Act, 6 October 1697, Edinburgh

Att Edinburgh the twentie fifth of November J^aj vi^c nyntie seven years

D1697/11/10

D1697/11/10¹

Decreet

Decreit Baillie Mitchell and uthers Against Crwikshanks and uthers

Anent the lybell or Letters of Complaint purchased and raised befor The Lords of his majesties privie Counsell at the instance of Thomas Mitchill and John Allardyce Late baillies Alexander Orem Late dean of gild Thomas Forrest and George Logie merchands in Aberdeen for themselvs and in name and behalf of the Commwnitie of the said burth with concurse of Sir James Stewart his majesties Advocat for his highnes interest in the mater wnderwritten Makeing mentione That wher by the Lawes of this and all well governed Nationes the contempt and breach of the publict and knowen Lawes owt of a partiall and ambitious designe The overturneing the particular constitutiones of incorporationes the inverting the order of electione the bringing in persones to the magistracy wnfitt and dissaffected in the most considerable articles of the Christean religione established and professed in the Kingdome And particuarlie by the Lawes of this natione especiallie By the threttie act parliament fifth James the third It is Staitute that no officers in Burrows nor Councell be continwed furder then a yeir and that the choiseing of new ² officers be on this wayes That is to say the old Counsell of the towne Shall choise the new Councill in Swch number as accords to the towne And the new Cowncill and the old Shall choise all officers pertaining to the towne And by the fifth act Eight parliament James the third Its ordained that ther Shall be of the old Counsell four worthie persones chosen to the new Counsill to sitt with them And by the one hundereth and eight act Fourtein parliament James the third the saids acts are ratified with this additione that the electione of officers might be of the best and worthiest indwellers in the towne and not by partialitie or maistership And Sicklyke by the eightie act parliament Sixth James Fowrth It is declaired that all officers proveist baillies and others haveing office and Jwrisdictione within burrows be changed yeirlie Conforme to which Lawdable acts and Staituts and particular acts of the Conventione of burrows theranent The towne of Aberdeen have the maner of ther electione regwlated in maner following The old Cownsell consisting of nyntine first elect threttein merchands breithren of gild for the new Cownsell of the Swcceeding yeir Then in the next place the said old Counsell choose owt four of ther ³ number conforme to the foirsaid act fiftie seven parliament eight James the third And Lastlie haveing gott the roll of the present deacons they choise owt these two which compleat the full number of nyntine of the Cowncill for the ensweing yeir And in the Last place Conforme to the foirsaid act of parliament the old and new Councill proceed to the electione of the magistrats and officers who are to be chosen out of the new Cowncell which proceeds in this maner the new and old Councill being mett they are by the Sixtie five act of the generall Conventione of Burrows held at Aberdein the Eleventh of Jwllie J^aj vi^c threttie Seven appointed to take ane oath without partialitie to elect the most qwalified persones and then the deacons of the Crafts withdraw and returne ther ten votes by the deacon conveener and the merchands being threttie in number vote amongest themselves soe that the whole voices of the electors amownt to Fowrtie By the pluralitie of which the proveist and other officers bearers are choisen And by the antient Cwstome of the said burgh in caises of great importance and difficultie the Cownsell of the former yeir is called and added to the Counsell of the Current yeir And in case of the absence of any of the electors It is Staitute by a generall act of the Convention of burrowes anno J^aj vi^c and threttie six that these who are present may choise another burges of the qwalitie of the absent to vote in his place in the said electione and no furder And the qwalitie of the burges by the said act is declaired to be merchand or Craftseman actwall and reall burges dwelling with in the burgh and beareing all portable charges within the same And Sicklyke by the Sixth act of the fourth sessione of his majesties Current parliament All magistrats within burghs all deacons and deacon conveeners in the saids burghs and all Swch as have any voice in electing deacons of trades with all clerks of trades are ordained at ther entrie and befor exerceing of ther saids trwsts to Sweare the oath of alleadgeance and Subscribe the assureance befor the Cowncill of the bwrgh which is to be registrat in the books of the said burgh and reported to the privie Cownsell within Fourtie dayes efter takeing the samen The contempt of all which or any of them are Crymes tending to the Subversion of the publict establishment and are of a high nature and highly pwnishable yet nevertheles the said Robert Crwikshanks Late proveist Mr John Johnstowne Late baillie Robert⁴ Cwmming Late dean of gild James Gordone Late Thesaurer George Crwikshanks yownger