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<DATE>2008-10-10</DATE>
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<NAME>Paul Schaffner</NAME>
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<PB N="1" REF="1" MS="y">
<HEAD>INFORMATION FOR Lord Basil Hamilton Concerning the Election of a Commissioner for the Barons of the Shire of <HI>Wigton.</HI></HEAD>
<P>LOrd <HI>Basil Hamilton</HI> and <HI>Castle-Stewart</HI> producing two several Commissions, and both pretending to be E|lected in the place of late <HI>Garthland.</HI> Lord <HI>Basil Hamilton</HI> most justly contends, That no regard should be had to <HI>Castle-Stewart</HI>'s pretended Election, the same having been most illegal, Because. 1<HI>mo.</HI> The Earl of <HI>Galloway,</HI> Viscount of <HI>Stairs</HI> and the Master his Son, unaccountably and illegal|ly 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.</P>
<P>2<HI>do.</HI> 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 <HI>Castle-Stewart,</HI> 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 <HI>Sheriff-Court,</HI> Both which were false. The Lords obliging the Barons to Sign this, only to fix them against Lord <HI>Basil.</HI></P>
<P>3<HI>tio.</HI> The Subscribers of this Instrument proceed to Elect <HI>Castle-Stewart</HI> first <HI>Praeses,</HI> and then Commissioner. notwithstandng that the Lords, at least the Mr: of <HI>Stairs</HI> with a great many others were in the Room: And tho' Lord <HI>Basil</HI> 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.</P>
<P>There are likeways other Nullities in <HI>Castle-Stewart's</HI> Commission, such as, that it is not filled up nor signed by the Clerk to his Election; and <HI>Crawfordstoun</HI> 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 <HI>Crawfordstoun</HI> were required either to Sign or fill up the Commission at the meeting.</P>
<P><HI>Castle-Stewart,</HI> or rather others making use of his Name, to Lord <HI>Basil</HI>'s Surprizal, makes a Clamour, as if there had been no less Incroachments, forsooth, by the Sheriff in Lord <HI>Basil</HI>'s Election, And instances,</P>
<P>1<HI>mo.</HI> 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.</P>
<P>To this Lord <HI>Basil</HI> 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 Ba|rons agreeing to take the Oaths, even contrary to Lord <HI>Basil</HI>'s Opinion, before the Rolls were made up, and there being no <HI>Praeses,</HI> 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: <HI>Viz, That the unjust pretenders shall be liable in a Fine of 500 Merks, if objested against at the Inrolling.</HI> 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.</P>
<P>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 <HI>Praeses,</HI> 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 <HI>Praeses</HI> to be chosen for that effect, The Act of Parliament 1681, Statuting, <HI>That the Rolls should be made up, at the times therein appointed,</HI> does not appoint any <HI>Praeses</HI> to be chosen. It is true the said Act appoints a <HI>Praeses</HI> 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, <HI>That such as are for|merly In-rolled shall choose a President before they receive such as have not been formerly In-rolled:</HI> But in the Case of the Shire of <HI>Wigtoun,</HI> where no Rolls have been made up, &amp; insert in the Sheriff-Clerk's Book; there's nothing Statuted as to the choosing of a <HI>Praeses:</HI> And truly it could not be Statuted that a <HI>Praeses</HI> should be chosen before the Rolls were made up, else every Footman would have as good a Title to choose a <HI>Praeses</HI> as a Baron, the Law pu|nishing only unjust pretenders when objected against, but by that same Law no Objection can be made but at making up of the Rolls.</P>
