Judicial Proceeding, 10 December 1700, Edinburgh

Att Edinburgh the Fourteinth day of March J^aj vi^c years Post Meridiem

D1700/3/11

D1700/3/11¹

Decreet

Decreit absolvitor Dunlope and others Taxsmen of excyse Against The Magistrats of Aberdeen et e contra

Anent the Lybell or Letters of Complaint raised and pursued before the Lords of his Majesties privy Councill at the Instance of James Dunlope of Househill for himself and as one of the Tacksmen of the six peny excyse from the first of March J^aj vi^c nyntie Eight And William Campbell one of his Majesties troop of guards who by order of the Earle of Argyll Commanded a partie of Collonell Rowes Regiment sent to quarter for deficiency in the Town of Aberdeen and […] Cruickshank Serjant in the said Regiment with Concourse of Sir James Stewart his majesties advocat for his highnes in trust in the matter underwrittin Makeing Mentione That wher all riysing in armes and unlawfull Convocations of any of his majesties Leidges especially within burgh to hinder and Obstruct the executione of his majesties Lawes and Sentence of Lawfull Judicatories for raising and ingathering of the excyse or any other part of his Majesties publict revenue by the fermers and tacksmen therof, or these Imployed under them, and the assaulting or attacking of their persones invadeing their houses wher they are leidged and attempting to burne the Same, And Wounding their Land Lords for harbouring and resetting of them, And the breaking open of prisones and Carieing away of goods Lawfullie poynded for payment of his Majesties revenues and disposeing therof at their pleasure, or the beatting of the persones of Souldiers Imployed in quartering for excyse upon deficients and breaking of their armes, as also for the Magistrats of burghs to Contrive at incouradge and Foster such unlawfull convocationes and to refuse to Suppress rableing and Tumults raised and made within burgh And to concurr in extorting warrands under the hands of the farmers of his Majesties excyse or any of the mto dismiss and sett at Libertie persones duely Committed to prisons for debts due to his Majesties or for being accessory to or concerned in Tumultuous Convocation or rableing within their burghs and their refuseing to put in executione the decreets and Sentances against these lyable in payment of the excyse due to his Majestie within the said burgh or not to protect assist and defend these of his Majesties forces Imployed Conforme to Law to quarter upon deficients within their burgh are all Crymes of ane high Nature and by the Lawes of this and all other weell governed nationes Especially when done in the open day, And the saids acts of Tumult and unlawfull convocatione in armes are persisted and Continued in for Severall dayes after others Ought to be Severly punished Nevertheless It is of verity that the brewars of the burgh of Aberdeen haveing the time of the forsaid tack partly made no entries and partly made Short entries The forsaids Tacksmen were Necessitate In the Moneths of March and Aprill Last to Conveen the saids brewars before the baillies of the said burgh and to referr the quantities browen by them and of their concealled Liquors to their oathes Wherupon albeit they did Compear, yet refuseing to give their oathes theranent They and each of them were holden as confest for their respective quantities Lybelled against them and the decreets past therupon, accordingly Bot the brewars persisting in their Contumacy The Tacksmen after long patience were necessitat to send a partie of Souldiers under the Command of the said William Campbell, and by order abovementioned to quarter upon the deficients within the said burgh upon the Twentie two of November Last or one or other of the dayes of the said moneth, The Commander of the said partie haveing quartered upon some of the deficients, and taken some poynds out of Severalls of their housses Conforme to the method and order prescrybed by diverse Lawes and acts of parliament made theranent, The saids persones poynded and […] Archibald sone to John Archibald in Aberdeen, John Craig baxter William Troop Merchant ther, John Buchan baxter ther, John Wright merchant Alexander Gibb Cordinar and his servant, Adam Lyell servitor to Collonell Buchan Alexander Brans Flesher, William Lorimer baxter John Cushney merchant, George Cumming sone to William Cumming merchant James Ross maltman George Taylor ther, William Burnet Merchant William Stewart Weaver John Clerk Cuttler and […] Cutler his brother James Robison Carpenter, Thomas Walker baxter, Alexander Ross flesher James Smith blacksmith and his Stepsone and Servants, Alexander Duff baxter William Spence hooker James Ritchie servant to Mary Ogilvie and John Gellon flesher, George Patton Laird of Grandhome James Clerk Cuttler and […] Maitland Waitter in Aberdeen James Hoge Maltman James Buchan baxter, Abram Thomsone merchant Adam Mark wright […] Strachan