Att Edinburgh the first of March Jaj vijc and fyve yeirs
A1705/3/3
A1705/3/3
Decreet
Decreet Her Majesties Advocat Against Ensigne Fleeming and Galbraith
Anent the lybell or Letters of Complaint raised and persued befor the Lords of her Majesties Privie Counsell at the instance of Sir James Steuart her Majesties Advocat by Speciall order of the Saids Lords of Privie Counsell Mentioning That wher by the Laws of this and all other weell governed realms, the publict peace and Good order ought to be observed, Speciallie within burghs and wnder cloud of night, Lykeas for the better effectuating therof, It is Speciallie ordained that after a certaine hour and particularly the ten hour bell, and Setting of the Guard within the town of Edinburgh, all men Should retyre to their homes in quyet maner, and make no molestation; Lykeas wher any molestation is made contrary to the premisses, and when the Same happens to be done Against our best Subjects and members of our Privie Counsell, And intrusted with officers of the greatest Import, And that by the assaulting ther persons and Servants, while goeing peaceably about their duty, The Same is a high and hegnous cryme, And ought to be Sevearly punished, Nevertheless It is of veritie that Ensigne James Fleeming Second Son to Sir James Fleeming Late provest of Edinburgh, Thomas Burnet one of the Guards, and John Galbraith Son to wmquhile George Galbraith Merchant ther are guilty of the forsaids crymes, In so farr as that wpon the Second, or ane or other of the dayes of the moneth of February instant, David Earle of Levine, Governor of the Castell of Edinburgh, and one of the Lords of our Privie Counsell goeing wp to the Castell his post and charge in peaceable maner after ten of the cloak at night, himselfe in a Chair, with a Lantern carried befor him, The Said John Gallbraith with Some of his Companions after ther Cupps being dancing on the high Street in the land Mercat, and Stoping one of his lordships footmen, who bid him Stand off, The said John Galbraith answered Goe be damned, And the chair passing one, The Said Galbraith meets with the said Ensigne Fleeming and Thomas Burnet one of the Scots Guards, to whom he told the matter, wherwpon the said Ensigne Fleeming answered with ane oath that it would be a brave Sport, if they Should goe back, and overturne the Chair, wpon which the said Ensigne Fleeming and Burnet with the said Galbraith returned, and rune after the Chair and brock the Lantern that was carried befor it; And farder Ensigne Fleeming drew his Sword when challenged by the said Earle of Levine, and when the Earls Servant by his lordships order offerred to Sease him, he wounded him with his Sword, Untill the Ensigne fell and was taken and ther persons Seased; By all which the said Ensigne Fleeming, John Galbraith and Thomas Burnet are guiltie airt and pairt of a most attracious Ryot and Batterie and blood aggravat by the circumstances forsaid, which being proven against all or any of them befor the Lords of Privie Counsell, They ought to be punished by Sentence of the Saids Lords in ther persons and goods, with the Sevearest pains of Law, to the example and terror of others to committ the lyke in tyme comeing: And Anent the charge given to the Saids defenders to have Compeared befor the Saids Lords of Privie Counsell wpon the day and date of thir presents, To have answered to the Said Complaint, And to have heard and Seen Such course taken theranent as appertains, as the saids Lords of Privie Counsell Should think fitt, Under the pain of rebellion and putting them to the horne, with certification as in the saids Letters of Complaint and executions therof at more length is contained, Which lybell being wpon the day and date of thir presents Called, And the pairties Compearing personallie at the barr, The said Ensigne James Fleeming and John Galbreath Gave in and presented a petition to the Saids Lords Shewing That the petitioners being very unfortunately engaged in a very rash and foollish Scuffle and insult wpon the Earle of Levins Servitors, when my Lord himselfe was in a Chair goeing home to his lodgings, and which being ane indignitie done to one of the Saids Lords ther number, ther lordships had most Justly appoynted them to be prosecute befor the Privie Counsell, And the Said Ensigne Fleeming had been also committed prisoner severall weeks in the Tollbooth of Edinburgh, But haveing the honour to have a Commission as a Subalterne in one of the Scots redgments in the Service of the States, And haveing received intimation to be ready wpon a Call, he was in danger to be ruined if he continued longer in prisone; And therfor out of a deep Sense of his own fawlt, and to Spare the Saids Lords the trouble of a proces, He did most humbly Submitt himselfe to the Saids Lords Censure; hoping at the Same tyme that ther lordships