merchand John Davidsone and John Lesslie merchands James Adam weaver, Arthur Simpsone cordiner all persones of the old Cowncill James Reid Late baillie George Crwikshanks yownger merchand and Alexander Crwikshanks Skipper of the new Counsell Shakeing off all fear of God and respect to his majesties awthoritie and Lawes of the natione did wse ther interest in the Last electione at Aberdein at Michaelmise in this instant yeir J^aj vi^c nyntie Seven and in the former yeirs partiallie and with mastership to the wtter overturneing of the constitutione of the said bwrgh and other Royall burrowes within the said kingdome in generall And for inhanceing the awthoritie of the burgh amongest a few and cheifflie to one particular familie to the great discouragement of the honest neighbourehead, Breakeing and infringeing the whole Lawes Cwstomes and constitwtiones above mentioned in so far as the said Robert Crwikshank of Banchry did contrair to the Lawes of the kingdome and constitutione of the burgh Continwe from Michaelmise J^aj vi^c nyntie thrie till Michaelmise Last notwithstanding of a protestatione taken against him befor the electione at Michaelmise J^aj vi^c and nyntie Six by the said John Allardyce one of the Complainers wherby he did manifestly violat the foirsaids acts of parliament James the Second third and fowrth And the foirsaid Sixtie five act of the generall conventione of Burrowes and was wtterlie incapable to vote or exerce any pairt of the said office Soe that the electioen as proceeding upon his vote Is wtterly nwll and void and haveing wsed his interest to continwe Likewayes in the office of proveist But being frighted from it by a new Solemne protestatione taken the day befar the electione made and Subscribed by Severalls of the most respectfwll and Substantiows burgesses in a generall meeting of the whole Commwnitie the day befor the electione for awditing the publict accompts of the towne Conforme to the cwstome of the bwrgh He did twrne his designe into a new Shape and with the concurse of the saids other defenders Caballed to make the electione to fall upon the said Mr John Johnstowne his Son in Law that they might Swcceed one another by twrnes and perpetwat the wswrpatione And by a pretended Complyance with the annwall chainges established by Law elwde and disapoint the designe of the Law and for that end he and his saids adherents mett in the Councell house on the weddensday before Michaelmise And ther with a qworum of Councellars ther being only nyn of nyntine present He and the saids defenders his adherents of the old Cowncell did proceed to the pretendit electione of the new Councell efter all friendly endeavoures to prevent the inconveniencie which hath happened did avoid to be present Least they Should Seeme to countenance the pretended awthoritie and incrochments of the said Robert Crwikshank or make ane wndecent breach in the publict meeting of the Cownsell Hopeing Still that the defenders would have wsed with more moderatione and discretione And efter all the defenders procedours were so notoriowselie partiall and maisterfull that of the whole new Counsell chosen by themselvs only four were so rash as to concurr in the electione of the magistrats or to accept to this day and Thomas Forrest, baillie Mitchell Dean of Gild brain and George Logie have raither chosen to be Complainers in this lybell By which illegall procedour without a qworwm The whole electioen both of the new Councill and of the election of the magistrats which followed upon it and is void Seing by the practice of the Soveraigne Courts of the natione The privie Cownsell The Sessione The Exchequer The Commissione for plantatione of kirks etc It is notoure that these Courts doe not only proceed till ther be a Sufficient qworwm But even efter they are constitut if the members withdraw soe as ther be not a Sufficient qworwm remaining the Court Stopps and breaks up But fwrder the Saids magistrats did not onlie proceed to the Chooseing of the new Cowncill without a qworwm But in contempt of the good and Laudable constitutione and Custome of the bwrgh They in prosectuione of ther partiall ends Omitted to call the Cowncill of the former yeirs which was without contraversie the plaine and honest way and furder in plaine contempt of the practise and constitutione of the towne the saids nyn persons of the old Cowncell proceeded to elect the new Cownsell without first haveing taken the oath contained in the Sixtie five act of the generall Conventione of Burrowes held at Aberdein the Eleventh of Jwllie J^aj vi^c threttie Seven yeirs wherby the inhabitants of Aberdeen Are Specially discharged from all combinatione or procureing of votes either for themselvs or others to be magistrats or Cowncellors of the bwrgh And for that effect they are to give ther oath at the electione that they Shall vote without partialitie feid or favoure for the most qwalified and peaceable persones And it is ordained that no electione pass till each persone haveing vote give his oath in maner foirsaid so that if ther were no more the saids persones above named ther wnfair dealling and the