Servitor to William Cook Patrick Meldrum servitor to John Findlay John Scot prentise to James Douglas, Alexander Aberdeen Couper Baillie Robertsone Maltman […] Cook son to William Cook David Jack Weaver, Androw Fergusone Robert Smith Deacon of the Taylors Issobell Innes representative of Bessie Lawson Mary More spouse to George Robertsone bellman Jean Gordon spouse to William Jaffrey horss hyrer Issobell Issobell² Naughty servant to John Burnet Robert Pope servant to George Ross Pentherer, Alexander Painer and […] his sposue James Johnstone Litster Mr Alexander Lessly Fisscall and John Lessly Late Conveener all in Aberdeen Shaking off all fear of God and regaird to the Lawes and acts of parliament made either for the Security of the peace or orderly payment of his majesties revenue, Bot in Insolent and open Contempt of the Same did Convocat assemble and draw togither the haill Comonality and mobb of the Towne of Aberdeen armed with Swords Guns halbarts Durks and Baganots and other weapons invasive upon the evening of the forsaid day in Severall Companies under Sillence and Cloud night did with great tumult threaten and with violence break into severall houses Searching for and Stryveing to apprehend the said James Dunlope and of his Majesties tacksmen of the excuse And who hade the direction of the party quartering upon the deficients, Threatening to kill murder and assissinat him, And particularly they brock into the house of John Stewart Collector of the excise at that place appointed by the Taxsmen, And after hewing down his portall door brock into his house violently brusting open the door of every roome therin And after nearow Search throw out every Corner of the house Stabbed the bedds with Swords and Bagganets to discover if he was Lurking ther, And Cutt and wounded the Said John Stewart Land Lord of the house for harbouring and absconding the Said James Dunlope, And to such height of Insulting insolencie did this rable and tumult proceed into That they took the boldness to fire severall Musket Shotts into the said John Stewarts brewhouse of Sett purpose and designe to sett the Cumbustible matter therin in fire therby to burne and Consume in the flames the said John Stewarts dwalling house adjacent therto In prosecution of their malicious and furious threatenings And which hade Certainly taken effect And come to apss, If it hade not been prevented by the vigerous industrie of the said John Stewarts Servants, and not resting here they had the Impudence to attack and seaze upo nthe partie of his Majesties Souldiers dispersed in their severall quarters, And to carie off Break and distroy their armes Tear and distroy his Majesties Cloathing wherwith they were appearalled with great indignity and dispite, and therafter violently brock open the housses and seller doors wher the poynded goods were laid up and after Beatting and abuseing his majesties Souldiers for offering to preserve the poinds They violently and Masterfully caried away both the Souldiers armes and the poynded goods to the Trades hall And Continued ther rageing violence up and down the toune till two of the Cloak in the Morning over the tacksmen and Souldiers whom they hade rabled beatten and abused in maner forsaid, And Farder William Cochran of Ferguslie another of the Tacksmen Aryveing at the said burgh of Aberdeen upon the twenty fifth day of the said moneth of November Did Immediatly apply to the Magistrats for their assistance in puting the Decreets against deficients in executione And for protecting and Supporting the partie of his Majesties Souldiers Imployed for Supporting and assisting the legall execution against the brewars for the deficient excise Bot so farr were the saids Magistrats viz […]³ Mitchell provest of Aberdeen […] Ragg […] Forbes […] Kerr and […] Pattoune Baillies of the said burgh from performing their dutie in the said matter That when the saids Tacksmen and partie of Souldiers forsaid hade legally apprehended one of the deficient brewars and caried him to the toune Councill house Requyreing the Magistrates to Committ and detaine him prisoner Conforme to Law They the saids magistrats in Manifast Neglect of their dutie and by avowed Connivance and incouradgment to the rable againe to assemble in armes and Shift and refuse to Committ the said deficient brewary prisoner for his excise by the Space of severall hours Upon a Shame pretence that the Goyaller could not be hade and after the forsaid rable and Comonality hade been this incouradged and fostered by the Connivance and underhand incouradgment from the saids Magistrates the said William Cochran pursuer perceiveing the Rable allong the Street Requyred the Magistrates in presence of severall Gentlmen to use and interpose their authority for preserveing the pace in Suppressing and quasieing the forsaid tumult and in Lawfull Convocatione and protecting the saids Tacksmen pursuers and took […] Ane of the