Decreet, 22 November 1692, Edinburgh

Act, 29 December 1692, Edinburgh

Att Edinburgh the Tuenty second day of November Jaj vjc and nyntie tuo years

A1692/11/401

Decreet

Decreet absolvitor Inhabitants of St Andrews against the Sollicitor

Anent the Lybell persued befor the Lords of there Majesties privy Councill at the Instance of Sir William Lockhart there majesties sollicitor Mentioneing That whereas by severall Lawes and acts of parliament And particularly by the act Eightie parliament sixt King James the fourth And act tuenty sixt parliament fourth King James the fyfth It is statute and ordained That no man be chosen proveist Bailzies or magistrats of burghs but these that are honest and substantious burgesses merchands and Induellers in the burgh under the pain of tinsell of there freedome who does in the contrarie And act eight parliament tuentyeth King James the sixth It is statute That no man shall be Capable of Proveistrie or other magistracie within any burgh of this Realme or to be elected to any of the saids offices within a burgh but merchands and actuall traffiquers Inhabitants within the said burgh allennarly and no others And the Electing or Choyseing of Magistrats2 or Councillours within burgh Contrair to Law and the sett and Constitutione of the burgh and the Contemptuous dissobeying of the acts and orders of there majesties privie Councill are Crymes of ane high nature and severely punisheable And it being of verity that be the sett and constitution of the burgh of St Andrews It being provyded that befor they choose there magistrats They should present to the Arch Bishop ane Leitt of the persones to be chosen magistrats viz Tuo persones with the old proveist and tuo persones with the old dean of gild and Eight persones with the Four present bailzies and tuo persons with the old Theasurer who are or have been Councillors within the Citie actuall traders and residenters therein To the effect That out of these Leitts The Arch Bishop should Elect the magistrats at michaelmes yearly And prelacie being now abolished And the King and Queens majesties haveing Come In place of the Bishops as to all there rights and priviledges And the Lords of privie Councill conforme to there right Haveing by there act of the sixteenth of september Last ordained the toun Councill of the said burgh to send there Lists to the Lord Chancellor who thereby wes authorized to nominate the magistrats And which Lists were appoynted to be sent in such a Competent tyme befor the day of electione as wes accustomed to be done to the ArchBishop And albeit the said act of the privie Councill wes duely Intimate to the saids maigstrats and toun Councill who served for the Last year Yet the saids magistrats viz The Earle of Crawfurd proveist of St Andrews Andrew Clerk maltman and Late dean of gild now Thomas Orrock regality Clerk of St Andrews James Smith merchand Late and present bailzie there George Rymer present bailzie there Alexander Ferriar merchand and Late bailzie there William Jack wreitter in St Andrews now one of the Bailzies of the said burgh James Nicolsone maltman and Late theasurer Simon Dairsie apothecary now Theasurer John Bruce baxter conveener Thomas Bell merchand Councellour Thomas Ferriar merchand Councellour John Phenisone messenger Councellour David Craig wreitter Councellour John Craig wreitter Councillour Robert Law Indueller there Robert Watsone deacon of the smiths Andrew Dickison deacon of the wrights Robert Harlaw deacon of the taylors Walter Gibson deacon of the Cordiners John Duncansone deacon of the baxters William Baird deacon of the fleshers Thomas Peattie deacon of the weavers and Andrew Phenisone toun clerk of St Andrews most Contemptuously dissobeyed and proceeded and made a pretended electione of magistrats and of a new Councill at Michaellmess last for the year Ensueing without sending Lists to the Lord High Chancellor as they ought to have done And as they were ordained by the forsaid act of privie Councill As also They did make choise of severall persones to be Magistrats of the said burgh as were not Capable be the Law and sett and constitutione of the burgh to bear office within burgh And particularly They did make choise of the Earle of Crawfurd to be proveist who is not a merchant and actuall traffiquer and residenter within the said burgh And so ought not to bear any office in the said burgh And therefore the saids Magistrats and Councillours that served