Procedure, 24 December 1702, Edinburgh

Edinburgh the 1st December 1702

D1702/12/2

D1702/12/2¹

Decreet

Decreit The Earle off Leven Against The Toun Councill off Kirkcaldy

Annent The seaverall lybles principall additionall and Reconventionall underwrittine Raised befoir the Lords of Her Majesties privie Councill at the instance off the persones affternamed in maner affter mentioned Viz The first of the said Lybles or Letters being and principall Lybell raised befoir the saids Lords at the Instance of David Earle off Leven provest of Kirkcaldie with Concurse of Sir James Steuart Her Majesties Advocat For her highness intrest in the matter underwrittin Makeing Mention That wher By the Laws of this and all other well governed realmes all disorders and tumults to the hazard and breach off the pace therof are expressly prohibit and Dischairged And that the saids Disorders and tumults are soe much the more highness and aggravat when the same are raised against the Magistrats vested with Her Majesties authoritie and goeing about the exercise off ther office And particularly from promoveing Her Majesties service in order to the Government and publict good of the whole kingdome and that the saids Disorders and tumults Committed as said is ought to be severely punished Nevertheless It is of verity That the said David Earle of Leven Provest of the forsaid Burgh Haveing upon the Tuenty Eight or ane or other of the dayes of September Last In perseuance of ane ordinance of the Lords of Her Majesties privie Councill off the date the Tuenty fifth off the samen moneth Came to the said Burgh off Kirkcaldie and called and Conveened the Councill therof for Choyseing a Commissioner to the insueing parliament as was designed by the said ordinance of privie Councill wer mett for the end Forsaid Captain James Oswald Dean of Gild, with Henry Oswald, John Durie Late Baillies, John Miller skipper, Alexander Williamson, pretended Councellours, David Tod, Charles Malcolme and Thomas Oswald Elder Councellors with the pretended now ellected Deacones viz James Pearson litster, John Hutson younger smith, David Dewar Taylzor, John Rutherfoord shoe maker, with a great many others pretending to present these Deacones Came in a Tumultuary manner with the forsaid persones pretending that that² they wer to present now Deacones of Crafts to be admitted and to have place and vote in Councill Notwithstanding they wer told by the Magistrats and Toun Councill assembled And particularly by the Deacon Conveener That by the perpetuall Custome of that Burgh now Deacones of Crafts wer never in use to be presented and admitted upon the Councill off the Burgh But the very day of there Michaelmess Election off Magistrats For the ensueing year and to Joyn with the new Councill off the Burgh For that effect Which Day and Bussines was not then in hand yet they stubbornly refuised to remove Notwithstanding that they wer expressly required By the Earle of Leven as Provest and acting By warrand of the Lords of Her Majesties privie Councill as said is All which was carried on by the Contrivance Councill advice and Command off the saids Captain Oswald, Henry Oswald, John Dury, Alexander Williamson, John Miller, David Tod, Charles Malcolme, and Thomas Oswald, and Farder the said pretended new Deacones viz James Pearson, Deacone of the weavers, John Hutson Deacon of the hammermen, David Dewar Deacon of the Taylzors, and John Rutherfoord deacon of the shoe makers Did convocat meetings of ther trades in the ordinary manner and proceeded to Judge and Fyne some of ther Incorporationes tho the said Deacones wer neither qualefied according to Law nor orderly admitted as said is Lykeas John Smart a servant or Constant attender off the said Captaine James Oswald Being required by the said John Whytt one of the Baillies To remove out of the Councill house door That the same might be shut Refuised to obey And when againe Commanded by the said Earle off Leven Provest to remove as haveing noething to doe there Did answer presumpteously affter the Example of his said master Captain Oswald That he would not remove And Sykelyke John McGill glover keept the Councill door Refuising to remove or let the same be shut notwithstanding that he was Commanded soe to doe By the said Provest and Baillie all which they did being Imboldned by a mobb and rable Conveened at ther back whose insolence was such That iff the said Provest and Baillies had proceeded any further to Interpose ther authoritie to make ther Commands effectuall They had certainly been insulted and defforced by a most dangerous ryott And Farder Henry Oswald, and John Durie late Baillies and Alexander Willamsone merchant Whom the provest had befoir debarred From voiting Because off ther not accepting off ther offices and there not offering to qualifie themselves For the whole ten moneths proceeding as the said David Earle of Leven Provest Did represent To the Lords of Her Majesties privie Councill when they gave out the Forsaid ordinance yet being required to remove by the said Earle as Provest and one off Her Majesties privie Councill They contumaciously refused and satt still and the said Captain James Oswald Did most presumpteously protest againest the said Earle of Leven his voiteing to the Forsaid Election For most absurd reasones viz Because He was a noble man and a member off parliament Which presumption was highly aggrevat In respect That in a Former Toun Councill the same persones Did in a most Contumacious manner Remove out of the Toun Councill To break its quorum and meeting And Yet in this last meeting Called By the Earle off Leven Provest By speciall warrand of Her Majesties privie Councill as said is They in manyfest contempt Did insult the said Earle in manner abovementioned And Farder When the said meetting off the said Toun Councill was disolved and the Earle as provest with the other Baillies goeing out off the Councill house The said James Pearsone Did in a most ruid and insolent manner throw the door off the Councill house upon the Earles hills off purpose to provock to some greater disorder and ryot The said Pearson being still backt with the said Mobb and rabble as said is And when the Earle was retured to his Quarter to take some refreshment and as Provest Hade brought Robert Cunynghame Clerk with him To revise the Minuts The said Captain Oswald, and Thomas Oswald Elder David Tod Came to the Earles privat lodging and protested the Clerk should make noe alteration off the minuts nor extract any thing upon them and in the time off this alteratione they stoll up abstracted the Clerks books refuiseing to reproduce the same Lykeas The said Clerk being forbid and influenced by the said Captain Oswald and his Complices refuised to wryt over the Minuts that the provest might signe them as ought to have been done and refuised to give to³ the Baillies extracts off the protestation taken by them in his hands