Warrant, 21 December 1699, Edinburgh

Att Edinburgh the sixtein day of November J^aj vi^c Nyntie Nyne years

D1699/11/9

D1699/11/9¹

Decreet

Decreet The Magistrats of Edinburgh Against Monteith

Anent the principall lybell or Letters of Complaint purchaist and raised before the Lords of his Majesties privy Councill at the instance of George Home of Kello Lord Provest of Edinburgh Patrick Johnstone Mr Hary Fergusone Adam Brown and Robert Foster present Baillies James McClurge Dean of Gild and George Lawsone present Thesaurer of the said burgh for themselves and in name of the Committie therof with concourse of Sir James Stewart his Majesties advocat for his highnes intrest in the Matter underwryten Against Alexander Monteith Chirurgeon and burges of the said burgh Making Mention That wher by the Lawes of this and all other weell governed realmes persones Liveing in Society and under authority As Burgesses and Nighbours within burghs Royall ought to behave themselves queitly and orderly with due Submission to the magistrats and governments therof and ² ought also to be carefull to promote the publict good and peace of the place, And to be nowayes instrumentall to the moveing of Muttinie disturbance or Seditione within the same To which they are also bound by their oath as burgesses Likeas by the act of parliament James 3d parliament 14 Caput 108 It is Statute that the electione of officers within burgh be made without partiality or Mastership whilk is the undoeing of Burrowes wher mastership comes, Likeas by the act of parliament James 6th Caput 87 It is statute and ordained That no nighbour craftsmen burgesses nor indwallers in the burgh usurp against the authority of the kings officers Chosen in the burgh, so that for any burges or indwaller in any burgh to cary things by mastership against the pace and government therof and to offer to Stirr up contempts disobedience and muttiny against the Magistrats or to usurp against their authority to the hinderence of the administratione of the Government of the said burgh to the raising of factione and Seditione within the Same, are Crymes of ane high nature and ought to be severly punished, Nevertheless It is of verity That Alexander Monteith Chirurgeon and burges of the said burgh hath transgressed the forsaids Lawes and acts of parliament In so farr as that the burgh of Edinburgh the Capitall City of the kingdome being under a weell setled Constitutione and government by the decreet arbitrall pronunced by King James Sixt as oversman therin called the Sett Wherby the intrests of merchants and crafts and all questiones touching the government of the said burgh were most happily determined, and which hath ever since the pronounceing therof been not only frequently ratified in parliament Bot Constantly observed yet Notwithstanding therof when after the last Micheallmiss electione of the ordinary magistrats of the said burgh The said magistrats with the ³ Councill of the said burgh did one the fourth day of October Last proceed to Choise the baillies for Leith and the Cannogate in the ordinary maner The said Alexander Monteith being Choisen one of the six ordinary deacons upon the Councill and appointed by the Crafts to be their Conveener took upon him at his oun hand to Convocat and call the other eight extraordinary Deacons which by the sett are only to be Called by the magistrats and Councill for the Occasiones therin expressed wherof the electione was never Judged to be one, And haveing in the said meetting of Councill very long and warmly Contended, That the said Eight Extraordinary Deacons ought to have vote in the forsaid electione He when over ruled in that matter not only protested against the electione made by the Magistrats and Councill of the said Baillies of Leith and Cannogate as not Lawfullie and duely made for want of the votes of the said extraordinaries and which protestatione is not here quarrelled Bot first he rose and departed out of the Councill and drew all the crafts upon the Councill after him, and then after that the magistrats and Councill of the burgh hade elected the forsaid Baillies when the magistrats went as use is to the Tolbooth of the Cannogate for the declair and instale the baillies that were Chosen ther to officiat, The said Alexander Followed them doune to the said Court of the Cannogate and ther at the said Court being the head Court of that regallity and presence of the Saids magistrats of Edinburgh and barron and burrow baillies and thesaurer of the Cannogate and other members of Court and many of the vassells and others therin conveened after prayers said and that the said Lord Provest hade publictly declared That George Warrander late Baillie of Edinburgh was elected Barron Bailly of the Cannogate, The said Alexander Monteith Represented, That the Said Electione as being made without the vote of the extraordinaries was only made by a few of the Councill against which he for himself, and in name of the haill Deacons of Edinburgh That were present hade protested in the Councill of Edinburgh That the Same electione might be repute void as Contrary to the Sett, And ther he for himself and in name of the deacons then present with him in the said Court of the Cannogate of new protested That the said George Warrander might not be owned or obeyed by the inhabitants of the Cannogate or others as Barron Baillie therof In regaird he was not Legally ellected and that ther was not a Sufficient number of the Town Councill then present to authorize him Wherupon Hew Cunninghame late baillie of the said burgh of Edinburgh Protested in the Contrary against the protestation and alse against the said Alexander Monteith maker therof, as a disturber of the peace and as ane interupter of the Lord Provest Magistrats and Councill of Edinburgh and these ellected by them to baillies of the Cannogate in the executione of their offices As instruments taken therupon by the said Alexander himself in the hands of James Hamiltone Clerk of the Cannogate readie to be produced testifie, Which Second protestatione taken by the said Alexander in the high Court of the Cannogate as said is was evidently out of all order and tending plainly to Stirr up the people of the Cannogate and others concerned to muttiny and disobedience It being most obvious, That albeit the first protestatione taken by the said Alexander in the Toune Councill house of Edinburgh might and was in effect allowed, yet the Second protestatione after the forsaid electione was determined and Sentance theron past, and evidently against the execution of the Same was so much the Raither down right Muttinous and a manifast and masterfull Usurpatione against the Magistrats of the burgh of the burgh⁴ and tending to no Less visibly to creat disturbance and Seditione within the Same Nor did the said Alexander rest after the said unwarrantable and factious behaviour Bot when upon the […] day of October