<P>But further, whatever was done in this was acquiesced to by all the Meeting; there were indeed some preten|ding to be Barons, that motion'd that a <HI>Praeses</HI> 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 pro|ceed without a <HI>Praeses,</HI> and accordingly not only they went on in making their several Objections and An|swers till the Lords Interrupted them, but even at <HI>Castle-Stewart's</HI> own Election, both for being <HI>Praeses</HI> and Commissioner, the Rolls thus made up were used, and none other.</P>
<P>2<HI>do.</HI> It is alledged for <HI>Castle-Stewart,</HI> That the Sheriff Fined one of the Barons that Voted for him, because he was claiming his Right as a Baron.</P>
<P>To which it is answered, That tho the Sheriff had Fined all the Barons, and unjustly too, that can no ways concern Lord <HI>Basil Hamilton.</HI> It is not pretended by <HI>Casle-Stewart</HI> 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 <HI>William Gordon,</HI> who Stiles himself of <HI>Grange,</HI> 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 hush|ing 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 cog|nosce thereupon. He not only refused that, but giving also Saucie Language, the Sheriff thereupon, to sup|port his own Authority, made a fashion of Fining him, without any design of exacting it; as may appear by this, that the said <HI>William</HI> not only stayed still in the Room, tho' he showed no Right, but thereafter Voted for <HI>Castle-Stewart,</HI> and filled up <HI>Castle-Stewart's</HI> Name in the Commission, and was very Active in all the Steps of <HI>Castle-Stewarts</HI> Election.</P>
<PB N="2" REF="2">
<P>3<HI>dly,</HI> It is pretended for <HI>Castle-Stewart,</HI> 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.</P>
<P>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 <HI>Ba|sil</HI> from being chosen, which, that they design'd right or wrong, will still appear yet more evident, by and by.</P>
<P>And besides, the Plurality could not incroach upon any dissenting Barons, that would stand to their Privi|ledge, which even the Lords themselves shew they were sensible of, for in the Instrument which they took up|on Lord <HI>Basil</HI>'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.</P>
<P>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.</P>
<P>To this it is Answered, 1<HI>mo,</HI> 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<HI>do,</HI> All the Intruders did not remove, for the Master of <HI>Stairs,</HI> with a great many others, stayed still, and such as subscribed the Instrument which the Lords took, went on and Elected, notwithstanding that Lord <HI>Basil</HI> 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<HI>tio,</HI> 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 Ma|ster of <HI>Stairs</HI> his presence, who had been left no doubt for that effect, made the Subscribers, contrary to ex|press 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.</P>
<P>The Parllament having, upon what has been alledged by both Parties, ordered them to adduce Witnesses before Answer, as to the Relevancy, Lord <HI>Basil</HI> adduced the Lairds of <HI>Garthland, Carrichtrie,</HI> and <HI>Crichow,</HI> Wit|nesses of undoubted Probity. The two first were objected against, as having Voted for Lord <HI>Basil;</HI> but besides that, Lord <HI>Basil</HI> 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 <HI>Basil.</HI> And further, the Witnesses adduced by Lord <HI>Basil Hamilton</HI> have Depon'd nothing in favours of Lord <HI>Basil</HI>'s Election, but what is otherways sufficiently proven. For,</P>
<P>1<HI>mo,</HI> As to all the Barons acquiescing to the making up of the Rolls, without choosing a Praeses, <HI>Crawfurd|stoun</HI>'s Instrument, his Deposition, as well as young <HI>Phisgall</HI>'s and <HI>Alexander Campbel</HI>'s, agree, That the Barons went on, after old <HI>Phisgall</HI>'s pretended Instrument, in their Objections, till the Lords came in, and that there|after, such as Elected <HI>Castle-Stewart,</HI> 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 for|mer Proceedings, if any was, or from their Motion to choose a Praeses, there being no such Instrument, as <HI>Garthland</HI> and <HI>Carrichtrie</HI>'s Depositions prove, That all the Barons had acquiesced to the making up of the Rolls, without choosing a <HI>Praeses.</HI></P>
