Procedure, 24 December 1702, Edinburgh

Att Edinburgh the 30 July 1702

D1702/7/29

D1702/7/29¹

Decreet

Decreit Baillie Robertson against Patrick Hay

Anent the lybell and Complaint raised and persued before the Lords of her majesties privie Councill att the instance of Robert Robertson, one of the present Bailies of the burgh of Pearth, with Concurse of Sir James Stewart, her Majesties advocat for her hignes interest in the matter under written makeing mention that where by the lawes of this and all other weel Governed realms the office and persons of magistrats ought to be had in Singular Esteem, and honor, and that to insult or beat a magistrat while he is in office, and is in so farr vested with ane authority wherwith he is entrusted is not only a Comon Cryme, and Ryot but most highly agravated, by the Character that the magistrat bears, and is further of a most dangerous Consequence, tending to render magistracie Contempable and thereby tending to Introduce and licence, all disorders wpon which accompt the honor and persons of magistrats hath also been particullarly reguairded and Secured by acts of parliament in their behalfe, Nevertheless It is of verity that Patrick Hay Son to Patrick Hay Late² provest of Pairth Shakeing of all respect to her majesties authority and lawes is guilty of the forsaid Cryme in Sofarras that the Earle of Wigtoun being Come to the said toun And the said Robert Robertson, Bailzie with other of the magistrats haveing payed him, the ordinary Civility of the burgh, and the said Baily Robertson with Certain other persons, and particularly the said Patrick Hay, a burges and Indueller in the said burgh, being returned to the house of one Widdow Blair That keeps a Tavern, and the said Baily Robertson and Patrick Hay, and others being thus mett, wpon the twenty seventh day of January last, past or ane or other of the dayes, of the said moneth, and the Said Patrick Hay Cashing in a discourse about the said Robert Sanders, Schooll master of Pearth, he proceeded to Charge the Magistrats and particularly Bailzie Robertson for being So unkynd to him, To which Baily Robertson answered, that Considereing Mr Sanders was not qualified in law, and that he hath also been noticed by the presbitry wpon the Suspition of erroneous oppinions the saids magistrats had been too favorable³ to him to be Challanged in that maner to which the said Patrick Replyed that the said Mr Sanders Should be keept in his office, whither the magistrats would or not, And Baily Robertson answering that he Spoke foolishly the said Patrick in great wrath did in the presence of the Lord Strathallan, and the Gentlemen and others that were in the Roum, give the said Bailzie Robertson a blow, with his sist upon the syde of the head which almost made him Stager, and putt him in great Confusion which was ane Intollerable wrong and Indignity, and Imediatly received by the said Baily with all gravity, and discretion he haveing declaired in presence of all the Company, That tho as Robert Robertson he would pass the Injurie done him, yett as being present Baily of Pearth he nether would nor Could do it, And Therefore defyned Patrick McEwan, another Bailzie then present to Secure the said Patrick Hay, which yett was not done, But this Injurie being So manifastly to the dishonour of the magistracie and the said Bailzie Robertson, Considering how that some⁴ in⁵ the magistracie, before him, had suffered particullar Indignities which not haveing been duely punished might have Imboldned to this new Conttemp, which Can be fully vindicat only by the Lords of privie Councill The said persewer hath there fore laid the matter before the saids Lords, by this present lybell, by which It plainly appears, that the said Patrick Hay is guilty airt and parte of ane attrocious Ryot and high Injurie and Indignity done to the prison of a magistrat in present office for which he ought not only to be Severely fyned, but otherwayes punished att the Sight of the saids Lords, to the example and terror of others to Comitt the like in tymecomeing, and annent the Charge given to the Charge given to⁶ the said defenders, to have Compeared personally before the saids Lords of her majesties privie Councill att ane Certain day now bypast to have answered to the Grounds of the said Complaint, and to have heard and Seen such order and Course taken theranent as the Saids Lords Should find Just, under the pain of Rebellion and putting of him to the Horn as in the principall lybell or letters of Complaint with the executions thereof att more length is Contained And Sicklyke anent the lybell or letters of