INFORMATION FOR Lord Basil Hamilton Concerning the Election of a Commissioner for the Barons of the Shire of Wigton LOrd Basil Hamilton and Castle-Stewart producing two several Commissions and both pretending to be Elected in the place of late Garthland Lord Basil Hamilton most justly contends That no regard should be had to Castle-Stewart's pretended Election the same having been most illegal Because 1 mo The Earl of Galloway Viscount of Stairs and the Master his Son unaccountably and illegally interrupted the Barons while they were making up the Rolls in order to the Election by coming in upon them contrary to the Barons undoubted Priviledge 2 do The said Lords in this Election Incroached in a manner never before heard of on the Barons Freedom by procuring an Instrument taken by themselves to be sign'd by the greatest part of those that Elected Castle-Stewart approving of the said Lords In-coming as if they had been called by the Plurality upon account that the Meeting of the Barons was not Constitute But that it was still a Sheriff-Court Both which were false The Lords obliging the Barons to Sign this only to fix them against Lord Basil. 3 tio The Subscribers of this Instrument proceed to Elect Castle-Stewart first Praeses and then Commissioner notwithstandng that the Lords at least the Mr of Stairs with a great many others were in the Room And tho' Lord Basil Protested against any proceeding till the House were hush'd and that the Act of Parliament 1681 Expresly Statutes That the House should be hush'd of all but such as pretend to be Barons before the Barons proceed to Election There are likeways other Nullities in Castle-Stewart's Commission such as that it is not filled up nor signed by the Clerk to his Election and Crawfordstoun Officiated as Clerk without taking the Oaths that the Sheriff-Clerk tho not Clerk to the Election sign'd the Commission but not at the Meeting that neither he nor Crawfordstoun were required either to Sign or fill up the Commission at the meeting Castle-Stewart or rather others making use of his Name to Lord Basil's Surprizal makes a Clamour as if there had been no less Incroachments forsooth by the Sheriff in Lord Basil's Election And instances 1 mo That the Sheriff tho he had no right to act as such and was no Baron yet he proceeded as Sheriff and would suffer none to proceed but himself To this Lord Basil Answers That whether he had Right to be Sheriff or not that can no wayes concern his Election he having had nothing to do in the Election as Sheriff except as being there as a Baron and the Barons agreeing to take the Oaths even contrary to Lord Basil's Opinion before the Rolls were made up and there being no Praeses All without any Contradiction took the Oaths from him he being the only Judge there that could Administer them And that he has Acted and been held and Repute as Sheriff these Ten Years past is notourly known As to the Sheriffs being no Baron the effect is determined by the Act of Parliament 1681 Viz That the unjust pretenders shall be liable in a Fine of 500 Merks if objested against at the Inrolling But so it is there 's no Objection against the Sheriff's being a Baron by any Baron in their Meeting or at making up of the Rolls As to the Sheriff's presiding further than that he did Administer the Oaths it is most Calumnious For in the making up of the Rolls there was no Praeses nor need of any every one making their Objections and Answers to their Rights of Voting in the Clerk of the Meeting 's hands Nor is there any Law obliging a Praeses to be chosen for that effect The Act of Parliament 1681 Statuting That the Rolls should be made up at the times therein appointed does not appoint any Praeses to be chosen It is true the said Act appoints a Praeses to be chosen at the Meeting in order to the Election of a Commissioner presupposing the Rolls to be made up Conform to the manner prescribed in that Act and Registrated in the Sheriff-Clerk's Book Statuting That such as are formerly In-rolled shall choose a President before they receive such as have not been formerly In-rolled But in the Case of the Shire of Wigtoun where no Rolls have been made up insert in the Sheriff-Clerk's Book there 's nothing Statuted as to the choosing of a Praeses And truly it could not be Statuted that a Praeses should be chosen before the Rolls were made up else every Footman would have as good a Title to choose a Praeses as a Baron the Law punishing only unjust pretenders when objected against but by that same Law no Objection can be made but at making up of the Rolls But further whatever was done in this was acquiesced to by all the Meeting there were indeed some pretending to be Barons that motion'd