10 October 2022
In this edition of Spotlight: Jacobites, Dr Darren S. Layne recounts a tale of wrongful imprisonment and the civil action brought against a notorious Jacobite governor in the north-east of Scotland in 1745-46.
The prosecution of alleged and suspected Jacobites continued for many years after the last rising was emphatically crushed at Culloden. Mortal combat on the field of battle gave way to legal clashes in the courtroom as the machinery of justice spun up to prepare for thousands of potential criminal cases. Published and archival sources recount both the British government's official and unofficial efforts to punish those accused of explicit acts of treason, but very rarely do we learn about civil litigation brought by loyal British citizens against their Jacobite kindred and communities. Yet in the years directly after the rising, an unusual legal drama played out in and around the north-eastern harbour town of Stonehaven that demonstrates how accounts of personal cruelty during the Jacobite occupation of Scotland could be prosecuted by those who felt victimised.
Jacobitism had long been a potent force in the north-eastern region of Scotland, where deep-seated non-juring traditions served to fuel public favour for a Stuart restoration. In the winter of 1745-46, while the bulk of the Jacobite army was marching to and from its invasion of England, provisional administration continued in north-eastern counties like Aberdeen, Banff, Moray, Nairn, and Kincardine. Each of these regions was overseen by one or more Jacobite officers who were nominally in charge of advancing Stuart interests in their respective departments. Those interests largely consisted of two identifiable elements: men and money. It was the job of the Lords Lieutenant to secure both of these through martial recruitment and collection of cess and levy money to keep Jacobite hopes alive and its logistical goals met.
The rebel Deputy Lord Lieutenant of Kincardine in 1745-46, Alexander Garioch of Mergie, was enthusiastic and extremely active during the height of Jacobite power in Scotland. He owned a modest estate just west of Fetteresso worth about £50 per year in 1745, escaping forfeiture after the 1715 rising despite fighting in the Jacobite army and being captured at Sheriffmuir. A government memorial recounts that this was on account of Garioch having informed against his fellow Jacobites in the wake of the 'Great Rebellion', but also due to the benefit of mistaken identity during his trial, which allowed him to return home without punishment. Unfettered by censure, thirty years later he once again took up arms to fortify the Stuart challenge, this time only travelling six miles to nearby Stonehaven due to a severe case of gout in his feet. 
Garioch quartered in the home of 'Stonhyve' merchant William Herdman and operated under the command of Sir Alexander Bannerman of Elsick. He was commissioned by Charles Edward Stuart to uplift rents on local estates and gather as many recruits as possible to reinforce the Jacobite army. According to witnesses on both sides of the conflict, the laird of Mergie was decidedly heavy-handed in dealing with both common tenants and the landed elite in Kincardineshire, quickly establishing an unflattering reputation for himself through a short temper and indiscriminate abuse of power. Using a variety of questionable methods, he was able to gather around fifty local inhabitants for Jacobite service in Bannerman's independent company, but it appears that the process of finding willing volunteers was fraught from the start.
Amongst the activities Garioch was accused of carrying out at the harbour, witnesses alleged that he had seized and burned the local excise officer's account books, had stolen horses and other goods from the residents, and had sent out numerous parties to the surrounding estates seeking money and recruits of stature to join the Jacobite army. While these were standard administrative objectives for provisional Jacobite governors, his imperious temperament and 'violent passion' combined to instigate resentment amongst the citizens of Stonehaven. During the autumn and winter months in which he was in charge of the town, Garioch repeatedly threatened anyone who refused to heed his orders with imprisonment in the tolbooth’s two small cells, which were widely reported as being fetid, claustrophobic, and wholly insufficient for human detainment.  Nonetheless, Garioch caused more than a few disobedient locals to be held within those stinking walls – especially those who insisted on remaining openly loyal to the British government and King George II in the face of his authority.  One of these loyal citizens suffered an especially dramatic imprisonment, and the case is notable for its poignance and complexity.
James Grant was the primary factor at Pitarrow in the parish of Fordoun, which made up part of the lands of Sir James Carnegie, 3rd baronet of that estate. During a routine excursion to Carnegie's property at Arnhall in early October 1745, James Grant was confronted by a party of Jacobite soldiers in Highland dress under Garioch of Mergie's command. According to his testimony, he was 'offered' the opportunity to accept a factory much like the one in which he already served, but in the name of Charles Edward Stuart. The soldiers demanded that Grant hand over any rents he had collected from the Arnhall tenants, but Carnegie's factor swore that the accounts were already cleared for the term and that he had no money in-hand. After vehemently refusing to work for the rebels, on Garioch's orders he was taken prisoner, brought to Stonehaven, and thrown in jail.
The insult and discomfort Grant was subjected to over the next four days made a powerful impression upon him, and one that he would not soon forget. When he arrived at the harbour, the two cells in the tolbooth were already occupied by both the living and the dead. One of the rooms was holding a woman who had been accused of birthing two children from her own father, and the other cell had kept her father until he had 'dyed of vermine' eight days before. Due to the confusion from the Jacobite occupation in Stonehaven and French vessels landing at nearby Montrose, it took six days for the authorities to discover the corpse and remove it for burial. Just two days later, James Grant was placed in that same noxious room as punishment for refusing to serve the Jacobite governor.
Grant later recounted his miserable sentence and described his prison cell as bare and freezing, as 'there was neither fireplace nor days light but crawling wt Vermine in midst of a great Storm' of snow that day. The smell was unbearable and he begged the jailer to move him to a different place – any place – for which he offered to pay six guards up to six pence for each day he was held captive. Garioch refused to allow it. And though some sympathetic sentries called upon two of Stonehaven's masons to carve out a fireplace and more effective venting, the Deputy Lord Lieutenant turned them out of the tolbooth as soon as he found out about the improvements that were underway.