Reconvention raised and persued before the Saids Lords, att the instance of Patrick Hay Son to Patrick Hay late provest att Pearth with Concurse of Sir James Stewart her Majesties advocat, for her highnes interest in the matter under wryten makeing mention that where by the lawes of this and all others weell Governed Realmes, the defameing, reproacheing or accuseing of her Majesties Innocent Leidges, Especially when the Same is done by a magistrat who ought rather to promott Good order and advance the⁷ quyet of every particular person under theire Charge air Crymes of ane high nature and Severely punishable And yett nevertheless, It is of verity that Robert Robertson ane of the present Bailies of Pearth, did not only insult and abuse the said Patrick Hay in presence of severall famous witnesses, without all maner of provocation or previus Cause or occasion, but haveing Drunk exorbitantly of brandy in the bridge end of Pearth, he Came in with the Companion, and haveing taken a Careless offence against the Said Patrick Hay persewer, he begun first to reflect and reproach his Father, provost Hay, and when the said persewer severall tymes told him, he knew no reason why he Should blame his Father, the Said Bailzie Robertson, Called the said persewer, Patrick Hay by the names, of a Rascall lyer Sott villan and fooll and that notwithstanding he was three or four tymes desyred, by the said persewer to be more modest, and the said persewer haveing therefore left the Company he was sent for again and att his entry the said Patrick albeit he was the only party enjuired Did for quieteing of the Company, tell the Baily that if he had given him any offence he begged him, pardon, which the said Bailzie (his drink and passion being a litle aswaged) did accept of, and declaired that he passed from all Injurie, and In token of it Drunk to the Said persewer, But farder the said Robert Robertson Bailie In pursuance of his Causeless malice hes raised a most Calumnius Complaint against the Said persewer, as a Contemner of magwarie aleadging that that the said Patrick Hay, did Charge the magistrats with not favoreing people disaffected to to⁸ the Government, which is utterly untrue And the said Robert Robertson does furder Charge, the said Patrick with beating him in Contemp of magistracie which he syds that Its most Callumnius It is Likewayes Irrelivant, for a magistrat not in the exercise of his office, but in privat Company, is but tanquam quilibet and if he gives excessive provocation, His Charactere is ane agravation of the Injuries, and his Impridence, by all which the said Robert Robertson is guilty of the forsaid Crymes, and ought to be punished, in his person and goods, to the terror of others to Committ the like in tymecomeing as the said lybell of Reconvention bears, And Anent the Charge given to the said defender to have Compeared personally before the saids Lords of her Majesties privie Councill att ane Certain day, now bypast, to have answered to the grounds of the forsaid Complaint and to have heard and seen such order and Course taken as thereanent as the saids Lords Should think fitt under the pain of Rebellion and putting of him to the horn as in the said other lybell or letters of⁹ Reconvention, with the executions thereof att more length is Contained, which two letters or lybells, being both upon the nynteenth day of February, Seventeen hunder and two last read in presence of the saids Lords of her Majesties privie Councill, and the said Robert Robertson persewer of the principall lybell and defender in the Reconvention, Compearing personally att the barr with Sir James Stewart her majesties advocat Sir Patrick Hume, and Mr John Fleemeing his advocats, and the said Patrick Hay persewer in the Reconvention and defender in the principall lybell, Compeareing also personally with Sir David Dalrymple and Mr Wiliam Carmichell her majesties Solicitors his Advocats and both lykeas being both read with answers, thereto and parties procurators fully heard att the barr, the saids Lords, of her majesties privie Councill remitted the Cause to the magistrats of Pearth to be tryed before them, and Judged and Sentance to be passed, thereon accordingly, Thereafter ther was a Supplication given in and presented, to the Saids Lords of privie Councill by the said Robert Robertson Bailzie Sheweing that where wpon, the petitioners very Just Complaint and lybell,¹⁰ against Patrick Hay Son to Patrick Hay late provest of Pearth, ther Lordships were pleased afther heareing of the lybell, which with Submission the petitioner Conceaves was very relivant, for Such ane open and avowed