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 MARCO AURÉLIO VENTURA PEIXOTO
RENATA [ORTEZ VIEIRA PEIXOTO

Fazenda Pública
e Execucão ~

Aspectos atinentes ao cumprimento de sentença e à

execução contra a Fazenda Pública
Abordagem de questões doutrinárias e jurisprudenciais
relevantes sobre o tema
Principais impactos do CPC/2015 na Lei 6.830/1980

Conforme novo.CP(

lf)JI fasPODIVM
EDITORA
www.editorajuspodivm.com.br
MARCO AURÉLIO VENTURA PEIXOTO

RENATA (ORTEZ VIEIRA PEIXOTO

Fazenda Pública
e Execucão ~

2018

); 1 EDITORA
f
1 JusPODNM
www.editorajuspodivm.com.br
 Sumário

Capítulo 1

Considerações Iniciais.......................................................................................... 19

Capítulo2

Conceito de Fazenda Pública.............................................................................. 21

Capítulo3

O tratamento diferenciado para a atuação da Fazenda Pública em juízo

no CPC/2015 ........................................................................................................... 27

Capítulo4

Cumprimento de sentença e execução de títulos extrajudiciais contra a

Fazenda Pública..................................................................................................... 35

4.1 Sistemática específica para a atividade executiva contra a Fazenda Públi-

ca............................................................................................................................................................... 35
4.2 A inaplicabilidade do regime de cumprimento de sentença para as obri-
gações de pagar contra a Fazenda Pública no CPC/l 973.,................................... 38
4.3 O procedimento do cumprimento de sentença que reconheça a exigi-
bilidade de obrigação de pagar quantia certa pela Fazenda Pública no
CPC/2015 ............................................................................................................................................. 41

4.3.1 A liquidação de sentença e a Fazenda Pública.......................................... 44

4.3.2 A fase inicial do cumprimento de sentença: o requerimento do

credor e a apresentação da memória de cálculos................................... 45
 ,2 _.J_ FAZENDA PÚBLICA e EXECUÇÃO - Marco Aurélio Ventura Peixoto • Renato Cortez Vieira Peixoto

4.3.3 O cumprimento voluntário das condenações e a aplicabilidade

do art. 526 do CPC à Fazenda Pública.............................................................. 49
4.3.4 A inaplicabilidade da multa de 10% prevista no art. 523, §1°, do
CPC à Fazenda Pública............................................................................................... 56
4.3.5 Os honorários advocatícios no cumprimento de sentença contra
a Fazenda Pública......................................................................................................... 58
4.3.6 As posturas do magistrado diante do requerimento do cumpri-
mento de sentença contra a Fazenda Pública........................................... 63
4.3.7 A intimação da Fazenda Pública para impugnar o requerimento
de cumprimento da sentença.............................................................................. 64
4.4 Execução de títulos extrajudiciais contra a Fazenda Pública............................... 65

Capítulos
A Tipologia e o Procedimento das Defesas da Fazenda Pública no
CPC/2015 ................................................................................................................ 69

5.1 As defesas da Fazenda Pública nas execuções propostas durante a vigência

do CPC/73 ........................................................................................................................................... 69
5.2 A impugnação ao cumprimento de sentença contra a Fazenda Pública
no CPC/2015...................................................................................................................................... 73
5.3 O cabimento da objeção de pré-executividade oferecida pela Fazenda
Pública................................................................................................................................................... 81
5.4 Embargos do devedor opostos pela Fazenda Pública na execução de
títulos extrajudiciais....................................................................................................................... 81

Capítu/06
Execução Provisória de Títulos Judiciais contra a Fazenda Pública............. 85

Capftulol
Aspectos Procedimentais do Pagamento via Precatórios e Réquisições de
Pequeno Valor........................................................................................................ 89

7.1 Os precatórios como mecanismo constitucional de pagamento .................. 89

7.2 A inconstitucionalidade da compensação de débitos do exequente para
com a Fazenda Pública .............................................................................................................. 97
7.3 Créditos de natureza alimentar, de idosos e de pequeno valor........................ 99
 SUMÁRIO 13

Capítulo8
As Medidas Atípicas previstas no art. 139, IV, do CPC e a Fazenda Pú-
blica............................................................................................................... 103

8.1 Penhora sobre bens públicos.................................................................................................. 104

8.2 Prisão de agentes públicos ...................................................................................................... 106
8.3 Suspensão e cancelamento de eventos públicos...................................................... 112
8.4 Bloqueio ou sequestro de verbas públicas..................................................................... 112
8.5 Bloqueio do recebimento de créditos de outros entes ou de particula-
res............................................................................................................................................................. 114
8.6 Suspensão do fornecimento de energia elétrica de órgãos e agentes
públicos................................................................................................................................................ 114
8.7 Bloqueio de cartões corporativos utilizados por agentes públicos ................ 115
8.8 Suspensão do pagamento dos vencimentos dos agentes públicos............. 115

Capítu/o9
Autocomposição e Arbitragem nas Execuções envolvendo a Fazenda
Pública..................................................................................................................... 117

Capítulo 70
Os Negócios Jurídicos Processuais e a Fazenda Pública................................ 125

Capítulo 11
Impactos do CPC na Execução Fiscal................................................................. 135

11.1 Aplicação supletiva e subsidiária das normas do CPC à Lei de Execução

Fiscal........................................................................................................................................................ 135

11.2 As normas fundamentais do CPC/2015 e a execução fiscal................................ 139

11.3 A Prescrição nas Execuções Fiscais ..................................................., ................................. 148
11.4 Os embargos do devedor na execução fiscal após a vigência do
CPC/2015 ............................................................................................................................................. 152
11.5 Alterações relativas ao leilão no CPC/2015 e a execução fiscal......................... 153

11.6 Embargos infringentes na execução fiscal após a vigência do CPC/2015.. 154

11.7 Incidente de Desconsideração da Personalidade Jurídica e Execução
Fiscal........................................................................................................................................................ 155
14 FAZENDA PÚBLICA e EXECUÇÃO - Marco Aurélio Ventura Peixoto • Renata Cortez Vieira Peixoto

Capítulo 12
Os Precedentes Vinculantes, a Execução contra a Fazenda Pública e a
Execução Fiscal...................................................................................................... 161

12.1 Teses firmadas em recursos especiais repetitivos do STJ....................................... 165

12.1.1 REsp repetitivo n° 1377507/SP: Bloqueio universal de bens e de di-

reitos autorizado pelo art. 185-A do Código Tributário Nacional... 165

12.1.2 REsp repetitivo nº 1141990/PR: momento para caracterização da

fraude à execução fiscal antes e após a vigência da Lei Comple-
mentar n.0 118/2005, que alterou o art. 185 do Código Tributário
Nacional .............................................................................................................................. 167

12.1.3 REsp repetitivo nº 1143677/ RS: descabimento de juros de mora

no período compreendido entre a data de elaboração da conta
de liquidação e o efetivo pagamento da requisição de pequeno
valor....................................................................................................................................... 169

12.1 .4 REsp repetitivo n° 13 73292/PE: prazo prescricional aplicável à exe-

cução fiscal para cobrança de dívida ativa não-tributária relativa a
crédito rural...................................................................................................................... 173
12.1.5 REsp repetitivo nº 1371128/RS: redirecionamento da execução
fiscal de dívida ativa não-tributária quando da dissolução irregular
da pessoa jurídica ......................................................................................................... 176
12.1 .6 REsp repetitivo nº 1406296/RS: (não) incidência de honorários
advocatícios nas execuções não embargadas quando há renúncia
superveniente do excedente ao limite constitucional e legal para
pagamento por meio de precatórios, a fim de garantir o paga-
mento por meio de requisição de pequeno valor................................... 178
12.1.7 REsp repetitivo nº 1372243/SE: possibilidade de emenda da cer-
tidão de dívida ativa.................................................................................................... 179
12.1.8 REsp repetitivo nº 1347736/RS: possibilidade de execução de forma
autônoma dos honorários de sucumbência mediante requisição
de pequeno valor quando o valor principal da condenação seguir
o regime dos precatórios.............................................................,.......................... 181
12.1.9 REsp repetitivo nº 1363163/SP: inaplicabilidade do art. 20, da Lei
10.522/2002 às execuções fiscais propostas pelos Conselhos Re-
gionais de Fiscalização Profissional (arquivamento sem baixa das
execuções de valores inferiores a RS l 0.000,00) ......................................... 184

12.1 .1 O REsp repetitivo n° 1330473/SP: execuções fiscais propostas pelos

Conselhos Regionais de Fiscalização Profissional e prerrogativa de
intimação pessoal dos representantes judiciais respectivos............. 185
 SUMÁRIO 15

12.1.11 REsp repetitivo n° 1337790/PR: possibilidade da Fazenda Pública

recusar o oferecimento de precatório à penhora na execução
fiscal....................................................................................................................................... 185

12.1.12 REsp repetitivo n° 1272827/PE: Aplicabilidade do art. 739-A, § 1°

do CPC/73 à execução fiscal.................................................................................. 187

12.1 .13 REsp repetitivo n° 1268324/PA: intimação pessoal do representante

da Fazenda Pública Municipal na execução fiscal e nos embargos
no primeiro e no segundo grau de jurisdição............................................ 189

12.1.14 REsp repetitivo n° 1298407/DF: natureza pública das planilhas

produzidas pela Procuradoria-Geral da Fazenda Nacional com
base em dados da SRF e apresentadas em juízo para demonstrar
a ausência de dedução de quantia retida na fonte e já restituída
por conta de declaração de ajuste anual....................................................... 190

12.1.15 REsp repetitivo n° 11 40956/SP: impossibilidade deajuizamento da

execução fiscal quando houver o depósito do montante integral
do débito (art. 151, li, do CTN), que suspende a exigibilidade do
crédito tributário........................................................................................................... 191

12.1.16 REsp repetitivo nº 1127815/SP: impossibilidade de determinação

ex officio pelo juiz de reforço da penhora...................................................... 194

