







 
   
     
       
         Information, for Sir John, Hall Lord Provost of Edinburgh, Robert Chiesly and James Bowdoun baillies, Sir Archibald Muir, Patrick Halyburtoun, William Meinzies, William Hutcheson, and George Stirling. Against James McLurg, George Clerk, Robert Blackwood, William Paton and others.
         Hall, John, Sir, fl. 1692.
      
       
         
           1692
        
      
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         175704
         
           
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             Information, for Sir John, Hall Lord Provost of Edinburgh, Robert Chiesly and James Bowdoun baillies, Sir Archibald Muir, Patrick Halyburtoun, William Meinzies, William Hutcheson, and George Stirling. Against James McLurg, George Clerk, Robert Blackwood, William Paton and others.
             Hall, John, Sir, fl. 1692.
          
           10 p.
           
             s.n.,
             [Edinburgh :
             1692]
          
           
             Caption title.
             Publication data suggested by Wing.
             Against the complaint that there were irregularities in the elections for the magistrates of Edinburgh.
             Reproduction of the original in the National Library of Scotland.
          
        
      
    
     
       
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         eng
      
       
         
           Hall, John, -- Sir, fl. 1692 -- Trials, litigation, etc. -- Early works to 1800.
           McLurg, James, fl. 1692 -- Trials, litigation, etc. -- Early works to 1800.
           Elections -- Scotland -- Edinburgh -- Corrupt practices -- Early works to 1800.
           Municipal government -- Scotland -- Edinburgh -- Early works to 1800.
           Edinburgh (Scotland) -- Officials and employees -- Selection and appointment -- Early works to 1800.
        
      
    
     
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           INFORMATION
           ,
           
             For
             Sir
          
           John
           ,
           Hall
           
             Lord
             Provost
             of
          
           Edinburgh
           ,
           Robert
           Chiefly
           and
           James
           Bowdoun
           
             Baillies
             ,
             Sir
          
           Archibald
           Muir
           ,
           Patrick
           Halyburtoun
           ,
           William
           Meinzies
           ,
           VVilliam
           Hutcheson
           ,
           and
           George
           Stirling
           .
           Against
           James
           M
           
           clurg
           ,
           George
           Clerk
           ,
           Robert
           Blackwood
           ,
           VVilliam
           Paton
           
             and
             others
          
           .
        
         
           THe
           Complainers
           designing
           to
           get
           themselves
           in
           to
           the
           Magistracy
           of
           Edinburgh
           ,
           and
           to
           get
           Mr.
           
             David
             Dalrymple
          
           made
           Conjunct-Clerk
           with
           
             Aenea
             '
             M
             
             cleod
          
           ,
           have
           raised
           a
           Reduction
           before
           your
           Lordships
           ,
           of
           the
           three
           last
           successive
           Elections
           ,
           upon
           several
           pretended
           Violations
           of
           the
           Set
           ,
           and
           concluding
           further
           ,
           that
           the
           Defenders
           may
           be
           punished
           in
           their
           Persons
           and
           Goods
           ;
           The
           which
           Complaint
           being
           given
           in
           ,
           and
           read
           before
           your
           Lordships
           ,
           It
           was
           alledged
           for
           the
           Defenders
           ,
           that
           there
           could
           be
           no
           Process
           for
           annulling
           the
           last
           Election
           ,
           because
           all
           Parties
           therein
           concerned
           were
           not
           called
           ,
           viz.
           Baillie
           Chartres
           ,
           Baillie
           
             Baird
             ,
             Michael
             Allan
             ,
             George
             Warrander
             ,
             Andrew
             Bruce
             ,
             John
             Robertson
             ,
             Hugh
             Blair
             ,
          
           Mr.
           
             Henry
             Ferguson
             ,
             Samuel
             M
             
             clellan
             ,
             Archibald
             Rule
             ,
             Alexander
             Thomson
             ,
             John
             Pringle
             ,
             James
             Crafurd
             ,
             William
             Livingstoun
             ,
             William
             Meldrum
             ,
             George
             Dalgleish
             ,
          
           Members
           of
           the
           Counsel
           of
           twenty
           five
           ,
           whose
           Election
           cannot
           stand
           ,
           if
           the
           Defenders
           Election
           be
           annulled
           .
        
         
           To
           which
           it
           was
           Replyed
           for
           the
           Complainers
           ,
           that
           the
           Defenders
           who
           are
           called
           ,
           are
           the
           principal
           Parties
           concerned
           in
           the
           Irregularities
           lybelled
           ,
           so
           that
           there
           was
           no
           necessity
           to
           call
           any
           others
           .
        
         
           To
           which
           it
           was
           Duplyed
           for
           the
           Defenders
           ,
           that
           these
           of
           the
           Magistrats
           and
           Council
           who
           are
           not
           called
           ,
           tho
           they
           cannot
           be
           prejudged
           by
           any
           punishment
           ,
           concluded
           against
           the
           Defenders
           in
           their
           Persons
           or
           Goods
           ,
           because
           it
           is
           possible
           they
           have
           been
           less
           active
           in
           the
           late
           Elections
           than
           some
           of
           the
           Defenders
           have
           been
           ,
           yet
           it
           is
           impossible
           that
           the
           Defenders
           Election
           can
           be
           reduced
           ,
           and
           the
           Election
           
           of
           the
           other
           Magistrats
           and
           Members
           of
           Council
           stand
           in
           force
           ,
           tho
           less
           guilty
           of
           Irregularities
           ,
           since
           all
           the
           Informalities
           lybelled
           against
           the
           Election
           of
           any
           of
           the
           Defenders
           ,
           strike
           likeways
           at
           the
           Election
           of
           these
           who
           are
           not
           called
           ,
           and
           it
           is
           inauditum
           ,
           that
           parties
           Rights
           were
           ever
           annulled
           by
           a
           Process
           to
           which
           they
           were
           not
           called
           ,
           and
           therefore
           there
           can
           be
           no
           Process
           sustained
           on
           the
           first
           Member
           of
           the
           Conclusion
           ,
           viz.
           to
           annul
           the
           Defenders
           Election
           ,
           till
           the
           rest
           be
           called
           ,
           unless
           the
           Complainers
           design
           ,
           that
           the
           Election
           should
           fall
           quoad
           these
           who
           will
           not
           vote
           for
           them
           ,
           and
           should
           stand
           good
           quoad
           these
           from
           whom
           they
           expect
           Friendship
           ;
           And
           as
           there
           can
           be
           no
           process
           quoad
           the
           first
           Conclusion
           against
           the
           Defenders
           till
           the
           last
           be
           called
           ,
           neither
           can
           there
           be
           any
           Process
           quoad
           the
           second
           Conclusion
           of
           punishing
           the
           Defenders
           in
           their
           Persons
           and
           Goods
           ,
           for
           that
           is
           consequent
           from
           ,
           and
           dependent
           on
           the
           first
           Conclusion
           ,
           for
           as
           long
           as
           the
           Elections
           are
           not
           annulled
           ,
           the
           Defenders
           cannot
           be
           punished
           for
           their
           accession
           thereto
           .
        
         
           Upon
           this
           Debate
           ,
           your
           Lordships
           before
           Answer
           thereto
           ,
           Ordained
           the
           hail
           Cause
           to
           be
           debate
           before
           your
           Lordships
           .
           Vpon
           which
           ,
           the
           Defenders
           Answers
           to
           the
           whole
           pretended
           Violations
           lybelled
           ,
           were
           read
           in
           your
           Lordships
           presence
           .
        
