Decreet, 29 December 1698, Edinburgh

Att Edinburgh the Twentie Nynth day of December J^aj vi^c Nyntie Eight years

D1698/12/18

D1698/12/18¹

Decreet

Decreet absolvitor The Magistrats of Aberdeen Against Leith of Overhall

Anent the principall and additionall Lybells or Letters of Complaint raised before the Lords of his Majesties privy Councill at the instance of George Leith of Overhall with Concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the Matter underwrittin The principall Lybell Making Mention That wherby the Lawes of this and all other weell governed Nations and Comon wealths the suffering of prisoners to escape out of publict prisones Especially wher they are Imprisoned for Crymes of ane high and attrocious ² nature Is a Crime of a high nature and Severly punishable and particularly by the Lawes and acts of parliament of this kingdome generally and particularly aftermentioned viz by the Statute of King David the Second; Capute 1st Session Sixth It is Statute that the Master of the prison Should answer for the theiff or prisoner passant furth of the prison, Likeas by the second Statute of King Robert the first Capute; Nynteinth Session thrid It is Statute that the keeper of the prisone Shall answer for any debtor or prisoner Committed to the prisone or for the prisoners body As also by the twentie thrid act parliament fifteinth King James the Sixth It is Statute and Ordained That within the Space of thrie years in all burghs within this realme ther be sufficient and Sure Joalls and wardhouses bigged up holden and maintained by the provest baillies Councill and Communities of the said burghs upon their own Common good, or otherwayes upon the Charges of the burgh and that for Sure Imprisoneing warding keeping and detaineing of all such persones transgressors of his majesties Lawes upon their oun expences alse weell Criminall as Civill which Shall be presented to them and which act of parliament Containes the reason therof in the narrative Viz That for want of sufficient and sure prisons Joalls and ward houses Sundrie rebells and transgressors of the Lawes alse well Criminall as Civill Escapes unpunished and Justice Contemned Likeas by the Threttie Eight act parliament first King Charles Second It is expressly Statute and Ordained that all magistrats of Burghs keepers of any Jeolls or prisones shall receive into their prisones as shall either be brought by Constables or Sent into³ them by warrands under their hands of any one Justice of peace, And if any Magistrat or other Jaylor Suffer any persones Committed by the Justices to their prisones to escape they shall be Condignely punished therfore at the discreatione of the privy Councill Notwithstanding therof Alexander Walker provest of Aberdeen, Thomas Mitchell John Allardyve Alexander Orem, and Alexander Forbes baillies of the said burgh and James Milne dean of Gild therof Haveing ⁴ Having […] shaken off all fear of God and regaird to his Majesties Lawes have manifestly and wilfully Contemned the forsaid Lawes and neglected to put the same to due executione Conforme to their dutie in their Severall Stations requyred In so farr as the said pursuer haveing after great travell and expensses by vertue of ane warrand from master Archibald Forbes of Lucklyhead one of the Commissioners of Justiciary Seased and apprehended the person of James Gordon brother german to George Gordon of Arradowell in order to prosecute him by Law not only for the Murder of the said pursuers father, Bot Likewayes for⁵ severall other horrid Murders many villainous thifts Ravishing of women, Blasphemie and Atheisme and therafter brought him to the toune of Aberdeen and after application made to the said Magistrats did incarcerat him within the prisone of the said toune, and ther not only took instruments upon his said incarceration Bot Likwayes protested that the said Magistrats should keep the said prisoner in Sure firmance That he might not escape the vengance due to him for his said abominable Crymes as the said instrument more fully bears As also the said pursuer being informed that the said prisoner would endeavour by all means to make his escape and that Notwithstanding of the forsaid instruments he was not keept in sure firmance nor sequestrat by himself Bot allowed to goe up and downe the Tolbooth as he pleased, and all persones even these who was his Complices in his Crymes allowed to have Access to him, wherby ther arose a Just Jealousie of endeavors to make his escape And Therfore Mr Alexander Lesslie procurator fiscall of the place for his Majesties intrest And Androw Logie of Loanhead as procurator for the said pursuer Did adress themselves to the saids Magistrats at least to ane or other of them And represented the forsaid Jealousie and information which they had, Wherupon the said Magistrats at least Baillie Thomas Mitchell one of their number desired and advised the said Master Alexander Lesslie and Androw Logie to give in ane Supplicatione to the said provest and Baillies Craveing the said prisoner to be Sequestrat and no persone allowed to have access to him except the Jaylor and to protest against them for neglect of duty in case the same were refused and for all Coast Skaith and damnadge the said pursuer might incurr therthrow, and accordingly upon the […] day of […] Ther was ane Supplicatione presented in the termes forsaid Containeing the forsaid protestatione in the name of the said pursuer and procurator Fiscall which was read in presence of the saids Magistrats, and they themselves acknowledged that therupon they had Issued out ane act and order of the said toune Councill appointing each Baillie who keeped the keyes of the