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The History of Fettercairn
Chapter XXXIII. —Administration of Justice


IN 1532, as before stated, the town of Kincardine became the capital of the county; and the courts were held there till 1607. But from the want of proper accommodation and the incursions of Highland raiders, an Act of Parliament provided that "the haill lieges within the schire should compeir to perseu and defend in their courtis at Stanehyve in all tyme heirefter." Till 1767, the seat of the court at Stonehaven was a storehouse belonging to the Earl Marischal. The proceedings of the first ninety years are not recorded. Quoting from the " Black-book of Kincardineshire," the second case on record was one from Fettercairn concerning the Sunday morning rioters, noticed in Chapter VI. It is thus reported :—

"1698, 17 March.

"William Clark at Nether Mill of Balmain, Isobel Dunbar his spouse, Jane Clark their daughter, John Bruce, James Aikenhead, Elspet Hampton, and Isobel Walker their servants; Janet Baine At the said mill, Thomas Greig her son ; David Croll in Fettercairn, Elspet Clerk his spouse, Euphemia Croll their daughter; Alexander Scott in Harvistoune-muir, Euphemia Clark his spouse, Margaret •Cook, and Janet Gentleman their servants ; and Mr David Clark, incumbent at the Kirk of Fettercairn, summoned to answer for their unchristian, illegal, and masterful troubling and molesting Mr Francis Melvill, minister at Arbuthnott, upon the 13th February last, in the kirkyard of Fettercairn, being the Sabbath -day, when he was bussied about divine service and declaring the said Kirk of Fettercairn vacant. And putting violent hands on the said Mr Francis, beating and blooding him with stones, rending his clothes, and keeping up by themselves and others in their names, and of their causing commanding and ratihabition of the keys of the said kirk door, and committing wicked insolencies by word and deed in proud and manifest contempt of the Laws of the Kingdom made in the conterar. The saids Isobel Dunbar, Jane Clark, John Bruce, James Aikenhead, Elspet Hampton, Isobel Walker, Janet Baine, Thomas Greig, Elspet Clerk, Euphan Croll, Euphan Clark, Margaret Cook, and Janet Gentleman not compearing were amertiate in pamam contumatiae, ilk one of them in the sum of ten pounds Scots; and also the said Elspet Hampton, Isobel Walker, Janet Baine, Thomas Greig, Margaret Cook, and Janet Gentleman, being again summoned and not compearing were declared fugitives and their goods escheat; and the haill remanent defenders also being again summoned, and deponing in the said matter, by virtue of the Sheriff's Interlocutor, and the matter being continued to this day the sheriff absolved the said William Clark, Isobel Dunbar, Jane Clark, John Bruce, James-Aikenhead, David Croll, Elizabeth Clark, Euphan Croll, and Alexander Scott, from the crime libelled of putting violent hands upon the said Francis Melvill, on the said Sabbath day, or their troubling or molesting him or hounding out any person against him ; and also he amertiated and fined the said William Clark and Alexander Scott, ilk one of them, in the sum of fifty pounds Scot money for harbouring and resetting the persons afternamed, after they had committed the foresaid riot; and ordained the said William Clark with all diligence to apprehend and bring before-the sheriff the said Elspet Hampton and Isobel Walker his servants, Janet Baine his subtenant and her son; and ordained the said Alexander Scott to apprehend and bring to him the said Margaret Cook and Janet Gentleman his servants, under the pain of fifty }K)unds for each of them. The sheriff likewise absolved the said Mr David Clark from troubling and molesting the said Mr Melvill in manner libelled, and yet, nevertheless, amertiated and fined him and the said William Clark, and his father for his interest, he being in family with him, in the sum of fifty pounds Scots, for keeping up the keys of the said kirk door."

The same year on April 7th, Margaret Thow in Knowgreens was summoned "to underly the law, for spoiling, robbing and away-taking a pirn, and breaking a lint wheel belonging to Isobel Carnegie, in Balmanno. Failed to appear, and was declared fugitive."

Two cases of theft more directly connected with the parish are the following:

"1698, July 8. John Cowie in Faskie, summoned to underly the law for stealing, cutting, and away-taking, under cloud of night, several young trees out of the plantation of Faskie, belonging to the Laird of Balmain; And for stealing a certain quantity of bear belonging to the Laird of Thornton. Failed to appear—was declared fugutive, and all his movable goods declared to be escheat."