         
           After
           which
           the
           Pursuers
           insisted
           on
           this
           head
           ,
           That
           albeit
           your
           Lordships
           had
           appointed
           the
           two
           Merchant-Counsellors
           to
           vote
           
             proprio
             jure
          
           ,
           upon
           a
           bold
           and
           impudent
           Assertion
           made
           by
           the
           Defenders
           Advocats
           ,
           yet
           these
           two
           Counsellors
           were
           only
           allowed
           to
           Vote
           as
           Proxies
           ,
           so
           that
           Sir
           
             Archibald
             Muir's
          
           first
           Election
           to
           be
           Provost
           was
           unwarrantable
           ,
           being
           contrair
           to
           your
           Lordships
           Command
           ,
           and
           if
           these
           two
           old
           Counsellors
           had
           no
           Right
           to
           Vote
           
             proprio
             jure
          
           ,
           then
           the
           former
           Election
           of
           eight
           Proxies
           could
           not
           be
           quarreled
           by
           the
           Defenders
           on
           that
           ground
           .
        
         
           To
           which
           it
           was
           answered
           for
           the
           Defenders
           ,
           That
           they
           opponed
           their
           former
           Answers
           ,
           viz.
           that
           quoad
           the
           two
           first
           Elections
           which
           are
           now
           past
           ,
           and
           the
           persons
           thereby
           chosen
           gone
           out
           of
           their
           Office
           by
           course
           ,
           there
           can
           be
           no
           Process
           for
           annulling
           these
           Elections
           ,
           or
           turning
           the
           Magistrats
           out
           thereof
           ,
           but
           the
           Complainers
           ,
           if
           they
           design
           to
           prevent
           any
           of
           these
           Informalities
           in
           time
           to
           come
           ,
           ought
           to
           insist
           in
           their
           Declarator
           before
           the
           Judge
           competent
           ,
           which
           they
           raised
           an
           year
           and
           a
           half
           ago
           ,
           since
           all
           the
           Complainers
           mistakes
           arises
           from
           their
           Mis-interpretation
           of
           some
           obscure
           passages
           in
           the
           Set
           ,
           which
           are
           competent
           to
           be
           explained
           by
           the
           Lords
           of
           the
           Session
           .
           2.
           
           Any
           pretended
           Informalities
           in
           the
           two
           last
           Elections
           ,
           cannot
           be
           insisted
           on
           as
           grounds
           to
           annul
           the
           last
           Election
           ,
           otherways
           the
           Magistracies
           of
           Burghs
           would
           be
           very
           unsecure
           for
           fourty
           years
           space
           ,
           if
           there
           were
           any
           Errour
           in
           the
           preceeding
           Elections
           during
           that
           time
           .
           3.
           
           As
           to
           the
           pretence
           insisted
           on
           ,
           as
           to
           the
           two
           old
           Counsellors
           ,
           which
           is
           the
           Complainers
           
             Achilleum
             Argumentum
          
           ,
           chosen
           out
           by
           them
           of
           the
           many
           Informalities
           lybelled
           against
           Sir
           Archibald
           Muir's
           two
           Elections
           .
        
         
           To
           this
           it
           was
           Answered
           ,
           That
           tho
           the
           Complainers
           ,
           according
           to
           their
           wonted
           modesty
           ,
           do
           say
           ,
           that
           it
           was
           a
           bold
           and
           impudent
           assertion
           to
           affirm
           the
           old
           Merchant-counsellors
           had
           right
           to
           Vote
           
             proprio
             jure
          
           ,
           yet
           the
           Defenders
           do
           still
           assert
           ,
           that
           the
           old
           Merchant-counsellors
           are
           a
           part
           of
           the
           Council
           of
           30
           ,
           which
           Council
           of
           30
           is
           appointed
           for
           Leeting
           ,
           and
           which
           Council
           of
           30
           consists
           of
           18
           of
           the
           new
           Council
           and
           12
           of
           the
           old
           ,
           which
           12
           consists
           of
           the
           7
           old
           Magistrats
           ,
           3
           old
           Merchant-counsellors
           ,
           and
           2
           old
           Trades-counsellors
           ,
           as
           appears
           by
           the
           Set
           pag.
           5.
           so
           that
           in
           order
           to
           the
           Leeting
           ,
           no
           Proxies
           can
           be
           chosen
           in
           place
           of
           the
           
           old
           Merchant-counsellors
           ,
           unless
           they
           be
           absent
           after
           they
           are
           required
           to
           come
           ,
           and
           therefore
           since
           these
           that
           were
           old
           Counsellors
           were
           received
           ,
           and
           Proxies
           chosen
           for
           the
           rest
           ,
           the
           Election
           cannot
           be
           quarrelled
           upon
           that
           Informality
           .
           4.
           
           By
           the
           Books
           it
           is
           clear
           ,
           that
           Captain
           Baillie
           was
           admitted
           
             proprio
             jure
          
           ,
           he
           being
           designed
           an
           old
           Counsellor
           ,
           &
           not
           a
           Proxie
           ,
           &
           that
           
             Patrick
             Johnstoun
          
           was
           admitted
           as
           a
           Proxie
           ,
           which
           was
           done
           because
           he
           had
           not
           been
           an
           old
           Merchant-counsellor
           for
           the
           year
           preceeding
           ,
           but
           had
           been
           chosen
           a
           Merchant-counsellor
           for
           that
           current
           year
           ,
           and
           shortly
           after
           his
           being
           made
           a
           Counsellor
           ,
           he
           was
           chosen
           Baillie
           of
           Leith
           ,
           whereby
           he
           became
           to
           be
           no
           Member
           of
           the
           Town
           Council
           ,
           and
           so
           was
           capable
           to
           be
           chosen
           a
           Proxie
           .
        
         
           To
           this
           it
           was
           Replyed
           ,
           That
           the
           Complainers
           insist
           on
           the
           Nullities
           of
           the
           first
           two
           Elections
           ,
           only
           in
           order
           to
           annul
           the
           last
           ,
           as
           being
           done
           by
           these
           persons
           who
           had
           been
           themselves
           illegally
           elected
           ,
           and
           that
           of
           all
           these
           Nullities
           in
           the
           first
           two
           Elections
           ,
           they
           now
           insisted
           on
           that
           anent
           the
           two
           old
           Merchant-counsellors
           ,
           who
           (
           the
           Defenders
           say
           )
           had
           right
           to
           Vote
           
             jure
             proprio
          
           ,
           and
           which
           was
           so
           appointed
           by
           your
           Lordships
           ,
           and
           yet
           one
           of
           them
           is
           admitted
           as
           a
           Proxie
           ,
           for
           albeit
           
             Patrick
             Johnstoun
          
           (
           who
           according
           to
           the
           Defenders
           own
           alledgance
           the
           last
           year
           before
           your
           Lordships
           ,
           was
           an
           old
           Counsellor
           )
           was
           allowed
           to
           Vote
           ,
           yet
           it
           was
           qua
           Proxie
           ,
           and
           not
           
             proprio
             jure
          
           ,
           and
           which
           the
           Defenders
           did
           of
           purpose
           ,
           that
           he
           might
           not
           have
           a
           Vote
           in
           the
           electing
           of
           the
           rest
           of
           the
           Proxies
           ,
           which
           he
           would
           have
           had
           if
           he
           had
           voted
           
             proprio
             jure
          
           ,
           &
           yet
           neither
           Captain
           Baillie
           ,
           nor
           he
           did
           Vote
           in
           the
           Election
           of
           Proxies
           ,
           for
           the
           Books
           bear
           no
           such
           thing
           .
        
