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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B03783	Information, for Sir John, Hall Lord Provost of Edinburgh, Robert Chiesly and James Bowdoun baillies, Sir Archibald Muir, Patrick Halyburtoun, William Meinzies, William Hutcheson, and George Stirling. Against James McLurg, George Clerk, Robert Blackwood, William Paton and others.	Hall, John, Sir, fl. 1692.	1692 (1692)	Wing I164K; ESTC R178654	11,483	12

INFORMATION For Sir John Hall Lord Provost of Edinburgh Robert Chiefly and James Bowdoun Baillies Sir Archibald Muir Patrick Halyburtoun William Meinzies VVilliam Hutcheson and George Stirling Against James M clurg George Clerk Robert Blackwood VVilliam Paton and others THe Complainers designing to get themselves in to the Magistracy of Edinburgh and to get Mr. David Dalrymple made Conjunct-Clerk with Aenea ' M cleod have raised a Reduction before your Lordships of the three last successive Elections upon several pretended Violations of the Set and concluding further that the Defenders may be punished in their Persons and Goods The which Complaint being given in and read before your Lordships It was alledged for the Defenders that there could be no Process for annulling the last Election because all Parties therein concerned were not called viz. Baillie Chartres Baillie Baird Michael Allan George Warrander Andrew Bruce John Robertson Hugh Blair Mr. Henry Ferguson Samuel M clellan Archibald Rule Alexander Thomson John Pringle James Crafurd William Livingstoun William Meldrum George Dalgleish Members of the Counsel of twenty five whose Election cannot stand if the Defenders Election be annulled To which it was Replyed for the Complainers that the Defenders who are called are the principal Parties concerned in the Irregularities lybelled so that there was no necessity to call any others To which it was Duplyed for the Defenders that these of the Magistrats and Council who are not called tho they cannot be prejudged by any punishment concluded against the Defenders in their Persons or Goods because it is possible they have been less active in the late Elections than some of the Defenders have been yet it is impossible that the Defenders Election can be reduced and the Election of the other Magistrats and Members of Council stand in force tho less guilty of Irregularities since all the Informalities lybelled against the Election of any of the Defenders strike likeways at the Election of these who are not called and it is inauditum that parties Rights were ever annulled by a Process to which they were not called and therefore there can be no Process sustained on the first Member of the Conclusion viz. to annul the Defenders Election till the rest be called unless the Complainers design that the Election should fall quoad these who will not vote for them and should stand good quoad these from whom they expect Friendship And as there can be no process quoad the first Conclusion against the Defenders till the last be called neither can there be any Process quoad the second Conclusion of punishing the Defenders in their Persons and Goods for that is consequent from and dependent on the first Conclusion for as long as the Elections are not annulled the Defenders cannot be punished for their accession thereto Upon this Debate your Lordships before Answer thereto Ordained the hail Cause to be debate before your Lordships Vpon which the Defenders Answers to the whole pretended Violations lybelled were read in your Lordships presence After which the Pursuers insisted on this head That albeit your Lordships had appointed the two Merchant-Counsellors to vote proprio jure upon a bold and impudent Assertion made by the Defenders Advocats yet these two Counsellors were only allowed to Vote as Proxies so that Sir Archibald Muir's first Election to be Provost was unwarrantable being contrair to your Lordships Command and if these two old Counsellors had no Right to Vote proprio jure then the former Election of eight Proxies could not be quarreled by the Defenders on that ground To which it was answered for the Defenders That they opponed their former Answers viz. that quoad the two first Elections which are now past and the persons thereby chosen gone out of their Office by course there can be no Process for annulling these Elections or turning the Magistrats out thereof but the Complainers if they design to prevent any of these Informalities in time to come ought to insist in their Declarator before the Judge competent which they raised an year and a half ago since all the Complainers mistakes arises from their Mis-interpretation of some obscure passages in the Set which are competent to be explained by the Lords of the Session 2. Any pretended Informalities in the two last Elections cannot be insisted on as grounds to annul the last Election otherways the Magistracies of Burghs would be very