12.1.17 REsp repetitivo nº 957.836/SP: direito de preferência do crédito

tributário de autarquia federal relativamente ao crédito da Fazenda
Estadual............................................................................................................................... 198

12.1.18 REsp repetitivo n° 1120097/SP: extinção da execução fisca l não

embargada ex ofício, quando evidenciada a inércia da Fazenda
após intimação para promover o andamento do feito ........................ 200

12.1.19 REsp repetitivo nº 1158766/RJ: facultatividade da reunião de

execuções fiscais contra o mesmo devedor, por conveniência da
unidade da garantia da execução...................................................................... 202

12.1 .20 REsp repetitivo n° 1185036/PE: possibilidade de condenação da

Fazenda Pública em honorários advocatícios eryi íâzão do acolhi-
mento de exceção de pré-executividade em execução fiscal ......... 204

12.1 .21 REsp repetitivo n° 1144687/RS: possibilidade de citação median-

te carta precatória dirigida à Justiça Estadual na execução fisca l
ajuizada perante a Justiça Federal e cabimento da antecipação
das despesas com o deslocamento do oficial de justiça para
cumprimento da carta precatória ...................................................................... 205
f
._26 l FAZENDA PÚBLICA e EXECUÇÃO- Marco Aurélio Ventura Peixoto • Renato Cortez Vieira Peixoto

12.1.22 REsp repetitivo n° 1107543/SP: deferimento imediato da certidão

requerida pela Fazenda Pública a cartório extrajudicial, sem neces-
sidade de pagamento antecipado das custas correspondentes.... 208

12.1.23 REsp repetitivo n° 1045472/BA: possibilidade de substituição da

COA pela Fazenda Pública até a prolação da sentença dos embar-
gos para fins de correção de erro material ou formal e vedação da
modificação do sujeito passivo da execução.............................................. 21 O

12.1.24 REsp repetitivo nº 1090898/SP: inviabilidade de substituição do

bem penhorado por precatório na execução fiscal................................ 211
12.1.25 REsp repetitivo n° 1100156/RJ: possibilidade de decretação de
ofício da prescrição ocorrida antes da propositura da execução
fiscal....................................................................................................................................... 212
12.2 Teses firmadas em recursos extraordinários com reconhecimento de
repercussão gera I pelo STF ....................................................................................................... 212

12.2.1 AI 841548 RG: Inconstitucionalidade do reconhecimento às

entidades paraestatais dos privilégios processuais concedidos à
Fazenda Pública em execução por quantia certa..................................... 212
12.2.2 RE 657686: vedação constitucional da compensação unilateral de
débitos em proveito exclusivo da Fazenda Pública, ainda que os
valores envolvidos não estejam sujeitos ao regime de precatórios,
mas apenas à sistemática da requisição de pequeno valor............... 213

12.2.3 ARE 723307 Manif-RG: vedação do fracionamento da execução

pecuniária contra a Fazenda Pública para que uma parte seja paga
antes do trânsito em julgado, por meio de Complemento Positivo,
e outra depois do trânsito, mediante Precatório ou Requisição de
Pequeno Valor. ............................................................................................................... 214

12.2.4 RE 889173 RG: Observância do art. 100 da Constituição para opa-

gamento de valores devidos pela Fazenda Pública entre a data da
impetração do mandado de segurança e a efetiva implementação
da ordem concessiva.................................................................................................. 214
12.2.5 ARE 925754 RG: possibilidade de execução individual de sentença
condenatória genérica proferida contra a Fazenda Pública em
ação coletiva visando à tutela de direitos individuais homogêneos
(inexistência de violação ao art. 100, §8, da Constituição) .........·-······ 215
12.2.6 RE 592619: impossibilidade de fracionamento do valor de preca-
tório em execução para fins de pagamento das custas processuais
por meio de requisição de pequeno valor.................................................... 215
 SUMÁRIO 17
------ ---------

12.2.7 RE 568645: possibi lidade de pagamento singularizado de va lores

devidos a litisconsorte em caso de litisconsórcio facultativo simples
(inexistência de violação ao art. 100, §8°, da Constituição)................ 216
12.2.8 RE 6931 12: validade da penhora de bens de pessoa jurídica de
direito privado, realizada antes da sucessão desta pela União
(execução sem a sistemática de precatórios)............................................. 216
12.3 Súmulas do Superior Tribunal de Justiça e do Supremo Tribunal Federal
relativas à execução e à Fazenda Pública........................................................................ 217
12.3.1 Súm ula n° 190 do STJ................................................................................................. 217
12.3.2 Súmula nº 279 do STJ................................................................................................. 217
12.3.3 Súmula nº 345 do STJ................................................................................................. 217
12.3.4 Súmula nº 392 do STJ................................................................................................. 217
12.3.5 Súmulan°406doSTJ ................................................................................................. 218
12.3.6 Súmulan°521doSTJ ................................................................................................. 218

12.3.7 Súmula vinculante nº 47 do STF.......................................................................... 218

12.3.8 Súmu la n° 255 do STF ................................................................................................ 218
12.3.9 Súmula nº 277 do STF ................................................................................................ 218
12.3.1 O Súmula nº 620 do STF ........................................... ................................................... 219
12.3.11 Súmula nº 655 do STF................................................................................................ 219

Referências Bibliográficas.................................................................................... 22 1
 Capítulo 1

Considerações Iniciais

Analisando-se as prerrogativas processuais inerentes à atuação da

Fazenda Pública em juízo, destaca-se o regime próprio das execuções para
pagamento de quantia certa contra os entes que a compõem.
Tal regime se justifica, tendo em conta as particularidades que en-
volvem as pessoas jurídicas de direito público, que não suportariam se
submeter ao mesmo procedimento aplicável às execuções comuns.
Caracterizando-se a execução, basicamente, pela invasão legítima
e forçada sobre o patrimônio do devedor, a fim de lhe retirar bens com
o objetivo de fazer valer um direito pré-afirmado em título judicial ou
extrajudicial, por inúmeras razões - mas notadamente por serem públicos
os bens que compõem o acervo patrimonial da Fazenda Pública - não
se poderia cogitar de sua livre apreensão, penhora e expropriação, com
vistas à satisfação indiscriminada de seus credores.
Estão instalados nos bens pertencentes à Fazenda Pública não apenas
os órgãos públicos em que funcionam Ministérios ou Secretarias, mas
também escolas, creches, postos de saúde, hospitais, delegacias, dentre
outros, de modo que a própria continuidade dos serviços públicos dis-
ponibilizados à população restaria ameaçada caso houvesse a sujeição ao
rito comum das execuções.
De todo modo, ainda que se considere o interesse público como ele-
mento justificador de um regime diferenciado para as execuções contra
a Fazenda Pública, não há como se ignorar as críticas advindas dos mais
diversos setores em relação a tal prerrogativa.
l 20 ~ FAZENDA PÜBLICA e EXECUÇÃO- Marco Aurélio Ventura Peixoto• Renata C~rtez Vieira Peixoto

A maioria das críticas reside exatamente no regime de pagamento dos

débitos judiciais da Fazenda Pública, feito mediante precatórios, confor-
me prescrição do art. 100 da Constituição Federal, e que gera, não raras
vezes, um atraso ainda maior na efetiva prestação jurisdicional. Credores
ficam, em algumas situações, anos esperando pelo cumprimento de algo
que o Poder Judiciário já lhe assegurou na demanda em fase cognitiva.
A execução contra a Fazenda Pública, prevista no Código de Pro-
cesso Civil de 1973 em seus arts. 730 e 731, não restou esquecida no
Novo Código de Processo Civil (Lei n. 13.105, de 16 de março de 2015).
Em tal lei, dita espécie de execução continua com regime próprio
e diferenciado, mas há algumas modificações pontuais importantes,
notadamente no tocante à efetivação dos títulos judiciais, que não mais
se fará por meio de processo autônomo, mas mediante cumprimento
de sentença, como etapa posterior ao término da fase de conhecimento.
Buscar-se-á, portanto, no livro presente, discorrer sobre os aspectos
atinentes ao cumprimento de sentença contra a Fazenda Pública, discu-
tindo-se as questões doutrinárias e jurisprudenciais relevantes sobre o
tema e, fundamentalmente, analisando-se o cenário que se desenha com
a entrada em vigor do novo Código de Processo Civil.
Posteriormente, tratar-se-á da sistemática estabelecida para as exe-
cuções de títulos extrajudiciais contra a Fazenda, contida no art. 910 do
Código de Processo Civil, esta sim revelada por meio de um processo
autônomo, cuja defesa haverá de se fazer por meio de embargos à execução.
Embora não seja objeto específico do presente livro realizar uma
análise aprofundada da Lei de Execução Fiscal, afigura-se relevante
discorrer sobre os principais impactos do Código de Processo Civil de
2015 na Lei 6.830/80.
Serão também abordados outros temas que se relacionam à exe-
cução e que afetam a Fazenda Pública: a autocomposição, os negócios
processuais, o incidente de desconsideração da persqnalidade jurídica
e a sistemática de precedentes, que sofreram modificações importantes
com o advento do CPC/2015.
 Capítulo 2