<P>2<HI>do,</HI> That the Lords and Master of <HI>Stairs</HI> went in where the Barons were, while they were making up the Rolls, and had almost ended the same, is evident from <HI>Crawfurdstoun</HI>'s Instrument, the Witnesses adduced for <HI>Castle-Stewart,</HI> as well as these for Lord <HI>Basil,</HI> and the Sheriff-Clerk's Extract.</P>
<P>3<HI>tio,</HI> That the Lords procured the Barons to sign their Associating Instrument, is no less evident.</P>
<P>4<HI>to,</HI> As to the Master of <HI>Stairs</HI> and others being in the Room, the time of <HI>Castle-Stewarts</HI> Election, all like ways have agreed thereto. And as to Lord <HI>Basil</HI>'s protesting against <HI>Castle-Stewart</HI>'s Electors proceeding to Elect, un|til 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 <HI>Basil</HI> confirming the same, <HI>Crawfurdstoun</HI>'s Instrument, and <HI>Castle-Stewart</HI>'s Witnesses Depositions concerning Lord <HI>Basil</HI> and the Barons their adhering to him, their refu|sing to Vote, and Lord <HI>Basil</HI>'s saying, <HI>You may choose the Master of</HI> Stairs<HI>'s Page,</HI> &amp;c. sufficiently prove Lord <HI>Ba|sil</HI>'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.</P>
<P>Lord <HI>Basil</HI> having thus most clearly proven all the most illegal and dangerous Incroachments which he foun|ded on, as committed against the Priviledge of the Barons, in order to hinder his being Elected; And like|ways, That <HI>Castle-Stewart,</HI> and his Adherents, had not only acquiesced to that Procedure of the Barons, for which <HI>Castle-Stewart</HI> complains of Lord <HI>Basil</HI>'s Election, and by which he pretends to excuse the said Incroach|ments; but also, That <HI>Castle-Stewart</HI> and his Adherents had, after the Lords and Master of <HI>Stairs</HI>'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.</P>
<P>Tho <HI>Castle-Stewart</HI> should prove all alledged on his behalf, it can avail him nothing, either against Lord <HI>Ba|sil</HI>'s Election, or in support of his own, Yet such has been the Calumniousness of those Arguments and Sug|gestions us'd against Lord <HI>Basil</HI> in this Affair, that <HI>Castle-Stewart</HI> has not proven any one thing, whereupon there could be founded the least shadow of Objection against Lord <HI>Basil,</HI> or of Defence of what was acted by the Lords and <HI>Castle-Stewart,</HI> to hinder Lord <HI>Basil</HI>'s Election.</P>
<P>As to the Witnesses adduced for <HI>Castle Stewart,</HI> they are the Master of <HI>Stairs, Crawfurdstoun,</HI> young <HI>Phisgall,</HI> and <HI>Alexander Campbel</HI> Servant to the Earl of <HI>Galloway.</HI></P>
<P>The Master of <HI>Stairs</HI> 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.</P>
<P><HI>Crawfurdstoun</HI> has made himself as much Party as either, having given an Instrument in their favours, that no Notar can be answerable for, because, 1<HI>mo,</HI> The far greater part of it consists of that whereupon no Instruments were taken in his hands, as appears by his Answers to Lord <HI>Basil</HI>'s second and third Interrogatories, when he was re|examined, by which Interrogatories it is evident, that Instruments were only taken in the Sheriff Clerk's hands, upon the Objections and Answers made against any pretending Right to Elect or be Elected Commissioner. 2<HI>do,</HI> He has in it many things whereupon no Instrument was taken at all, as appears from his Answer to the fourth and fifth Interrogatories, when first Examined, where he Depones, That no Instruments were taken in his hands, upon the Motion of calling in the Lords, or upon Lord <HI>Basil</HI>'s Answer, when desired t<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> Vote who should be <HI>Praeses, That they might choose the Master of</HI> Stairs <HI>Page,</HI> &amp;c. And it is not pretended, that Instruments were ta|ken upon either of these Passages, in any other Persons hands. 3<HI>tio,</HI> The Instrument contains Falshoods, As