and Lastly one John Miller one of the said Toun Councill Did swear The oath off alleadgence to her Majestie But refuised to signe the assurrance directly conterary to the Act off parliament J^aj vj^c Nyntie three years Which statuts that the oath off alleadgence and assurance should in noe caice be seperat By all which its manyfest That the haill Forsaid persones viz Captain James Oswald, Henry Oswald, John Durie John Miller, Alexander Williamson, David Tod, Charles Malcolme, Thomas Oswald, James Pearson, John Hutson David Dewar, John Rutherfoord, John Smairt, John McGill, and Robert Cynynghame Clerk and each of them are guilty airt and pairt of ane high misdemaner and Tumultuous disorder against the magistrats and Councill off the said Burgh and the said Ordinance off her Majesties privie Councill and her authoritie and other unlaufull convocation and mobb therby occasioned and the said Clerk manyfestly guilty off ane gross Malversation in office all Which being proven The haill forsaid persones ought to be declaired uncapable of publict offices in the said burgh and what ever they doe as to pretending any publict Capacitie therin since ther committing the said Disorders, tumults and Crimes ought and should be declaired void and they and each off them Furder punished in ther persones and goods by sentance off the saids Lords off Her Majesties privie Councill and as they shall see cause to the example and terror of others to doe and Committ the lyke in tyme Comeing And annent The Chairge given to the saids Deffenders To have Compeired personallie Befoir the saids Lords off Privie Councill at ane Certaine day by gone To have answered to the forsaid Complaint And to have heard and seen such order and Course such order and Course⁴ taken therannent as appertained With certefictation And Syke Lyke annent the other principall Lyble or Letters Raised and persewed Befoir the saids Lords of Her Majesties privie Councill at the Instance off Henry Oswald present provest off Kirkcaldy John Durie on off the Baillies therof Captain James Oswald Dean of Gild John Miller late Baillie Alexander Williamsone Thomas Oswald Councellors James Pearson Deacon of the weavers John Smairt Litster John McGill Glover and Alexander Clark Taylzior Burges and Freeman off the said burgh With Concourse of Sir James Steuart Her Majesties Advocat For her highness intrest in the matter under writtin Makeing Mention That wher By the Laws off this and all other weell governed kingdomes The threatning minacing maletreating off and giveing opprobrious names to any persones especiallie when cloathed with any publict Capacitie or office and in the exercise therof As also For privat persones especially such who have noe intrest in the Burgh To intrude themselves and midle with the publict affaires therof especially wher it is aggrevated by tumult and force are crimes off ane high nature and sevearly to be punished and more particularly By the Tuenty seventh act 4 Parliament King James 5th It is statute That noe persone whatsomever molest the Burrowes and ther officers in using ther liberties under the pain off oppression As also That it is most unwarrantable and a high misdemannour in persones off publict office Who are impowered to receave and qualefie Her Majesties subjects to refuise and thifft to doe the same Especially off purpose and designe to keep out Her Majesties subjects from Exerceing the offices to which they have been legallie Ellected and choysen and therby to carry on ther own privat ends by pacting up such quorums in Toun Councills as they think fit yet⁵ Nevertheless It is of verity That David Earle of Leven Late provest of Kirkcaldie, John Whytt, James Jaffray, and William Fergussone late Baillies there, Henry Ranoldson late Conveener and Henry Arcbald Archbald tuo of the trades Councellors, David Stiven late Deacone off the wrights, Heugh Ross late Deacon of the weavers, John Kid late Deacon off the Taylziors, George Simpson lat Deacon off the Baxters, and James Coventrie late Deacon of the Cordiners there Mr Robert Whyt of Bannochie Advocat, William McKenzie Ensigne of the Castle of Edinburgh Captain John Boswall in Kirkcaldie and Adam Thomson merchant there are guilty of the Crimes lybled In soe far as Henry Oswald, John Durie, and Alexander Williamsons Being legally elected and Choysen off the Toun Councill of Kirkcaldy at Michaelmess J^aj vij^c and one and resolving to act under Hes Majestie in the said office and to qualefie themselves according to Law In perseuance off the act of parliament and proclamation therannent Did upon the Threety one day of August and Seventh day off September Last by past Require the said John Whytt and James Jaffray Baillies To Call a Councill to the effect they might have opportunity to qualefie themselves therin By takeing the oath of alleadgence and signing the same with the assurrance Befoir the Elapsing off the time prescribed By the Act off Councill or otherwayes to doe it themselves They or either off them being authorized by the proclamatione To qualefie persones within ther Jurisdiction Which Being refused The saids Deffenders Did therupon take Instruments which are produced in the Clerks hands And Furder The Earle off Leven as Provest for the time Haveing Conveened a Councill in the said Burgh upon the Eleventh off September Last The said Henry Oswald and John Durie Deffenders forsaid Did againe desire they might be admitted to qualefie themselves Which his Lordships refuised as Instruments also taken therupon produced bears And For farder evidence off ther good Inclynationes to the Government The said Henry Oswald, John Durie and Alexander Williamsons (not haveing the opportunity off the privie Councill to apply to) Qualefied themselves befoir the Tuenty second day off September Befoir the Earle of Rothes as shirriff principall off the shyre of Fyfe and ther oaths are duely reported to the Clerks off Councill Wherby the saids Persewers Hade Just night to continue in the exercyse of ther office notwithstanding wherof The said Earle Haveing Conveened a Councill upon the Tuentie Eight off September last in order to choyse a Commissioner For the ensueing parliament and the saids perseuars had just right to continue in the exercise off ther office notwithstanding wherof The said Earle Haveing Conveened a Councill upon the Tuentie Eight off September Last in order to choyse a Commissioner For the ensueing parliament and the saids perseuars taking ther places (as in right in they might) His Lordship affter ane arbitrarie manner assumed the sole power off the Councill upon him and ordered the said perseuars to remove and debarred them From voiting in Councill and refuised to give them the voite off Councill upon ther being allowed to Cit and vote tho the same was desired under Forme off Instrument produced pretending to have ane ordinance off the privie Councill Debarring the saids persewers