illegalitie of the electione appears from this alone In all which the saids Robert Crwikshank and the other persones above named were soe obstinat and willfullie prejudicat and partiall⁵ that notwithstanding of a Solemne protestatione taken by baillie Ragg for himself and in name of his adherents upon the grownd foirsaid against them Concludeing that what they had done or what they Should furder proceed to doe in prosecutione of ther partiall and illegall practises Should be void and nwll They did contemptwowselie and maisterfullie proceed in the Afternoon with no less informalitie and unqwitie to electe the magistrats that they had done in the foirnoon in electing of the Cownsell Haveing proceeded to call in proxies when they were but twentie of Fourtie electors So that the major pairt not being present The defect of a qwarwm occurred of new and rendered the electione of the magistrats als absurd and void as the electione of the Cowncill was And as one absurditie begetts many So for Supplieing the number of the Fourtie electors They did call in for prozies wtterlie wncapable of that trwst by the act of Conventione of burrowes in anno J^aj vi^c threttie Six foirsaid haveing noe other qwalitie to recomend the most pairt of them but the blind obedience to follow the methods of those who designed to impaire the Libertie and therby to dispose of the governement and advantages of the towne And therfore wheras the act of burrows does requyre that the proxies Should be of the Same qwalitie with the persones represented viz that they be actwall and reall burgesses Dwelling within the town and beareing all portable chairges But here the proxies were persones of qwite other qwalificationes Such as Robert Smith who was a minor or servant to the said James Gordone one of the old Councill Item Patrick Crwikshank a gratis burgis receaved but a few dayes befoir and in appeareance to this verie and Peter Milne a writer and no gild brother Peter Crwikshanks a boy of fiftein or Sixtein yeirs of age at least a minor William Davidsone Servitor to John Davidsone ane other of the defenders William Forbes who bwt a twelve moneth before was processed and convicted for wseing of false measures and discharged the towne John Wright William Gerard Gilbert Chatto and John Andersone tacksemen and towne Servants Alexander Gordon Chopman and Living owt of the place besydes Some bankrupts and Scarce any of them beareing portable charges soe that therby the Liberties and priviledges of the bwrgh are manifestly Stollen and disposed of by the votes of the meanest and the most inconsiderable of the people to the evident hazard of the Constitutione of the Royall burrowes and the publict government of the natione And efter all when this number of Fourtie electors was made up in manifest contempt of the foirsaid Sixth act of our Current parliament The pretended Counsell did take no care to Sie the electors of the deacons of the trades qwalifie themselvs by takeing the oath of alleadgeance and Signeing the assureance and makeing the report therof to our privie Cownsell as was ther dwetie On the contrair it is most certaine that many of the electors of the deacons never qwalified themselvs to this day Wherby both the electiones of the deacones themselvs and the electione of the magistrates that proceeded upon ther votes doe inevitablie fall And as all the Stepps and measures of this electione was Crossgrained and wnnatwrall to Serve It too partiall and wnjwst designe So the persone elected were wtterlie wnfitt and Swch as Could not be chosen but by Swch methods and against whom the said baillie Ragg For himself and in name and behalf of his adherents had particularlie protested viz Mr John Johnstowne a persone of profest and manifest enmitie to the religione established in soe far as he was declaired by and avowedly a mentainer and promoter of the principalls of Arminws and of the detestable Seck of the qwakers Besydes a declaired and profest opinion that it is not Laufull to pwnish with death for any cryme whatsoever which opinion is wtterlie inconsistant with our Lawes and the magistrat In consideratione of all which The saids Robert Crwikshanks Mr John Johnstowne Robert Cwming James Gordone Senior George Crwikshank senior John Davidsone John Lesslie James Adam Arthur Simpsone James Reid George Crwikshank Jwnior and Alexander Crwikshank defenders Are manifestlie gwiltie of the crymes abovementioned And ought to be Severely pwnished in ther persones and goods to the terror of others to doe the lyke in all tyme comeing And the foirsaid electione declaired void and nwll and a new electione to proceed by the Joint Councills chosen at Michaelmise J^aj vi^c nyntie five and J^aj vi^c and nyntie Six in the Same maner as was done by the awthoritie of our privie Counsell when Robert Johnstowne of Crumen proveist of the said bwrgh was removed in anno J^aj vi^c threttie five his electione being declaired nwll for informalities of the same kind And sicklike the defenders owght to be decerned to make payment to the persewars of the Sowme of […] upon accompt of the expensses and Damnadges of this present