DUPLIES To the PETITION and REPLYES given in to the COMMISSION of PARLIAMENT For FYNES and FOREFAULTURES By Alexander Monro of Bear Crofts THIS Petition being a pretence to an Office impetrate contrare to the express Terms of an Act of Parliament and without payment of a sixpence and whereof the Petitioner having reaped the profit for six years together He thereafter freely Renounced and Overgave it in favours of Haystoun upon payment of seven Thousand Merks It is no wonder if the grounds of it be now urged and debated with as little Reason and Argument as the claim it self was first intented with regard to Law and Justice for the Printed Replyes resume the Defences and cite the Text of the Roman Law with so much disingenuity making such gross and affected misapplications and unreasonable and illiterate inferences First setting up a shaddow of Fear and Force and then adduceing a nauseous volum of impertinent citations against it that it seems the Petitioner who could have replyed much better himself has referred them to some of his Lawyers who had only the advantage to read more Catalogues and profess more Law of design to embroile the case and to teach the Lawyers imployed for the Clerks no other point of Learning then to mistake their Defence by his Example It will be needless to trouble the Commission by repeating here the matter of Fact in the Answers seing the Answers are in the hands of the Honourable Members nor is it necessar to resum the Dilator defences already proponed but only to add this farder which may be considered as a Dilator viz. That since the Petitioner has neither Consigned nor Offered the price he received his Lybel should be cast and the Defenders not oblieged to Answer to it as was solemnly Decided on the 6th of July 1543. the Laird of Waughtoun against Sinclair of Steinstown and on the 26th of June 1576 Mackilvain against Crawford And therefore the Defenders shall endeavour shortly to Duply to what is alleaged in the Reply against the perremptor Defences Where 1mo It is denyed That the Government can dispose of private Mens Rights for the publick Utility upon giving the private Party a reasonable Recompence for their loss which was never before denyed by any Doctor and is allowed by the practice of This and all other Nations especially as to the Disposing or Regulating of publick Offices Was not the Office of Justice Deputes suppressed and the Justiaciary turned in a Commission to five of the Ordinary Senators of the Colledge of Justice when Mr. William Murray and Mr. John Preston had Gifts of the said Office of being Justice Deputes during life without alleadging any crime against them or giving them any recompence for their loss And twenty other instances might be given of the like cases even when there was no pretence of any Law against the Constitution as there is a clear and positive Act of Parliament founded on in this case if it were not destroyed by the double Cannon-shot at it by the Reply viz. 1mo That there is no such Act of Sederunt nor Act of Parliament because the Defenders acknowledge the Record containing the Act of Sederunt is a way and consequently the Act of Parliament must fall being only relative to the Act of Sederunt Et non creditur Referenti nisi constiterit de relato This is a sort of reasoning unworthy of a School-boy much less of a Doctor of Law as the Replier pretends to be For seing the Act of Sederunt subscribed by the whole Lords is extant the abstracting of the Record will not make it Null 2do Esto That both the Record and Act of Sederunt were abstracted will that extinguish the force of the Act of Parliament which does not only ratifie the Act of Sederunt but declares the same to have the Force and Authority of an Act of Parliament and that none may pretend Ignorance The whole Tenor of it is verbatim repeated in the Act of Parliament and made a part of the same But the Replyer finding that this would not do the Business the Act of Parliament must be found Null by it s not being insert in the Index of the unprinted Acts. Which 1mo is most Irrelevant 2do It is most false as any that will be at the trouble to read the Index will find And as his last effort against the said Act he will have it in desuetude and prescrived by an Argument of a piece with the rest viz. That on the 25 of July 1632 Mr Alexander Gibson and John Gibson his Brother were presented conjunct Clerks in one Office by Sir John Hamiltoun Clerk Register and accordingly admitted by the Lords and upon the 1 June 1636 Mr John and Mr William Hay his Son were presented conjunct Clerks in one Office by Sir John Hay Clerk Register and accordingly admitted by the Lords and that ever since there has been two Clerks in each Office The matter of Fact as appears by the Record was That Mr Alexander Gibson in the 1632 being sole Clerk designed to have his Brother John Gibson joyned with him and did dimite the Office in the hands of Sir John Hamilton to the effect he might grant a new Gift in favours of his Brother John Gibson and him the longest liver of the two which was accordingly done And in the Year 1636. Mr John Hay and Mr Alexander Hay his eldest Son being conjunct Clerks Mr Alexander the Son dyed and Mr John the Father makes a Dimission of the Office in the Hands of Sir John Hay Clerk Register for his granting a new Gift in favours of himself and John Hay his other Son the longest liver which was accordingly done Both which Gifts proceed expresly on the consent of the Incumbent in the terms of the Act of Sederunt and Act of Parliament and consequently are very foolishly brought in to prove that the saids Acts were in desuetude and prescribed And the first instance that