         
           To
           which
           it
           was
           Duplyed
           for
           the
           Defenders
           ,
           that
           they
           Oppone
           their
           former
           Answers
           ,
           bearing
           ,
           that
           no
           informality
           in
           the
           two
           first
           Elections
           can
           be
           grounds
           to
           annul
           the
           last
           Election
           ,
           it
           being
           legally
           carried
           on
           .
           And
           as
           to
           the
           Article
           now
           insisted
           on
           ,
           the
           Defenders
           oppone
           the
           express
           words
           of
           the
           Set
           ,
           and
           the
           uncontroverted
           custom
           of
           the
           Burgh
           ,
           to
           the
           Complainers
           shameless
           clamour
           ,
           in
           calling
           it
           a
           bold
           and
           impudent
           Assertion
           ,
           for
           this
           Assertion
           
             in
             jure
          
           ,
           viz.
           that
           old
           Counsellors
           
             jure
             proprio
          
           ,
           have
           right
           to
           Vote
           in
           the
           Leeting
           ,
           as
           being
           a
           part
           of
           the
           old
           Counsel
           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
           Assertion
           
             in
             facto
          
           ,
           that
           Captain
           Baillie
           and
           
             Patrick
             Johnstoun
          
           were
           both
           old
           Counsellors
           ,
           it
           was
           a
           mistake
           in
           the
           Lawyers
           ,
           without
           any
           design
           ,
           for
           Captain
           
           Baillie's
           right
           
             proprio
             jure
          
           to
           Vote
           ,
           had
           the
           same
           weight
           in
           Law
           to
           hinder
           the
           Election
           of
           Proxies
           for
           him
           ,
           as
           both
           Captain
           Baillie
           and
           
             Patrick
             Johnstoun
          
           ,
           being
           old
           Counsellors
           would
           have
           had
           to
           have
           hindered
           Proxies
           to
           be
           chosen
           for
           them
           ,
           for
           one
           or
           two
           ,
           does
           not
           alter
           the
           case
           in
           Law
           ,
           for
           there
           is
           
             idem
             juris
             quoad
             partem
          
           ,
           as
           
             quoad
             totum
          
           ;
           and
           therefore
           Sir
           
             Archibalds
             Muirs
          
           Election
           cannot
           be
           quarrelled
           ,
           because
           the
           two
           old
           Merchant-Counsellors
           did
           not
           Vote
           
             proprio
             jure
          
           ,
           since
           
             de
             facto
          
           there
           was
           but
           one
           of
           them
           an
           old
           Counsellor
           ,
           who
           is
           presumed
           to
           have
           Voted
           accordingly
           ,
           and
           the
           other
           was
           chosen
           as
           a
           Proxy
           ,
           because
           he
           was
           Elected
           a
           Counsellor
           only
           for
           that
           current
           year
           ,
           which
           Counsellors
           place
           did
           vaick
           shortly
           thereafter
           ,
           by
           his
           being
           made
           Baillie
           of
           Leith
           .
           Neither
           can
           the
           Complainers
           pretend
           any
           prejudice
           ,
           by
           not
           admitting
           the
           saids
           two
           persons
           to
           Vote
           
             proprio
             jure
          
           ,
           since
           the
           Complainers
           cannot
           deny
           but
           both
           their
           Votes
           were
           against
           them
           in
           the
           Leeting
           &
           Election
           ;
           so
           that
           the
           Complainers
           could
           have
           no
           advantage
           by
           their
           Voting
           in
           the
           Proxies
           ,
           like
           as
           
             de
             facto
             ,
             James
             Baillie
          
           who
           was
           the
           only
           old
           Merchant-Counsellor
           ,
           is
           presumed
           to
           have
           Voted
           in
           the
           Election
           of
           Proxies
           ,
           if
           he
           came
           in
           before
           the
           Proxies
           were
           Elected
           ,
           and
           if
           he
           came
           not
           in
           till
           
           after
           the
           Proxies
           were
           Elected
           ,
           then
           he
           had
           no
           right
           to
           Vote
           ,
           for
           Votes
           of
           Courts
           are
           not
           rescinded
           upon
           the
           Incoming
           of
           Members
           thereafter
           that
           were
           not
           present
           thereat
           :
           and
           it
           is
           strange
           to
           pretend
           that
           Captain
           Baillie
           did
           not
           Vote
           in
           the
           Election
           of
           Proxies
           ,
           because
           the
           Books
           do
           not
           bear
           him
           to
           have
           Voted
           thereto
           ,
           and
           that
           he
           is
           not
           marked
           in
           the
           Sederunt
           of
           twenty
           two
           ,
           since
           he
           could
           not
           be
           marked
           in
           the
           Sederunt
           ,
           he
           not
           being
           present
           when
           they
           sate
           down
           ,
           but
           being
           called
           in
           thereafter
           by
           them
           ,
           and
           allowed
           to
           Vote
           as
           an
           old
           Counsellor
           ,
           in
           Obedience
           to
           your
           Lordships
           Order
           ,
           and
           since
           there
           is
           nothing
           marked
           in
           the
           Books
           that
           he
           desired
           a
           Vote
           ,
           and
           was
           refused
           ,
           it
           must
           be
           presumed
           that
           he
           did
           Vote
           to
           all
           the
           Votes
           that
           were
           Voted
           after
           he
           came
           in
           ,
           for
           there
           is
           nothing
           marked
           expresly
           that
           the
           twenty
           two
           did
           Vote
           ,
           and
           not
           he
           .
        
         
           Upon
           this
           ,
           your
           Lordships
           appointed
           the
           Complainers
           to
           insist
           upon
           the
           Violations
           of
           the
           Set
           Libelled
           ,
           to
           have
           been
           made
           at
           the
           last
           Election
           .
        
         
           After
           which
           the
           Pursuers
           insisted
           on
           this
           Ground
           ,
           that
           
             George
             Stirling
          
           and
           
             William
             Meinzies
          
           did
           Vote
           in
           the
           last
           Election
           ,
           tho
           they
           had
           been
           more
           than
           two
           years
           on
           the
           Council
           ,
           without
           being
           Office-men
           ,
           or
           by
           vertue
           of
           their
           Office
           thereon
           .
        
         
           To
           which
           it
           was
           Answered
           ,
           that
           
             William
             Meinzies
          
           was
           chosen
           Thesaurer
           at
           the
           popular
           Election
           ,
           in
           which
           he
           continued
           till
           Martinmass
           1690
           ,
           after
           which
           he
           continued
           on
           the
           Council
           as
           old
           Thesaurer
           till
           June
           1691
           ,
           at
           which
           time
           he
           was
           Elected
           one
           of
           the
           four
           old
           Baillies
           ,
           in
           which
           Station
           he
           continued
           till
           Michaelmass
           last
           ,
           and
           was
           then
           chosen
           old
           Dean
           of
           Guild
           ,
           and
           it
           cannot
           be
           denied
           ,
           but
           that
           Thesaurer
           ,
           old
           Thesaurer
           ,
           old
           Baillie
           ,
           and
           old
           Dean
           of
           Guild
           are
           Offices
           :
           And
           for
           
             George
             Stirling
          
           ,
           he
           was
           by
           the
           popular
           Election
           chosen
           Trades-counsellor
           ,
           wherein
           he
           continued
           till
           Michaelmass
           1689
           ,
           and
           was
           then
           chosen
           Deacon
           of
           the
           Chirurgions
           by
           his
           Trade
           ,
           and
           Deacon-Conveener
           by
           the
           Magdalen
           Chappel
           ,
           and
           a
           Counsellor
           by
           vertue
           of
           his
           Office
           ,
           as
           Deacon
           ,
           by
           the
           Town
           Council
           ,
           wherein
           he
           continued
           till
           Michaelmass
           1691
           ,
           and
           then
           was
           chosen
           a
           Trades-Counsellor
           ,
           whereof
           there
           is
           only
           one
           year
           yet
           run
           out
           ;
           and
           it
           is
           clear
           by
           the
           Set
           ,
           that
           a
           Deacon-Counsellor
           and
           a
           Trades-Counsellor
           are
           distinct
           ,
           and
           that
           the
           Set
           forbids
           only
           a
           Counsellor
           to
           continue
           longer
           on
           the
           Council
           than
           two
           years
           ,
           unless
           he
           be
           an
           Office-man
           ,
           or
           there
           ,
           by
           vertue
           of
           his
           Office
           ,
           and
           therefore
           
             George
             Stirling
          
           being
           there
           two
           years
           by
           vertue
           of
           his
           Office
           ,
           as
           Deacon
           ,
           and
           one
           year
           as
           Trades-Counsellor
           ,
           he
           has
           not
           contraveened
           that
           part
           of
           the
           Set
           ,
           since
           it
           has
           been
           the
           constant
           Custom
           for
           Trades-men
           to
           be
           upon
           the
           Council
           two
           years
           as
           Trades-Counsellors
           ,
           and
           two
           years
           as
           Deacon-Counsellors
           ,
           as
           appears
           by
           the
           Instances
           given
           in
           the
           Answers
           ,
           and
           may
           be
           given
           in
           several
           others
           .
        
