Tag Archives: 26 November 1695

Judicial Proceeding, 26 November 1695, Edinburgh

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Edinburgh Tusday the 26th day of November 1695

D1695/11/281

Judicial Proceeding

Protestatione for not insisting The defenders o2 against McGuffock of Rusco

Anent the letters or Lybell of Complaint purchased and raised before the Lords of his Majesties privy Councill at the instance of Hew Mcguffock of Rusco with Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwritten Making Mention That wher by the lawes and acts of parliament and Customes of this and all other weell Governed nationes the oppressing of his majesties Leidges under pretext of Law by Seazing upon them in In3 order to put them out to his majesties Levie and letting them goe for money, and puting out others who were not able to redeem themselves by money for want therof And the arbitrary quartering upon pretext of not puting out to the Levie wher the persones quartered upon were aither or not Lyable or hade made up ther Complement Be Crimes of ane high nature and Severly punishable yet true It is and of verity that Samuell Maxwell of Newlaw, Charles McClellan of of4 Colline, Archibald Coulder of Occoland, John Mcnaught Collector and Stewart Clerk of Kirkcudbright and Robert Maxwell of Hossellwood all or every one of them being appointed Leaders of the paroch of Redick and each of them to put out ane man to the Levy Did upon one or other of the dayes of the moneths of Jannuary February and remanent moneths of the years of God Jaj vic Nyntie four or Jaj vic Nyntie five years or one or other of the saids moneths and years seaze upon severall persones to goe out to the Levie and took money from them and lett them goe and took others in their place whom they demitted in the same termes and maner untill they fall upon poor people who were not able to redeem themselves, And after all have arbitrarly and without Law quartered upon the lands of Girstenwood belonging to the pursuer as deficient of ane man; wheras his valuation Is only two hundred punds, And the valuation for one man Is twe Thousand punds and he not a leader and his Complement however was full as appears by the Collectors letters Declareing that the pursuers part of the Levie was Completed Wherby the fornamed persones and each of them are actors guilty airt and part of ane manifast ryot and oppressione, and ought not only to be severly punished in ther persones and goods to the teror of others but the quartering in the mean time Ought to be Discharged And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the grounds of the above Complaint, And to have heard and Seen Such order and Course taken theranent as appertaines under the paine of rebellion etc As in the principall letters or Lybell of Complaint and executiones therof raised in the said matter at more5 Lenth is contained The saids letters or Lybells of Complaint being this day Called in presence of the saids Lords of his Majesties privy Councill They heirby Admitt Protestatione for not insisting against the said Hew Mcguffock of Rusco And modifies the soume of Ten punds scots of protestation money to be payed be the said pursuer to the said defenders And Ordaines letters at the defenders instance against the pursuer for payment thereof.

Edinburgh Tusday the 26th day of November 1695

D1695/11/281

Judicial Proceeding

Protestatione for not insisting The defenders o2 against McGuffock of Rusco

Anent the letters or Lybell of Complaint purchased and raised before the Lords of his Majesties privy Councill at the instance of Hew Mcguffock of Rusco with Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the matter underwritten Making Mention That wher by the lawes and acts of parliament and Customes of this and all other weell Governed nationes the oppressing of his majesties Leidges under pretext of Law by Seazing upon them in In3 order to put them out to his majesties Levie and letting them goe for money, and puting out others who were not able to redeem themselves by money for want therof And the arbitrary quartering upon pretext of not puting out to the Levie wher the persones quartered upon were aither or not Lyable or hade made up ther Complement Be Crimes of ane high nature and Severly punishable yet true It is and of verity that Samuell Maxwell of Newlaw, Charles McClellan of of4 Colline, Archibald Coulder of Occoland, John Mcnaught Collector and Stewart Clerk of Kirkcudbright and Robert Maxwell of Hossellwood all or every one of them being appointed Leaders of the paroch of Redick and each of them to put out ane man to the Levy Did upon one or other of the dayes of the moneths of Jannuary February and remanent moneths of the years of God Jaj vic Nyntie four or Jaj vic Nyntie five years or one or other of the saids moneths and years seaze upon severall persones to goe out to the Levie and took money from them and lett them goe and took others in their place whom they demitted in the same termes and maner untill they fall upon poor people who were not able to redeem themselves, And after all have arbitrarly and without Law quartered upon the lands of Girstenwood belonging to the pursuer as deficient of ane man; wheras his valuation Is only two hundred punds, And the valuation for one man Is twe Thousand punds and he not a leader and his Complement however was full as appears by the Collectors letters Declareing that the pursuers part of the Levie was Completed Wherby the fornamed persones and each of them are actors guilty airt and part of ane manifast ryot and oppressione, and ought not only to be severly punished in ther persones and goods to the teror of others but the quartering in the mean time Ought to be Discharged And Anent the Charge given to the saids defenders To have Compeired personally before the saids Lords at ane Certaine day now bygone To have answered to the grounds of the above Complaint, And to have heard and Seen Such order and Course taken theranent as appertaines under the paine of rebellion etc As in the principall letters or Lybell of Complaint and executiones therof raised in the said matter at more5 Lenth is contained The saids letters or Lybells of Complaint being this day Called in presence of the saids Lords of his Majesties privy Councill They heirby Admitt Protestatione for not insisting against the said Hew Mcguffock of Rusco And modifies the soume of Ten punds scots of protestation money to be payed be the said pursuer to the said defenders And Ordaines letters at the defenders instance against the pursuer for payment thereof.

1. NRS, PC2/26, 40v-41v.

2. Sic.

3. Sic.

4. Sic.

5. An illegible word scored out here.

1. NRS, PC2/26, 40v-41v.

2. Sic.

3. Sic.

4. Sic.

5. An illegible word scored out here.

Judicial Proceeding, 26 November 1695, Edinburgh

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Edinburgh Tusday the 26th day of November 1695