injurrie, done to a magistrat in office, within his own burgh by one of the Inhabitants and burgesses to remitt the same back, to be tryed and Cognosced, by the other magistrats and Counsell of the said burgh, notwithstanding that I represented how that Baily McEwen my fello Baily, had not done his parte, and that the magistrats and Counsell, had also declined to grant the petitioner the Concurrance that he required he must Still with all Submission represent, that the petitioners party in Stead of any Just defence, did rather agravat the Injurie Complained off, by aleadgeing that he was overtaken, and drunk for the tyme, and that It was no more but a drunken Scuffle, wherein the petitioner had given him Just the petitioner was done to him, tanquam, quilibet, which that after Such a defence made before the Saids Lords, this matter Should be remitted, It Could not but be attended with very manifast disadvantages, Besydes that the Saids Lords may be pleased, to know that the petitioners provest George Oliphant, is by Appoyntment of the Burroues, to goe to Complein about the first of march, and that of three Bailies Baily Mcewan being a necessary witnes, the petitioner Shall have but one Baily, to try and Judge this affair which he humbly Conceaves Cannot be ther so weell done, as by the saids Lords to whom the vindication, and protection of the magistrats of his majesties burghs, Royall doeth undoubtedly pertain And Seing that all I Creave is that my lybell may have a fair tryall and that It may not be remitted, under (¹¹ as I humbly Conceave ane obvius prejudice, and to ane Single Baily not Sufficient to Cognosce therwpon, And Therefore Craveing the Saids Lords would reconsider, the said matter and in the forsaid place, to take Cognition of the petitioners lybell by admitting by admitteing¹² the same to probation, as also any parte of the defences that may appear to deserve the Same, And then to determine upon the whole as the saids Lords Shall See Cause, as the Said petition bears, att the Same tyme ther was ane petition, given in to the saids Lords by the said Patrick Hay Son to Patrick Hay, late provest of Pearth, Shewing that where their Lordships, after hearing the mutuall¹³ lybells and answers with the debate thereupon, betwixt Baily Robertson in Pearth and the petitioner were pleased as the petitioner, is Informed to pronounce ane Interloquitor, but the said Bailie¹⁴ acquiesceing did apply for Stopeing and hes now att last published a petition wherein he reclaimes, against their Lordships Interloquitor, aleadgeing that It Contained a Remitt to the magistrats of Pearth to Judge the matter betwixt him and the, which he pretends will be elusory the provest being to goe abroad, 2d one of the Bailies is a party or witnes, 3tio Ane other Baily did not accept and 4to/ the thrid Baily refuses to Judge for the petitioners parte he Shall not presume to reason about ther Lordships Interloquitors, which pass with Closs doors, but this with all humble respect the petitioner Conceaves is evident, that Since the saids Lords have given any Judgement It falls to be extended, unless the Bailies new Representation take It off 2do/ the Representation is a greater Injury to the Magistrats of Pearth then the excesses aleadged against the petitioner, for It is not to be presumed, that the magistrats will leave the toun without Government and ther Can be nothing more honorable for them then that they by ther Lordships authority Solemnly warranded, to vindicat the Contemp pretended to be putt upon not¹⁵ one of ther own number nor is the Bailies diffidence in his favors, 3tio the petition Contains Nothing but a meer pretence, for Its now eight dayes Since, the Saids Lords pronunced ther Interloquitor, and the provest is neither gone nor about to goe abroad for Severall weeks to Come, and the tryall of the present question might be over in a few hours nor is Baily McEwan either party now necessary witnes for as the lybell bears ther were Severalls present when the pretended difference happened, and the thrid Baily is and the thrid Baily is allone Sufficient to Judge it, And Therefore Baily Robertson had better plainly say that he hes not a mynd to have the matter tryed wpon the place, and that your Lordships Should gratifie him in his humor, and the truth is the Bailies deffidence does Sufficiently Show, that the magistracie of the place have not been Injured, and the Subject of the question, was trifle not worthy their Lordships while to have been made the ground of a lybell and much less, to have been the ground of a Second application, And Therefore Craveing It might please