On this date in 1663, Alexander Kennedy was hanged at the Cross of Edinburgh for forging false bonds and writs, whose particulars we discover in The Records of the Proceedings of the Justiciary Court, Edinburgh, 1661-1678.
Edinbr. 24 feb. 1663. Deput Cuningham pt.
Alexander Kennedy, sometimetime Porter in the Castle of Edr., now prisoner, dilated and accused for the crime following, viz. for that notwithstanding of the common, municipall Laws and constant practise of this kingdome, the forgers, Counterfeiters and Devisers up and Users of false Bonds, obligations and other Writts, are to be punished be tinsell of their lives and moveable estate and especially by the 22d Act, 23 Parl. Ja. 6, it is statute and ordained, that whosoever makes any false writ or is accessory to the making thereof shall be punished with the pains due to the Committers of falsehood, which by the constant practise of this kingdome is the pain of Tinsell of Life and moveable estate, and that it shall not be but that after Tryall of the Writt quarrelled it be found false the passing from or Declaration of the Party that he will not use the same shall no ways free him from the punishment due to the committers of falsehood as at more length is contained in the said Acts whereupon it is subsumed that the Pannell has forged, feinzied, counterfeited and made up the six Bonds, Obligations, and Contracts under written, four of the which Bonds are alledged granted by the decast John Renton of Lamberton, therein designed Constable of the Castle of Edinbr., to the deceast Dame Agnes Renton, Countess of Levin, all dated 17 Octor. 1648, by each of which four Bonds, the said umq John Renton granted him to have borrowed (here follows the contents of the Bonds as they are made payable to the Lady and her Daughter, then follows the tenor of a Contract made up by the Pannell betwixt himself and Lamberton, be which he is obliged to pay 3000£ to the Pannell upon his delivery of him of the forsaid six Bonds by the Lady Leven’s warrand, and Alexr. upon receipt of the forsaid sum is obliged to deliver tye Bonds and the Lady’s warrand, and subsumes that the Pannell is the forger of all these Writts, or airt and part, and that the Lo: of Session has found so by a Decreet of Improbation, dated 22 July last, and finds that the Pannell is an infamous and perjured person, and has remmitted him to be criminally tryed, and ordained the King’s Advocate to process him, which being found by an Assize, he ought to be punished with the Tinsell of Life and moveables, to the terror and example of others.
Mr. And. Birnie, Pror. for the Pannell, alledges the Dittay is not relevant, because it does not condescend wherein the Pannell is forger of the Writts lybelled, whether in the Subscription of the principall party, granter, or Subscriptions of the Witnesses, or date, or some other substantiall head. 2d. Nonrelevat accessory or user because by the Act of Parliat. the User of a false Writte unless he byde by it is not liable to the punishment of falsehood. Neither is Accession relevant unless the way of his accession be condescended upon, frae which Condescendance a Defence may result. 3d. The Lybell non relevat in so far as it concludes Tinsell of Life and Goods, because the Act of Parliamt. lybelled on does not express the Punishment, but referrs to prior Acts, and it is clear both from K. Jas. the 5th and Q. Mary‘s Acts that the Punishment is restricted to Imprisonment, Banishment, etc. which is placed in Arbitrio Judicis.
My Lo: Advocate to all this oppones the Dittay as it is lybelled, and the Act of Parlt. whereupon it is founded bearing the punishment of falsehood to be inflicted on such as are forgers and users of false Writts, or art and part thereof, and both the Act of Parliament and custom of the Justice Court has determined the pain to be loss of Life and Moveables.
Duplys Birnie to the last part of the Advocate’s Alledgiance, that it is to be understood only as to falsifying Writts that can proceed only from authority, and oppones the Act of Parliament.
The Justice Depute ordains the Dittay, notwithstanding of the Answer, to pass to the Tryall of an Assize. The Assize being sworn, the King’s Advocate produces the Lo: of Session’s Decreet of Improbation per modum probationis, and thereupon the Assize finds the Pannell guilty as art and part, accessory and user of the false Writts mentioned in the Dittay, conform to the Decreet of Session. Vide sentence 12th instant.
I repeat here my Observe which I made on Birnie’s sentence day of 1662. [I’m unsure what this alludes to -ed.]
Edinbr 12 March 1663. Deput Cuningham.
Alexr. Kennedy convict ut supra of falsehood, sentenced to be hanged at the Cross of Edinburgh.