The life of John Leith III of Leith Hall is perhaps best remembered for the ballad on his early demise. This ballad composed by an old rhymester of the time can been read in the family book pages 27-28 or in the Andrew Hay of Rannes book – A Jacobite Exile, where the text appears in the Appendix. The portraits above capturing their features in the prime of their lives. John’s sad and rather brutal ending is dealt with in various other works. Notably family letters and the book sourced from these. An online account titled ‘The Death of Leith Hall’ is also a good read and well researched on the topic. John and Harriot Stuart’s marriage was from all accounts a happy match. From it three children survived to adulthood, who through their mother’s and tutor’s support were to also change the family’s history from that of local Lairds to one’s whose careers and particularly soldiering ones were highly successful and notable in their life times. Harriot’s own life is a fascinating one as well not only confined to Scotland, but also the continent, with snippets on her life perhaps offering an insight into the independence of her life as a widow, while still showing her primary purpose as the carer to her three boys. Details on the tutoring of her children, correspondence of estate to the medicinal needs of her children or the household proving an 18th Century window into the life of a female as the head of the household. John’s tale of course ending in tragedy, but also perhaps in hindsight a new beginning for the family at the time due to the influence that her son’s would have gained from the mother as their primary carer.
John Leith’s Ballad is below. It shows the rhyme of the day, which remained in local folklore for a long time and perhaps also into the 20th century at the Hall with the link to the tales of his haunting. I have added further the details of the court case which followed John’s death as it highlights the legal wrangles of the time and the quest for compensation on his loss.‘It fell about the Martinmass In the year sixty-three, There happened in fair Scotland A griveous tragedy. When all the nobles were convened, As they were won’t to d, And brave Leith Hall among the rest, To pay what he was due. Four-and-twenty gentlemen Sat birling at the wine, ‘Twas in Archie Campbell’s house The cruel contest began. And how the quarrel first took rise There was no one could know; But it proved fatal to Leith Hall, And wrought his overthrow. Brave Leith Hall went down the stair Not knowing what to do; When cruel Mayen followed him And shot him through the brow. He left him lying in his gore, The vital tide stream’d down; The cruel Mayen fled the town, And could no more be found. Leith’s servant bound the bleeding head, And bore him to his bed, And covered him with blankets warm, And due attention paid. His lady and his children dear Were brought, and wept full sore; He spoke some words which gave them hope Which they had lost before. But every hope was frustrate soon, He saw but the third day, When ghastly Death, that grim grim ghost Snatch’d his sweet life away. The bells were rung and mass was sung, And gave a doleful knell; His corpse was borne from Aberdeen And laid down at Leith Hall. Now for the killing of Leith Hall And spilling of his blood, Just vengeance fall from heaven high, And light on Mayen’s head. If Brave Leith Hall had been in drink, The sin I hope is forgiven; And I may say and trust this day His soul is safe in heaven. I wish it there may shine more clear Than sunshine after rain; Among the bright meridian stars Where no more griefs remain.’
No 99. Stewart againt Earl Fife. Assythment is exigible from a person accused of murder, who has been outlawed for not appearing and standing trial
ARGUMENTS, AND DECISIONS, In REMARKABLE: CASES,
Before the High Court of JUSTICIARY, and other SUPREME Courts, in SCOTLAND.
Collected by Mr MACLAURIN. EDINBURGH
N° 99 July 1767.
Mrs HARRIOT STUART, widow of John Leith of Leith Hall, and John, Alexander, and James Leiths, their children, and their tutors for their interest, AGAINST JAMES Earl FIFE, donatar to the escheat of James Abernethy of Mayen.
Assythment is cxigible from a person accuscd of murder, who has been outlawed for not appearing, and standing trial.
ON the morning of 22d December 1763, John Leith of Leith- hall was killed by James Abernethy of Mayen, who immediately made his escape, and ﬂed beyond seas. Criminal letters were raised and pursued against Mr Abernethy, at the insance of the Ad-vocate, for his Majesty’s interest, and of the widow and children of the deceased, before the circuit-court held at Aberdeen on the 19th May following ; when Mr Abernathy failing to appear, ‘ sentence of fugitation was pronounced againﬂ him. ’
In pursuance of this sentence, letters of denunciation were issued, which were regularly executed, and recorded, with the executions, in the books of adjournal.
A gift of Mr Abernethy’s single and liferent escheat was granted to James Earl Fife, expressly for the behoof of Mr Abernethy’s widow and children, under the following proviso : “ That the said “ gift hall be without prejudice to the right or claim which Mrs “Harriot Leith, or her children, may have to an assythment, out of the goods and estate of the said James Abernethy, for killing” the said John Leith, her husband, and their father.”
The widow and children of the deceased brought an action before the court of petition againft Mr Abernethy, concluding for L. 4000 Sterling of assythment.
Mr Abernethy appeared by counsel, and pleaded several defences. In bar of which the pursuers produced the sentence of fugitation, in consequence of which they contended he had no persona standi in judicio, and therefore could not be heard.
The Lord Ordinary, upon adviﬁng a memorial for the pursuers on this point, pronounced the following interlocutor, 12th June 1765.
