Hugo Arnot.

A collection and abridgement of celebrated criminal trials in Scotland, from A.D. 1536 to 1784 : with historical and critical remarks online

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Online LibraryHugo ArnotA collection and abridgement of celebrated criminal trials in Scotland, from A.D. 1536 to 1784 : with historical and critical remarks → online text (page 11 of 31)
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* liament, and would do it on the next.' The in-
dictment added, that the prisoner had sent an ac-
count of the whole to Lord Traquair, to be laid be-
fore the King. Montrose declared, that Lord Ar-
gyle made those speeches in his own tent at the Ford
of Lyon, in presence of the Earl of Athole, and eight
gentlemen, whom he had made prisoners: that one
of these gentlemen was the prisoner, Stewart, and
he oflFered to produce him as his authority.

Immediately on this declaration,. Montrose, dread-

. ♦ Gatbrie's Memoirs^ p. 79.

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kig that th6 prisoner might be tampered with to re- 1641
tract what he had said, to exculpate Argyle, and ^'^'^
leave Montrose in the lurch, sent some gentlemen.
for him. They brought him to Edinburgh on the
SOth o£ May, and next morning he appeared before
the Committee of Estates, and subscribed a declara-
tion, asserting all that Montrose had affirmed in his
name. Argyle, with many oaths, and much passion,
denied the whole; and the prisoner was committed
to custody in Edinburgh castle.

Ip a few days, Lord Balmerino, . and Lord Dury,
one of the Lords of Session, were deputed by the
Committee to examine the prisoner; and, whatever
may have passed at this examination, the prisoner
tiext day wrote a letter to Argyle, exculpating him
from thi^ slanderous speeches aDedged to have beea
made at the Ford of Lyon, acknowledging the whole
to have been a malicious fabrication of his, the pri-
soner's, and declaring further, that, by advice of
Montrose, Lord Napier, and others, he had transmit-
ted an account of it to the King. And to this he ad^
hered, in a declaration before the Committee of
Estates. On the Uth of June, Montrose, Napiei?,
&c. were imprisoned in Edinburgh castle, and, on
the 21st of July, the prisoner, at the instance of the^
• Earl of .Argyle, was tried for his life.

Argyle*s counsel produced in Court an order of *#
Parliament requiring the Justices to proceed in the
trial,* notwithstanding it was contrary to form for
the Court to sit during the meeting of Parliament.
They produced also a commission from Parliamenn:,

*.g,ecords of Justiciary, July 21, 164L

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1641 appointing Lordi^hingstone, tbeL^rdof ^thernie^
^ John Semple, and Sir James Learmonlh of Bakonie,
assessors to the Justices.

The indictment charged the prisoner with th0
slanderous speeches against Argyle, mentioned abov&
It ^80 set forth, that for these offences he had been
already called before a Committee of Parlismieiie,
and had not only acknowledged his having expressed
these calumnies both by word and writing, but also
that they were false and groundless inventions con-
trived by himself: that the Committee had thereupon
pronounced a decree, declaring these speeches to be
false and scandalous: that the prisoner was author of
them: that he had thereby committed the critne of
leasing-making; and, therefore, the Commitlee re*
mitted him to the Justice Court to be punished ac-

The first plea which the prisoner ui^ed was^ ^ that
* the crime of leasing-making consisted iaidehsamg
^ the King, not in slandering the subject/ but this,
Kke his other defences, was fake, or frivok>us, for
the tyrannical statutes extend it to both cases. He
pleaded^ 2dh/y That it behaved the King^s Advocate
to have a special warrant from his Majesty, before he
could grant his concurrence to a prosecution raised
by an individual on account of his private injuries-^
a position altogether repugnant to law and practice.
And, lastbf, healledged. That it was not the Com*
mittee, but the Parliament, that had power to pro-
nounce a decree, an argument altogether frivolous,
seeing that the Justice Court were competent to pro-
nounce a judgement in the case, although no guilt
had been founds either by Committee, or by Parlia-

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m^U The prisonor was much more decisive in the 1641
steps, he took against hims^. He repeated before ^''^^
the jury his former confession; and he humbly im-
plored the£arl of Argyk's pardon, and offered to
make every acknowledgement.