will be pleased to have Some consideration of his youth, And that he was then in drink; As also that he never received any provocation or Injurie from the Earle or his Servants, which as in Some Sense it does aggravate his Guilt, So it frees me from all Suspition of Foirthought or designe against his lordships for whom he hade alewayes in his Litle Station intertained all due honour and respect, And to whom he would willingly have Submitted himselfe, If his Lordship could have accepted a Submission to take away ane offence, which concerned the most honourable Privie Counsell, And Therfore Craving it might please ther lordships To accept of his most humble Submission and acknowledgment of his fault to the saids Lords in Generall, And to the Earle of Levine in particular, And to use Such goodness and Lenity in the Censure as the matter cane admitt, and Suteable to ther lordships innate bounty, as the said petition bears, The within lybell at the instance of Sir James Steuart her Majesties Advocat Against Ensigne James Fleeming Second Son to Sir James Fleeming late Provest of Edinburgh, and John Galbraith Son to wmqwhill George Galbraith Merchant ther being Called, and pairties Compearing at the barr, and the lybell with a petition by the said Ensigne James Fleeming being Read, And the Said John Galbraith owning the Same, and adhearing therto, was requyred to Signe the Same, Which accordingly he did, Therafter the pairties being removed, The Lords of her Majesties privie Counsell haveing considered the lybell and petition by both parties, They heirby Appoynt and Ordaine both the saids defenders to come in to the barr, and ther with open doors to Sitt doun on ther knees, and begg pardone of the Board, And therafter of the Earle of Levine And from ther to be carried to Prisone, Ther to continue till they be sett at Liberty by the Magistrats of Edinburgh upon application to them for that effect, And accordingly the saids defenders being called in did one after other with open doors, Compear at the end of the Counsell table, And ther Sitt down on ther knee, And acknowledged ther offence, and wer heartily Sory for the Samen, And therafter did begg pardone of the Board, and then of the Earle of Levine, And Grants warrand and order to the Magistrats of Edinburgh and keepers of their Tollbooth upon the defenders application to Sett them at Liberty furth of ther Tollbooth without Caution, For which this Shall be to them a Sufficient warrand.
At Edinburgh 1 March 1705
A1705/3/3
Decreet
Decreet her majesty’s advocate against Ensign Fleming and Galbraith
Concerning the libel or letters of complaint raised and pursued before the lords of her majesty’s privy council at the instance of Sir James Stewart, her majesty’s advocate, by special order of the said lords of privy council, mentioning that, where by the laws of this and all other well governed realms, the public peace and good order ought to be observed, especially within burghs and under cloud of night, likewise for the better effectuating thereof, it is specially ordained that after a certain hour, and particularly the ten hour bell, and setting of the guard within the town of Edinburgh, all men should retire to their homes in quiet manner, and make no molestation; likewise where any molestation is made contrary to the premisses, and when the same happens to be done against our best subjects and members of our privy council, and entrusted with officers of the greatest import, and that by the assaulting their persons and servants, while going peaceably about their duty, the same is a high and heinous crime, and ought to be severely punished. Nevertheless it is of verity that Ensign James Fleming, second son to Sir James Fleming, late provost of Edinburgh, Thomas Burnet, one of the guards, and John Galbraith, son to late George Galbraith, merchant there, are guilty of the foresaid crimes, in so far as that upon the second, or one or other of the days of the month of February instant, David [Melville] earl of Leven, governor of the castle of Edinburgh, and one of the lords of our privy council, going up to the castle, his post and charge, in peaceable manner after ten o’clock at night, himself in a chair, with a lantern carried before him, the said John Galbraith, with some of his companions after their cups, being dancing on the high street in the land market, and stopping one of his lordship’s footmen, who bid him stand off, the said John Galbraith answered go be damned, and the chair passing on, the said Galbraith met with the said Ensign Fleming and Thomas Burnet, one of the Scots Guards, to whom he told the matter, whereupon the said Ensign Fleming answered with an oath that it would be a brave sport, if they should go back, and overturn the chair. Upon which the said Ensign Fleming and Burnet with the said Galbraith returned, and