“ In respect no objection is pleaded against the form and process of
“ denunciation, finds the said James Abernethy has no pcrsona stan-
“ di, and therefore is barred from pleading any defence in this ac-‘
“ tion; reserving to the donatar of his escheat, or others having in-
“ terest, to compear, and insist, that by the laws and practice of Scot-
“ land, an assythment does not take place, unless a pardon or re-
“ mission is produced and pleaded on; and ordains the pursuers to
“ give in a memorial upon that point, and to condescend on instan-
“ ces of assythment being found due where no pardon was obtained
“ or pleaded on.”
The pursuers preferred a representation against: this interlocutor ; upon which the Lord Ordinary took the case to report, and ordered the pursuers to give in a memorial.
The Lords, Dec. 4.. 1765, “ sisted further procedure in this cause, ” until the purfuers make the officers of state, and the donators to “ the escheat, parties therein.”
Upon this the pursuers brought an action against the officers of state and the Earl Fife, concluding as that against Mr Abernethy did. This was remitted to the other, and both again sent to the Ordinary; who, after a debate between the pursuers and the new party, again took the case to report, and ordered informations.
The defender pleaded, That an assythment could only be claimed,when, by the interposition of the sovereign, the murderer has been withdraw from punishment; and the argument upon this point was much the same with that in the preceding cafe. The defender argued too, upon this point, That Mr Campbell’s case, then independence by a reclaiming petition, was different from his: because in that case the murder was premeditated ; but all the accusation against the defender was, that in the madness of a drunken quarrel he had the misfortune to kill his companion and his friend idly. Had Mr Campbell been tried in the common course of law, he must have been condemned to death; he escaped by the interposition of a temporary court, authorised by the King: fo that the case was the same as if he had escaped by the interposition of the King himself. 3dly, In Mr Campbell’s cafe, the Lords seemed to be almost unani-mously of opinion, that an assythment could not be claimed either when a capital punishment had been inﬂicted, or when the criminal had not been brought to trial. Mr Campbell was brought to trial, proof was brought of his guilt, and the sentence of the court-martial secures him from any after prosecution. But Mr Abernethy has not been brought to trial; no proof of his guilt has been brought; nor can the court take any; as thereby the witnesses that might be after-wards adduced before the criminal court, would be prejudicated.
The defender further maintained, That to ﬁnd assythment due in this case would lead to many absurdities and inconsistencies. An assythment can only be claimed out of the effects of the murderer. Acourt of justice cannot proceed on supposition that a party has committed murder, without a clear proof; but none has been brought of Mr Abernethy’s guilt, and he does not confess it. No proof of it can be taken in this case; because thereby the witnesses would be prejudicated: and it would be incongruous to allow a proof of the crime, which is the principal, in a process for an assythment, which is but the accessory. Besides, if an assythment be found due, and if afterwards Mr Abernethy shall be apprehended, and brought to trial,or shall voluntarily submit himself to trial, what inconsistencies may ensue? If he be found not guilty, he must be absolved by the criminal court, though he has been condemned by the civil court. If he be found guilty, he must suffer death, though he has paid a sum of money; which is unquestionably only due when the criminal escapes from capital punishment.
There is no sufficient ground for presuming Mr Abennethy’s guilt. The squalor carceris, the expence of a criminal trial, the want of evidence to prove the truth, and many other circumsances, may prompt the most innocent man rather to abscond than submit to trial. Flight, therefore, ought not to be held a sufﬁcient presumption of guilt; Voet. Comm. ad tit. De probat. § 5. The case of him who obtains a remission is very different; as it would be perfectly absurd to accept a pardon for a crime which had not been committed.
As to the sentence of fugitation, that proceeded not upon a presumption of his guilt, but “ for his contempt and disobedience in not “compearing.”
The answer on the general point was much the same with that for Machargs in the preceding case. As to the particular circumstances of this case, the pursuers argued, that Since acceptance of a remission before conviction is admitted to be such an acknowledgement of guilt as Subjects the acceptor to an assythment, that shows, presumption without proof is sufficient; as also, that ﬂight ought to be held a sufficient presumption; because there is surely less reason for believing him guilty who stays, and obtains a remission, than him who will neither trust to the mercy of his sovereign, nor to the judgement of his peers upon a fair trial, but ﬂees, and suffers a sentence of outlawry to be pronounced against him, the consequence of which is, an absolute forfeiture of his moveable estate, and of his land estate for his life. The squalor carceris, and all the other circumtances which the defender says may prompt an innocent man to ﬂee, may prompt him also to apply for a remission.
But if the court does not think presumptions sufficient, the pursuers are willing to undertake a proof of the murder; and this proof is undoubtedly competent. See the argument in the preceding case.
The inconveniencies to which fuch proof, it is laid, would give rise are groundless and imaginary. No proof taken in this case can militate against: Mr Abernethy in a trial before the criminal court. As to prejudicating the witnsses, if, by that phrase, the defender means, that the witnesses may be twice examined, it is true; but what bad consequence can arise therefrom is inconceivable. It. might as well be argued, that witnesses ought not to be precognosced. Actions for reparation are every day sued in this court by persons injured.’ upon facts which might be made the subject of a criminal prosecution at the Advocate’s instance.
July 29, 1767. The Lords, by a scrimp majority, found no assythment due.
Upon a reclaiming petition and answers, the Lords found assythment due; and it was afterwards ﬁxed at L. 200 Sterling.
Act. Cosmo Gordon. Alt. Ja. Ferguson.