<PB N="3" REF="2">1<HI>mo,</HI> He gives as the Reason of the Motion for calling in the Lords, <HI>That they might see fair play, and protect the Barons from being over-awed, menaced, and threatned, whereof they had complain'd several times that day;</HI> he acknowledging as said is, that there were no Instruments upon this, it is only his own Assertion; and not only there's nothing of this ap|pears from either his own or any others Deposition, but the Lords have not pretended this Reason in their Instru|ment: And <HI>Castle-Stewart,</HI> both by his Lawiers before the Parliament, and in his Interrogatories, assigns an other Reason, <HI>viz. That the Barons might Advise with the Lords, how they should proceed.</HI> 2<HI>do,</HI> Young <HI>Phisgall</HI> Depones, That <HI>Crawfurdstoun</HI> has likewise in his Instrument, <HI>That</HI> Castle-Stewart <HI>protested in his hand against Lord</HI> Basil, <HI>for menacing the Clerk,</HI> yet being Examined upon <HI>Castle-Stewart</HI>'s fourteenth Interrogatory, <HI>If the Clerk was not present when this Instru|ment was taken, and if he was not Witness to it,</HI> All that he would say, was, That the Sheriff-Clerk was present all the time he was in the Meeting. Whereupon he being Interrogated by Lord <HI>Basil,</HI> in his ninth Interrogatory, If he saw or heard Lord <HI>Basil</HI> menace the Clerk, he Answered Negatively. 3<HI>tio,</HI> He asserts in his Instrument. That the Witnesses therein-mention'd, were required Witnesses to the whole therein-contained, altho, as to most no Instruments were taken in his hand, and part is false, and no Instruments taken thereon in any hand: And that he could not Answer to that Interrogatory, about the Clerk's being Witness to a false Instrument, as is said. <HI>Crawfurdstoun</HI> likeways, in Answer to Lord <HI>Basil</HI>'s ninth Interrogatory, Depones, That young <HI>Phisgall,</HI> whom he likeways designs Witness to all, was not required Witness, That he only told him, he was to be Wit|ness to all Instruments taken in his hands, but could not say, that he told even that, before the Lords returned to the Meeting: And <HI>Crawfurdstoun</HI> and young <HI>Phisgall</HI> Depone, That old <HI>Phisgall</HI> protested long before the Lords returned.</P>
<P>A great many more Contradictions of this Nature might be instanced, nor could it be otherways in so long an Instrument, containing so many different Matters, whereof <HI>Crawfurdstoun</HI> took no manner of Notes, as appears from his Answers, when re-examined to Lord <HI>Basil</HI>'s third, seventh, and eight Interrogatories, which one Fault, were there no other, is enough to discredit the Instrument, and to show, that it has been contriv'd only to serve a Turn. But <HI>Crawfurdstoun</HI> being thus ingaged, sufficiently shows his Affection and Concern both for the Cause and his own Instrument, in all that he Depones; As particularly at his second examination, when In|terrogated by Lord <HI>Basil,</HI> If Instruments had been taken in his hand, upon the Objections that were made by any of the Barons, against the others having Right to Vote. He shifts the Question, and answers as to Instru|ments taken against the Illegality of the Barons Procedure, and Depones, That none other had taken any In|struments in his hands upon that Illegality, save old <HI>Phisgall.</HI> But being thereafter Interrogated by Lord <HI>Basil,</HI> If he had taken Notes of these Objections, he then tells the Truth, <HI>viz.</HI> 
<Q REND="margQuotes">That the Instruments on these Ob|jections were taken in the Sheriff-Clerk's hands,</Q>
founding on that, as an Excuse, why he took no Notes of the Objections.</P>
<P>But being further press'd by Lord <HI>Basil</HI>'s seventh and eighth Interrogatories, If he took Notes of old <HI>Phisgall</HI>'s Instrument, which is not pretended to have been taken in the Sheriff-Clerk's hands, and of <HI>Castle-Stewart</HI>'s In|struments, who had protested against the Clerk, for not serving him, he is forced to let fall his Excuse, and confess, that he had taken no Notes as to those; being sensible, that all that were at the Meeting saw, that he had taken no Notes at all.</P>