prison for the time and had inspection therof to take speciall care that the said prisoner Should be Sequestrat in ane roume by him self and that no persone should have access to him except the Jaylors allenarly, and which act for a space and while the said pursuer was upon the place and in the Shyre was exactly keeped and observed and not only were the magistrats so requyred and instrumented Bot Likewayes his majesties advocat upon information of the heghneous Crymes wherof the prisoner was guilty sent ane express order and warrand to the said Magistrats all wryten and subscrybed with his Lordships oun hand narateing that ther being hazard of the Said prisoners escape Therfore he requyred them to keep him in sure firmance that he escape not till ane secure Course and new orders be taken anent him, as the said warrand dated the twentie second day of July J^aj vi^c Nyntie Eight years more fully bears, and which the said magistrats have in their own hands, Wherupon the said Androw Logie procurator for the said pursuers went upon the twenty fifth of the said moneth of July to the personall presence of the said magistrats, and ther produced and exhibited the forsaid warrand and intimat the same to them, and therupon took instruments and protested that incase they either neglected their duties or Contemned the forsaid warrand and the saids repeated instruments they should be answerable for all Coast skaith damnadges and expensses the said pursuer might hapen to sustaine or in curr therby, as the said instrument more fully bears yet when the said pursuer was necessitate to come South to Edinburgh in order to obtaine from the Lords of privy Councill ane Commission and warrand to try the said James Gordon upon the forsaid horid Crymes at Aberdeen, and whose petition could not be read by reason of sitting of the high Court of parliament, and that therfore his majesties privy Councill could not meet, and was so carefull and provident that the said prisoner should not escape, and Likewayes to ease the saids Magistrats of ane part of the burdein that upon his own proper charges and expensses, He caused keep ane guard about the said prisoner from Ten of the Cloak every night till Sunriseing the nixt day, yet so supinely negligent were the said Magistrats in their dutie, and likeways so farr Contemnors and desprisers of his Majesties advocats order and of the repeated instruments taken against them, That the said James Gordon prisoner went throw the prison as he pleased without Confinement or Sequestratione to a parliament roome and persones even unknowen had access to him without any Lett or Impediment and although they or ane or other of them were advertised Some few hours before his escape, That some of his freinds or accomplices were in toune and would be some means or other endeavours to furder his Escape, That therfore he should be strictly and exactly Locked toe wherof no care was taken, and to which no regaird was hade Bot as by the event doeth plainly appear, The Magistrats did by ther said neglect and Contempt not only furder incouradge his Escape Bot Likewayes were Conscious to the designe of his goeing out of the prisone, In so farr as that the Same day Viz the Nynteinth day of August then⁶ instant about seven a Cloak at night or therby in fair day sight the prisoner did descend the stair of the said prisone (one of his accomplics and servants haveing hade access to him and being with him at the time) and did come out by the door of the said prisone without any disguises bot being in that habite which he ordinarly hade in prisone, and then descended towards the Cross of the toune wher thrie or four of his accomplices or freinds did receive him, and put armes in his hands and therafter he did to the open vein both of strangers and inhabitants deliberatly march out of the Toune and took his horss at the bark gate of the Collodge which is a Conisderable distance from the said prison and that without any Stopt or noise howie or Cry, and therafter without makeing any hast or being afraid of the said Magistrats their aryseing the howie and Cry after them or sending out any persones in Order to take him, which is a manifast evidence not only of their negligence and Collusione Bot even Concurrance and previous knowledge of his escape)⁷ He did goe into Comon Taverne at Green Burne within thrie milles of the said toune and upon the high Cairt road to his oun house, and ther did drink with his accomplices for a Conisderable space and then again took his horss and went seven mylls farder to the toune of Inverurie wher he did again drink and refresh his horss with Cornes and therafter went diretly to his oun Countrey and dwalling all wayes keeping the Comon Cairt Road knowing that his good freinds the saids magistrats would not be heastie to emitt any party after him till he hade a Competent time allowed him to make his escape and he be out of their reach As in effect it would hapen for the honest Magistrats were no more Concerned with his said escape then as if ther had been no such thing and did not till nixt morning dream of Sending any partie out to Look after the said prisoner, and at least were pleased to send out fyve or six horsmen as valid as they would Choise, and some of them without any kynd of armes to rescue and take back the prisoner from ten or twelve horssmen who accompanied him, and when they knew it was Impossible for them ot overtake them, By all which it is Clear and evident, That the saids Magistrats above Complained upon are highly guilty as betrayers of the publict trust and Confidence reposed in them, as magistrats by their Supine Negligence and as dispisers and Contemners