Conceito de Fazenda Pública

A expressão Fazenda Pública é utilizada para designar as pessoas

jurídicas de direito público que figurem em ações judiciais, mesmo que
a demanda não verse sobre matéria estritamente fiscal ou financeira 1•
A relevância do estudo da atuação da Fazenda Pública em juízo é de
tamanha ordem, que se chega a afirmar que exista um chamado Direito
Processual da Fazenda Pública, ou Direito Processual Público 2 •
Não há dúvidas de que a expressão Fazenda Pública compreende: a)
os entes da Administração Pública direta: União, Estados, Distrito Federal
e Municípios; b) e, bem assim, as autarquias e as fundações de direito
público 3, que compõem a Administração Pública Indireta. Incorreto,
contudo, seria afirmar que todos os entes que integram a Administração
Pública indireta inserem-se no conceito de Fazenda Pública4•
Isto porque, no que concerne às empresas públicas e às sociedades de
economia mista, embora também façam parte do conceito de Adminis-

l. CUNHA, Leonardo José Carneiro da. A Fazenda Pública em juízo. 1"3. Ed. Rio de Janeiro: Forense,
2016, p. 6.
2. RODRIGUES, Marco Anton io. A Fazenda Pública no processo civil. 2. Ed. São Paulo: Atlas, 2016, p.
1.
3, ASSIS, Araken de. Manual da execução. São Paulo: Revista dos Tribunais, 2013, p. 1101 .
4. PEIXOTO, Marco Auré lio Ventura. A Fazenda Pública no Novo Côd igo de Processo Civil. ln ADONIAS,
Antonio; DIDIER JR., Fredie (coordenadores). Projeto do Novo Código de Processo Civil - 2• série.
Estudos em homenagem a José Joaquim Calmon de Passos. Salvador: Ed. Jus Podivm, 2012, P-
510
 22 FAZENDA PÚBLICA e EXECUÇÀO- Marco Aurélio Ventura Pe/xoto • Rena ta Cortez Vieira Pel"lloto

tração Pública indireta, como regra, por explorarem atividade econômica

de produção ou comercialização de bens ou de prestação de ser iços,
estão sujeitas ao regime próprio das empresas privadas, nos termos do
art. 173. § 1°, II da Constituição, razão pela qual, quando devedoras, são
executadas conforme as regras comuns previstas no CPC.
No entanto, relativamente às empresas públicas, se forem instituídas
para fins de prestação de serviços públicos de competência do entes da
Administnção Pública direta, haverá submissão ao regime executivo
especial, porquanto tais entidades, nesse caso, são equiparadas à Fazenda
Públicas. Essa é, inclusive, a orientação do Superior Tribunal de Justiça
sobre a matéria67•
No que concerne às ociedade de economia mi ta, o posiciona-
mento do Superior Tribunal de Justiça é mais restrito: ainda que tais
pessoas jurídicas prestem serviço público, submetem-se ao regime da
execuções contra o devedores em geral, incidindo, entrementes a impe-
nhorabilidade no que concerne aos bens que estejam diretamente ligados
à consecução dos erviços de natureza pública89 •

5. THEODOROJÚNIOR. Humberto. Curso de Direito Processual Civil: processo de execução e cumpri-

mento de sentença, processo cautelar e tutela de urgência, Vol. 11. Rio de Janeiro: Forense, 2013,
p.397.
6. '(.~1 A empresa pública, desde que prestadora de serviços públicos, goza dos pfiVilégios Inerentes à
Fazenda Pública, de modo que a execução proposta contra essa empresa deve seguir o rito preVisto
nos arts. 730 e seguintes do CPC (... )". (STJ, AgRg no AREsp 234.7 59/RJ, Rei. Ministro CASTRO MEIRA,
SEGUNDA TURMA, Julgado em 07/05/ 2013, OJe 16/05/2013)
7. "(-.) 2. A EMOP é uma empresa públíca, criada pelo Poder Público. vinculada li Secret."lria d e Estado
de Desenvolvimento Urbano e Regiona! (De,reto Estadual 15.122/1990), que presta, excluslvamente,
serviços públicos para o Estado do Rio de Janeiro e, diga-se de passagem, serviços de interesse
publico primário. Assim, cabe. de fato, equipará-la à Fazenda Pública, possibilitando a execução
por melo de precatório, pols tal empresa distlngue-se das demais empresas publicas que. em geral,
exercem atividades econômicas. 3."As empresas públicas, quando prestadoras de serviços públicos
de prestaçjo obrigatória pelo Estado,devem ser processadas pelo rito do art. 730 do CPC, inclusive
com a expedição de precatório (_)"(grifo nosso) {STJ, Esp 729.807 /RJ, Rei. Ministro MAURO CAMPBEU
MARQUES, SEGUNDA fURMA, julgado em 03/11/2009, DJe 13/11/2009)
8. PROCESSUAL CIVIL PENHORA. BENS DE 50QEDADE DE KONOMIA fvllSTA. POSSIBILIDADE. L /1
sociedade de economia mista, posto consubstanciar personalidade jurídica de direito prlvc1do,
swjeita-se, na cobrança de seus dêbltos ao regime comum das sociedades em geral, nada importando
o fato de prestarem serviço pllbllco, desde que a execução da função não reste comprometida pela
constrlção. Precedentes. 2. Recurso E5peclal desprovido (REsp 521.047/SP, Rei. Ministro Luiz Fux,
Primeira Turma, julgado em 20/1112003, DJ 16/ 2/2004 p. 214).
9. PROCESSO CIVIL. EXECUÇÃO DE TITULO E)(TRAJUDICIAL PENHORA EM BENS DE SOCIEDADE DE
ECONOMIA MISTA QUEPRESTA SERVIÇO PÚBLICO.A sociedade de economia mista tem personalidade
jurídica de direito privado e está sujeita, quanto à cobrança de seus débitos, ao regime comum das
sociedades em geral, nada importando o faro de que preste serviço públlco; só não lhe podem s-er
 Cap. 2 • CONCEITO DE FAZENDA PÚBLICA 23

No Supremo Tribunal Federal, em principio, considera-se que as

prerrogativas da Fazenda Pública não e estendem às empresas públicas
e às sociedades de economia mista, a não ser que comprovem não exercer
atividade econômica 10, mas sim serviço público próprio do Estado.
É o caso da Empresa Brasileira de Correios e Telégrafos que, segundo
o STF, "é prestadora de serviço público de prestação obrigatória e exclusiva
do Estado" 1', razão pela qual possui todas as prerrogativas processuais
estabelecidas em prol das pessoas jurídicas de direito público, inclusive a
impenhorabilidade de seus bens, rendas e serviços, conforme já decidido
pelo pleno da referida Corte Superior11•
Tomando-se por base o critério de não exercer atividade econômica
para que se possa compreender uma entidade como beneficiária das
prerrogativas da Fazenda Pública, deve-se consignar, nesse ponto>que
há quem entenda que se uma autarquia, por exemplo, explorar atividade
essencialmente privada não poderá dispor de tais benesses processuais,
inclusive o regime do art. 100 da Constituição da República. Há prece-
dente do STJ nesse sentido, indusive 13 •
No Supremo, não há decisões nesse teor. Todos os julgados que
excluem a sistemática dos precatórios e> consequentemente, o regime
executivo especial previsto na Constituição e no CPC para a Fazenda
Pública referem-se a empresas públicas ou a sociedades de economia
mista que exploram atividade econômica, nos moldes do já citado ru't.

penhorados bens que estejam diretamente comprometidos com a prestação do serviço público.
Recurso especial conhecido e provido (REsp 176.078/SP, Rei. Ministro Arl Pargendler, Segunda Turma,
julgado em 15/ 12/1998, DJ 8/3/1999 p. 200).
1O. "Ajurisprud~ncia da Corte é firme no sentido de que as prerrogativas processuais da fazenda pública
não são extensíveis às empresas pl.lblicas ou às sociedad es de economia mista''. (ARE 700429 AgR,
Relator(a): Min. DIAS TOFFOLI, Primeira Tum1a, julgado em 21 /1 0/ 2014, ACÓRDÃO ELETRÔNICO
DJe-224 DIVULG 13-11-201 4 PUBLIC 14-11 -2014)
11, RE 424227, Relator(a): Min. CARLOS VELLOSO, Segunda Turma, julgado,em 24/0B/2004, DJ 10-09·
2004 PP-00067 EMENTVOL-02163-05 PP-0097 1 RTJ VOL 00192-01 PP.00375
12, RE 220906, Relator(a): Min, MAURÍCIO CORRÊA, Tribunal Pleno, Julgado em 16/1 1/2000, DJ , 4- 11-
2002 PP-00015 EMENTVOL-02091 -03 PP-00430.
13. •o rito previsto pelos artigos 730 e seguintes do Código de Processo Civil, aplicável à execu çã o de
quantia certa contra a Fazenda Pl.lblica, não é ap!icãvel ao ente que, a despeito de formalmente ser
con siderado uma autarquia, na rea lidade, e[Tl razão de explorar atiVidade econômica, mediante
fomento de setores da economia, se reveste de natureza de empresa pública, como sucede in casu''.
(REsp 579.819/RS, Rei. Ministro MASSAMI UYEDA, TE.RCEIRA TURMA, julgado em 04/08/2009, DJe
15/09/2009) (Grifo nosso).
 24 FAZENDA PÚBLICA e EXECUÇÃO - Marco Aurélio Ventura Peixoto• Renota Cortez Vieira Peixoto

173, §1° da Constituição. Nada há sobre autarquia que eventualmente

exerça atividade própria das empresas privadas.
Por uma questão de coerência, entrementes, não há como pensar de
forma diversa. Se as empresas públicas e sociedades de economia mista,
quando exercem serviço essencialmente público, devem ser equiparadas
à Fazenda Pública para que possam dispor de determinadas prerrogativas
processuais, tais como a impenhorabilidade de bens, o contrário também
deve ser admitido: se uma autarquia ou fundação se dedicar a uma ativi-
dade privada, deverá ser excluída do conceito de Fazenda Pública e, por
conseguinte, será executada na forma comum prevista na lei processual.
Importante destacar que as agências executivas e reguladoras, por
terem natureza jurídica de autarquias especiais, são consideradas pessoas
jurídicas de direito público, integrando, portanto, o conceito de Fazenda
Pública. Da mesma forma, os consórcios públicos que sejam constituídos
sob a forma de associações públicas 14 •
O Código de Processo Civil/2015, como já ocorria com o anterior,
faz referência à Fazenda Pública em inúmeros dispositivos, inclusive nos
arts. 534 e 535, que tratam do cumprimento de sentença. Certamente
emprega a locução no sentido aqui referido.
Há uma regra no CPC/2015 que, especificando os entes estatais aos
quais se aplica, menciona os conselhos de fiscalização de atividade pro-
fissional. Trata-se do art. 45, que ti-ata do deslocamento da competência
para a Justiça Federal quando intervierem no processo, como partes ou
terceiros, entes da Administração Pública direta e indireta.
Os conselhos de fiscalização de atividade profissional, segundo
o Supremo Tribunal Federal, têm natureza jurídica autárquica, sendo,
portanto, considerados pessoas jurídicas de direito público 15•
Por isso, algumas prerrogativas processuais têm sido estendidas aos
referidos conselhos pela jurisprudência do STJ, como a intimação pessoal
na execução fiscal16 e os prazos especiais previstos n? art. 188 do CPC

