In the middle ages, the Court of Justiciary formed the upper level of the Scottish criminal legal system and was presided over by the Justiciar, a royal official, usually one of the great Earls. Although the Court of Justiciary was, in theory, the highest criminal court, it and others were subject to the authority of the Privy Council, whose particular concern was the maintenance of political stability and public order. In the sixteenth century, there were two Justiciars dealing with areas north and south of the Forth. We have already met one of these men, his Grace, Archibald, Earl of Argyle, who presided over the trial of William Amuligane in Dempsterton in 1535, held at the circuit court in Dumfries. Cases brought before the Court of Justiciary were usually passed up from the Sheriff Court and tended to be complex cases such as the charge of high treason, religious dissent, adultery, sodomy, bestiality, witchcraft, forgery etc, serious offences punishable by death, transportation or heavy fines.
On 11th April 1578, the Court of Justiciary heard the case of Cuthbert Amuligane alias Amullikin in Dempsterton, charged with the ‘filthy and abominable’ crime of adultery with Elizabeth Hamilton, spouse to Roger Kirkpatrick of Closeburn, having been caught in the act at ‘diverse and sundry times, within the manor place of Closeburn, the burgh of Edinburgh and other parts of the country in sundry houses and chambers’. This was no ordinary case, for the lady who became the object of his illicit affection, Elizabeth Hamilton, was indeed a remarkable woman. Her reputation was almost as notorious as her mother, Lady Grizzel Sempill, the eldest daughter of Robert 3rd Lord Sempill. She entered into numerous affairs, the most famous being John Hamilton, Archbishop of St. Andrews and by whom she had a number of legitimized offspring. Elizabeth’s father, James Hamilton of Stanehouse, was Provost of Edinburgh and Director of Chancery. He married Grizzel Sempill about 1539 and divorced her prior to 1546. Based on these figures, Elizabeth may have been aged about 38 years, when she began her affair with Cuthbert.
According to the register of the Court of Justiciary, the case was first heard on 8th March 1577, when Cuthbert made repentance and was formally admonished, after having been caught within the manor place of Closeburn on a number of occasions. However, despite being admonished, Cuthbert and the good Lady of Closeburn continued their affair, much to the deep of annoyance of Roger Kirkpatrick, who had already tried to divorce her in 1566, following an appeal to the Privy Council of Scotland. The Privy Council were obdurate, and he had to pay £40 within six days and the rest before Whitsunday and find security. Elizabeth retaliated with a counter action of adherence, in which it is stated (erroneously) that they were married in 1555 and she had had six children by him, yet he had expelled her from the place of Closeburn and charged her with adultery with James Kirkpatrick, his brother. Perhaps Roger could not prove the charge, for he was decreed to adhere to her. His second attempt, however, succeeded with the Court of Justiciary finding Cuthbert guilty for continuing in the same act. The details of the case as found in the register have been fully published in Robert Pitcairn’s book, Ancient Criminal Trials in Scotland, which I have transcribed below:
April. 11, 1578: - Cuthbert Amullikin in Dempstertoun.
He is charged with the crime of Adultery, committed with Elizabeth Hamilton the spouse of Roger Kilpatrick of Closeburn, committed at diverse times.
Pursuers: - Roger Kilpatrick of Closeburn & Mr. Robert Crichton.
Defence: - Mr. Thomas Fermore & William Graham .
Verdict. (original text): The Affyife, for the maist pairt, conuictis and fyllis this Cuthbert Amullegane, for art and committing of the filthie and abhominabill cryme of Adulterie with Elizabeth Hammiltoune, fpouse to Roger Kirkpatrik of Cloifburne, conuerfand his bodie with hir in the fame filthie act, with the place of Cloifburne, diuerfe and findrie tymes, preceding lawfull admonitiounis maid to him to abftene thairfra, quhilk was the aucht day March, the year of God, 1576-7. As alfwa for his committing of the fame filthie and abhominabill cryme of Adulterie with the faid Elizabeth, diuerfe and findrie tymes, within the faid place of Cloifburne, burch of Edinburghe, and parits of the cuntrie in findrie houffis and chalmeris theirof, fence the tymes of his confeffioun of the fame, and repentance maid thairfoir, and fence the tyme of lawfull and dew admonitioune maid be him the day foirfaid, and vtheris dayis and tymes fpecifeit in the teftimoniall gevin thairanent. And conuictis him alfwa of the thiftuous fpending, waifting and putting away of the faidis Rogeris guidis and geir, during the fame fpace and tymes, quhill he vfit in maner foirfaid to hant and converfe with the faid Elizabeth, in the faid Adulterie. In witneffe heirof, the Chancellare, in name of the reft of this Affyife, hes fubfcriuit this delyuerance with his hand.