D1695/11/271

Judicial Proceeding

Lumsdean of Auchindores bill refused

Anent the petition given into the Lords of his majesties privy Councill be John Lumsden of Auchindore now prisoner within the Tolbooth of Aberdeen Shewing That Wheras ther was a proces intented against the petition and before the Commissioners of Justiciary in the North district at the instance of the Lord Forbes and his tennents for his alledged accessione and hounding out of highland robers who came to the lands of March-marr and Westsheills and Caried away the wholl goods and Catle then in the tenents possession In which proces the Judges did proceid most Sumarly and Impartially In so far as they not only Decerned the petitioner to make payment of the Soume of One Thousand five hundred Seventie five pund as the value of the goods But also Decerned him in the Soume of Thrie hundred Nyntie thrie pund for damnadges Two Thousand merks of expences Thrie hundred and threttie pund to be payed to the Fisscall of Court and Seventie Seven pund Eight shilling for the wittnesses expences Upon which decreet the petitioner being Charged with horning he presented a bill of Suspension to the saids Lords and the samen being answered be the Chargers the saids Lords without Calling of parties were pleased to modifie the expences and restrict the Same to One Thousand punds Scots, But therafter the petitioner being ane Landed gentleman And Finding that his honor was more concerned then his intrest thinking it the basest of Crimes to be guilty of any Such villany as the hounding out of robbers upon his Nighbours intrests which deserves the Severest punishments He Therfore made a Second applicatione to the Saids Lords desireing that upon the grounds therin represented they would reconsider the former interloquitor and allow his procurators a hearing in their oun presence, But the Councill being Adjurned that Same day the bill was given in and throw the Multitude of Bussines the same not being read The persewers extracted their Decreet and be vertue of the dilligence upon the first decreet the petitioner was apprehended and incarcerat within the Tolbooth of Aberdein wher he now remaines, And he being Conscious of his oun Innocencie of the cryme for which he Lyes incarcerat and being fully resolves to undergoe the greatest hardships rather than Lye under the forsaid Imputation has therfore presumed to offer to the saids Lords a bill of Suspension upon the following most Just and relevant grounds Primo the time he was cited before the Commissioner of Justiciary he neither gott a list of the assyssors or witnesses that were ledd against him wherby he was precluded from his legall and Just objectiones against them Secundo Wheras the crymes Lybelled against the petitioner should have been put to the knowledge of ane assyze, Yet the Judges refused the same pretending that they Restricted the Lybell to a Civill effect Tertio They were so prepostreous even in this that albeit it was urged for the petitioner that Gordonstoune one of the Judges was son in Law to my Lord Forbes at whose instance the process was caried on, And that the Laird of Brodie was father in Law to the master of Forbes, And that thrie of the rest of the Judges were his brothers in Law, Yet this Dilator was repelled, And without allowing any furder debate upon the relevancie of the Lybell the same was admitted to probation Quarto albeit the petitioner offered positively to prove that how soon he heard that the Depredators were in the Countrey he Sent ane express to my Lord Forbes tennents Accquainting them therof, And that he himself dureing that night the depredation was Comitted was with his oun men on purpose to guard his oun goods from the hairship And that the nixt day how Soon he gott nottice that they hade robbed my Lord Forbes his intrest and his men did Concurr with my Lord Forbes Son and tennents And went after the depredators Yet thir most revelant defences for his exculpation were rejected Quinto when the wittnesses were adduced against him he offered him positively to prove That Shaw of Dalnaver was the principall actor And depredator and […] was one of his associats And that they hade threatned him Mischeiff and beside were under a Sentance of Fugitation for the same crime, And Therfore could not have been received And this objection is founded both on the Comon law and on the inviolable practiq of this kingdome Such who were Sorierimmis being presumed to be under the Temptatione of Deponeing Liberally for ther oun vindicatione But more especially was this objection Competent against them in this place Seing they Deponed Spe venie they being Lyable to the law and in reverence of the pursuers, And knowing that the value of the goods and damnadges being recovered they would be Liberat Sexto ther were only five who deponed against the petitioner Two of which were of the depredators as said is and he offers him positively to prove that thrie of them were alibi the time of the depredatione was Comitted being at twentie mylles distance to be from the place of the depredatione for the space of twentie four hours before at the time and after the Comitting of the said Heirship Septimo Dalnavert the principall witnes Cannot deny upon oath, But he advised to raise this proces and promised to furnish probation and to be a probative witnes himself For doeing wherof he was to be indemnified and otherwayes to be gratified and that these promisses were made by the persewers or others in ther name to the saids witnesses Octavo the forsaids haill objectiones at least most of them were proponed before the saids Comissioners and which the Suspender then offered him to prove he hade been allowed ane Exculpation, But all this was hurried over and the relevaincie probatione and all was Considered in one afternoon And the petitioner Decerned in the exorbitant soumes for which he now Lyes in prisone and which are near the value of his estate, And as this procedor was most prepostreous So the petitioner humbly conceaves that the Judges haveing restricted the Lybell to a Civill effect ther was no farder proces Competent before them for albeit Commissioners of Justiciary may decerne In damnadges as the Consequence of a Crime which is proven before them and recognosced by ane assyze, yet it was never heard of that a Criminall Judge Could restrict Criminall processes for robbing and heirship to Simple restrictione of the goods robbed, and therupon Lead a probatione, And Decerned without puting the Criminall to the knowledge of ane inquest And if Such decreits were Sustained the same may be off Dangerous Consequence ther being no precept before the Lords of Session wherin ther are more intricat debates then Spulzies wher oft times the title the relevancie and Competence of the Lybell are letigiously debated and in any case of this Nature before the Comissioners, Albeit iniquity may be Committed, yet the Lords of Session are by the Commission given to the Commissioners of Justiciary Secluded from giveing any redress, and the Commissioners themselves Considering That Civill actiones falls not under ther Cognizance by the Commission Have by a late act in September Last Declaired they will restrict no Criminall process to a Civill effect, nor Decerne restitutione or damnadges till the pannall be Convict and found guilty by ane assyze of the crimes Lybelled against him So that it was humbly conceaved that the designe of the Commission Is that these Judges Should Judge in matters Criminall by puting the pannall (in crimes capitall) to the knowledge of ane Assysse and being found guilty, That then they may Decerne restitution and Damnadges as the Consequence of the guilt Nono the persuers of this process against the petitioner were so deffident of ther getting repairation for their goods and Damnadges that they never attempted to pursue him before the Judge ordinary before whom allenarly this action was Competent but Chosed rather to prosecute it the way and maner above represented, and when the petitioner at first addressed ther Lordships, They used ther outmost indeavors to hinder his getting allowed a hearing in ther Lordships presence wher the petitioner would have Suficiently vindicat himself of any accession to this villany and depredation and have been so maliciouse against him both at that time and ever Since That they Load him as the basest and vilest of Criminalls Resolveing as one and the same time to ruine him in his intrest and Murder him in his fame and reputatione And Therfore humbly Craveing the saids Lords to Consider the premisses and Seing the petitioner Is Content to find Sufficient Caution to reenter himself prisoner in any prison the saids Lords Should appoint, And to remaine ther whill he pay not only what is Contained in the former Decreet But What farder the saids Lords Should modifie incase the petitioner succumb in probation of what is above represented that therfore the saids Lords would pass a suspensione and allow him to be sett at Liberty and Grant him a dilligence for citeing of witnesses for proving his reasones of Suspension As the petition bears The Lords of his Majesties privy Councill having Considered this petition given in to them be the above John Lumsdean of Auchindore with a representation for John Duncan and others of the Lord Forbesses tennents by way of Answer therto and a memoriall anent Auchindores petitione They hereby Refuse the desire of the said John Lumsdean of Auchindore his petition And Refuses to Grant him a Suspensione against the Chargers therin mentioned But Finds the letters at the Chargers instance against him orderly proceided.

