Att Edinburgh the Eight day of December J^aj vj^c and nyntie tuo years

A1692/12/7

A1692/12/7¹

Decreet

Decreet and Act Dean of Gild McLurg and others against Provoest Hall and others

Anent the tuo severall Lybells raised befor the Lords of there Majesties privie Councill at the Instance of James McLurg Late dean of guild of Edinburgh George Clerk Robert Blaickwood and William Pattoun Late Bailzies of Edinburgh Duncan Mcintosh Late bailzie of Leith Robert Inglis Late Deacon conveener of Edinburgh James Penman Late deacon of the Goldsmiths thereof, William Scot present deacon of the wrights there Andrew Patersone Late deacon of the wrights there with Concourse of Sir William Lockhart there Majesties Sollicitor for there Highness interest in the matter underwreitten Makeing Mentione That albeit the Lawes of this and all other well governed nationes does most vigorously oppose the perpetuating of magistrats within burgh and the Inhanceing thereof in the hands of a few who might aither Continow themselves constantly or by turnes in the Government And thereby have opportunity to appropriat and Imbaizle the comon good at there pleasure and severall Constitutiones have been made in most of all the Royal burrows of this Kingdome for preventing of such factious projects of Inhaunceing the government And as faction and privat advantage is most Lykely to take place in this metropolitan citie So there hath been a verie speciall care and regaird hade by the Sett or decreet arbitrall pronunced by King James the sixt For decydeing differences anent the government thereof which doeth speciallie regulate not only the maner of electione Bot also the tyme that magistrats and Councillors can remaine and Continow in the government And doeth subjoyne a most severe certificatione as the punishment of all transgressors thereof (page threttie one) And provydes that whoso Contraveens the samen shall be repute and holden as troublers of the quyett estate of the Comonwell Incurr the note of Infamie and forfault and tyne there freedome for ever And be otherwayes persued and punished as seditious persones Conforme to the Lawes of the Realme with all rigor and extreamity which sett and decreet arbitrall wes afterwards ratified and approven In parliament and the rules and Constitutiones thereof alwayes Looked upon as a foundamentall Settlement Establishing a peaceable and orderly Government The Contraventione whereof is severely punishable according to the forsaid Certification and the Lawes of this Kingdome Nevertheless It is of veritie that the present sett and factione of the Magistracie Haveing come in to the government of the Citie in the year J^aj vj^c and Eightie Nyne Some designeing persons among them sett up the project of perpetuating the Magistracie in there hands by termes And fell upon methods and practices which hade been utterly unknowen to all that preceeded them in the magistracy For the comon good of the toun of Edinburgh haveing been Encreassed by the bountyfull donatives of there majesties Royall predicessors from tyme to tyme according to the exigencie of there expenses and burdens In relatione whereof The magistrats of this citie were always duetyfull and obsequious readie to promott and advance there Majesties Royall Interest In parliament and in everie Capacitie that they were Imployed yet these Magistrats were so Litle Cautious and prudent in there manadgement that it faired the worse with the Concernes of the toun for there cause And If they were not the occasione At Least they hade the misfortune to see the most considerable pairt of the revenue whereof there predicessors hade been in possessione Cutt off by ane act of parliament in there oune tyme Yet they did not Ceass to prosecute there first designe And to that effect Sir Archibald Mure Late proveist Gott himself advanced to be proveist in Junij J^aj vj^c and nyntie one upon a vacancie by the demission of Sir John Hall By most Illegall and factious methods and Manifest violatione of the sett and decreet arbitrall of the Citie And did continow more and more to Infringe the same at the following electione at Michaellmes J^aj vj^c and [nyntie one] most of all at the Last Electione at michaellmess J^aj vj^c and nyntie tuo years By which streatches all the Clogs and weights that Lay upon them before are now throwen off and Sir Archibald Mure who succeeded Sir John Hall hath reponed Sir John again And the rules and Constitutiones of the Citie being so Invaded The Magistracie and Councill is now in such a Channell as that Sir John Hall is enabled to repone Sir Archibald Mure with Less streatch and And so the government of the toun perpetuat to them tuo pervices And the Comon good will become in there power as a propertie To be applyed aither to there privat use or for supporting of there factione by Liberall gratificationes at there pleasure And the Illegalityes of the forsaid three Last electiones will appear by a true relatione of what is past Compared With the sett and decreet arbitrall and the toun Councill books as followes After Sir John Halls demission There wes a pairty in the toun Councill of Edinburgh determined by right or wrong to advance Sir Archibald Mure to the vacant office And albeit these who were opposites to Sir Archibald Mure were satisfyed to aggree with them in the Electione of any Indifferent Substantious persone yet no other wes found fitt to ansuer there designes The sett requyres thretty persones to be present at the Liteing of magistrats And the proveist who preceeds haveing tuo votes There is alwayes a vote above the Number of persones both at Leiting and electing And In absence of the proveist the next Magistrat doeth preceed and vote first and consequently must give the Last vote In case of equality The first stop towards the Letting is to supplee the want of any absent Magistrat or Councillour And the makeing up of threttie persones And these who are then elected are called proxies And at this tyme there happened to be but tuenty tuo present in Councill whereby Eight proxies were to be chosen the most pairt whereof were elected by ane uncontraverted plurality Such persones as were opposite to the advance divyded equally eleaven to eleaven As to the rest of the proxies The Eldest Bailzie who preceeded Gave the Casting