unsecure for fourty years space if there were any Errour in the preceeding Elections during that time 3. As to the pretence insisted on as to the two old Counsellors which is the Complainers Achilleum Argumentum chosen out by them of the many Informalities lybelled against Sir Archibald Muir's two Elections To this it was Answered That tho the Complainers according to their wonted modesty do say that it was a bold and impudent assertion to affirm the old Merchant-counsellors had right to Vote proprio jure yet the Defenders do still assert that the old Merchant-counsellors are a part of the Council of 30 which Council of 30 is appointed for Leeting and which Council of 30 consists of 18 of the new Council and 12 of the old which 12 consists of the 7 old Magistrats 3 old Merchant-counsellors and 2 old Trades-counsellors as appears by the Set pag. 5. so that in order to the Leeting no Proxies can be chosen in place of the old Merchant-counsellors unless they be absent after they are required to come and therefore since these that were old Counsellors were received and Proxies chosen for the rest the Election cannot be quarrelled upon that Informality 4. By the Books it is clear that Captain Baillie was admitted proprio jure he being designed an old Counsellor not a Proxie that Patrick Johnstoun was admitted as a Proxie which was done because he had not been an old Merchant-counsellor for the year preceeding but had been chosen a Merchant-counsellor for that current year and shortly after his being made a Counsellor he was chosen Baillie of Leith whereby he became to be no Member of the Town Council and so was capable to be chosen a Proxie To this it was Replyed That the Complainers insist on the Nullities of the first two Elections only in order to annul the last as being done by these persons who had been themselves illegally elected and that of all these Nullities in the first two Elections they now insisted on that anent the two old Merchant-counsellors who the Defenders say had right to Vote jure proprio and which was so appointed by your Lordships and yet one of them is admitted as a Proxie for albeit Patrick Johnstoun who according to the Defenders own alledgance the last year before your Lordships was an old Counsellor was allowed to Vote yet it was qua Proxie and not proprio jure and which the Defenders did of purpose that he might not have a Vote in the electing of the rest of the Proxies which he would have had if he had voted proprio

Claim of Right are not oblig'd to Depone against themselves in Capital Crimes howsoever the Punishment be restricted besides that Their Majesties Privy Council have no ways restricted the Punishment here nor would their Declaration prejudge His Majesties Interest but that his Advocat might thereafter insist before the Justices for the same Crime This Debate being reported to your Lordships by the Lords of the Committee your Lordships found it probable by Witnesses Writ or Oath of Party in the Complainers option whereupon the Complainers past from any Probation by Witnesses of the pretended Combination and offered to prove the same scripto vel juramento partis and in order to get the same proven scripto by production of the pretended Paper they urged six or seven of the Defenders to depone anent the having of the Writ and fraud fully away-puting the same and these Defenders having deponed Negatively the Complainers urged that they might depone upon the Tenor and Import of the Paper lybelled on and it being alledged for them before the Lords of the Committee that the Complainers could not make use of two manners of Probation viz. scripto juramento partis And therefore since they had taken themselves to Probation scripto by production of the Paper it self and in order thereto had forced the Defenders to depone anent their having the same or knowing where it was they could not now make use of the Defenders Oaths for proving of the Tenor of the Paper which was to prove that Article juramento partis after they had attempted to prove the same scripto And the Complainers Replying that this Combination was pessimi exempli and therefore it should be narrowly lookt into and should not go uncensured tho the Paper cannot be produced and therefore the Defenders could not refuse to depone upon the Tenor since every one of their Oaths can only be probative against themselves Upon this the Lords of the Committee appointed the saids Defenders to depone upon the Tenor and Import of the Paper libelled And it being alledged that they were content to depone in the precise terms of the Libel viz. that they had subscribed no Paper obliging them to adhere to Sir John Hall and the complainers replying that they ought to depone upon the whole Tenor and Import of the foresaid Paper what it was if it was not oblidgment to adhere to Sir John Hall that the Lords might thereupon Judge what the Paper imported whereupon the Lords of the