The jury found the libel proved, and the Court .
sentenced him to be beheaded at the Cross of Edin.
burgh on the 2Sth of that month, and the sentence
was executed accordingly.

As the prisoner's arguments during the trial were
frivolous^ so his behaviour between the sentence and
its execution betrayed great irresolution* It was al-
le<%ed that he had been induced to take the guilt
upon himself, upon promise of indemnity,* in order
to screen Argyle fron the odious imputation in the
speedi which Montrose had repeated before the Corn-
tee of Estates: t&at Sir ThcHilas Hope adtdsed Ar*
•gyle« that, if thie prisoner was screened from punbh-
.0ient| the wocld would beUeve he had been bribed
to retract his dedaration before the Piuliameat; and,
. therefore^ the prisoner's life was a sacrifice requisite
to Argyle's vindication; and that the prisoner un-
derwent the most violent conflict of passions, upon
Sndiog, that, by his own false testimony, he bad
been outwitted of his life. Be this a$ it may^ it cer-
. taioly shocks us to fiftd a person who took such an
active part in the civil wars o{ Charles L which ter-
. minated in the murder of tke King, and overthrow
of the state, prosecuting unto death a man for re-
porting traiterous speeches of him; and it ought no
kss to warn us against the estabUshing or counte-

. • CWthrie's Memoirs, p. 80. ;

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1641 Dancing iniquitous precedent, since we little knovor
* how soon it may be converted into an engine for our
own destruction. For the son of this very prosecu-
tor fell by an iniquitous sentence on thb very charge

John Nivenj Captain of (he Ship Fortune of London^
far Leastng^fnahing against James Duke of AVmny
and York.

1680 1 HE prisoner was* served with a criminal indict^
^-^^^ meht at the instance of his Majcfsty's Advocate, set-
ting forth, that, by the statutory law, and the pr^*
tice of this realm, leasmg^-making^ the engenderitig
of discord between the King and his people, and the
uttering slanderous speeches to the disturbance of
government, are crimes of a capital nature, yet the
prisoner had been guilty of them,t by failing against
the Duke of Albany and York, the King's brother;
by chargbg him with being in a plot to take
the King's life; with combining with the French
King to invade England; and with coming to Scot^
land on purpose to make a party to introduce Pope-
ry. Frivolous objections to the relevancy of the in-

* In the state trials, there are three prosecutions to be found
for this statutory crime. Those of Lord Ochiltree, Lord Balxne«
rino, and the Marquis of Argyle.

t Records of. Justiciary,* Jilly 15, 1680«

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dictment were urged for the ptssoneff and r^^Ued I680
by the Court-t. "^^

WUUam Ecdes,. writer in Edinburgh) d^posed^
tibat, being in Dysart on tb&day libdled, in company
with the prisoner, and some others, the prisoner in«
quired at the deponent, and the rest of the company,
what stile of reception the Duke of York had met
in Scotland? To this the deponient answered, ' be
' had been received according to his great quality and
^ merit, onrf tiiat he xms ajine Prince;* and the pri-
soner replied, there was not one of ten thousand in
En^ahd who would say so. He added, that the
Duke of York was in a plot to take the King's life,
and had combined with the French • King to invade
Ei^land; but the deponent cannot say whether the
prisoner e:(pressed these words as his own opinion,
tt that of the people of ikigland* The prisoner at
the same time said, no man had a greater regard
than. him for the Duke; that, under his Royal High*
ness's conduct, he had lost part of his blood in his
Majesty's cause; and that he would be ready to ha-
zard liis IHe in the Duke's servic^.

t A very unjust account of this trial is given by Lord Foun-
tainhally in his Decisions, vol. I. p. 108. The prisoner indispu*
tably fell within the tyrannical statutes against leasing making,
an^ there seems to have been no doubt of his having been guilty
of the fact. Fountainhall is deemed a writer of authority. He
was upon the side of law and liberty; but any one who is convers-
ant in the affairs of that period, and who compares the result of
his knowledge wit^ the cases in Fountainhall, must be sensible of^
the extreme partiality of that writer^ a propensity which, in tones
such as those, it was very difficult to. resist. His partiality is the
less surprising* as he appears not to have been untinged with fa-
naticism; and those who have occasion to compare his JoumaU
with the original Records of Justiciary, will see little reason to
compliment him upon his accuracy.