Notwithstanding when the same was produced It contained noe such thing Bot on the Conterar ordained all the Councellors to meet sitt and vote under a sevear Certefication in caice they removed befoir the ryseing off the Councill As also the said Earle without any provocation or Just Cause given Did in face off Councill upbraid the said Captain James Oswald Dean of Gild with the opprobrious names off Lyar and Rascall And Further the said Earle taking upon him the sole pewer as said is, ordered the new Deacones (Choysen some dayes befoir) To remove albeit It be certain That by ther said election They had right to sit in the nixt Followeing Councill and refuised to qualefie them or allow them to voit and would not soe much as suffer a wrytten protest presented By John Hutson Deacon off the hammermen For himself and in name off the rest of the new Deacones to be read by the Clerk in face of Councill as ane Instrument taken therupon bears and Lykewayes The said Earle remained still the old Deacones Lykeas The said old Deacone’s Did assume upon them to sitt and vote although they wer exaucterated By the new Election as said is Which not only is consequentiall to the nature off the thing The old Deacones ceasing to be and quitting the Chair To the new Deacones as the very moment of the Election off the new Deacones Who instantly take the oath de fideli to their trades takes the Chair and presids and receaves up the Trades books and keyes and the new Deacones are expressly called By the Decreit Arbitrall off Kirkcaldie The Deacones of Crafts for the time, Being and as such are allowed to vote in the Election off the Magistrats But is aggreeable to the Custome of Edinburgh and other Burghs Wher the new Deacones are admitted to site and vote in the First Councill affter ther Election off the Magistrats And Farder the said John Whytt took upon him to hinder and debarr the said John Miller perseuar upon pretence that he had not subscryved the assurance notwithstanding the said John Miller took the oath off alleadgence and subscryved the same with the assurance upon the Eleventh of September last in face of the Toun Councill wher boeth the Earle off Leven and the said John Whytt wer present All which was done manyfestly as appears to pack up such aquorum of the Toun Councill as the Earle and his associats thought fit for ther oun privat ends and Further The said Mr Robert Whytt off Bannochie, Ensigne McKenzie Captain John Boswall, and Adam Thomson Backed with seaverall persones Haveing swords about them and a great Croud off other people who came alongest with the Earle Committed seaverall outrages and insults upon the Masters of trades who wer walkeing and waiting in the outer roome in a paceable manner and came ther By ordinance off ther trades to present ther Deacones to the Councill In regaird the Deacon Conveener had neglected to Doe his duety To cause warn them to the Councill and raised great Tumults and disturbance at the Councill house doar Therby thinking to Frighten and overawe those off the Councill not addicted to ther pairtie and particularly the said Robert Whytt Forceably made himself Master off the keeys off the Councill house door and endevoured to git into the roome Wher the Councill was sitting and when keept back by some off the burgesses occasioned a great disorder and was lyke to raise a tumult at the Councill house door Being backed by Ensigne McKinzie who offered to draw his sword For Bannochies assistance and therby put the Councill in such a Consternation That The Earle of Leven cryed out in face of Councill That ther persones was not saiff and sent on of the Councellours to the door to know the cause of the noise and disturbance made therat As also The said Mr Robert Whytt Did in a threatning manner shake the said Alexander Clark (on of the masters of the trades) By the breast off the Coat And the said Bannochie and Adam Thomsen took John McGill (another of the Masters of the trades) violently by the neik and drew him backward And the said Captain John Boswall threatned the said John Smairt ane other off the Masters off the trades and in ane bangsterous manner bad him take him to his heells and run the Countrie and Farther The said Mr Robert Whytt Being master of the key as said is Did frequently open and look the door off the Councill roome at his pleasure and keept a Correspondence with the Baillies and Called Furth Baillie Jaffray and gave him directiones in the affaires then in aqitation and soe far midled as to accquaint the said Baillie That One James Meldrume a Councellor (Who by a stratagem was locked up in a peat loft to the end he might not come to the Councill) Hade gott Free and was comeing to the Councill and desired them to dispatch the bussiness befoir he come And Notwithstanding on of the Councellors had desired the Minuts might be adjusted and signed in Face off Councill befoir they went out and Instruments wer taken upon ther removeing without doeing the same Yet the Earle and Mr Robert Whytt Haveing affter the Councill was up got Robert Cunynghame the Toun Clerk into a privat house would needs influence and obleidge the Clerk to make up Minuts according to their minds and to alter and maculat seaverall materiall points off the minuts writtin By the Clerk and the said Mr Robert as a Lauier assured the Clerk That the Provest as preces might make up and signe what minuts he plased and with his oun hand scored seaverall lynes out off the minuts off the Councill house books all which are manyfestly Conterar to the previlidges of the Burghs and expressly conterar to the forsaid statute of King James 5th and albeit the said Earle and his pairty wer trewly guilty off all the saids Disorders and Irregularities Committed against the perseuers and other Burgesses yet his Lordship presumed first to raise other Letters of Councill against the perseuars accuseing them off raiseing of Tumults, mobbs and Rables of stubornly stayeing and voiteing in Councill conterar to his Lordships order and a pretended ordinance of Councill of protesting against his Lordships voiteing in the Election of a Commissioner to a Burgh off disquieting his Lordship when reteired to take refreshment By taking a protest against the Clerk That he should not alter make up or cause signe any minuts or give out extracts therof till the same wer revised by the Councill altho it will appear from what is above represented That the perseuars acted calmly and peacably and wer in defence and mentinance of ther just rights and privilidges and only opposed in a legall way the Earles makeing of a Pack meeting For his oun ends And Furder accuseing of the said James Pearson of thrusting the door of the Councill upon the Earles heel’s in a ruid and insolent manner altho upon inquirie It will appear ther was noe such thing Committed at least upon any evell designe But if the doors wer any wayes thrust upon the Earle The