vote Contrarie to these that were offered by Sir Archibald Muirs factione Sir Archibald and his factione Finding they hade Lost all the Eight proxies And by Consequence the Electione They first protested againest the odd vote off which all who ever preceeded in the toun Councill were in possessione agreeable to the sett And then did withdraw in a most Irregular and mutinous maner yet these who remained desyreing to prevent divisione in the Councill did not think fitt to supplee the places of these who hade withdrawen By calling in new proxies and makeing of Lites But did adjourne to aneother dyet And to Justifie the Legallity of there procedure did exhibite ane Informatione to the Duke of Hamiltone president of the Councill which His Grace did Comunicat to the boord, There Majesties privie Councill haveing called both pairties It wes made appear beyond all controversie or debate That the president for the tyme hade right to the first and Last vote In case of equalitie But these who adhered to Sir Archibald Sticking at nothing that could carry there point did boldly and falsely assert that there wes no place for choiseing the eight proxies Bot that tuo or three of the old merchand Councill who hade gone off at michaellmes preceeding hade a proper right to be present and vote without electione And that they were not called and Consequently the procedour² null whereby they threw durt in there oune faces who had votted for eight proxies And such a notione hade never entered in the head of any man at that or any other electione of the Lyke nature Yet the privie Councill took notice of that bold assertione which wes not in the Least regarded or thought worthie of ane ansuer in the debate and Fand that the tuo old Councillors ought to have been called to ane extraordinarie electione being on the place and no proxies should ahve been chosen for them unles refused when called And that any electione made without there being called wes unformall and Irregular And thereby ordained the magistrats and Councill to begin a formall electione de novo Sir Archibald and his factione haveing the advantage of this unexpected interloquitor (which the privie Councill hoped would be the mean of peace and unity) They knew that there affection would not byde a second view And therefore did peremptorly resolve to precipitate the electione before the privie Councill should again sitt And to this effect The Interloquitor being pronunced upon thursday the fourt of Junij J^aj vj^c and nyntie one The youngest bailzie Patrick Halyburtoun who wes the first Magistrat that adhered to Sir Archibald did take upon him to call a Councill upon monday and extraordinarie dyett and the Leitts and Electiones were both made monday In which Electione The following gross nullities were Remarkeable³ viz primo The privie Councill hade annulled the former electione of proxies Because tuo or three of the old merchand Councellours were not warned and admitted to vote by there proper right Yet Sir Archibald and his factione took off the mask And were not ashamed by there practice to oune and acknowledge to the world how Impudently they hade affected that falshood to the privie Councill For they did choose the same number of proxies as hade been formerly elected and did not Call or admitt the old merchand Councellours to vote as of propper right Because it hade Indeed been Inconsonant to the sett and former practice So that If the first electione of proxies wes null The Second wes much more null being made in the same Individuall forme And If the first wes good as truely it wes There wes no place for the second Secundo The proxies at first elected haveing as good right to sitt and vote In makeing of Leitts and electiones as the Magistrats or Councill hade to there offices They raised a declarator of there right And gave in a petitione to the Lords⁴ Desyreing that the same might be summarly discussed which the Lords appointed to be seen and ansuered And this delyverance wes duely Intimate which they did not regaird Tertio The Sett pages Fyftein and sixteen appoynts the Leiting to be in one and the Electione in ane other yet here both wes performed in one day Because upon tuesday therefter both the Councill and sessione were to sitt which would have put a stopt to there procedour Quarto This method of procedour wes so displeasing to the toun That scarce could they find votters to make up the number requyred, in all Edinburgh But to this end Emissaries were sent out with Liberall distributiones of threatts and promises as best might sute And all this could not make up the Compleat number without Imploying the touns servants and pensioners who by act of this meeting of the Estates were Excluded from votteing in the electione that wes then made by the poll And yet this Limited number of threttie persones could not be made up in all Edinburgh without Such Sir Archibald being advanced by such Illegall and factious methods The same have been Continowed at the severall electiones since And now there is a plain way Laid doun to perpetuat the magistracie betuixt Sir John Halland him Sir Archibald being elected in Junij J^aj vj^c nyntie one At the ensueing electione at michaellmess therefter He made the following Invasiones upon the sett viz primo It is provyded by the sett (page tenth) That none be bailzies Dean of Gild or Theasurer without they have been a year or tuo upon the Councill But Bailzie Patrick Johnstoun one of Sir Archibalds partizans wes advanced to be a bailzie albeit he hade never been upon the Councill But about Fourteen or tuenty dayes at most about the tyme of the election at michaelmes J^aj vj^c nyntie Secundo By the tenth page of the said sett It is provyded That none shall be upon the Councill above tuo years together except they be office men or by vertue of there office be on the Councill yet George Stirling Sir Archibalds deacon conveener wes no officeman nor upon the Councill be vertue of his office nor wes Capable to bear office as a tradsman wes Continowed upon the Councill tho he hade been alreadie tuo Compleat years upon it and a protestation taken against his being continowed upon the same Tertio The sett appoynts threttie Eight persones to be present at Electiones and at borrowing of money and all acts of Importance. Yet Sir