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1660 xbe prboner objected to WiUiam Tarbctt, a waker,
^^^"^^ being received as a witness; but his objections were
repeHed« Tarbett deposed^ that he was accidentally
in Burmifiland, b tlie bduse of Captaia Seaton^ wbare
he fell in company with the prisoner, and two Eng*
nsbaiea, a shipmaster and his mate, and frequently
overheard discourses between them relating to go*
vernii^iH; and be^d the prisoner say, that the Duke
had c^me into Scotland to make a party for intro-^
dudng Popery, ^ but our good old EngUah hearts
* would not suflfer that/

Michael SeatQi^, against whom alao the pris0p|er
urged obj^ctiom which were overrented, depoai;d^
that, in his own how^ m Burotisbiid, i^pon a.Su^'
day in April last, he wae sent, for into the xq^pti
Inhere the prisoner, two English seamen,, and Vf^i
Ham Tarbett, were drinking. He heard Niveo40«l^
the other Englishmen ^waking £jptramg£Bnt€onamn^
wealth languagtiy ind .particularly concerQt]ig.:di0
Duke of York. He could not be positive that the
words were tho&e charged in the indictment, vi«»
that he had come to make a party to introduce Bop&;
ry, but thinks they were to that purpose.

The jury, by a pluralitj/ qfvokes^found tlie prisoner^
gvilty (ifkasing-maMng against the Duke of York.

On the 4th of Augu«, the Court sentenced the
prisoner to be hanged at the Cross of Edinbur^ oa
the 18th; but, on the 6th of that month, the Court,
in consequence of an act of Privy Council, proceed-
ing upon a letter from the King, suspended the exe-
cution till bis Majesty's further pleasure should be
declared; and it does not appear that the sentence
ever was executed.

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John Dickson^ for tlie Murder of his Father.

1 HE prisoner, who was son and heir to John Dick- 1591
scmof Bellchester, on the SOth of April, 1591, was «
tried for the murder of his father^ C9mmitted in the
month of July^ 1588. The criminal record'* con-
tsuns neither the particulars of the murder, nor the
evidence against the prisoner, but only that he was
convicted by a jury, and sentenced to be broke up-
on the wheel at the Cross of Edinburgh^ At this,
period, and long after, the sentences of the Couf t of
Justiciary frequently e:$press no time for their being
carrif^ into execution; it being customary to take
the convict directly from the Court to the scaf-

• Records of Justiciary, April SO, 1591. Philip Stansfield
was tried for the murder of his father. Sir James Staasfbid, 1688.
See Salmon's State Trials, p. 610.

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Thomas Armstrongs for tfie Murder qfSir John Car-
michaelqfthatllky Warden of the West Marches^

1601 1 HE uncertain and fluctuating Uinits of two ne^b*
^-"^^ bouring nations, which were always jealous of ^Sach
other, and often hostile, afforded ample field for thfe
depredations of robbers. We find, accordingly, the
Scottish borders infested by clans of banditti, wh?6
transmitted their predatory pursuits from father to
son, like a common profession.' The minute and
troublesome regulations established by the warden of
the English marches, appointing a relief of sentinels,
at every pass, by night and day,* within alargedis^
trict, evince, that the confines of England were no
less infested with thieves and robbers.

