Clansmen and lawmen: the Kisimul deforcement

Kisimul Castle - picture credit Will

I’ll be returning to the A87 in due course but meanwhile, you know how when you raise a court action, you have to serve the writ on the defender (Scottish word for defendant), right? Nowadays you do that by registered post but in days gone by, the writ had to be handed to the defender in person or, if he wasn’t there, left at his home by a court officer called a messenger at arms.

 

Tulloch Castle Hotel - picture credit Jeremy

In 1694, Sir Donald Bayne of Tulloch (near Dingwall) was suing his near neighbour, Ross of Balnagown (near Tain), chief of clan Ross, “and several of his tenants” (i.e. clansmen) for spuilzie. Pronounced ‘spoylie’, it’s a court action for recovery of stolen property: we’re not told what the property in question was but it’s a reasonable assumption it was cattle. Tulloch applied to the Court of Session for permission to cite (serve) Balnagown edictally, that is by posting the writ on the mercat cross of the head burgh of the shire where the defender lived instead of handing it to him at home. The reason Tulloch gave for craving this indulgence was that: 

“he was content to cite Balnagown himself personally; but for his men, they skulked in the Highlands, ubi erat tutus accessus [‘where there was no safe access’], and that no messenger [at arms] would undertake to execute [serve] it against them.” 

For a 21st analogy of the predicament, imagine you had to deliver a citation to the International Criminal Court at The Hague to a thuggish central African warlord and some of his lieutenants. You might feel you had a reasonable chance of getting away in one piece from the top man’s HQ in some dusty provincial town but going out into the Congolese jungle to beard his machete wielding henchmen? Ugh, no thanks.

Reconstruction of Balnagown Castle as it appeared in the late 17th century - picture credit Balnagown Estate

But the Court of Session was unsympathetic to Tulloch's predicament. Waiving the normal rule would set an undesirable precedent. The messenger at arms would just have to man up and venture into the fastnesses of Ross-shire. The court did admit the possibility of edictal citation upon clansmen “in time of war or outbreaking among them” but the author of the case report clearly thought the ruling unfair considering “there are some parts where, in the most peaceable times, messengers [at arms] dare not adventure amongst them.” I wonder if the nervousness stemmed from events which happened in the Western Isles twenty years earlier. 

In 1664, a Mr McKenzie, merchant in Glasgow, supplied goods worth 85 merks (about £800 in today’s money) to Ruairidh McNeil of Barra on credit. He came to rue that decision because eleven years later he still hadn’t been paid. He hadn’t written the debt off, though, and in 1675 McKenzie assigned it to John McLeod, chief of the McLeods of Dunvegan – in other words McLeod paid McKenzie the 85 merks on the understanding that he (McLeod) would collect it from McNeil. 

The thinking was doubtless that McLeod, as a neighbouring clan chief, would have a better chance of collecting from McNeil than a Glasgow merchant would but if you’re imagining he dealt with it by sending a couple of galleys of his clansmen across to Barra, you’d be wrong. Instead, McLeod did things by the book and obtained a decree (court order) for payment against McNeil and employed a messenger-at-arms called Munro to serve it upon him.

Obviously made of far sterner stuff than the next generation of messenger Bayne of Tulloch couldn’t induce to serve Ross of Balnagown’s clansmen, Munro set out for Barra accompanied by just a notary to make a legal record of proceedings and four men. But upon arriving at Kisimul Castle McNeil was waiting for them and there ensued a fracas which the authorities took such a dim view of that he was prosecuted for the crime of ‘deforcement’. That is obstructing a messenger-at-arms in the course of his duty, a very serious offence considering that a messenger is in theory on the king’s business and therefore obstructing one is tantamount to obstructing the king himself. The charge sheet against McNeil, his henchman Donald Gair alias Brach and several other un-named clansmen read as follows:- 