Baillies by the hand intreating him to Stay and Joyne with the Taxsmen pursuers and severall other gentlmen then present on the street for that effect Bot least the presence of a Magistrat might have discouradged and dispersed the said Rable, The said baillie did thrust himself out of the said William Cochrans hand and he with the rest of the magistrats Did reteir off the Streets and abscond themselves to the effect the rable might insult the tacksmen and Committ other disorders at their pleasure, And accordingly the saids defenders did with the rest of the rable in a most furious and tumultary maner attack the said James Dunlope upon the Streets With Swords Guns and halberts With Manifast designe to murder and assissinat him upon the place as they would have done if hade not been Surrounded and defended by Forbes of Foveraigne and Severall other Gentlmen, Who Committed the said James Dunlope and William Cochran to the house of the said Forbes of Foveraigne in the toune of Aberdeen for their security, The said defenders and their said rable haveing in the mean time marched in a most arrogant and insulting Maner in open day about two of the Cloak in the afternoon upon the said twentie Eight day of November or ane or other of the dayes of the said moneth to the Tolbooth of the said burgh of Aberdeen to break open the prisone doors for rescueing the prisoners detained therin, Bot Immediatly they with four or fyve hundred of their rable did Surround and Incompase the said Forbes of Foveraigne his dwalling house demanding the said James Dunlope and William Cochran That they might Dewite and dispatch them And by no intreaty of Foveraine and other gentlemen could be diswaded from such a villainous attempt, Threatening to burne the house about their ears if his Majesties saids tacksmen were not delyvered up tothem and which wicked interprize They hade certainly accomplished If Foveraigne goeing to the magistrats by a backway and acquainting them with the great danger and distress the Taxsmen were in by the fury and violence of the rable hade not prevailled with the said rable for some delay to the executione of their fury Bot so farr were the Magistrats from doeing their dutie In Suppressing the rable and protecting his majesties said tacksmen That as ane incitement and incouradgment to the rable they expressly declared they would not concerne themselves nor interpose in the matter Unless his Majesties tacksmen would give a positive Order under their hand to dismiss and sett at Libertie Such persones as wes prisoners either for the former tumult or deficiencie of excise and sent their Fiscall openly to intimat the Samen Wherupon his Majesties tacksmen were Constrained to grant warrand for setting at Libertie Such of the prisoners as the magistrate pleased Bot this being refused they were forced foir delyvering themselves from the present Imment danger to grant a positive order to sett all the prisoners at Libertie Which how Soon Soever the Magistrats received They Immediatly dissmissed the rable and Tumult with alse much ease and readiness as they could have Sent away one of their own Servants which does plainely evince that the forsaid Tumult and rable was alse much under the dispossall and directione of the Magistrates As if they hade acted all they did by their express authority and Command But dismissing the prisioners Neither the⁴ tacksmen nor his Majesties Collectors Could have any Justice done them either for the excise or for the above wrongs they hade suffered Bot after all the violence and affronts done them were forced to leave the place By all which it is evident That the haill forsaid persones and alse the saids Magistrats and all or each of them are guilty as actors airt and part of the forsaid unlawfull Convocatione and Tumult, And of the forsaid violence and other Crymes Lybelled Which being duely proven They and each of them Ought to be decerned in the Somme of […] for the Suspenders damnadges And also ought to be farder punished in their persones and goods by Decreit of the Lords of his Majesties privy Councill To the example and terror of others to Committ the Like in time comeing And Anent the Charge given to the fornamed persones defenders To have Compeared personally before the saids Lords of his Majesties privy Councill at ane Certain day now bygone To have answered to the grounds of the abovewrittin Complaint And to have heard and seen such Order and Course taken theranent as appertaines As the said Lybell and executiones therof at more Length is Contained; And Alse Anent the⁵ Lybell or Letters of Reconventione raised at the instance of Thomas Mitchell provest of Aberdeen Alexander Ragg Alexander Forbes, Alexander Kerr and Alexander Pattoune baillies of the said burgh of Aberdeen with Concourse of Sir James Stewart his majesties advocat for his highnes intrest in the matter under-wryten Makeing Mention, That wher the violent