Edinburgh Tusday the 26th day of November 1695

D1695/11/271

Judicial Proceeding

Lumsdean of Auchindores bill refused

Anent the petition given into the Lords of his majesties privy Councill be John Lumsden of Auchindore now prisoner within the Tolbooth of Aberdeen Shewing That Wheras ther was a proces intented against the petition and before the Commissioners of Justiciary in the North district at the instance of the Lord Forbes and his tennents for his alledged accessione and hounding out of highland robers who came to the lands of March-marr and Westsheills and Caried away the wholl goods and Catle then in the tenents possession In which proces the Judges did proceid most Sumarly and Impartially In so far as they not only Decerned the petitioner to make payment of the Soume of One Thousand five hundred Seventie five pund as the value of the goods But also Decerned him in the Soume of Thrie hundred Nyntie thrie pund for damnadges Two Thousand merks of expences Thrie hundred and threttie pund to be payed to the Fisscall of Court and Seventie Seven pund Eight shilling for the wittnesses expences Upon which decreet the petitioner being Charged with horning he presented a bill of Suspension to the saids Lords and the samen being answered be the Chargers the saids Lords without Calling of parties were pleased to modifie the expences and restrict the Same to One Thousand punds Scots, But therafter the petitioner being ane Landed gentleman And Finding that his honor was more concerned then his intrest thinking it the basest of Crimes to be guilty of any Such villany as the hounding out of robbers upon his Nighbours intrests which deserves the Severest punishments He Therfore made a Second applicatione to the Saids Lords desireing that upon the grounds therin represented they would reconsider the former interloquitor and allow his procurators a hearing in their oun presence, But the Councill being Adjurned that Same day the bill was given in and throw the Multitude of Bussines the same not being read The persewers extracted their Decreet and be vertue of the dilligence upon the first decreet the petitioner was apprehended and incarcerat within the Tolbooth of Aberdein wher he now remaines, And he being Conscious of his oun Innocencie of the cryme for which he Lyes incarcerat and being fully resolves to undergoe the greatest hardships rather than Lye under the forsaid Imputation has therfore presumed to offer to the saids Lords a bill of Suspension upon the following most Just and relevant grounds Primo the time he was cited before the Commissioner of Justiciary he neither gott a list of the assyssors or witnesses that were ledd against him wherby he was precluded from his legall and Just objectiones against them Secundo Wheras the crymes Lybelled against the petitioner should have been put to the knowledge of ane assyze, Yet the Judges refused the same pretending that they Restricted the Lybell to a Civill effect Tertio They were so prepostreous even in this that albeit it was urged for the petitioner that Gordonstoune one of the Judges was son in Law to my Lord Forbes at whose instance the process was caried on, And that the Laird of Brodie was father in Law to the master of Forbes, And that thrie of the rest of the Judges were his brothers in Law, Yet this Dilator was repelled, And without allowing any furder debate upon the relevancie of the Lybell the same was admitted to probation Quarto albeit the petitioner offered positively to prove that how soon he heard that the Depredators were in the Countrey he Sent ane express to my Lord Forbes tennents Accquainting them therof, And that he himself dureing that night the depredation was Comitted was with his oun men on purpose to guard his oun goods from the hairship And that the nixt day how Soon he gott nottice that they hade robbed my Lord Forbes his intrest and his men did Concurr with my Lord Forbes Son and tennents And went after the depredators Yet thir most revelant defences for his exculpation were rejected Quinto when the wittnesses were adduced against him he offered him positively to prove That Shaw of Dalnaver was the principall actor And depredator and […] was one of his associats And that they hade threatned him Mischeiff and beside were under a Sentance of Fugitation for the same crime, And Therfore could not have been received And this objection is founded both on the Comon law and on the inviolable practiq of this kingdome Such who were Sorierimmis being presumed to be under the Temptatione of Deponeing Liberally for ther oun vindicatione But more especially was this objection Competent against them in this place Seing they Deponed Spe venie they being Lyable to the law and in reverence of the pursuers, And knowing that the value of the goods and damnadges being recovered they would be Liberat Sexto ther were only five who deponed against the petitioner Two of which were of the depredators as said is and he offers him positively to prove that thrie of them were alibi the time of the depredatione was Comitted being at twentie mylles distance to be from the place of the depredatione for the space of twentie four hours before at the time and after the Comitting of the said Heirship Septimo Dalnavert the principall witnes Cannot deny upon oath, But he advised to raise this proces and promised to furnish probation and to be a probative witnes himself For doeing wherof he was to be indemnified and otherwayes to be gratified and that these promisses were made by the persewers or others in ther name to the saids witnesses Octavo the forsaids haill objectiones at least most of them were proponed before the saids Comissioners and which the Suspender then offered him to prove he hade been allowed ane Exculpation, But all this was hurried over and the relevaincie probatione and all was Considered in one afternoon And the petitioner Decerned in the exorbitant soumes for which he now Lyes in prisone and which are near the value of his estate, And as this procedor was most prepostreous So the petitioner humbly conceaves that the Judges haveing restricted the Lybell to a Civill effect ther was no farder proces Competent before them for albeit Commissioners of Justiciary may decerne In damnadges as the Consequence of a Crime which is proven before them and recognosced by ane assyze, yet it was never heard of that a Criminall Judge Could restrict Criminall processes for robbing and heirship to Simple restrictione of the goods robbed, and therupon Lead a probatione, And Decerned without puting the Criminall to the knowledge of ane inquest And if Such decreits were Sustained the same may be off Dangerous Consequence ther being no precept before the Lords of Session wherin ther are more intricat debates then Spulzies wher oft times the title the relevancie and Competence of the Lybell are letigiously debated and in any case of this Nature before the Comissioners, Albeit iniquity may be Committed, yet the Lords of Session are by the Commission given to the Commissioners of Justiciary Secluded from giveing any redress, and the Commissioners themselves Considering That Civill actiones falls not under ther Cognizance by the Commission Have by a late act in September Last Declaired they will restrict no Criminall process to a Civill effect, nor Decerne restitutione or damnadges till the pannall be Convict and found guilty by ane assyze of the crimes Lybelled against him So that it was humbly conceaved that the designe of the Commission Is that these Judges Should Judge in matters Criminall by puting the pannall (in crimes capitall) to the knowledge of ane Assysse and being found guilty, That then they may Decerne restitution and Damnadges as the Consequence of the guilt Nono the persuers of this process against the petitioner were so deffident of ther getting repairation for their goods and Damnadges that they never attempted to pursue him before the Judge ordinary before whom allenarly this action was Competent but Chosed rather to prosecute it the way and maner above represented, and when the petitioner at first addressed ther Lordships, They used ther outmost indeavors to hinder his getting allowed a hearing in ther Lordships presence wher the petitioner would have Suficiently vindicat himself of any accession to this villany and depredation and have been so maliciouse against him both at that time and ever Since That they Load him as the basest and vilest of Criminalls Resolveing as one and the same time to ruine him in his intrest and Murder him in his fame and reputatione And Therfore humbly Craveing the saids Lords to Consider the premisses and Seing the petitioner Is Content to find Sufficient Caution to reenter himself prisoner in any prison the saids Lords Should appoint, And to remaine ther whill he pay not only what is Contained in the former Decreet But What farder the saids Lords Should modifie incase the petitioner succumb in probation of what is above represented that therfore the saids Lords would pass a suspensione and allow him to be sett at Liberty and Grant him a dilligence for citeing of witnesses for proving his reasones of Suspension As the petition bears The Lords of his Majesties privy Councill having Considered this petition given in to them be the above John Lumsdean of Auchindore with a representation for John Duncan and others of the Lord Forbesses tennents by way of Answer therto and a memoriall anent Auchindores petitione They hereby Refuse the desire of the said John Lumsdean of Auchindore his petition And Refuses to Grant him a Suspensione against the Chargers therin mentioned But Finds the letters at the Chargers instance against him orderly proceided.