"Rorie McNeil and the oyer [other] accomplices in hye and proud contempt of his Majesties authoritie did deforce, molest, trouble and persew the said Messenger and notar, and did most cruellie and inhumanlie dischairge foure scoir shott of hagbutts guns and pistolls at them, and threw great stons from the house [castle], whereby they were in hazard of being brained, and so durst not for their lyves approach nearer the house to have left copies at the principall door thereof as use is so they left them on the ground, on being informed of which Rorie McNeil and others to the number of nentie all armed with hagbutts, guns, pistols and other invasive and forbidden weapons, being thieves, robbers, sorners and broken men, did persewe and follow efter the said Messenger and notar to the yle of Fuday [an island off the coast of Barra], and ther did take and apprehand ther persons and caryed them up and down the isle of Fuday and did detain them captives and prisoners ther the space of two dayes still threatening and menacing them, and did most proudlie and insolentlie robb the wreitts and evidents [court documents] they had then in their compayne from them, and in hie contempt of His Majesties authoritie did rend and ryve the samen.” 

How and why the accused were induced to come to Edinburgh to stand trial we’re not told but apparently they did. And we do know that an interpreter had to be provided, presumably because some of the accused or witnesses spoke no English and only Gaelic. 

The prosecution was anxious to establish that McNeil himself had directed the affray. Asked if he had seen ‘the Laird of Barra’ looking out of a window at the top of the tower of the castle while they were being assaulted, one of the messenger’s party, Alexander McLeod, servitor (servant) to the Laird of MacLeod, testified that he had seen “a man with a plaid thrown about his mouth and a young gentlewoman by him, whom he thinks was like to Barra, but he could not be sure”. He was sure he’d seen Donald Gair at the battlements, though. 

Looking over the battlements of Kisimul Castle to the village of Castlebay

Alexander McLeod also testified to what had happened during the escape to Fuday after they’d managed (according to another witness in apparent contradiction of the narration in the charge) to slip a copy of the court papers under the castle gate. They were followed there by a boat with eight men who stole their oars on McNeil’s orders, they’d said. More boats and men came from Barra the next morning. They included the chief’s brother James, his baillie (steward) John McNeil, one Evin McAngus Vic Ian Vic Eachein and Barra’s schoolmaster, Alexander Shaw, who’d been brought along presumably to translate between English and Gaelic. It appeared the newcomers were awaiting further orders from McNeil and Munro’s party was warned that, if they attempted to escape before these were received, they’d be bound ‘neck and heel’. Meanwhile, it was demanded on who’s authority they’d come? The king’s replied Munro, as appeared from the blazon (badge) of office he wore on his breast. Unimpressed, one of the McNeils scoffed that he didn’t know what a blazon was but he was sure there were tinkers (tin smiths) in the neighbourhood who could make something as good. Then, having established that none of the McNeils could read, Munro gave Shaw the schoolmaster another copy of the court papers to read out but John McNeil the baillie tore them up and grabbed hold of the messenger, warning him that, if he’d carried out McNeil’s threats, he’d have broken every bone in his body.

 

Looking from the north end of Barra to Fuday (the island with the beaches) - picture credit Micheal Macintyre

Annoyingly, the report of the trial doesn’t tell us how Munro’s party made good their escape. We know they were detained on Fuday for two days and no doubt the McNeils melted away once satisfied their little show of defiance had given the interlopers enough of a fright. McNeil was convicted and fined £1,000 (about £13,000 today), one third to the King and two thirds to McLeod. Donald Gair was also convicted with his whole moveable property (money, chattels) forfeited half to the King and half to McLeod. Both men were ordered to be kept in prison until they paid up.  Everyone else was acquitted. 

So McLeod ended up doing very well out of his investment of 85 merks in Mr McKenzie’s bad debt - one would like to think he rewarded his servitor Alexander, Munro the messenger and the rest of the party for their trouble appropriately.

Kisimul Castle from the air - picture credit Conor Lawless