14. CUNHA, Leonardo José Carneiro da. A Fazenda Pública em juízo. 13. Ed. Rio de Janeiro: Forense,
2016, p. 21.
15. RE 683010 AgR, Relator(a): Min. ROBERTO BARROSO, Primeira Turma,julgado em 12/08/2014, PRO-
CESSO ELETRÔNICO DJe-165 DIVULG 26-08·2014 PUBUC 27·08-2014.
16. REsp 1330190/SP, Rei. Ministro HERMAN BENJAMIN, SEGUNDA TURMA, julgado em 11/12/201 2, DJe
19/12/2012
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that money would thus be retained within the country. Within a very
few months, he had erected a work near Leith for this manufacture,
and brought home from Holland and Flanders ‘expert masters’ for
making the cards, and ‘carvers for making the patterns,’ all of whom
he took bound to instruct native workmen. In a very short time, we
find him at war with two merchants who were accustomed to import
playing-cards, and not disposed to brook his monopoly. Perhaps
Peter was too vehement in his proceedings for the Scotch people
among whom he cast his lot; perhaps they were unduly jealous of
this keen-witted stranger. How it came we cannot tell; but before the
work had been long erected, the tacksman of Canonmills set upon it
and did somewhat to demolish it, and, horrid to relate, threw
Madame de Bruis into the dam, besides using opprobrious words; for
which he was fined in £50, and imprisoned. Not long after, Peter
gained a triumph over the two importers of cards, for they were
ordered by the Council to compound with him at so much a pack
before they could be allowed to sell them.286
In the ensuing February, Peter was again in
trouble. Alexander Daes, owner of the paper- 1682. Feb. 16.
manufactory at Dalry Mills, complained that his
privilege of making paper and playing-cards had been infringed by
Peter Bruce and James Lithgow, who had clandestinely obtained a
licence for a playing-card manufactory. They had likewise enticed
away a workman named Nicolas de Champ, whom he had brought
from France, and caused the abstraction from his work of some of
his haircloths. The Council freed Peter and his associate from
everything but the charge of taking away the haircloths, which they
left to be dealt with by the ordinary judge.—P. C. R.
Altogether, Peter seems to have found great
difficulty in preventing a sale of foreign cards. It 1681.
was difficult to detect the importation of such
articles. A package containing a quantity of them had lately been
brought by the ship of one Adam Watt; and even the custom-house
officer winked at its being smuggled ashore. Peter craved the
Council (June 7, 1682) for general letters against the contraveners of
his privilege; but the Council, apparently warned by the complaints
about the Messrs Fountain, would only, on that occasion, agree to
give warrant for particular cases. Afterwards (July 5), they gave a
more general warrant, but still declaring that Bruce, in the event of
making a wrong charge, should be liable to a fine.
Finally, persecuted out of Edinburgh, Peter betook himself to
Glasgow, and tried to set up a paper-mill at Woodside, near that
city; but here, too, he encountered a variety of troubles and
oppressions, designed for the purpose of neutralising his monopoly
of the manufacture of playing-cards, his builders failing in their
engagements, his men being seduced away from him, his mill-course
defrauded of water, and so forth. He complained to the Privy Council
(January 6, 1685), and got a decree against his two chief
persecutors, John Campbell and James Peddie, for a thousand merks
as compensation for the injuries he had suffered. When everything
else failed, Peter seems to have turned his religious professions to
some account, as he is last seen acting as printer to the Catholic
chapel and college at Holyrood—where, doubtless, the Revolution
gave him a disagreeable surprise.

The college youths renewed the demonstration of

last year. ‘Their preparations were so quiet, that Dec. 26.
none suspected it this year. They brought [the
pope] to the Cross, and fixed his chair in that place where the
gallows stands. He was tricked up in a red gown and a mitre, with
two keys over his arm, a crucifix in one hand, and the oath of the
Test in the other. Then they put fire to him, and it burnt lengthy till it
came to the powder, at which he blew up in the air.
‘At this time, many things were done in mockery of the Test: one I
shall tell. The children of Heriot’s Hospital, finding that the dog
which kept the yards of that hospital had a public charge and office,
ordained him to take the Test, and offered him a paper. But he,
loving a bone better than it, absolutely refused it. They then rubbed
it over with butter, which they called an Explication of the Test, in
imitation of Argyle, and he licked off the butter, but did spit out the
paper; for which they held a jury upon him, and, in derision of the
sentence on Argyle, they found the dog guilty of treason, and
actually hanged him.’—Foun.

Alexander Cockburn, the hangman of Edinburgh,

was tried before the magistrates as sheriffs, for the 1682. Jan. 16.
murder, in his own house, of one Adamson or
Mackenzie, a blue-gown beggar. The proof was 1682.
slender, and chiefly of the nature of presumption—
as, that he had denied Adamson’s being in his house on the alleged
day, the contrary being proved, groans having been heard, and
bloody clothes found in the house; and this evidence, too, was
chiefly from women. Yet he was condemned to be hanged within
three suns. One Mackenzie, whom Cockburn had caused to lose his
place of hangman at Stirling, performed the office.—Foun.

Three men were drowned this day, by falling

through the ice on the North Loch. ‘We have a Feb. 11.
proverb that the fox will not set his foot on the ice
after Candlemas, especially in the heat of the sun, as this was at two
o’clock; and at any time the fox is so sagacious as to lay his ear to
the ice, to see if it be frozen to the bottom, or if he hear the
murmuring and current of the water.’—Foun.
A strange story was circulated regarding a servant
lass in the burgh of Irvine. Her mistress, the wife Feb.
of the Honourable Major Montgomery, having had
some silver articles stolen, blamed the lass, who, 1682.
taking the accusation much amiss, and protesting
her innocence, said she would learn who took those things, though
she should raise the devil for it. The master and mistress let this
pass as a rash speech; but the girl, being resolute, on a certain day
‘goes down to a laigh cellar, takes a Bible with her, and draws a circle
about her, and turns a riddle on end twice from south to north, or
from the right hand to the left hand, having in her hand nine
feathers, which she pulled out of the tail of a black cock, and having
read the 21st [psalm] forward, she reads backward chap. ix., verse
19, of the book of Revelation; he appears in a seaman’s clothing,
with a blue cap, and asks what she would. She puts one question to
him, and he answers it; and she casts three of the feathers at him,
charging him to his place again; then he disappears. He seemed to
her to rise out of the earth to the middle of his body. She reads the
same verse backward the second time, and he appears the second
time, rising out of the ground, with one leg above the ground; she
asks him a second question, and she casts other three feathers at
him, charging him to his place; he again disappears. She reads again
the third time the verse backward, and he appears the third time
with his body above ground (the last two times in the shape of a
black grim man in black clothing, and the last time with a long tail);
she asks a third question at him, and casts the three last feathers at
him, charging him to his place; and he disappears. The major-
general and his lady, being above stairs, though not knowing what
was a-working, were sore afraid, and could give no reason of it; the
dogs in the city making a hideous barking round about. This done,
the woman, aghast, and pale as death, comes and tells her lady who
had stolen the things she missed, and they were in such a chest in
her house, belonging to some of the servants; which being
searched, was found accordingly. Some of the servants, suspecting
her to be about this work, tells the major of it, and tells him they
saw her go down to the cellar; he lays her up in prison, and she
confesses as is before related, telling them that she learned it in Dr
Colvin’s house in Ireland, who used to practise this.’—Law.
Fountainhall relates this story more briefly as ‘a strange accident,’
and remarks that the divination per cribrum (by the sieve) is very
ancient, having been practised among the Greeks. He is puzzled
about her confession, as it may be from frenzy and hatred of life;
but if the fact of the consultation can be proved, he is clear that it
infers death.
Divination by a sieve was performed in this manner: ‘The sieve being
suspended, after repeating a certain form of words, it is taken
between the two fingers only, and the names of the parties
suspected, repeated: he at whose name the sieve turns, trembles, or
shakes, is reputed guilty of the evil in question.... It was sometimes
practised by suspending the sieve by a thread, or fixing it to the
points of a pair of scissors, giving it room to turn, and naming as
before the parties suspected: in this manner Coscinomancy is still
practised in some parts of England.’—Demonologia. By J. S. F.
London, 1827; p. 146.

‘Strange apparitions were seen in and about

Glasgow, and strange voices and wild cries [were Feb.
heard], particularly one night about the Deanside
well, was heard a cry, Help, help!‘—Law. Many such occurrences are
noted about this time and for four or five years before. In March
1679, for instance, a voice was heard at Paisley Abbey, crying: ‘Wo,
wo, wo—pray, pray, pray!’ Such reports reveal the excited state of
the public mind and a general sense of anxiety under the religious
variances of the time.
Major Learmont, an old soldier of the Covenant,
though only a tailor to his trade, was taken in his 1682. Mar.
own house near Lanark, or rather in a vault
connected with it which he had contrived for hiding. ‘It had its entry
in his house, upon the side of a wall, and closed up with a whole
stone, so close that none could have judged it but to be a stone of
the building. It descended below the foundation of the house, and
was in length about forty yards, and in the far end, the other mouth
of it, was closed with feal [turf], having a feal dyke built upon it; so
that with ease, when he went out, he shot out the feal and closed it
again. Here he sheltered for the space of sixteen years, taking to it
at every alarm, and many times hath his house been searched for
him by the soldiers; but where he sheltered none was privy to it but
his own domestics, and at length it is discovered by his own
herdsman.’—Law.