same was occasioned By the Councillors thronging out of the Councill house with the Earle who perhaps might have thrust the said James and others in betuixt the door and the wall Wherby the door might have been presst upon the said Earle And Further accuseing the said John Smart and John McGill off refuiseing to remove out of the Councill house door tho therto required by the Provest and Baillies Tho it can be made appear That they wer not within the Councill house door But wer walkeing and waiting at a distance in the outer roome being sent as Masters off ther respective trades To present ther new Deacones to the Councill In regaird the Deacon Conveener had neglected to cause warn them according to the custome and soe wer their about their duety and tho they had been there without any order or commission yet ther stayeing ther was at most but a peice of Innocent curiosity But can noe wayes be constructed to have been done out of Contempt off publict authority And the Lords of Her Majesties privie Councill ought not to be disturbed with the cognitione of such trifles all which particulars above mentioned wer carried on by the saids deffenders For their ouen ends And Therfor the said Earle of Leven, John Whytt, James Jaffray, William Ferguson, Henry Ranoldson, Henry Archibald, David Stephin, Heugh Ross, George Simpson, James Coventrie, Mr Robert Whytt, Ensign McKenzie, Captain John Boswell, and Adam Thomson and every on of them are guilty airt and pairt off the Forsaid disorders and Crimes and particularly off breach off the 27th Act 4th Parliament King James 5th Enacted For securing the previledges off the Burrowes and ther officers And Therfor ought not only To be Decerned each of them In the soume of […] For the Damnages and expensses sustained by the perseuars Bot other wayes punished as guilty off oppression in the termes off the said act of parliament as the Lords of Privie Councill shall think fitt to the terror off others and the perseuars ought to be assolzied From the groundless persuit raised againest them And annent The chairge given to the saids Deffenders To have Compeired personallie Befoir the saids Lords of Her Majesties privie Councill at ane certaine day by gone And to have heard and seen such order and Course taken therannent as appertained with Certefication And alse annent the Letters of Reconvention Raised at the Instance off David Earle off Leven Provest of Kirkcaldy and Mr Robert Whytt off Bannochie Advocat With concourse of Sir James Steuart Her Majesties Advocat For her highness intrest in the matter underwrittin Mentioning That wher By the 100 Eight parliament 14th James 3d All Masterships and partialitie in the Electing of officers within burgh is expressly Dischairged, Lykeas by the practice of this and all other weell governed realms the arrainging off Her Majesties Leidges upon Calumnious representationes by concealling of truths and obtruiding of many fast falshoods are high crimes And Sicklyke That the insulting of persones of eminencie and who bear the Character off Cheiff Magistrats within burgh Is ane hynous crime speciallie when Committed By those of Inferior rank and backed with a Tumultuarie rable againest those cheift officers when in the actuall exercyse of their offices Nevertheless It is of verity That Henry Oswald pretended provest of Kirkcaldie Captain James Oswald pretended Dean of Gild ther John Durie pretended baillie ther, John Miller skipper there, Thomas Oswald elder and David Tod skippers there, Charles Malcolme pretended Thesourer ther, John McGill glover ther, John Smairt and James Pearson aisters ther John Hutsone younger smith ther, Alexander Williamsone merchant there and Alexander Clark taylzior there Are guilty of the forsaids Crimes In soe farras Upon the Tuenty Eight off September last and whyll the said Earle of Leven as provest of the place had called a Councill and was at length in a legallie meet Councill off the said Toun proceeding in the Election off a person For bearing the office of a Commissioner for the Burgh to the parliament He the said Captain Oswald and his saids accomplices Did not only Masterfully oppose the Earles legall proceedings in the said matter in maner mentioned in the Earles former complent againest them Bot farder animated by a tumultuarie rable and Convocation Who when the Earle was comeing to the Councill house wer heard cry out in the streets Come Lads Let us stand by it and have at them and who Lykewayes affter they had Followed the said Captain Oswald to the Councill house wer heard in the utter Councill house againe to cry out in the same manner Lads Let us stand by and have at them, That he the said Captain Oswald and his saids accomplices manyfestly behaved themselves with such master shipe as his not been heard of, For whyll the Councill was Constituting and the house and hushing and the Earle takeing notice off one John Smairt who was noe member Bot on of the said Captain Oswalds dailie attendants in the doar and desireing that he might remove He the said Smairt Did not only Contumaciously and Stubornly keep his said post sayeing that he would not remove For his Lordships Bot also the said Captain Oswald Did in a most insulting manner Second him the said Smairt by repeated assertiones that he the said Smairt was not standing in the door therby insultingly contradicting the Earles als oft repeated assertiones that he did see him in the door And Captain Oswald at length arryveing at the hight that he openly asserted his Lordships not to have toe seen him The Earle perceaving Captaine Oswalds designe by his said indiscreit and insulting behaviour to be noething ells but to disappoint the work off that day Did till him that non but a lyar would have soe peremptorly and soe offten Contradicted him and therupon proceeded to the voitting off a Commissioner to the parliament Which vote while it was goeing on The said John Hutson Smith Did in ane insolent manner disturb the proceeding By throwing up ane paper to the Clerk with ane exclamation and Cry that it should be furth with read and as the Earle Lauboured under the Forsaid Difficulties and insults in his goeing to the Councill house and whyll he was their soe was the said Mr Robert Whytt most wrongfully insulted in the outter roome off the Councill house wher he was desireing a word of Baillie Jaffray In soe farr as whyll he was goeing to knock at the door those off the Rable particularly David Barclay, John McGill and John Young Laid violent hands on him and would not suffer him to come near the door And when at length the Baillie came out The said Mr Robert haveing spoke to him came away Immediatly for shunning greater Inconveniencies and as Captain Oswald and his accomplices ther masterfull carriadge was insufferable boeth without and within door’s the time off the Election so did they continue ther insults even after the election In sua farr as throw their