in the said burgh for the year preceeding ought to be punished for there Contemptous dissobeying the act of there majesties privie Councill And the pretended new electione at michaellmes ought to be declared null and voyd And the former magistrats and Councill ought to be ordained to give in Lists to the said Lord High Chancellour That out of these Lists he may make choise of the Magistrats Conforme to the forsaid act of Councill as the Arch Bishop wes in use to doe befor the abolishing of prelacie And Anent the Charge Given to the saids defenders above Compleaned upon To have Compeared befor the saids of there Majesties privie Councill at Edinburgh or where it should happen them to be for the tyme at ane certain day bygone To ansuer to the points of the above Lybell or Complaint And to hear and see such order and Course taken theranent as the saids Lords should think fitt under the pain of rebellion and putting of them to the horne with certificatione to them If they failzie There majesties other Letters should be direct simpliciter for putting them thereto. As the said Lybell and excecutiones thereof bears. This Actione being upon the third day of November Instant Called In presence of the saids Lords And the said Sir William Lockhart there Majesties sollicitor and Sir Patrick Home and Mr Hugh Dalrymple advocatts his assistants Compearing personallie as persewers And the haill defenders except John Finnisone David Craig Robert Law and John Duncansone Compearing also personally The Saids Lords of there Majesties privie Councill Haveing Considered the Lybell and ansuers made for the defenders They befor ansuer ordained both pairtyes to adduce probatione anent the electione of the Magistrats of St Andrews viz The defenders anent the Inhabitants or toun councill of St Andrews there possessione of electing the Magistrats of the said burgh and the maner thereof And the persewers anent the Arch Bishops of St Andrews there possessione of Electing the saids magistrats of St Andrews and the maner thereof And assigned ane certain day to both pairtyes for adduceing such probation as they would make use of for proveing the points forsaids with Certificatione etc And allowed diligence at both pairtyes instance both againest witnesses and havers And ordained the defenders to produce in the Clerks hands there court books or registers anent the electione of there magistrats And allowed the persewers to have Inspectione of them And declared any three of the defenders sufficient to attend for the wholl at the dyetts of this process And ordained the magistrats who served in St Andrews for the year preceeding michaellmess Last to take care of the government and peace of the Citie untill this process be discussed as they will be ansuerable Conforme to the former act of Councill of the date the thretteint day of October Last And the defenders haveing accordingly produced in the hands of the Clerks of Councill Severalls of there court books or registers which were taken up and Inspected by the said sollicitor and his assistants And The Said action being this day again Called In presence of the saids Lords of privie Councill And the Sollicitor and his assistants haveing Compeared personally as of before And the Earle of Crawfurd and severalls of the Inhabitants of St Andrews haveing also Compeared personally with Sir James Ogilvie and Mr David Forbes advocats there procurators The saids Lords of there majesties privie Councill Haveing again this day Considered the above Lybell with the court books or registers forsaids Together with the Charter of Erection and other wreitts produced for the defenders And haveing heard both pairtyes debate at Length in there presence upon that point If the possessione which the toun of St Andrews have hade these years bygone since the revolution be sufficient to Continow the toun in electing there magistrats till the point of right be discussed be the Judge ordinary The saids Lords Finds the toun of St Andrews there possession since the revolutione Sufficient to Continow them in the Electing of there magistrats untill be declared before the Judge ordinarie that they have no right so to doe And therefor assoilzies the defenders and allowes the magistrats of St Andrews elected at Michaellmess Last To exercise there offices of magistrats in the said burgh notwithstanding of the sentence of Councill of the date thretteinth day of october Last Suspending them from the Same