         
           To
           which
           it
           was
           Replyed
           ,
           that
           it
           appears
           by
           the
           Set
           ,
           that
           there
           is
           nothing
           understood
           by
           Offices
           thereby
           ,
           but
           Provost
           ,
           Baillies
           ,
           Dean
           of
           Guild
           ,
           and
           Thesaurer
           ,
           as
           appears
           by
           the
           15
           page
           of
           the
           Set
           ,
           where
           none
           are
           named
           as
           Office-men
           but
           the
           seven
           Magistrats
           ,
           and
           the
           words
           (
           or
           by
           vertue
           of
           their
           Office
           )
           is
           only
           understood
           of
           the
           old
           Magistrats
           ,
           and
           therefore
           
             William
             Meinzies
             &
             George
             Stirling
          
           ,
           who
           were
           never
           present
           Magistrats
           ,
           cannot
           continue
           longer
           than
           two
           years
           on
           the
           Council
           by
           vertue
           thereof
           ,
           for
           a
           Deacon
           is
           not
           an
           Office
           ,
           and
           an
           old
           Magistrat
           is
           not
           an
           Office
           ,
           unless
           in
           the
           person
           of
           him
           who
           was
           once
           a
           present
           Magistrat
           ,
           and
           no
           respect
           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.
           
        
         
         
           To
           which
           it
           was
           duplyed
           ,
           that
           it
           is
           a
           gross
           mistake
           to
           alledge
           that
           by
           the
           Set
           the
           present
           Magistracy
           is
           only
           called
           an
           Office
           ,
           for
           albeit
           in
           the
           15
           page
           of
           the
           Set
           the
           words
           are
           (
           to
           proceed
           to
           the
           Choosing
           of
           the
           Leets
           to
           the
           Magistrats
           and
           Office-men
           ,
           such
           as
           Provost
           ,
           Baillies
           ,
           Dean
           of
           Gild
           ,
           and
           Treasurer
           )
           yet
           that
           does
           not
           inferr
           that
           a
           Deacon-ship
           is
           not
           an
           Office
           ,
           for
           the
           subject
           treated
           there
           is
           not
           all
           Office-men
           ,
           but
           Magistrats
           and
           Office-men
           who
           are
           taxatively
           exprest
           to
           be
           by
           the
           subjoyned
           Exegesis
           ,
           Provost
           ,
           Baillies
           ,
           Dean
           of
           Gild
           ,
           and
           Treasurer
           ;
           and
           the
           Defenders
           acknowledge
           that
           there
           is
           a
           difference
           betwixt
           Office-men
           Simply
           ,
           and
           them
           that
           are
           Magistrats
           and
           Office-men
           Joyntly
           :
           But
           to
           take
           off
           this
           Quible
           as
           the
           10
           page
           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
           page
           ,
           in
           that
           same
           Chapter
           ,
           appoints
           that
           none
           be
           continued
           in
           their
           Office
           of
           Deaconship
           above
           two
           years
           together
           ,
           so
           that
           it
           is
           undenyable
           that
           by
           the
           Set
           ,
           a
           Deaconship
           is
           reckoned
           an
           Office
           ,
           in
           opposition
           to
           a
           simple
           Counsellor
           ,
           and
           in
           Contradistinction
           to
           a
           Magistrat
           ;
           who
           is
           both
           a
           Magistrat
           and
           an
           Office-man
           Complexly
           ,
           unless
           the
           Complainers
           would
           have
           a
           priviledge
           to
           expound
           the
           word
           Office
           other
           wayes
           in
           the
           10
           page
           ,
           then
           in
           the
           11
           page
           ;
           Because
           it
           serves
           their
           Turn
           :
           Likeas
           their
           Fancy
           in
           expounding
           (
           Office
           to
           be
           present
           Magistracy
           ,
           and
           be
           vertue
           of
           their
           Office
           to
           be
           old
           Magistracies
           )
           is
           extravagant
           ,
           for
           these
           words
           are
           exegetick
           and
           signifie
           the
           same
           thing
           ,
           since
           an
           Office-man
           is
           on
           the
           Council
           be
           vertue
           of
           his
           Office
           ,
           and
           he
           that
           is
           on
           the
           Council
           by
           vertue
           of
           his
           Office
           ,
           must
           be
           an
           Office-man
           ;
           and
           it
           is
           certain
           that
           these
           words
           comprehend
           the
           Old
           and
           New
           Magistrats
           ,
           and
           the
           Six
           ordinary
           Deacons
           ,
           and
           excludes
           only
           the
           members
           of
           Council
           New
           and
           Old
           ,
           who
           are
           there
           only
           as
           single
           Counsellors
           ;
           and
           it
           is
           ridiculous
           to
           pretend
           that
           one
           Chosen
           in
           place
           of
           an
           old
           Baillie
           ,
           or
           an
           old
           Dean
           of
           Gild
           ,
           is
           not
           al
           's
           much
           an
           Office-man
           ,
           as
           he
           who
           served
           the
           year
           preceeding
           in
           whose
           place
           he
           is
           chosen
           ,
           an
           evident
           instance
           whereof
           is
           ,
           that
           a
           Person
           chosen
           to
           be
           old
           Dean
           of
           Gild
           ,
           who
           was
           never
           present
           Dean
           of
           Gild
           ,
           Judges
           in
           the
           Dean
           of
           Gild
           Court
           ,
           in
           absence
           of
           the
           present
           Dean
           of
           Gild
           ,
           which
           he
           could
           not
           do
           ,
           if
           the
           old
           Dean
           of
           Gild
           ,
           as
           such
           ,
           were
           not
           an
           Office-man
           ,
           and
           therefore
           
             William
             Meinzies
          
           ,
           his
           continuing
           more
           then
           three
           years
           under
           four
           distinct
           successive
           Characters
           ,
           and
           
             George
             Stirling
          
           his
           continuing
           that
           Space
           under
           two
           distinct
           Characters
           ,
           can
           be
           constructed
           no
           violation
           of
           the
           Set
           ,
           it
           having
           been
           practised
           in
           the
           cases
           of
           