Archibald thought fitt to abridge this Number By Causeing elect […] Carss ane extraordinary deacon to be also a trade Counsellour And so to personate tuo places By which method once sustained The Councill might be abridged at pleasure And Consequently easielyer manadged by a progecting proveist And thereby It wes necessarie to choose a proxie for Deacon Carss at the electione Albeit Deacon Carss wes personallie present Because the electione Cannot proceed without the full number by persone or proxie Sir Archiband being Continowed at michaellmess J^aj vj^c nyntie one He caused choose his predicessor Sir John Hall at Michaellmess J^aj vj^c nyntie tuo a practice never formerly knowen in Edinburgh And if not Crushed in the budd may be Carryed farr on to the discouragement of other deserving persones and Inhaunceing of the comon good This Electione being verie displeasing to the Inhabitants wes not Carryed without a great strugle and many Illegalityes as primo Deacon Carss who hade been choosed the year preceeding in a double Capacitie wes present at the Electione both in persone and by proxie Secundo Notwithstanding of all this airt The plurality haveing elected proxies contrair to expectatione such as were not favourable to Sir Archibalds designe He to Cause remove those proxies and choose others in there place without any shaddow of Cause of pretence Except that the Councill thought fitt to vote them out of doores the day of the Electione and to put others in there place which is Contrair to the Immemoriall practice of this place And whereupon protestations and Instruments were taken that no vote should pass for changeing of them more then any other of the Councill yet Sir Archibald pressed the vote and thrust them out of Doores Choosing others in there place which is contrarie to the sett page sixteint and seaventeinth where after threttie persones are appoynted to be present at makeing of Lites It is appoynted that the said threttie persones And with them Eight Craftsmen shall elect whereby It is clear that the same persones who vote in the Leitting have right to vote at the electione Tertio Sir Archibald knew very well that If all who were present at the electione were admitted to vote these proxies would have been returned by plurality of votes Therefore he Suffered not the extraordinarie Deacons to vote who by the sett are appoynted to be present and vote at electiones And yet he suffered the proxies elected to make up the number of threttie to vote tho they be not of the extraordinarie Councill Because these proxies were for his purpose Aneother noveltie never formerly practised which wes necessarie to carry the point Quarto The sett being carefull to obviat such factions practices provydes (page sixteenth) That the persones appoynted for Leitting shall solemnely protest befor God That they shall choose whom they think most meet without favour hatred or any kynd of Collusione And then they shall begin and choose the Leittes And this Chapter is annuallie read at the Leitting of the magistrates whereupon one of the Councill requyreing that according to it Every member shall protest befor God that he acted without feade or favour It wes expressiones rejected and refused and Instruments taken thereupon Quinto George Stirling appearing at last sensible that he hade sufficiently transgressed the sett By Continowing the former year He at first refused to be Continowed this year also and acknowledged that his Continoweing wes contrair to the sett That there wes a protestation againest him That it wes againest interest and prejudiciall to his health And therefor desyred for the Lords sake to be excused which other members haveing heartily closed with and prayed with more sincerity then he that the excuse might be admitted Yet Sir Archibald declared he would not want so usefull a member And George wes prevailled with To make bold with the sett yet aneother year And haveing taken his place wes very active in what followed in the electione Sexto James Bouden wes brought to be bailzie who wes Incapable Because he hade never been a year upon the Councill but wes brought in at Sir Archibalds first electione to be a Councillour to serve his designes In which office he continowed onely four moneths viz from Jullij to october whereas the sett (page tenth) requyres that no bailzie shall be elected who hath not been one year or tuo upon the Councill Septimo William Meinzies hath also been Continowed upon the Councill above tuo years without being in any office Besydes tuo years that he wes theasurer which is not only Contrarie to the sett (page tenth) As above mentioned But Lykewayes his case is of pernicious consequence For he wes tuo years theasurer and greatly Indebted to the toun And albeit he hath been a great ring Leader of the factione that promotted the Illegall Magistracie Yet he hath never hitherto got his compts Cleared and allowed And it is againest the constant Custome and interest of the burgh That ane old Theasurer who hath not cleared his compts be continowed upon the Councill so much as one year Except as old theasurer by course much Less that he should continow three By which means he will Certainly at last obtaine a discharge of his accompts Haveing alreadie gott a gratificatione of Ane Hundreth pound sterling for his good service which in plain Languadge is his factious procedour in the former Illegall Electiones And to shew the designe of the said George Stirling to Inhaunce the magistracie for this year albeit he wes a trades Councillor the Last year He wes chosen a new trades councillour this year By which he personat tuo offices at the electione of the election of the⁵ magistrates At Last Straittned the Number of the electors Because one behooved to be chosen proxie for him as old Councillour albeit he wes present himself Contrair to sense and reasone and the sett of the burgh And did persist in overturning the sett of the burgh and ane free electione by Causing William Livingstoun Deacon of the Glovers James Crawfurd deacon of the Chirurgeons […] Meldrum deacon of the furryers William Scott deacon of the baxters Alexander Thomson saidler trades councillour and severall others Combyne and enter in a Conspiracie with him By Signeing a paper under there hands to adhere to Sir John Hall And