can be given of placing two Clerks in one Office without the consent of the Incumbent was in Iune 1649. when the English were invading the Kingdom and all things in disorder that Sir Archibald Iohnstoun of Wariston did present Mr. David and Mr. Iohn Hayes conjunct Clerks in one Office And to infer by that single instance That the Act of Parliament was in desuetude or that it did prescrive betwixt the 1649. and 1661. or 1669 argues more Confidence than Judgement So that the great foundation of the Reply viz. That the Act of Sederunt and the Act of Parliament were in desuetude and prescrived falling all the Superstructer must fall in consequence and the Kings Letter appointing the Clerks to be regulate according to the saids Acts will not import injustice much less Concussion The Learned Author of the Reply is in a mistake to pretend that the Answerer alleadges the Lord Tarbat was the first that procured a Libertie to admit more Clerks then one in each Office For all along its
acknowledged That Sir Archibald Primeroses Gift did likewise import that Liberty But all that is contended is That the Lord Tarbat was the first that did exercise that Liberty according to Law viz. By conjoyning only upon the express consent of the Incumbents in the Office For if the Register might conjoin one without consent there can no rational ground be given why he might not conjoin three or four in each Office So that the cause of Deputing one or more in each Office will either run too farr or must be regulat by the Act of Parliament and the Interest and Conveniency of Lieges of which the Lords of Session are the only proper Judges And it is hoped it will not be pleaded That the King could dispense with the Act of Parliament And the reason why the Lords of Session did think it convenient that there should be no more then one Clerk in one office unless the other Clerk were brought in at the Desire and with the Consent of the Incumbent was by reason of the prejudice that the Liedges might sustain through the delay it might occasion in the dispatch of Justice by the Debates and Quarrellings that might arise betwixt two Clerks in one Office that were not in a good understanding together whereof the Petitioner is a living Instance It is then apparent that His Majesties Letter being conform to the standing Law of the Kingdom neither it nor the Act of Sederunt following thereupon can import any injustice as to the Petitioner But on the contrair Mr John Hay had better ground to alleadge That the Lords sentence appointing him to pay 7000 Merks was unjust seing the Petitioner was imposed upon him contrair to Law then the Petitioner has to alleadge that the 7000 Merks was not a reasonable Composition being more than ever before that time was payed for any of these Imployments And the vast difference betwixt Tarbat his bringing in of Conjuncts in each Office and Sir Archibald Primrose his bringing them in does clearly appear in that the one was done in the express terms of the Act of Parliamenr and conform to Law and the other expresly contrair to Law which was fully considered by the Parliament 1685 wherein what Tarbat did was approven and ratified not in course but by a special Act of Parliament which is not Declaratorie but is Statutory and yet not Derogatory from the Act 1621 for as the Act 1621 allowes only one Clerk in each Office without consent of the Incumbent so the Act 1685 allowes only of two with consent and so secures that the Register should not be able to bring in more then two in each Office albeit he should procure the Incumbents consent which seemed to be unclear by the Act 1621. To the second Defence on the Brocard That in dubâ—â— melior est causa possidentis It is Replyed That the Petitioner in point of Right was prior tempore and therefore potior jure And that the possession of the present Clerks can avail them nothing in respect of the violent way that the Petitioner desiit possidere To which it is Duplyed That it is true caeteris paribus qui prior est tempore potior est jure But in this case tho there were no such thing as the Act of Parliament the advantage of the possession would make the difference and preferr the Clerks And the Law does indeed provide That qui dolâ— desiit possidere cannot thereby better his own case which may be the Petitioners but unless it could be proven that the Clership were not in commersio or had vitium rei furtiva this advantage must by Law follow the possession that in dubio it prefers the Possessor And it is observable that albeit by the Law of the twelve Tables rei furtivae aeterna fuit authoritas Yet the Praetorian Law in the Edict quod metus causa neither did nor could extend in rebus metus causa gestis such a vitium reale for ever nor against all singular Successors and supposing there had been just cause of fear in this case as there could be none it were but an unjust wreasting of the Roman Law to the plain prejudice of the Clerks to give the Petitioner the benefit of that Edict the effect of which against singular Successors was at first but Annual ending with every Pretor's Authority and thereafter endured no longer even in rebus immobilibus then for the Ten years of the Roman Praescription and to refuse the Clerks the benefit of that Ten Years Prescription which considering that their Rights have been bona fide acquired and possest be them and their Authors for fourteen Years together without a shaddow of interruption would settle and secure the same according to the Roman Law beyond all possible controversie The third defence founded on the recording of his Majesties Letter the Clerks consent and all these publick Acts of Sederunt and Parliament mentioned