Tumultuarie behaviour The Clerk could not git the minuts off that sederunt wrytt whyll he was in Councill Lyke as The said Captain Oswald with his said accomplices Did affter the Councill was up and the Election over send the Clerk with the Councill books to the Earles Lodgeing, bearing indeed a minut of that sederunt Bot so blotted, perplined, Interlyned and Margined that it was not Intelligible soe soe⁶ much as leigable By the Clerk himself whose hand wrytt it was Which the Earle haveing Justly reckoned upon as a peice off Farder disrespect he patiently desired the said Master Whytt and the Clerk to see what sence could be made of it That being wrytt over again in mundo His Lordship as provest might subscriveit and which whyll Mr Robert and the Clerk wer goeing about to doe He the said Captain Oswald with his said accomplices Did come to the Earles Lodging and protesting againest any such trans Scryveing Did by himself or his saids accomplices withdraw and abstract the Councill Books So that to this hour the Intelligible and perplext Minut stands unsubscryved And this in conjunction with what was formerly Complained of by the Earle Being the trew matter off Fact in refference to the said Councill dayes proceedings He the said Captain Oswald and his saids accomplices have nevertheless adventured upon the most deformatorie accusation againest the Earle and others perseuars and that upon the most unaccountable suppression of truth and obtruding of falsehoods that hes at any time been heard off, For he chairges the Estate Primo with arbitrarieness in Debarring of Oswald, Durie and Williamson whyll in the mean tyme he suppresses the cause therof viz That they for Ten moneths time had wilfully refuised to qualefie themselves and therby wer not in office and that by the late proclamation of Councill Noe Magistrats nor Councellors off burghs wer to be admitted to qualefie But such as wer actuall Magistrats or Councellors for the time Besides that the Lords of Privie Councill have allready approven off the said debarring Secundo That the Earle called him the said Captain Oswald a Lyar whyll as what the Earle said was bot a Just retortion which Oswald suppresses Tertio That the Earle refuised to let the said John Huttsones papper be read whill in the mean tyme the conceall the reason viz That it was unduely offered the tyme off visiting Quarto That the Earle refuised to subscryve the Minute of the Sederunt whyll they conceall the cause therof viz That the Minute was not ready befoir the Councill was adjourned nor was the forme of the minute that was affterwards brought to his Lordships any way Intilligible Intelligible Lykeas he the said Captain Oswald and Chairges the said Mr Robert Whytt with haveing attempted to make oppen the Councill house doors which is callumnious Beside that he concealls Mr Roberts openly professed errand viz That he was Bot to speak with Baillie Jaffray at the door and Lykewayes Concealls the violence aforedone to Mr Robert Secundo That the Earle and Mr Robert Did obleidge the toun Clerk to maculat and make up the minuts which is indeed ane notirious Callumney The minuts not being extended nor subscryved to this hour And in the mean tyme Captain Oswald Suppresses the reasone therof viz That he or his saids accomplices Did most unjustifiably withdraw and obstruct the Councill books as a forsaid wher through it is evident That the said Captain Oswald and his saids accomplices are guilty of acting masterfully and lykewayes of a manyfest insulting off a persone off eminence and highest Character in the Burgh and off makeing a most defamatorie accusation and Complaint befoir the saids Lords of her Majesties privie Councill By suppressing of truth and obtueding off Falsehoods att least that the saids defenders are actors or airt and pairt therof and the same being found proven by the testemonies of famous witnesses and by the Toun Councill books Which Robert Cunynghame the Toun Clerk ought to be ordained to exhibite For that end That the saids perseuars ought not only to be assolzied From the said groundless Complent But he the said Captain Oswald and his said accomplices ought to be sevearly punished as the Lords of Her Majesties privie Councill shall think fitt to the terror off others and Lykewayes they and ilk ane of them Ought to be Decerned in payment off […] In name of damnadges and expensses in the said matter And annent the chairge given to the saids Defenders To have Compeired personally Befoir the saids Lords of her Majesties privie Councill at a certain day bygone To have heard and seen such order and Course taken therannent as appertaines with Certefication And in Lyke manner Annent the principall Lyble or Letters raised Befoir the saids Lords off her Majesties privie Councill at the Instance off the said David Earle off Leven with Concourse of Sir James Steuart her Majesties Advocat for her highness intrest In the matter underwrittin Makeing Mention That wher By the Laws off this and all weell governed Nationes the Impious Curseing off and Insolent threatnings used towards others Especially persones of qualitie and off her Majesties Privie Councill more particularly when this abuse is Committed Dureing the delinquent is a Crime off a high nature and sevearly punishable Nevertheless It is of verity That James Oswald late Dean of Gild in Kirkcaldy Commonly Called Captain Oswald againest whom the Complainer hath depending befoir the privie Councill Seaverall processes For high misdemannours within the said Burgh Did upon the […] day of October Last or ane or other of the dayes of the said moneth or ane or other off the dayes off the moneth off November Instant most Insolently and villanously befoir seaverall witnesses presume to utter in a ruid and Inraged manner these or the lyke Base and Execrable words viz God Damn The Earle of Leven, God Damn him, And God Damn me, iff I be not about with him the First tyme I meet with him and yow may tell him or goe tell him soe much And Therfor The said Captain James Oswald ought to be sevearly punished conforme to his demerit in his person and goods to the terror of others to commit the lyke in tyme Comeing And anent The Chairge given to the said Captain James Oswald Defender To have Compeired personallie Befoir the Lords of Her Majesties privie Councill at ane certaine day bygone To hear and see such order and Course taken therannent as appertaines with certification And also Annent the lyble or Letters of Reconvention Raised befoir the saids Lords at the Instance of the said Captain James Oswald Dean off Gild of Kirkcaldy with Concourse off Her Majesties Advocat For her highness intrest in the matter underwrittin Mentioning That wher By the Laws off this and all other weell governed nationes The raising off groundless malicious and Calumnious processes and complaints Befoir the Lords off Her Majesties privie Councell againest any off