sieing it is manifest that the sett and Constitutione of this burgh is Infringed violated and Invaded by Sir John Hall Sir Archibald Mure Patrick Halyburtoun Late bailzie Patrick Johnstoun Late bailzie William Meinzies Late Theasurer and George Stirling Late deacon conveener who have the present Influence of the magistracy and there partizans Therefore the forenamed persones and haill other members of the toun councill ought to exhibite and produce the toun Councill books Containing the procedour at the severall dyetts for Liteing and Electiones And the forsaid Illegall Electiones at the Least the Last electione should be annulled and declared voyd And the haill persones forsaid ought to be turned out of the toun Councill and otherwayes punished in there persones and goods To the terror of others to committ the Lyke in tyme comeing. And Anent Given to the present Magistrats and Councill of Edinburgh and haill forenamed persons particularly above Compleaned upon be vertue thereof To have Compeared before the saids Lords of there majesties privie Councill at and upon ane certaine day bygone To ansuer to the Grounds of the above Complaint And to hear and see such order and Course taken thereanent as the saids Lords shall 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 for denunceing them there majesties rebells and putting them to the horne simpliciter As the said Lybell and executiones thereof at more Length bears And The Other of the saids Lybells at the Instance of the said⁶ Sir John Hall present proveist of Edinburgh Sir Archibald Mure Late proveist of the said burgh Patrick Johnstoun late bailzie of the said burgh William Menzies Late Theasurer and George Stirling late deacon Conveener there And Sir William Lockhart there majesties sollicitor for there Highnes interest in the matter under wreitten Makeing Mentione That whereas by the Comon Law and the Lawes of all well governed nationes and the Lawes and practice of this Kingdome The traduceing and defameing of any persone by the Injurious and approbrious expressiones is ane high cryme and severely punisheable Especially when done by burgesses againest there magistrats in the exercise of there office whom by there burges oath They swear They shall obey fortifie mantaine and defend in the executione of there offices And by the Hundreth and Fourth act parliament Fyfth King James the Fyfth as it is provyded that all Judges should doe true and equall Justice without any partiall Councill rewards and budds under the pain of Infamie So it is statute that If any murmur them falsely He shall be punished in sembable maner Yet notwithstanding James Macklurg late dean of Gild of Edinburgh George Clerk Robert Blaickwod and William Pattoune Late bailzies of Edinburgh Duncan Mcintosh Late bailzie of Leith Robert Inglis deacon conveener of Edinburgh James Penman deacon of the Goldsmiths William Scott present deacon of the wrights And Andrew Patersone late deacon of the wrights Hes contraveened the forsaid Lawes and acts of parliament and most unjustly traduced and Infamed the Compleaners by Injurious and approbrious expressiones and murmured againest them falsely In so farr In the Lybell raised at the Instance of the said Dean of Gild McLurge and the other persones compleaned upon againest the present magistrats and the other defenders They Call the present magistrats and the other defenders They Call the present magistrats and toun councill ane sett and factione of the magistracie who came in to the government of the Citie in the year J^aj vj^c and Eightie nyne which is a reflection not only upon the present magistrats and Councill But upon the meeting of the Estates who upon the account that the burroughs hade Generallie suffered Incroachments on there Libertyes and priviledges in former electiones Therefore granted warrand for a new election by the poll and conforme to the act the election wes duely made in the year J^aj vj^c and Eightie nyne And in severall other places In the Lybell They Style the present magistrats and Councill to be factious And to have come into the government by factione which is in itself most false and Calumnious So it is ane high reflectione upon them And the said Dean of Gild McLurg and others Compleaned upon By no persones can quarrell the preceeding electiones as factious sieing they themselves were chosen magistrates and Councillours at the saids electiones And be vertue thereof did Continow to act as Magistrats and Councillours these years they were elected So that the said Dean of Gild McLurg and the other persones Compleaned upon may be properly said to be factious By raising the forsaid groundles and Calumnious process to disturb the peace and quyett of the burgh As also that Lybell mentiones that Sir Archibald Mure and other Magistrats and Councill did boldly falsely and Impudently assert That there wes no place for chooseing of proxies But that the old merchand Councillours who hade Gone off at michaellmess preceeding hade right to be present and to vote which is a high reflectione sieing it wes both Just and true and agreeable to the sett That the old merchand Councill by there oune proper right might be present and vote at electiones and wes so found by ane act of privie Councill And it is no wonder that the said Dean of Gild McLurg and the other persones Compleaned upon does asperce the magistrats and toun Councill Sieing they seem to make bold with the privie Councill itself and mentiones that the privie Councill took notice of there bold assertione which wes not in the least regairded or thought worthie to be ansuered be the other pairties as if the privie Councill Could be Imposed by the assertion of any pairtie And would pass ane act thereupon without being satisfyed and Convinced both as to the verity and Justice of the thing asserted As also the said Lybell bears that the Magistrates to fill up the number of persones requyred at the electione did send there Emissaries with Liberall distributiones to get persones to come in and give there votes which is doun right to accuse the magistrats of bryberie which falls directly under the forsaid act of parliament of King James the Fyfth As also upon the […] day of November J^aj vj^c nyntie one or ane or other of the dayes of the said moneth William Pattoun late