therafter the magistrats and toune Councill were proceeding to Choise ane old provest and old Thesaurer in the place of the present provest and thesaurer continued for the second year, And the said Alexander againe did Start a new question Viz That the extraordinary Should also be called to that electione which was never before practised and became four of the ordinarie Deacons did differ from him in his vote Such contentione arose throw his ill example and influence That Thomas Dunlope late deacon of the Chirurgeons did at the Cross of Edinburgh Challenge John Lethem present deacon of the Hamermen for being one of the four dissenters and spitt in his face on that account Item the said Alexander proceeding still in his contentious controlling and disturbing maner and fore seeing what troubles and vexations he was resolved to Creat to the magistrats and Councill did very officiously and Unwarrantably goe to the present toune Thesaurer and took instruments against him That he Should expend nothing of the Toun revenue either in the prosecutione or defence of actiones or for any other occasione above Twenty pounds Scots Except by Warrand of the extraordinary deacons as weell as of the magistrats and ordinarie Councill, Which was plainly to render the magistracie and administratione of the burgh useless and Impractisable and to Subject the magistrats and toune Councill to a vexatious and perpetuall controll in all their affairs, And this he did that Notwithstanding he knowes perfectly that the Thesaurers accompts are constantly examined and approven at the sight and with the concurrence of the extraordinaries Conforme to the sett wher crafts are allowed to except and object before the thesaurer can be discharged so that the intrest and priviledge of the crafts Is therby Sufficiently Salved, And Farder the said Alexander Is in his way and maner So Contentious Masterfull and Factious, That he not only raises and Continues needless and endless debates in Councill upon allmost everie Occasione to the great hinderance of the due administratione of the affairs and government of the burgh Bot when the yearly Custumary roup of the toun Comon good Did recurr the last of october or Halloweven last, wher the provest baillies and Councill were solemnly mett as use is to direct and Judge in the roup, The said Alexander took upon himself without Leave asked and given not only to Speak and direct the persones present their conveened to offer Bot did presumpteously controll the maner of rouping that hath been Immemorially practised, and did once and againe give furth and intimate new rules off offering at his oun pleasure, And that not withstanding that the provest did as often repremand and discharge him to doe the same By all which it is manifast That the forsaid Alexander hath and doeth behave himself masterfully factiously and seditiously against the authority and government of the Magistrats and Councill of the burgh and to the great disqueit and disturbance of the whole inhabitants as weell Crafts as Merchants, and to the manifast indangering of the publict peace of the place, Specially Since its weell knowen, That hitherto the Magistrats, merchants and Crafts have Lived togither in great unity and concord Which transgressions and misdemeanors being proven against the said Alexander He ought therfore to be punished in his persone and goods as the Lords of his majesties privy Councill Shall See Cause to the example and terror of others to Committ the Like in time comeing And Anent the Charge given to the said defender to have Compeared before the saids Lords of his majesties privy Councill personally at ane Certaine day To have answered to the forsaid Complaint and to have heard and seen such order and Course taken theranent as the saids Lords of privy Councill shall think fitt; as in the principall lybell or Letters of Complaint raised before the saids Lords of his majesties privy Councill at more Length is Contained, And siklike Anent the Lybell of Reconventione purchast and raised before the Lords of his Majesties privy Councill at the instance of the said Alexander Monteith (therin designed present deacon of the Chirurgeons and deacon Conveener of Edinburgh) With concourse of Sir James Stewart his majesties advocat for his highnes intrest in the matter underwrittin Against the said Lord provest baillies Dean of Gild and thesaurer of the Said burgh in Edinburgh Making Mention That wheras the raising of Calumnies and groundles Lybells out of pick and prejudice against any of his Majesties Subjects without any foundatione of Law, Bot only of designe to discouradge them from dischargeing and acting in that trust their severall Imployments and offices calls them to Is a Crime of a very high nature and is severly punishable by the Lawes of this and all other weell governed nationes, That true it is That George Hame of Kello present Lord Provest of Edinburgh Patrick Johnstoune Mr Hary Fergusone, Adam Brown and Robert Foster Baillies James Mcclurge Dean of Gild and George Lawsone thesaurer of the said burgh without any ground or Shaddou of Law has raised a most groundles and Calumnious Lybell before the Lords of privy Councill against the said pursueras if at his oun hand being Chosen one of the six ordinary Deacons upon the Councill and appointed by the Crafts to be their Conveener, He did Convocat and call the other Eight extraordinary Deacons to be present at the electione of the baillies of Leith and Cannogate, which extraordinary Deacons are called by the Councill for the Occasiones exprest in the sett, wherof the forsaid electione was never Judged to be one, And at the said meetting, He Contended that the said Eight extraordinary deacons ought to have a vote in the electione of the saids baillies of Leith and Cannogate and being over rulled in that matter, He not only protested against the said electione as not duely and Lawfullie made bot he departed out of the Councill and drew all the crafts upon the Councill with him, and after that the magistrats and Councill of the burgh hade elected the saids baillies, and that the saids magistrats did goe to the Tolbooth of the Cannogate to Declare and instale the Baillies that were therin to officiat, The said Alexander Monteith pursuer did follow them down, and in presence of the saids Magistrats of Edinburgh and severall others after the Lord provest publictly declaired that George Warrander was elected barron baillie of the Cannogate, The said Alexander Monteith Represented That the said Election being made without the vote of the extraordinars and was only made by a few of the said Councill, He for himself And in name of the haill deacons of Edinburgh hade protested in the Councill of Edinburgh, That the same might be repute void as contrair to the sett, And therfore He for himself and in name of the other Deacons ther present with him in the said Court of the Cannogate of