An article from The Orkney Herald, Tuesday October 7, 1947: Written by P N Sutherland Graeme Esq of Graemeshall

In the year 1740 Holm Sound figured prominently in a criminal case which came before the High Court of Justiciary in Edinburgh. Various versions of the story have been given but, so far as is known, the correct version of it has only recently come to light with the discovery of the printed condescendence and replies by the chief actors on either side.

The central figure in the proceedings was that notorious Orkney desperado, Sir James Stewart of Burray, who having been concerned fourteen years before in the murder of Captain Benjamin Moodie in a Kirkwall street, had escaped to the Continent.  In due course, with the aid of powerful friends, he succeeded in obtaining a pardon for his crime, and returned barefacedly to his island home in Burray.  At the time of the events now to be narrated he was about 50 years of age.

During the early months of the year 1739 the Stewart (Sheriff) Depute had been examining a number of witnesses as to certain operations under which poor inhabitants in South Ronaldshay were alleged to be suffering. It had also been deposed that Sir James Stewart had forcibly abducted one Henry Mowat from his father’s house in the island of Pharay and was holding him in captivity and forced labour in Burray. In order that further investigations might be made into these allegations the Stewart, who was the Earl of Morton, set sail for South Ronaldshay at the end of July, taking with him Andrew Ross, his Depute, John Riddock, the Stewart-Clerk, David Rendal, the Stewart Officer, and William Green, his own servant.

On August 1st 1739, investigations in South Ronaldshay having been completed, the party started for home, intending to sail direct to Holm Sound Bay and travel by road thence to Kirkwall; but as their boat was deepsladen and wind and tide unfavourable, it was necessary for them to land at “the common ferry” in South Burray. Then, dispatching the boat to meet them on the north side, they started to make their way across the island to rejoin it. They had, they said, no intention of making themselves obnoxious to the people of Burray, least of all to Sir James Stewart.  On the contrary they had left their two cases of pistols in the boat and the Earl of Morton had sent his servant to Sir James’s house to convey the compliments to his lady.

It happened that as the official party traversed the island they came across some of Sir James’s servants haymaking in charge of Robert Sinclair, an overseer.  Amongst the hay-makers the Stewart Officer recognised young Henry Mowat whose abduction from Pharay had been reported. He was frightened and trembling when first spoken to, but when he had ascertained the identity of the visitors, he besought them, with tears in his eyes, to take him with them. This the Earl decided to do, whereupon Mowat “expressed the greatest joy for his deliverance and a terror of his again being brought under the power of Sir James.” Robert Sinclair, alleging that the Earl had used “threatening and injurious expressions” to him, ran off to tell his master what was happening.

The Earl and his party with the rescued Mowat reached the north Shore of Burray where their boat was awaiting them. Just as they were pushing off, Sir James Stewart and Robert Sinclair appeared upon the scene. They launched a boat to go in pursuit, and Sir James ordered that three more boats then lying on the shore were to be fitted out and armed as quickly as possible and follow him. In his subsequent evidence Sir James said that he had given instructions that a notary and witnesses should be taken in one of the three boats “in order to reclaim Henry Mowat in a civil way and, in case of refusal, to protest and take instruments.”

Then the chase began, Sir James shouting out to the pursued that he would “invade” them, disable that boat and “send her adrift to the sea.” By dint of hard rowing Sir James and Sinclair managed to overhaul the Earl’s party in their deep laden boat and according to the Earl “in an insulting manner, viewed their numbers and their posture and beat their oars under water; then they waited for the coming up of the other boats.”  Suddenly Sir James broke his oar and his boat drifted ashore on Skeldaquoy Point in Holm, a mile from the Bay of Graemeshall for which the Earl was making and where he and his party landed. But, Sir James was not to be baulked of his prey.  Some of his reinforcements having arrived, he with twenty of his men, armed with “rungs and batons” hurried eastwards along the shore to Graemeshall. 

In the subsequent proceedings each side gave a different account of the fracas that ensued upon the beach.  Here, first, is the Stewart version:

“Sir James Stewart, having demanded the reason of Mowat’s being carried off and no satisfactory answer having been given, he took Mowat by the hand and desired him to go off with him and that, being seconded in this desire by Robert Sinclair, the Earl called out, ‘Shoot Sinclair.’  With this the fray began.  Stewart’s party were attacked by their opponents and particularly Sir James Stewart was laid hold of and threatened and that, at the same time, Robert Sinclair was attacked by David Rendal and first beat with a ‘rung’ and afterwards with a cocked gun; and that Sinclair, having laid hold of the gun in self-defence, the gun went off in the struggle; that, upon this firing.  John Riddock discharged a gun at Robert Sinclair and wounded him twice in the groin; and that thereafter Andrew Ross discharged a pistol at Robert Sinclair and again wounded him in the belly; and that after all this John Riddock beat him to the ground with a stroke upon his head with the butt-end of his gun.”  Eventually Robert Sinclair was secured and taken first to the house of Graemeshall and afterwards shut up in the Tolbooth in Kirkwall.  If this story were true poor Robert Sinclair must have been in a sorry state.