her Majesties subjects to ther great vexation and expence As also the giveing of outragious and oprobrious Language to any who bear office in the Councill off her Majesties Burghs as Magistrats or otherwayes and that in Face off plain Councill purposely meet in obediance to her Majesties authoritie For choyseing Commissioners to her Majesties Parliament as also The Calumniating any of her forsaid subjects as impious Curses and threatners off her Majesties privie Councellors By ground less lybles raised therannent are Crymes of ane high nature and highly aggrevat When Committed by any of Her Majesties privie Councellors or any cloathes with her Majesties authoritie whose duety it is To protect her Subjects From all violence outrages and oppression Nevertheless It is of verity That David Earle of Leven Haveing upon the […] day of […] Conveened the Toun Councill off Kirkcaldie as their provest For Choyseing of a Commissioner to the ensueing parliament Did in face of plain Councill in ane outragious and wreathfull manner without any Just ground maltreat and abuse the persewar who was Dean of Gild of the said burgh By calling him Lyar and Rascall and such other opprobrious words and expressiones to the great discredit of her Majesties Government and Discurradgement of the Magistrats and Councellors of Her Burghs As alsoe the said David Earle of Leven has caused raise and execute seaverall processes against the perseuar and others concerning ther behaviour at the Election of the said Commissioner and consequent Election off the Magistrats and Toun Councill of the said Burgh at Michaelmess Last Notwithstanding ther procedour was altogither legall therby creating to them great trouble and Chairge and not satisfied with the forsaid groundless Complent execute againest the perseuar He hes again raised a new Calumnious Complent and proces against the said persewar wherin the said Earle Does grossly and Calumniously charge the perseuar with impious Curseing of and threatning of his Lordship a privie Councellor In soe Far as he Lybles That the persewar Did upon the […] day of […] Befoir witnesses presume in ane outragious and villanous manner to outter these or the Lyke Curse and exerable words viz God Damn the Earle of Leven, God damn him, and God Damn the persewar iff he should not be about with him Which words the Complainer never outtered nor exprest Bot only all that was spoke by the perseuar (notwithstanding off the Forsaid outragious provocationes) at any off the tymes Lybled wer words to this purpose That if the Earle should soe treat him againe He could not but have a just resentment off the same Which expressiones neither in themselves Far less considering the forsaid provocationes and maletreatment Given by the Earle can any Law or reason be made the ground of Such a Complaint or proces against the persewar Befoir the Lords of Her Majesties privie Councill For all which Crimes abovespecified The said Earle ought and should be punished in his person and goods to the example and terror off others To Committ the lyke in tyme Comeing And he Decerned in the soume of […] To the perseuar For his expensses and damnadges And Annent The Chairge given to the said Defender To have Compeired personally Befoir the said Lords of privie Councill at ane Certain day bygone To hear and see such order and Course taken therannent as appertains With certefication And sicklyke Annent the principall Lybell or Letters of Complaint Raised befoir the saids Lords at the instance off The said David Earle of Leven provest of the said Burgh of Kirkcaldy With Concourse off Her Majesties Advocat For her highness intrest in the matter underwrittin Makeing Mention That wher By the Act 87 Parliament 6th James 4th All Nighbours within burgh are expressly Dischairged to usurp againest the officers therof Ittem by the act 17th Parliament 18th James the 6th all meetings or assemblies within Burgh without licence off the Magistrats are Declaired Seditious and sevearly punishable and which sort of useurpationes and unwarrantable meetings are soe much the more hynous and deeply punishable when adventured upon by persones who by reason of ther disorderly practices and tumultuary proceedings within burgh Have allready rendered them selves not only obnoxious to deep sensurs Bot lykewayes Incapable of bearing chairge within the Burgh and annent which they stand arraigned befoir her Majesties privy Councill Which at least Dureing the dependance of such ane accusation and Complaint should have detterred the pairtes Complained off from so masterfully and Contumaciously continueing in the lyke practices Nevertheless It is of verity That albeit Captain James Oswald Dean of Gild of the said burgh of Kirkcaldy, John Durie, Henry Oswald, late Baillies, John Miller and Alexander Williamson pretended Councellors David Tod Charles Malcolm Thomas Oswald Elder Councellors with the pretended new Deacones followeing Viz James Pearson litster, John Hutson smith, David Deuar Taylzor, John Rutherfoord, Cordiner, and seaverall others of the Inhabitants of the said Burgh wer all of them under citation at the instance of the said Earle of Leven their provest upon a Complaint befoir her Majesties privie Councill For hearing themselves Decerned and Declaired incapable and otherwayes sevearly punished, for the Crimes, disorders usurpationes and others Lybled viz The said Henry Oswald John Durie and Alexander Williamson For their usurping the exercise off the office as Councellors For ther long and wilfull deserting of the same had never duely qualefieing off them selves And they and the saids James Oswald, David Tod, Charles Malcolme, Thomas Oswald, Elder and others for ther most unwarrantably obtruding of the pretended deacons aforsaid upon the Toun Councill And therby Disqueiting the pace disturbing her Majesties service that was then under consideration when these pretended Deacones Could not be admitted nor exerce soe long befoir the tyme of the annuall admission off Deacones and the saids very Deacones for ther Convocating meetings off ther respective trades and proceeding to Judge and fyne without being qualefied or admitted according to Law Which ipso facto rendered them incapable be the act of Parliament yet they the saids Captain James Oswald, and others formerly Complained off as said is And dureing the dependance off the said Complaint and shaking of all regaird be the forsaid Laws and acts of Parliament againest usurpation within burgh and unwarrantable meetings and Convocationes Did in conjunction with the other persones afftermentioned viz James Meldrume Collin Ralph, and James Thomson Burgess and Councellor in the said Burgh adventure upon ane new act of useurpatione and unwarrantable Convocation as said is In soe farr as He the said Captain James Oswald Did upon the fyfth off October instant at his owen hand And in his own name and authoritie Call the Councill