bailzie did accuse Sir Archibald Mure proveist of the Citie and at that tyme a privie Councillour William Meinzies and George Stirling by Scurrolous and Injurious expressiones⁷ Calling them knaves Rascalls and villains And Endeavouring to defame them by many such opprobrious words As also the said James Macklurg upon the […] day of september last or some few⁸ dayes befor the Electione did Call the said William Meinzies ane rogue and a cheatt and other Injurious expressiones to that purpose As also the said Lybell bears that the said William Meinzies wes ane ring Leader of the factione that promotted the said Illegall magistracie And that he got ane gratificatione of Ane Hundreth pound Sterling for his⁹ service done in promoting of the same which is most false and Injurious For the said William Meinzies Came in to be theasurer when the Electione wes made by the poll in the year J^aj vj^c and Eightie nyne By warrand of the meeting of the Estates And he never receaved any thing from the toun Except at the Clearing of his accompts he wes to have allowance of his Incident charges which is constantly allowed to all theasurers As also the said Lybell bears that albeit by the sett it be provyded that the magistrates and Councill at the makeing of the Leites should declare that they Give there vottes to such as they find meet for the well of the toun according to there Conscience and knowledge butt fead or favour yet it is alleadged that this wes neglected to be done at the last electione though some of the Councill did desyre it which is a most Injurious Calumny For it being desyred by Robert Blaickwood one of the Councill Sir Archibald Muir there proveist did declare that the magistrates and Councill by there oath de fideli were bound to give the voyce of there Consciences And the said Robert Blaickwood Continowing to urge to get ane oath Imposed The proveist told them that they were to give the voyce of there Consciences as in the presence of God whereunto they all gave there assent And particularly the said Robert Blaickwood In face of Councill acknowledged he wes fully satisfyed therewith As appears by the extract of the act By which the grossnes of the Calumnie does evidently appear of all which Crymes the forenamed persones are guiltie as actors airt and pairt and ought to be punished in there persones and goods to the terror of others to Comitt the Lyke in tyme comeing And Anent the Charge Given to the saids defenders in the reconventione To have Compeared befor the saids Lords of there majesties privie Councill the first day of december Instant to have ansuered to the points and grounds of the above Complaint and to have heard and seen such order and course taken thereanent as the saids Lords shall think fitt under the pain of rebellione and putting of them to the horne with Certification to them if they failzied therein That there majesties other Letters Should be direct againest them for denunceing them rebells and putting them to the horne Simpliciter As the said Lybell and executiones thereof more fully proports. The said principall Lybell Being upon the tuenty nynth day of november Last called in presence of the saids Lords And the persones Compearing personallie with Sir James Ogilvie Sir David Thoirs Mr Hugh Dalrymple and Mr David Cunninghame there advocatts And the saids Defenders Compearing also personallie with Sir Patrick Home Sir Robert Colt Mr John Meinzies and Mr George Alexander there advocats And the said Lybell with a petition given in be the defenders being read The saids Lords allowed the defenders till thursday the first of December Instant to prepare there ansuers And in the mean tyme ordained them to produce the registers of the toun of Edinburgh In relation to the Last three electiones of the magistrates thereof with the principall sett of the said toun or decreet arbitrall pronunced by King James the sixt in the hands of the Clerks of privie Councill betuixt and tuelfe acloak the morrow in the forenoon And If any of these elections be not recorded ordaines the principall warrands to be produced And thereafter Both the saids Lybells being called in presence of the saids Lords upon the said first day of december instant and the persewers in the principall Lybell who are defenders in the reconventione Compeareing with there advocatts above named And the said and defenders in the principall Lybell who are persewers in the reconventione Compeareing Lykewayes personally with there advocats also abovenamed At least both pairties advocatts haveing declared that they held the persewers and defenders in both Lybells as personallie present at the barr albeit they could not come at the same for throng The advocats for the defenders in the principall Lybell Craved that the persewers thereof might be ordained to signe the same In respect it is defamatorie againest the Magistrats and toun councill of Edinburgh In the present office And the persewers advocatts made ansuer That severalls of the persewers themselves were present at the barr who declared they were readie to oune and prove the Lybell And the saids Lords haveing considered the dilator proponed for the said defenders in the pincipall Lybell viz That this process being for annulling the Late electione of the haill magistrats and toun councill of Edinburgh whereof a few are Cited no process can be sustained unles everie particular magistrat and Councillour were called Sieing all the respective Electiones will fall If this Lybell be sustained and proven with the ansuer made thereto for the persuers that some of the Councill are called upon particular heids And there is a quorum of the wholl cited as pairtyes and severall others of them are Cited as witnesses They Repelled the said dilator hoc Loco And declared that they would take the same to there Consideratione the tyme of advyseing the said cause And therefter the saids Lords haveing considered both Lybells with the ansuers given in to the principall Lybell And haveing considered the toun councill books produced be the defenders with the printed sett of the toun of Edinburgh or decreet arbitrall of King James the sixth And having heard both pairtyes advocats debate this matter at full length in there oune presence They ordaine both pairtyes to prepare and delyver there