invadeing of his Majesties free Leidges, The Masterfull oppressing of them in their houses the takeing away their goods and assaulting their persones With such violence as to raise tumult with the Murrmuring of Judges and Magistrates and the raiseing false and injurious Lybells against them By the Lawes of this and all other weell governed nationes Are Crymes of ane high nature And Severly punishable, Yet nevertheless William Cochran of Ferguslie James Dunlope of Househill John Reid Walter Elison James Murove George Porteous, Alexander Cruikshank Collin Southerland Souldiers in Captain Straittoune elder his Company in Collonell Rowes regiment William Raitt James Neilsone John Gow John Cameron John Grant William Corbet Souldiers in Livetenent Collonell Dalyells Company John Turrens John Baird John Wood John Martine John Grubb and Daniall Southerland and others their accomplices in manifast Contempt of his Majesties Lawes and authority upon one or other of the dayes of November Last by past came to Aberdeen and ther the said James Dunlape upon pretence that in any of the inhabitants lyable for the excise of their brewing preceiding march J^aj vi^c nyntie Eight, and that he hade obtained decreets against Severalls of the Inhabitants tho these decreets were in absence Long after the expyreing of his tack for two hundred Gallons against each defender without regaird to the proportiones of their browing, yet upon these decreets the said James Dunlope procure parties of his Majesties forces to be sent to the toune of Aberdeen And being arryved without any application to the Commissioners of Supply the Said Souldiers were quartered upon severalls of the inhabitants as the said James Dunlope thought fitt, And being quartered upon the inhabitants Comitted all maner of disorder, such as the beatting of their persones seasing of their goods on the pretence of poynding and the Chaseing them throw the Streets and feilds with drawen Swords and Bagganots, And when they were asked what they designed to doe, They answered they were come to poynd them because they were villains and knaves etc And which practises and disorders were increased and Augmented upon the aryveall of the said William Cochran of Ferguslie with more Souldiers untill by these practises The unwary Multitude were so farr inradged that they rose in a Tumultery and Illegall way and att their own hands pretended to revenge themselves of the saids defenders Insulting, and Contemned the saids Magistrats pursuers who interposed with all Caution and Sincerity to Compress the said Tumult, and after the same was in some measure appeased and the defenders hade reteired yet the humor of the inraged multitude Occassioned by the forsaid Illegall practises did Continue and was Like to have disturbed the queit and setlement of the burgh To the Contempt of all Magistracy and Government And Notwithstanding that the ruid treatment the defenders hade mett with from the Rable was intirely the effect of their oun evill conduct and wherin the said pursuers shared yet more then they, The defenders did raise amost groundless Lybell against the pursuers takeing for pretence of their Malice that they hade gone to recover the excise from the brewars at Aberdeen Conforme to Decreets obtained in March and Aprill And hade taken a party of Souldiers with them which were quartered upon Some of the deficients And hade taken severall poynds out of their housses accordingly to Laud altho indeed the defenders were guiltie of Supine Negligence if their hade been any excyse due to have been so long of ingathering of it nor is it easie to be beleived that they did want their money so long And the quartering and poynding was most Illegall As has been already said, And in Like maner the saids defenders did Calumneously accuse the pursuers for Convocating ther Mobb albeit they themselves were truly the Occasione of it And haveing been heard say that the brewars were Insolent they would take their soulls out of their broad sides (or some such unchristian expressiones) if that would make them money And the saids defenders did most Calumneously Lybell That haveing applyed to the pursuers for assistance to put the decreets in executione They did refuse And one of the persones Lyable haveing been seazed and Caried to the Towne Councill house The pursuers being requyred to Imprisone him Shifted, And the rable being thus incouradged by them under hand, The said William Cochran one of the defenders was forced to requyre them to interpose their authority in Conjunctione with Seaverall gentlemen Bot least the presence of a magistrat might fright the rable one of the Baillies who was present withdrew Wherby the rable was incouradged to become more insolent; And which assertiones are not only groundles Bot even Contrary to treuth Seing the pursuers did most willingly Concurr upon all occasiones as oft was requyred, and particularly when one of the