It was with no little surprise and no little irritation that these English Whig gentlemen discovered how hard it was to turn the forfeited estates into money, or indeed to make any decent progress at all in the business they came about. The first and most vexatious discovery they made was, that there was a code of law and frame of legal procedure north of the Tweed different from what obtained to the south of it. The act was framed with a regard to the practices of English law, which were wholly unknown and could not be recognised in Scotland. Then as to special impediments—first came the Scotch Court of Exchequer, with a claim under an act of the preceding year, imposing a penalty of five hundred pounds and loss of liferents and whole movables on every suspected man who did not deliver himself up before a certain day: all of the men engaged in the late insurrection had incurred this penalty; the affair came under the Exchequer department; and it was necessary to discriminate between what was forfeited by the one act and what was forfeited by the other. |1716.| There was something more obstructive, however, than even the Scottish Exchequer. The commissioners discovered this in the form of a body called the Court of Session, or, in common language, ‘the Fifteen,’ who sat periodically in Edinburgh, exercising a mysterious influence over property throughout the country, and indulging in certain phrases of marvellous potency, though utterly undreamed of in Southern Britain. Here is how it was. The act had, of course, admitted the preferable claims of the creditors of the traitors, and of those who had claims for marriage and other provisions on their estates. On petitions from these persons—in whose reality the commissioners had evidently a very imperfect faith—this Court of Session had passed what, in their barbarous jargon, they called sequestrations of the said estates, at the same time appointing factors to uplift the rents, for the benefit of the aforesaid persons in the first place, and only the commissioners in the second. What further seemed to the commissioners very strange was, that these factors were all of them men notedly disaffected to the Revolution interest, most of them confidential friends, some even the relatives, of the forfeited persons, and therefore all disposed to make the first department of the account as large, and the second as small, as possible. Nor was even this all, for, as had been pointed out to them by some of the Established clergy of Forfarshire, these factors were persons dangerous to the government. For example, Sir John Carnegie of Pitarrow, factor on the Earl of Southesk’s estate, was the man who, on the synod of Angus uttering a declaration in 1712 for the House of Hanover, had caused it to be burned at the head burgh of the shire. John Lumsdain, who was nominated to the charge of the estates of the Earl of Panmure, had greatly obstructed the establishment of the church in the district, and proved altogether ‘very uneasy to presbyteries and synods.’ Suppose the unruly king of Sweden should land on the east of Scotland, there were all the tenants of those large estates in the obedience of men who would hail his arrival and forward his objects!
The general result was, that the commissioners found themselves stranded in Edinburgh, as powerless as so many porpoises on Cramond sands, only treated with a little more outward respect. One proposal, indeed, they did receive (January 1717), that seemed at first to be a Scottish movement in their favour—namely, an offer from the Lord Advocate (Sir David Dalrymple), with their concurrence, to commence actions in the Court of Session for |1716.| determining the claims of creditors; but, seeing in this only an endless vista of vexatious lawsuits, they declined it, preferring to leave the whole matter to be disposed of by further acts of the legislature.[[486]]
Sep. 3.
By virtue of the treason-law for Scotland, passed immediately after the Union, the government this day suddenly removed eighty-nine rebel prisoners from Edinburgh to Carlisle, to be there tried by English juries, it being presumed that there was no chance of impartiality in Scotland. The departing troop was followed by a wail of indignant lament from the national heart. Jacobites pointing to it with mingled howls and jeers as a proof of the enslavement of Scotland—Whigs carried off by irresistible sympathy, and unable to say a word in its defence—attested how much the government did by such acts to retard the desirable amalgamation of the two nations. Under the warm feeling of the moment, a subscription was opened to provide legal defences for the unfortunate Scotsmen, and contributions came literally from all sorts and conditions of men. Even the Goodman of the Tolbooth gave his pound. The very government officials in some instances were unable to resist an appeal so thrilling.
The list includes the names of nineteen of the nobility—namely, Errol, Haddington, Rosebery, Morton, Hopetoun, Dundonald, Moray, Rutherglen, Cassillis, Traquair, March, Galloway, Kinnoull, Eglintoune, Elibank, Colville, Blantyre, Coupar, and Deskford, all for considerable sums. Amongst other entries are the following: Lady Grizel Cochrane, £6, 9s.; the Commissioners of Excise, £7, 10s. 6d.; Mr George Drummond, Goodman of the Tolbooth [Edinburgh], £1; John M‘Farlane, Writer to the Signet, 10s. 9d.; the Merchant Company, £5; the Incorporation of Goldsmiths, £5; the Incorporation of Tailors, £5; the Incorporation of Chirurgeons, £5; the four Incorporations of Leith (aggregate), £53, 16s. 7d.; the Episcopal Clergy of Edinburgh, £8, 8s.; Magistrates of Haddington (and collected by them), £28; Society of Periwigmakers in Edinburgh, £24, 4s. 3d.; Inhabitants of Musselburgh, Inveresk, and Fisherrow, £20; collected by Lady Grizel Cochrane, at Dumbarton, £30; Colonel Charteris’s lady, £5, 7s. 6d.; collected by Lady Grizel Cochrane, from sundry persons specified, £180.[[487]]
1716.