[Pitcairns, Robert: Ancient Criminal Trials in Scotland, Vol. I, p. 78]
Feb. 18, 1579: - Cuthbert Amullikin in Dempstertoun.
“Johnne Hammiltoun, parfon of Crawfurd, Johnne and Cuthbert Amullikin ferwand to my Loird Ruthuene, become foureties conjunctlie and feverelie for Cuthbert A. in D. conuict for Adulterie, committit with Elizabeth Hammiltoun, Ladie Cloifburne, that he fall deparit furth of this realme, within thre fcoir dayis, immediatlie eftir the dait heirof, and remane benift furth of the famin in tyme cuming: And als, that he fall abftene fra the cryme abouewritten, vnder the pane of ane thowfand merkis: And this done at command of secreit counfale be thair precept direct to that effect: Lykeas the faid Cuthbert of his awin confent and will, reffaueit the faid banefment”.
[Pitcairns, Robert: Ancient Criminal Trials in Scotland, Vol. I, 80]
The sentence delivered on 18th February 1579 was indeed harsh to say the least and as far as I can recall, this was one of the earliest cases in Scotland, were a person convicted for adultery was sentenced to be banished from the realm of Scotland and the huge sum of 1000 merks imposed should the affair continue. Cuthbert had sixty days to leave the country, with John Hamilton, parson of Crawfordjohn, John and Cuthbert Amullikin, servitors of William, Lord Ruthven and Earl Gowrie, becoming sureties conjunctly and severally to ensure he departed from Scotland. So what became of him and where did he go? From what I can ascertain, generally speaking Ireland was the West Indies of later years, where persons banished where sent. There is an old tradition amongst the Milligans of Dempsterton that asserts this family came from Ireland. Like all traditions, this needs to be placed in context, and it should be evident by now that the Milligans of Dempsterton certainly did not originate from Ireland. It is possible, however, that if Cuthbert was banished to East Ulster, some memory of this may have passed into family tradition.
In later issues of the Regarde Bien, when I discuss 17th century links between Scotland and Ulster, the Milligans of Dempsterton emerge as one of several families to have made links either with Ulster or England. Although, there is no proof that Cuthbert actually crossed into Ireland, there can be little doubt that he left Scotland. To this it must be added, that banishment was not a one-way ticket, to use the cliché. People could return once a royal pardon had been granted. I am not sure, however, which Cuthbert was banished as there appears to have been two Cuthbert’s, one the father and the other the son. On 21st October, 1575, Cuthbert Amuligane in Dempsterton and his son, William Amuligane, witnessed an instrument of sasine by which the seven-shilling land of “Staitefurde” in the parish of Troqueer, Kirkcudbrightshire, was conveyed to John McKee of Staitefurde by Edward McKee and Margaret Porter, his spouse. This Cuthbert might well be the same Cuthbert who was banished from the kingdom of Scotland four years later. There again, he may not be the same person. It all depends on the identity of Cuthbert Amullikin, styled servitor of Lord Ruthven.
In the list of sureties or cautioners, the parson of Crawfordjohn, John Hamilton, was the younger brother of Sir James Hamilton of Crawfordjohn, which is located in Lanarkshire, and near relation to Elizabeth Hamilton of Closeburn. John Amullikin, one of the servitors of Lord Ruthven, can be identified as John Amuligane third Laird of Blackmyre. This leaves Cuthbert, the last named, who could well be the Laird’s brother. I have not been able to positively identify this Cuthbert, but would not be surprised if he was indeed the Laird’s brother. It is interesting, that we should find the third Laird acting as cautioner for Cuthbert Amuligane in Dempsterton. How these men were directly related is not clear to me, but the fact that the Laird became surety to Cuthbert is indicative of a trusted relationship. Scottish law required that in civil cases, both the pursuer and defender find cautioners, that is, persons who will become surety in order to take responsibility for another’s performance of an undertaking e.g. to appear in court or payment of a debt, should they fail to compile.