1. NRS, PC2/26, 37v-40v.

1. NRS, PC2/26, 37v-40v.

Decreet, 26 November 1695, Edinburgh

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Edinburgh Tusday the 26th day of November 1695

D1695/11/261

Decreet

Decreit Suspending the letters Ewan against Garden and others

Anent the bill of suspension given in to the Lords of his majesties privy Councill be the poor boy William Ewing in Contullich Making Mentione That wher he was Charged with letters of horning to make payment to James Garden of Ballastrin John Gordon of Borland Alexander and Robert Farquharsone now of Bellamair, Alexander Simpson in Brydend of Glentaner Donald Farquharson of Cobltoune William Dundan at the milne of Brace lyne George Lessly at the milne of Dunatie, John Shaw in Bognagugall and Alexander Shaw ther and severall other witnesses of the sum of sixtein shilling scots to each of the saids witnesses as horss men and Eight Shillings Scots to each of them who are footmen per diem And that from the Nynteinth day of November Jaj vic nyntie four to the tenth of December therafter being in all twentie two dayes Conforme to the saids Lords act of the date the […] day of […] Last by past, And that within ane Certaine Short space nixt after the Charge under the paine of rebellion and puting of the petitioner to the horne or paynding their goods therfore most wrongeously and unjustly primo because the Charge of horning given the petitioner and therwith produced under the hand of William Mcfarland messenger is generall and informall Not Condescending how many of the Chargers were horss or footmen nor upon the date of the saids Lords act and when the same was obtained, yea the petitioner Is Charged to make payment to the witnesses in generall whose names Is not exprest in the forsaid Charge of horning As the said Charge instantly would testifie Secundo the forsaid act was pronunced by the saids Lords against the petitioner parte in Andita Not proceeding upon a Citation but upon a Sumar petition Clandestinely given in against the petitioner when he was not within a hundred mylles of the City of Edinburgh For hade the petitioner hade gotten any Citiation or known of any such petition the petitioner would have alledged Likeas he does now alledge that he Cannot be Lyable to pay any expences to the saids witnesses Because ther being ane horrid murder Committed upon the persone of James Ewing the petitioners brother by William and John Masones in Foundarrach the petitioner did therupon Imediatly make application to the Shiref of Aberdeen got them Declared Fugatives and therafter the petitioner haveing apprehended the murderers They were Refined from me by William and John Gordon of Bellamar and not Content therwith the Saids William and John Gardens did Imediatly therafter Sease upon the petitioners poor brother the defuncts goods and geir without any order of Law keept and detaine the petitione prisoner took away the petitioners armes and Committed a great many other attorcious and Illegall acts, and the petitione having pursued them before ther Lordships for So great and manifast acts of oppressione the matter was by the saids Lords of privy Councill Remitted to the Lord Justice Clerk Sir John Maxuerll and others to examine witnesses hinc inde and after report the saids Lords in a full Councill upon the threttein day of December Jaj vic nyntie four years Decerned and Ordained the saids William and John Gardens of Ballamoir to pay to the petitione ane hundreth punds Scots of fyne for defraying the expences he hade been at in the proces and another hundreth pund for ther withdrawing and absenting themselves when the Sentance was pronunceing against them to be declared fugatives, But upon a Second applicatione made by them to the saids Lords they were appointed to Crave pardon upon ther knees Wherby the hundreth punds Decerned for Continuance was Remitted to them, But adhered to that part of the interloquitor appointing them to pay to the petitioner ane hundreth pund And Ordained them to goe to prisone untill it were done As the extract or Just double of the petitioners decreet therwith produced would testifie From all which it Clearly instructed to the saids Lords that the petitioners proces was both relevant and proven against the saids William and John Gardens and they fined upon the accompt of the saids Severall oppressions, And the fyne being but ane hundred pund scots was truly bestowed by the saids Lords for the petitioners own particular trouble and expence in the said proces And the defenders who Succumbed in the action ought in Law equitie and reason and Conforme to the saids Lords Constant Custome been ordained to pay the witnesses expences, And all of them were so Conscious therof That albeit this proces was depending in December Jaj vic nyntie four, yet they never applyed to the saids Lords for expences till June or Jully Last when the matter was then forgott by most part of the saids Lords number and hade the forsaids defences been proponed for the petitioner prima instantia They would certainly have assoylzied the petitioner from the desire of the forsaid petition And being now proponed Secunda instantia It was hoped the saids Lords would receive the Same for this poor boy by way of Suspensione And so the saids Lords might Justly perceive etc And Seing he was not in a Conditione to find Suficient Caution for the forsaid soumes he was Content to discuss the reasones upon the bill before the saids Lords Or Otherwayes that the saids Lords would be pleased to pass this Suspensione without Cautione And Therfore etc the forsaid letters and Charge ought to be Suspended etc And Therfore Humbly Craving the saids Lords would Grant letters for Sumonding the saids Chargers To have Compeired before the saids Lords at ane Certaine day now bygone Bringing with them the forsaid act To have been seen and Considered be the saids Lords And to have heard and Seen the same Suspended upon the said Suspender in all time comeing for the reasones and Causes forsaid and others As in the said bill of Suspension at more length is Contained The Lords of his Majesties privy Councill Having Considered the forsaid bill of suspension given in to them be the said poor William Even in Cantullich against Garden and other witnesses Togither with the verball report of the Committie of privy Councill to whom the same was Remitted They hereby Suspend the letters and Charges raised at the instance of the Chargers against the Suspender Simpliciter upon the said Suspender in all time comeing Reserving allwayes to the Chargers to insist against William and John Gardens of Bellamores elder and younger defenders in the proces wherin the Chargers were cited as witnesses for ther expences as accords in law.