new protested That the said George Warrander might not be armed or obeyed by the inhabitants and others as barron Baillie of the Cannogate, In Regaird he was not Lawfullie elected, and that ther was not a sufficient number of the Town Councill present to authorize him and alse that the said Alexander Monteith pursuer did upon the […] day of October therafter when the Magistrats and toune Councill were proceeding to Choise ane old provest and ane old Thesaurer In place of the present provest and Thesaurer Continued Start a new question, That the extraordinars should be called to that Electione, and because four of the ordinary deacons did differ from him in his vote such a Contentione rose by his contentione and influence, That Thomas Dunlape late deacon of the Chirurgeons did at the Cross of Edinburgh Spitt in John Lechem present deacon of the Hamermen his face ane of the four dissenters on that account, as also other deacons did quarrell and threaten their bretheren on the same account, And Sicklike he very officiously and unwarrantably did goe to the present and took instruments against him, That he Should expend nothing of the touns revenue either in prosecutione or defence of actions or for any other occasion above Twenty pounds Scots without or warrand of the extraordinary Deacons as weell as the magistrats and Councill And alse at the Last roup of the tounes good which was in October Last or Hallow even when the provest baillies and Councill were solemnly mett as use is to direct Judges in the roup The said Alexander Monteith pursuer took upon himself without Leave asked and given not only to Speak and direct the persones present their Conveened to offer Bot did presumpteously controll the maner of rouping That hath been Immemorially practised and did alse and againe give furth new rules of rouping at his own pleasure Notwithstanding that the Lord provest Did alse often repremand and discharge him to doe the Same By which they doe subsume that the forsaids acts of the said Alexander Monteith pursuer was seditious and muttinous and that he did be have himself masterfully factiously and Seditiously against the authoritie and government of the magistrats of the burgh to the great disqueit and disturbance therof Wheras ther was nothing done by the said Alexander Monteith pursuer bot what he was warranted to doe, and he was so farr from doeing any of these things out of Seditious and factious humour or factiously or seditiously Bot what he did was in the Calmest and queitest maner could be done, and only by way of Civill interuptione, and for preserving⁵ the rights and priviledges of the Crafts, Which his trust oblidged him to, He being one of the Six deacons Chosen to be in the Councill and present Deacon Conveener, And it not only being the Custome severall years bygone, That the extraordinary Deacons Should have a vote in the Choising and electing the baillies of Leith Cannogate etc Bot in the Last electione of the saids Baillies The vote of the extraordinary deacons was requyred to the Choising of the Baillies of Leith and at the Choising of the Barron Baillie of the Cannogate, The Provest did most arbitrary (Finding himself disappointed of the person that he designed) Stopt calling of the votes of the extraordinary Deacons, Though he hade acquiesced to the Same in the vote Immediatly preceeding at the election and Choiseing of the barron and watter Baillies of Leith, which was ane arbitrary act of the provest and which he could not have done by himself without the Consent and vote of the whole Councill which he never requyred or desyred, and the said pursuer Finding that the provest with these of the Councill that went allongst with him in his his designe, In takeing from the Deacons of Crafts their right and vote of electione of the Baillie of the Cannogate were goeing to install the said George Warrander late Baillie in that office, Thought himself Oblidged for the preservatione of the rights of the saids crafts and as one of the Councill to goe down and protest against his unwarrantable and Illegall electione and his installment in the said office For as he was Illegally elected without the vote of the extraordinary Deacons so the installment was Illegall, For at the installment of the barron Baillies of Leith Cannogate etc Ther is either a Commission from the whole Councill for that effect, Or other wayes threttein which makes a quorum are present, Wheras ther was only twelue of the Councill and the pursuer was so farr from doeing the same in a Muttinous factious or seditious way, That albeit the other deacons offered to goe allongst with him and be witnesses to the said protest, yet he refused to doe the same and told he would only goe himself and did it with all the moderatione and discreatione that could be desyred or expected from any persone, and it were a strange thing if the takeing of a protestatione should infarr a Cryme, That being trium in Jure Licet protestare, and it is most Calumnious to alleadge That Because four of the deacons disented from the said Thomas Dunlope did spitt in John Lechems face at the Cross of Edinburgh For altho that may be a Cryme in Deacon Dunlope yet it can never inferr a Cryme against the perseuer, Bot it is most Calumnious to alleadge that the quarrell betiwxt them was upon that account Bot upon a privat quarrell betwixt them selves and the takeing instruments against the Thesaurer was very Custumary and ordinary And has been frequently practised to Obviat unnecessary Charges and expensses frequently bestowed, and wared upon groundles and Calumnious processes wherof no profit nor advantage can redound to the toune, Bot are only raised and fomented by persons to satisfie and please their oun pickish humors to cary on their own privat designes and intrest and the instrument is warranted and conforme the Decreet arbitrall and sett discharging any part of the Towns Comon good above the value of Twenty pounds Scots to be disposed upon without the warrand and Consent of the Councill of Edinburgh and extraordinary Deacons, And alse the said pursuer being a member of the Councill of Edinburgh, Which did oblidge him to attend at the roups, He hade as good right to give his oppinion in the maner and proceeding as to the rules of the roup as any other ther, and if ther were any bad customes that hade creept in as to the maner of Rouping the said Towns Comon good, His right of Sitting ther and being one of the Setters of the said Comon good gave him priviledge and Libertie to argue and reclaime against the Same And the provests repremanding and discharging him to doe the same was arbitrary unwarrantable and Illegall, He haveing no greater priviledge then others Bot only to preseed and could act nothing of himself Bot with the advyse and Consent of the Councill wherof the said pursewar is a member By all which It appears how groundless and Calumnious the forsaid lybell is