Judicial Proceeding, 10 December 1700, Edinburgh

Att Edinburgh The Tenth day of December one thousand and seven hundred years

D1700/12/3

D1700/12/3¹

Act

Act The Earle of Sutherland against The Viscount of Arbuthnot

Anent a Petition given in to his Majesties high Commissioner and the Lords of his Majesties privy Councill Be George Earle of Southerland Shewing That wher the petitioner hade the Custody of Robert Viscount of Arbuthnot left in pupillarity by his father and Committed to him by the Lords of privy Councill, with ane ordinance for payment of his aliment, as also of his incident charges as the acts of privy Councill made theranent bear, Likeas de facto he hath remained with the petitioner now the space of five years, The which time the petitioner hade used his outmost endeavors for the advantage of his education albeit it be very certaine That Knox his tutor in Law and his Cautioners have dureing all that space been very backward and refractory as to any thing that was to be done or payed for their said pupill and for the reinburse of the petitioners expences so to this day the petitioner was farr in arreir and ther is a Considerable soume owing to the petitioner by the said Tutor, and still resting unpayed Bot the said Viscount of Arbuthnot comeing now to the years of Fourtein, and so goeing out of his Tutory and incase to Choise his Curators, The aforsaid tutor and his accomplices apprehending as to probable That Curators Chosen for him nor of their nameing, might be too heavy in calling them to ane accompt of the Tutors administration, It is very Obviously to be presumed that it is by ther contryband That he is Stollen away from the petitioner who had his Custody and education as said is, Which being a matter of so ill example and manifastly so badly designed to the prejudice of the pupill it was hoped That his Grace and Lordships would provyde the proper remeeds as they have already been in used to doe in cases of this nature The petitioner haveing in effect no other designe save to have the forsaid Viscount returned to his Custody, and to have him left to that freedom in the Nomination of his curators as his tutor, and his Complices, who have hitherto so grossly and nottoriously malversed might be brought to due Compt and reckoning And Therfore humbly Craveing his Grace and the saids Lords of privy Councill would be pleased to Consider the forsaid Case with the mischeivous Consequences therof and Immediatly to Issue out a proclamation Commanding all persones that might be concerned to exhibit and sist before the saids Lords the said Viscount upon their hightest perill, or at least that they discover wher he is, as Likewayes that the said Viscount do by himself appear and sist himself as said is, To the effect his Grace and the saids Lords might restore him to the petitioners keeping and Custody Or otherways dispose of him as the saids Lords should see Course; As also Discharging all Judges and Magistrats whatsoever and their Clerks to give out any edicts for the said Viscount his Choiseing Curators or to proceed to receeive any nominate from him, or authorize such as shall be named by him as they will be answerable Under the highest perill, and with all to declare That if any such election or nomination should be made It should be void and null, as to all intents It being most evident, That the forsaid viscount is most wrongeously taken away and detained, And with all that he could make no good and valid election untill he be first restored to the petitioner and sisted before the saids Lords in his Just freedome As the said petitione bears And The said Robert Viscount of Arbuthnot gave in ane petition by of answer therto Shewing That wher he was informed, That ther was a printed petition handed about and ready to be offered to his Grace and the saids Lords in the name of the Earle of Southerland the petitioners Grandfather, Containing Certaine reflectiones against some of the petitioners near relationes, and alledging that the petitioner is stollen away from the said Earles family who hade the Custody and education of the petitioner And Craveing that a proclamation might be Issued out Commanding all persones haveing intrest to sist the petitioner before the saids Lords and to Discover wher the petitioner was, and Commanding the petitioner to sist himself to the effect the petitioner might be returned to his Lordships keeping and custody Or otherwayes diposed off as the saids Lords should think fitt; And Discharging any Judges or Clerks to give out edicts for Choising the petitioners Curators Or to receive nominationes Or authorize any to be named by the said petitioner Declaring such electione and nomination to be void, It being evidence that the petitioner could not make good and valid electione untill the petitioner be at first restored to the Earle and sisted before his Grace and the saids Lords; The petitioner Crave