Their depredations were carried on upon so ex»
tensive a scale, and exercised by such numerous
bands, as enabled their leaders to live in power and
affluencej and sometimes required the whole* execu-
tive force of the state to crush those robbers. From a
statutory prohibition! against persons bringing Scot^

* Bishop of Carlisle's Border Laws, p. 14«7, et scq.
f James VI. Pari, 11th, chap. 101,

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iish or English HUeves in their ampany to his Majes- 1601
tjf^s Court J or to the city of Edinburgh, it appears, that
as little discredit had attended their profession, as if
they had been plunderers of the E^st. In the reign
af James V. their robberies had arisen to so daring a
height, that the King, with a military force of about
8,000 men, pitched his camp on the banks of the ri-
ver Esk;, in order to check these depredations*^
Even thb mighty force was not thought sufficient,
without the aid of stratagem^ nay of fraud, to the
apprehending of those robbers, whose extirpation
could alone restore peace to the borders. Joimnie
ArTn^trangyihe captain of this lawless band, kept bis
reudence ,at Gitoockie,t on the river Esk, between.
Langholm und Carlisle, where he lived the terror of
the i;«ighbourbood: and th^ English borders, fqr
V/myy miles, paid him tribute. Being seduced by
the spies of the Court, on the pledge of public faitb^,
he appeared before the King^ attended by fifcy horse*
men, who hadjaid aside their hostile armour for the
splendid array of a tournament. They were thrown
into prison; jforty-seven ofthe^ finished a life of ra-
pine and bloodshed upon growing trees; and one of
them atoned for his signal cruelties in the flames —*
Thus, by one act, public faith was broken, and pub*
lie peace was restored.
In the. minority of Queen Mary, and of her son>

* Baclianani opera Ruddlmanni, v. L p. 272.; Leslie de Rc!>-
Gest. Scot, Romae, 167S, p. 432.; Ballad of Johiinie Atniitran^,
Scottish Songs, Edin. 1776, v. !• p. 13.

f The ruins of Gilnockie are still to be seen about three miles
south of Langholm; the lands are now the property of the Duke^
of Bucclcugh.

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1*8 HftJRDER.

KOI and amidst the convidftions of the Reformation^ the
^''^'^ weeds which had taken sudi deep root ia tlk^ bor-
ders, and which James V. had encteavoured'to etadi-
cate, mtist necesgarily have sprnng up afresh, ^hen
^ueen Mary helda Justioe-eyre at Jedburgh»* the ra-
vages of a troop of banditti in liddisdale made^it re-
quisite for^hw to dispatch the Earl of Bothwe^l, with
a military force, to suppress these disorders. The rob-
bers gave the Earl battle, wounded him dangerous-*
ly, and repulsed his followers: and the attention
which the Queen showed him upon this occasion,
excited the jealousy of her husband, and attracted
the obloquy of her people.

Thomas Armstrong, the prisoner, was tried before
the Court of Justiciary, at Edinburgh, on the 14th
of November, 1601, for the murder of Sir John Car-
michael of tfuit Ilkyf warden of the west marches.
In die indictment which was raised against him by
Thomas Carmichael of Eddrem, the prosecutor, bro-
ther to the deceased, it was set forth, that the piri*
soner, his father, and matny border-thieves and trai-
tors, had assembled, of a Sunday, in the month of
June, 1600,^^ the purpose qf playing atfoothdL
That, being informed Sir Joha Carmichael was to
hold a Court next day at Lochmaben, they devised
his murder. Accordingly, the prisoner, and twenty
accomplices, all completely armed, way-laid the de-
ceased next morning, and murdered him as he was
going to the Court, by shooting him through the

* BuchaRani, op. vol. L p, S48.; Scott's Hist, of Scotland, p,
f Roc- of Just. 14th Not. 1601.