Thomas Barclay of Collerine in Fife was a youth of

eighteen, in possession of ‘an opulent estate,’ and Mar. 9.
likewise of a considerable jurisdiction in his county.
His predecessors were loyalists; but Thomas himself, by the
remarriage of his mother to Mure of Rowallan in Ayrshire, was,
according to the allegation of his uncle John Barclay, in the way of
being ‘bred up in a family of fanatical and disloyal principles, not
being permitted to visit or be acquainted with his nearest relations
and friends, and denied all manner of education suitable to his
quality ... not being sent to college’—he had, moreover, been
influenced to choose ‘curators altogether strangers to his family, of
known disaffected and disloyal principles.’ It seemed, in John
Barclay’s judgment, unavoidable in these circumstances that a
supporter would be lost to his majesty’s interests, unless a remedy
were provided.
It seems so far creditable to a government which has a good many
sins at its charge, that, when this case came before the Duke of York
and the Privy Council, on John Barclay’s petition, and both sides had
been heard—namely, the uncle on one side, and the Lady Rowallan,
with the three curators, Montgomery younger of Skelmorley, the
Laird of Dunlop, and Mr John Stirling, minister of Irvine, on the other
—they decided that the young Barclay was of age to act and choose
curators for himself, and that the defenders were not bound to
produce him in court; thus frankly consenting that the young man
should rest in the danger of being perverted from the loyalty of his
family.— P. C. R.
A severe murrain commenced amongst the cattle,
thought to be owing to the deficient herbage of 1682. Apr.
the preceding year, and the heavy rains of the
intermediate season.287 The support of cattle during winter was at
all times a trying difficulty in those days of no turnip-husbandry; but
on an occasion like this it was scarcely possible. It was remarked
that the farmers had to cut heather for their beasts to lie upon, and
pull the old straw out of the coverings of their houses to feed them
with. The murrain lasted till May, when some tenants in the
Highlands lost as many as forty cows by it.

A complaint presented to the Privy Council by

Janet Stewart, servant to Mr William Dundas, Apr. 18.
advocate, set forth that James Aikenhead,
apothecary in Edinburgh, took upon him ‘to compose and vent
poisonous tablets,’ and ‘Mistress Elizabeth Edmonstoun, having got
notice of these tablets, and that they would work strange wanton
affections and humours in the bodies of women,’ sent James
Chalmers for some of them, which she caused to be administered to
the complainer, in presence of several persons, ‘as a sweetmeat
tablet.’ Janet having innocently accepted of the tablet, ate of it, and
in consequence ‘fell into a great fever, wherein she continued for
twenty days, before anybody knew what was the cause of it; so that
the poison has crept into her bones, and she is like never to recover.’
Fountainhall tells us that Janet would not have recovered, ‘had not
Doctor Irvine given her an antidote.’ The Council remitted the case
to the College of Physicians, as being skilled in such matters (periti
in arte), ‘who,’ says Fountainhall, ‘thought such medicaments not
safe to be given without first taking their own advice.’288

A riot took place in the streets of Edinburgh, in

consequence of an attempt to carry away, as May 3.
soldiers to serve the Prince of Orange, some young
men who had been imprisoned for a trivial offence. 1682.
As the lads were marched down the street under a
guard, to be put on board a ship in Leith Road, some women called
out to them: ‘Pressed or not pressed?’ They answered: ‘Pressed,’ and
so caused an excitement in the multitude. A woman who sat on the
street selling pottery, threw a few sherds at the guard, and some
other people, finding a supply of missiles at a house which was
building, followed her example. ‘The king’s forces,’ says Fountainhall,
‘were exceedingly assaulted and abused.’ Under the order of their
commander, Major Keith, they turned and fired upon the crowd,
when, as usual, only innocent bystanders were injured. Seven men
and two women were killed, and twenty-five wounded—a greater
bloodshed than ‘has been at once these sixty years done in the
streets of Edinburgh.’ One of the women being pregnant, the child
was cut from her and baptised in the streets. Three of the most
active individuals in this mob were seized and tried, but the assize
would not find them guilty. The magistrates were severely blamed
for their negligence and cowardice in this affair.
It gave origin to the well-known Town-guard of Edinburgh, for, under
the recommendation of the Privy Council, and with the sanction of
the king, it was agreed to raise a body of a hundred and eight men,
to serve as a protection to the city in all emergencies. The
inhabitants were taxed to pay for it, ‘some a groat, some fivepence,
and the highest at sixpence a week;’ but this being found
oppressive, the support of the corps, which cost 22,000 merks a
year, was soon after put upon the town’s common good.289 Patrick
Graham, a younger son of Graham of Inchbrakie, was appointed
captain, at the dictation of the Duke of York, who, says Fountainhall,
‘would give a vast sum to have such a breach in London’s walls.’
Many who remember the Town-guard, with their rusty brown
uniform, their Lochaber axes, and fierce Highland faces, as a
curiosity of the streets of Edinburgh in their young days, will be
perhaps unpleasingly surprised to learn that the corps was originally
an engine of the government of the last Stuarts. Captain Graham,
who was a sincere loyalist by blood, being descended from the
Inchbrakie who sheltered Montrose on his commencing the
insurrection of 1644, figured with his guards on various occasions
during the remainder of the Stuart reigns, particularly at the bringing
in of the Earl of Argyle to be executed in 1685, when he and the
hangman received the unhappy Maccallummore at the Watergate,
and conducted him along the street to prison.
The Town-guard was disbanded in November
1817, by which time it had been reduced to 1682.
twenty-five privates, two sergeants, two corporals,
and two drummers.

The Gloucester frigate, on her voyage from London

to Edinburgh with the Duke of York and his friends, May 6.
and attended by some smaller vessels, was by a
blunder wrecked on Yarmouth Sands. A signal-gun brought boats
from the other vessels to the rescue of the distressed party, and the
duke and several other men of importance were taken from the
vessel, just before she went to pieces. A hundred and fifty persons,
of whom eighty were men of quality, including the Earl of Roxburgh,
the Laird of Hopetoun, Sir Joseph Douglas of Pumpherston, and Lord
O’Brian of the Irish peerage, were drowned. Sir George Gordon of
Haddo, president of the Court of Session, and who had just received
the high appointment of Chancellor of Scotland, escaped by leaping
into the water, whence he was drawn by the hair of the head into a
boat. The Earl of Roxburgh had been heard crying for a boat, and
offering twenty thousand guineas for one. His servant in the water
took him on his back, and was swimming with him to a boat, when a
drowning person clutched at them, and the unfortunate earl fell off
and perished, his servant barely escaping for the moment, and dying
an hour after. The duke and the rest of the survivors arrived in Leith
next day, without further accident.
‘The pilot, one Aird, of Borrowstounness, was threatened with
hanging for going to sleep and giving wrong directions ... he was
condemned to perpetual imprisonment.’—Foun.
It is remarkable that the widow of the Earl of Roxburgh survived him
in widowhood for seventy-one years, dying in 1753.

Sir Alexander Lindsay of Evelick—an ancient castle

on the high grounds overlooking the Carse of June 13.
Gowrie—had married as a second wife the widow
of Mr William Douglas, ‘the advocate and poet.’290 1682.
Both had children approaching maturity, and
William Douglas, the lady’s son, became very naturally the playfellow
of Sir Alexander’s heir Thomas. Whether jealousy on account of the
superior prospects of Thomas Lindsay had entered William Douglas’s
heart, we cannot tell; but the two boys being out one day in the Den
of Pitrodie, a romantic broomy dell near Evelick, Douglas was
tempted to stab Lindsay with a clasp-knife, and so murder him.
The wretched boy gave a confession next day, fully admitting his
guilt. It commences thus: ‘I have been over proud and rash all my
life. I was never yet firmly convinced there was a God or a devil, a
heaven or a hell, till now. To tell the way how I did the deed my
heart doth quake [and] head ryves. As I was playing and kittling at
the head of the brae, I stabbed him with the only knife which I have,
and I tumbled down the brae with him to the burn; all the way he
was struggling with me, while I fell upon him in the burn, and there
he uttered one or two pitiful words. The Lord Omnipotent and all-
seeing God learn my heart to repent.’ On this occasion, ‘he also
produced the little knife called Jock the leig, with ane iron haft.’
Being on the ensuing day brought before the sheriff-court of Perth, it
was there alleged against him that ‘he did conceive ane deadly
hatred and evil [will] against Thomas Lindsay, son to Sir Alexander
Lindsay of Evelick, with a settled resolution to bereave him of life; he
did upon the thretteen day of this instant month, being Tuesday last,
about seven hours in the afternoon or thereby, as he was coming
along the Den of Pitrodie in company with the said Thomas Lindsay,
fall upon the said Thomas, and with his knife did give him five
several stabs and wounds in his body, whereof one about the mouth
of his stomach, and thereafter dragged him down the brae of the
den to the burn, and there with his feet did trample upon the said
Thomas lying in the water, and as yet he not being satisfied with all
that cruelty which he did to the said Thomas, he did with a stone
dash him upon the head, so that immediately the said Thomas died.’
To the great concern of his friends, the boy now
retracted his confession, alleging that he found 1682.
Thomas Lindsay lying in the burn, and in trying to
help him up had fallen upon him. The trial was consequently
postponed to a future day. Meanwhile his friends exerted themselves
to bring back the culprit to a sense of his guilt, and after a few days,
they seem to have succeeded. On the 25th of June, his mother is
found writing to the Laird of Balhaivie, a cousin of the murdered
youth, relating how she had been witness to the power of God in
changing the heart of the obstinate. ‘In a very little,’ says she, ‘after
you went to the door, he rose up in such a passion of grief and
sorrow, crying out in such bitterness, rapping on the table, and
cursing the hour it entered into his head to recant, and promised
through the Lord’s strength, nothing should persuade him to do it
again, but that he should constantly affirm the truth of his first
declaration. He took out the declaration the devil had belied him to
write, and cried to cast it in the fire, with so much sorrow and tears,
as he took his head in his hand and said he feared to distract
[become distracted], and prayed that the Lord would help him in his
right judgment, that he might still adhere to truth. This,’ continues
the wretched mother, ‘was some consolation to my poor confounded
mind; but when I consider that deceitful bow the heart, and his
frequent distemper, my spirit fails.... I desire you and the rest of
your worthy friends no to pit yourself to needless charges in the
affair, for I, his nearest relation, being not only convinced justice
should be satisfied, but am desirous nothing may occur to hinder.
And as I know, though both he and I hath creditable friends, they
will be ashamed to own me in this. The good God that best knows
my pitiful case bear [me] up under this dismal lot, and give you and
all Christians a heart to pray for him, and your poor afflicked
servant, Rachel Kirkwood.’
The Laird of Balhaivie seems to have entered kindly into the lady’s
feelings. His answer contains a few traits highly characteristic of the
time. ‘Much honoured madam, as soon as Sir Pat[rick Threipland]
gave me account yesternight of your son’s second confession, I went
alongs with Sir Patrick and saw him, and I swear to outward
appearance he seemed very serious, and I pray God Almighty
continue him so.... My cousin, young Evelick, and all his relations are
very sensible of your ladyship’s extraordinary and wonderful good
carriage in ane affair so astounding as this has been, and ye renew
it in your letter, wherein ye desire they should not be put to needless
trouble and charges in the affair. The truth is, madam, there is none
of us but are grieved to the bottom of our hearts that we should be
obliged to pursue your son to death; but we keep evil consciences if
we suffer the murder of so near a relation to go unpunished; and his
life for the taking away of the other’s is the least atonement that
credit and conscience can allow.... His dying by the hand of justice
will be the only way to expiate so great a crime, and likewise be a
means to take away all occasion of grudge which otherwise could
not but continue in the family....’291
The youth was brought to trial in Edinburgh, and
condemned to suffer death on the 4th of August. 1682.
After the trial, he confessed that it was he who in
the January preceding ‘put fire in Henry Graham’s writing-chamber,
out of revenge, and that he had first stolen some books there.’ He
was subjected to a new trial for this crime, because, being treason,
it would have inferred a forfeiture of his estate, worth upwards of
£2000; but on this occasion he retracted his confession, nor could
any thing prevail with him to renew it judicially. The jury, who were
honest Edinburgh citizens, seeing that the design was to enrich
certain courtiers at the expense of the sisters of the young homicide,
acquitted him of the new charge, to the great irritation of the king’s
advocate, who ‘swore that the next assizers he should choose should
be Linlithgow’s soldiers, to curb the phanaticks.’292

