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The Farquharsons appear to have derived no benefit from the bond, which after being assigned to a Spalding was protested by the granters and in Dec. 1671 declared by the Lords of Council and Session to be null and void owing to the manner in which it had been obtained. If the assignee was Andrew Spalding of Ashintillie or his brother David, the circumstance may account for their failure to appear as witnesses for Brouchdearg in the trials in June 1673, for which failure they were " unlawed."
In May following (1669) the Farquharsons, with a considerable following, " came and sew [sowed] the lands of Killilock " (Kirkhillocks) occupied by Robert Mackintosh, John's fourth son; the sowing perhaps being of noxious weeds. In February 1670 an indictment by John Mackintosh and his spouse against Robert Farquharson of Brouchdearg for " convocation of the lieges, Hainesucken, and wrongous imprisonment" was before the Court of Justiciary, who postponed the case until 7 June following, when it was dropped by agreement, it being shown that the criminal letters (i.e. warrant) against Brouchdearg had not been legally served and that John was not in a position to proceed, being at the time a prisoner in Edinburgh. The agreement is probably that set forth in a contract dated the day before, between Robert Farquharson of Brouchdearg and John Mackintosh of Forter, " for settling some contrary actions between them," which appears in Mackenzie's Register of Deeds as recorded on 28 Oct. 1671, more than a year afterwards.
One of the witnesses to it is Thomas Mackintosh, merchant in Montrose, a son of John Mackintosh. This contract may have settled the particular " contrary actions " for the time, but seems to have had no effect on the prosecution of the feud, for in August 1670, only two months afterwards, Robert Farquharson, while on the forest land of Glascorie of which he had a lease, had to flee " for his life " from the pursuit of James and Alexander Mackintosh, who seized two of his horses. Apparently at some later date Robert retaliated by seizing some of the Mackintoshes' animals in the forest and taking possession of them "as tacksman to the Earl of Airly in his forest of Glashory." Both sides seem to have brought actions for spulzie before the Sheriff Court at Forfar, and while Mackintosh had to give bond for the " violent profits " in his case, letters of caption (i.e. a warrant for apprehension) were issued against Brouchdearg. These letters led up to the final tragedy.
The details of this fatal event are somewhat dimly set out in the report of the proceedings in the Justiciary Court in 1673-4, in vol. ii of the Justiciary Records 1661-1678 (Scott. Hist. Soc.). In spite of some uncertainty as. to dates and sequence of events, and in spite of wide divergences between the accounts of the two parties as to the facts, the report which also contains the pleadings of the various advocates, couched in almost unintelligible law jargon and loaded with scraps of Latin enables us to get a fair idea of the bitter hatred which possessed the two families, as well as some glimpses of the temperaments and mental characteristics of the two principals.
The main facts of the catastrophe appear to be that on a day in January 1673 Brouclidearg and some of his brothers, friends, and servants had been cited to the Sheriff Court at Forfar on an action by James Mackintosh against them for spulzie ; that four of the Mackintosh brothers John, Alexander, James, and Robert with their followers were also there, and having obtained the aid of a messenger" (or sheriff's officer) for the apprehension of Brouclidearg on letters of caption which had been obtained by James, followed the Farquharsons and came up with them at Drumg1ey, within three miles of Forfar, where a scuffle took place in which Brouclidearg and two of the Mackintoshes, John and Robert, were killed, and John Farquharson, Brouclidearg's brother, received wounds of which he was said to have died shortly afterwards.
The details given are far from clear, the " lybell " or declarations of the two parties being both vague and contradictory. Thus the Farquharsons stated that they were pursued and tracked from Forfar by the Mackintoshes, while the Mackintoshes declared that they were waylaid and ambushed by the Farquharsons : Sir ,Robert Sinclair, one of the counsel for the Farquharsons, said that Brouchdearg was accompanied only by his two brothers John and Alexander, both of whom fled ; yet the Mackintosh lybell " declared that John Farquharson in Cant's Mill, his son, and Thomas Crichton in Milton of Glenisla " came in cold blood near to the moss of Forfar where John Mackintosh was yet alive lying in his wounds and then with their dirks and swords stabbed and wounded" him "until he died."
There is a further difficulty as to the death of John Farquharson, Brouclidearg's brother. He is spoken of in the Farquharson lybell on 9 June 1673 as "deceased" and as having in the previous January received from the Mackintoshes such mortal wounds that he died shortly thereafter; yet on the two following days he is named as one of the pursuers, as he is also in the final trial exactly a year later (10 June 1764) one head of the lybell against James and Alexander Mackintosh on the latter occasion being ". the wounding of John Farquharson and leaving him dead upon the ground."
That the statement of John's death is incorrect seems fairly clear not only from his being included among the pursuers on 10 June 1674 but also from a statement in the Brouchdearg MS., written by his own nephew, that he was killed along with Farquharson of Craigniety in an encounter with some Brae Lochaber caterans, an event recorded in the Kinrara MS. History * as having taken place shortly before August 1679. The explanation may be that when the libel of June 1673 was prepared John's death from his wounds was confidently expected, and the libel of June 1674 may have meant simply that he had been wounded and left for dead.