raised out of meer Malice and picke to molest and trouble the said pursuer, and to discouradge him in the faithfull discharge of his duty and trust reposed in him as present deacon Conveener and one of the members of the Town Councill, And Therfore the forsaid defenders ought to be punished in ther persons and goods To the terror and example of others to Committ the Like in time comeing And Anent the Charge given to the saids Lords provest dean of Gild and thesaurer of the said burgh defenders To have Compeared this day before the saids Lords of his majesties privy Councill To have answered to the ground of the abovewryten Complaint And to have heard and seen such order and Course taken theranent as appartaines, As in the said lybell of reconvention with the executiones therof at more Length is Contained, Which Two Lybells being this day called in presence of the saids Lords of his Majesties privy Councill, And the said Lord Provest Baillies Dean of Gild and Thesaurer of the said burgh of Edinburgh pursuers of the principall Lybell and defenders in the reconvention Compearing all personally with Sir James Stewart his Majesties advocat and Sir Patrick and Androw Homes, Mr David Cuninghame, James Hamilton of Bangowr and Mr William Calderwood their advocats Who for the saids magistrats produced in pretence of the saids Lords ane instrument Or protest taken by the said Alexander Monteith defender In the principall Cause Whereby he for himself and in name of the Deacons that were present with him protested that George Warrander elected Baron baillie to the Cannogate might not be owned nor obeyed by the inhabitants or others within the Jurisdictione of the Cannogate In regaird he was not legally elected as is mentioned in the instrument, and that ther was not a Sufficient Councill then present to authorize him Which instrument is under the subscription of James Hamilton Nottar publict and Clerk of the Cannogate and is dated the fourth of October last And the said Alexander Monteith defender in the principall Lybell And pursuer in the reconvention Compearing also personally with Mr Thomas Skeen and Mr David Dalrymple his advocats, The Advocats for the defenders in the principall Course Gave in the answers following Against the principall Lybell Viz That ther is a lybell raised Against the said Alexander in name of the saids magistrats for themselves and in name of the Councill and Community of Edinburgh wherin he is accused of disorder and Seditione and of midling in the electione by partiallity and mastership and usurping against the authority of the kings officers within burgh In so farr as after the last electione on the fourth of october Last when the magistrats proceeded to choise the baillies of Leith and Cannogate, He called the extraordinary Deacons which are only to be called be the Magistrats and Councill, and after that he hade warinly Contended that they ought to have a vote in the forsaid electione, and when he was over-rulled he not only protested against the Illegallity of the electione (which protestation even the Lybellers doe not quarrell) Bot first he and the other deacons left the Councill, and when the magistrats went down to the Cannogate Tolbooth to place the Baillie The said Alexander Followed them, and in presence of the head Court of the Cannogate protested against the magistrats and placeing of the Baillies as null for want of the votes of the extraordinary Deacons, And that the said baillie of the Cannogate Ought not to be owned by the inhabitants as such The raither Because ther was not a Sufficient number of the Town Councill to Authorize him, which tended manifastly to Muttiny and Sedition, after the first protestatione hade been allowed taken by the said Alexander in the Councill house of Edinburgh, and farder the said Alexander when the magistrats proceeded to Choise the old provest and old Thesaurer in place of the present provest and Thesaurer continued for this year the said Deacon Conveener, The said Deacon Conveener did Start a new question pretending that the extraordinary deacons ought to have a vote in that electione never before practised and by his ill example and influence the four deacons who differed from him in the vote upon that matter were threatned by their breethren upon That account And particularly Thomas Dunlope deacon of the Chirurgeons did spitt in the face of Lechem deacon of the Hammermen for that reasone and the said Alexander is farder accused for takeing Instruments against the Town Thesaurer protesting that he should Spend non of the Touns revenues in prosecuteing or defending of actions or for any other occasion above Twenty pounds Scots Except by warrant of the extraordinary Deacons, therby to render the magistracy useless, and notwithstanding he perfectly knowes That the Thesaurers accompts are examined and approven at the sight and with the Concurrance of the extraordinary Deacons and that the said Alexander is so Contentious and Masterfull that he creats endless and needles debates in Councill, and the time of the publict roup of the Towns Comon good The said Alexander took upon him to speak without Leave asked and when he was discharged by the provest, and prescribed rules for the roup and quarrelled the maner of procedor albeit it was established by Immemoriall Custome Before the said Alexander make any particular answer to the Lybell, He Craves Leave to represent That both in his intentions and actions, he has Studied to witnes his Zeall for the comon good of the Town, and in the particulars Charged upon him, he conceives he has behaved with great Moderation, It is true and the Lybell in a maner bears it, That his protesting against the method of the Thesaurer expending of the publict money, and his adhereing to the priviledges of the incorporation has procured him ill will, Bot when the Saids Lords shall Consider, That the sett has established the priviledges of the Trades in Councill and Elections for the Comon good of the burgh, and has Secluded them from the office of Magistracy plainly to this intent, That they might be Cheques against incroachments upon the liberties of the Comon good, It will not appear Strange that the said Alexander Monteith being Deacon Conveener Should have protested in the matters aftermentioned wherin he was very farr from being headstrong or unsatisfieable, Bot the difference at first being referred by both parties to the Lord president, and the Lord advocat He did Chearfully meett with a ⁶ resolution to have accepted of any reasonable termes, and it wes hoped That the saids Lords would witnes that it was not his fault That the difference was not adjusted and after all although he conceives He might with much better reason have raised a Councill Lybell Concludeing punishment and repairatione yet ther has been only a Declarator before the Lords of Session for asserting the priviledge of the Trades of Edinburgh And