Committee appointed several of the Defenders to depone anent the whole Matter relating to the said pretended Combination by whose Depositions it clearly appears that there was no Paper subscribed by them obliging them or promising that they should adhere to Sir John Hall which they deny in formal terms but all they depone is that the Magdalen-Chappel having split Votes the major part being for James M clurg the Deponers having voted for Sir John Hall were prest by some of the Complainers not to break the Unity of the Chappel but to be concluded with the Plurality and to Vote for James M clurg whereupon the Deponers then declared that they had voted according to their Consciences and that they were not to blame for the breaking the Unity of the Chappel because the Deacon-Conveener occasioned the same by his declaring to them some days before that he would Vote for Sir John Hall encouraging them thereto by declaring that the Chappel would be equal and he would give his casting Vote which Answer did not satisfie some of the Complainers but they still prest that the Deponers might either be concluded by the Vote of the Plurality or else that they should be extruded the Chappel which forced the Depones to sign a Declaration in their own Vindication be●ring that the Deacon-Conveener declared to them he would be for Sir John Hall and that he himself had altered his mind and now blamed them for Voting for Sir John in which Paper there was no engagement on them to adhere to Sir John Hall nor so much as a Declaration of their design for whom they would Vote except their design were inferred from this that they had already Voted for Sir John Hall so that it is evident and undenyable that this calumnious Article of the Bond of Combination was libelled on of design to get some Shadow and Pretence to make this a Council Process before your Lordships there being no other Article but what was competent to have been pursued before the Judge ordinar In Respect of all which the Defenders ought to be assoilzied from this groundless and calumnious Pursuit and if the least Scruple there anent remain with your Lordships as is hoped there can be none It is humbly desired that your Lordships would remit the same to be discust summarly before the Lords of Session as was done by your Lordships Predecessors in the like case pursued by some of the Neighbours against Sir Andrew Ramsay and that in respect that any Difficulties arising here are occasioned by the Complainers Niceties and Quiblings upon some Passages of the Set for detorting the true meaning thereof and which being Debates anent the point of Right will easily be cleared by the Lords of Session Or otherways it is humbly desired that your Lordships would be pleased to advise with his Majesty what is proper to be done in this Process in Respect it is of great Import to the Government of the Kingdom and will be a Preparative either for Settling or Unsecuring generally the Magistrats of the whole Royal Burrows

were absurd and inconsistent with the Immemorial Custom of changing of Proxies every Diet and in this particular case complained on there were only three Proxies called in the day of Leeting viz. George Home for the old Provost Alexander Baird for Samuel M cclellan who was a Merchant-counsellor and James Bowdoun for George Fullertoun another Merchant-counsellor which George Fullertoun returning the night before the Election upon the the morrow he Voted jure proprio to the Election Likewayes George Home Voted as Proxie for the old Provost so that there were none of the Proxies altered but Alexander Baird to whom the then Provost sent an Officer the night before the Election to intimate to him that he needed not come the next day to the Council at which time the Council chused James Bowdoun Proxie for Samuel M cclellan so that Alexander Baird having got intimation the night before that he was not to be a Proxie to the Election he could complain of no Incivility being that day Elected a Baillie 4. The Complainers insisted on this pretence that the extraordinary Deacons were not allowed to Vote at the Election of Proxies for making up the number of thirty eight Electors though they were present and demanded it To which it was answered That the Defenders oppone their former Answers and the Set which appoints page 19. That if any of the Provost Baillies and Council be absent the rest who are present shall choose another in their room by which word Council is meaned the Council of thirty for Leeting and not the Council of thirty eight for Electing as appears unanswerably from this that that Chapter concerns two distinct Points viz. The supplying of absent Deacons not of the Council and the supplying the room of the Provost Baillies and Council And as to the first Point anent a Deacon not of the Council his being absent it appoints the last Deacon or he that was in the Leet with him to supply his room So that