Act, 12 March 1705, Edinburgh

Edinburgh 4th January 1705

D1705/1/2

D1705/1/2¹

Decreet

Decreit John Chalmers procurator Fiscall of Elgine against James Steuart Baillie there

Annent the lybell or letters of Complaint raised and persued befor the Lords of her Majesties Privie Councill, at the instance of John Chalmers wryter and Burges of Elgine, and procurator fiscall of the Sherriffdome of Elgine and Forres with concourse of Sir James Steuart her Majesties advocat for her highness interest, Makeing Mention That where by the Lawes of this and all other well governed Realmes all violence and oppression are strictly prohibite, and no man ought to be made or detained prisoner save by due order of Law, and that to doe in the contrary was to doe Incurr and Committ the Cryme of private Imprisonment, which in Law was punishable, Which Crime of violence oppression and private Imprisonment was the more attrocious when the same was Committed by a Magistrat and Baillie in office who was obliedged to protect persons in ther just liberties, and from all such injuries, and therfor ought to be more Severlie punishable, and particularly by the Sixth act of the eight Session of King Williams first parliament, Intituled act for preventing wrongous Imprisonment, and againest undue delayes of Tryalls all Summar Imprisonment without a signed warrand in wrytt expressing the cause whey the person was the Committers to be guiltie of the severall pains and penalties in the cases respective mentioned in the said Act, But also the Judge Ordinary refuseing or delaying to Cognosce the prisoners alleadged Crime, And if the Same be Baillable to Sett the prisoner at libertie on sufficient Baill or delaying to appoynt the tyme of the prisoners tryall after requyred therto within the space and in the termes of the said act, was Declaired to incurr the pains and punishments of wrongous imprisonment conforme to the said Act, Nevertheless it is of verity That James Steuart Baillie of Elgine shaking of all regaird to their authority and Lawes did without any just cause or ground But out of meer prejudice and malice upon the fourteenth or ane or other of the dayes of September J^aj vi^c and Four years cause imprison the said John Chalmers by giveing order and warrant to Alexander Tayleor one of his officers for that effect, within the Tolbooth of Elgine and that without any wrytten warrant or any reason or cause knowen to the said Alexander Taylor, or to Magnus Burgar his fellow officer who was in lyke maner ordered with the said Alexander by the Said James Steuart for the Said Incarcertaion, as ane judiciall Declaration taken by the Baillies of Elgine on oath from the Said Alexander Taylor and Magnus Burgar produced in the Clerks of Councills hands bears, Nor did the Said James Steuart give anie other Mittimus or order for the said Imprisonment, nor could he condescend on any just Cause for the same, But on the contrary when he was requyred to Condescend on the Crime, for which the Complainer was Imprisoned and Caution was offered (in case the same was Baillable) in the termes of the said act, Refused to Condescend on the Said Cryme, Cognosce if the same was Bailable or to accept of Caution, and Sett the Complainer at libertie, or yet to appoynt ane tyme for his tryall in maner prescryved by the said act as Instruments taken againest the said James Steuart also produced in the Clerks of Councills hands doeth testifie So that the forsaid privat Imprisonment, wherin the said Complainer hath been in for the space of Threttie three dayes detained to his great hurt and prejudice was a manifest violence oppression and Contempt of their authority and Lawes of which the Said James Steuart was guilty airt and pairt, which being proven befor the Lords of Privie Councill he ought and Should be Decerned in the Soume of Two Thousand pound Scots money of fyne, and Amerciament with the Soume of Fyftie merks Scots money to the Said John Chalmers persuar for his Damnadges and expences as being a Burgess and that for ilk day of the forsaid space of Threttie three dayes that he was wrongously Detained in prison in maner forsaid, And the Said James Steuart ought to loose and tyne all his offices, and be not only Declaired incapable of bearing any publict trust or charge in tyme comeing conforme to the said act of parliament aboveexprest, But lykewayes Farder punished for the said wrongous Imprisonment, oppression and violence in this person and goods by the pains of Law, to the example and terror of others to Committ the lyke in tyme comeing, And Anent The charge given to the Said Defender to have Compeared personally befor the Saids Lords of Privie Councill at ane certain day bygone to hear and See Such order and course taken theranent, as appertains, with Certification, Wherunto the Said James Steuart gave in Answers to the lybell, Shewing, Wheras the said John Chalmers had raised ane lybell befor the Lords of her Majesties privie Councill againest the Said James Steuart, Complaining that he had committed him the said John into ane privat prison without any Cryme, or written warrand, and when demanded to Show the cause of his Imprisonment he refused to give any account therof as is requyred by the Sixth act of the eighth Session of King Williams Parliament, and therfore Concluded that he ought to be punished and amerciat in the Term’s of the said act, The Magistrats of Elgin in generall, and Baillie Steuart in particular have demained themselves with equality and respect to their Neighbours and due deference to their Superiors, and tenderness to their fellow Burgesses and particularly to John Chalmers one of their Burgesses for through he was lyable for ane fyne of Fiftie pound as Cautioner for