<P>Young <HI>Phisgal</HI> pretends to be Instrumentary Witness to his Fathers Protestation, he has been Agent in this Matter all along, present at Consultations that have been had thereupon; and, as is informed by himself, help'd <HI>Crawfordstoun</HI> to make up his Instrument, &amp; advised young <HI>Castle-Stewart</HI> to Protest against the Sheriff: All which Lord <HI>Basil</HI> knew not when he was examined, therefore did not object against him upon these grounds: But the Objection is still Competent, it being usual before the Relevancy be discus'd to receive Witnesses <HI>cum nota,</HI> re|serving Objections till discussing of the Relevancy.</P>
<P>But further, besides these mistakes charg'd on <HI>Crawfordstoun</HI>'s Instrument, whereof he is equally guilty, signing as Witness thereto, he Depones in Answer to <HI>Castle-Stewart</HI>'s Fourteenth Interrogatory in positive terms, that the Sheriff-Clerk was required Witness to every Article contained in <HI>Crawfordston</HI>'s Instrument; which is absolute|ly impossible, the most part of the Instrument, being nothing but a Narration of <HI>Crawfordston</HI>'s as to what past, whereupon no Instruments were taken in <HI>Crawfordston</HI>'s hand, some thereof false, and whereupon no Instru|ments were taken in any hands, as is above showen, but young <HI>Phisgal</HI> says no less as to his own being Witness, Deponing that he was an Instrumentary Witness, tho it is inconsistent, as said is, and that <HI>Crawfordston</HI> De|poned otherways, as is already likeways showen.</P>
<P>Thereafter young <HI>Phisgal</HI> gives as his <HI>Causa Scientiae,</HI> that he was present at every Article whereupon he De|pones; that is, he was all the while in the Meeting till <HI>Castle-Stewart</HI> was Elected, <HI>Crawfordston</HI>'s Instrument be|ing given for an extract of all that past; And yet he Depones in Answer to <HI>Castle-Stewart</HI>'s Ninth Interrogatory, <HI>That the Lords when they left the Tolbooth went to Baillie</HI> Gullen's, which he could not know if he stayed in the Tol|booth; and in Answer to the Sixth Interogatory he Depones, <HI>That to the best of his Memory the Barons sent two of their Number to invite in the Lords;</HI> This shews he was in the Meeting with the Barons, then he Subjoyns, <HI>who came and told the Lords they were call'd in to the Meeting;</HI> which likewise shews he was at the same time with the Lords, and had been of the Lords Company, before these Ambassadors went to them.</P>
<P>Young <HI>Phisgall</HI> further Depones in Answer to <HI>Castle-Stewart</HI>'s Third Interrogatory, 
<Q REND="margQuotes">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 Pro|test against the proceedings of that Meeting as altogether illegal, and thereupon took Instruments in <HI>Craw|fordston</HI>'s hand, &amp; that he had Protested, but his Protestation was not marked by the Sheriff-Clerk:</Q> 
If old <HI>Phisgall</HI> had thus Protested against the Sheriff-Clerk, his Protestation had been legal, as no doubt young <HI>Phisgall</HI> 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 <HI>Crawfordston</HI> in Answer to Lord <HI>Basil</HI>'s Second Interro|gatory, at his first Examination Depones, 
<Q REND="margQuotes">That he saw the Clerk refuse no Protestation.</Q></P>
<P><HI>Alexander Campbel</HI> was objected against, as being the Earl of <HI>Galloway</HI>'s Servant, and it is since informed that he was also present at their Consultations. But further, in Answer to <HI>Castle-Stewart</HI>'s first Interrogatory, he Depones, 
<Q REND="margQuotes">That Lord <HI>Basil</HI> answered to old <HI>Phisgall</HI> who des<GAP DESC="illegible" RESP="UOM" EXTENT="3 letters"> above <GAP DESC="illegible" RESP="UOM" EXTENT="1 span"> <HI>Praeses</HI> chosen, that they might choose the Mr. of <HI>Stairs</HI>'s Page, whereas they all agree that <HI>Phisgall</HI>'s desiring a <HI>Praeses</HI> to be chosen was long before the Lords returned.</Q> 