At Edinburgh 22 November 1692

A1692/11/401

Decreet

Decreet absolvitor inhabitants of St Andrews against the solicitor

Concerning the libel pursued before the lords of their majesties’ privy council at the instance of Sir William Lockhart, their majesties’ solicitor, mentioning that whereas by several laws and acts of parliament, and particularly by the act eighty parliament sixth King James IV, and act twenty-sixth parliament fourth King James V, it is statute and ordained that no men be chosen provost, bailies, or magistrates of burghs but those that are honest and respectable burgesses, merchants, and indwellers in the burgh under the pain of loss of their freedom who does in the contrary. And act eighth, parliament twentieth King James VI it is statute that no man shall be capable of provostship or other magistracy within any burgh of this realm, or to be elected to any of the said offices within a burgh, but merchants and actual traffickers, inhabitants within the said burgh only and no others. And the electing or choosing of magistrates or councillors within burgh contrary to law and the set and constitution of the burgh, and the contemptuous disobeying of the acts and orders of their majesties’ privy council are crimes of a high nature and severely punishable. And it being of verity that, by the set and constitution of the burgh of St Andrews, it being provided that before they choose their magistrates, they should present to the archbishop a leet of the persons to be chosen magistrates viz two persons with the old provost and two persons with the old dean of gild and eight persons with the four present bailies and two persons with the old treasurer who are or have been councillors within the city, actual traders and residents therein, to the effect that out of these leets the archbishop should elect the magistrates at Michaelmas yearly. And prelacy being now abolished and the king’s and queen’s majesties having come in place of the bishops as to all their rights and privileges, and the lords of privy council conform to their right having by their act of 16 September last ordained the town council of the said burgh to send their lists to the lord chancellor, who thereby was authorised to nominate the magistrates, and which lists were appointed to be sent in such a competent time before the day of election, as was accustomed to be done to the archbishop. And albeit the said act of the privy council was duly intimated to the said magistrates and town council who served for the last year, yet the said magistrates viz [William Lindsay] the earl of Crawford, provost of St Andrews, Andrew Clerk, maltman and late dean of gild now, Thomas Orrock, regality clerk of St Andrews, James Smith, merchant, late and present bailie there, George Rymer, present bailie there, Alexander Ferriar, merchant and late bailie there, William Jack, writer in St Andrews, now one of the bailies of the said burgh, James Nicolsone, maltman and late treasurer, Simon Dairsie, apothecary, now treasurer, John Bruce, baxter, convener, Thomas Bell, merchant, councillor, Thomas Ferriar, merchant, councillor, John Phenisone, messenger, councillor, David Craig, writer, councillor, John Craig, writer, councillor, Robert Law, indweller there, Robert Watsone, deacon of the smiths, Andrew Dickison, deacon of the wrights, Robert Harlaw, deacon of the tailors, Walter Gibson, deacon of the cordwainers, John Duncansone, deacon of the bakers, William Baird, deacon of the fleshers, Thomas Peattie, deacon of the weavers, and Andrew Phenisone, town clerk of St Andrews, most contemptuously disobeyed and proceeded and made a pretended election of magistrates and of a new council at Michaelmas last for the year ensuing without sending lists to the lord high chancellor as they ought to have done, and as they were ordained by the foresaid act of privy council, as also they did make choice of several persons to be magistrates of the said burgh as were not capable be the law and set and constitution of the burgh to bear office within burgh. And particularly, they did make choice of the earl of Crawford to be provost, who is not a merchant and actual trafficker and resident within the said burgh, and so ought not to bear any office in the said burgh. And therefore the said magistrates and councillors that served in the said burgh for the year preceding ought to be punished for their contemptuous disobeying [of] the act of their majesties’ privy council, and the pretended new election at Michaelmas ought to be declared null and void, and the former magistrates and council ought to be ordained to give in lists to the said lord high chancellor that out of these lists he may make choice of the magistrates conform to the foresaid act of council, as the archbishop was in use to do before the abolition of prelacy. And concerning the charge given to the said defenders above complained upon to have compeared before the said [lords] of their majesties’ privy council at Edinburgh, or where it should happen them to be for the time at a certain day bygone, To answer to the points of the above libel or complaint, and to hear and see such order and course taken therein as the said lords should think fit under the pain of rebellion and putting of them to the horn, with certification to them if they fail, their majesties’ other letters should be directed simpliciter for putting them thereto, as the said libel and executions thereof bears. This action being upon 3 November instant called in presence of the said lords, and the said Sir William Lockhart, their majesties’ solicitor and Sir Patrick Home and Mr Hugh Dalrymple, advocates, his assistants, compearing personally as pursuers, and the whole defenders except John Finnisone, David Craig, Robert Law, and John Duncansone compearing also personally, the said lords of their majesties’ privy council having considered the libel and answers made for the defenders, they before answer ordained both parties to adduce probation concerning the election of the magistrates of St Andrews viz the defenders concerning the inhabitants or town council of St Andrews their possession of electing the magistrates of the said burgh and the manner thereof, and the pursuers concerning the archbishops of St Andrews their possession of electing the said magistrates of St Andrews and the manner thereof. And assigned a certain day to both parties for adducing such probation as they would make use of for proving the points foresaid, with certification etc. And allowed diligence at both parties’ instance both against witnesses and havers. And ordained the defenders to produce in the clerk’s hands their court books or registers concerning the election of their magistrates, and allowed the pursuers to have inspection of them. And declared any three of the defenders sufficient to attend for the whole at the diets of this process. And ordained the magistrates who served in St Andrews for the year preceding Michaelmas last to take care of the government and peace of the city until this process be discussed, as they will be answerable conform to the former act of council of the date 30 October last. And the defenders having accordingly produced in the hands of the clerks of council several of their court books or registers which were taken up and inspected by the said solicitor and his assistants. And the said action being this day again called in presence of the said lords of privy council, and the solicitor and his assistants having compeared personally as of before, and the earl of Crawford and several of the inhabitants of St Andrews having also compeared personally with Sir James Ogilvie and Mr David Forbes, advocates, their procurators, the said lords of their majesties’ privy council having again this day considered the above libel, with the court books or registers foresaid, together with the charter of erection and other writs produced for the defenders, and having heard both parties debate at length in their presence upon that point if the possession which the town of St Andrews have had these years bygone since the revolution be sufficient to continue the town in electing their magistrates until the point of right be discussed by the judge ordinary, the said lords find the town of St Andrews their possession since the revolution sufficient to continue them in the electing of their magistrates until [it] be declared before the judge ordinary that they have no right so to do. And therefore acquit the defenders and allow the magistrates of St Andrews elected at Michaelmas last to exercise their offices of magistrates in the said burgh notwithstanding of the sentence of council of the date 30 October last, suspending them from the same.

1. PC1/48, 455-8.

2. The phrase ‘within burgh’ **scored out here.**

1. PC1/48, 455-8.