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<NAME>John Pas</NAME>
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<HEAD>INFORMATION, <HI>For Sir</HI> John, Hall <HI>Lord Provo&s;t of</HI> Edinburgh, Robert Chiefly <HI>and</HI> James Bowdoun <HI>Baillies, Sir</HI> Archibald Muir, Patrick Halyburtoun, William Meinzies, VVilliam Hutche&s;on, <HI>and</HI> George Stirling. <HI>Against</HI> James M^clurg, George Clerk, Robert Blackwood, VVil|liam Paton <HI>and others.</HI></HEAD>
<P>THe Complainers de&s;igning to get them&s;elves in to the Magi&s;tracy of <HI>Edin|burgh,</HI> and to get Mr. <HI>David Dalrymple</HI> made Conjunct-Clerk with <HI>Aenea' M^cleod,</HI> have rai&s;ed a Reduction before your Lord&s;hips, of the three la&s;t &s;ucce&s;&s;ive Elections, upon &s;everal pretended Violations of the Set, and concluding further, that the Defenders may be puni&s;hed in their Per&s;ons and Goods; The which Complaint being given in, and read before your Lord&s;hips, It was alledged for the Defenders, that there could be no Proce&s;s for annulling the la&s;t Election, becau&s;e all Parties therein concerned were not called, <HI>viz.</HI> Baillie <HI>Chartres,</HI> Baillie <HI>Baird, Michael Allan, George Warrander, Andrew Bruce, John Robert&s;on, Hugh Blair,</HI> Mr. <HI>Henry Fergu&s;on, Samuel M^clellan, Archibald Rule, A|lexander Thom&s;on, John Pringle, James Crafurd, William Living&s;toun, William Mel|drum, George Dalglei&s;h,</HI> Members of the Coun&s;el of twenty five, who&s;e Election cannot &s;tand, if the Defenders Election be annulled.</P>
<P>To which it was Replyed for the Complainers, that the Defenders who are cal|led, are the principal Parties concerned in the Irregularities lybelled, &s;o that there was no nece&s;&s;ity to call any others.</P>
<P>To which it was Duplyed for the Defenders, that the&s;e of the Magi&s;trats and Council who are not called, tho they cannot be prejudged by any puni&s;hment, concluded again&s;t the Defenders in their Per&s;ons or Goods, becau&s;e it is po&s;&s;ible they have been le&s;s active in the late Elections than &s;ome of the Defenders have been, yet it is impo&s;&s;ible that the Defenders Election can be reduced, and the E|lection
<PB N="2" REF="2">
of the other Magi&s;trats and Members of Council &s;tand in force, tho le&s;s guilty of Irregularities, &s;ince all the Informalities lybelled again&s;t the Election of any of the Defenders, &s;trike likeways at the Election of the&s;e who are not called, and it is <HI>inauditum,</HI> that parties Rights were ever annulled by a Proce&s;s to which they were not called, and therefore there can be no Proce&s;s &s;u&s;tained on the fir&s;t Member of the Conclu&s;ion, <HI>viz.</HI> to annul the Defenders Election, till the re&s;t be called, unle&s;s the Complainers de&s;ign, that the Election &s;hould fall <HI>quoad</HI> the&s;e who will not vote for them, and &s;hould &s;tand good <HI>quoad</HI> the&s;e from whom they expect Friend&s;hip; And as there can be no proce&s;s <HI>quoad</HI> the fir&s;t Conclu&s;ion again&s;t the Defenders till the la&s;t be called, neither can there be any Proce&s;s <HI>quoad</HI> the &s;econd Conclu&s;ion of puni&s;hing the Defenders in their Per&s;ons and Goods, for that is con&s;equent from, and dependent on the fir&s;t Conclu&s;ion, for as long as the Elections are not annulled, the Defenders cannot be puni&s;hed for their acce&s;&s;ion thereto.</P>
<P>Upon this Debate, your Lord&s;hips before An&s;wer thereto, Ordained the hail Cau&s;e to be debate before your Lord&s;hips. &V;pon which, the Defenders An|&s;wers to the whole pretended Violations lybelled, were read in your Lord&s;hips pre&s;ence.</P>
<P>After which the Pur&s;uers in&s;i&s;ted on this head, That albeit your Lord&s;hips had appointed the two Merchant-Coun&s;ellors to vote <HI>proprio jure,</HI> upon a bold and impudent A&s;&s;ertion made by the Defenders Advocats, yet the&s;e two Coun&s;ellors were only allowed to Vote as Proxies, &s;o that Sir <HI>Archibald Muir's</HI> fir&s;t Election to be Provo&s;t was unwarrantable, being contrair to your Lord&s;hips Command, and if the&s;e two old Coun&s;ellors had no Right to Vote <HI>proprio jure,</HI> then the former Election of eight Proxies could not be quarreled by the Defenders on that ground.</P>