             William
             Hamiltoun
             ,
             Alexander
             Reid
             ,
             Thomas
             Sandilands
             ,
             John
             Cunningham
             ,
             Thomas
             Kinkaid
             ,
             James
             Borthwick
             ,
             John
             Miln
             ;
             Thomas
             Somervel
             ;
             Alexander
             Thomson
             ,
             James
             Cockburn
             ,
             Michael
             Gibson
             ,
             John
             Scot
             ,
          
           and
           others
           .
           And
           which
           instances
           are
           adduced
           to
           instruct
           a
           constant
           Custom
           not
           contrair
           to
           the
           Set
           ▪
           but
           agreeable
           thereunto
           ,
           and
           which
           Custom
           ought
           to
           expound
           the
           Set
           ,
           if
           there
           were
           any
           Ambiguity
           therein
           as
           to
           this
           point
           as
           there
           is
           none
           ;
           neither
           does
           the
           Act
           of
           Convention
           cut
           off
           all
           former
           Immemorial
           Customs
           ,
           inconsistent
           with
           the
           Set
           ;
           and
           far
           less
           these
           Customs
           that
           do
           Explain
           and
           Interpret
           the
           meaning
           threof
           :
           for
           the
           Act
           of
           Convention
           of
           Estates
           ,
           was
           only
           to
           regulat
           the
           Popular
           Election
           at
           that
           time
           ,
           which
           was
           Judged
           the
           only
           Remedy
           against
           encroachments
           ,
           made
           by
           the
           late
           Governments
           upon
           the
           priviledge
           of
           this
           Burgh
           ,
           but
           no
           wayes
           designed
           to
           Regulat
           subsequent
           Elections
           ,
           which
           the
           Convention
           left
           to
           be
           according
           to
           Law
           ,
           without
           the
           least
           thought
           of
           Rectifying
           any
           Immemorial
           Customs
           ,
           prior
           to
           the
           Incroachments
           made
           by
           the
           late
           Governments
           ,
           which
           Customs
           are
           indeed
           a
           part
           of
           the
           Sett
           ,
           and
           constitution
           of
           the
           Burgh
           .
        
         
           2.
           
           The
           pursuers
           insisted
           on
           that
           pretence
           that
           
             William
             Carss
          
           ,
           who
           was
           one
           of
           the
           eight
           extraordinary
           Deacons
           ,
           was
           chosen
           to
           be
           one
           of
           the
           Council
           of
           Twenty
           Five
           ,
           whereby
           the
           number
           of
           Thirtie
           Eight
           Electors
           ,
           was
           Abridged
           ,
           which
           forced
           
           the
           Defenders
           to
           this
           absurdity
           ,
           that
           they
           behoved
           to
           Elect
           
             Thomas
             Campbel
          
           as
           a
           Proxie
           to
           Vote
           for
           
             William
             Carse
          
           (
           who
           was
           present
           )
           to
           make
           up
           the
           Number
           of
           Thirtie
           Eight
           .
        
         
           To
           this
           it
           was
           Answered
           .
           That
           the
           Defenders
           admire
           how
           the
           Complainers
           Ingenuity
           allows
           them
           to
           insist
           on
           so
           frivolous
           a
           Pretence
           ,
           which
           is
           so
           fully
           taken
           taken
           off
           by
           the
           Defenders
           Answers
           ,
           for
           the
           Set
           putting
           no
           Limitation
           on
           the
           Council
           ,
           to
           chuse
           any
           free
           Trades-man
           to
           be
           a
           Trades-Counsellor
           ,
           to
           make
           up
           the
           ordinary
           Council
           of
           twenty
           five
           ,
           that
           a
           present
           Deacon
           without
           doors
           should
           be
           incapable
           to
           be
           advanced
           from
           one
           of
           the
           extraordinary
           Deacons
           ,
           to
           be
           one
           of
           the
           ordinary
           Council
           ,
           passes
           the
           Defenders
           understanding
           :
           for
           since
           all
           the
           twenty
           five
           of
           the
           ordinar
           Council
           are
           constituent
           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
           quoad
           one
           of
           the
           thirty
           eight
           ,
           that
           Vacancy
           has
           easily
           and
           frequently
           been
           supplied
           ,
           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
           Person
           who
           is
           a
           Member
           of
           a
           Court
           by
           his
           Office
           as
           a
           Deacon
           ,
           when
           he
           gets
           an
           higher
           Character
           in
           that
           Court
           ,
           to
           wit
           ,
           to
           be
           a
           Trades-Counsellor
           ,
           his
           place
           is
           Vacant
           ,
           and
           he
           as
           in
           the
           first
           Character
           of
           a
           Deacon
           is
           absent
           ,
           so
           that
           his
           Room
           must
           be
           supplied
           ,
           but
           there
           is
           no
           Proxie
           to
           to
           be
           chosen
           for
           a
           Deacon
           Absent
           or
           Dead
           ,
           only
           by
           the
           Set
           ,
           the
           preceeding
           Deacon
           supplies
           the
           room
           that
           was
           his
           ,
           and
           therefore
           
             Thomas
             Campbel
          
           did
           not
           Vote
           as
           Proxie
           for
           
             William
             Carse
          
           ,
           who
           was
           present
           ,
           but
           did
           supply
           the
           room
           of
           the
           Deacon
           of
           the
           Fleshers
           in
           the
           Council
           of
           thirty
           eight
           ,
           which
           was
           Vacant
           through
           
             William
             Carse
          
           his
           promotion
           to
           be
           a
           Trades-Counsellor
           ,
           in
           the
           Council
           of
           twen-five
           ;
           and
           as
           there
           is
           no
           shadow
           of
           reason
           to
           complain
           of
           this
           as
           a
           Breach
           of
           the
           Set
           ,
           which
           is
           so
           agreeable
           thereunto
           ,
           and
           has
           been
           the
           constant
           practice
           hitherto
           ,
           so
           it
           is
           most
           malitious
           in
           the
           Complainers
           to
           urge
           the
           same
           as
           a
           prejudice
           done
           to
           them
           ,
           since
           both
           
             William
             Carse
          
           and
           
             Thomas
             Campbel
          
           Voted
           their
           way
           against
           the
           Defenders
           .
           And
           it
           is
           admired
           how
           the
           Complainers
           justifie
           some
           practises
           ,
           ●ho
           contrair
           to
           the
           Set
           ,
           because
           of
           a
           long
           Custom
           ,
           and
           yet
           quarrel
           these
           practices
           of
           the
           Town
           Council
           ,
           which
           are
           agreeable
           both
           to
           the
           Set
           and
           Custom
           :
           because
           they
           fear
           that
           they
           may
           Obstruct
           their
           present
           Design
           .
        
         
           3.
           
           The
           Complainers
           did
           insist
           on
           this
           pretence
           ,
           that
           the
           Proxies
           who
           were
           chosen
           the
           day
           before
           to
           Leet
           ,
           were
           thrown
           out
           the
           day
           of
           Election
           ,
           though
           by
           the
           Set
           ,
           these
           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
           .
        
         
           To
           which
           the
           Defenders
           oppons
           their
           former
           Answers
           ,
           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
           strange
           to
           pretend
           ,
           that
           because
           an
           ordinar
           Member
           cannot
           be
           changed
           ,
           therefore
           his
           Proxie
           cannot
           be
           changed
           ▪
           for
           Proxies
           are
           only
           chosen
           to
           supply
           the
           absence
           of
           Persons
           for
           that
           Diet
           they
           are
           called
           to
           ,
           and
           are
           alterable
           at
           the
           Councils
           Option
           ,
           as
           is
           clear
           by
           immemorial
           Custom
           :
           and
           since
           Leeting
           and
           Electing
           are
           different
           things
           ,
           it
           is
           not
           necessarie
           that
           he
           who
           was
           Proxie
           to
           the
           first
           ,
           should
           be
           Proxie
           to
           the
           second
           :
           for
           then
           a
           Person
           who
           is
           once
           a
           Proxie
           for
           a
           Man
           ,
           behoved
           to
           continue
           as
           Proxie
           for
           him
           during
           all
           the
           time
           of
           his
           Office
           &
           Absence
           .
           So
           that
           if
           a
           Baillie
           should
           go
           out
           of
           the
           Country
           the
           first
           Month
           of
           his
           Election
           ,
           and
           be
           absent
           all
           that
           Year
           ,
           he
           that
           were
           then
           chosen
           Proxie
           for
           him
           ,
           behoved
           to
           continue
           
           till
           the
           end
           of
           that
           year
           ,
           which
           were
           absurd
           ,
           and
           inconsistent
           with
           the
           Immemorial
           Custom
           of
           changing
           of
           Proxies
           every
           Diet
           ,
           and
           in
           this
           particular
           case
           complained
           on
           ,
           there
           were
           only
           three
           Proxies
           called
           in
           the
           day
           of
           Leeting
           ,
           
             viz.
             George
             Home
          
           for
           the
           old
           Provost
           ,
           
             Alexander
             Baird
          
           for
           
             Samuel
             M
             
             cclellan
          
           who
           was
           a
           Merchant-counsellor
           ,
           and
           