Informationes in this matter to the Lords of privie Councill againest tuesday next And The witnesses for both pairtyes (such of them as were present as they are marked in the rolls) Haveing made faith and the saids Lords appoynted a Comittee of there oune number to examine the witnesses and reserved all objectiones which might be made againest the witnesses to be proponed and discussed befor the Comittee and upon the second day of december Instant The said Comittee haveing reported to the Councill That the persewers in the¹⁰ principall Lybell offered to prove that poynt anent the Combination as Lybelled be George Stirling one of the defeners in the said Lybell his oath of veritie In so farr as the same may Inferr any guilt or accessione againest himself and be the subscryvers of the paper or other habite witnesses In so farr as the same may Concerne the other defenders The Saids Lords of there Majesties privie Councill Fands that the pairties might prove the different points in there Lybells aither by oath of pairtie or by witnesses But that they Cannot make use of both oath of pairtie and¹¹ witnesses for proveing one and the same poynt of aither Lybell And the saids Lords haveing upon the sixth day of december Instant Considered the tuo petitions given in to them the said day The one be the defenders in the principall Lybell Craveing the advyseing of the process to be delayed till the next councill day In respect the probation in the defenders reconventione is not Closed And that more persones are Cited to ansuer this day to the principall Lybell then more cited at first And the other be George Warrander present Theasurer and John Robertson late bailzie of Edinburgh and others Craveing the advyseing of the said process to be delayed till next Councill day And that the Citationes given to thir petitioners may be declared null In respect they were cited upon Saturday last And the Lybell whereupon they were Cited wes not signed till the monday after they receaved there citationes. The saids Lords Fand that no process could be sustained upon these last Citationes But declared they would proceeed to advyse the principall Lybell with the ansuers and probatione without delay And the saids Lords haveing considered the principall Lybell this day with the ansuers made thereto for the defenders Together with the Lybell of reconventione and the depositiones of such of the defenders as were taken in the principall Cause with the depositiones of the witnesses taken upon that poynt of the reconventione which relates to Bailzie Blaickwood his Craveing that the protest in the sett might have been administrate at the Leitting And lykewayes haveing considered the sett of the burgh of Edinbrugh They Find that the turning out of the proxies elected the day of makeing the Leitts after they hade votted in the Leitting and befor they votted in the election of the Magistrats then Leitted is a breach of the sett of the burgh And Declared They Lett fall that poynt of the Lybell anent Bailzie Patrick Johnstoun And Finds that George Stirling his being Continued more then tuo years together upon the Councill tho in different Capacityes is a breatch of the sett And as to Bailzie Blaickwood his craveing that the protest in the sett might have been administrat befor Leitting Finds it wes sufficient that Proveist Mure declared the Electors were to give the voyce of there Consciences as in the presence of God to supplee the protesting in the termes of the sett And therefore assoilzied the defenders from that point of the Lybell And Finds that James Bouden his being chosen a bailzie befor he hade been a year or tuo upon the Councill is a breach of the sett And Finds that William Menzies his Continowing upon the Councill more then tuo years which he wes theasurer and a year thereafter by right of his office as old theasurer is a breach of the sett And Fand the Combinatione Lybelled not proven And therefore assoilzied from that point And Fand that there is nothing in the Lybell of reconventione relevant or proven to eleid any of the above poynts of the principall Lybell which are found relevant and proven to Inferr a violatione of the sett And Fand that the poynts proven are sufficient to annull the electione of the magistrats and toun councill made att michaellmess last And therefore declared the said electione of the saids Magistrates and Councill Null And ordained the magistrats and toun councill who elected at michaellmess last to proceed to a new electione of magistrats and toun Councill to serve in the said burgh untill Michaellmess next And In order thereto appoynted them to meet upon Thursday then next this eight day of December Instant and make up there Leitts for the saids magistrats and Councill And upon frydday therefter being the nynth Instant to meet and make there electione of the persones who are to serve as Magistrates and toun Councill for the tyme forsaid And declared the saids George Stirling William Meinzies and James Bouden incapable to have any vote in this electione aither by electing or being elected pro hac vice But appointes there places to be supplyed by proxies And superceeded all further sentence againest thir three defenders as to the personall punishment untill there behaviour in this ensueing electione doe appear And Anent the petitione Given in to the saids Lords of there majesties privie Councill be the saids James McLurg Late dean of Gild of Edinburgh George Clerk Robert Blaickwood and others merchands and tradesmen of Edinburgh Shewing That where the saids Lords have Considered and determined severalls of the points Lybelled by the petitioners againest the Late Magistrates of Edinburgh And Found that the sett and Constitutione of the burgh hath been violated and Invaded by Introduceing or retaining certain persones in the magistracie or Councill and by excludeing proxies Legallie elected and receaved And therefore have annulled the Last electione And appointed a new regular and formall electione wherein the petitioners doe acknowledge that the saids Lords have proceeded with great regaird to the foundamentall Lawes and Constitutions of this metropolitan Citie And that few examples can be given of so clear and distinct Interloquitors of the privie Councill In a case so full of variety of fact And wherein