter Comeing in Sickelyke to be Surprized, with severall other noblemen att Elliot, and with them made prisoners, and Carried to London, he was necessitat to send his privat order, with the keyes, of that Secreet plane, where the honors were which he alwayes keept about him, to the Countes of Marishall, his mother, prayeing her to take Care, of the honors, itt being no more in his power, to look after them, wherewpon She intrusted them, to the Care and keeping of the said Sir George as Livetenant of the place as said is, who tho he received the said trust, yett in effect had proved very unluckie in it if the said Earle of Kintore, persewer then inn John Keith, had not (albeit very young by a happy forefight, prevented the great hazard in as much as when the Commity of Stats, had about that tyme, ordered the Lord Ballcarras to receive the honours out of the Castle, Dunnottor, and the said Sir George, was very much offended to deny the Committies order, yet the said persewer apprehending the danger, refused to give them out to the said Earle of Ballcarras, Which did very visibly in the event prevent ther falling into the hand of the English whom within a litle thereafter the Englishes became Masters of all Scotland the honors haveing thus Escaped this hazard were still keept in the Castle but the english marching northward, toward Dunnottar the forsaid Countes ordered the honours to be Convoyed privatly out of the way which was done a few dayes therafter, by the very faith full assisstance, of one Mr James Grainger, minister att Kinneff who by his wife and his maid Caused bring the honors in a bundle, of flax to his own house, and then Lodged them in the kirk with a very exact Caution, and gave the Countes of Marishall, a recept bearing particularly the place of the Kirk, where they were hid and which indeed was the Security of the honors throw the good Conduct of the Countes and the good Service of the said minister and his wife, dureing the whole tyme of the English usurpation, for the english therafter, haveing beseidged Dunnottar It was Surrendered by Sir George the Livetenant wpon a very mean Capitulation and the Livetenant was thereby bound, to deliver the honors or give ane rationall accompt, of them, Whereupon whom Sir George and his wife were required they asserted that the honors were Carried abroad by the persewer, were Caried abroad and delivered to the king att Paris, which was indeed the Contrivance that the persewer, had, then advised, and the principall Cause of his goeing abroad, but Sir George not having att that tyme, gott the Earles declaration, from Paris, he and his wife were keept prisoners untill the Earle wrote home, from Paris ouneing that he had the honors, and delivered them as said is which proved the means of the said Sir George his liberation, but the Earle haveing this farr Concerned himselfe, for the preservation, of the honors he was Constrained, to remain abroad for fear of the English, untill the Earle of Midletoun Came over to Scotland, and then the persewer accompanied him in the expedition in which he mett with severall hardships being att first taken by the English and then Constrained to Joyn with Generall Midletoun and the rest in the hills untill they were all defeat, att which tyme the persewer for Seeing his danger, fell wpon a most happy Contrivance, both for the Security of his own person, and likewayes the Safety of the honors, for Generall Midletoun, being to leave Scotland, the persewer took a recept of the honors, under his hand as delivered to him att Paris by the kings order, So that when the persewer Cam, to be includit in the Marques of Montrose Capitulation Generall Munk and Collonel Cobbot were very Closs and Severe wpon him, but he produceing Midletouns recept and Standing to it with a firm Countenance and exact answers, he was includit in the Capitulation and thus the honors were also Secured untill the kings restoration in the year, Sixteen hunder and Sixty all which tyme the Countes of Marishall urytes to the king to know his pleasure about³ the honors, and had a very kynd return, of thanks for her good Service with orders to deliver the honors to the Earle Marishall, and the king being Informed of what had past as is above narrated, he not only made the Earle of Marishall Lord privie Seall but also gave to the persewer, the patent of Knight Marishall with ane honorable fie and both in that patent and in the persewers patent, as Earle of Kintore, his forsaid Service and preservation of the honors is very honorably narrated, and the Lord Lyon was appoynted to give the persewer, the Croun Scepter and Sword as ane addition to his Coat of armes, Notwithstanding whereof the forsaid Sir George Ogilvie not Content with the acknowledgement, that he might pretend to for the Small Service 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 rewards and remarks of his Royall favor had yet the Confidence to Send wp his sone now the Said Sir William Ogilvie to London about the Same tyme, and arrogateing to himselfe the soll pressovation of the honors, and makeing his adress to his majestie by the Lord Ogilvie Thereafter Earle of Airly, the Countes Marishall was necessitat to Send to London 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, which⁴ was accordingly done, For the Earle of Midletoun, haveing represented the affair, to the king his majestie refuised 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, neither the Countes marishall who had that Concern, for him as to recomend him to his majesties favor now 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 and good Service of haveing prescribed the honores, ascribed to himselfe, with some other practisses used att hom, for that effect, and thereby designing to Robb the Earles of Marishall and the persewer, of ther true merit and belye his majesties patent, was that which Justly offended, But tho Sir George was putt to Silence, and did for many years thereafter Content himselfe, with the reward he had gott, without pretending any further, yett the said Sir William his sone, and David Ogilvie his Grand Child, hath of late had the Confidence to Cause, print and publish a most foolish and Reproachfull, pamphlet whereby reflecting on the memory of the said Countes of Marishall, They also presume, openly to Cast all the reproach,⁵ and ⁶ disgrace they Can upon the persewer, as if he had falsly ascribed to himselfe a Concern and interest, in preserveing the said honors, and therby Surprized the king and gott from him planes and patents which he had no presence to, for in ther for in ther⁷ forsaid villainus pamphlet page tenth and