             James
             Bowdoun
          
           for
           
             George
             Fullertoun
          
           another
           Merchant-counsellor
           ,
           which
           
             George
             Fullertoun
          
           returning
           the
           night
           before
           the
           Election
           ,
           upon
           the
           the
           morrow
           he
           Voted
           
             jure
             proprio
          
           to
           the
           Election
           :
           Likewayes
           
             George
             Home
          
           Voted
           as
           Proxie
           for
           the
           old
           Provost
           ,
           so
           that
           there
           were
           none
           of
           the
           Proxies
           altered
           but
           
             Alexander
             Baird
          
           ,
           to
           whom
           the
           then
           Provost
           sent
           an
           Officer
           the
           night
           before
           the
           Election
           ,
           to
           intimate
           to
           him
           ,
           that
           he
           needed
           not
           come
           the
           next
           day
           to
           the
           Council
           ;
           at
           which
           time
           the
           Council
           chused
           
             James
             Bowdoun
          
           Proxie
           for
           
             Samuel
             M
             
             cclellan
          
           ,
           so
           that
           
             Alexander
             Baird
          
           having
           got
           intimation
           the
           night
           before
           ,
           that
           he
           was
           not
           to
           be
           a
           Proxie
           to
           the
           Election
           ,
           he
           could
           complain
           of
           no
           Incivility
           ,
           being
           that
           day
           Elected
           a
           Baillie
           .
        
         
           4.
           
           The
           Complainers
           insisted
           on
           this
           pretence
           ,
           that
           the
           extraordinary
           Deacons
           were
           not
           allowed
           to
           Vote
           at
           the
           Election
           of
           Proxies
           ,
           for
           making
           up
           the
           number
           of
           thirty
           eight
           Electors
           ,
           though
           they
           were
           present
           and
           demanded
           it
           .
        
         
           To
           which
           it
           was
           answered
           ,
           That
           the
           Defenders
           oppone
           their
           former
           Answers
           and
           the
           Set
           ,
           which
           appoints
           ,
           page
           19.
           
           
             That
             if
             any
             of
             the
             Provost
             ,
             Baillies
             and
             Council
             be
             absent
             ,
             the
             rest
             who
             are
             present
             ,
             shall
             choose
             another
             in
             their
             room
             :
          
           by
           which
           word
           ,
           Council
           ,
           is
           meaned
           ,
           the
           Council
           of
           thirty
           for
           Leeting
           ,
           and
           not
           the
           Council
           of
           thirty
           eight
           for
           Electing
           ,
           as
           appears
           unanswerably
           from
           this
           ,
           that
           that
           Chapter
           concerns
           two
           distinct
           Points
           ,
           viz.
           The
           supplying
           of
           absent
           Deacons
           not
           of
           the
           Council
           ,
           and
           the
           supplying
           the
           room
           of
           the
           Provost
           ,
           Baillies
           ,
           and
           Council
           :
           And
           as
           to
           the
           first
           Point
           ,
           anent
           a
           Deacon
           not
           of
           the
           Council
           ,
           his
           being
           absent
           ,
           it
           appoints
           the
           last
           Deacon
           ,
           or
           he
           that
           was
           in
           the
           Leet
           with
           him
           ,
           to
           supply
           his
           room
           ;
           So
           that
           the
           Set
           determines
           who
           shall
           supply
           the
           place
           of
           an
           absent
           extraordinary
           Deacon
           ,
           without
           allowing
           a
           Proxie
           to
           be
           chosen
           for
           him
           ,
           either
           by
           the
           extraordinary
           Deacons
           ,
           or
           by
           the
           ordinar
           Council
           ,
           or
           both
           :
           And
           then
           it
           says
           ,
           
             If
             any
             of
             the
             Provost
             ,
             Baillies
             ,
             or
             Council
             be
             absent
             ,
             the
             rest
             who
             are
             present
             shall
             choose
          
           ;
           which
           Rest
           ,
           must
           be
           the
           rest
           of
           that
           number
           ,
           whereof
           any
           are
           absent
           ,
           which
           is
           of
           the
           Provost
           ,
           Baillies
           and
           Council
           in
           contra-distinction
           to
           the
           extraordinary
           Deacons
           ;
           and
           it
           were
           unreasonable
           ,
           that
           when
           there
           are
           no
           Proxies
           to
           be
           chosen
           for
           extraordinary
           Deacons
           ,
           (
           and
           so
           the
           ordinary
           Council
           can
           have
           no
           Vote
           in
           choosing
           of
           them
           )
           that
           yet
           the
           extraordinary
           Deacons
           should
           have
           Vote
           in
           the
           Election
           of
           Proxies
           ,
           for
           representing
           the
           Leeters
           ,
           and
           which
           is
           so
           strange
           ,
           that
           it
           was
           never
           heard
           of
           till
           now
           ,
           that
           the
           Complainers
           zeal
           has
           made
           them
           find
           that
           in
           the
           Set
           ,
           which
           was
           never
           dreamed
           of
           before
           .
        
         
           5.
           
           The
           Complainers
           insisted
           on
           this
           Ground
           ,
           that
           albeit
           by
           the
           Set
           it
           be
           provided
           ,
           that
           before
           they
           proceed
           to
           Elect
           ,
           there
           shall
           be
           an
           Oath
           Administrat
           to
           the
           Electors
           ,
           that
           they
           shall
           choose
           the
           persons
           most
           meet
           ,
           without
           Favour
           ,
           Hatred
           ,
           or
           Collusion
           ,
           yet
           that
           was
           refused
           ,
           though
           it
           was
           demanded
           by
           
             Robert
             Blackwood
          
           ,
           and
           Instruments
           taken
           thereon
           .
        
         
           To
           this
           it
           was
           answered
           ,
           That
           the
           Defenders
           oppone
           their
           former
           Answers
           ,
           viz.
           That
           the
           pretence
           is
           false
           and
           calumnious
           ,
           for
           upon
           
             Robert
             Blackwoods
          
           making
           ,
           and
           insisting
           in
           that
           motion
           ,
           the
           then
           Provost
           told
           the
           Council
           ,
           that
           by
           their
           Oath
           
             de
             fideli
          
           ,
           they
           were
           bound
           to
           give
           the
           Votes
           of
           their
           Consciences
           ,
           and
           that
           they
           were
           to
           give
           the
           saids
           Votes
           as
           in
           the
           presence
           of
           God
           ;
           to
           which
           they
           
           all
           gave
           their
           assent
           ,
           and
           in
           particular
           
             Robert
             Blackwood
          
           ,
           who
           acknowledged
           ,
           that
           he
           was
           satisfied
           therewith
           ,
           which
           is
           sufficient
           to
           satisfie
           the
           Set
           ,
           unless
           there
           were
           a
           difference
           betwixt
           assenting
           to
           give
           their
           Votes
           of
           their
           Consciences
           in
           the
           presence
           of
           God
           ,
           and
           solemnly
           protesting
           before
           God
           ;
           which
           difference
           is
           a
           niceity
           more
           suitable
           to
           Jesuitical
           Philosophy
           ,
           than
           to
           solid
           Divinity
           and
           Law
           ,
           and
           that
           they
           did
           assent
           to
           give
           the
           Votes
           of
           their
           Consciences
           ,
           as
           in
           the
           presence
           of
           God
           ,
           it
           is
           hoped
           ,
           is
           sufficiently
           proven
           by
           the
           Instrument
           ,
           and
           Depositions
           of
           the
           Witnesses
           adduced
           .
        