humbly Leave with all due regaird to the Earle his Grandfather to whom the petitioner owe and shall allwayes oun all honor and duty; To represent to his Grace and the saids Lords That the desire of this petition was altogither irregullar, and the petitioner was hopefull That as it was given in only upon the supposition that the petitioner was carried away without his own Consent, so now when the petitioner doeth plainly Declare that the petitioners retireing from his Grandfathers family was the petitioners voluntar choise and hes been approven by his fathers relationes and persones of honor and probity, The Earle of Southerland the petitioners Grandfather would Lett this petition fall, For my retirement being free and approven by the petitioners relationes could neither be claimed or Constrained unreasonable or throw the weakness of the petitioners age, And tho their seem to be no occasion to trouble his Grace or the saids lords with reasones in this matter, The petitioner desires it may be Considered, That the petitioner being past fourtein years as the Earles petition bears The petitioner hade the full Libertie either to Choise Curators or not; And if the petitioner should choise Curators, their power does not extend to the petitioners person or Liberty; And Therfore even the petitioners Curators could not hinder the petitioner to Choice the place of his residence; And tho the petitioner would allwayes have great regaird and deference to the Councills of his Grandfather in that Or any thing else, yet the petitioner beggs Leave to Complain That the petition should conclude that the petitioner should be returned in to² Custody, and sisted as a Criminall and publict proclamationes Issued against the petitioner, Which in the first step of the petitioners Life was unseemly, and would Leave a Scarr, Or that the petitioner should be debarred from the priviledge of Choiseing Curators a remeed provided by the Law for persones under age, and all this for no better reasone, Bot because the being of that age, at which the Law allowes the petitioner the full disposall of his persone and Estate The petitioner hade with drawen from his Grandfathers family, which could never be urged as a fault, albeit the Earle should alleadge that it was done of purpose to be near his fathers freinds; The petitioner shall not trouble the Lords with the particular reasones why the petitioner hade changed the place of his residence seing the petitioners own naturall Liberty was sufficient in Law to Justifie it, And if ther be particular reasones, The petitioner conceived it was more dutifull and respectfull to conceall them, And however the petitioner might be mistaken in his reasoneing, The petitioner was confident the thing the petitioner hade done was in the petitioners power, And therefore ther was no occasione of ane applicatione to the saids Lords in the matter Bot because he conceaved the petition had proceeded from affection to the petitioner and anxiety about his safity; Therfore the petitioner was ready to return within a few dayes, The Certificats from the Magistrats of The place wher the petitioner was, That ther might remaine no question of his health, Libertie, or reality of the petitioners oun Choise, and for the same tender respect the petitioner bears to his Grandfather, The petitioner passes over the reflections that seem to be against the petitioner himself and relationes, as if the petitioner were willing to be deceived about the petitioners affairs, or that they were read to Impose upon the petitioner And Therfore Humbly Craving the saids Lords would would³ be pleased to refuse the desire of any such petition which would be ane exceeding discouragement to the petitioner and a reproach in the begining of his life, For ther could be nothing so disgracefull as to be treated as a thing stollen or strayed, and to be interdicted as to the Judges Magistrats and their Clerks of the Comon priviledge of other subjects, As the said petitioner bears; His Majesties high Commissioner and the Lords of his Majesties privy Councill Having Considered the above petition given in to them be the Earle of Southerland and the other be the Viscount of Arbuthnot by way of answer therto They hereby Recommend to the Earle of Marchmont Lord high Chancelor of this kingdome to wryte to the Viscount of Arbuthnot in name of the privy Councill desireing his Lordship to returne to this kingdome and present himself befor his Majesties high Commissioner or Lords of privy Councill And Declare unto him in the Councills name that his Lordships person shall be at full Libertie and free of all restraint or sequestration whatsoever and in the mean time His Majesties Commissioner and Lords of privy Councill Doe hereby stopp and Discharge the said Viscount of Arbuthnot his Choiseing of Curators serving of edicts or doeing any other thing for that effect untill farder Order of Councill theranent.