eleventh they Say that the old Countes wrott to the King that her Sone Keith, (⁸now the persewer had preserved the honors, Though they Say, that the persewer was then abroad and knew nothing of the matter, and then adds that the king knoweing nothing of Sir George and his wifes Service, in respect they did not timely apply, did wpon the Said Countes her misrepresentation Creat her sone, first Knight marishall and then Earle of Kintoire and ordered him a pension, for his pretended preservation of the honors, and then this pamphlett 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 ane recept of the haill honors as if these had been parts of his good Services whereas It is knowen, and Can be made appear by wryte, under Mr James Graingers hand, that both these attemps were fraudulent and purposely designed to prevent these fallse pretentions, which the Father Sir George did So Impudently Sett wp, and now the Sone and Grand Child, doeth no less insolently boast off and this does most falsely and basely reproach and defame the persewer, by offering to robb him of his Just merite and honor and Likewayes, to belye his majesties patents, in favors of the persewer, and throw the blackest Slander wpon the persewers name, honor 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 William and David Ogilvies are guilty airt and parte of the most Injurious defamation and attrocious Slander which they ought not only to be made to retreat as a manifast villany, but Likewayes they ought to be farder punished in their persons and goods att the Sight of the Lords of ⁹ privie Councill 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 of the hangman, and all other reparation made to the said persewer, of his honor fame and good name, that Can be proper against Such ane Injurious and reprwachfull undertakeing and anent the Charge given to the haill forenamed defenders to have Compeared personally att ane Certain day bygone before the saids Lords of privie Councill to have answered to the poynts of the forsaid Complaint and to have heard and Seen such order and Course taken theranent as the saids Lords Should have thought fitt under the pain of Rebellion and putteing of them to the Horn with Certification as in the said principall lybell and executions thereof att more length is Containe which lybell being upon the twenty first of July¹⁰ day ¹¹ Called in presence of the saids Lords, of her majesties privie Councill and the said Earle of Kintore persewer, Compeareing personally with Sir James Stewart her majesties advocat Sir David Dalrymple Mr Wiliam Carmichaell Mr Robert Forbes Mr Wiliam Black and Mr Patrick Leith, advocats his proces, and the said David Ogilvie one of the defenders Compeareing also personally att the barr with Sir David Thoirs, Sir David Cuningham and Mr Francis Grant, advocats his procurators who att the barr declaired and owned the pamphlett within lybelled, or to be Injurious Ignominious and villanous defameing the said Earle of Kintore, and that this defender, att the barr would disown the Same, and that he had no Concerne therein, and the said David Ogilvie as said is being present, att the barr, and he being enquired att, if he owned and adheared to what his Saids advocats, had declaired he answered that he did adhear to what his saids procurators had said in his name, who also produced and Certificat and declaration, wpon Soull and Conscience, Subscribed by Mr Alexander, Thomson docter of medicine, wherein he declaires that the other defender, Sir Wiliam Ogilvy is not able to travell to Edinburgh without endangering his life, In respect of his Indisposition, and weakness of body and the said lybell and the said lybell being read and both parties procurators fully heard att the barr, the saids Lords have admitted and hereby admitts the same, to probation and the witnesses Cited being Called, Compeared att the barr as marked in the Roll, did make faith the Councill nominats and appoynts the Earles of Marr Leivan and Hyndfoord, Viscount of Tarbat and Lord Forbes, and Lord provest of Edinburgh to be a Commity to examine, the witnesses, and recomends to the said Committie to meet to morrow att ten in the forenoon and declaires any two them a quorum, and reserves all objections against the saids witnesses to be discussed before the said Committie and grants letters of Second dilligence against the witnesses Cited and not Compeareing as they are marked in the roll, and assigns […] the […] day of […] nixt to Come for that effect, And the witnesses haveing Compeared deponed in the maner mentioned in ther oathes and depositiones and the saids Lords of privie Councill, haveing this day, advysed the proces att the instance of, the said John Earle of Kintore against the said Sir Wiliam Ogilvie of Barras and David Ogilvie younger thereof his sone, and the saids Lords haveing heard and Considered the depositions of the witnesses, aduced in the said matter, read in ther presence, and haveing also Considered the said lybell, and haill Steps of the proces, and the Informations for both parties in the said proces being fully read and the Saids Lords finds the said lybell Sufficiently proven, against the said David Ogilvie one of the defenders, and the saids Lords have fyned and ameriated and hereby Fynes and ameriats, the said David Ogilvie younger, of Barras one of the defenders in the Soume of twelve hundreth pounds Scots and have decerned and ordained and hereby decerns and ordains the said David Ogilvie defender to make payment of the said Soume, of twelve hundreth pounds money forsaid, to the said John Earle of Kintore persewer, for the expensses and damages he hes Sustained be her Sustained and ordains the said David Ogilvie defender to be Committed prisoner to Edinburgh, tolbooth, therein to remain, ay and while the said defender make payment of the said Soume, to the said persewer as said is or give Sufficient Security to the said John Earle of Kintore for the samen, and farder to remain therein dureing the Councills pleasure, and the saids Lords gives orders and warrand to maccers, of privie Councill, or messengers att armes, and ordains and requires all Sheriffs of Shyres and ther deputs and other magistrats and ministers of the law, to Search for take and apprehend, and Committ to prison, the person of the said David Ogilvie younger of Barras prisoner to any Tolbooth, within the kingdom, therein to remain ay and while he make payment or give Security and Satisfaction as above And dureing the Councills further pleasure thereanent and Ordains letters of Horning on fifteen dayes and others needfull to be direct heiron in form as effeirs.