         
           6.
           
           The
           Complainers
           insisted
           on
           this
           Ground
           ,
           That
           
             George
             Stirling
          
           ,
           and
           the
           other
           persons
           mentioned
           in
           that
           Article
           of
           the
           Libel
           ,
           did
           enter
           into
           a
           Conspiracy
           ,
           by
           signing
           a
           Paper
           under
           their
           hand
           ,
           to
           adhere
           to
           Sir
           
             John
             Hall.
          
           
        
         
           To
           which
           the
           Defenders
           repeated
           their
           former
           Answer
           ,
           viz.
           That
           the
           same
           was
           false
           and
           calumnious
           .
        
         
           After
           this
           Debate
           the
           Complainers
           pretending
           with
           a
           great
           deal
           of
           confidence
           ,
           that
           all
           the
           matters
           of
           Fact
           asserted
           by
           them
           ,
           were
           sufficiently
           proven
           by
           the
           Books
           and
           Registers
           produced
           ,
           did
           Judicially
           pass
           from
           all
           Probation
           by
           Witnesses
           ;
           But
           there
           being
           a
           Committee
           appointed
           by
           your
           Lordships
           ,
           for
           Examining
           the
           Defenders
           Witnesses
           ,
           adduced
           for
           proving
           their
           Libel
           of
           Reconvention
           ,
           the
           Complainers
           did
           refile
           ,
           and
           pressed
           to
           have
           Witnesses
           examined
           upon
           several
           Points
           of
           their
           Libel
           ,
           and
           among
           the
           rest
           ,
           they
           urged
           before
           the
           Lords
           of
           the
           Committee
           ,
           that
           Witnesses
           might
           be
           received
           for
           proving
           the
           pretended
           Conspiracy
           for
           adhering
           to
           Sir
           
             John
             Hall
          
           ,
           and
           contended
           that
           the
           same
           was
           probable
           
             prout
             de
             jure
          
           ,
           by
           Writ
           ,
           Witnesses
           ,
           or
           Oath
           of
           Party
           .
        
         
           To
           which
           it
           was
           answered
           ,
           for
           the
           Defenders
           before
           the
           Committee
           ,
           1.
           
           That
           the
           Libel
           being
           a
           Combination
           in
           Writ
           ,
           by
           the
           Defenders
           alledged
           signing
           a
           Paper
           to
           adhere
           to
           Sir
           
             John
             Hall
          
           ,
           is
           only
           probable
           scripto
           ,
           because
           such
           a
           Combination
           without
           Writ
           to
           that
           purpose
           is
           no
           Crime
           ,
           it
           being
           ordinary
           in
           the
           Magdalen
           Chappel
           ,
           for
           the
           Lesser
           Part
           to
           be
           concluded
           by
           the
           Major
           ,
           and
           to
           promise
           to
           Vote
           in
           the
           Council
           as
           the
           Pluralitie
           did
           in
           the
           Chappel
           ;
           especially
           seing
           if
           any
           such
           Paper
           were
           produced
           ,
           it
           might
           be
           a
           null
           Paper
           not
           probative
           against
           the
           Defenders
           .
           2.
           
           That
           the
           Combination
           libelled
           ,
           was
           not
           probable
           
             juramento
             partis
          
           ,
           because
           it
           is
           a
           contravention
           of
           the
           78.
           
           Act
           of
           the
           14.
           
           Parliament
           
             King
             James
          
           the
           second
           ,
           discharging
           any
           Leagues
           or
           Bonds
           to
           be
           made
           within
           Burgh
           ,
           but
           at
           the
           Commandment
           of
           the
           Head-officer
           ,
           under
           the
           pain
           of
           Confiscation
           of
           their
           Goods
           ,
           and
           their
           Lives
           to
           be
           at
           the
           Kings
           Will
           :
           So
           that
           the
           Combination
           libelled
           ,
           being
           a
           Capital
           Crime
           ,
           or
           at
           least
           Infamie
           ,
           the
           Defenders
           are
           not
           holden
           to
           Depone
           thereupon
           .
           To
           which
           it
           being
           Replied
           before
           the
           Committee
           ,
           1.
           
           That
           Crimes
           are
           probable
           
             prout
             de
             jure
          
           especiallie
           done
           before
           many
           Witnesses
           ,
           as
           this
           which
           was
           done
           in
           the
           Magdalen
           Chappel
           before
           the
           whole
           Deacons
           .
           2.
           
           The
           Complainers
           not
           insisting
           for
           the
           Defenders
           Life
           and
           Limb
           ,
           they
           are
           oblig'd
           to
           Depone
           upon
           the
           Combination
           ,
           especiallie
           Their
           Majesties
           Privy
           Council
           restricting
           the
           same
           to
           an
           Arbitrary
           Punishment
           .
        
         
           To
           which
           it
           was
           duplied
           for
           the
           Defenders
           ,
           to
           the
           first
           ,
           That
           a
           Crime
           whereof
           the
           Nature
           is
           to
           be
           in
           Writ
           ,
           and
           without
           which
           it
           will
           not
           be
           a
           Crime
           ,
           it
           cannot
           be
           proven
           but
           by
           the
           Writ
           ,
           against
           the
           Nullities
           whereof
           the
           Defenders
           might
           object
           ,
           if
           it
           were
           produced
           .
           2.
           
           Persons
           by
           the
           Claim
           of
           Right
           are
           not
           oblig'd
           to
           Depone
           against
           themselves
           in
           Capital
           Crimes
           ,
           howsoever
           the
           Punishment
           be
           restricted
           ;
           besides
           ,
           that
           Their
           Majesties
           Privy
           Council
           have
           no
           ways
           restricted
           the
           Punishment
           here
           ,
           nor
           would
           their
           Declaration
           prejudge
           His
           Majesties
           Interest
           ,
           but
           that
           his
           Advocat
           might
           thereafter
           insist
           before
           the
           Justices
           for
           the
           same
           Crime
           .
        
         
         
           This
           Debate
           being
           reported
           to
           your
           Lordships
           by
           the
           Lords
           of
           the
           Committee
           ,
           your
           Lordships
           found
           it
           probable
           by
           Witnesses
           .
           Writ
           ,
           or
           Oath
           of
           Party
           ,
           in
           the
           Complainers
           option
           ,
           whereupon
           the
           Complainers
           past
           from
           any
           Probation
           by
           Witnesses
           of
           the
           pretended
           Combination
           ,
           and
           offered
           to
           prove
           the
           same
           
             scripto
             ,
             vel
             juramento
             partis
          
           ;
           and
           in
           order
           to
           get
           the
           same
           proven
           scripto
           ,
           by
           production
           of
           the
           pretended
           Paper
           ,
           they
           urged
           six
           or
           seven
           of
           the
           Defenders
           ,
           to
           depone
           anent
           the
           having
           of
           the
           Writ
           ,
           and
           fraud
           fully
           away-puting
           the
           same
           ,
           and
           these
           Defenders
           having
           deponed
           Negatively
           ,
           the
           Complainers
           urged
           that
           they
           might
           depone
           upon
           the
           Tenor
           and
           Import
           of
           the
           Paper
           lybelled
           on
           ,
           and
           it
           being
           alledged
           for
           them
           before
           the
           Lords
           of
           the
           Committee
           ,
           that
           the
           Complainers
           could
           not
           make
           use
           of
           two
           manners
           of
           Probation
           ,
           
             viz.
             scripto
             ,
             &
             juramento
             partis
          
           ;
           And
           therefore
           since
           they
           had
           taken
           themselves
           to
           Probation
           scripto
           ,
           by
           production
           of
           the
           Paper
           it self
           ,
           and
           in
           order
           thereto
           had
           forced
           the
           Defenders
           to
           depone
           anent
           their
           having
           the
           same
           ,
           or
           knowing
           where
           it
           was
           ,
           they
           could
           not
           now
           make
           use
           of
           the
           Defenders
           Oaths
           for
           proving
           of
           the
           Tenor
           of
           the
           Paper
           ,
           which
           was
           to
           prove
           that
           Article
           
             juramento
             partis
          
           ,
           after
           they
           had
           attempted
           to
           prove
           the
           same
           scripto
           ,
           And
           the
           Complainers
           Replying
           ,
           that
           this
           Combination
           was
           
             pessimi
             exempli
          
           ,
           and
           therefore
           it
           should
           be
           narrowly
           lookt
           into
           ,
           and
           should
           not
           go
           uncensured
           ,
           tho
           the
           Paper
           cannot
           be
           produced
           ,
           and
           therefore
           the
           Defenders
           could
           not
           refuse
           to
           depone
           upon
           the
           Tenor
           ,
           since
           every
           one
           of
           their
           Oaths
           can
           only
           be
           probative
           against
           themselves
           .
        