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-f The>pri»oncr bcbg c<Mivicl«drby a jury, waa sen- leoi
fenced to be taken to th» Grdte of Edinburgh, his ^^^^
r%ht hs^dfo be struck frcxn his arm, then to be
* llMged ok a gibbet dli he be dead^ and his body to
te taken to the gallows on the Borough-muir, and
-huttg in iron chiains. This is the first instance I know
of in Scotland, of the body of a malefector being
hiing in chains. Adie Seot/^ one of the prboner's
aciGomplices, was at the same time condemned to be

Alister Macgregor qfGlenstra^ Laird qfMacgregor^
for Slaughtering the Laird ofLus^s Friends^ and
\ plundering H^s Lands.f

1 HIS trial, and the subsequent proceedings, reliat*
ing to the clan Gregor, afford the most characteristic
evidence of the barbarous state of the Highlands in
tht>se times, of the lawless manners of the people,
^ad despicable imbecility of the executive arm.
, The mmes with which the prisoner was charged,
resemble more the outrage and desolation of war,
than the^ guilt of a f^lon. He was accused of having

* There was hanged along with tbefemous Johnnie jfrmsirangf
one of his accomplices, ^dam Scol of TuMelaw, commonly called
•KiV?g of the Borders.

t Rec, of Jast. 20th January, leo*; Faculty MSS. vol. I. p.^
2H, 215, 35a 503.; Cockburne's MSS. p- 78, ^^6.


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M(M conspirod the destruction of the n»meof CkdquJiOQD,
^""^^ its friends and allies, and the plunder pf th^ lands of
Luss; pf having, on the 7th of February pi^eceding,
invaded the lands pf Sir Alexander Col^uhoun of •
I^xiss, with a body of 400 men, icomposed partly of
his owp clan, and pf the clanCaxneron,, and of law-r
less thieves and robbers, equipped in arms, and drawi^
up on thejffeW qf Xcw/zor, in battle array: of having
fought with Sir Alexander, who, being authorised by
a warrant from the Privy Council, had conyocated
his friends and followers to resist this lawjess host:
of having killed about J 40 of Sir Alexander's men,*
most of them in cold blood after they were made
prisoners: of having carried off 80 horses, 600 cows,
and 800 sheep; and of burning houses, corn*yards^
&c.t '. ■ -

A jury of landed gentjeniep of most respectable
family sat upon the prisoner. They were, Sit Tho«

* There Is mentioned among the sl^o, Tobias Stnolfet^ baiUIc
of Dumbarton, who must have been of the Comity of bis name*
sake the celebrated author. . /

f This was not the first time tliat the Laird of Luss had suf-
fered, from the barbarous depredations of the Macgregors. It
;ippears, that, when the King was at Stirling, on the 21st of De-
cember, ' 1602, the Larrd of Luss presented himsdf before hit
Majesty, and implored his assistance. The Laird was attended
by a number of women, corresponding to that of his foUoweis
who had been killed or wounded, each displaying as a banner^
one of the bloody shirts which his men had on, when killed or
wounded by the Magregdrs. This was about sir weeks before
the engagement on the Field of Lennox. Letter by Thomas FaL
lusdaUl^ burgess of Dumbarton^ dated 19th Decen^^er; 1602, and
addressed to the Right Honourable Alpxandei Colquhouu of
Luss, in the archives of that family.

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mS^texniTt of Gairnrallie, Colin Campbdl of Glen- ^^^4^
urdife, Alej^ander Menzies of Weyme, Robert Ro-
fiertiSQn of Strowan, John Napier^or of Merchistone,
ThSorr^FallusdaiUy biirgess of Dumbarton^. John Hef-
ing'of liethendie, William Stewart, captain of Diim-
bartbii, Harie Drummond of Blair, Charles Blair d
thai:)&k, elder, chancellor of the jury, John Blair
younger of that Uk, John Graham of Knockdonaine^
Moyses Wallace, burgess of Edinburgh, Sir Robert
Crichton of Cluny,* Robert Robertson of Faskallie.
One of these persons, indeed, Thomas FallusdaiU^
burgess of DttmbartoTiy ought to have been kept far
aloof from this jury. He was the special confident
and adviser of the Laird of Luss; and it was in con-
^uence of his suggestion that the Laird made the
parade before his Majesty, at Stirling, with the
bloody shirts, stained with the gore of his followers.
The jury unanimously convicted the prisoner, who,
in consequence of the verdict, was condemned to be
hanged and quartered at the Cross of Edinburgh, his
limbs to be stuck up in the chief towns, and his whole
estate, heritable and moveable,! to be forfeited.
Four of the Laird of Macgregor's followers, who
stood trial along with him, were convicted and con-
demned to the same punishment, eleven on the I7th
of February, and six on the 1st of March; and many
p2\ges of the criminal record are engrossed with the
trials of the Macgregors. It became the object of na-
tional attention to break this lawless confederacy, of