"1699, 6 February. Katherine Hampton, late servitor to George Austine (Craigmoston), and William Hampton, her little brother, apprehended . . . imprisoned, and confessed that on 27th January William Hampton went in at a window of Lady Urie's house in the night time, did steal away a burden of clothes, napery and sheets, two tailzies of beef, stuff petticoat and gown, and other things—all which her brother gave her out. And that upon the 4th day of January they did steal articles of clothing from William Shepherd's house in Findon; and fowls from the same house, which they carried and sold in Aberdeen. She declared that she served David Milne in Fettercairn last winter, and William Moris in Balmain—and that before that she served David Austin, and kept his child. . . . The Sheriff appointed the boy to return to school, dismissed him in respect of his tender age, and his promising never to do the like again; And ordained the said Katherine Hampton to be scourged through the town, burnt on the shoulder, and to stand in the jougs ane hour."

The cases that follow are those of ordinary theft, for which, at the time, capital punishment was inflicted. On 28th March, 1699, William Edmonstone, "sometime in Faskie, in Bogmuir of Eslie in the Parish of Fettercairn," and his sons, William, Thomas and Robert, " prisoners in the Tolbooth and thiefs hole of Stonehaven," were indicted for a series of thefts committed by breaking overnight into houses up and down over the Mearns. One of these was at Balmakewan, where "they carried off meal, butter and cheese, hiding themselves in the kiln, some amongst the cabers, and some below in the bottom." Another, by opening with a pass key the " house-door of Isobel Croll, at Greenboden, and taking out plaids, clothes and meal." Other counts were of similar thefts: by breaking holes for the younger culprits to enter into the victual houses of Alexander Cowie at the Mill of Halkerton, and of David Melville at Pitgarvie; and at the latter place, by breaking the strong locks of the girnals and carrying off 44 pockfuls of meal, cheese, and a quantity of salt butter, out of the kits standing in the said girnals." The most serious case against William Edmonstone was, that he on his own account went u under the cloud and silence of night to a cot on the Blackburnside, betwixt Rosehill and Inglis-mawdie, and did steal and a way-take two wedders and two ewes at sundry times," whose remains were found in his house at Eslie by Archibald Falconer, macer and daccarer (searcher), Fettercairn. The find consisted of "four mutton bulks, two loaves of grease, and a pockful of wool, with four or five sheeps' heads, and a considerable number of singed sheeps' feet, all which, and several other plenishing, the deponent (Falconer) as Sheriff's-mare carried to his own house." These goods were dealt with by "John Leyesr Balmanie's officer, William Clark in Nethermill, and Alexander Scott in Haiestonemuir." William Edmonstone was likewise accused of another theft of sheep, and of taking them to the house of William Carnegie in Bentienook of Craigmoston, where they were killed and eaten.

At the trial, John Irone deponed that he was in Coldstream, " two or three rigg lengths from Bentienook, and that he had occasion to come to William Carnegie's house upon yool-day, about breakfast time, and that he saw Carnegie himself have in his hand a hot sheep's haggis, which had been taken presently out of the pot," and this evidence was held as proof against Edmonstone. Two of the fifteen "Assizers" were John Christie in Thenstone, and Andrew Watt in Bogmill.

"The 'Assyse' through their Chancellor, all in one^voice, ffinds William Edmonstone guilty of theft, both by his own confessione, and probatine led agt him. The Sheriff-Depute, by the mouth of John Frayser, dempster of court, decerns the said William Edmonstone to be taken to the Gallowhill upon Monday next, the 3rd April instant, betwixt the hours of ane and four in the afternoon, and there to be hanged on a gibbet till ho be dead, and all his moveable goods to be escheat, which is pronounced for doom."

A woman, Agnes Muffat, for similar crimes in Fetteresso, was convicted by the same "Assyse," and hanged on the same gallows. "The Sheriff-Depute appointed their bodies to be buried at the Gallows-foot after they are dead."