         
           Upon
           this
           the
           Lords
           of
           the
           Committee
           appointed
           the
           saids
           Defenders
           to
           depone
           upon
           the
           Tenor
           and
           Import
           of
           the
           Paper
           libelled
           .
           And
           it
           being
           alledged
           that
           they
           were
           content
           to
           depone
           in
           the
           precise
           terms
           of
           the
           Libel
           ,
           viz.
           that
           they
           had
           subscribed
           no
           Paper
           obliging
           them
           to
           adhere
           to
           Sir
           
             John
             Hall
          
           ,
           and
           the
           complainers
           replying
           that
           they
           ought
           to
           depone
           upon
           the
           whole
           Tenor
           and
           Import
           of
           the
           foresaid
           Paper
           ,
           what
           it
           was
           ,
           if
           it
           was
           not
           oblidgment
           to
           adhere
           to
           Sir
           
             John
             Hall
          
           ,
           that
           the
           Lords
           might
           thereupon
           Judge
           what
           the
           Paper
           imported
           ,
           whereupon
           the
           Lords
           of
           the
           Committee
           appointed
           several
           of
           the
           Defenders
           to
           depone
           anent
           the
           whole
           Matter
           ,
           relating
           to
           the
           said
           pretended
           Combination
           ;
           by
           whose
           Depositions
           it
           clearly
           appears
           ,
           that
           there
           was
           no
           Paper
           subscribed
           by
           them
           obliging
           them
           ,
           or
           promising
           that
           they
           should
           adhere
           to
           Sir
           
             John
             Hall
          
           ,
           which
           they
           deny
           in
           formal
           terms
           ;
           but
           all
           they
           depone
           is
           ,
           that
           the
           
           Magdalen-Chappel
           having
           split
           Votes
           ,
           the
           major
           part
           being
           for
           
             James
             M
             
             clurg
          
           ,
           the
           Deponers
           having
           voted
           for
           Sir
           
             John
             Hall
          
           were
           prest
           by
           some
           of
           the
           Complainers
           not
           to
           break
           the
           Unity
           of
           the
           Chappel
           ,
           but
           to
           be
           concluded
           with
           the
           Plurality
           ,
           and
           to
           Vote
           for
           
             James
             M
             
             clurg
          
           ,
           whereupon
           the
           Deponers
           then
           declared
           ,
           that
           they
           had
           voted
           according
           to
           their
           Consciences
           ,
           and
           that
           they
           were
           not
           to
           blame
           for
           the
           breaking
           the
           Unity
           of
           the
           Chappel
           ,
           because
           the
           Deacon-Conveener
           occasioned
           the
           same
           ,
           by
           his
           declaring
           to
           them
           some
           days
           before
           ,
           that
           he
           would
           Vote
           for
           Sir
           
             John
             Hall
          
           ,
           encouraging
           them
           thereto
           ,
           by
           declaring
           that
           the
           Chappel
           would
           be
           equal
           ,
           and
           he
           would
           give
           his
           casting
           Vote
           ,
           which
           Answer
           did
           not
           satisfie
           some
           of
           the
           Complainers
           ,
           but
           they
           still
           prest
           that
           the
           Deponers
           might
           either
           be
           concluded
           by
           the
           Vote
           of
           the
           Plurality
           ,
           or
           else
           that
           they
           should
           be
           extruded
           the
           Chappel
           ,
           which
           forced
           the
           Depones
           to
           sign
           a
           Declaration
           in
           their
           own
           Vindication
           ,
           be●ring
           ,
           that
           the
           Deacon-Conveener
           declared
           to
           them
           he
           would
           be
           for
           Sir
           
             John
             Hall
          
           ,
           and
           that
           he
           himself
           had
           altered
           his
           mind
           ,
           and
           now
           blamed
           them
           for
           Voting
           for
           Sir
           John
           ,
           in
           which
           Paper
           there
           was
           no
           engagement
           on
           them
           to
           adhere
           to
           Sir
           
             John
             Hall
          
           ,
           nor
           so
           much
           as
           a
           Declaration
           of
           their
           design
           for
           whom
           they
           would
           Vote
           ,
           except
           their
           design
           were
           inferred
           
           from
           this
           ,
           that
           they
           had
           already
           Voted
           for
           Sir
           
             John
             Hall
          
           :
           so
           that
           it
           is
           evident
           and
           undenyable
           ,
           that
           this
           calumnious
           Article
           of
           the
           Bond
           of
           Combination
           was
           libelled
           on
           ,
           of
           design
           to
           get
           some
           Shadow
           and
           Pretence
           to
           make
           this
           a
           Council
           Process
           before
           your
           Lordships
           ,
           there
           being
           no
           other
           Article
           ,
           but
           what
           was
           competent
           to
           have
           been
           pursued
           before
           the
           Judge
           ordinar
           :
        
         
           In
           Respect
           of
           all
           which
           ,
           the
           Defenders
           ought
           to
           be
           assoilzied
           from
           this
           groundless
           and
           calumnious
           Pursuit
           :
           and
           if
           the
           least
           Scruple
           there
           anent
           remain
           with
           your
           Lordships
           ,
           (
           as
           is
           hoped
           there
           can
           be
           none
           ,
           )
           It
           is
           humbly
           desired
           ,
           that
           your
           Lordships
           would
           remit
           the
           same
           to
           be
           discust
           summarly
           before
           the
           Lords
           of
           Session
           ,
           as
           was
           done
           by
           your
           Lordships
           Predecessors
           in
           the
           like
           case
           pursued
           by
           some
           of
           the
           Neighbours
           against
           Sir
           
             Andrew
             Ramsay
          
           ,
           and
           that
           in
           respect
           that
           any
           Difficulties
           arising
           here
           ,
           are
           occasioned
           by
           the
           Complainers
           Niceties
           and
           Quiblings
           upon
           some
           Passages
           of
           the
           Set
           ,
           for
           detorting
           the
           true
           meaning
           thereof
           ,
           and
           which
           being
           Debates
           anent
           the
           point
           of
           Right
           will
           easily
           be
           cleared
           by
           the
           Lords
           of
           Session
           .
           Or
           otherways
           ,
           it
           is
           humbly
           desired
           ,
           that
           your
           Lordships
           would
           be
           pleased
           to
           advise
           with
           his
           Majesty
           what
           is
           proper
           to
           be
           done
           in
           this
           Process
           ,
           in
           Respect
           it
           is
           of
           great
           Import
           to
           the
           Government
           of
           the
           Kingdom
           ,
           and
           will
           be
           a
           Preparative
           either
           for
           Settling
           or
           Unsecuring
           generally
           the
           Magistrats
           of
           the
           whole
           Royal
           Burrows
           .
        
         
      
    
     
  