To do the government justice, the rebel prisoners were treated mildly, not one of them being done to death, though several were transported. An attempt was made, two years later, by a commission of Oyer and Terminer sent into Scotland, to bring a number of other Jacobite delinquents to punishment. It sat at Perth, Dundee, and Kelso, without being able to obtain true bills: only at Cupar was it so far effective as to get bills against Lord George Murray, of the Athole family; Sir James Sharpe, representative of the too famous archbishop; Sir David Threipland of Fingask; and a son of Moir of Stonywood; but it was to no purpose, for the trials of these gentlemen were never proceeded with.[[488]]
Oct. 2.
Captain John Cayley (son of Cornelius Cayley of the city of York), one of the commissioners of his majesty’s customs, was a conspicuous member of that little corps of English officials whom the new arrangements following on the Union had sent down to Scotland. He was a vain gay young man, pursuing the bent of his irregular passions with little prudence or discretion. Amongst his acquaintance in Edinburgh was a pretty young married woman—the daughter of Colonel Charles Straiton, well known as a highly trusted agent of the Jacobite party—the wife of John M‘Farlane, Writer to the Signet, who appears to have at one time been man of business to Lord Lovat. Cayley had made himself notedly intimate with Mr and Mrs M‘Farlane, often entertained them at his country-house, and was said to have made some valuable presents to the lady. To what extent there was truth in the scandals which connected the names of Commissioner Cayley and Mrs M‘Farlane, we do not know; but it is understood that Cayley, on one occasion, spoke of the lady in terms which, whether founded in truth or otherwise, infinitely more condemned himself. Perhaps drink made him rash; perhaps vanity made him assume a triumph which was altogether imaginary; perhaps he desired to realise some wild plan of his inflamed brain, and brought on his punishment in self-defence. There were all sorts of theories on the subject, and little positively known to give any of them much superiority over another in point of plausibility. A gentleman,[[489]] writing from Edinburgh the second day after, says: ‘I can hardly offer you anything but matter of fact, which was—that |1716.| upon Tuesday last he came to her lodging after three o’clock, where he had often been at tea and cards: she did not appear till she had changed all her clothes to her very smock. Then she came into a sort of drawing-room, and from that conveyed him into her own bedchamber. After some conversation there, she left him in it; went out to a closet which lay at some distance from the chamber; [thence] she brought in a pair of charged pistols belonging to Mr Cayley himself, which Mr M‘Farland, her husband, had borrowed from him some days before, when he was about to ride to the country. What further expressions there were on either side I know not; but she fired one pistol, which only made a slight wound on the shackle-bone of his left hand, and slanted down through the floor—which I saw. The other she fired in aslant on his right breast, so as the bullet pierced his heart, and stuck about his left shoulder-blade behind. She went into the closet, [and] laid by the pistols, he having presently fallen dead on the floor. She locked the door of her room upon the dead body, [and] sent a servant for her husband, who was in a change-house with company, being about four afternoon. He came, and gave her what money he had in the house, and conducted her away; and after he had absented himself for about a day, he appeared, and afterwards declared before the Lords of Justiciary he knew nothing about it till she sent for him.... I saw his corps after he was cereclothed, and saw his blood where he lay on the floor for twenty-four hours after he died, just as he fell, so as it was a difficulty to straight him.’[[490]]
Miss Margaret Swinton, a grand-aunt of Sir Walter Scott, used to relate to him and other listeners to her fireside-tales,[[491]] that, when she was a little girl, being left at home at Swinton House by herself one Sunday, indisposed, while all the rest of the family were at church, she was drawn by curiosity into the dining-room, and there saw a beautiful female, whom she took for ‘an enchanted queen,’ pouring out tea at a table. The lady seemed equally surprised as herself, but presently recovering self-possession, addressed the little intruder kindly, in particular desiring her to speak first to her mother by herself of what she had seen. Margaret looked for a moment out of the window, and, when she turned about, the enchanted queen was gone! On the return of the family, she spoke to her mother of the vision, was praised for her discretion, and desired to keep the matter from all other |1716.| persons—an injunction she strictly followed. The stranger was Mrs M‘Farlane, who, being a relative of the family, had here received a temporary shelter after the slaughter of Captain Cayley. She had vanished from Margaret Swinton’s sight through a panel-door into a closet which had been arranged for her concealment. The family always admired the sagacity shewn in asking Margaret to speak to her mother of what she had seen, but to speak to her alone in the first instance, as thus the child’s feelings found a safe vent. It will be remembered that Scott has introduced the incident as part of his fiction of Peveril of the Peak.