Muirson, and in the like fyne of Fiftie pound for beating Bowie his Neighbours wyfe, yet the Magistrats being more willing to reclaime then punish him, delayed the exacting of these fynes, and especially of that wherin he was Cautioner for Muirson, upon the good hopes that he should mend his behaviour, and live as an good and neighbourly Burges But his obstinacy continuing, and his factious and turbulent nature increasing, The magistrats imprison him for the fyftie pound of fyne incurred by him for beating of Bowie his Neighbours wyfe, and he raised ane Suspension from the Lords of Session, of this fyne with ane charge to putt at libertie, which was accordingly obeyed, and he liberat, This being premised, It was answered that Baillie Steuart for himselfe in particular denyed the Imprisonment, But the Magistrats and he did acknowledge the same, and that he was Imprisoned in maner forsaid, for the fiftie pound of fyne imposed upon him for beating of Bowies wyfe, And he cannot pretend that he knew not the cause therof, or that the Terme of payment was blank, or that the same was indemnified, Because as to the first, he had raised ane express Suspension therof by vertue therof he was Sett at liberty, And he was to be excused when he alleadged the Terme was blank, for he was so often fyned for his own inormities, and inacted for others of his Accomplices, in some wherof he has ane Terme, that he cannot remembred in particular, And the rather because he was Sett at libertie upon ane Suspension therof, bearing speciall reasons of Suspension and particularly her Majesties Indemnity, as to which Indemnity, whatever influence it may have in discussing of the Suspension, yet it cannot be regairded in this case, because the Imprisonment was legall by ane Sentence of the Magistrats of Elgine who Summarly imprison for fynes without ane previous Charge, And Secondly The Magistrats of Elgine have the Escheats and fynes of their Burgesses, as was decided in the case of Cantlie the Thiefe, where the magistrats were preferred to the Kings Donator as to his Escheat, so the Magistrats in this case, and not the Queen had right to fyne, and as to the act of parliament lybelled upon it has no relation to this case, for John Chalmers was not Imprisoned upon any Information, but for debt which was especially excepted from the act in thir words, and without prejudice of all personall dilligences, or Imprisonments for payment of debt, or upon Sentence, And here John Chalmers was Imprisoned upon the Touns Sentence, Ordaining his person to be Wardit, And because he was ane Burgess, his prison was open, and he could have gone abroad at pleasure, but was so well entertained there with Musick and Company that he choosed to continue, and gratifie his humour above his interest, untill he was pleased to procure Suspension and charge to putt at libertie, It cannot be pretended that the Magistrats imprisoned him by reprysall unless he look upon himselfe and his adherents as pairties, in which case reprysall was proper and necessar, and even protection of authority to defend againest such, John Chalmers knew of this Imprisonment Severall dayes befor, and the Sentence the cause therof from the tyme it was given, and through he gave Severall provocations to the Magistrats, yet they neither resented nor reprysed, but put their legall Sentence to due execution, and that but in pairt wheras they have yet many of the like nature above his head, Last of all Mr Chalmers considering the Season of the year and that he had Suspended the Imprisonment, and was liberat and so had choosen the Lords of Session for his Judges, was guilty of murmuring the Magistrats, and of manifest oppression to call them befor the Councill, To give them but eleven dayes to Compear in, and when the whole Subject matter is but Fiftie pound Scots Suspended and not exacted, as to the Documents alleadged in the lybell, they are not produced, and so can not be answered, The Lybell at the instance of John Chalmers procurator Fiscall of the Sherriffdome of Elgine and Forres wryter and Burgess of Elgine, againest James Steuart Baillie there being called and the persuer Compearing personally at the barr, with Mr David Forbes, and Mr Francis Grant Mr Alexander Hay, Mr James Southerland, and Mr James Steuart his advocats, and the Defender also Compearing at the Barr personally with Sir David Cunninghame, Mr James Grahame and Mr James Hamilton his advocats, and the lybell with Answers therto, being read, And both pairties Lawiers heard at the barr, and removed, And the saids Lords of her Majesties having Considered the samen they found and heirby Finds the forsaid lybell as to the wrongous Imprisonment relevant and proven by the said James Steuart his own confession, and therfore conform to the Sixt Act of parliament J^aj vi^c and one years Have fyned and amerciat, and heirby fynes and amerciats the said James Steuart Defender in the soume of Two Thousand pound Scots money for the wrongous Imprisonment, And have Decerned and Ordained and heirby Decerns and Ordain’s the samen to be payed by the said James Steuart to the said John Chalmers persuer, and farder have Decerned and Ordained the said James Steuart to have lost his offices, and to be incapable of publict trust by and attour payment of the soume abovespecified, Reserveing alwayes to the said John Chalmers to insist in his proces and adduce his probation by witnesses or otherwayes for proveing the number of dayes he was in prison for inferring the pains of Law provyded theranent as accords And appoynts and Ordaines letters of horning under the Signet of Councill upon Six dayes to be direct heirupon as effeirs, for the forsaid soume of Two thousand pounds money forsaid.