Likewayes for clearing the incroachments by which the Comunity Suffer, nor did the said Alexander think upon any Complaint untill he was forced to doe it by way of reconventione and self defence, This being premised It is answered to the lybell And primo Wheras the Lybell is att the instance of the Magistrats in name of the Councill and Comunitie It is most unwarrantable for the the⁷ Magistrats have particular offices in toune and have precediencie and Jurisdictione, yet the magistrats have no title nor authoritie to raise Complaints against Members Specially of the toune Councill without ane act of the Towne Councill Warranting Such a Complaint which is the raither to be remarked Because it is one evidence that the Complaint proceeds from partiallity and unjust malice of a few persones against the defender Secundo Wheras it is alledged That the said Alexander did Convocat the deacons extraordinary at his own hand upon the fourth of October, To⁸ The electione of the Baillies of Leith and Cannogate albeit by the Sett, The extraordinary deacons be only to be called by the Magistrats, It is answered That the alledgance is Calumnious And although upon extraordinary occasiones The extraordinary Deacons uses to be called by the Magistrats yet at the ordinary time of the annuall electione the whole deacons attend without any call either from the deacon Conveener or magistrats as is their priviledge and their attendance at the time Lybelled was Sufficiently authorized as will instantly appear For Tertio Wheras it is alleadged That the said Alexander Monteith did warmly debate the intrest of the deacons to vote in the electione of the Baillies of Leith and Cannogate, And being over ruled he did not only protest bot he and the deacons did disorderly with⁹ draw from the Councill, Its answered, That the matter is not fairly stated, and the treuth is that the provest haveing opposed the extraordinary Deacons voteing in the election of the baillies of Leith and Cannogate etc The matter was reasoned in Councill and the practise of severall preceeding years admitting of the extraordinary Deacons in that caice, was Reported by a Committie who have been appointed to examine that matter, and therupon the extraordinaries were admitted of Comon Consent, and actually voted the electione of the baillie of Leith after which the Councill without any new debate as to that matter haveing proceeded to the election of the baillie of the Cannogat and the Clerk haveing come to call the first of the extraordinary deacons, The provest at that moment Stopped the vote without any warrand from the Councill So that in all appearance the extraordinary Deacons were excluded not so much for want of priviledge as for want of good Luck to please in the former vote, Whither the perswears have good title to accuse the defender of partiallity and mastership may easily be decerned; That the defender did withdraw can be no ground of Complaint and the Lords of Councill will remember That in anno J^aj vi^c nyntie thrie In the questions about electione, Ther was another kynd of withdrawing acknowledged, and it is not unusuall in any Court If a member is not satisfied, to withdraw provideing their remaine a quorum to act which was never hitherto construed to be Seditious; In this caice it ought Least of all to be thought Seditious Because primo This was a question of priviledge That concerned the whole incorporations and therfore they might Safely withdraw being denyed That which they conceived was their priviledge, and wherof they were in possessione That very day and hour Secundo the Councill was not otherwayes fully constitute and upon these grounds and many others ther is a declaratur raised and execute before the Lords of Session, Long before the intenting of this lybell Quarto Wheras the Lybell Bears that the Said Alexander Monteith did follow the magistrats down to the Cannogate and ther protested of new That the election was null and that Baillie Warrander elected Should not be obeyed which is urged as a might evidence of Sedition Bot the true matter of Fact Is this by the Constant forme after the electione of the baillie of the Cannogate, And the magistrats and Councill goe down to the Cannogate Tolbooth to place the said Baillie And the deacon Conveener being one of the Councill and being present did renew his protestatione least he should seem to acquisce But without any Tumult; On the Contrary wheras the whole deacons might very Lawfullie have gone to the place and protested against the exercise of and possession as weell as against the Illegallity of the electione yet the defender did diswade Councill to goe allongst with him and accordingly ther was non present with him Bot one or two of the ordinarie Deacons and the defender did not only protest against the Nullity of electione Bot against the authorizeing of the Baillie of the Cannogate, That not being a quorum of the Councill present, This protestation can Import no more Bot a Civill interuption and all parties haveing right, or bot a privatte pretension are all owed to use interuptiones against every fact or deed, Wherby ther priviledges are prejudged, and albeit the prostatione in this as in all other causes is very express both as to the Nullity and to the consequences of that Nullity Yet that ther was no Sedition appears both from the moderation used in the takeing of the protest and from the defender and the other Deacons conduct since who did not Seperat from the Councill or indeavour to Creat any disturbance to the present queit Bot have Constantly attended the Service of the Town Councill, and have raised a process in the ordinary way for declareing their Civill rights, nor will the pursuers themselves pretend that such protestationes are unwarrantable, for what Suppose The Magistrats hade taken upon themselves without Concourse of the Councill to have elected and placed a Baillie in the Cannogate might not any Councill or have protested against the Illegallity or admission, or if they hade debarred the ordinary deacons as they did the extraordinary, might not such a protestation been warrantably taken when the parties were Just in ¹⁰ attiend a possessione; The defender alledges That in no case a protest action may be taken wher the magistrats think not to proceed were to make them very arbitrary, and truly if in any case their be a ground for a protestation The Nullity of ane election is Surely one and if it be pretended that ther was no nullity That is a questione which is subjudice in the declarator before the Lords of Session And in all events ther is no pretence of a Councill process in this case fore here is no disturbance of possession or publict queit, The pursuers have made the election of the baillies of the Cannogate and their baillie is in possession without any appositione and the defender has only interposed protests against the electione and possessione as a Civill