<P>To which it was an&s;wered for the Defenders, That they opponed their former An&s;wers, <HI>viz.</HI> that <HI>quoad</HI> the two fir&s;t Elections which are now pa&s;t, and the per&s;ons thereby cho&s;en gone out of their Office by cour&s;e, there can be no Pro|ce&s;s for annulling the&s;e Elections, or turning the Magi&s;trats out thereof, but the Complainers, if they de&s;ign to prevent any of the&s;e Informalities in time to come, ought to in&s;i&s;t in their Declarator before the Judge competent, which they rai&s;ed an year and a half ago, &s;ince all the Complainers mi&s;takes ari&s;es from their Mi&s;-interpretation of &s;ome ob&s;cure pa&s;&s;ages in the Set, which are competent to be explained by the Lords of the Se&s;&s;ion. 2. Any pretended Informalities in the two la&s;t Elections, cannot be in&s;i&s;ted on as grounds to annul the la&s;t Ele|ction, otherways the Magi&s;tracies of Burghs would be very un&s;ecure for fourty years &s;pace, if there were any Errour in the preceeding Elections during that time. 3. As to the pretence in&s;i&s;ted on, as to the two old Coun&s;ellors, which is the Complainers <HI>Achilleum Argumentum,</HI> cho&s;en out by them of the many Informali|ties lybelled again&s;t Sir <HI>Archibald Muir</HI>'s two Elections.</P>
<P>To this it was An&s;wered, That tho the Complainers, according to their wonted mode&s;ty, do &s;ay, that it was a bold and impudent a&s;&s;ertion to affirm the old Mer|chant-coun&s;ellors had right to Vote <HI>proprio jure,</HI> yet the Defenders do &s;till a&s;&s;ert, that the old Merchant-coun&s;ellors are a part of the Council of 30, which Coun|cil of 30 is appointed for Leeting, and which Council of 30 con&s;i&s;ts of 18 of the new Council and 12 of the old, which 12 con&s;i&s;ts of the 7 old Magi&s;trats, 3 old Merchant-coun&s;ellors, and 2 old Trade&s;-coun&s;ellors, as appears by the Set <HI>pag.</HI> 5. &s;o that in order to the Leeting, no Proxies can be cho&s;en in place of the
<PB N="3" REF="2">
old Merchant-coun&s;ellors, unle&s;s they be ab&s;ent after they are required to come, and therefore &s;ince the&s;e that were old Coun&s;ellors were received, and Proxies cho&s;en for the re&s;t, the Election cannot be quarrelled upon that Informality. 4. By the Books it is clear, that Captain <HI>Baillie</HI> was admitted <HI>proprio jure,</HI> he being de&s;igned an old Coun&s;ellor, &amp; not a Proxie, &amp; that <HI>Patrick John&s;toun</HI> was admitted as a Proxie, which was done becau&s;e he had not been an old Merchant-coun&s;ellor for the year preceeding, but had been cho&s;en a Merchant-coun&s;ellor for that current year, and &s;hortly after his being made a Coun&s;ellor, he was cho&s;en Baillie of <HI>Leith,</HI> whereby he became to be no Member of the Town Council, and &s;o was capable to be cho&s;en a Proxie.</P>
<P>To this it was Replyed, That the Complainers in&s;i&s;t on the Nullities of the fir&s;t two Elections, only in order to annul the la&s;t, as being done by the&s;e per|&s;ons who had been them&s;elves illegally elected, and that of all the&s;e Nullities in the fir&s;t two Elections, they now in&s;i&s;ted on that anent the two old Merchant-coun&s;ellors, who (the Defenders &s;ay) had right to Vote <HI>jure proprio,</HI> and which was &s;o appointed by your Lord&s;hips, and yet one of them is admitted as a Proxie, for albeit <HI>Patrick Johnstoun</HI> (who according to the Defenders own alledgance the la&s;t year before your Lord&s;hips, was an old Coun&s;ellor) was allowed to Vote, yet it was <HI>qua</HI> Proxie, and not <HI>proprio jure,</HI> and which the Defenders did of pur|po&s;e, that he might not have a Vote in the electing of the re&s;t of the Proxies, which he would have had if he had voted <HI>proprio jure,</HI> &amp; yet neither Captain <HI>Baillie,</HI> nor he did Vote in the Election of Proxies, for the Books bear no &s;uch thing.</P>
<P>To which it was Duplyed for the Defenders, that they Oppone their former An&s;wers, bearing, that no informality in the two fir&s;t Elections can be grounds to annul the la&s;t Election, it being legally carried on. And as to the Article now in&s;i&s;ted on, the Defenders oppone the expre&s;s words of the Set, and the uncontroverted cu&s;tom of the Burgh, to the Complainers &s;hamele&s;s clamour, in calling it a bold and impudent A&s;&s;ertion, for this A&s;&s;ertion <HI>in jure,</HI> viz. that old Coun&s;ellors <HI>jure proprio,</HI> have right to Vote in the Leeting, as being a part of the old Coun&s;el of 12, which with the new Council of 18, makes up the number of 30, no man but the Complainers will controvert, And as to the A&s;&s;ertion <HI>in facto,</HI> that Captain <HI>Baillie</HI> and <HI>Patrick John&s;toun</HI> were both old Coun&s;ellors, it was a mi&s;take in the Lawyers, without any de&s;ign, for Captain <HI>Baillie</HI>'s right <HI>proprio