If Cuthbert was the son, rather than the father, there is a strong likelihood he could have been the same Cuthbert Amuligane styled ‘occupier in Edgarton’, a farmtoun that lies about two miles east of Dempsterton. This Cuthbert appears there in 1585 and in a later issue of the newsletter, I hope to trace this family in greater detail. Whether the father or the son, it is certainly an intriguing mystery as to what became of Cuthbert Amuligane in Dempsterton, and Elizabeth Hamilton, whose spouse Roger divorced her and married secondly, Margaret Gordon, daughter of Alexander Gordon of Troquhain in the parish of Balmaclellan, the following year. By all accounts, Cuthbert was succeeded by his son, William Amuligane, who acquired hereditary rights to his father’s small farm in the land of Dempsterton, which as we shall see in the next issue, became known as the ‘10 shilling land of Meikle Dempsterton’. This farm remained with Cuthbert’s descendants for nearly 400 years, making it one of the oldest properties to remain the possession of the same Milligan family, as far as I can trace, either in Ireland or main land Britain.
1. Reid R. C. & Truckell. A. E. (editors); The Early Kirkpatricks, Transcations of the Journel of Proceedign of the Dumfriesshire and Gallowlay Natural History and Antiquarian Society, Third Series, Vol. XXX, 1951-52, p. 102.
2. Calander of Charters, National Archives of Scotland, Vol. X-XII, no. 2372.
INDEXES TO SCOTTISH TESTAMENTS
In Scotland, there are two kinds of testaments: (1) a testament testamentary, which applies when a person dies testate, i.e. leaves a will and names the executor or executors; (2) a testament dative, which applies when a person dies intestate, i.e. does not leave a will and the executor is appointed by the court. The executor so appointed was usually a near relative such a spouse or son. A testament usually included an inventory of the deceased’s goods, gear, debts and sums of money. Prior to 1868, testaments were only concerned with moveable property and not with land. When a widow and children survived, the moveable estate would be divided into three parts. One third would go to the widow, one-third to the children and the remaining third would be left to whomever the deceased wished. When the husband or wife was deceased, then one half of the property would go to the children and the other half to whomever the testator wished.
Until 1823, testaments were kept with the records of the Commissary Courts, which took over the jurisdiction of the Bishops’ Courts after the reformation. The commissariots correspond roughly to the old dioceses – not the counties. There are extensive records for 22 such courts and the Scottish Records Society has published indexes for many of the extant testaments. I have examined a number of these indexes, and list below the names of “Ms” found in them. I have also checked the following indexes, which contain no references: Dunblane 1539-1800, Lauder 1561-1800, Hamilton & Campsie 1564-1800, Brechin 1576-1800, Lanark 1595-1800, Stirling 1607-1800, Orkney & Shetland 1611-1800, Inverness 1630-1800, The Isles 1661-1800, Argyle 1674-1800, Peebles 1681-1699, Dunkeld 1682-1800, Moray 1684-1800, Aberdeen 1715-1800.
The commissariot of Edinburgh not only confirmed testaments within it’s own bounds, but could also confirm the executors of people who lived elsewhere and particularly the testament of those people who died aboard. The asterisk denotes those testaments which I have had examined.
COMMISSARIOT OF EDINBURGH
Volume I [1515-1600]
Robert Amuligane in Hieteth, parish of Mauchline, 22nd March 1584-5*.
Isobel Clerk, spouse to Thomas Mullikin, merchant burgess of Edinburgh, 29th November 1582*.
George Mullikin in Parkiary parish of Holywood, Sheriffom of Dumfries, 25th December 1590*.
Jonat Mullikin, spouse to Patrick Hislop in Holme of Dalquharne parish of Dalry, 11th June 1590-91*.
John Amuligane son lawful to Thomas Amuligane, merchant burgess of Edinburgh, 11th Dec. 1599*.
Part II [1601-1700]
Abraham Amuligane, merchant, in the Holm of Dalquharne, parish of St. John in Dalry, Stewartry of Kirkcudbright, 2nd April 1603*.
John Mulligane in Over Bar, parish of Penninghame, Sheriffdom of Wigtown, 24th May 1606.
Helen Brown spouse of Thomas Amuligane, merchant burgess of Edinburgh, 21st September 1606*.