The magistrates of Dumfries had a man called

Richard Storie in their jail, on a charge of murder, July 5.
and were put to great charges in keeping and
guarding him, because several of his friends from the Borders daily
threatened to force the prison and permit him to make his escape ‘if
he shall remain any longer there.’293 It was therefore found
necessary to order that Storie should be transferred by the sheriff
under a sufficient guard to the next sheriff upon the road to
Edinburgh, and so on to Edinburgh itself, where he should be placed
in firmance in the Tolbooth.
There was the more reason for the magistrates of
Dumfries being anxious about the detention of 1682.
Richard Storie, that George Storie, an associate in
his crime, had already escaped. These two men were accused of
having basely and cruelly murdered Francis Armstrong in Alisonbank,
in the preceding month of June. The witnesses being Englishmen, it
was necessary (December 7, 1682) to recommend to the sheriff of
Cumberland to take measures for insuring their appearance before
the Court of Justiciary at the approaching trial. This proving
ineffectual, the widow and six children of Francis Armstrong
petitioned in March for further and more effectual efforts; and the
lords agreed to address the English secretary of state on the subject.
Not long after (April 30, 1684), the Council was informed that, ‘by
the throng of prisoners in the Tolbooth of Dumfries, the same has
been already broken, and is yet in the same hazard.’ Being at the
same time made aware ‘that, within the castle of Dumfries, there are
some strong vaults fit for the keeping of prisoners,’ they gave orders
to have these prepared for the

A poor Quaker, named Thomas Dunlop, had taken

a house in Musselburgh, and was endeavouring by July 7.
humble industry to support himself and his family,
without being burdensome to any. But other Quakers came
occasionally about him, to the annoyance of the magistrates of the
town; and finding he broke a local law, in having no certificate of
character from the minister of the parish in which he had last
resided, they took advantage of the circumstance to get quit of him.
Poor Thomas and his wife and little children were thrust out of their
home into the fields, notwithstanding his entreaties for delay till he
should get letters certifying his respectability from persons they
knew. He had now been lodging for thirteen days and nights in the
fields, the magistrates resisting all pleadings in his favour from
charitable persons, and disregarding the misery which he was
manifestly enduring. On his petition to that body which almost every
week was sending recusant Whigs to the scaffold, they lent him a
patient hearing, and summoned the Musselburgh magistrates before
them; but all that the laws permitted them to do in the case, was to
ordain that Thomas might have recourse to a legal action if the
magistrates had not ‘removed him in ane orderly manner.’—P. C. R.
James Somerville, younger of Drum, riding home
to that place from Edinburgh, found on the way July 8.
two friends fighting with swords—namely, Thomas
Learmont, son of Mr Thomas Learmont, an 1682.
advocate, and Hew Paterson, younger of
Bannockburn. These two young men had quarrelled over their cups.
Young Somerville dismounted, and tried to separate them, but
received a mortal wound from Paterson’s sword, though inflicted by
the hand of Learmont, the two combatants having perhaps, like
Hamlet and Laertes, exchanged weapons. The wounded man lived
two days, and expressed his forgiveness of Learmont, who, by his
advice, fled. ‘Some alleged his wounds were not mortal, but
misguided.’ Somerville was the progeny of the marriage described as
having taken place at Corehouse in November 1650. He left an
infant son, who carried on the line of the family.—Foun.

A comet began to appear in the north-west. ‘The

star was big, and the tail broad and long, at the Aug. 17.
appearance of four yards.’ It continued visible for
twenty days.—Law.
This was the celebrated Halley’s Comet, so called in honour of the
illustrious astronomer who first ascertained, by his calculations
regarding it, the periodicity of comets. The same object had been
observed by Kepler in 1607, and by Apian in 1531. ‘The identity of
these meteors seeming to Halley unquestionable, he ventured to
predict that the same comet would reappear in 1758, and that it
would be found to revolve in a very elongated ellipse in about
seventy-six years. As the critical period approached, which was to
decide so momentous a question regarding the system of the world,
the greatest mathematicians endeavoured to track the comet’s
course with a minuteness which Halley’s opportunities did not permit
him to reach. The illustrious Clairhaut, feeling that a general
prediction was not enough, undertook the most complex problem as
to the disturbing effects of the planets through whose orbits it must
pass.... He succeeded in predicting one of the positions for the
comet for the middle of April; stating, however, that he might be in
error by thirty days. The comet occupied the position referred to on
the 12th of March.’—Nichol’s Contemplations on the Solar System.
It is humiliating to have to remark, that the notices
of comets which we derive from Scotch writers 1682.
down to this time, contain nothing but accounts of
the popular fancies regarding them. Practical astronomy seems to
have then been unknown in our country; and hence, while in other
lands men were carefully observing, computing, and approaching to
just conclusions regarding these illustrious strangers of the sky, our
diarists could only tell us how many yards long they seemed to be,
what effects were apprehended from them in the way of war and
pestilence, and how certain pious divines ‘improved’ them for
spiritual edification. Early in this century, Scotland had produced one
great philosopher—who had supplied his craft with the mathematical
instrument by which complex problems, such as the movement of
comets, were alone to be solved. It might have been expected that
the country of Napier, seventy years after his time, would have had
many sons capable of applying his key to such mysteries of nature.
But not one had arisen—nor did any rise for fifty years onward,
when at length Colin Maclaurin unfolded in the Edinburgh University
the sublime philosophy of Newton. There could not be a more
expressive signification of the character of the seventeenth century
in Scotland. Our unhappy contentions about external religious
matters had absorbed the whole genius of the people, rendering to
us the age of Cowley, of Waller, and of Milton, as barren of elegant
literature, as that of Horrocks, of Halley, and of Newton, was of
science.
John Corse, Andrew Armour, and Robert Burne,
merchants in Glasgow, were now arranging for the Nov. 23.
setting up of a manufactory ‘for making of
damaties, fustines, and stripped vermiliones,’ expecting it would be
‘a great advantage to the country, and keep in much money therein
which is sent out thereof for import of the same.’ Seeing ‘it
undoubtedly will require a great stock and many servants, strangers,
which are come and are to be sent for,’ the enterprisers deemed
themselves entitled to have their work declared a manufactory, so
that it might enjoy the privileges accorded to such by act of
parliament. This favour was granted by the Council for nine years,
‘but prejudice to any other persons to set up and work in the said
work.’—P. C. R.

Daniel Mure of Gledstanes,294 out of health and

mental vigour, and believed to be on his death- Dec.
bed, was induced to make a disposition of his
estate to Thomas Carmichael of Eastend. Such a 1682.
disposition, however, could not be valid by the law
of Scotland, unless the testator appeared afterwards ‘at kirk and
market’—an arrangement designed to insure that natural heirs
should not be cheated. By ‘a most devilish contrivance’ of William
Chiesley, writer in Edinburgh, Thomas Bell, Carmichael’s servant,
was dressed up to personate the sick man, and taken with all due
form to the public places appointed by the law. The notary before
whom the man presented himself was so doubtful of his being
Daniel Mure, that he caused him to take his oath that he was truly
that person. When Carmichael and his man afterwards retired to a
tavern with the notary, the latter once more expressed his doubt,
saying: ‘This person is certainly not like Daniel Mure;’ to which
Carmichael answered, that he was really the man, but much altered
by sickness. On the death of Daniel Mure soon after, Carmichael
accordingly appeared as the inheritor of the estate of Gledstanes, to
the exclusion of Francis Mure, merchant in Edinburgh, the brother of
the deceased. The affair was the more wicked, as the estate was
one which had been long in Mure’s family.
On the whole matter being brought before the
Privy Council by Francis Mure, the truth became Dec. 21.
clear, and Carmichael was punished by a fine of
five thousand merks, whereof two thousand were assigned to
Francis, as a compensation for the damage he had sustained; while
Chiesley, the writer, was mulcted in three thousand merks for being
accessory to the cheat. An obligation which Francis Mure had been
induced to give to Carmichael, binding himself never to expose or
pursue the forgery, was at the same time discharged. It is not
unworthy of remark, that Chiesley, who had devised this forgery and
drawn up the iniquitous obligation aforesaid, was one of those
members of the legal profession who had refused, from scruples of
conscience, to take the Test.—P. C. R.