And it appears from the Instrument, that this Answer of Lord <HI>Basil</HI>'s was when his Name was called to give his Vote, which according to all <HI>Castle-Stewart</HI>'s Witnesses, was after the Lords had retired the second time.</P>
<P><HI>Alexander Campbel</HI> in Answer to the Third Interrogatory Depones, 
<Q REND="margQuotes">That he heard <HI>Phisgall</HI> Elder take Pro|testation in <HI>Crawfordstoun</HI>'s hands that the Sheriff's presiding was illegal, and that the Barons were thereby interrupted in their Election.</Q>
Tho the Instrument produced is that the not choosing a <HI>Praeses</HI> is illegal, and ta|ken against the several Barons therein mention'd, and not one word in the Instrument of the Sheriff's presiding: And <HI>Alexander Campbel,</HI> tho he be positive in this interogatory, being thereafter asked by Lord <HI>Basil,</HI> In whose hands <HI>Phisgall</HI> had taken that Instrument, Answered, 
<Q REND="margQuotes">That he did not see, but he heard that it was in <HI>Craw|fordston</HI>'s hands.</Q></P>
<PB N="4" REF="3">
<P>Tho such are the Witnesses yet such also is the force of Truth that the Probation is as follows:</P>
<P>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.</P>
<P>There's as little adduced for proving that there was any Objection against the Sheriff for Fining <HI>William Gordon:</HI> But it is proven that he was Fined at the hushing of the House, not only by the Witnesses adduced by Lord <HI>Basil,</HI> but also from <HI>Crawfordston</HI>'s Historical Instrument of what past in the Meeting, mentioning nothing of it.</P>
<P>As for the Sheriff's presiding, there's a pretended Instrument produced of <HI>Phisgall's</HI> against several Barons, for not choosing a <HI>Praeses,</HI> 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 <HI>Praeses</HI> were chosen, and as to all the Barons acquiescing to that procedure, no regard can be had to that pretended Instrument, For.</P>
<P>1<HI>mo.</HI> This Instrument is not taken in the Clerk of the Meeting's hand, as it ought to have been; and in any o|ther Notar's hand, only in case of the Clerk's refusal, conform to young <HI>Phisgall's</HI> Deposition.</P>
<P>2<HI>do.</HI> 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 <HI>Phisgall</HI> the pretended Instrumentary Witness Depones it was against the Sheriff-Clerk, and <HI>Alexander Camphel</HI> 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 <HI>Garthland</HI> and <HI>Carrichtrie</HI>'s Depositions, in which they Depone that they never heard of any such In|strument, and yet the Instrument bears the same to have been taken against these two Gentlemen Expresly.</P>
<P>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. <HI>Alexander Campbel</HI> and young <HI>Phisgall</HI> have indeed Deponed, That he did preside, and young <HI>Phisgall</HI> 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 <HI>Crawfurdstoun</HI>'s Deposition, who, in Answer to <HI>Castle-Stewart</HI>'s second Interrogatory upon that very head, Depones, <HI>That the Barons continued as they were,</HI> 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 Interro|gatory. And in Answer to the sixth Interrogatory, where being Interrogated, <Q REND="margQuotes">If the Barons desired the Lords to come in, to Advise with them, whether the Sheriff had Right to preside.</Q> He Answers, <Q REND="margQuotes">That some Baron whisper'd, they would be run down, unless the Noblemen returned to see a <HI>Praeses</HI> chosen but that he knew no more of that Interrogatory,</Q> which is positive, that the Sheriff did not preside.</P>
<P>As to the Lords being called, young <HI>Phisgall</HI> only Depones it, and it is evident, he must have been in two places at once, to have known so much.</P>