interuption and only prosecutes his intrest before the Judge ordinary So that the pursuers doe both give the heavy Stock and raise the Loud cry Quinto the the¹¹ defender is accused for Starting a new question That the extraordinary Deacons Ought to be allowed in the election of the old provest and old Thesaurer, Bot to be Sure the Starting of a question at the Councill table is no Sedition, and whither the defender hade right or not will appear from the declarator depending before the Lords of Session; nor have the pursewar, the least pretence of a Councill process, Because the old provest and old Thesaurer are Chosen in the way they propose and the defender haveing only salved the intrest of the trades by raising a process for them does Continue to sitt in Councill with them so farr is he from being Seditious Sexto Wheras it is Lybelled that the defenders ill example hade Occasioned other quarrells and particularly betwixt Deacons Dunlope and Leachem Its answered this is Strange evidence of malice and Calumnie For Thomas Dunlope and Lechem are neither pursuers nor defenders nor is the Storie true as is Lybelled, and these intelligable accessiones to crymes by example and influence are only weell Chosen words to Load the defenders without any evidence in them selves or possibility of probation, Septimo the Lybell accuses the defender for unwarantable protesting against the Theasaurer that he should expend nothing of the publict revenues upon any occasion above Twentie pounds Scots Uithout a warrand from ane extraordinary Councill which sayes the Lybell would render magistracy useles and Impracticable This articles does more then insinuat the principall use of the magistracy Is to Spend the publict revenues, yet the protestation is most warrant able because by the sett page Eighteen, The Common good Cannot be disposed above Twenty pounds togither without warrand of ane extraordinary Councill wher the Deacons extraordinary are called So that protestation was preceisly in the termes of the Sett, Bot the Lybell bears, That the Thesaurers accompts are allwayes¹² examined by the extraordinary Councill, and the extraordinary deacons are allowed to vote and object againist his discharge, This does not salve the difficultie, The Libertie to Spend the revenue without warrand in the termes of the sett is the originall of all the Towns burden and distress for many things are easily approven when they are done on Consideration of the parties and often upon the influence of the Magistrats who have the only manadgment of the expensses And the occasion upon which they are bestowed, yet these things would never be warranted ¹³ re integra As for instance In Twenty four moneths The thesaurers necessary incidents and in Taverns extended to upwards of Threttie Thrie Thousand pounds Scots audited in anno J^aj vi^c nyntie […] and these being once expended the parties concerned did bestir them selves to have them allowed, yet it would have been Impossible to obtaine warrands for Spending so unreasonable a Soume And to clear that it is the intrest of the toune of Edinburgh to preserve the priviledge of the Trades in relatione to the publict revenues Ther needs no more bot to Consider, That the trades are incapable of the magistracy and can have no benefit by the manadgment, and on the other hand the touns burdins being great the trades feill their oun Share of all publict burdein which other wayes would be light which still it is urged That they have Libertie to Controll the Thesaurers accompts, For understanding by what airt this comes to be ineffectuall the instance is this the Thesaurer who depurses the money by what riule or direction he knowes when his accompts comes to be approven ther is a Comittie of Councill named wherof the trades Councillors are Seldome or never the equall number; When this Comittie is ready to report, Then the extraordinary deacons are called to give their votes approve of the report or not without knowing a title of the matter. and when the year is out, The auditors who are by the Sett appointed to be of equall number of Merchants and trades; yet in a generall accompt from the Thesaurer conforme to instructiones Viz acts of Councill, and Soe no farder wherby the Towns money is manadged in perpetuall misterie and their debts is increased Since the J^aj vi^c seventie seven from Four hundred Thousand pound, Against these practises the defender did protest in the termes of the sett and raised his declarator to the satisfaction of all the good nighbours in the Town, 8o¹⁴ Wher it is Lybelled, That the defender is Contentious and factious and Continues needles and endless debates in the Councill, Its answered that the Lybell is to generall and is plainly ane Impeachment for his takeing the Justly and necessary Libertie as a member of the Councill Lastly Wheras the defender is accused for Speaking out the time of the roup and Contriveing the maner of offers It is Anwered That the Deacones ordinary and extraordinary are appointed to be present at the roup and to vote and Consult about it by the sett page Eightein, And therfore the defender hade very good right to quarrell what he conceived amiss, and the provest hade no authority to discharge him to speak And what he said was honest and profitable for the Towne For Wheras not longe agoe the highest Earnest at the roups was a doller or duccatt down for Small tacks and a gurny for the greatest, yet now because the Earnest belongs to the provest, The Thesaurers make the first offer, And throwes in Liberall earnest and non else is allowed to offer unless they throw in the like wherby the Toun is Prejudged and if not prevented may be more prejudged for as the bidders increase their earnest they diminish their tack duty And as to this Likewayes the defenders Declarator as depending before the Lords of Session Seing therfore the pursuers enjoy all things as they themselves can propose upon the one hand, and upon the other that there is no violence, no murmurings no Schisme in the Councill Bot Civill interuption and Civill process, Ther is no ground for a Complaint before the saids Lords, and therfore the Lybell Ought to be rejected or at least remitted to the Judge ordinary to be determined in the event of these Civill actiones And the defender Ought to be allowed his expensses and dammadge against the pursuers for raising of this malicious injurious and groundles Complaint only to Fright him from prosecuteing of the declarator for the Comon good of the trades and nighbours in Edinburgh and if possible to make a conflict or Contradictione betwixt the Sentances of the two Supream Courts the saids Lords; And the Lords of Session, and the defender Craves only humbly Leave to protest That nothing has ingadged him to take these protests or raise his proces befor the Lords of Session, Bot to promott the Comon good of the Town, and to preserve the intrest and priviledge of the