Edinburgh Tusday the 26th day of November 1695

D1695/11/261

Decreet

Decreit Suspending the letters Ewan against Garden and others

Anent the bill of suspension given in to the Lords of his majesties privy Councill be the poor boy William Ewing in Contullich Making Mentione That wher he was Charged with letters of horning to make payment to James Garden of Ballastrin John Gordon of Borland Alexander and Robert Farquharsone now of Bellamair, Alexander Simpson in Brydend of Glentaner Donald Farquharson of Cobltoune William Dundan at the milne of Brace lyne George Lessly at the milne of Dunatie, John Shaw in Bognagugall and Alexander Shaw ther and severall other witnesses of the sum of sixtein shilling scots to each of the saids witnesses as horss men and Eight Shillings Scots to each of them who are footmen per diem And that from the Nynteinth day of November Jaj vic nyntie four to the tenth of December therafter being in all twentie two dayes Conforme to the saids Lords act of the date the […] day of […] Last by past, And that within ane Certaine Short space nixt after the Charge under the paine of rebellion and puting of the petitioner to the horne or paynding their goods therfore most wrongeously and unjustly primo because the Charge of horning given the petitioner and therwith produced under the hand of William Mcfarland messenger is generall and informall Not Condescending how many of the Chargers were horss or footmen nor upon the date of the saids Lords act and when the same was obtained, yea the petitioner Is Charged to make payment to the witnesses in generall whose names Is not exprest in the forsaid Charge of horning As the said Charge instantly would testifie Secundo the forsaid act was pronunced by the saids Lords against the petitioner parte in Andita Not proceeding upon a Citation but upon a Sumar petition Clandestinely given in against the petitioner when he was not within a hundred mylles of the City of Edinburgh For hade the petitioner hade gotten any Citiation or known of any such petition the petitioner would have alledged Likeas he does now alledge that he Cannot be Lyable to pay any expences to the saids witnesses Because ther being ane horrid murder Committed upon the persone of James Ewing the petitioners brother by William and John Masones in Foundarrach the petitioner did therupon Imediatly make application to the Shiref of Aberdeen got them Declared Fugatives and therafter the petitioner haveing apprehended the murderers They were Refined from me by William and John Gordon of Bellamar and not Content therwith the Saids William and John Gardens did Imediatly therafter Sease upon the petitioners poor brother the defuncts goods and geir without any order of Law keept and detaine the petitione prisoner took away the petitioners armes and Committed a great many other attorcious and Illegall acts, and the petitione having pursued them before ther Lordships for So great and manifast acts of oppressione the matter was by the saids Lords of privy Councill Remitted to the Lord Justice Clerk Sir John Maxuerll and others to examine witnesses hinc inde and after report the saids Lords in a full Councill upon the threttein day of December Jaj vic nyntie four years Decerned and Ordained the saids William and John Gardens of Ballamoir to pay to the petitione ane hundreth punds Scots of fyne for defraying the expences he hade been at in the proces and another hundreth pund for ther withdrawing and absenting themselves when the Sentance was pronunceing against them to be declared fugatives, But upon a Second applicatione made by them to the saids Lords they were appointed to Crave pardon upon ther knees Wherby the hundreth punds Decerned for Continuance was Remitted to them, But adhered to that part of the interloquitor appointing them to pay to the petitioner ane hundreth pund And Ordained them to goe to prisone untill it were done As the extract or Just double of the petitioners decreet therwith produced would testifie From all which it Clearly instructed to the saids Lords that the petitioners proces was both relevant and proven against the saids William and John Gardens and they fined upon the accompt of the saids Severall oppressions, And the fyne being but ane hundred pund scots was truly bestowed by the saids Lords for the petitioners own particular trouble and expence in the said proces And the defenders who Succumbed in the action ought in Law equitie and reason and Conforme to the saids Lords Constant Custome been ordained to pay the witnesses expences, And all of them were so Conscious therof That albeit this proces was depending in December Jaj vic nyntie four, yet they never applyed to the saids Lords for expences till June or Jully Last when the matter was then forgott by most part of the saids Lords number and hade the forsaids defences been proponed for the petitioner prima instantia They would certainly have assoylzied the petitioner from the desire of the forsaid petition And being now proponed Secunda instantia It was hoped the saids Lords would receive the Same for this poor boy by way of Suspensione And so the saids Lords might Justly perceive etc And Seing he was not in a Conditione to find Suficient Caution for the forsaid soumes he was Content to discuss the reasones upon the bill before the saids Lords Or Otherwayes that the saids Lords would be pleased to pass this Suspensione without Cautione And Therfore etc the forsaid letters and Charge ought to be Suspended etc And Therfore Humbly Craving the saids Lords would Grant letters for Sumonding the saids Chargers To have Compeired before the saids Lords at ane Certaine day now bygone Bringing with them the forsaid act To have been seen and Considered be the saids Lords And to have heard and Seen the same Suspended upon the said Suspender in all time comeing for the reasones and Causes forsaid and others As in the said bill of Suspension at more length is Contained The Lords of his Majesties privy Councill Having Considered the forsaid bill of suspension given in to them be the said poor William Even in Cantullich against Garden and other witnesses Togither with the verball report of the Committie of privy Councill to whom the same was Remitted They hereby Suspend the letters and Charges raised at the instance of the Chargers against the Suspender Simpliciter upon the said Suspender in all time comeing Reserving allwayes to the Chargers to insist against William and John Gardens of Bellamores elder and younger defenders in the proces wherin the Chargers were cited as witnesses for ther expences as accords in law.

1. NRS, PC2/26, 35v-37v.

1. NRS, PC2/26, 35v-37v.

Sederunt, 26 November 1695, Edinburgh

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Edinburgh Tusday the 26th day of November 16951

D1695/11/252

Sederunt

Lord Chancelor; Earl of Southerland; Earl of Forfar; Viscount Tarbat; Lord Carmicheall; Lord Advocat; Lord Justice Clerk; Lord Fountonhall; Lord Enstruther; Laird of Blackbarony

Edinburgh Tusday the 26th day of November 16951

D1695/11/252

Sederunt

Lord Chancelor; Earl of Southerland; Earl of Forfar; Viscount Tarbat; Lord Carmicheall; Lord Advocat; Lord Justice Clerk; Lord Fountonhall; Lord Enstruther; Laird of Blackbarony

1. NRS, PC2/26, 35v.

2. NRS, PC2/26, 35v.

1. NRS, PC2/26, 35v.

2. NRS, PC2/26, 35v.

Acts, 26 November 1695, Edinburgh

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At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

A1695/11/291

Acts

Act and Recomendatione Captain Haly Spence

Anent the petitione given in to the Lords of his majesties privy Councill by Captain Haly Spence Baillie of Stoalla in Orknay Shewing That about the tyme of the Late happy revolutione out of the petitioners zeall to his majesties interest and service He was amongst the first in Orknay that ouned his majesties Government and severall tymes exposed his persone to hazard for the defence thereof Particularly in June Jaj vjc nynty and four years when the Countrey was lyke to be invaded by Frenches He haveing a Commissione from Collonell Robert Elphingston of Lopnes conveened about ane Hundred and tuenty men and upon his owne propper Charges furnished drums Collours severall guns swords and amunitione and marched with them to Holme where the French Privateers were then lyeing to oppose their Landing men and remained there for severall dayes, and helped to beat them of and saved the Countrey from their Rapine who endeavoured to Land men to plunder robb and distroy the same And further upon all occasiones ever since the revolutione He and his Companie were still the first that were called and have keept guaird in Kirkwall for severall nights all which appears by a declaratione under the Hand of Collonell Robert Elphingstoune and ane other under the Hand of Captain Waddell then present in that Countrey produced with the forsaid petitione Notwithstanding of which services done to King and Countrey He never received so much as reimbursement of his necessar and vast expences and would still be Loath to trouble the said Lords if the straits of his numerous familey did not press him very sore He haveing a wyfe and sexteen Children of whom tuelve are under fourteen years of age and one of2 his eldest sons is in his Majesties Service and seing the said petitioner hes been at great charges and expenses upon the foresaid accompts and that He and his poor wyfe and numerous familey are rendered very desolate and in great want and that the petitioner is still resolved to imploy all the strenth and interest that God shall be pleased to allow Him for his Majesties service and Government as occasione shall offer And therfore Humblie Craveing in maner and to the effect aftermentioned as the said petitione at lenth bears The Lords of his majesties privy councill haveing considered the foresaid petitione given in to them by the said Captain Hary Spence They Hereby recomend to the Lords Commissioners of his majesties Thesaurie To cause payment be made to the said petitioner of the sum of fourty pound sterline for the present supply of his numerous familey and small Children And recomends to his sacred majestie to allow to the said petitioner such yearlie pensione for maintainance of himself and numerous familey as his majestie in his royall wisdome and bountifull Compassione shall think fitt.