the Saids Lords to refuse the desyre of the said petition and appoynt the former remitt or decreit to be extracted, as the Said petition bears The Saids Lords of her Majesties privie Councill Haveing Considered the said petition given in to them by the said Baily Robertson, and the answers given in thereto by the said Patrick Hay, with the former Interloquitor of Councill of the date, the nynteenth then Instant remitting the Cause to the magistrats of Pearth to be tryed before them, the altered ther for said Interloquitor and ordained Intimation to be made personally to the said Patrick Hay to Compear and Sist himselfe before the Saids Lords, wpon twesday the nixt being the thrid day of march to answer, to the lybell formerly exhibite against him with Certification Thereafter ther was ane other petition given in and presented to the Saids Lords be the said Patrick Hay, persewer of the Reconvention and persewer of the principall lybell, Showeing that where in the Complaint against him att the Instance of Bailies Robertson in Pearth, the Saids Lords after heareing were pleased, to remitt the Cognition to the magistrats of Pearth in respect the question Concerened and Indignity offered to one of themselves, but wpon application, of the said Baily, Robertson, ther Lordships have been pleased, to alter and appoynt, parties to be heard wpon twesday nixt, And before, the petitioner make any representation, as to the Interloquitor, he does with all due respect and Submission, beg pardon for withdraweing from the barr the last Councill day which proceed from, no other Reason, but that he was nowayes prepared And as to the Interloquitor, Since the Baily hes given the petitioner the example of reclaiming he must also begg liberty, to desyre ther Lordships to reconsider ther former Interloquitor, and albeit he might very Justly Contend that he ought to be Simplye assolzied In respect that the Bailies own lybell against the petitioners acknowleges that It was in a privat Company And after the Baily had been that Same day ingaged in makeing of burgeses, as also the lybell fairly acknowleges, the injury was deseimbled and past from, and albeit he indeavors to distinguish betwixt himselfe as a man and as a Baily, yet that distinction appears too much to be defined, the Injurie not being offered to him as a Baily now in his office, but denyeing alwayes the Injurie it is aleadged only to have happned in a privat Company and Indeed the Baily was guilty of glorious and insufferable, probations which he does not mention out of any malice, or disrespect to magistracy but of necessary Selfe defence, The petitioner might also here take occasion to vindicat himselfe from the aspersions throwen wpon him, by the Baile and the petitioner is able, by undoubted testimonies, if It were necessary of Gentlemen and neighbours, in the toun weell affected to the Government, to aprove the Innocency and quietnes of the petitioners behaveor, and Conduct, But Because, that is no parte of the petitioners lybell And he is fully Convinced, that the said Lords in Justice will determine, wpon the petitioners Cause without reguard to privat Sugestions, as to his person, which hes been always the peculiar happines of the Subjects under this present Government; the petitioner will not trouble ther Lordships farder about It, But that which the petitioner insists, in is that the saids Lords haveing pronuncing the Cognition to the magistrats of Pearth the former proces fell, nor is his¹⁶ petition for the extract of his decreit of his Compearance which were all directly adheareing to ther Lordships Interloquitor Sufficient to Sustain or revive It 2do/ he does also with Submission Contend that the first Interloquitor pronunced by the Saids Lords merits to be sustained and adheared to, both because of ther Lordships authoritie which does not admitt a Change, of ther Interloquitor Gravissima Causa, which does not occur in this Case, as will afterwards appear and also because of the naturall Justice of the said Interloquitor In So farr as, if ther were truely ane Injury done to any of the magistrats of Pearth, ther Can be nothing more honorable, or will more effectually repress, Such Injuries then that the magistrats authority being Strengthned by ther Lordships remitt, be made use of to vindicat it Selfe, and as this was honorable and Just to the magistrats, So It was less expensive and easie for the petitioner, and Therefore the Interloquitor was every way Suitable, to the Saids Lords ther Justice and prejudice 3tio/ the reasons offered for the Baily, why the Saids Lords Should alter one truly but