that a Praeses should be chosen but after that they were told that it was fit in the first place to know who should Vote in that Election It was acquiesced to by all that they should proceed without a Praeses and accordingly not only they went on in making their several Objections and Answers till the Lords Interrupted them but even at Castle-Stewart's own Election both for being Praeses and Commissioner the Rolls thus made up were used and none other 2 do It is alledged for Castle-Stewart That the Sheriff Fined one of the Barons that Voted for him because he was claiming his Right as a Baron To which it is answered That tho the Sheriff had Fined all the Barons and unjustly too that can no ways concern Lord Basil Hamilton It is not pretended by Casle-Stewart that he was deprived thereby of that Baron's Vote which indeed were unjust and if so he should be Counted as Voting But the true matter of Fact is one William Gordon who Stiles himself of Grange a Second Brother who was never known to pretend to the Priviedge of a Baron his Eldest Brother the Apparent Heir being still alive while the House was a hushing in favours of the Barons and he was desired by the Sheriff to remove and upon his pretending Right to stay was bid give in a Petition with others that were pretending the like to the end that the Barons might cognosce thereupon He not only refused that but giving also Saucie Language the Sheriff thereupon to support his own Authority made a fashion of Fining him without any design of exacting it as may appear by this that the said William not only stayed still in the Room tho' he showed no Right but thereafter Voted for Castle-Stewart and filled up Castle-Stewart's Name in the Commission and was very Active in all the Steps of Castle-Stewarts Election 3 dly It is pretended for Castle-Stewart That the Lords were called by the Plurality of the Barons to the end that they might give the Barons their Advice concerning the Legality of their Proceedings To which it is
Answered That the Allegiance is false and calumnious there being no Call by the Plurality and if by any it has been of their own Procurement that they might have a Pretence for hindering Lord Basil from being chosen which that they design'd right or wrong will still appear yet more evident by and by And besides the Plurality could not incroach upon any dissenting Barons that would stand to their Priviledge which even the Lords themselves shew they were sensible of for in the Instrument which they took upon Lord Basil's protesting against their in-coming they value themselves on this that tho they were desired by the Plurality to stay yet they left the House that the Barons might have their Freedom It is alledged further That the Barons were not constituted in a Meeting before the Lords came in and that the Lords went out as soon as the Barons went to constitute their Meeting by Electing a Praeses without meddling in the least as to any thing relating to the Election either of Praeses or Commissioner To this it is Answered 1 mo That the Barons were making up their Rolls and had almost ended the same when the Lords came in after which they were to choose their Praeses 2 do All the Intruders did not remove for the Master of Stairs with a great many others stayed still and such as subscribed the Instrument which the Lords took went on and Elected notwithstanding that Lord Basil had protested against Electing till the House should be hushed both upon the account of those whom he saw stay and of the Lords whom he with many others had not seen retire out of the Tolbooth but only into a Room divided from the place where the Barons were only by thin Dales and these not to the Top neither 3 tio The Lords meddled so far as to procure their Instrument to be sign'd by Twelve that pretended to be Barons tho what was alledged in the Instrument was false and the Signing of this Instrument had the effect to make the Subscribers divide from the other Barons with whom before they had been acting in Concert and this Signing together with the Master of Stairs his presence who had been left no doubt for that effect made the Subscribers contrary to express Law Elect without Hushing the House tho protested against by the Barons who could not go alongs in so illegal as well as tumultuary a manner and must be of most pernicious Consequence to all Elections of either Barons or Burrows for the future if the Parliament provide not a Remedy The Parllament having upon what has been alledged by both Parties ordered them to adduce Witnesses before Answer as to the Relevancy Lord Basil adduced the Lairds of Garthland Carrichtrie and Crichow Witnesses of undoubted Probity The two first were objected