therein and the Petitioners so long acquiescence and not quarelling the same meets with no other Reply then that it is a quible on the l. gesta cod dere jud to apply it to any other thing then to the Testimonies and Depositions of Parties and Witnesses and that the recording any Transaction or Matter in it self defective cannot supply its defects To which it is Duplyed that it would appear the Replyers common sense in Applying of that Law goes no farder then his Gloss and Commentars led him otherways he could not oversee the Import of the word Gestum in his so much boasted Edict Quod metus causa gestum est c. And the ll 19. and 58. ff de verb signif Are the best Commentars for the meaning of that word which make it to signifie any Deed that can be the foundation of a Right and it was not reasonable to think that the recording Depositions of Parties and Witnesses should interess the publick Faith more or put singular Successors in greater security in Relation to the subject matter of such Depositions then the Recording publick Rescripts of Princes and solemn Acts of Sederunt and Acts of Parliament should do in Relation to what is defined and enacted thereby And albeit the Discharge and Renunciation to Haystoun on payment of so considerable a Sum be the likest thing of any to a Transaction yet it is hoped that the KING's Letter for executing the Law the express and judicial consent of the three Clerks who had then the sole Right and the several Acts of Sederunt Recorded and whereupon the Clerks Rights are founded will not be found matters in themselves defective and tho' they should the two Acts of Parliament cannot So that without the highest Violation of the publick Faith that can be made in reference to private Rights and most unjust Derogation to the uncontraverted Law of the Kingdom there can be no question of the Rights of the present Clerks to their respective Offices which were bought as dear and have as many clear and solemn Laws for their
of the other Three as the Law does specifickly require and amongst others Mr Monro is adjoined to Mr John Hay Gratis Anno 1764 The KING being informed that this was against Law and as some said inconvenient He by a Royal Letter to the Session as a just Executor of the Law requires the Lords to reduce these Offices to their lawful Constitution and Number But according to His Clement Nature did also prescribe that these who in consonancy to Law were to be removed should have a Gratification given by the other who was to remain in each Office at such a rate as the supreme Judicature of the Nation should judge fit The Session giving dutiful Obedience to the Royal Will in reducing this matter to the Rule of the Law They modifie no less then the full of what was by custom payed for such an Adjuncts Office at or before that time viz. 7000 Merks to each There is no doubt these who were judged fittest to be removed would rather have kept their illegal possession then take this sum But they could not but think their removal was ordered with Clemencie when as by Law they might have been set off from their illegal Possession without the reimbursment of their inconsiderable Advance yet to be re-imbursed of it and enjoy their gain whilst they possest tho to the Laesion of the other Clerks on whom they were intruded and accordingly they went off in acquiescence But if two who bought their Office did so how well satisfied should Mr Monro have been who not only entered illegally and more illegally than the other two but also gratis And albeit he would rather have kept the Office yet he shewed full acquiescence 1. By using no Protestation nor interpellation to the sentence 2. By homogating it in receiving the Price 3. By a Legal Disposition of all such Right Title as he had to another And 4 by acquiescing for 14 years in this transaction And 5 by a voluntar exercing another Office in that very Court inconsistent with his being a Clerk viz. Of an Advocate without Protestation or Insinuation that he had so much as any pretence or an eye to the Clerkship One who were not versed in the Novel of Mr Monro's Replyes and knew nothing but Law and Reason would think that if there was Injury done to any in all this Affair it was to Mr John Hay on whose Office Mr Monro was obtruded And when the KING restored him to his Right that yet he behoved to pay for this Justice and to one who had no legal Tittle to it and who gave nothing for it had Mr Monro so much of pretence it had sav'd his Lawyers the expences of a great deal of mistake both in citation and application of Laws However Mr Hay goes from the Office Sir Thomas Murray being Clerk Register what should now be done A Clerk is necessar for the Kingdom and exercise of Justice Mr Monro puts in no claime on his notable Tittle and I dare say Sir Thomas Murray did not guess that he could not place one in that Office without hazard of being a Concussor a Robber or some other of the Replyer's Epithets In the name of sport the Clerks place must vaik till Mr Monro think fit to desire it or until he sit down in his Chair Sir Thomas did not know this Obligation he Commissionates another whom he and the Session judged fit and receives a good deed for it viz. 100 Pieces more then Mr John Hay did give for the half of it to Mr Monro He serves the Leidges but what 's payed him for his Service He must by this New Natured Logick pay it in to Mr Monro who Served none Interpelled none and Exerced two other lucrative Imployments at the time inconsistent with this Service of a Clerk And not only so but to the as good he must remove and yield his Place to Mr Monro I hope under the pain of Quadruple For so the Edict prescribes against