good Nighbours Which he has allwayes Studied to doe with modestie and temper, and that he has no pleasure in ane Imployment, wher ther is no profitt Bot a great deall Toyl and vexatione, whatever his accussers out of particular ends and to make him incapable of serving the nighbourhood may Say to the Contrary; And the Advocats for the said Lord provest Baillies Dean of Gild and Thesaurer of the said burgh of Edinburgh pursuers in the principall Lybell and defenders in the reconventione Gave in the answers following to the saids Letters of Reconventione Bearing That the Magistrats of Edinburgh haveing raised a most Just Complaint against the Said Alexander Monteith for his Masterfull factious and Seditious behavior against the authority and Government of the magistrats and Councill of the burgh and to the great disqueit and disturbance of the whole inhabitants, The said Alexander Monteith has raised a most groundless reconvention and alledges that he did nothing in the matter Bot what he might warrantablie doe in Law and for preserving the priviledges of the Crafts as deacon Conveener, and that it was the Custome formerly and that it was the Custome formerly and that for severall years the extraordinary deacons did vote in the electione of the Baillie of Leith and Cannogate and that in the Last election of the Baillies albeit the vote of the extraordinary Deacons was requyred to the Choiseing of the baillies of Leith yet at the Choiseing of the Barron Baillie of the Cannogate, The provest did Stop the calling of the votes of the extraordinary Deacons, and that therfore the Deacon Conveener hade good intrest to protest against the Barron Baillies installment upon the account that his election was Illegall, As also the installment of the said Baron baillie ought either to be by a Commission from the whole Councill for that effect, or otherwayes thretein which make a quorum, and ther was bot only twelue then present and though it was a Crime in deacon Dunlope to Spitt in John Lechems face yet that could not inferr a Crime against the said Alexander Monteith, and the quarrell was not upon the account of John Lechems dissenting from the rest of the Deacons Bot Some other privat difference betwixt them and that is was ordinary to take instruments against the Town Thesaurer to obbiat the giveing out unnecessarie expensses upon groundless process and that by the sett no part of the Townes good, could be disposed off above the value of Twenty pounds without the ordinary and extraordinary Deacons, and what the said Alexander Monteith did at the roup was no Cryme for the being a member of the Councill hade right to give his vote in the¹⁵ maner and proceeding of the roup as weell as any other It was answered for the magistrats primo that the Lybell was opponed and the acts of parliament upon which hthe Samen is founded, and the Said Alexander Monteith being Conveener and so haveing a great intrest with the trades It was a greater cryme in him to doe any thing tending to disturb the queit and peace of the burgh then any other, and after the said Alexander Monteith hade entered his protestation in Councill against the refuseing to allow the extraordinary Deacons to vote in the electing of the baillie of the Cannogate, which did Sufficiently Salve any pretended intrest the Crafts could have, And that he was overruled, and the Baillie of the Cannogate duely Chosen, and that so the matter was determined by the toune Councill It was most unwarrantable and Illegall for him therafter to enter a protestation at the installment of the Said Baillie which was ane manifast Contempt of the toune Councills act and interuption of the exercise of the Government of the burgh and tended down right to occasion a Muttune faction and Sedition, Especially Seing he protested that the said Baillie Should not be owned nor obeyed by the Inhabitants of the Cannogate the Import wherof was no Less then this That if the said baillie should continue to exercise the said fie; He might not only be Lawfullie disobeyed Bot resisted, So that if the inhabitants hade been also as factious and malicious as the Deacon Conveener It certainly would have Occasioned a tumult and uproaring in the burgh Secundo It was Calumnious to alleadge that the extraordinary Deacons hade been all wayes in use for many years formerly to vote in the electione of the baillies of Leith and Cannogate, nor is ther any thing upon record that they did ever vote in these elections, and if any time they did vote on that occasion throw inadvertancie, yet did not give the extraordinarie Deacons a right to vote in these electiones, Seing they hade no such right by the sett and Constitutione of the burgh, and the extraordinary Deacons did not all vote that day in the election of the Baillie of Leith Bot only two or thrie of them being called by inadvertancie of the Clerk depute the voteing of the rest were Stopped which very Lawfullie might be done Seing they hade no right so to doe As said is Tertio the installment of the Baillie of the Cannogate was most Legall and formall The magistrats being their present which is all that is necessar or usuall upon Such Ane occasion It being nowayes requisit for the installment of the Said Baillie That any be present bot the magistrats as can be made appear by the records of the Court of the Cannogate, And it is not necessarie ther Should be a quorum of the Councill this not being ane act of the Councill, Bot only that the Magistrats does intimat Such a persone to be Baillie Chosen of the Cannogate, and albeit it be not requisit ther Should be a quorum of the Councill as said is, yet at the installment ther was Severall of the Councill with the Magistrat to the number of Twelue and the deacon Conveener and Lethem himself made fourtein which was more then a quorum Quarto Deacon Dunlope his Spitting upon John Lethems face at the Cross is only Lybelled as ane aggravatione of the Deacon Conveeners Cryme and as a Clear evidence what effect his factuous and Seditious bheaviour towards the Magistrats hade as to the raising of divisiones and discord amongst the trades and other inhabitants of the burgh That One will take upon him the boldnes as to Spitt in anothers face at the Cross which was the greatest indignity that one man could doe to another, and as a farder demonstration of the evill effects of the Conveeners Mutinous behavior Severall others of the trades did most maliciously and bitterly enveigh one against another and particularly Deacon Govenlocks said to John Lethem if he hade served for his Libertie as the said Govenlocks hade done, He would not have sold their priviledges So Cheap, and Deacon Livengstoune said that John Letheme Should be Stigmatized for what he had done, And the reasone was because he hade brocken off from the Convie¹⁶, as appears by their confessiones in Judgment and Signed under their hands, By which it is as clear as the Sum