At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

A1695/11/291

Acts

Act and Recomendatione Captain Haly Spence

Anent the petitione given in to the Lords of his majesties privy Councill by Captain Haly Spence Baillie of Stoalla in Orknay Shewing That about the tyme of the Late happy revolutione out of the petitioners zeall to his majesties interest and service He was amongst the first in Orknay that ouned his majesties Government and severall tymes exposed his persone to hazard for the defence thereof Particularly in June Jaj vjc nynty and four years when the Countrey was lyke to be invaded by Frenches He haveing a Commissione from Collonell Robert Elphingston of Lopnes conveened about ane Hundred and tuenty men and upon his owne propper Charges furnished drums Collours severall guns swords and amunitione and marched with them to Holme where the French Privateers were then lyeing to oppose their Landing men and remained there for severall dayes, and helped to beat them of and saved the Countrey from their Rapine who endeavoured to Land men to plunder robb and distroy the same And further upon all occasiones ever since the revolutione He and his Companie were still the first that were called and have keept guaird in Kirkwall for severall nights all which appears by a declaratione under the Hand of Collonell Robert Elphingstoune and ane other under the Hand of Captain Waddell then present in that Countrey produced with the forsaid petitione Notwithstanding of which services done to King and Countrey He never received so much as reimbursement of his necessar and vast expences and would still be Loath to trouble the said Lords if the straits of his numerous familey did not press him very sore He haveing a wyfe and sexteen Children of whom tuelve are under fourteen years of age and one of2 his eldest sons is in his Majesties Service and seing the said petitioner hes been at great charges and expenses upon the foresaid accompts and that He and his poor wyfe and numerous familey are rendered very desolate and in great want and that the petitioner is still resolved to imploy all the strenth and interest that God shall be pleased to allow Him for his Majesties service and Government as occasione shall offer And therfore Humblie Craveing in maner and to the effect aftermentioned as the said petitione at lenth bears The Lords of his majesties privy councill haveing considered the foresaid petitione given in to them by the said Captain Hary Spence They Hereby recomend to the Lords Commissioners of his majesties Thesaurie To cause payment be made to the said petitioner of the sum of fourty pound sterline for the present supply of his numerous familey and small Children And recomends to his sacred majestie to allow to the said petitioner such yearlie pensione for maintainance of himself and numerous familey as his majestie in his royall wisdome and bountifull Compassione shall think fitt.

1. NRS, PC1/50, 270-1.

2. The word ‘my’ scored out here.

1. NRS, PC1/50, 270-1.

2. The word ‘my’ scored out here.

Order, 26 November 1695, Edinburgh

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At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

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Order

Continuatione of the Duke of Gordon’s Confynment

The Lords of his Majesties privy Councill Considering that the Duke of Gordon is at Liberty by his majesties Command upon baill of tuo thousand pound sterline That He shall remaine confyned within the toune of Edinburgh and four myles about the same and reenter the Castle of Edinburgh upon the first of december next and in the meantyme to live peaceablie They Hereby continow his Grace’s confynment untill the first day of January Jaj vjc nynty and sex years In respect he hes given new bond and found the Earle of Forfar and the Viscount of Kenmuir Cautioners in the first bond Cautioners therein That He shall remaine Confyned within the toune of Edinburgh and four myles about the same and not goe without the bounds of his confynement And that He shall reenter his persone prisoner within the Castle of Edinburgh upon the said first day of January Jaj vjc nynty and sex years And in the meantyme That He shall live peaceably within the bounds of his said Confynement And that He shall live peaceably under and with all submisione to the present Government of his majestie King William and that He shall not act consult nor contryve any thing in prejudice thereof nor converse or correspond with any Rebells and that He shall appear before the said Lords when called for under the penalty of two thousand pound sterling in case He shall transgress in any pairt of the premisses and upon2 Recept of this new bond appoynts the former to be given up.

At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

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Order

Continuatione of the Duke of Gordon’s Confynment

The Lords of his Majesties privy Councill Considering that the Duke of Gordon is at Liberty by his majesties Command upon baill of tuo thousand pound sterline That He shall remaine confyned within the toune of Edinburgh and four myles about the same and reenter the Castle of Edinburgh upon the first of december next and in the meantyme to live peaceablie They Hereby continow his Grace’s confynment untill the first day of January Jaj vjc nynty and sex years In respect he hes given new bond and found the Earle of Forfar and the Viscount of Kenmuir Cautioners in the first bond Cautioners therein That He shall remaine Confyned within the toune of Edinburgh and four myles about the same and not goe without the bounds of his confynement And that He shall reenter his persone prisoner within the Castle of Edinburgh upon the said first day of January Jaj vjc nynty and sex years And in the meantyme That He shall live peaceably within the bounds of his said Confynement And that He shall live peaceably under and with all submisione to the present Government of his majestie King William and that He shall not act consult nor contryve any thing in prejudice thereof nor converse or correspond with any Rebells and that He shall appear before the said Lords when called for under the penalty of two thousand pound sterling in case He shall transgress in any pairt of the premisses and upon2 Recept of this new bond appoynts the former to be given up.

1. NRS, PC1/50, 270.

2. One illegible word scored out here.

1. NRS, PC1/50, 270.

2. One illegible word scored out here.

Act, 26 November 1695, Edinburgh

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At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

A1695/11/271

Act

Act for Æneas Mcphersone to the Thesaurie

Anent the petitione given in to the Lords of his Majesties privy Councill by Sir Æneas Mcphersone Advocat Shewing that their Lordships petitioner being in anno Jaj vjc nynty and one years legallie discharged of a Long and tedious imprisonment He did furthwith goe to England and was so unwilling to give the Least offence or ground of suspicione to the Government That he resolved with the first conveniencie to goe to America and Haveing used more then ordinary dilligence to find out some favorable opportunity The said petitioner at lenth entred in contract with a Citizen of London of great quality and substance by which he was to goe to Ponsilvania and Barbadose as Factor to the said Citizen to take possessione in his name of ane Estate of fiftie thousand pound sterline value fell to him in those Countreys by decease of his father and for which by the express conceptione of the foresaid Contract signed sealled and delivered The petitioner had ane Hundred and fifty pound of yearly pensione dureing his aboad and three thousand pound when possest of his Constituents estate by vertue of his ordor But after the petitioner had in all things fitted himself for his voyage and put his goods aboard the good ship called the London The very week the said petitioner was readie to sett saille He was seized and made prisoner by ordor of Sir John Tunchurd upon suspicion of secret practises against the Government and that the said petitioner was goeing to France as was then maliciously suspected by some of his enemies But notwithstanding the foresaid contract was found amongst the petitioners papers the tyme he was seized (which per se was sufficient to evacuat these groundless Calumnies) and that the petitioner Had in Course of Law taken out a habeas corpus yet upon a new representation to the Late Queen (2the King being in Flanders That ther was a lybell of high treasone raised and served against the petitioner in this Countrey at the instance of his majesties advocat The petitioners habeas Corpus bill was stopt and he himself sent prisoner to Scotland aboard one of his majesties ships of warr whereby the said petitioner hes not only endured a long and griveous imprisonment as it was well know’n to the said Lords but is lykewayes disappoynted of a fyne and Creditable opportunity he had to make his fortune and provyde for his numerous familey and therfore humblie Craveing in maner and to the effect aftermentioned as the said petition bears The Lords of his majesties privy Councill haveing considered the said petitione given in to them by the above named Sir Æneas Mcphersone They hereby recomend to the Lords Commissioners of his Majesties Thesaurie To cause payment be made to the said petitioner of the sum of thretty pound sterline of his majesties Charity as a viatick for transporting himself and his familey to some forraigne Countrey In respect the said petitioner hes inacted himself in the books of privy Councill That he shall depairt furth of his majesties Dominions to some forraigne Countrey how soone soever he shall receive the foresaid money and not returne againe within the same without the King or Councills Licence for that effect