Cuthbert Amuligane in Benanne, parish of Tynron, Sheriffdom of Dumfries, 18th July 1607*.
John Amuligane, merchant, burgess of Edinburgh, 21st April 1609*.
Andrew Mullikine, merchant burgess of Edinburgh 4th January 1627*.
Andrew Mullikine, Merchant, Burgess of Edinburgh 22nd April 1634*.
Abraham Mullikine, stabler, burgess of Edinburgh, 15th August 1635*.
Janet Mullikine, relict of Thomas Mullikine, burgess of Edinburgh, 17th August 1639*.
Robert Mullikine, school master in Edinburgh and Margaret Browne his spouse, 20th June 1668*.
William Mullikin, sometime professor of the Old College of St Andrews, 5th October 1694.
COMMISSARIOT OF GLASGOW 1547-1800
Marion Mulliken, spouse to George Dunbar of Knokschymache, par. of Cummock, 27 Feb. 1617*.
Margaret Milliken, spouse to Robert McKawell in Maybole, 24th March 1631*.
Elizabeth Milliken, spouse to Robert McMichall in Craigdarroch, par. of Cummock, 10th May 1648*.
Janet Mulliken, spouse to Matthew Hunter, merchant in Mauchline, 17th September 1669*.
Robert Milliken in Auchmillane, parish of Mauchline, 17th September 1669.
Jonet Murdoch, spouse to John Mulliken in Bardaroch, parish of Ochiltree, 3rd October 1671*.
Thomas Milliken late bailie of Ayr, 1st November 1695*.
Alexander Mulliken of Duncanzimyre, parish of Auchinleck, 28 January 1741*.
Major James Mulliken of Mulliken, parish of Kilbarchan, 11 June 1741*.
Mary Stevens, widow of Major James Mulliken of Mulliken 5th November 1746*.
Mary Grier or Grierson indweller in Kilmarnock, relict of John Milliken in Riccardton Miln, 3rd February 1755.
James Milliken of Milliken, 28 October 1785*.
Mary Milligan, spouse to Robert Carson, schoolmaster, late in Wallaceton, now in Monkton, 29th November 1791.
Thomas Milligan, residing in Glasgow, 23rd May 1799.
COMMISSARIOT OF ST. ANDREWS 1549-1800
James Mulekin in Friertoun, 4th March 1640*.
COMMISSARIOT OF CAITHNESS 1661-1664
Alexander Mullikine in Papigo, chamberlain to the Earl of Caithness, 10th December 1662.
George Mullikine in Wick, spouse to Agnes Cormack, 7th August 1661.
COMMISSARIOT OF DUMFRIES 1624-1800
In the Index to the Commissariot Court of Dumfries, the editors standardised each variant form of the surname to Milligan, except as indicated. The same rule appears to have been applied to the Commissariot Courts of Kirkcudbrightshire and Wigtonshire, which are of more recent origin than that of Dumfriesshire.
Herbert Milligan, called of Hallhill, 12th June 1627.
Matthew Milligan in Marglay, 13th November 1627.
Elizabeth Ferguson spouse to Cuthbert Amuligane, merchant, Burgess of Dumfries, 13th Dec. 1629*.
Janet Milligan, spouse to James Maxwell, merchant burgess of Dumfries, 12th September 1629.
Margaret Milligan, spouse to Homer Laying in Capinnoch, 6th August 1630.
Margaret Laurie spouse to Alexander Milligane in Skailstowne, 16th June 1630.
John Milligan in Brae, 17th December 1630.
James Milligan in Drummilling, 14th February 1631.
Paul Milligan in Knockinhair, parish of Sanquhar, 17th August 1641.
James Milligan in Keir, 9th June 1657.
Margaret Milligan, servitrix to Agnes McBraidie, 8th October 1657.
Helen Milligan, spouse of John Davidson, in Tempilland, 12th February 1658.
William Milligan, millar at Barclay Mill, 24th March 1658.
John Milligan in Dykehead of Laggan 15th June 1658.
Bessie Milligan, 22nd July 1658.
John Milligan, 2nd February 1659.
Janet McQhirle, spouse to John Mulligane in Bush, 2nd February 1659.
Bessie Gill, spouse to Thomas Milligane in Troqueer, 4th April 1659.