Alexander Nisbet of Craigentinny and Macdougall

of Makerston had gone abroad to fight a duel, Dec. 23.
attended by Sir William Scott of Harden and ——
Douglas, ‘ensign to Colonel Douglas,’ as seconds. The Privy Council
hearing of it, ordered the four gentlemen to be confined in the
Tolbooth in different rooms, until it should be inquired into. The
principals were, on petition, set at liberty in a few days, after giving
caution for reappearance.—P. C. R.

The widow of Andrew Anderson at this time

carried on business in Edinburgh as the king’s 1683. Jan. 5.
printer, by virtue of a royal gift debarring others
from exercising the like art. The bibles produced by her are said by
Fountainhall to have been wretchedly executed.
One David Lindsay having now got a similar gift, 1683.
Mrs Anderson endeavoured to keep him out of the
trade, setting forth that she had been previously invested with the
privilege, and ‘one press is sufficiently able to serve all Scotland, our
printing being but inconsiderable.’295 The Lords ordained that Mrs
Anderson’s monopoly should be held as only including the printing of
such things as had been specified in the gift to her husband’s
predecessor Tyler.
There were at this time printers in Glasgow and Aberdeen, but
probably no other part of Scotland—though St Andrews had had a
press before the Reformation. The business of the printer has been
of slow growth in our country. Edinburgh contained in 1763 only six
printing-offices; in 1790, sixteen;296 there are, in 1858, sixty-two
printing firms, besides several publishing offices, in which special
printing work is executed.

It was represented to the Privy Council by the

Bishop of Aberdeen that the Quakers in his diocese Feb. 1.
were now proceeding to such insolency, as to erect
meeting-houses for their worship and ‘schools for training up their
children in their godless and heretical opinions;’ providing funds for
the support of these establishments, and in some instances adding
burial-grounds for their own special use. The Council issued orders
to have proper investigations made amongst the leading Quakers
concerned and the proprietors of the ground on which the said
meeting-houses and schools had been built.—P. C. R.

At the funeral of the Duke of Lauderdale at Haddington, while the

usual dole of money was distributing among the beggars, one,
named Bell, stabbed another. ‘He was
apprehended, and several stolen things found on Apr. 5.
him; and, he being made to touch the corpse, the
wound bled afresh. The town of Haddington, who it seems have a
sheriff’s power, judged him presently, and hanged him over the
bridge next day.’—Foun.

Alexander Robertson of Struan, whom we saw two

years back breaking out with mortal fury against Apr. 19.
an agent of the Marquis of Athole in the chamber
of the Privy Council, now comes before us in a 1683.
more agreeable light—namely, as one seeking to
cultivate an industrial economy in the midst of the vicious idleness
and barbarism of the Highlands. Far up among the Perthshire alps,
on the dreary shores of Loch Rannoch, there was then ‘a
considerable wood,’ the property of Struan. This would have been
useless to him and the country—being in so remote a wilderness—‘if
he had not, with great expenses and trouble, caused erect saw-mills,
in which, these divers years past, there has been made the number
of 176,000 deals.’ This had redounded ‘to the great benefit and
conveniency of the country adjacent, besides the keeping of many
persons at work’ who would otherwise have been idle and in
wretchedness. Struan, however, could not obtain a market for the
great bulk of his timber, without sending it in floats along Loch
Rannoch, and down the water of Tummel into the Tay; and in this
long and tedious passage, it was sometimes driven by storms and
spates [floods] on shore, or on the banks of the rivers, where it was
made prey of by the country people, ‘thinking they would be no
further liable than to a dead spulyie.’ Occasionally, ‘louss and broken
men’ attacked his mills in the night-time, and helped themselves to
such timber as they wanted. ‘So that his work was likely to be
broken and ruined.’ The Privy Council, on Struan’s petition, issued a
strong edict for the prevention of these spoliations, and further gave
him power to make roads between his saw-mills in Carrie and
Apnadull, and to take a charge of those from Rannoch to Perth, so
that he might have the alternative of land-carriage for his timber.—P.
C. R.
The chance of getting the spoliations put down must have been very
small, for thieving raged like a very pestilence in the Highlands. The
Earl of Perth, writing from Drummond in July 1682, says
expressively: ‘We are so plagued with thieving here, it would pity
any heart to see the condition the poor people are in.’297

Sir Thomas Stewart of Coltness298 was obliged to

fly to Holland, in consequence of a vague threat Apr.
held out by Sir George Mackenzie, supposed to
have been designed to frighten the unfortunate gentleman away,
that his estate might be seized. The subsequent circumstances, as
related by his son, give a striking view of the troubles in which a
Presbyterian family of rank might then be involved, even while
making no active demonstrations against the government.
‘The day after he was gone, came one of the Lord
Advocate’s emissaries, Irvine of Bonshaw, with a 1683.
party of dragoons heated with fury and with
liquor.... They demanded the family horses, though their warrant
bore no more than to apprehend the person of Thomas Stewart of
Coltness; and when Irvine was told by Mr James Stewart, Coltness’s
second son, that he was acting beyond orders in offering to seize
horses or goods, he swore and blasphemed against rebels and
assassins, and that any treatment was warrantable against such.
The child Robert made some childish noise, and he threw down the
boy of eight years old from a high leaping-on stone. The lady, seven
months gone with child, came down to reason with him, but he was
so much the more enraged. He offered to shoot the groom [who]
stood behind, for denying the keys of the stable, and at length
carried off the young gentlemen David and James’s horses.... There
was a complaint given in at Edinburgh, and the horses were
returned, jaded and abused by ramblers. This Mr Irvine, some
months after, in a drunken quarrel at Lanark, was stabbed to death
on a dunghill by one of his own gang: a proper exit for such a blood-
hound.’
The lady immediately displenished her house, and, notwithstanding
the delicate state in which she was, prepared to follow her husband
to Holland. Taking with her her step-son David, and a niece of three
years, the child of Mr James Stewart, also an exile in Holland, she
set sail from Borrowstounness in the beginning of June. The ship
encountered a severe storm. ‘The sea was so boisterous, the lady
was in danger of being tossed from her bed, and her step-son was
alarmed, and got up staggering in the hold, and bewailing; but she
composedly said: “David, go to your cabin-bed, and be more quiet,
for there is no back-door here to fly out by.” In some days after, they
got safe to harbour. They took the treck-scuit from Rotterdam to
Utrecht, and a surprising accident happened by the way, and in the
scuit close by her: a Dutch minister’s wife, a fellow-traveller and with
child, miscarried and died instantly. The husband was as one
distracted, and would not be persuaded she was dead, but in a
swoon. He made lamentable outcries, but all to no effect. This was
alarming to the lady, and made her reflect and acknowledge the kind
Providence had preserved her and the fruit of her womb, when in
danger both in the journey and the stormy voyage. Coltness has a
remark of thanksgiving on this in his diary, and concludes with this,
“God makes our hymn sound both of mercy and judgment.”
‘Her husband, with Mr Pringle of Torwoodlee, came
half-way on to Leyden, and met these recent 1683.
fugitives, and conducted them to Utrecht, where
trouble was in part forgot, and sorrow in some measure fled, upon
the first transports of being safe and together. Here was the
ingenuous, upright Archibald Earl of Argyle, too virtuous for so
licentious a court as that of King Charles. Here was the Earl of
Loudon, who died anno 1684, and lies buried in the English church
at Leyden. There was here the Lord Viscount Stair, and with him for
education his son, Sir David Dalrymple, in better times Lord
Advocate, and his grandson John, that great general under Queen
Anne, and the ambassador of elegant figure in France, and a field-
marshal under King George. Here was also Lord Melville, [who
became] High Commissioner to the Restitution Parliament under
King William, and secretary of state, and with him his son the Earl of
Leven, who went to the king of Prussia’s service, and after this was
commander-in-chief in Scotland, and governor of Edinburgh Castle in
Queen Anne’s reign. But it were endless to name all the honest party
of gentry and ministers, outlawed, banished, and forfaulted, for the
cause of religion and civil liberty.’
In July, Lady Coltness brought into the world the person who relates
the above particulars. ‘The occasion was joyful to the parents; but
the mother had not the blessing of the breasts, and there was hard
procuring a nurse for a stranger. This gave a damp; but a Dutch lady
was so kind as wean her daughter a little sooner, and so a careful
and experienced nurse was procured.’
‘... Coltness fell in straits ... for he soon spent the
little he brought with him, and remittances were 1683.
uncertain and but small. His friends at home were
under a cloud. Alertoun, his brother-in-law, was imprisoned and
fined; Sir John Maxwell, his other brother-in-law, was fined £10,000
and imprisoned; and his younger children had none to care for them,
but their grandmother, Sir James Stewart’s widow. She had a large
jointure [that] was not affected, and acted the part of a kind
parent.... In this present situation, the old widow lady could give
little relief to those banished. It was chargeable supporting the
expenses of a family in Holland, and all visible sources were stopped
or withdrawn; yet a kind Providence raised up friends in a strange
land. Of these the most sympathising was Mr Andrew Russell,
merchant-factor at Rotterdam; he generously proffered money, and
genteelly, as it were, forced it upon Coltness (and so he did to Sir
Patrick Hume of Polwarth, Mr James Stewart, advocate, and others),
though he could have no probable prospect of recovering it; and yet
all was thankfully repaid after the Revolution.’
‘In the end of 1684, Coltness removed to Rotterdam, and there he
received many civilities and friendships from his countrymen,
merchants, and others, and had some remittances, and in part
provisions, transmitted in Scotch ships. Here he had much society of
fellow-sufferers, and they had select meetings for conference and
intelligence. The badge of such select club was a seal in wax, upon a
bit of rounded card, with a blue ribbon and a knot, all in a small
spale-box. I have seen Coltness’s ticket; the device was handsome,
the motto Omne tulit punctum, the seal was upon a single spot of
the heart suite card.’299
These severities against the Coltness family form a
striking example of those now practised every day 1683.
upon the known adherents of the more extreme
Presbyterian views, and the whole would be quite 1683.
unintelligible to a candid mind in our times, if we
were not aware that, thirty years before, the party in which Sir
Thomas Stewart’s father was a leader, were subjecting their
dissidents to precisely similar treatment:300 see, for example, the
case of the family of Menzies of Pitfoddels, fined, confiscated, driven
from their native land and means of living, and the lady and one of
her sons lost in a storm at sea;301 see the case of Dr Forbes of
Corse, thrust from his college and country because he scrupled to
subscribe the Solemn League and Covenant; his very bones refused
burial in his own ground! It happened that, in the very same month
which saw Sir Thomas Stewart’s family subjected to the harsh
treatment above described, there was an application to the Privy
Council regarding the sufferings of an Episcopalian family through
two generations, in consequence of the rigours exercised partly
under the dictation of Sir Thomas’s father. It is in the form of a
petition from Mr John Ross, minister of Foveran in Aberdeenshire,
and Mr Alexander Ross, parson of Perth. Their grandfather, Mr John
Ross, parson of Birse in Aberdeenshire, had been turned out of his
ministry in 1647, merely for his ‘opposition to the rebellious and
seditious principles and practices which at that time had overspread
the land.’ He was likewise ‘fined at several times in five thousand
merks, and imprisoned in the Tolbooth of Edinburgh for the space of
nine months together, and forced to lend the sum of four thousand
merks on the public bands, as they were called, for carrying on that
unnatural war.’ He had ‘his house frequently plundered by the
rebellious armies then on foot, so that [he] was prejudged in at least
the sum of twenty thousand pounds Scots.’ Thus pillaged, and kept
out of his ministry for thirteen years, he had been reduced to great
straits, and left his family in poverty. The claim of the sufferer and
his family was acknowledged at the Restoration by an order of two
hundred pounds out of the vacant stipends; but it had never been
paid. His eldest son, parson of Monymusk, the father of the
petitioners, and who had likewise suffered for his loyalty, was kept
poor all his days through the losses of his father, and had lately died,
leaving a widow and eight children alive, besides the petitioners,
with no means of support but what the petitioners could
contribute.302 Here, in short, was a clerical family originally of some
substance, reduced to poverty through the oppressions which had
been exercised upon it by those now in their turn suffering, or their
predecessors.303 In such facts there is certainly no valid excuse for
the severities of the present time; but they tell us how these
severities came to be practised. The reaction, however, from the
Presbyterian reign of terror in the middle of the century was now
beginning to strain and crack, and a settlement of the political
pendulum was not far distant.