At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

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Act

Act for Æneas Mcphersone to the Thesaurie

Anent the petitione given in to the Lords of his Majesties privy Councill by Sir Æneas Mcphersone Advocat Shewing that their Lordships petitioner being in anno Jaj vjc nynty and one years legallie discharged of a Long and tedious imprisonment He did furthwith goe to England and was so unwilling to give the Least offence or ground of suspicione to the Government That he resolved with the first conveniencie to goe to America and Haveing used more then ordinary dilligence to find out some favorable opportunity The said petitioner at lenth entred in contract with a Citizen of London of great quality and substance by which he was to goe to Ponsilvania and Barbadose as Factor to the said Citizen to take possessione in his name of ane Estate of fiftie thousand pound sterline value fell to him in those Countreys by decease of his father and for which by the express conceptione of the foresaid Contract signed sealled and delivered The petitioner had ane Hundred and fifty pound of yearly pensione dureing his aboad and three thousand pound when possest of his Constituents estate by vertue of his ordor But after the petitioner had in all things fitted himself for his voyage and put his goods aboard the good ship called the London The very week the said petitioner was readie to sett saille He was seized and made prisoner by ordor of Sir John Tunchurd upon suspicion of secret practises against the Government and that the said petitioner was goeing to France as was then maliciously suspected by some of his enemies But notwithstanding the foresaid contract was found amongst the petitioners papers the tyme he was seized (which per se was sufficient to evacuat these groundless Calumnies) and that the petitioner Had in Course of Law taken out a habeas corpus yet upon a new representation to the Late Queen (2the King being in Flanders That ther was a lybell of high treasone raised and served against the petitioner in this Countrey at the instance of his majesties advocat The petitioners habeas Corpus bill was stopt and he himself sent prisoner to Scotland aboard one of his majesties ships of warr whereby the said petitioner hes not only endured a long and griveous imprisonment as it was well know’n to the said Lords but is lykewayes disappoynted of a fyne and Creditable opportunity he had to make his fortune and provyde for his numerous familey and therfore humblie Craveing in maner and to the effect aftermentioned as the said petition bears The Lords of his majesties privy Councill haveing considered the said petitione given in to them by the above named Sir Æneas Mcphersone They hereby recomend to the Lords Commissioners of his Majesties Thesaurie To cause payment be made to the said petitioner of the sum of thretty pound sterline of his majesties Charity as a viatick for transporting himself and his familey to some forraigne Countrey In respect the said petitioner hes inacted himself in the books of privy Councill That he shall depairt furth of his majesties Dominions to some forraigne Countrey how soone soever he shall receive the foresaid money and not returne againe within the same without the King or Councills Licence for that effect

1. NRS, PC1/50, 268-70.

2. Closing bracket missing.

1. NRS, PC1/50, 268-70.

2. Closing bracket missing.

Act, 26 November 1695, Edinburgh

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At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

A1695/11/261

Act

Act George Cumine

Anent the petitione given in to the Lords of his Majesties privy Councill by George Cumeing prisoner in the Tolbooth of Edinburgh Shewing That where he being indicted at the instance of his majesties Advocat and Captaine Stevensone one of the Captains in the Lord Lindsays Regiment for the Slaughter of Patrick Falconer ane Irishman a Souldier in the said Captains company And the indictment being found relevant and admitted to probatione the petitioner was found guilty by the assyse of manslaughter and thereupon received the sentance of death to be execute the eighteen day of December next as to which he Humbly represents with all due submissione to the Sentance That the true matter of fact was That he and the three young men his Comerads returning from the Countery in the beginning of September Last, when2 they came to the West Port about nyne of cloak at night the petitioner stept asyde to call for his cloak at a house where he had Left it when he went out of Toune And his three Comerads waiting for him on the street Three Souldiers (3whereof the said Patrick Falconer was one passed by them and being by them asked what a cloak it was he heared them answere his Comerads rudelie upon which the petitioner gave the souldiers some opprobrious words, which (far by his designe) did so irritate them That two of them immediatlie drew their Baganots and passing by the said petitioners three Comerads with their baganots drawn advanced towards the petitioner which moved him when they were within the lenth of his sword to draw the same and so we were engadged till one of his Comerads came up and disarmed one of the Souldiers But Falconer the defunct continowing to assault the said petitioner till He received many blows and halks yet to be seen upon the small sword he had in his hand he received a wound in the bodie and dyed the next day By all which it is evident that what happned was so far from any precogitate malice that he had not so much as the least knowledge of the persone And though in the petitioners unhappy folly he might have uttered some ill words too usuall on such occasiones yet it was a hard unequall and violent returne to come upon the petitioner standing out of the way in the night seasone with two drawn baganots and that if the defunct had not been obstinat in attacking4 petitioners lyfe his lyfe had never suffered But acknowledging in the first place the righteous judgement of God and professing againe all due submissione to the sentance past against him he is far from makeing any defence but doe intirely throw himself upon the said Lords gratious and equitable compassione The petitioner is a young man whose former lyfe and way was never knowen to be offensive and the rise of this quarrell was only unfortunate folly and the circumstances of his case were so convinceing even to Captaine Stevensone and the rest of the officers of the Regement That the Captain went to his majesties Advocat before the tryall and consented for his part the dyet should be deserted And the petitioner is perswaded That his majesties Advocat5 Thought that a matter of blood could not be past without a Tryall yet both he and the Lords of Justiciary and his assysers are fully satisfied that the petitioners Case and circumstances deserve the mitigatione of their Lordships Compassion and therfore humbly Craveing in maner and to the effect aftermentioned as the said petitione bears The Lords of his majesties privy Councill haveing considered the said petitione given in to them by the said George Cumeing with another petitione given in to them by the said Captaine Robert Hamilton Captaine in Collonell John Buchans Regiment in Flanders with the said George Cuming his consent wryten upon the said petitione They Hereby change the sentence of death pronounced by the Lord Justice Clerk and Lords Commissioners of Justiciary against the said George into Banishment and the said Lords doe Hereby banish the said George Cuming furth of this Kingdome And ordaines the magistrats of Edinburgh and keeper of their Tolbooth to sett the said George furth thereof and delyver him to the said Captaine Robert Hamilton to be carried aboard by him as a Souldier in his majesties service upon the Captaines recept of him and discharges the magistrats of Edinburgh and all others quhomsoever from putting the foresaid sentance of death into executione against the said George In respect the said George Coming hes enacted himself in the books of privy Councill That He shall depart furth of his majesties Dominions and shall goe aboard with the said Captaine Hamilton as a souldier in his majesties service and that he shall never returne within his majesties dominions under the paine of haveing the former sentance of death put to executione against him without mercie sic subscribitur Twerdale Southerland Forfar Tarbat Carmichaell6 James Stueart John Lauder Adam Cockburne W Anstruther Archibald Murray.