<P>As to the Call's being from the Plurality, the Instrument indeed bears it; but <HI>Crawfurdstoun</HI> contradicts his own Instrement, in his Answer to Lord <HI>Basil</HI>'s second Interrogatory, when first Examined, wherein he Depones, 
<Q REND="margQuotes">He did not hear all that subscribed the Lords Instrument move, that the Lords should be call'd in: </Q>
And it is e|vident 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 <HI>Basil</HI> com|plains of that they should be thus influenced by the Lords.</P>
<P>As to the Lords being call'd in for Advice, there's <UNCLEAR>no one who heard</UNCLEAR> this so much as mention'd amongst the Barons, save the never-failing <HI>Phisgall, Crawfurdstoun,</HI> and <HI>Alexander Campbel,</HI> and Lord <HI>Basil</HI>'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 <HI>Crawfurdstoun</HI>'s Officiating as Clerk young <HI>Phisgall</HI> Depones, <Q REND="margQuotes">That he did no|thing as Clerk, but call'd the Rolls who should be Commissioner, and marked the Votes.</Q>
But he forgets, that he himself signs Witness to the Instrument, which <HI>Castle-Stewart</HI> took in <HI>Crawfurdstoun</HI>'s hand, upon his being Elected Commissioner, which <GAP DESC="illegible" RESP="UOM" EXTENT="1 word"> only be taken in the hands of the Clerk to the Election.</P>
<P>Tho the Witnesses adduced for <HI>Castle-Stewart</HI> prove not what they were adduced for, which all things conside|red, cannot choose but be <GAP DESC="illegible" RESP="UOM" EXTENT="1 word"> of Admiration; Yet they prove sufficiently, the previous Design of hindering Lord <HI>Basil</HI> from being Elected whatever it should cost as well as the Methods taken for that Effect. And be|sides what may be seen from what is already said, This Master of <HI>Stairs</HI> Depones, 
<Q REND="margQuotes">That he was several times betwixt the Outter and Inner Door,</Q>
and about the time, he Depones, he saw Sir <HI>Charles Hay</HI> and others, it is Deponed, old <HI>Phisgal</HI> should have taken that Instrument; but the Common Souldiers only whispering it, and it seems in <HI>Crawfurdstoun</HI>'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 <HI>Crawfurdstoun</HI> Depones in Answer to <HI>Castle-Stewart</HI>'s fourth interrogatory.) 
<Q REND="margQuotes">That they would be run down, unless the Lords were sent for.</Q>
And by what the Master of <HI>Stairs</HI> 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 th<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> being called, as appears by <HI>Crawfurdstoun</HI>'s Instrument, and his Oath in An|swer to <HI>Castle-Stewart</HI>'s fourth Interrogatory, whereon he Depones, 
<Q REND="margQuotes">That he had set down all in his Instru|ment in order, as they were done in the Meeting,</Q>
and he mentions nothing in his Instrument to have been done betwixt the Motion for the Lords being called, and their in coming.</P>
<P>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 <HI>Basil Hamilton</HI>'s Election, than of any Hopes of getting <HI>Castle Stewart</HI> chosen; That all the Groundless Amusements, about the Sheriff's pretended En|croachment, could not possibly have the least Influence, so as to infer a Nullity on Lord <HI>Basil</HI>'s Elec|tion, but were super-induced only, to wave and alleviate those manifest and undeniable Encroach|ments that have been made by the Lords and Master of <HI>Stairs,</HI> on the Barons Freedom of Election; That the Witnesses adduced for <HI>Castle-Stewart</HI> do not only contradict one another, but do also contra|dict themselves <GAP DESC="illegible" RESP="UOM" EXTENT="1 span">, That <HI>Crawfurdstoun</HI>'s pretended Historical Instrument is a continued Rapsody of falshoods Inconsistencies &amp; Contradictions; That the Witnesses adduced for Lord <HI>Basil</HI> 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 <HI>Castle-Stewart:</HI> 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 <HI>Basil</HI>'s Commission, but also fall upon such Methods, as may prevent the like Encroachments for the future.</P>
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