Grant had no other choice but to implore seven friends to come up with a suitable bond to secure his release, lest he die in his cell with 'the Ratts Sitting in the Bed at his Nose'. On 8 October Garioch agreed to trade his prisoner for this bail, but only with the assurances that Grant would no longer uplift any rents at Arnhall and that by mid-January he would produce a full account of all rental values previously collected from the estate, as well as pay forward any required levy money 'owed' by its tenants. That money, upon which the Jacobite army desperately relied, was not delivered on time, which led Garioch to send out another party to seize Grant and threaten the Pitarrow tenants with burning of their 'houses, barns, and plantings'. Shortly thereafter, Grant found himself back in that horrid 'thief's hole', and it took direct payment of the levy money by some of the tenants to secure his permanent release. 
With Grant's ordeal seemingly over, Alexander Garioch of Mergie eventually left Stonehaven with the main body of the Jacobite army on its retreat northward to Inverness-shire. Garioch was at Culloden with the rest of Bannerman's company and went into hiding when it all went to pot, and despite the government's attempts to capture him in the following months, he managed to evade the patrols with warrants seeking his arrest.  But this did not prevent Grant from taking matters into his own hands by bringing civil litigation against Garioch for his behaviour during the rising.
Seeking damages for 'oppression and wrongeous imprisonment', Grant put together a sprawling case with the help of Edinburgh writer John Watson in the summer of 1747. Garioch's own lawyer initially offered to settle the issue with a payment of 100 guineas (£1,260 Scots), which Watson thought was in Grant's best interests to accept. Grant held on for an official ruling from the Court of Session, however, who found that Garioch was liable for the full amount of cess and levy money at over £766 Scots and for £2,000 Scots in damages plus process fees.  The only problem was that the laird of Mergie was still in hiding near his estate, and though he was represented by his solicitor, getting a hold of him in person proved impossible.
Garioch communicated through his counsel that it was out of his power to satisfy such monetary demands, and challenged Grant that 'you might do your best' trying to secure it. Grant delayed action into the winter, whereupon he was warned that should Garioch die before his penalties were collected, his estate would vest in his daughters, who would not be subject to their father's debts. In the ensuing months, Garioch’s daughter Jean attempted to reduce the ruling partially on the grounds that Grant had actually colluded with the Jacobites, and also that the prison cell was not all that terrible. Grant's solicitor advised him that apprehending his former captor would be the only viable way to collect the debts appointed to him by the court, and that he was still on the hook for dues related to bringing the charges in the first place, plainly telling his client that 'law is expensive'. 
By late June of 1749, Garioch had not yet been found, and James Grant apparently had received no money from him despite the ruling and the legal fees he had accrued. Pursuing justice for his unthinkable ordeal likely brought further trauma without resolution or retribution. Ironically, Grant, an accused smuggler, himself ran afoul of numerous debts and by 1751 was imprisoned once again, this time under the government's jurisdiction.  His case is perhaps a cautionary tale that even well-supported civil litigation against notorious Jacobites did not necessarily provide a clear path to either emotional or fiscal remuneration.
Darren S. Layne The Jacobite Database of 1745
Darren Scott Layne received his PhD from the University of St Andrews and is creator and curator of the Jacobite Database of 1745, a wide-ranging prosopographical study of people who were involved in the last rising. His historical interests are focused on the protean nature of popular Jacobitism and how the movement was expressed through its plebeian adherents. He is a passionate advocate of the digital humanities, data cogency, and accessible, open research for all.
1 Memorial re: Alexander Garioch's Behaviour in the Risings, NRS SC5/75/11/24; Scottish History Society, eds., A List of Persons Concerned in the Rebellion (Edinburgh, 1890), pp. 168-9.
2 Depositions vs Alexander Garioch in Stonehaven, NRS SC5/75/11/23.
3 A List of Persons Concerned, pp. 168-9.
4 NRS SC5/75/11/24; Deposition of James Grant, NRS SC5/75/11/23; Witnesses vs Alexander Garioch, NRS SC5/75/11/7. For more on Jacobite levy money regulations, see Murray to Pitsligo (21 February 1746) reprinted in Alistair and Henrietta Tayler, eds., Jacobite Letters to Lord Pitsligo (Aberdeen 1930), p. 56.
5 Young to Fletcher (12 January 1748) and Fletcher to Young (15 January 1748), both reprinted in Charles Sanford Terry, ed., The Albemarle Papers (2 vols., Aberdeen, 1902), ii, pp. 520-3.
6 Stonehaven Sheriff Court Records, NRS SC5/75/10-22; Case of James Grant, NLS MS 280.
7 The Petition of Jean Garioch (Edinburgh, 8 November 1748); Watson to Grant (26 November 1748), NRS SC5/75/11/12.
8 See NRS SC5/75/8.
Links to more information:
- National Records of Scotland, Stonehaven Sheriff Court Records SC5/75/11-14
- National Records of Scotland, Duff of Fetteresso Papers GD105/503
- National Library of Scotland, Blaikie Collection, MS 280
- British National Archives (Kew), Treasury Solicitor Papers TS 20/92
• Kieran German, ‘Aberdeen, Aberdeenshire & Jacobitism in the North-East of Scotland, 1688-1750’ (PhD thesis, University of Aberdeen, 2010)
• Scottish History Society, eds., A List of Persons Concerned in the Rebellion, Transmitted to the Commissioners of Excise by the Several Supervisors in Scotland (Edinburgh, 1890)
• Alistair and Henrietta Tayler, eds., Jacobite Letters to Lord Pitsligo (Aberdeen 1930)
• Charles Sanford Terry, ed., The Albemarle Papers (2 vols., Aberdeen, 1902)