In the same year, 1700, John Erskine in Braeside of Balfour, broke overnight into the house of Eobert Allan, his neighbour, and stole a quantity of meal and other goods, "which he did hide in a peat stack in the moss of Arnhall, and which were there found hid by the daccarers; for which theft he was declared a fugitive and outlaw." When apprehended and brought to trial, for that and a few other like offences, he was convicted and sentenced to be hanged at the Gallowhill, and his body buried at the foot of the gallows. Three of the "Assizers" were, George Austin in Craigmoston, John Brown in Dalladies, and John Kinloch in Drumhendry. The last named was Chancellor. At the same time two persons, Alexander Matheson and Christian Welsh his spouse, were tried and convicted of resetting the goods stolen by John Erskine.

"They were sentenced to be scourged through the town of Stonehaven by the hands of the common hangman; and thereafter to be brought back to prison, to be carried fettered by the arms, in company with John Erskine, condemned thief, to the Gallowhill, and there to stay till he be executed, and thereafter to be kicked with the foot of the common hangman; and banishes them this shire thereafter for ever, never to be seen therein under the pain of death."

The story of Randal Courtney's burglary and execution at Fettercairn in 1743 has been already given; but why the sentence was effected at Fettercairn instead of Stonehaven is not recorded.

In 1747 a John Low, at Easthill of Johnstone, stole four oxen and a quey from Andrew Glen in East Mains of Balfour, and to escape punishment offered to give back a certain number of his own cattle. Glen did not accept his offer, whereupon Low agreed to pay one hundred pounds Scots, on condition that the theft should not be reported. This promise failed, and he petitioned the Sheriff to let him off to America, never to return, on the ground that he was "a poor weak creature." The prayer of the petition was granted.

During the first half of the eighteenth century many minor offences and petty thefts were brought before the Baron Court, presided over by Sir Alexander Eamsay. A greater number, however, were taken up and disposed of by the Kirk Session. Cases of slandering and fighting, as well as of Sabbath breaking, came up for settlement; and the offenders had to appear and stand in sackcloth, on one or more Sundays, before the congregation.

For instance, in 1731, "Isobel Ross slandered David Low, servant to Mr Fullerton, weaver, in town of Fettercairn; that he had taken peats from his mother's house to John Tailziour's house," for which she was punished. And in 1741, John Watt in Steelstrath complained that Alexander Straton in Bogside had, in William Wallace's smithy at Hilton of Dalladies, charged him with stealing a boll of malt from the kiln of Robert Wood in Capo, and that to keep silence, he was to give the latter a boll of bear and a boll of oats. The Kirk Session took up the case, heard the parties, and found Straton guilty. They ordered the deliverance to be read from the latron to the congregation the next Lord's day, to discourage backbiting and slandering among the people.

The story of Randal Courtney's burglary and execution at Fettercairn in 1743 has been already given; but why the sentence was effected at Fettercairn instead of Stonehaven is not recorded.

In 1747 a John Low, at Easthill of Johnstone, stole four oxen and a quey from Andrew Glen in East Mains of Balfour, and to escape punishment offered to give back a certain number of his own cattle. Glen did not accept his offer, whereupon Low agreed to pay one hundred pounds Scots, on condition that the theft should not be reported. This promise failed, and he petitioned the Sheriff to let him off to America, never to return, on the ground that he was " a poor weak creature." The prayer of the petition was granted.

During the first half of the eighteenth century many minor offences and petty thefts were brought before the Baron Court, presided over by Sir Alexander Eamsay. A greater number, however, were taken up and disposed of by the Kirk Session. Cases of slandering and fighting, as well as of Sabbath breaking, came up for settlement; and the offenders had to appear and stand in sackcloth, on one or more Sundays, before the congregation.

For instance, in 1731, u Isobel Ross slandered David Low, servant to Mr Fullerton, weaver, in town of Fettercairn; that he had taken peats from his mother's house to John Tailziour's house," for which she was punished. And in 1741, John Watt in Steelstrath complained that Alexander Straton in Bogside had, in William Wallace's smithy at Hilton of Dalladies, charged him with stealing a boll of malt from the kiln of Robert Wood in Capo, and that to keep silence, he was to give the latter a boll of bear and a boll of oats. The Kirk Session took up the case, heard the parties, and found Straton guilty. They ordered the deliverance to be read from the latron to the congregation the next Lord's day, to discourage backbiting and slandering among the people.


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