jure</HI> to Vote, had the &s;ame weight in Law to hinder the Election of Proxies for him, as both Captain <HI>Baillie</HI> and <HI>Patrick John&s;toun,</HI> being old Coun&s;ellors would have had to have hindered Proxies to be cho&s;en for them, for one or two, does not alter the ca&s;e in Law, for there is <HI>idem juris quo|ad partem,</HI> as <HI>quoad totum;</HI> and therefore Sir <HI>Archibalds Muirs</HI> Election cannot be quarrelled, becau&s;e the two old Merchant-Coun&s;ellors did not Vote <HI>proprio jure,</HI> &s;ince <HI>de facto</HI> there was but one of them an old Coun&s;ellor, who is pre&s;umed to have Voted accordingly, and the other was cho&s;en as a Proxy, becau&s;e he was Elected a Coun&s;ellor only for that current year, which Coun&s;ellors place did vaick &s;hortly thereafter, by his being made Baillie of <HI>Leith.</HI> Neither can the Complainers pretend any prejudice, by not admitting the &s;aids two per&s;ons to Vote <HI>proprio jure,</HI> &s;ince the Complainers cannot deny but both their Votes were again&s;t them in the Leeting &amp; Election; &s;o that the Complainers could have no advantage by their Voting in the Proxies, like as <HI>de facto, James Baillie</HI> who was the only old Merchant-Coun&s;ellor, is pre&s;umed to have Voted in the Election of Proxies, if he came in before the Proxies were Elected, and if he came not in till
<PB N="4" REF="3">
after the Proxies were Elected, then he had no right to Vote, for Votes of Courts are not re&s;cinded upon the Incoming of Members thereafter that were not pre&s;ent thereat: and it is &s;trange to pretend that Captain <HI>Baillie</HI> did not Vote in the Election of Proxies, becau&s;e the Books do not bear him to have Vo|ted thereto, and that he is not marked in the <HI>Sederunt</HI> of twenty two, &s;ince he could not be marked in the <HI>Sederunt,</HI> he not being pre&s;ent when they &s;ate down, but being called in thereafter by them, and allowed to Vote as an old Coun&s;el|lor, in Obedience to your Lord&s;hips Order, and &s;ince there is nothing marked in the Books that he de&s;ired a Vote, and was refu&s;ed, it mu&s;t be pre&s;umed that he did Vote to all the Votes that were Voted after he came in, for there is nothing marked expre&s;ly that the twenty two did Vote, and not he.</P>
<P>Upon this, your Lord&s;hips appointed the Complainers to in&s;i&s;t upon the Vi|olations of the Set Libelled, to have been made at the la&s;t Election.</P>
<P>After which the Pur&s;uers in&s;i&s;ted on this Ground, that <HI>George Stirling</HI> and <HI>Wil|liam Meinzies</HI> did Vote in the la&s;t Election, tho they had been more than two years on the Council, without being Office-men, or by vertue of their Office thereon.</P>
<P>To which it was An&s;wered, that <HI>William Meinzies</HI> was cho&s;en The&s;aurer at the popular Election, in which he continued till <HI>Martinma&s;s</HI> 1690, after which he continued on the Council as old The&s;aurer till <HI>June</HI> 1691, at which time he was Elected one of the four old Baillies, in which Station he continued till <HI>Mi|chaelma&s;s</HI> la&s;t, and was then cho&s;en old Dean of Guild, and it cannot be denied, but that The&s;aurer, old The&s;aurer, old Baillie, and old Dean of Guild are Offi|ces: And for <HI>George Stirling,</HI> he was by the popular Election cho&s;en Trades-coun|&s;ellor, wherein he continued till <HI>Michaelma&s;s</HI> 1689, and was then cho&s;en Dea|con of the Chirurgions by his Trade, and Deacon-Conveener by the <HI>Magdalen</HI> Chappel, and a Coun&s;ellor by vertue of his Office, as Deacon, by the Town Coun|cil, wherein he continued till <HI>Michaelma&s;s</HI> 1691, and then was cho&s;en a Trades-Coun&s;ellor, whereof there is only one year yet run out; and it is clear by the Set, that a Deacon-Coun&s;ellor and a Trades-Coun&s;ellor are di&s;tinct, and that the Set forbids only a Coun&s;ellor to continue longer on the Council than two years, unle&s;s he be an Office-man, or there, by vertue of his Office, and therefore <HI>George Stirling</HI> being there two years by vertue of his Office, as Deacon, and one year as Trades-Coun&s;ellor, he has not contraveened that part of the Set, &s;ince it has been the con&s;tant Cu&s;tom for Trades-men to be upon the Council two years as Trades-Coun&s;ellors, and two years as Deacon-Coun&s;ellors, as appears by the In&s;tances given in the An&s;wers, and may be given in &s;everal others.</P>