the debate wes founded upon many severall and dinstinct titles of the sett which the saids Lords formerly hade Litle opportunity to be Informed of But there Lordships haveing bestowed Long tyme upon the particulars determined hade no Leasure at one Sederunt to discuss all, And Especiallie these articles which doe relate to Sir Archibald Mure Patrick Johnstoun and Patrick Halyburtoun who are Speciallie Lybelled againest and not assolzied It is therefore humbly represented to the saids Lords That the great paines which there Lordships have taken may in a great masure become Ineffectuall unles the Lybell be taken to Consideratione againest these persones For albeit some of them were not upon the Councill when the Lybell wes raised yet by reponeing the Councill which wes befor Michaellmes They will all fall to be in the Councill again And be in a conditione to turne the electione which way they please The petitioners doe therefore renew there former protestation That they are not moved to this process by any desyre of advanceing themselves or any other cause save that of restoreing the priviledges of the toun and a free electione And desyre that the saids Lords would yet consider the following grounds for removeing Sir Archibald Muir as primo His Entering into the magistracie wes Illegall and unjust Founded upon a bold but false assertione before the saids Lords whereupon a former regular and Legall Electione of proxies who would never have chosen him wes annulled and yet the electione of proxies at his advancement In the same Individuall maner So that the Foundatione of his Magistracie is aither ane asbolute falshood or ane Illegall Electione Contrarie to ane act of privie Councill upon his assertione And so is null/ Secundo/ The petitioners doe not alleadge that this nullity in his electione should by Consequence reduce the wholl magistracie that were in office with him For he wes not advanced at a Michaellmess But by a single extraordinarie electione So that the effect of quarrelling that electione is only to turne out Sir Archibald who comeing into the magistracie in such a maner did thereby raise a Combustion in the toun which continowed ever since And he hath Left it in a flame Tertio By Sir Archibald thus entering into the magistracie By Succeeding electiones he hath made the Influence to frame the ordinarie Councill at his pleasure And If he should now be reponed to preside and regulate a new electione The plurality of that Councill Introduced by himself will sway the Electione which way he pleases And thereby Leave the Government of the burgh more Inhaunced then formerly For the plain trueth is That the petitioners hade never that personall Jealousie of Sir John Hall as that they would have Grudged his magistracie unles he hade been so absolutely Influenced by others as to serve all there turnes which he never failled to doe If Sir Archibald and he shall yet goe one to divyde the magistracie The priviledges of the toun are not yet fully restored And sieing he is Lyable to such Just exceptione Both for the factious maner of his entrie Continuance in and exit from the magistracie Haveing presided pressed and actuat all the Illegalities in the Last election The petitioners are humbly Confident That the saids Lords will never think it Just That he should Continow to be a member much Less preside at the new electione /Quarto/ As to Patrick Johnstoun he falls in Consequence with the Interloquitor anent Bailzie Bouden For be reponeing the old Councill he would come in to be a present bailzie at the new Electione which he is Incapable of Haveing never been a moneth upon the Councill befor he wes Elected bailzie /Quinto/ Patrick Halyburtoun being accessorie to the precipitation of the Election of Sir Archibald By takeing upon him to preside in the Councill when he wes youngest Bailzie And Calling extraordinarie dyetts of Councill He ought also to be excluded By which means there will be only fyve of the tuenty fyve of Sir Archibalds oune Councill excluded And there will still remaine tuenty to make Choise of the new Deacons and of the new trades and merchand Councillours and proxies which is a greater number then is usuallie present at Councill And therefore Humbly Craveing That there Lordships would be pleased To Consider and determine the other points of the Lybell In relatione to these three persones abovenamed And to exclude them from haveing any share in the Electione or capacity of being elected for this ensueing year to preserve the toun from the factione that hath been occasioned by Inhauceing of the magistracie As the said petitione bears Which Being read In presence of the saids Lords They be there Interloquitor of the dait the seventh Instant allowed the said Sir John Hall and remanent defenders in the above Lybell To see and ansuer the same againest this day And prorogated the dyett appoynted by there Inteloquitor of the date the sixth day of december Instant for Leitting and Electing the magistrats and Councill viz The leitting till Frydday the nynth and electing till Saturday the tenth Current And appointed them to proceed in Leitting and electing according to the former Interloquitor and sett of the burgh the saids dayes And The Said Sir John Hall and other defenders haveing Conforme to the above ordainance seen the forsaid bill They Gave in there ansuers thereto following viz As to the preamble of the bill acknowledging there Lordships Justice done to the petitioners in reduceing the last electione The defenders oppone the grounds contained in there printed Informatione and represented in a bill given in by them whereupon They Humbly expect the saids Lords will reconsider the wholl matter And assolzie the defenders Instead of proceeding further to debarr the petitioners from haveing a vote in the next electione of being Incapable to be elected thereby which is the desyre of the persewers bill wherein they planely acknowledge that the electione will still goe otherwayes then they would have it unles the saids Lords Incapacitat three of the defenders besyde the three alreadie debarred from votteing which six they reckone to be fyve putt off the ordinarie Councill There arithmetick being verie Analogous to there Law In ansuer to which The defenders doe humbly represent primo That