ran after the chair and broke the lantern that was carried before it. And further, Ensign Fleming drew his sword when challenged by the said earl of Leven, and when the earl’s servant by his lordship’s order offered to seize him, he wounded him with his sword, until the ensign fell and was taken and their persons seized. By all which the said Ensign Fleming, John Galbraith, and Thomas Burnet are guilty art and part of a most atrocious riot and battery and blood, aggravated by the circumstances foresaid, which being proven against all or any of them before the lords of privy council, they ought to be punished by sentence of the said lords in their persons and goods, with the severest pains of law, to the example and terror of others to commit the like in time coming. And concerning the charge given to the said defenders to have appeared before the said lords of privy council upon the day and date of these present, to have answered to the said complaint, and to have heard and seen such course taken therein as appertains, as the said lords of privy council should think fit, under the pain of rebellion and putting them to the horn, with certification as in the said letters of complaint and executions thereof at more length is contained. Which libel being upon the day and date of these present called, and the parties appearing personally at the bar, the said Ensign James Fleming and John Galbreath gave in and presented a petition to the said lords, showing that the petitioners being very unfortunately engaged in a very rash and foolish scuffle and insult upon the earl of Leven’s servants, when my lord himself was in a chair going home to his lodgings, and which being an indignity done to one of the said lords their number, their lordships had most justly appointed them to be prosecuted before the privy council, and the Said Ensign Fleming had been also committed prisoner several weeks in the tolbooth of Edinburgh. But having the honour to have a commission as a subaltern in one of the Scots regiments in the service of the States, And having received intimation to be ready upon a call, he was in danger to be ruined if he continued longer in prison; and therefor out of a deep sense of his own fault, and to spare the said lords the trouble of a process, he did most humbly submit himself to the said lords’ censure, hoping at the same time that their lordships will be pleased to have some consideration of his youth, and that he was then in drink, as also that he never received any provocation or injurie from the earl or his servants, which as in some sense it does aggravate his guilt, so it frees me from all suspicion of forethought or design against his lordships for whom he had always in his little station entertained all due honour and respect, and to whom he would willingly have submitted himself, if his lordship could have accepted a submission to take away an offence, which concerned the most honourable privy council. And therefore craving it might please their lordships to accept of his most humble submission and acknowledgment of his fault to the said lords in general, and to the earl of Leven in particular, and to use such goodness and leniency in the censure as the matter can admit, and suitable to their lordships’ innate bounty, as the said petition bears. The within libel at the instance of Sir James Stewart, her majesty’s advocate, against Ensign James Fleming, second son to Sir James Fleming, late provost of Edinburgh, and John Galbraith, son to [the] late George Galbraith, merchant there, being called, and parties appearing at the bar, and the libel, with a petition by the said Ensign James Fleming being read, and the said John Galbraith owning the same, and adhering thereto, was required to sign the same, which accordingly he did. Thereafter the parties being removed, the lords of her majesty’s privy council having considered the libel and petition by both parties, they hereby appoint and ordain both the said defenders to come in to the bar, and there with open doors to sit down on their knees, and beg pardon of the board, and thereafter of the earl of Leven, and from there to be carried to prison, there to continue until they be sett at liberty by the magistrates of Edinburgh upon application to them for that effect. And accordingly the said defenders being called in did one after other with open doors, appear at the end of the council table, and there sit down on their knee, and acknowledged their offence, and were heartily sorry for the same, and thereafter did beg pardon of the board, and then of the earl of Leven. And grant warrant and order to the magistrates of Edinburgh and keepers of their tolbooth, upon the defenders’ application, to sett them at liberty forth of their tolbooth without caution, for which this shall be to them a sufficient warrant.