<P>To which it was Replyed, that it appears by the Set, that there is nothing under&s;tood by Offices thereby, but Provo&s;t, Baillies, Dean of Guild, and The|&s;aurer, as appears by the 15 page of the Set, where none are named as Of|fice-men but the &s;even Magi&s;trats, and the words (or by vertue of their Office) is only under&s;tood of the old Magi&s;trats, and therefore <HI>William Meinzies &amp; George Stirling,</HI> who were never pre&s;ent Magi&s;trats, cannot continue longer than two years on the Council by vertue thereof, for a Deacon is not an Office, and an old Magi&s;trat is not an Office, unle&s;s in the per&s;on of him who was once a pre&s;ent Magi&s;trat, and no re&s;pect can be had to any former Practice which was a Violation of the Set, the Act of the Convention of States appointing all Elections after the popular Election to be according to the Set.</P>
<P><PB N="5" REF="3">To which it was duplyed, that it is a gro&s;s mi&s;take to alledge that by the Set the pre&s;ent Magi&s;tracy is only called an Office, for albeit in the 15 page of the Set the words are (to proceed to the Choo&s;ing of the Leets to the Magi&s;trats and Of|fice-men, &s;uch as Provo&s;t, Baillies, Dean of Gild, and Trea&s;urer) yet that does not inferr that a Deacon-&s;hip is not an Office, for the &s;ubject treated there is not all Office-men, but Magi&s;trats and Office-men who are taxatively expre&s;t to be by the &s;ubjoyned Exege&s;is, Provo&s;t, Baillies, Dean of Gild, and Trea&s;urer; and the Defenders acknowledge that there is a difference betwixt Office-men Simply, and them that are Magi&s;trats and Office-men Joyntly: But to take off this Quible as the 10 <HI>page</HI> of the Set appoints none to be more than two years on the Council, except they be Office-men, or by Vertue of their Office; So the 11 <HI>page,</HI> in that &s;ame Chapter, appoints that none be continued in their <HI>Office</HI> of Dea|con&s;hip above two years together, &s;o that it is undenyable that by the Set, a Dea|con&s;hip is reckoned an Office, in oppo&s;ition to a &s;imple Coun&s;ellor, and in Contra|di&s;tinction to a Magi&s;trat; who is both a Magi&s;trat and an Office-man Complex|ly, unle&s;s the Complainers would have a priviledge to expound the word <HI>Office</HI> other wayes in the 10 <HI>page,</HI> then in the 11 <HI>page;</HI> Becau&s;e it &s;erves their Turn: Likeas their Fancy in expounding (Office to be pre&s;ent Magi&s;tracy, and be vertue of their Office to be old Magi&s;tracies) is extravagant, for the&s;e words are exegetick and &s;ig|nifie the &s;ame thing, &s;ince an Office-man is on the Council be vertue of his Office, and he that is on the Council by vertue of his Office, mu&s;t be an Office-man; and it is certain that the&s;e words comprehend the Old and New Magi&s;trats, and the Six ordinary Deacons, and excludes only the members of Council New and Old, who are there only as &s;ingle Coun&s;ellors; and it is ridiculous to pretend that one Cho&s;en in place of an old <HI>Baillie,</HI> or an old Dean of Gild, is not als much an Office-man, as he who &s;erved the year preceeding in who&s;e place he is cho&s;en, an evident in|&s;tance whereof is, that a Per&s;on cho&s;en to be old Dean of Gild, who was never pre&s;ent Dean of <HI>Gild,</HI> Judges in the Dean of Gild Court, in ab&s;ence of the pre&s;ent Dean of Gild, which he could not do, if the old Dean of Gild, as &s;uch, were not an Office-man, and therefore <HI>William Meinzies,</HI> his continuing more then three years under four di&s;tinct &s;ucce&s;&s;ive Characters, and <HI>George Stirling</HI> his continuing that Space under two di&s;tinct Characters, can be con&s;tructed no violation of the Set, it having been practi&s;ed in the ca&s;es of <HI>William Hamiltoun, Alexander Reid, Thomas Sandilands, John Cunningham, Thomas Kinkaid, James Borthwick, John Miln; Thomas Somervel; Alexander Thom&s;on, James Cockburn, Michael Gib&s;on, John Scot,</HI> and others. And which in&s;tances are adduced to in&s;truct a con&s;tant Cu&s;tom not contrair to the Set&punc; but agreeable thereunto, and which Cu&s;tom ought to expound the Set, if there were any Ambiguity therein as to this point as there is none; nei|ther does the Act of Convention cut off all former Immemorial Cu&s;toms, incon|&s;i&s;tent with the Set; and far le&s;s the&s;e Cu&s;toms that do Explain and Interpret the meaning threof: for the Act of Convention of E&s;tates, was only to regulat the Po|pular Election at that time, which was Judged the only Remedy again&s;t encroach|ments, made by the late Governments upon the priviledge of this Burgh, but no wayes de&s;igned to Regulat &s;ub&s;equent Elections, which the Convention left to be according to Law, without the lea&s;t thought of Rectifying any Immemorial Cu&s;toms, prior to the Incroachments made by the late Governments, which Cu&s;toms are indeed a part of the Sett, and con&s;titution of the Burgh.</P>