The inaccuracy of the Farquharsons and their eagerness to pile up charges against their adversaries are even more apparent from the representations which they had made to the Privy Council immediately after the affray of January 1673.
On the 31st of that month the Council, on information that "a horrid murther had lately been committed be Jon McComie alias McIntosh of Forthar and his sones upon Robert Farquharson of Brochdarg and his two bretherin," ordained the appointment of a commission for apprehending the said "murtherers," and the statement as to the two brethren killed is repeated in the Commission, P.C. Beg. 3rd S. iv. 8.
A week later, on a petition by "John McIntosh of Forthar and Thomas and Mr. Angus his sons " stating that on learning of the Commission " they did immediately repaire to this place of purpos to vindicat their innocency," and that they were " most willing to undergoe a legall tryall," the Council suspended the Commission, but required the three to remain in Edinburgh and to find caution in 5000 merks each to appear before the Court of Justiciary on the 9th of June following; and on the 27th of February, the required caution having been found the Lords recalled the Commission altogether and allowed the three Mackintoshes to return home " to follow their necessar and urgent affaires." Do. 12,.21.
The original report to the Council would seem to have included among the " four sons " of John Mackintosh engaged in the " murther one who was not present, Thomas, the Montrose merchant. The result of all this tangle of contradiction and obscurity was that so far as the cross actions or processes in June 1673 were concerned, the " diet " in each case was " deserted, neither party being willing to proceed to an assize or jury, perhaps for the reason that each and all of them might have come under the law, and perhaps also in view of the expense which was being incurred. Brouchdearg's widow, however declaring that she feared bodily harm and oppression from John Mackintosh of Forter, craved lawburrows of him, and this being granted John provided the necessary security for his keeping the peace towards her through Thomas Oliver of Westmiln in Glenisla and Thomas Mackintosh merchant in Montrose one of his sons.
The one who suffered most on the occasion was the unfortunate "messenger "Alexander Strachan who had accompanied the Mackintoshes in their quest of Brouchdearg in January; for his weakness and " prevarication " the Court recommended the Lord Lyon deprive him of his office, and ordered him to remain in prison during their further pleasure.
Such was the end of the main trials; but there was a small aftermath. James and Alexander Mackintosh, with three of their servants, had on the 9th of June 1673 been declared fugitives for not appearing to stand their trial. After one or two petitions to the Court for time and for permission to give caution for their appearance (dealt with on 4 Dec. 167 2 and 9 March 1674) they submitted to their trial on 1 June 1674, all five being charged with the murder of Robert Farquharson, and James and Alexander with "the theftous taking of two horses from the said Robert " and "the wounding of John Farquharson and leaving him [? for] dead upon the ground." These charges went before a jury, who after hearing proof " found the pannells clean from the crimes insisted on.
" The reporter's observations on this verdict are applicabl to the whole case as set forth in the trials. He says " I have considered the probation and all that I find proven is that Burghderg was killed and his son [? brother] wounded but non constat which of the pannels did it. It is proven that the pannels were in arms and that ther was shots among the parties, but it is not proven who shot first. It is also proven that the defunct and his party had their swords first drawn. All this with the pannels their being imployed in the execution of a caption against the defunct did contribute for the justification of the pannels." Justic Records ii. 273. Such was tile "lame and impotent conclusion" to the litigation which had extended over four years, but there is ever reason to suppose that one definite result of it would be a serious crippling of the resources of the litigants.
Beside the writers or solicitors whose employment would be necessary, and the maintenance of the parties and their witnesses during, their attendance at the trials, the highest legal talent of the day was engaged in the conduct of the case before the Lords, and some idea of the cost of this may perhaps be gathered from the status of the two leading counsel for the Mackintoshes. One of these was Sir George Lockhart, who had been Lord Advocate under the Commonwealth and was afterwards under James 11. Lord President of the Court of Session, and the other was Sir George Mackenzie, afterwards Lord Advocate and chiefly known to fame as the " Bluidy Mackenzie" of the Covenanters and the founder of the Advocates' Library in Edinburgh.
To meet their expenses and engagements, both Mackintoshes and Farquharsons found it necessary to raise money by bonds on their lands, with the result that the feu of the Forter lands was given up by the Mackintoshes to Lord Ogilvy in 1681, and the Brouclidearg lands were "adjudged" by the Court of Session from Robert Farquharson's only son in January 1683. But long before this catastrophe to his family, and even before the final decision in the legal proceedings had been reached, John Mackintosh, or McComie Mor as he is said to have been called, had finished his long and eventful course. His death took place some time between the 2nd of March 1674, when he was excused from attending the Justiciary Court as a cautioner for his sons " by reason of his sickness," and the 10th of June following, when he was described in the Court proceedings as " umquhill John Mackintosh of Forthar." His age cannot be definitely stated, but it could scarcely have been far short of seventy years.
Sir Eneas Macpherson, writing in 1704, includes him among the " oldest and wisest" men with whom he had conversed on Highland genealogies, most of these men " so very old that if they were not acquainted with Finlay More himself they were at least personally known to all his children." Vanitie Exposed. He would seem to have been not only a striking and notable figure in the history of his time and district, but also one entitled to a place among the worthies of the Clan Mackintosh.
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