Margaret Sharp, spouse to George Mulligane, merchant, 6th June 1659.
Bessie Milligan, indweller in Dumfries, 8th July 1661.
Elizabeth Milligan, spouse to John Carson, 4th December 1674.
Isobel Brown, spouse to William Milligan at Nether Mylne of Archbigland, 7th October 1675.
Thomas Milligan in Troqueer, 17th November 1675.
John Milligan in Edgartoun, 20th November 1675.
Andrew Milligan in Underbrae, in Lochuitton, 2nd July 1678.
Janet Millar, spouse to James Mulligane in Deadsyde, 17th July 1678.
Margaret Milligan, spouse to James Marshall, in Corse, 23rd July 1678.
Bessie Milligan, spouse to Thomas Douglas, in Kitchine of Painzearie, 19th July 1681.
John Milligan at Marynes-Mill, 5th October 1681.
Agnes Milligan, spouse to John Sharp, merchant, 9th August 1682.
John Milligan, merchant, burgess of Dumfries, 28th October 1682.
John Milligan, merchant, burgess of Dumfries, 7th May 1685.
James Milligan of Strawmulligane, 22nd February 1687.
James Milligan in Know, in the lands of Capinnoch, 7th January 1688.
William Milligan in Brae, 22nd February 1688.
James Milligan in Shawes, 28th July 1691.
Alexander Milligan in Hills, 22nd January 1724.
Thomas Milligan in Ridding of Morton, 30th December 1729.
James Milligan in Moat, parish of Lochrutton, 19th March 1736.
George Milligan, surgeon in Moffat, 14th December 1736.
George Milligan, surgeon in Moffat, 31st May 1737.
George Milligan, surgeon in Moffat, 17th January 1739.
George Milligan, surgeon in Moffat, 9th April 1739.
John Milligan, burgess of Dumfries, 19th April 1746.
William Milligan, joiner in Kirkbean town, 30th October 1781.
Ichabod Milligan, merchant in Dumfries, 24th August 1784.
Robert Milligan in Turnfine of Hills, parish of Lochrutton, 11th January 1792.
Andrew Milligan in Milnton of Urr, 21st June 1793.
Mary Milligan, who resides in Carswadda, widow of James Milligan in Graigend, 25th July 1793.
William Milligan, resident in Kirkgate of Dumfries, 10th April 1795.
David Milligan of Dalskairth, parish of Troqueer and late Merchant in London, 21st June 1798.
David Milligan of Dalskairth, parish of Troqueer and late Merchant in London, 30th April 1799.
Mrs Marion Clark widow of David Milligan of Dalskairth, 8th March 1800.
COMMISSARIOT OF KIRKCUDBRIGHT 1663-1800
William Milligan in Bargaltown (2) 1675.
Andrew Milligan in Blackcraig (23) 1682.
John Milliken, tenant in Corsaks Armannoch (10) 1683.
Paul Milligan in Auchinvay (7) 1687.
John Milligan in Graighouse, in Grennan, (13) 1688.
Quentin Milligan of Holm, tenant in Glenshimrock, (14) 1696.
James Milligan in Over Auchinvey, (4 & 13) 1713.
Margaret Good, spouse to William Milligan, formerly in Kirktown of Carsphairn, now in Nether Conford, (2) 1714.
William Milligan, late in Gatehouse Fleet (5) 1734.
William Milligan in Gatehouse Fleet (1) 1746.
Jean Milligan, spouse to Alexander Gordon, late of Barley now in Milnton Park (2) 1750.
John Milligan, merchant in Kirkcudbright (6 & 7) 1776.
COMMISSARIOT OF WIGTON 1700-1800
John Milligan, miller at the Mylne of Garlies 1710.
Sergeant Robert Milligan in Gladghouse 1720.
Andrew Milligan, milner at the Miln of Penninghame 1737.
Robert Milligan, at Bridgemilns of Luce, and James Miller, at Park of Luce, parish of Glenluce 1737.
John Milligan, miller at the Miln of Heugh 1749 & 1750.
Andrew Milligan, milner at the Miln of Penninghame 1774.
James Milligan of Tannielaggie, late at Waterside 1790.
Janet Milmine in Blairmaken, relict of James Milligan, miller at the New Mills, and thereafter of William McCaundlish, at Waulk Mill of Torhouse 1793.