<P N="2">2. The pur&s;uers in&s;i&s;ted on that pretence that <HI>William Car&s;s,</HI> who was one of the eight extraordinary Deacons, was cho&s;en to be one of the Council of Twenty Five, whereby the number of Thirtie Eight Electors, was Abridged, which forc|ed
<PB N="6" REF="4">
the Defenders to this ab&s;urdity, that they behoved to Elect <HI>Thomas Campbel</HI> as a Proxie to Vote for <HI>William Car&s;e</HI> (who was pre&s;ent) to make up the Num|ber of Thirtie Eight.</P>
<P>To this it was An&s;wered. That the Defenders admire how the Complainers In|genuity allows them to in&s;i&s;t on &s;o frivolous a Pretence, which is &s;o fully taken taken off by the Defenders An&s;wers, for the Set putting no Limitation on the Council, to chu&s;e any free Trades-man to be a Trades-Coun&s;ellor, to make up the ordinary Council of twenty five, that a pre&s;ent Deacon without doors &s;hould be incapable to be advanced from one of the extraordinary Deacons, to be one of the ordinary Council, pa&s;&s;es the Defenders under&s;tanding: for &s;ince all the twenty five of the ordinar Council are con&s;tituent Members of the Council of thirty eight, what can hinder one of the thirty eight to be advanced to be one of the twenty five; for albeit thereby there be a Vacancy <HI>quoad</HI> one of the thirty eight, that Vacancy has ea&s;ily and frequently been &s;upplied, by calling him who was formerly Deacon to Vote in his place, conform to the 19. page of the Set; for it cannot be denied, but that a Per&s;on who is a Member of a Court by his Of|fice as a Deacon, when he gets an higher Character in that Court, to wit, to be a Trades-Coun&s;ellor, his place is Vacant, and he as in the fir&s;t Character of a Deacon is ab&s;ent, &s;o that his Room mu&s;t be &s;upplied, but there is no Proxie to to be cho&s;en for a Deacon Ab&s;ent or Dead, only by the Set, the preceeding Dea|con &s;upplies the room that was his, and therefore <HI>Thomas Campbel</HI> did not Vote as Proxie for <HI>William Car&s;e,</HI> who was pre&s;ent, but did &s;upply the room of the Deacon of the Fle&s;hers in the Council of thirty eight, which was Vacant through <HI>William Car&s;e</HI> his promotion to be a Trades-Coun&s;ellor, in the Council of twen-five; and as there is no &s;hadow of rea&s;on to complain of this as a Breach of the Set, which is &s;o agreeable thereunto, and has been the con&s;tant practice hitherto, &s;o it is mo&s;t malitious in the Complainers to urge the &s;ame as a prejudice done to them, &s;ince both <HI>William Car&s;e</HI> and <HI>Thomas Campbel</HI> Voted their way again&s;t the Defenders. And it is admired how the Complainers ju&s;tifie &s;ome practi&s;es, <GAP DESC="illegible" EXTENT="1 letter">ho contrair to the Set, becau&s;e of a long Cu&s;tom, and yet quarrel the&s;e practices of the Town Council, which are agreeable both to the Set and Cu&s;tom: becau&s;e they fear that they may Ob&s;truct their pre&s;ent De&s;ign.</P>
<P N="3">3. The Complainers did in&s;i&s;t on this pretence, that the Proxies who were cho|&s;en the day before to Leet, were thrown out the day of Election, though by the Set, the&s;e that Leet are to Elect; and as the Parties for whom they are Proxies for Leeting, could not be removed the day of Election, no more could their Proxies be removed that day.</P>
<P>To which the Defenders oppons their former An&s;wers, and the Set, which does not appoint the thirty that Voted to the Leeting, to Vote at the Election with the eight extraordinarie Deacons, but appoints only the thirty of the Old and New Council to Vote with the eight extraordinarie Deacons; and it is &s;trange to pretend, that becau&s;e an ordinar Member cannot be changed, therefore his Proxie cannot be changed&punc; for Proxies are only cho&s;en to &s;upply the ab&s;ence of Per&s;ons for that Diet they are called to, and are alterable at the Councils Op|tion, as is clear by immemorial Cu&s;tom: and &s;ince Leeting and Electing are different things, it is not nece&s;&s;arie that he who was Proxie to the fir&s;t, &s;hould be Proxie to the &s;econd: for then a Per&s;on who is once a Proxie for a Man, behoved to continue as Proxie for him during all the time of his Office &amp; Ab&s;ence. So that if a Baillie &s;hould go out of the Country the fir&s;t Month of his Election, and be ab&s;ent all that Year, he that were then cho&s;en Proxie for him, behoved to con|tinue