against as having Voted for Lord Basil but besides that Lord Basil could adduce no others but Barons as to what passed while the House was hushed having not been so provident as to post Witnesses And they being the only Barons upon the place it can infer nothing that these Gentlemen Voted for Lord Basil. And further the Witnesses adduced by Lord Basil Hamilton have Depon'd nothing in favours of Lord Basil's Election but what is otherways sufficiently proven For 1 mo As to all the Barons acquiescing to the making up of the Rolls without choosing a Praeses Crawfurdstoun's Instrument his Deposition as well as young Phisgall's and Alexander Campbel's agree That the Barons went on after old Phisgall's pretended Instrument in their Objections till the Lords came in and that thereafter such as Elected Castle-Stewart used the Rolls thus made up and none other in Electing him both Praeses and Commissioner which prove as positive an Acquiescence and passing from their Instrument against former Proceedings if any was or from their Motion to choose a Praeses there being no such Instrument as Garthland and Carrichtrie's Depositions prove That all the Barons had acquiesced to the making up of the Rolls without choosing a Praeses 2 do That the Lords and Master of Stairs went in where the Barons were while they were making up the Rolls and had almost ended the same is evident from Crawfurdstoun's Instrument the Witnesses adduced for Castle-Stewart as well as these for Lord Basil and the Sheriff-Clerk's Extract 3 tio That the Lords procured the Barons to sign their Associating Instrument is no less evident 4 to As to the Master of Stairs and others being in the Room the time of Castle-Stewarts Election all like ways have agreed thereto And as to Lord Basil's protesting against Castle-Stewart's Electors proceeding to Elect until the House were hushed besides the Clerk of the Meeting 's Extract of what passed wherein this Instrument is Recorded and the three Witnesses adduced by Lord Basil confirming the same Crawfurdstoun's Instrument and Castle-Stewart's Witnesses Depositions concerning Lord Basil and the Barons their adhering to him their refusing to Vote and Lord Basil's saying You may choose the Master of Stairs 's Page c. sufficiently prove Lord Basil's and his Adherents their refusing to Vote to have been upon the account that the House was not hush'd and that they dissented from that illegal and unaccountable manner of Proceeding Lord Basil having thus most clearly proven all the most illegal and dangerous Incroachments which he founded on as committed against the Priviledge of the Barons in order to hinder his being Elected And likeways That Castle-Stewart and his Adherents had not only acquiesced to that Procedure of the Barons for which Castle-Stewart complains of Lord Basil's Election and by which he pretends to excuse the said Incroachments but also That Castle-Stewart and his Adherents had after the Lords and Master of Stairs's in-coming upon Pretext of the illegal Proceedings of the Barons approven of the Barons Procedure by using these very Rolls that the Barons had made up after this pretended illegal manner Tho Castle-Stewart should prove all alledged on his behalf it can avail him nothing either against Lord Basil's Election or in support of his own Yet such has been the Calumniousness of those Arguments and Suggestions us'd against Lord Basil in this Affair that Castle-Stewart has not proven any one thing whereupon there could be founded the least shadow of Objection against Lord Basil or of Defence of what was acted by the Lords and Castle-Stewart to hinder Lord Basil's Election As to the Witnesses adduced for Castle Stewart they are the Master of Stairs Crawfurdstoun young Phisgall and Alexander Campbel Servant to the Earl of Galloway The Master of Stairs was objected against as Son to the Viscount but it appears from his own Deposition that he is no less to be considered as guilty of the Incroachments for which the Parliament has considered the Lords as Party than the Lords themselves Crawfurdstoun has made himself as much Party as either having given an Instrument in their favours that no Notar can be answerable for because 1 mo The far