that these differences did not aryse upon any privat quarrell Bot only upon the Deacon Conveeners accompt and that all was occasioned by his factious and seditious behaviour Quinto, The Conveener takeing instructions in the way and maner he did was evidently done of Designe to hinder and Imped the publict administratione of the affairs of the burgh and it Cannot admitt of no other constructione for if the Thesaurer expended any thing upon necessarie processes he’s answerable for it and when he comes to Compt the extraordinary Deacons are present at the makeing and allowing of his accompts, Which Sufficiently Salves their intrest, without the Conveeners using any previous instrument against them and such instruments are never in use to be taken Bot when there is some designe to disturb the peace and queit of the burgh which ought not to be Suffered And wheras the Conveener in his information against the magistrats most Calumniously alledges of purpose to amuse the saids Lords that the Magistrats hade in Twenty four moneths time expended in Tavernes and other incidents the Soume of Threttie thrie Thousand pounds and that it is his designe to Correct these, abuses in time comeing It was Answeared That this is most groundless and grosslie Calumnious for by the abreviat of the accompts pointed at Viz from Micheallmass J^aj vi^c nyntie four to Micheall mass J^aj vi^c Nyntie Six, It appears their was Twenty Nyne Thousand pounds of that accompt payed to Craftsmen for their necessarie works and services to the burgh and the remanent of that accompt was bot a moderat allowance of the incident expenses of the magistrats and burgh for the said two years Secundo the said Alexander himself as deacon of the Chirurgeons was a Member of the Committie that revised the said accompts monethly; and subscrybed the Samen for seventein moneths of the twenty four And also was a member at the auditing therof and voted in the Thesaurers exoneratione for the Saids two years, So the saids Lords might see how groundless the insinuatione is, and when his declarator comes in he shall have ane answer it being nothing to the point now in hand Nor is the present magistrats concerned therin And as to what he alledges in his informatione That from the year J^aj vi^c Seventie Seven the Townes the Townes debt is increased from four hundred Thousand pound to Eight hundred Thousand pound and up wards It is answered the increase of the touns debt was betwixt the year J^aj vi^c Seventie Seven and the Revolution being Eleven years, Bot it is gross to Charge this upon the present Magistrats as if all hade been done in their time or since the revolutione for it can be made appear in time and place Convenient That the tounes debt are Considerably decreased Since the revolutione at Least a six part of their principall Soumes and which is here only industreously dissembled Sexto The Said Alexander Monteiths behaviour at the roup was most insolent and factious he haveing taken upon him not only to direct the persones present to offer Bot did presumpteously Comptroll the maner of rouping that hade been allwayes used upon Such occasiones and offered to prescrybe new rulles albeit it did not belong to him to doe any thing of that nature, Seing the provest by his place did preside and order things at the roup, And as a farder aggravatione of his Cryme as to that particular and that what he did was out of a factious designe to obstruct the manadgment of the publict affairs of the burgh he himself was present with the magistrats wher the rules and terms of the roup were concerted and he agreed to the Samen with the rest, and yet notwithstanding when they came to the place of the roup He opposed and controlled their procedure in maner lybelled, By all which it is most evident that the deacon Conveener has behaved himself most Masterfully factiously and seditiously against the authority and government of the magistrats and Councell to the great disqueit and disturbance of the peace of the burg and Therfore The Magistrats ought not only to be Assoylzied from this groundless reconventione, Bot he ought to be examplarlie punished as the answers bears And the principall Lybell with the answers made therto by the said Alexander Monteith, and the said lybell of reconvention at the instance of the said Alexander Monteith With the answers made therto for the said Lord provest Dean of Gild and Thesaurer of Edinburgh Being all Read in presence of the saids Lords of his Majesties privy Councill And both parties advocats being fully heard The saids Lords of his Majesties privy Councill haveing Considered both lybells with the answers made to either of them respective with the debate made by both parties advocats And haveing heard the instrument or protest taken by the said Alexander Monteith in the Councill house or Courthall of the Cannon-gate protesting against the owning and obeying of the barron Baillie of the Cannogate then elected and ready to be declared and installed read in their presence The saids Lords of his Majesties privy Councill Finds the Lybell acknowledged and Finds the said Alexander Monteith Guiltie of the Unwarrantable and Illegall practises And Therfore Have Decerned and Declared and hereby Decernes and Declares That the said Alexander Monteith hath Amitted his office of being Deacon of the Chirurgeons or being Conveener of the Trade for the Space of year and day nixt to come; after the date hereof, And Have Removed and hereby Removes him from the saids offices, and discharges him to be elected therto dureing the said space of year and day after the date hereof, or to doe or exerce the office of preceeding in any meetting of the trades or any other part of the office or duty in use to be exerced or performed by a deacon or Conveener at any time by gone dureing the Space forsaid And have Removed and hereby Removes him from being a member of the Town Councill of Edinburgh And Discharges him to appear or be admitted and received to sitt art and vote therin dureing the space above mentioned, and Discharges him to trouble or mollest the magistrats and Toune Councill of Edinburgh at any time, or as being in any of the saids offices dureing the space forsaids And appones the incorporation of the Chirurgeons of Edinburgh instantly to meet and Conveen, And elect and Choise a new deacon to themselves till Michealmiss One thousand Seven hundred years and that Conforme to the methode and Custome of Choiseing deacons at theire Ordinary Micheallmiss elections And Have Assoylzied and hereby Assoilzies The said Lord Provest Baillies Dean of Gild and Thesaurer of Edinburgh from the haile points and articles of the said Lybell of Reconvention raised at the instance of the said Alexander Monteith against them and Declairs them quyt therof and free therfrae in all time; And Ordaines Letters of horning on six dayes and others needfull to be direct hereon in forme as effeirs.