off the said Burgh by ordering the Bell to ring and the Toun officers to warn the Councellors and he and the above named persones pretended Councellors with the said James Meldrume, Collin Ralph, and James Thomson makeing up in whole Eleven which is the precise quorum off the Councill Haveing accordingly meet They Did proceed to the Election off a new Councill as followes viz The saids Henry Oswald provest; John Durie baillie, John Miller merchant Baillie James Oswald Dean of Gild, Andrew Watson, David Tod, Walter Key, David Sibbald, Andrew Heagie, James Jaffray For seamen Councellors The Earle of Leven, John Whytt, John Miller, James Thomson, Charles Malcolme William Justice, Alexander Williamson Thomas Ireland as merchant Councellors, James Dick, William Foord, and William Wallace as trades Councellors And then the saids pretended old and seaveralls of the new Councill Togither with the saids pretended new Deacones Did proceed and Elect Henry Oswald to be their provest, and the said John Durie and John Miller merchant to be ther Baillies and the said Charles Malcolme ther Thesaurer And thereafter to be Deacone Conveener Whill in the mean time The said Captain James Oswald and other persones above complained upon had noe manner off warrant From the persewar as provest of the burgh for ther soe meeting and takeing upon them To exerce the office off the Magistrats Bot on the Conterar and in respect of their saids former usurpationes and incapacities That therby they brought upon themselves and the present actually depending complaint againest the defenders therannent The saids provest neither Did nor could warrant or Countinance such inhabite and incapable persones in ther useurpationes Specially When the Lords of her Majesties privie Councill upon the said Earle of Levens Representation hade already approven off his debarring off the said Henry Oswald, and John Durie as incapable soe that it is manyfest the haill persones above Complained upon are guilty as actors at least airt and pairt off the forsaid Act off Mannyfest useurpation and seditious Convocation and meeting within burgh and being found proven againest them by the Toun Councill Books to be exhibited by Robert Cunynghame toun Clerk as weell as by other evidences and testemonies of famous witnesses as shall accord They and ilk ane off them ought to be not only punished in their persones and Estates as the said Lords of her Majesties privie Councill shall think fit But lyke wayes Declaired uncapable of all office bearing within the said burgh And the forsaid pretended Election off Magistrats and others made by them ought to be Declaired void and Null and a new Election ordained to be made by such as are uncontraverted members of the old Councill with power to them to substitute burgesses as proxies in the roome of such as are Deprived or shall be absent and soe to proceed according to the Custome off the Burgh in all points. And annent The Chairge Given to the saids Deffenders To have Compeired personally Befoir the Lords of her Majesties privie Councill at ane certaine day bygone To hear and see such order and Course taken therannent as appertaines With certification as in the haill forsaids Lybells or Letters Boeth principalls and Reconvention raised in the said matter and Executiones of the same at more length is contained and also annent The Aditionall Lyble at the Instance off the said Earle of Leven Mentioning That the Earle of Leven Doeth Farder insist againest James Thomson late Theasurer off Kirkcaldy upon this ground that he took a bribe in money or money worth or had promise off good Deed From Captain Oswald or some off his accomplices for which he engadged to voit as they pleased in the Election off magistrats of Kirkcaldy ought not only to be Declaired null upon this and the other grounds above lybled Bot also It ought to be Declaired That the said James Thomson Did therby Forfit and loss his office as Theasurer and Councellor and he Furder punished as the Lords off Councill shall think fit Which haill Lybles abovewrittin Being upon the Tuelf of November Last by past Called in presence of the saids Lords off her Majesties privie Councill And the Earle of Melvill⁷ Lord president off privie Councill Being Father to the persewer Declyned himself Conforme to the act off parliament and the Councill voited the Earle of Marr preces And the persewars in the principall Lybles Who are Defenders in the Reconvention Compeiring personally at the Barr with Sir James Steuart Her Majesties Advocat, Mr David Forbes, Mr Francis Grant and Mr Dougall Steuart Ther Advocats And the said James Oswald with the rest of the Deffenders in the principall Lybles Compearing also personally at the Barr with Sir Walter Pringall, Sir John Erskine, Mr James Hamiltoune and Mr James Morrisone ther Advocats The principall Lybles at the Instance off the said David Earle of Leven with answers made therto for the said James Oswald and the other Defenders and the Lybles of Reconvention at the Instance of the said James Oswald and the other perseuars of the Reconvention Against David Earle of Leven and Mr Robert Whytt off Bannochie and the Reconvention at the instance of the saids David Earle of Leven and Mr Robert Whytt againest the said James Oswald and the rest of the Defenders Being all read and boeth pairtes procurators Being fully heard at the Barr The Councill admitts the samen to probation Reserving the relivancie of the haill Lybles to the Councill to be Considered by them at advyseing and the witnesses for boeth pairtes Being called and Compeiring at the Barr as marked in the Roll Did make faith Remitted to a Committee off their oun number And Recommends to the said Committee To meet the morrow morning at ten of the clock in the fore noon And Reserves all objectiones againest the witnesses to be proponed and discust befoir the said Committee and Declaires any three therof a quorum And Grants Commission to the said Committee or quorum therof To take the oath and Deposition of Captain William Baillie of Hardingtoun for present sick at his Chamber in Edinburgh upon the […] day of […] and that Intimation therof be made to the defenders to the effect they mat attend and be present and Recommends to the Committee to report the same to the Councill with ther first Conveeniencie And grants Letters of Second dilligence by Captain againest the witnesses absent as marked in the roll to the day of […] Conforme wherunto the said Committee haveing seaverall times meet And boeth pairtes haveing adduced befoir them diverse and sundrie famous witnesses for proveing of ther respective Lybles Who being by the said Committee also solemnly sworn purged of partiall Councill examined and Interrogat upon the respective Lybles and Interrogators given in by boeth pairtes Deponed in manner mentioned in ther respective oaths and Depositiones as the samen Extant in proces bears And the