Interrogatory That he heard his Father in Name of many of the Barons go to the end of the Table where the Clerk was sitting and there did Protest against the proceedings of that Meeting as altogether illegal and thereupon took Instruments in Crawfordston's hand that he had Protested but his Protestation was not marked by the Sheriff-Clerk If old Phisgall had thus Protested against the Sheriff-Clerk his Protestation had been legal as no doubt young Phisgall has had occasion to learn at the Consultations But the Instrument produced bears the same to have been taken against several Barons and not against the Clerk And Crawfordston in Answer to Lord Basil's Second Interrogatory at his first Examination Depones That he saw the Clerk refuse no Protestation Alexander Campbel was objected against as being the Earl of Galloway's Servant and it is since informed that he was also present at their Consultations But further in Answer to Castle-Stewart's first Interrogatory he Depones That Lord Basil answered to old Phisgall who desâ—â—â— above 〈…〉 Praeses chosen that they might choose the Mr. of Stairs's Page whereas they all agree that Phisgall's desiring a Praeses to be chosen was long before the Lords returned And it appears from the Instrument that this Answer of Lord Basil's was when his Name was called to give his Vote which according to all Castle-Stewart's Witnesses was after the Lords had retired the second time Alexander Campbel in Answer to the Third Interrogatory Depones That he heard Phisgall Elder take Protestation in Crawfordstoun's hands that the Sheriff's presiding was illegal and that the Barons were thereby interrupted in their Election Tho the Instrument produced is that the not choosing a Praeses is illegal and taken against the several Barons therein mention'd and not one word in the Instrument of the Sheriff's presiding And Alexander Campbel tho he be positive in this interogatory being thereafter asked by Lord Basil In whose hands Phisgall had taken that Instrument Answered That he did not see but he heard that it was in Crawfordston's hands Tho such are the Witnesses yet such also is the force of Truth that the Probation is as follows There 's nothing adduced to prove that there was the least Objection against the Sheriff's Title as Sheriff and it is notourly known that this is not the first time of a Hundred that he has Exerced as such There 's as little adduced for proving that there was any Objection against the Sheriff for Fining William Gordon But it is proven that he was Fined at the hushing of the House not only by the Witnesses adduced by Lord Basil but also from Crawfordston's Historical Instrument of what past in the Meeting mentioning nothing of it As for the Sheriff's presiding there 's a pretended Instrument produced of Phisgall's against several Barons for not choosing a Praeses but not one word therein of the Sheriff's presiding as to which Instrument besides what has been said as to the Legality and Necessity of making up the Rolls before a Praeses were chosen and as to all the Barons acquiescing to that procedure no regard can be had to that pretended Instrument For. 1 mo This Instrument is not taken in the Clerk of the Meeting 's hand as it ought to have been and in any other Notar's hand only in case of the Clerk's refusal conform to young Phisgall's Deposition 2 do There are not two concurring as to the Tenor of this Instrument the Instrument bears the same to have been taken against the several Barons therein mentioned yourg Phisgall the pretended Instrumentary Witness Depones it was against the Sheriff-Clerk and Alexander Camphel Depones it was against the Sheriff and tho all three had concurr'd their Testimonies are invalid for the reasons abovemention'd to prove against the Lairds of Garthland and Carrichtrie's Depositions in which they Depone that they never heard of any such Instrument and yet the Instrument bears the same to have been taken against these two Gentlemen Expresly But tho the Instrument as it is conceived were proven this not being against the Sheriff's presiding and the Law providing that no Objections shall be received but what is made at the Election there can be no ground to found now upon the Sheriff's presiding But the Truth is the Sheriff did not preside any further than that he did administer the Oaths Alexander Campbel and young Phisgall have indeed Deponed That he did preside and young Phisgall assigns the manner of his presiding to have been by receiving the Objections which all the World knows to belong to the Clerk But the Instrument it self mentioning nothing of it with Crawfurdstoun's Deposition who in Answer to Castle-Stewart's second Interrogatory upon that very head Depones That the Barons continued as they were sufficiently takes off their Depositions For if he could have said the Sheriff presided it is evident that he would have Answered in the Terms of the Interrogatory And in Answer to the sixth Interrogatory where being Interrogated If the Barons desired the Lords to come in to Advise with them whether the Sheriff had Right to preside He Answers That some Baron whisper'd they would be run down unless the Noblemen returned to see a Praeses