At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

A1695/11/261

Act

Act George Cumine

Anent the petitione given in to the Lords of his Majesties privy Councill by George Cumeing prisoner in the Tolbooth of Edinburgh Shewing That where he being indicted at the instance of his majesties Advocat and Captaine Stevensone one of the Captains in the Lord Lindsays Regiment for the Slaughter of Patrick Falconer ane Irishman a Souldier in the said Captains company And the indictment being found relevant and admitted to probatione the petitioner was found guilty by the assyse of manslaughter and thereupon received the sentance of death to be execute the eighteen day of December next as to which he Humbly represents with all due submissione to the Sentance That the true matter of fact was That he and the three young men his Comerads returning from the Countery in the beginning of September Last, when2 they came to the West Port about nyne of cloak at night the petitioner stept asyde to call for his cloak at a house where he had Left it when he went out of Toune And his three Comerads waiting for him on the street Three Souldiers (3whereof the said Patrick Falconer was one passed by them and being by them asked what a cloak it was he heared them answere his Comerads rudelie upon which the petitioner gave the souldiers some opprobrious words, which (far by his designe) did so irritate them That two of them immediatlie drew their Baganots and passing by the said petitioners three Comerads with their baganots drawn advanced towards the petitioner which moved him when they were within the lenth of his sword to draw the same and so we were engadged till one of his Comerads came up and disarmed one of the Souldiers But Falconer the defunct continowing to assault the said petitioner till He received many blows and halks yet to be seen upon the small sword he had in his hand he received a wound in the bodie and dyed the next day By all which it is evident that what happned was so far from any precogitate malice that he had not so much as the least knowledge of the persone And though in the petitioners unhappy folly he might have uttered some ill words too usuall on such occasiones yet it was a hard unequall and violent returne to come upon the petitioner standing out of the way in the night seasone with two drawn baganots and that if the defunct had not been obstinat in attacking4 petitioners lyfe his lyfe had never suffered But acknowledging in the first place the righteous judgement of God and professing againe all due submissione to the sentance past against him he is far from makeing any defence but doe intirely throw himself upon the said Lords gratious and equitable compassione The petitioner is a young man whose former lyfe and way was never knowen to be offensive and the rise of this quarrell was only unfortunate folly and the circumstances of his case were so convinceing even to Captaine Stevensone and the rest of the officers of the Regement That the Captain went to his majesties Advocat before the tryall and consented for his part the dyet should be deserted And the petitioner is perswaded That his majesties Advocat5 Thought that a matter of blood could not be past without a Tryall yet both he and the Lords of Justiciary and his assysers are fully satisfied that the petitioners Case and circumstances deserve the mitigatione of their Lordships Compassion and therfore humbly Craveing in maner and to the effect aftermentioned as the said petitione bears The Lords of his majesties privy Councill haveing considered the said petitione given in to them by the said George Cumeing with another petitione given in to them by the said Captaine Robert Hamilton Captaine in Collonell John Buchans Regiment in Flanders with the said George Cuming his consent wryten upon the said petitione They Hereby change the sentence of death pronounced by the Lord Justice Clerk and Lords Commissioners of Justiciary against the said George into Banishment and the said Lords doe Hereby banish the said George Cuming furth of this Kingdome And ordaines the magistrats of Edinburgh and keeper of their Tolbooth to sett the said George furth thereof and delyver him to the said Captaine Robert Hamilton to be carried aboard by him as a Souldier in his majesties service upon the Captaines recept of him and discharges the magistrats of Edinburgh and all others quhomsoever from putting the foresaid sentance of death into executione against the said George In respect the said George Coming hes enacted himself in the books of privy Councill That He shall depart furth of his majesties Dominions and shall goe aboard with the said Captaine Hamilton as a souldier in his majesties service and that he shall never returne within his majesties dominions under the paine of haveing the former sentance of death put to executione against him without mercie sic subscribitur Twerdale Southerland Forfar Tarbat Carmichaell6 James Stueart John Lauder Adam Cockburne W Anstruther Archibald Murray.

1. NRS, PC1/50, 266-8.

2. The word ‘we’ scored out here.

3. Closing bracket missing.

4. The word ‘my’ scored out here.

5. The word ‘that’ scored out here.

6. The phrase ‘John Laud.’ scored out here

1. NRS, PC1/50, 266-8.

2. The word ‘we’ scored out here.

3. Closing bracket missing.

4. The word ‘my’ scored out here.

5. The word ‘that’ scored out here.

6. The phrase ‘John Laud.’ scored out here

Warrant, 26 November 1695, Edinburgh

Posted on by

At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

A1695/11/251

Warrant

Warrand to the Clerks of Councill to wryte to Mr Hamilton in Ireland anent the Ship belonging to Fort William

The Lords of his majesties privy Councill doe hereby appoynt any of their Clerks to wryte to Master William Hamilton wryter to the Signet presently at Ireland To cause put the Ship called the William and Mary which belonged to Fort William into the possessione of such of the seamen belonging to that ship as are in that place And ordor these seamen to saill the said Ship to Newport Glasgow and to get others joyned to them if they be not sufficient to saill it themselves There to lye till farder ordor And that the said Mr Hamilton take such security of these persons to whom the said Ship shall be Committed as they are able to give That they shall saill the said Ship to the said port and make her furthcomeing for the use of the said Garisone

At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years

A1695/11/251

Warrant

Warrand to the Clerks of Councill to wryte to Mr Hamilton in Ireland anent the Ship belonging to Fort William

The Lords of his majesties privy Councill doe hereby appoynt any of their Clerks to wryte to Master William Hamilton wryter to the Signet presently at Ireland To cause put the Ship called the William and Mary which belonged to Fort William into the possessione of such of the seamen belonging to that ship as are in that place And ordor these seamen to saill the said Ship to Newport Glasgow and to get others joyned to them if they be not sufficient to saill it themselves There to lye till farder ordor And that the said Mr Hamilton take such security of these persons to whom the said Ship shall be Committed as they are able to give That they shall saill the said Ship to the said port and make her furthcomeing for the use of the said Garisone

1. NRS, PC1/50, 266.

1. NRS, PC1/50, 266.

Sederunt, 26 November 1695, Edinburgh

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At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years1

A1695/11/242

Sederunt

Lord Chancellor; Earl of Southerland; Earl of Forfar; Viscount Tarbat; Lord Carmichaell; Lord Advocat; Lord Justice Clerk; Lord Fountonhall; Lord Enstruther; Laird of Blackbarrony

At Edinburgh tuesday the tuenty sexth day of November Jaj vjc nynty and fyve years1

A1695/11/242

Sederunt

Lord Chancellor; Earl of Southerland; Earl of Forfar; Viscount Tarbat; Lord Carmichaell; Lord Advocat; Lord Justice Clerk; Lord Fountonhall; Lord Enstruther; Laird of Blackbarrony

1. NRS, PC1/50, 266.

2. NRS, PC1/50, 266.

1. NRS, PC1/50, 266.

2. NRS, PC1/50, 266.