saids Lords of Her Majesties privie Councill Haveing upon the Tuenty sixth day of november Last proceeded to advyse the points affter mentioned off the mutuall processes betuixt the said Earle of Leven and Captain Oswald and others in Kirkcaldy And they haveing heard and considered the Depositiones off the witnesses adduced by boeth pairtes as the saids points affermentioned in the saids processes Read in ther presence and haveing allwayes Considered the Lybells at the instance of the said David Earle of Leven against Captain Oswald and others and the Lybells of Reconvention et e Contra as to the saids points above and affter specified and the Informationes for boeth pairtes Being read in ther presence The saids Lords of Her Majesties privie Councill Have found and heirby Finds it accknowledged and evidently proven By the Councill books of the said Burgh of Kirkcaldy produced in the Clerks hands That Henry Oswald, John Durie and Alexander Williamson wer present in Councill at the Election off the Magistrats of the said Burgh and wer three off the Eleven that made up the Quorum And Therfor The saids Lords Have Found and Hereby Finds That ther was noe Laufull quorum at the said Election off Magistrats and Councill off the said Burgh of Kirkcaldie at Michaellmes last And Therfore Have Found and Declaired the Election off the Magistracie of the said burgh of Kirkcaldy Made upon the […] day of […] Last By past Null and Void, In respect The saids Henry Oswald, John Durie, and Alexander Williamson wer Three of the Eleven that made up the Quorum and had not accepted off ther offices as Councellors of the said Burgh and qualefied themselves to her Majestie for Ten moneths preceeding the said Election And Therafter It goeing to the vote Appoint a new Day For the Election off the Magistracie and Councill off the said Burgh of Kirkcaldy or delay the samen It was Carried appoint a new day And Therfore The saids Lords of Her Majesties privie Councill Have Appointed and heirby Appoints, Weddensday Come Eight dayes Being the nynth of December nixt to come To be the day for the Election off the Magistracie and Councellors off the said Burgh of Kirkcaldy att the ordinary tyme of the day and affter the ordinary manner and way accustomed For the Election off the Magistracie within the said Burgh off Kirkcaldy And appoints The magistrats and Councill off the said Burgh off Kirkcaldy To be Elected and Choysen To serve untill the nixt ordinary Election upon the day Forsaid Therafter The Lords off Her Majesties privie Councill Haveing this day againe proceeded to advyse the haill remaining points off the Forsaid Mutuall processes Betuixt the said David Earle of Leven and Captain James Oswald and others in Kirkcaldy and the Lybells off Reconvention at ther Instance againest the Earle and haveing heard Informationes for both pairtes, read in ther presence And haveing heard the Depositiones off the witnesses adduced for boeth pairtes in the saids processes lykewayes read in ther presence And haveing Fully Considered the samen The saids Lords of Her Majesties privie Councill Have Incapacitat and Declaired the Eight persones followeing To Witt Captain James Oswald Dean of Gild, James Thomson Theasurer, John Miller, Charles Malcolme James Meldrume, Thomas Oswald, David Tod, and Collin Ralp all Councellors Who wer present at the Election of the Magistrats of the said Burgh off Kirkcaldy and made up the Quorum off Eleven with the three Who hade not qualefied themselves Incapable to Elect or haveing any vote in the Choyseing off the Magistrats and Councellors of the said Burgh of Kirkcaldy upon the Nynth day of December Instant Being the day allready appointed be the saids Lords for Electing of the Magistrats and Councellors off the said Burgh Conforme to ane ordinance of the Councill formerly past For that effect And the saids Lords of her Majesties Privie Councill Have appointed and authorized The remaining Magistrats and Councellors off the said Burgh not declaired incapable as said is To make choyse of and assume to them selves honest and substantious burgesses as procees in the roome off the Three Who Did not qualifie themselves and off the other Eight therby Declaired Incapable That they may proceed To elect the new Councill and that therafter The said old and new Councill Togither with the Deacones for the tyme may proceed to the Election of the Magistrats and other officers off the Burgh according to the Decreit Arbitrall and Constant Custome off the Burgh Who being soe elected upon the day Forsaid are heirby Impowered and authorized To officiat and exerce ther respective offices within the said Burgh untill the usuall Election at Michaellmass nixt Syklyke and in the same manner as iff they had been duely elected and choysen at Michaellmess Last For that effect And the saids Lords off Her Majesties privie Councill Haveing Considered the Fourth Lyble at the said Earls Instance against the said Captain Oswald Concerning the opprobrious words and expressiones uttered by the said Captain Oswald againest the said Earle and the Reconvention at the Captains instance againest his Lordships And haveing Considered the Depositiones of the witnesses adduced for boeth pairtes as to that matter The saids Lords have ordained and hereby ordaine’s The said Captain to be reprimanded in face off Councill and Crave pardon to the board and the said David Earle of Leven upon his knees and accordingly the said Captain being called in with open doors had the said sentance intimat to him And was by the Earle of Lauderdale as preceedent for the tyme openly reprimanded and rebucked For his unduetyfull and opprobrious languadge and Expressiones uttered by him against the said Earle And Therafter The said Captain upon his knees Did first humblie begg pardon off the board and then off the said David Earle of Leven For his said Insolence and opprobrious Expressiones againest his Lordship In obediance to the said sentance Therafter The saids Lords haveing Considered the Lyble In soe farr as concerned Robert Cunynghame Toun Clerk of the said Burgh off Kirkcaldy with the Book of Minuts under his hand produced By him and the Depositiones off the witnesses adduced For boeth pairtes annent that pairt of the proces The saids Lords have Assolzied and hereby Assoylzies The said Robert Cunynghame Clerk From the said proces and haill points therof Therafter The saids Lords Haveing Considered the haill remaining points and articles of the saids processes boeth principall and reconvention hinc inde with the depositiones off the witnesses adduced for boeth pairtes for proveing therof The saids Lords of her Majesties privie Councill Have Assolzied and heirby Assolyies The haill other persones Defenders either in the principall processes or Reconvention hinc inde From the haill heads and articles therof And Declaires them Free therof and quytte therfrae in all tyme Comeing.