Baillies was requyred by Ferguslie to Imprisone one of the debtors who is falsely said to have been to the Councill house tho keept in a Taverne The said Baillie did most readily Comply and would have put him in prisone And for that effect hade already sent for the Jaylor, Bot Ferguslie upon the first appearance of Stirr in the Towne plainly out of Faintheartedness sent his own Servant to dissmiss the prisoner, nor was the prisoner ever presented to the pursuer As he ought to have been, Bot Fergusly Contented himself to tell that he hade him in a Tavern hard⁶ by, And as to the other instance that the said Baillie retired when he was requyred to Concurr and assist against the rable It is not only Calumnious, Bot it is most Certaine, that the said Baillie brought more assistance and exposed himself And Baillie Patton another of the pursuers for rescueing the defenders at another time The same Baillie in presence of Househill went and Laid hands upon ane of the most forward of the rable, And he and his officers being so ingadged The saids defenders went oft very fairly and left the said Baillie in the hands of the rable, and the officer was beatten and wounded, And the said defenders are most injurious as weell as ingrate to have brought the pursuers in as pairtners for whom they Ought raither to have been witnesses of their fidelity and firmnes, And the defenders ought in Justice to have acknowledged that the pursuers did most exactly ther dutie both haveing Imprisoned severall of the deficients ane account of their excise and Likewayes Some of the most forward of the rable And in these Circumstances It is evident That the Suspenders could doe no more, And Wheras the said Lybell at the instance of the defenders does farder wickedly bear That Foveraigne haveing gone from the defenders when they were besett with the rable That the pursuers might Suppress the Tumult and protect the defenders The pursuers Declared they would not interpose unless the defenders granted a warrand to sett the prisoners at Libertie And sent their Fiscall to intimat their said Overture, Which warrand the defenders being forced to grant, And they haveing accordingly sett at Libertie the prisoners, The pursuers Dispersed the rable with as much ease as they could have sent away their own Servants Which say the defenders was ane evidence of the pursuers power and intrest with the rable, And this alleadgance is of a peice with all the rest, For the trueth is, the pursuers were most unwilling to Inervate publict discipline would by no means Consent to the Liberating prisoners Altho they were often Solicite to it by the defenders untill at Last they sent that very Fiscall (who is Fiscall to the Shirriff Court) and who the defenders have cited as a party That he might not be a witnes altho they Lybelled nothing against him to Signifie to the pursuers that unless they dismissed the prisoners they would be guilty of the defenders blood, and of all the disorders that therafter would follow, And upon these repeited requeists And not Otherwayes they did Condescend Which allwayes they were Resolved not to have done altho at that time they were Surrounded with a rable and the house wher they were in assaulted, And the pursuers were so farr from haveing intrest with the rable, That after the defenders were gone from the toune they did of new Insult them, and they did after wards to Signifie their detastatione of that muttinous way Imprisone and prosecute Severall of the Ringleaders in that disturbance And indeed the defenders Ought by no means to have accused the pursuers Seing their ill Conduct hade drawen on the disorder And their timerousness and Importunity did increase it almost to the utter confusion and overthrow of the burgh, when the pursuers would have Stood firme and brought the Muttiners to reasone, and upon the whole matter ther could be nothing done more tenderly for the defenders nor more Cautiously upon the pursuers part then what the pursuers did, And by all which as is above represented, The defenders are guilty airt and pairt of the Crymes above lybelled and ought to be decerned to repair the pursuers damnadges and expensses to Fyve Thousand pounds Scots, And otherwayes punished in their persones and goods to the terror of others to committ the Like in time in time comeing And Anent the Charge given to the saids defenders To have Compeared personally before the saids Lords at ane Certaine day now bygone To have answered to the grounds of the forsaid Complaint And to have heard and seen such order and Course taken theranent as appertaines As in the forsaid Lybell of Reconventione and executiones therof at more Length is Contained Which principall Lybell more Length is Contained Which principall Lybell abovewryten raised at the instance of the above James Dunlope William Campbell and Serjant Cruikshank Against John Greig baxter in Aberdeen and the Magistrats and others of the