<PB N="7" REF="4">
till the end of that year, which were ab&s;urd, and incon&s;i&s;tent with the Im|memorial Cu&s;tom of changing of Proxies every Diet, and in this particular ca&s;e com|plained on, there were only three Proxies called in the day of Leeting, <HI>viz. George Home</HI> for the old Provo&s;t, <HI>Alexander Baird</HI> for <HI>Samuel M^cclellan</HI> who was a Merchant-coun&s;ellor, and <HI>James Bowdoun</HI> for <HI>George Fullertoun</HI> another Mer|chant-coun&s;ellor, which <HI>George Fullertoun</HI> returning the night before the Electi|on, upon the the morrow he Voted <HI>jure proprio</HI> to the Election: Likewayes <HI>George Home</HI> Voted as Proxie for the old Provo&s;t, &s;o that there were none of the Proxies altered but <HI>Alexander Baird,</HI> to whom the then Provo&s;t &s;ent 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 chu&s;ed <HI>James Bowdoun</HI> Proxie for <HI>Samuel M^cclellan,</HI> &s;o that <HI>Alexander Baird</HI> 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.</P>
<P N="4">4. The Complainers in&s;i&s;ted on this pretence, that the extraordinary Dea|cons were not allowed to Vote at the Election of Proxies, for making up the number of thirty eight Electors, though they were pre&s;ent and demand|ed it.</P>
<P>To which it was an&s;wered, That the Defenders oppone their former An&s;wers and the Set, which appoints, page 19. <HI>That if any of the Provo&s;t, Baillies and Council be ab&s;ent, the rest who are pre&s;ent, &s;hall choo&s;e another in their room:</HI> by which word, <HI>Council,</HI> is meaned, the Council of thirty for Leeting, and not the Council of thirty eight for Electing, as appears unan&s;werably from this, that that Chapter concerns two di&s;tinct Points, <HI>viz.</HI> The &s;upplying of ab&s;ent Dea|cons not of the Council, and the &s;upplying the room of the Provo&s;t, Baillies, and Council: And as to the fir&s;t Point, anent a Deacon not of the Council, his being ab&s;ent, it appoints the la&s;t Deacon, or he that was in the Leet with him, to &s;upply his room; So that the Set determines who &s;hall &s;upply the place of an ab&s;ent extraordinary Deacon, without allowing a Proxie to be cho&s;en for him, either by the extraordinary Deacons, or by the ordinar Council, or both: And then it &s;ays, <HI>If any of the Provo&s;t, Baillies, or Council be ab&s;ent, the rest who are pre&s;ent &s;hall choo&s;e;</HI> which <HI>Re&s;t,</HI> mu&s;t be the re&s;t of that number, whereof any are ab&s;ent, which is of the Provo&s;t, Baillies and Council in contra-di&s;tin|ction to the extraordinary Deacons; and it were unrea&s;onable, that when there are no Proxies to be cho&s;en for extraordinary Deacons, (and &s;o the or|dinary Council can have no Vote in choo&s;ing of them) that yet the extraordina|ry Deacons &s;hould have Vote in the Election of Proxies, for repre&s;enting the Leeters, and which is &s;o &s;trange, 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.</P>
<P N="5">5. The Complainers in&s;i&s;ted on this Ground, that albeit by the Set it be pro|vided, that before they proceed to Elect, there &s;hall be an Oath Admini&s;trat to the Electors, that they &s;hall choo&s;e the per&s;ons mo&s;t meet, without Favour, Ha|tred, or Collu&s;ion, yet that was refu&s;ed, though it was demanded by <HI>Robert Black|wood,</HI> and In&s;truments taken thereon.</P>
<P>To this it was an&s;wered, That the Defenders oppone their former An&s;wers, <HI>viz.</HI> That the pretence is fal&s;e and calumnious, for upon <HI>Robert Blackwoods</HI> making, and in&s;i&s;ting in that motion, the then Provo&s;t told the Council, that by their Oath <HI>de fideli,</HI> they were bound to give the Votes of their Con&s;ciences, and that they were to give the &s;aids Votes as in the pre&s;ence of God; to which they
<PB N="8" REF="5">
all gave their a&s;&s;ent, and in particular <HI>Robert Blackwood,</HI> who acknowledged, that he was &s;atisfied therewith, which is &s;ufficient to &s;atisfie the Set, unle&s;s there were a difference betwixt a&s;&s;enting to give their Votes of their Con&s;ciences in the pre&s;ence of God, and &s;olemnly prote&s;ting before God; which difference is a niceity more &s;uitable to Je&s;uitical Philo&s;ophy, than to &s;olid Divinity and Law, and that they did a&s;&s;ent to give the Votes of their Con&s;ciences, as in the pre&s;ence of God, it is hoped, is &s;ufficiently proven by the In&s;trument, and Depo&s;itions of the Witne&s;&s;es adduced.</P>