the Set determines who shall supply the place of an absent extraordinary Deacon without allowing a Proxie to be chosen for him either by the extraordinary Deacons or by the ordinar Council or both And then it says If any of the Provost Baillies or Council be absent the rest who are present shall choose which Rest must be the rest of that number whereof any are absent which is of the Provost Baillies and Council in contra-distinction to the extraordinary Deacons and it were unreasonable that when there are no Proxies to be chosen for extraordinary Deacons and so the ordinary Council can have no Vote in choosing of them that yet the extraordinary Deacons should have Vote in the Election of Proxies for representing the Leeters and which is so strange that it was never heard of till now that the Complainers zeal has made them find that in the Set which was never dreamed of before 5. The Complainers insisted on this Ground that albeit by the Set it be provided that before they proceed to Elect there shall be an Oath Administrat to the Electors that they shall choose the persons most meet without Favour Hatred or Collusion yet that was refused though it was demanded by Robert Blackwood and Instruments taken thereon To this it was answered That the Defenders oppone their former Answers viz. That the pretence is false and calumnious for upon Robert Blackwoods making and insisting in that motion the then Provost told the Council that by their Oath de fideli they were bound to give the Votes of their Consciences and that they were to give the saids Votes as in the presence of God to which they all gave their assent and in particular Robert Blackwood who acknowledged that he was satisfied therewith which is sufficient to satisfie the Set unless there were a difference betwixt assenting to give their Votes of their Consciences in the presence of God and solemnly protesting before God which difference is a niceity more suitable to Jesuitical Philosophy than to solid Divinity and Law and that they did assent to give the Votes of their Consciences as in the presence of God it is hoped is sufficiently proven by the Instrument and Depositions of the Witnesses adduced 6. The Complainers insisted on this Ground That George Stirling and the other persons mentioned in that Article of the Libel did enter into a Conspiracy by signing a Paper under their hand to adhere to Sir John Hall To which the Defenders repeated their former Answer viz. That the same was false and calumnious After this Debate the Complainers pretending with a great deal of confidence that all the matters of Fact asserted by them were sufficiently proven by the Books and Registers produced did Judicially pass from all Probation by Witnesses But there being a Committee appointed by your Lordships for Examining the Defenders Witnesses adduced for proving their Libel of Reconvention the Complainers did refile and pressed to have Witnesses examined upon several Points of their Libel and among the rest they urged before the Lords of the Committee that Witnesses might be received for proving the pretended Conspiracy for adhering to Sir John Hall and contended that the same was probable prout de jure by Writ Witnesses or Oath of Party To which it was answered for the Defenders before the Committee 1. That the Libel being a Combination in Writ by the Defenders alledged signing a Paper to adhere to Sir John Hall is only probable scripto because such a Combination without Writ to that purpose is no Crime it being ordinary in the Magdalen Chappel for the Lesser Part to be concluded by the Major and to promise to Vote in the Council as the Pluralitie did in the Chappel especially seing if any such Paper were produced it might be a null Paper not probative against the Defenders 2. That the Combination libelled was not probable juramento partis because it is a contravention of the 78. Act of the 14. Parliament King James the second discharging any Leagues or Bonds to be made within Burgh but at the Commandment of the Head-officer under the pain of Confiscation of their Goods and their Lives to be at the Kings Will So that the Combination libelled being a Capital Crime or at least Infamie the Defenders are not holden to Depone thereupon To which it being Replied before the Committee 1. That Crimes are probable prout de jure especiallie done before many Witnesses as this which was done in the Magdalen Chappel before the whole Deacons 2. The Complainers not insisting for the Defenders Life and Limb they are oblig'd to Depone upon the Combination especiallie Their Majesties Privy Council restricting the same to an Arbitrary Punishment To which it was duplied for the Defenders to the first That a Crime whereof the Nature is to be in Writ and without which it will not be a Crime it cannot be proven but by the Writ against the Nullities whereof the Defenders might object if it were produced 2. Persons by the