said burgh Being upon the Eight of February Last by past Called in presence of the Lords of his Majesties privy Councill, And the haill pursuers Compearing personally with Sir Patrick Home Mr John Fergusone Mr William Carmicheall and Mr Walter Stewart their advocats, And George Cuming Sone to William Cuming Merchant in Aberdeen, James Clerk George Pattoune Androw Fergusone James Johnstone Thomas Mitchell provest Alexander Forbes and Alexander Pattoune Baillies of the said burgh defenders Compearing personally, and the remanent defenders being all Lawfullie Summoned oft times called and not Compearing, And Mr David Dalrymple, Mr Robert Forbes and Mr William Black Compearing as advocats for the haill defenders The Lybell and answers made therto by the magistrats of Aberdeen read and both parties Lawiers fully heard The saids Lords doe hereby Grant Certificatione against the haill defenders Ragg and Alexander Pattone baillies The said provest and the two other Baillies who are Compearing allwayes Inacting themselves in the books of his majesties privy Councill for the two Baillies not Compearing as said is, That they shall obtempor and fullfill the Sentance of Councill to be given and pronunced against them in this matter And alse excepts from the said Certificatione Walter Robisone of Dariot and James Smith Black Smith in Aberdeen In respect of their infirmity and age, And the haill witnesses being called for and only John Gallon younger haveing appeared and made faith, The saids Lords Grants farder dilligence by Caption against the haill absent witnesses called for and not Compearing untill the d[…] day of […] And in the mean time Nominats and appoints the Earles of Marr and Lowdon The Lords Jedburgh and Boyle The Lord Phesdoe and Sir Robert Sinclar of Ativensone to be a Committie to call for and examine the witnesses and declaired any thrie of the said Committie to be a Sufficient quorum And Recommended to them to mett the morrow therafter at thrie of the Cloak in the afternoon, And the saids Lords Declared that they would not advyse the probatione to be adduced in this proces untill the magistrats of Aberdeen hade a Competent time for adduceing the probatione in their reconventione That the probatione of both processes might be advised Simul et Semeit And Reserved all Objectiones That might be made against the witnesses to be proponed and discussed before the said Committie And Therafter the forsaid Lybell of Reconventione at the instance of the saids magistrats of Aberdeen against the said James Dunlope of Househill and William Cochran of Ferguslie Being upon the Twentie day of the said moneth of February Last by past Called in presence of the saids Lords of his Majesties privy Councill And the provest of Aberdeen and Baillies Forbes and Patton thrie of the pursuars Compearing personally With Mr David Dalrymple Mr Robert Forbes senior and Mr William Black their advocats And the saids two defenders Compearing personally With Sir Patrick Home his majesties Solicitor and Mr John Fergusone their advoats The lybell being read and both parties Lawiers fully heard, The saids Lords addmitts the lybell to the pursuers their probatione, and the witnessess present haveing made faith at the barr as marked in the roll The saids Lords Nominated and appointed the Committie formerly appointed in the principall Lybell at the defenders instance against thir purswers and added therto the Viscount of Tarbatt Lord Montgomry Lord Ruthven and the present Lord provest of Edinburgh to the former Committie And Declared them to be a Committie both in the principall Lybell and in the reconventione And Declared any thrie of them to be a Sufficient quorum, And Recomended to them to meet the morrow at ten in the forenoon Reserving all objectiones Which be made against the said witnesses to be proponed and discust before the said Committie And Granted farder dilligence by Caption against the absent witnesses against the […] day of […] And accordingly both the pursuers in the principall Lybell, and Lybell of Reconventione haveing adduced diverse and Sundrie famous witnesses for proveing their respective Lybells Who being all Solemnly Sworne purged of partiall Councill Examined and Interogate Deponed and Declared in maner mentioned in their respective oathes and depositiones as the samen extent in process bears, And The said Lords of his Majesties privy Councill Haveing this day Considered the depositiones of the witnesses adduced in both the saids processes with the haill Stepps of both processes The saids Lords Finds the ponts and articles of neither of the saids Lybells in the respective processes sufficiently verified or proven And Therfore Have Assoylzied and hereby Assoylies both parties from the points and articles of the respective Lybells raised against them and wherin they are called as defenders and Declaires them quyt therof and free therfrae in all time comeing.