<P N="6">6. The Complainers in&s;i&s;ted on this Ground, That <HI>George Stirling,</HI> and the other per&s;ons mentioned in that Article of the Libel, did enter into a Con&s;pira|cy, by &s;igning a Paper under their hand, to adhere to Sir <HI>John Hall.</HI></P>
<P>To which the Defenders repeated their former An&s;wer, <HI>viz.</HI> That the &s;ame was fal&s;e and calumnious.</P>
<P>After this Debate the Complainers pretending with a great deal of confidence, that all the matters of Fact a&s;&s;erted by them, were &s;ufficiently proven by the Books and Regi&s;ters produced, did Judicially pa&s;s from all Probation by Wit|ne&s;&s;es; But there being a Committee appointed by your Lord&s;hips, for Exa|mining the Defenders Witne&s;&s;es, adduced for proving their Libel of Reconven|tion, the Complainers did refile, and pre&s;&s;ed to have Witne&s;&s;es examined upon &s;everal Points of their Libel, and among the re&s;t, they urged before the Lords of the Committee, that Witne&s;&s;es might be received for proving the pre|tended Con&s;piracy for adhering to Sir <HI>John Hall,</HI> and contended that the &s;ame was probable <HI>prout de jure,</HI> by Writ, Witne&s;&s;es, or Oath of Party.</P>
<P>To which it was an&s;wered, for the Defenders before the Committee, 1. That the Libel being a Combination in Writ, by the Defenders alledged &s;igning a Paper to adhere to Sir <HI>John Hall,</HI> is only probable <HI>&s;cripto,</HI> becau&s;e &s;uch a Combination without Writ to that purpo&s;e is no Crime, it being ordinary in the <HI>Magdalen</HI> Chappel, for the Le&s;&s;er Part to be concluded by the Major, and to promi&s;e to Vote in the Council as the Pluralitie did in the Chappel; e&s;pecially &s;eing if any &s;uch Paper were produced, it might be a null Paper not probative a|gain&s;t the Defenders. 2. That the Combination libelled, was not probable <HI>ju|ramento partis,</HI> becau&s;e it is a contravention of the 78. Act of the 14. Parliament <HI>King James</HI> the &s;econd, di&s;charging any Leagues or Bonds to be made within Burgh, but at the Commandment of the Head-officer, under the pain of Con|fi&s;cation of their Goods, and their Lives to be at the Kings Will: So that the Com|bination libelled, being a Capital Crime, or at lea&s;t Infamie, the Defenders are not holden to Depone thereupon. To which it being Replied before the Committee, 1. That Crimes are probable <HI>prout de jure</HI> e&s;peciallie done before many Witne&s;&s;es, as this which was done in the <HI>Magdalen</HI> Chappel before the whole Deacons. 2. The Complainers not in&s;i&s;ting for the Defenders Life and Limb, they are oblig'd to Depone upon the Combination, e&s;peciallie Their <HI>Maje&s;ties</HI> Privy Council re&s;tricting the &s;ame to an Arbitrary Puni&s;hment.</P>
<P>To which it was duplied for the Defenders, to the fir&s;t, That a Crime whereof the Nature is to be in Writ, and without which it will not be a Crime, it can|not be proven but by the Writ, again&s;t the Nullities whereof the Defenders might object, if it were produced. 2. Per&s;ons by the Claim of Right are not oblig'd to Depone again&s;t them&s;elves in Capital Crimes, how&s;oever the Puni&s;h|ment be re&s;tricted; be&s;ides, that Their <HI>Majesties</HI> Privy Council have no ways re&s;tricted the Puni&s;hment here, nor would their Declaration prejudge His <HI>Maje|sties</HI> Intere&s;t, but that his Advocat might thereafter in&s;i&s;t before the Ju&s;tices for the &s;ame Crime.</P>
<P><PB N="9" REF="5">This Debate being reported to your Lord&s;hips by the Lords of the Committee, your Lord&s;hips found it probable by Witne&s;&s;es. Writ, or Oath of Party, in the Complainers option, whereupon the Complainers pa&s;t from any Probation by Witne&s;&s;es of the pretended Combination, and offered to prove the &s;ame <HI>&s;cri|pto, vel juramento partis;</HI> and in order to get the &s;ame proven <HI>&s;cripto,</HI> by production of the pretended Paper, they urged &s;ix or &s;even of the Defenders, to depone a|nent the having of the Writ, and fraud fully away-puting the &s;ame, and the&s;e Defenders having deponed Negatively, the Complainers urged that they might depone upon the Tenor and Import of the Paper lybelled on, and it being al|ledged for them before the Lords of the Committee, that the Complainers could not make u&s;e of two manners of Probation, <HI>viz. &s;cripto, &amp; juramento partis;</HI> And therefore &s;ince they had taken them&s;elves to Probation <HI>&s;cripto,</HI> by production of the Paper it &s;elf, and in order thereto had forced the Defenders to depone anent their having the &s;ame, or knowing where it was, they could not now make u&s;e of the Defenders Oaths for proving of the Tenor of the Paper, which was to prove that Article <HI>juramento partis,</HI> after they had attempted to prove the &s;ame <HI>&s;cripto,</HI> And the Complainers Replying, that this Combination was <HI>pe&s;&s;imi exempli,</HI> and therefore it &s;hould be narrowly lookt into, and &s;hould not go uncen&s;ured, tho the Paper cannot be produced, and therefore the Defenders could not refu&s;e to depone upon the Tenor, &s;ince every one of their Oaths can only be probative again&s;t them&s;elves.</P>