Now for the Earl of Morton’s version of the fight.  The Stewart gang, it was said “came up in a tumultuous and invasive manner and Sir James Stewart having addressed the Earl of Morton in an insulting manner and accused him of carrying off his servant and said that he was come to carry him back.  The Earl answered that he had a different information of the matter and that Mowat was servant to another man from whose service he had been carried prisoner and was confined without order of law; but that Mowat should answer for himself whether he was his servant or willing to return with him.”

At this Sir James flared up and “answered in an outrageous manner, ‘By God, he is my servant and I will have him.’”  He laid hold of Mowat and when the Earl tried to interpose, he seized him by the collar and ordered his men to take Mowat away. Andrew Ross, the Stewart Depute, ordered the job to disperse in the King’s name.  Then Robert Sinclair snatched a gun out of David Rendal’s hand, took deliberate aim at Sheriff Clerk Riddock, fired and wounded him in the thigh.  The Earl forbade his men to shoot; but Riddock’s blood was up and he fired at Sinclair, knocked him down with the butt-end of his gun and took him prisoner.  On this “the rest of the mob and with them Sir James, thought fit to walk off; and immediately thereafter the third boat landed but a few minutes too late to act their part in the fray and as some of them knew not what had happened, they came ashore only to be disarmed.”

It cannot be doubted that both sides in the affair were not too meticulous in the matter of telling the truth.  This, in the circumstances, was perhaps to be expected.  But what is difficult to understand is how Sir James and his men, who were so much stronger in numbers than their opponents came to lose the battle.

An important issue in the case was the treatment of Robert Sinclair while incarcerated in the Kirkwall Tolbooth.  Sir James claimed that the poor man, in spite of his wounds, had been chained for three days to an iron bar and “a weighty iron bullet was tied to his leg in such a way as to cut the flesh.” His friends were not allowed access to him and “he was refused all manner of relief and assistance.” To this allegation the Earl replied that he had no responsibility for Sinclair’s treatment in gaol.  But he explained that “a project was laid by Robert Sinclair’s countrymen of Caithness to deliver him out of prison during the Lammas Fair at Kirkwall at which time there was great resort to Kirkwall of people from that country and from the neighbouring parts.” As to the “irons and fetters” by which Sinclair was secured, they were “so used as to give no torture.” Access to him was only allowed with the sanction of the Captain of the Guard.  Then as to the statement that assistance was refused, “when he was grievously wounded and in danger of his life,” this was “mere affectation.” He was offered the assistance of Doctor Sutherland “the most eminent physician and surgeon in the country” and refused to see him .  His wounds in the “groin, etc., were none other than a small drop of lead, it having grazed his body without breaking the skin.  The amount of his wounds was no more than a contusion on his hind-head.  His fever and ravings were affected for at the time he affected to rave, his pulse was found to be quiet and calm and not feverish in the least degree.”  The participants in the fray seem to have been very inexpert in their use of firearms and offensive weapons!

As on the Holm shore so in the High Court of Justiciary, Sir James Stewart came off second best.  The charges which he had preferred against the Earl of Morton were, first, “Unlawful convocation of the Lieges in arms, invading Sir James Stewart’s property and unlawfully carrying off his servant”’; second: “Invading and wounding Robert Sinclair”; third: “Unlawfully imprisoning Sinclair and maltreating him in prison.”  These charges Sir James failed to justify and the Court imposed a heavy fine upon him.  It is on record that in June 2nd, 1740, the Earl of Morton ordered that two hundred pounds sterling of the fine was to be applied to the building of a new Tollbooth in Kirkwall.

Morton’s ‘new’ Tollbooth replaced the rooms from the bottom of The Strynd, which judging from the large number of escapes made from it failed utterly as an institutional deterrent. This new building had on its ground floor a jail and lock-up, the first floor was used for courts and assemblies, and the second floor was a masonic lodge. The tolbooth was demolished in 1890, and a town hall was built nearby, to designs by T S Peace, 1884-7

In his “Kirkwall in the Orkneys” Hossack sums up the last years of Sir James Stewart: – “Twenty years after Moodie’s murder (i.e., in 1745) the Stewart brothers (Sir James and Alexander) are said to have joined the army of ‘Bonnie Prince Charlie.’ The tradition goes on to tell that Alexander fell at Culloden but Sir James fled for refuge to his own little island kingdom.  Certain it is that Captain Benjamin Moodie, son of the murdered man, found Stewart lurking in disguise near his own house.  Sent to London he was lodged at Southwark Jail to await his trial. He died in prison and his death is, perhaps, the one magnanimous act of his life…

Procuring a lancet or other pointed instrument, he bled himself to death.”

Article from The Orkney Herald, accessed via Orkney Library and Archives. D5/1/10/5 may refer

Information on the Kirkwall Tollbooth from Canmore

Photo: original source unknown