not only of his majesties advocat order, Bot Likewayes of the forsaids acts of parliament and of the act of Toune Councill emitted by themselves and also are Connivers in and Concurrers with the said prisoner his makeing his escape as said is, And therfore Ought not only to be punished in their persons and goods and Lyable to the said pursuer for all Coast Skaith and damnadge expensses and intrest which he has allready Sustained in and throw the said Contempt and neglect Bot Likwayes Deprived of their offices as Magistrats of the said burgh of Aberdeen and Declared incapable of bearing office as Magistrats, and of all other publict trust within the toune of Aberdeen in time comeing, And furder Ought and Should be decerned Conjunctlly and Severally by the saids Lords decreet to make payment to the said pursuer of the Soume of […] as expences Sustained and depursed by him in the premisses and Likewayes to find sufficient Cautione acted in the saids Lords books to free and releive not only the said pursuer bot also all other his majesties Leidges of all depredations thifts and of all other Coast Skaith and damnadge which the said pursuer or any others of his Majesties Leidges may incurr from and Sustaine at the hands of the said James Gordon either by himself as actor outhounder or Ratihabiter or any other maner of way Seing if any Such thing happen the Samen is occassioned by the saids Magistrats for Contempt and neglect as is above Lybelled And Anent the Charge given to the saids defenders To have Compeared personally before the saids Lords of his Majesties privy Councill at ane Certaine day now bygone To Answer to the points of the said Complaint and to haveh eard and seen such order and Course taken theranent as the saids Lords Should think fitt as the said principall Lybell and executiones therof at more Length Containes, And the Additionall Lybell Makeing Mention That wher The said pursuer haveing raised a former Lybell against Thomas Mitchell present provest of Aberdeen Alexander Walker Late provest ther, John Allardyce Alexander Forbes and Alexander Brein baillies of Aberdein and James Milne late Dean of Gild of the said burgh for the most unexcusable Connivance and Concurrance of the escap of James Gordon brother to George Gordon of Arradowell wherin they did not only behave themselves in maner mentioned in the principall lybell Bot in open mockerie of their dutie, They send out in a Shame Zeall the day after the escape fyve or six men some of them wnarmed whom they had instructed to avoid meetting with the said fugative And accordingly the said small and insignificant party were Carefull to informe themselves wher he might be Least, they should rancounter him, And did send before to severall planes untill they hade received that assurrance, Likeas the Sending out of the said pairty was ane evident Mockerie Because Gordon haveing gone away with ten or twelve armed men It was Improbable that he could be retaken with give or sex men wherof some unarmed Wherby it is yet more evident that the defenders are guilty of the crymes and ought to be decerned and punished in maner Contained in the principall Lybell And Anent the Charge given to the saids Magistrats of Aberdeen To Have Compeared personally before the Saids Lords at ane Certaine day also now bygone To have answered to the forsaid Complaint And to have heard and Seen such order and Course taken theranent as appeartaines As in the said additionall Lybell and executiones therof at more Lenth is Contained The saids principall and additionall Lybell or Letters of Complaint being upon the Twentie fourth day of November Last by past Called in presence of the Lords of his majesties privy Councill And the pursuer Compearing personally with Sir David Thores Mr David Dalrymple Mr David and Mr Robert Forbess and Mr Frances Grant advocat his procurators and Thomas Mitchell Baillie in Aberdeen (now provest therof) one of the defenders Compearing for himself, and the haill other defenders With Sir Patrick Home Sir Androw Home James Stewart and William Black advocats for the haill defenders, and the haill other defenders being all Lawfullie cited oft times Called and not Compearing The said principall and additionall Lybells or Letters of Complaint with the answers therto being read and both parties Lawiers fully heard The Lords of his Majesties privy Councill admitted the lybell to probatione and the witnesses being Called Some of them Compeared who made faith, and the Councill allowed furder dilligence by Caption against the rest of the witnesses who were Cited and not Compearing; And Nominated and appointed a Committie of their oun number to examine the witnesses who have made faith and the rest of the witnesses where they should make faith, Reserveing all objections Which might be made against the witnesses to be proponed and discust before the Committie Which Committie haveing accordingly mett They took and received the Oathes and depositions of diverse and Sundrie famous witnesses who being all Solemnly Sworne Interrogate and Examined upon their great Oathes Deponed and declared as their oathes and depositions extant in proces bears The Lords of his Majesties privy Councill haveing this day advised both additionall and principall Lybells forsaids and haveing Considered the depositione of the Witnesses taken in both processes and haveing heard both parties informationes read in their presence, They Find the principall and additionall Lybells not proven, And Therfore have Assoylzied and hereby assoylzies the saids defender from the haill points and articles of the Same, And Declares them quytt therof and free therfrae in all time comeing.