<P>Upon this the Lords of the Committee appointed the &s;aids Defenders to depone upon the Tenor and Import of the Paper libelled. And it being alledged that they were content to depone in the preci&s;e terms of the Libel, <HI>viz.</HI> that they had &s;ub|&s;cribed no Paper obliging them to adhere to Sir <HI>John Hall,</HI> and the complainers replying that they ought to depone upon the whole Tenor and Import of the fore|&s;aid Paper, what it was, if it was not oblidgment to adhere to Sir <HI>John Hall,</HI> that the Lords might thereupon Judge what the Paper imported, whereupon the Lords of the Committee appointed &s;everal of the Defenders to depone anent the whole Matter, relating to the &s;aid pretended Combination; by who&s;e Depo&s;itions it clear|ly appears, that there was no Paper &s;ub&s;cribed by them obliging them, or promi&s;ing that they &s;hould adhere to Sir <HI>John Hall,</HI> which they deny in formal terms; but all they depone is, that the <HI>Magdalen</HI>-Chappel having &s;plit Votes, the major part being for <HI>James M^clurg,</HI> the Deponers having voted for Sir <HI>John Hall</HI> were pre&s;t by &s;ome of the Complainers not to break the Unity of the Chappel, but to be concluded with the Plurality, and to Vote for <HI>James M^clurg,</HI> whereupon the Deponers then declared, that they had voted according to their Con&s;ciences, and that they were not to blame for the breaking the Unity of the Chappel, becau&s;e the Deacon-Conveener occa&s;ioned the &s;ame, by his declaring to them &s;ome days before, that he would Vote for Sir <HI>John Hall,</HI> encouraging them thereto, by declaring that the Chappel would be equal, and he would give his ca&s;t|ing Vote, which An&s;wer did not &s;atisfie &s;ome of the Complainers, but they &s;till pre&s;t that the Deponers might either be concluded by the Vote of the Plurality, or el&s;e that they &s;hould be extruded the Chappel, which forced the Depones to &s;ign a Declaration in their own Vindication, be<GAP DESC="illegible" EXTENT="1 letter">ring, that the Deacon-Conveener decla|red to them he would be for Sir <HI>John Hall,</HI> and that he him&s;elf had altered his mind, and now blamed them for Voting for Sir <HI>John,</HI> in which Paper there was no engagement on them to adhere to Sir <HI>John Hall,</HI> nor &s;o much as a Declaration of their de&s;ign for whom they would Vote, except their de&s;ign were inferred
<PB N="10" REF="6">
from this, that they had already Voted for Sir <HI>John Hall:</HI> &s;o that it is evident and undenyable, that this calumnious Article of the Bond of Combination was libelled on, of de&s;ign to get &s;ome Shadow and Pretence to make this a Council Proce&s;s before your Lord&s;hips, there being no other Article, but what was com|petent to have been pur&s;ued before the Judge ordinar:</P>
<P>In Re&s;pect of all which, the Defenders ought to be a&s;&s;oilzied from this groundle&s;s and calumnious Pur&s;uit: and if the lea&s;t Scruple there anent remain with your Lord&s;hips, (as is hoped there can be none,) It is humbly de&s;ired, that your Lord&s;hips would remit the &s;ame to be di&s;cu&s;t &s;ummarly before the Lords of Se&s;&s;ion, as was done by your Lord&s;hips Predece&s;&s;ors in the like ca&s;e pur&s;ued by &s;ome of the Neighbours again&s;t Sir <HI>Andrew Ram&s;ay,</HI> and that in re&s;pect that a|ny Difficulties ari&s;ing here, are occa&s;ioned by the Complainers Nice|ties and Quiblings upon &s;ome Pa&s;&s;ages of the Set, for detorting the true meaning thereof, and which being Debates anent the point of Right will ea&s;ily be cleared by the Lords of Se&s;&s;ion. Or other|ways, it is humbly de&s;ired, that your Lord&s;hips would be plea&s;ed to advi&s;e with his Maje&s;ty what is proper to be done in this Proce&s;s, in Re&s;pect it is of great Import to the Government of the King|dom, and will be a Preparative either for Settling or Un&s;ecuring generally the Magi&s;trats of the whole Royal Burrows.</P>
<PB REF="6">
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