* The Mmrabk Criehtcn was of this femily, and* su he vas
bora A. D. 1551, this gentleman probably was bis brother.

t Real and personal*

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1604 which the object was pointed revenge and indiscri-
^''^^^ ininate plunder, supported by uniform contempt of
the laws, and resistance to the magistrates. A sta-
tute was passed in the year 16S3,t ordaining, that
the whole of the Clan Macgregor which should be
within the realm on the 15th of March thereafter,
should appear before the Privy Council, and give
surety for their good behaviour: that each of the
clan, on arriving at the sixteenth year of his age,
should appear t>efore the Privy Council on the 24ih
of July, and find surety as above required: that the
surname of Macgregor should be abolished, and the
individuals adopt some other: that no ministier should
baptize a child, or clerk or notary subscribe a bond;
or other security, under the name of Macgregor, un-
der paiir of deprivation.

This act was rescinded at the restoration: but it
seems probable that the Macgregors had aggravated
the outrages of a disorderly life by the unpardonable
crime of Jacobitism. The act rescissory was annul-
led, and that against the Macgregors revived, in the
first Parliament of William and Mary. Within these
few years} however, the state of manners and of go-
vernment rendered it proper that this act of pro-
scription should be abolished for ever. The High-
landers, about the same period, were gratified in
certain other trifles for entering with zeal into the
service of the state when others conspired its ruin.
Finally, the forfeited estates were restored to the

t Charles I. Pari. !•; Act 30. Charles XL Pari. 1. Sess. 1.;
Unprinted Acts, William and MarT, Pari. 1. Se&s. 4.; Act 3^*
George III. An^

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heifs of the persons whd were attainted fdr being I604
cobcernedin the rebeffion l745j a measure which ^^^^^
woiald hate been «till more generally grateful, could
goveriiiriemf have bestowed a like degree of favour
on the' representatives of those noble (anniliesy the
descendants of those illustrious ancestors, who un-*
doubtedly were much more innocent, much more
eKcusable, in being concerned in the rebellion 1715*

Patrick Roy MqcgregOTyfor Thejt^ Soming* uilful
» JFire^Rming^ Robbery^ and Murder.

It necessarily resulted from the proscriptive law 1667
mentioned in the former trial, and enforced with ^'^^'^
severe penalties, that such of the clan Gregor as did
not yield obedience, became outlaws; became a des-
perate banditti, who had ho other livelihood than the
booty acqttited by the most crimitial outrages. The
profligate and rapacious habits increased by this act
survived the statute itself, and gave occasion' to the
trial of the prisoner.

Patrick Roy Macgregor, by his activity, courage,
and cruelty, had rendered himself the most celebrat'^
ed of a formidable band of robbers, that long infest-
ed the Highlands*! It consisted of about forty per-

* Sorning was a very common crime in tlid uncivilized part$ of
the Highlands, and well known in our criminal law. It consist-
ed in exacting free quarters by force*

t Faculty MSS. vol. L p. 499, 503. vol. 11. p. 222, 825.
18th January, 166^, 25th March, 1667.


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154 MtrtlDER.:

1667 sons, whose stile bf life had nourished a strength and
^^^^^ activity of body, and a cruelty of disposition, dis*.
played in wanton outrages agunst the feeling of
others, yet accompanied with a fortitude that bore,
without shrinking, the lynching of coid and hunger^
and the torture of the executioner. Ladilan Madn«
tosh, the captain of this band, about a year preced^^
ing, had finished his course in the hands of josticei

Online LibraryHugo ArnotA collection and abridgement of celebrated criminal trials in Scotland, from A.D. 1536 to 1784 : with historical and critical remarks → online text (page 11 of 31)