At the circuit court at Stirling, a man was tried for

reviling a parson, ‘in causing the piper play The June 5.
Deil stick the Minister. Sundry pipers were there
present as witnesses, to declare it was the name of ane spring.’304—
Foun.

Captain Thomas Hamilton, merchant in Edinburgh,

who had for some years carried on a considerable July 12.
trade with the American plantations in the
importation of beaver and racoon skins, craved and obtained
privileges for a manufactory of beaver hats which he proposed to set
up, being the first ever attempted in Scotland. He set forth his
design as one which ‘will do no prejudice to any felt-makers,’ while it
would benefit the kingdom by furnishing a particular class of articles
‘at easy rates.’ He expected also to be able to export his hats.—P. C.
R.
Alexander Young, Bishop of Ross, ‘a moderate and
learned man,’ being afflicted with stone, was Sep.
obliged, like his predecessor in the like
circumstances above a hundred years before,305 to travel to Paris for
the purpose of having a surgical operation performed for his relief.
Like his predecessor, also, he sank under the consequences of the
operation.—Foun.

It was believed that much native copper existed in

Scotland; yet all attempts at realising it by mining Sep. 10.
had failed. A German named Joachim Gonel, highly
skilled in copper-mining, now proposed to the Privy 1683.
Council to work a copper-mine in the parish of
Currie with proper workmen brought from abroad, all at his own
expense, provided only he got a present of the mine from the state.
The Council, deeming such a work calculated to be useful to the
public interest, recommended the government to comply with the
request.—P. C. R.

At this time began a frost which lasted with great

severity till March, ‘with some storms and snow Nov.
now and then.’ ‘The rivers at Dundee,
Borrowstounness, and other places where the sea ebbs and flows,
did freeze, which hath not been observed in the memory of man
before; and thereby the cattle, especially the sheep, were reduced to
great want ... the like not seen since the winter 1674.’—Foun.
This frost prevailed equally in England and Ireland, producing ice on
the Thames below Gravesend. One remarkable circumstance arising
from it is noted by a gentleman residing in London, that printing was
hindered for a quarter of a year (by the hardening of the ink).306
Patrick Walker speaks emphatically of this frost, and says: ‘Even
before the snow fell, when the earth was as iron, how many graves
were in the west of Scotland in desert places, in ones, twos, threes,
fours, fives together, which was no imaginary thing! Many yet alive,
who measured them with their staves, [found them] exactly the
deepness, breadth, and length of other graves, and the lump of
earth lying whole together at their sides, which they set their feet
upon and handled with their hands. Which many concluded
afterwards did presage the two bloody slaughter years that followed,
when eighty-two of the Lord’s people were suddenly and cruelly
murdered in desert places.’
‘An old minister, Mr Bennet, records in his manuscripts, that, before
our late troubles [the Civil War], there were a number of graves cast
open in a moor in the south.’—Law.

A scandal broke forth against Mr John M‘Queen,

one of the ministers of Edinburgh. It was alleged Dec.
that, having fallen besottedly in love with Mrs
Euphame Scott, who despised him, he contrived by a trick to obtain
possession of one of her under-garments, out of which he made a
waistcoat and pair of drawers, by wearing which he believed the
lady would infallibly be induced to give him her affections. ‘He was
suspended for thir fooleries; but in the beginning of February 1684,
the bishop reponed him.’—Foun.
If the Presbyterian satirists are not altogether
fable-mongers, the bishop (Paterson) must have 1683.
had a strong fellow-feeling for M‘Queen. ‘He is said
to have kissed his band-strings in the pulpit, in the midst of an
eloquent discourse, which was the signal agreed upon betwixt him
and a lady to whom he was suitor, to shew he could think upon her
charms even while engaged in the most solemn duties of his
profession. Hence he was nicknamed Bishop Band-strings.’307

It appears there were now two sugar-works in the kingdom, and

only two—being placed at Glasgow308—and one of them was in
danger of being stopped in consequence of the death of Peter
Gemble, one of the four partners, his widow refusing to advance her
share of what was necessary for carrying on of the work. Materials,
utensils, and men, to the extent of £16 sterling of wages monthly,
were thus thrown idle—a general calamity. The Privy Council
(December 20) enjoined the magistrates of Glasgow to use their
endeavours to get the difference composed and the work kept up.—
P. C. R.

A dismally tragical incident occurred at the Hirsel,

the seat of the Earl of Home near Coldstream. The Dec. 26.
earl having been long detained in London, the
countess, to beguile the time during the Christmas 1683.
holidays, had a party of the neighbouring
gentlemen invited to the house. Amongst these were Johnston of
Hilton, Home of Ninewells, and the Hon. William Home, brother of
the earl, and the sheriff of Berwickshire—three gentlemen who, like
the countess, have all been before us lately in connection with the
abduction of the young Lady Ayton. Cards and dice being resorted
to, and William having lost a considerable sum, a quarrel took place
among the gentlemen, and Johnston, who was of a haughty and hot
temper, gave William a slap in the face. The affair seemed to have
been amicably composed, and all had gone to bed, when William
Home rose and went to Johnston’s chamber, to call him to account
for the affront he conceived himself to have suffered. What passed
in the way of conversation between the two is not known; but
certain it is that Home stabbed Johnston in his bed with nine severe
wounds. Home of Ninewells, who slept near by, came to see what
caused the disturbance, and, as he entered the room, received a
sword-thrust from the sheriff, who was now retiring, and who
immediately fled into England upon Johnston’s horse.
The unfortunate Hilton died in a few days. Ninewells recovered. The
sheriff—of whom it was shudderingly remarked that this bloody fact
happened exactly a twelvemonth after the execution of a
Presbyterian rebel whom he had apprehended—was never caught.
He was supposed to have entered some foreign service, and died in
battle. In advanced life, he is said to have made an experiment to
ascertain if he could be allowed to spend the remainder of his days
in his native country. A son of the slaughtered Johnston, while at a
public assembly, ‘was called out to speak with a person, who, it was
said, brought him some particular news from abroad. The stranger
met him at the head of the staircase, in a sort of lobby which led
into the apartment where the company were dancing. He told young
Johnston of Hilton, that the man who had slain his father was on his
death-bed, and had sent him to request his forgiveness before he
died. Before granting his request, Johnston asked the stranger one
or two questions; and observing that he faltered in his answers, he
suddenly exclaimed: “You yourself are my father’s murderer,” and
drew his sword to stab him. Home—for it was the homicide himself—
threw himself over the balustrade of the staircase, and made his
escape.’309

This year a great alarm was excited by a

conjunction of the planets Saturn and Jupiter in 1683.
the constellation of Leo. It was announced as an
extraordinary conjunction, which had only happened twice before
since the creation of the world; and ‘our prognosticators all spoke of