the unwilling Restorer and no doubt the now Clerks are not frank to Restore hastily Well Tarbat as the Replyer doth shortly call him comes thereafter to be Clerk Register and in his time Actions were multiplyed and it was judged by many not unfit that there should be two in every Office Tarbat advises it and finds the Judges of this Opinion He Represents it to the King who gives his Consent but so as by a Letter to lay it before the supreme Judicature who found that because of the standing Law this could not be done without the consent of the Three who were in Office and they consenting Three were adjoyned Tarbat did not by Vertue of a Clause contrait to a standing Act of Parliament take a Liberty to add one or more in these Offices But Tarbat according to the Law did add one to each with the consent of him to whom he was added And whereas the Clause creept in to the Clerk Registers Commissions was no narrower than to allow him to add one or more Tarbat did take care in the Act of Parliament 1685 That the power of Adding tho with consent should not exceed one of Addition And all this while Tarbat can Declare he never heard or thought of Mr. Monro as pretending to be a Principal or Adjunct Now How comes Tarbat to be called or concerned in this Process if it be for Restitution of what was payed to him in case of Eviction he protests to be heard against that in time convenient since on hitherto uncontraverted grounds of Law he will make it evident that non tenetur de evictione of what he got quatenus in officio and that against the Repetition when urged But he presumes it Legally impossible That Deputes can be in the least hazard from so wild a Claim not only not founded but opposite to all Law Justice and Reason And is far from doubting That the Right Honourable Court of Parliament will take severe Animadversion of so scandalous and calumnious Plea's which indeed as much as in the Pretender lyes reflects as far on the Justice of that Court as can possibly be done by bringing ridiculous Claims to vex the Leiges As if that High Court could not soon discern what every Person of common sense cannot but discern As to which Lybel and Replyes so full of the darkest mistakes of Law and Lawyers and so stuft with Paralogisms in Law and Solaecisms in Grammar He will make no Answer that being with far more Learning nor is proportionable fully made by the Clerks in their Answers and Duplies to the Petition and Replies And albeit he knows himself not reachable in the particular yet your Lordships will I hope allow him to expostulat for redress against such Injuries to Subjects to Laws and to our Soveraignes For as to our selves perhaps Record cannot instance so calumnious a Plea Sometimes the Adversaries gives their Action the name of Concussion another time of Quod metus causa and sofurth I may say with Cato in salust Jam pridem equidem nos vera rerum vocabula amisimus If there was Concussion will the Possessor sine crimine be decerned against before a Concussion be proved And can a Concussion be proved Judicially without so much as citing a Concussor For they are not yet so ridiculous as to alleage that the now Clerks were the Concussors Well if they miss of a Concussion it must be found reduceable ex capite metus But where is the Violence not so much as one threat alleaged to dimit the Office no not a Legal Execution nor possibility of one to force an Homologation And yet both Dimission Disposition and Homologation so voluntarly granted without a shaddow of Coaction must be reduced ex capite metus Is not this unparellel'd calumnie and ridiculing of our Laws intollerablie But to make up all Concussion Violence Robbery And all the Black Names is sum'd up at last by the Replyer in this It was done by the Letter of a King who because he writes to his Senate to Reduce Enormities and illegal Invasions of Rights to and according to the Standing Laws and that by no extrajudicial Edict nor new erected Court nor extraordinary Commission but by the Ordinar Supreme and best loved Court of the Nation So far from shewing Anger at the Persons that in Rectifying the wrong he gratifies them by Reward rather than Punishment And so far from Threats that Gentler Expressions could not be Adapted to excuse the faults of a Child than was used by this Father of the Country to these transgressors of his Law But this is treated with no more Civil Name then Concussion And in plain Terms a KING for so Just so Clement so moderate so beneficial execution of the Just Laws is branded with the express Character of a Concussor a Robber a Tyrant which touching so rudely on the lawful exercise of the Soveraign Power as not only to Defame a late Glorious King Uncle to both Their MAJESTIES But with a most Criminal Insolence to Pannel Kingship And to Attacque the Monarchie in its most Eminent Rights Therefore to conclude The Viscount of Tarbat Does Humbly Intreat Your Lordships to consider this Invasion of the Royal Honour and Power as a matter worthie of Your Notice And Desires that no Progress be made in this matter which wholly depends on the Kings Soveraign Power And the Execution thereof until His Majesty be informed of the nature of this pursute wherein His Honour and the Right of the Crown is so deeply concerned And Humbly Offers and Proposes as a Subject a Peer and a Member of Parliament That His Majesties Advocate Solicitor or their Substitutes may be consulted in so high a Point And that inquiry be made for the Authors of this scandalous Criminal Lybell And further Humbly Offers to Yours Lordships Consideration if the Cause do not require that the Authors and Spreaders be secured untill His Majesties Pleasure be known herein