excuses and pretences, and first the Instrument taken of denegatum Justicium is more Injurious to the magistrats then the pretended Scuffle betwixt the Baily and the petitioner in a privat Company, Nor is the Instrument to be reguairde unles the magistrats were Called and allowed, to be heard, Besides by the Instrument It appears Justice was not denyed, but the provest being but Come to the toun the night before and Severalls of the Councell Ignorant of the affair they desyred a litle tyme, to enquire about the matter, and if It were found to be weell grounded they would Concurr any way the Baily pleased 4to It is not less freevolus to alleadge, that ther are not magistrats all Pearth, to Judge in the matter albeit the provest be ordained to goe to Campleton yett he will not be goeing untill apryle, and this question Can be desided in twenty four hours, nor will the Baily be able ever to prove ane litle of his lybell and in the nixt place ther is one Baily undenyeable Competent for the whole Cognition, and Mcbowan the third Baily is only debarred by Baily Robertsons makeing use of him as a witness albeit he be noway a necessary witnes, the aleadged Injury haveing happned, in a Company where ther was many present as the lybell bears, And Therefore Craveing the Saids Lords would adhear to ther former Interloquitor, and ordain the act and remitt to be extracted, as the said petition bears, which being read and Considered by the saids Lords, wpon the third of march Seventeen hunder and two, they adhered to ther former Interloquitor, of the twenty Sixth of february last, and refused the desyre of the said petition wherewpon and wpon the said thrid day of march last the forsaid lybell att the Instance, of the said Robert Robertson being both again Called the said day in presence of the saids Lords, of her majesties privie Councell and the said Robert Robertson persewer in the principall lybell and defender in the Reconvention Compeareing personally att the barr, with Sir James Stewart her majesties advocat Sir Patrick Hume and Mr John Freeman his advocats And the said Patrick Hay Compeaireing also personally att the barr with Sir David Dalrymple, and Mr Wiliam Carmichaell, her majesties Solicitors, his advocats, and both parties procurators being fully heard att the barr the saids Lords of her majesties privie Councell haveing Considered both lybells, and answers, they admitted both lybells to probation, and the witnesses Cited, for both parties being Called, and not Compeareing the granted letters of Second dilligence by Caption against witnesses absent for both parties And the Said Robert Robertson haveing taken a Second dilligence against the Saids witnesses the Same was Called in presence of the saids Lords, wpon the Sixteenth of July instant and all the witnesses therein named Compeareing personally att the barr (Except the Viscount of Strathallan) did make faith, and the saids Lords appoynted, a Commity to examine the saids witnesses, and which Commity haveing accordingly mett, they took and received the oaths and depositiones of diverse and Sundry famous witnesses upon both lybells, who being solemnly sworn examined and Interrogat Deponed and declaired as ther oaths and depositions extant in proces bears, and the Saids Lords of her Majesties privie Councell haveing this day advysed the proces att the instance of, the said Robert Robertson Bailie of Pearth against the said Patrick Hary sone to Patrick Hay late Provest there, And the principall lybell with the lybell of Reconvention depositions of the witnesses and Informations for both parties being all read in ther presence, and they haveing duely Considered the Same, and the haill Steps of the said proces, the saids Lords of her Majesties privie Councell, doe hereby ordain the said Bailie Robertson and Patrick Hay to be Called in and the saids parties both Compeareing att the barr The saids Lords ordained the said Patrick Hay defender to Crave att the barr instantly the Councell pardon, and then the said Baily Robertson for the Injury and offence done by him to the magistracy of Pearth, which accordingly he did and further the saids Lords, decerned and ordained the said Patrick Hay, to goe to Pearth, and ther in presence of the said Toun Councell, of the said burgh, of Pearth, betwixt and the fifteinth day of Agust nixt to Come, to Crave the Said Baily Robertson and the toun Councill pardon, for the said Injury and offence he had Committed against the Magistracy there, and the Lord Advocat in name of, the said Bailly Robertson past from any expensses the the¹⁷ Baily Could Seek from the said Patrick Hay.