chosen but that he knew no more of that Interrogatory which is positive that the Sheriff did not preside As to the Lords being called young Phisgall only Depones it and it is evident he must have been in two places at once to have known so much As to the Call's being from the Plurality the Instrument indeed bears it but Crawfurdstoun contradicts his own Instrement in his Answer to Lord Basil's second Interrogatory when first Examined wherein he Depones He did not hear all that subscribed the Lords Instrument move that the Lords should be call'd in And it is evident from the Instrument That if but one did not move it the Plurality did not make the Motion and this alone were there no more is enough to discredit the Instrument It is true indeed there is Proof That the Plurality after the Lords were with them own'd they had call'd the Lords and this is what Lord Basil complains of that they should be thus influenced by the Lords As to the Lords being call'd in for Advice there 's no one who heard this so much as mention'd amongst the Barons save the never-failing Phisgall Crawfurdstoun and Alexander Campbel and Lord Basil's Witnesses heard nothing of it The Instrument assigns another Reason and the Lords in their Instrument do not mention this For taking off the Nullity of Crawfurdstoun's Officiating as Clerk young Phisgall Depones That he did nothing as Clerk but call'd the Rolls who should be Commissioner and marked the Votes But he forgets that he himself signs Witness to the Instrument which Castle-Stewart took in Crawfurdstoun's hand upon his being Elected Commissioner which 〈◊〉 only be taken in the hands of the Clerk to the Election Tho the Witnesses adduced for Castle-Stewart prove not what they were adduced for which all things considered cannot choose but be 〈◊〉 of Admiration Yet they prove sufficiently the previous Design of hindering Lord Basil from being Elected whatever it should cost as well as the Methods taken for that Effect And besides what may be seen from what is already said This Master of Stairs Depones That he was several times betwixt the Outter and Inner Door and about the time he Depones he saw Sir Charles Hay and others it is Deponed old Phisgal should have taken that Instrument but the Common Souldiers only whispering it and it seems in Crawfurdstoun's Ear and not following the Orders as they were given the Advisers without Doors began to see that their presence was necessary upon which it was whispered amongst the Barons at the Foot of the Table as Crawfurdstoun Depones in Answer to Castle-Stewart's fourth interrogatory That they would be run down unless the Lords were sent for And by what the Master of Stairs further Depones it is evident that he was then in the Tolbooth so he Depones positively as to the two Barons that came out but only upon Hear-say as to what they told the Lords Yet he goes in to the Meeting with the Lords who went in as soon as the Motion was made for thâ—â— being called as appears by Crawfurdstoun's Instrument and his Oath in Answer to Castle-Stewart's fourth Interrogatory whereon he Depones That he had set down all in his Instrument in order as they were done in the Meeting and he mentions nothing in his Instrument to have been done betwixt the Motion for the Lords being called and their in coming From all which Premisses it being most evident That through the whole Course of this Affair there has appear'd more of premeditate Design to obstruct Lord Basil Hamilton's Election than of any Hopes of getting Castle Stewart chosen That all the Groundless Amusements about the Sheriff's pretended Encroachment could not possibly have the least Influence so as to infer a Nullity on Lord Basil's Election but were super-induced only to wave and alleviate those manifest and undeniable Encroachments that have been made by the Lords and Master of Stairs on the Barons Freedom of Election That the Witnesses adduced for Castle-Stewart do not only contradict one another but do also contradict themselves 〈…〉 That Crawfurdstoun's pretended Historical Instrument is a continued Rapsody of falshoods Inconsistencies Contradictions That the Witnesses adduced for Lord Basil are Gentlemen of unquestionable Honour and Probity all agreeing in what they Depone And Depones nothing but what is confirmed even by all that 's adduced for Castle-Stewart And the Lords Encroachments being of most dangerous Consequence to the Freedom of all the Barons and Burrows in the Nation it cannot be doubred but that the Parliament will take the same into their Consideration and according to Justice not only admit of Lord Basil's Commission but also fall upon such Methods as may prevent the like Encroachments for the future