process And Anent the charge given to the saids defenders to have compeared personallie befoir the saids Lords of our privie Counsell to have answered to the grownds of the above complaint And to have heard and Sein Swch order and course taken theranent As the saids Lords Should think fitt wnder the paine of rebellion etc As in the principall lybell or Letters of complaint raised befor the saids Lords with the executiones therof at more Lenth is contained The Said principall Lybell with the Lybell of reconventione at the instance of the defenders and others In the principall lybell against the persewars therof and others being both called in presence of The Lords of privie Cownsell upon the eightein day of november instant And John Allardyce and George Logie two of the persewars of the principall cause compeareing personallie for themselvs and the rest of the persewars in the principall process who are defenders in the reconventione with Mr David Cwningham Mr David Dallrimple Mr James Hamiltowne and Mr David Forbes Advocats for the haill persewars in the principall lybell And Robert Crwikshanks of Bawchrie Mr John Johnstoune James Gordon and Arthur Simpsone four of the defenders in the principall lybell who are alsoe persewars of the reconventione Compeareing personallie for themselvs and the haill defenders in the principall cause being also persewars in the reconventione with Mr Hew Dallrimple Sir Patrick Home Mr Andrew Home and William Black ther advocats The principall lybell and ansuers therto Togither with the lybell of reconventione and answers therto being all read And both pairties haveing declaired that they past from Craveing certificatione against the absents one aither syde The saids Lords of his majesties privie Counsell haveing considered that it is acknowledged by both pairties that by the sett of the toune of Aberdeen The electors are to be nyntine And that ther was but nyn of the nyntine present at the electione of the magistrats and towne Cownsell elected at Michaelmise Last bypast The saids Lords by ther interloquitor of that dayes date find the said electione void and nwll and befor they proceeded furder in the said mater recomended to a Comitie of ther own number to endeavoure to setle and agrie the pairties And this actione being this day againe Called in presence of the saids Lords The Earle of Mellvill president of Counsell haveing reported to The Lords of his majesties privie Counsell that he mett with the rest of The Comitie appointed to endeavoure to Setle the processes betuixt The burgesses of Aberdeen on the ane and other pairts And that they haveing called for and heard both pairties The Comitie fand it imprestable for them to Setle and agrie the saids differing pairties Wherupon his majesties advocat haveing moved That Since The Lords of privie Counsell had by ther Last interloquitor of the eighteinth instant found that the electione of magistrats and towne Counsell made in Aberdeen about Michaelmise Last was void and nwll Ther Lordships would be pleased for his majesties interest and the keeping the peace of the towne to proceed to setle new magistrats and Counsell in Aberdeen The Saids Lords of his majesties privie Counsell Have awthorized and heirby authorizes the whole magistrats and Counsellers elected at Michaelmise J^aj vi^c and nyntie Six to serve in the said towne of Aberdeen for the yeir then ensewing with those elected in lyke maner in the said place at Michaelmise J^aj vi^c nyntie five to Michaelmise J^aj vi^c nyntie Six to meet and conveen Jointlie at Aberdeen upon the Second weddensday of december⁶ next to come being the eight day therof ther to elect vote and choise the new Counsell of the said bwrgh who with the Counsell J^aj vi^c and nyntie Six are conform to the sett to proceed to the choise of magistrats and other offices bearers wsed to be elected in the said towne at the terme of Michaelmise and that in the same maner as the new Councell and magistrats and other office bearers of the said burgh were in wse to be chosen by the sett therof for former yeirs by the magistrats and Single Counsellors of the yeir preceeding And by observeing the haill other pairts of the said sett with the acts of parliament towching electiones in burghs Royall And the Saids Lords declaire that the magistrats towne Counsell and other office bearers of the said burgh which Shall be elected in maner foirsaid Shall continue in the saids offices till Michaelmise J^aj vi^c and nyntie eight And ordaines that in the mean tyme The magistrats and towne Counsell of the said burgh elected at Michaelmise J^aj vi^c nyntie six take care of and keep the peace and government of the said burgh untill the said new electione upon the eight of december next And also ordaines that the electione of magistrats Counsell and office bearers of the said burgh proceed at Michaelmise J^aj vi^c nyntie eight and therefter Conforme to the said sett and acts of parliament in all points And ordaines Letters of horneing on Fowrtie eight houres and others to pass heiron in forme as effeirs at the instance of the saids persewers in the principall lybell