tho the last Electione should fall (which point It is hoped there Lordships will reconsider) yet thir three defenders viz Sir Archibald Muir Patrick Johnstoun and Patrick Halyburtoun being members of the toun Councill for the preceeding year They Cannot be debarred to vote alse Long as the Election at Michaellmes J^aj vj^c nyntie one is not annulled unles it were per modum pene¹² And which penalty of Incapacity Cannot be Inflicted upon them for any alleadged alleadged¹³ misdemaineors Because there is no such penalty Lybelled againest them As to which point The defenders humbly desyre there Lordships would consider the grounds represented in the defenders bill why James Bouden William Meinzies and George Stirling cannot be debarred to vote / Secundo/ Tho Incapacitie were Lybelled (as it is not) yet there is no misdemanour Lybelled and proven against Sir Archibald Mure Patrick Johnstoun and Patrick Halyburtoun which deserves the least repremand Let be Incapacitie which is a severe censure upon a mans fame and reptutione For as to that pretence objected againest Sir Archibald Mure his electione viz That he wes elected by proxies that were Illegallie chosen aither because there Lordships hade appoynted the old Councillours to vote or because of the Casting of the former proxies If the old Councillours hade no right to vote It is ansuered That alse oft as the persuers doe press this point as a weightie matter with nauseous repetitione alse oft The defenders must ansuer That it wes a true assertion in Jure That the old Councillours should vote to the Leitting and Election proprio Jure And not by proxies And that it wes Just in the saids Lords to find so And that it wes true defacto and proven by the books That Captain Baillie wes ane old Councillor And in obedience to there Lordships Comands admitted to vote as such being designed ane old Councillor and not a proxie And altho Patrick Johnston wes allowed to vote as a pairity and not as ane old Councillour That does not alter the case in law Captain Baillies right to vote proprio Jure being allone sufficient to cast the former proxies and Let the petitioners Clamor as Long as they please That it is ane bold and Impudent assertion to affirme that the old Councillors have right to vote proprio Jure The defenders doe still affirme it alse Long as the sett appoints the thretty for Leitting to be Eighteen of the new Councill and tuelve of the old unles the Compleaners will make the seven old magistrates and fyve proxies to be chosen for the old Councillours to be tuelve of the old Councill Tertio Tho there hade been ane Informality in Sir Archibald his first electione as there wes none yet Sir Archibald being the second tyme chosen at michaellmes J^aj vj^c nyntie one (which second electione is not quarrelled by the bill) He hes right to votte as old proveist to the Ensueing election Just as he hade at Michaellmess last Neither can his electione at michaellmess J^aj vj^c and nyntie one fall unles the saids Lords annull the Councill for the preceeding year alswell as the Last Election For If Sir Archibald wes Illegallie Elected proveist at michaellmess J^aj vj^c and nyntie one Then there wes not one member of the Councill Legallie elected for the preceeding year And so unles the tuo last electiones be totally overturned The Compleaners extraordinarie zeall as patriotts for the good toun Cannot appear in there deserved Character of magistracie And as for Sir Archibald Leaveing the toun in a flame He appealls to the saids Lords there knowledge how carefull and zeallous he wes to preserve the peace of the place dureing his magistracie and particularly at the Criticall tyme when the French Invasione wes feared nor is there any flame in the toun But what is kyndled in the breast of the Compleaners Because they were dissappoynted of there expectationes to get James McLurge chosen proveist Quarto As to the pretence that Patrick Johnstoun wes bot a moneth a Councillor And so should be removed to vote as ane old Bailzie As James Bouden is being a present bailzie It is ansuered primo that the saids Lords have by there Interloquitor distinguished betuixt the case of Bouden and Johnstoun In respect Johnstoun Continowed out his full year as a bailzie whereas Bouden hade only been tuo moneths of this Current year / Secundo/ The defenders oppone the grounds contained in there Informatione As to that point That a bailzie needs not be a full year a Councillour before he be chosen/ Tertio/ Albeit it were ane escape in the electors to choose a bailzie of one that hade been but a moneth a Councillour yet there is no fault in the persone elected to accept the same At least that fault Cannot be quarrelled after his office of Bailzierie is expyred to preclude him from a vote in the next electione which he would have hade If he hade Continowed ane ordinarie Councillour / Quinto/ As to the pretence againest Patrick Halyburtoun That he wes accessorie to the precipitant electione of Sir Archibald Mure By presideing in Councill when he wes youngest Bailzie and Calling of extraordinarie dyetts of Councill It is ansuered Sir Archibalds electione is not precipitant There haveing Four dayes Interveened betuixt the order of Councill and his electione which is as Long a tyme as uses to be taken in Leitting and electing a single proveist And which the saids Lords will Judge sufficient for a single proveist Since there Lordships have appoynted the Leitting and electing of the haill Councill to be within tuo dayes And it wes most¹⁴ warrantable for Patrick Halyburtoun when he wes youngest to precede when the Elder Bailzies were absent which wes not upon the day of Leitting and electing At which tyme Michaell Allan presided and the said Patrick did only preside upon the Frydday being the day after there Lordships appoynted them to proceed to the electione when the older Bailzies withdrew for reasones best knowen to themselves And it is false that the said Patrick did Call extraordinarie dyetts of Councill He haveing only adjourned with consent of the Councill And therefore the said Patrick cannot be excluded from haveing his vote as ane old Councillour And In case there by any Insinuatione made to any of the saids Lords¹⁵ further then what is Contained in the Compleaners Lybell and bills It is Humbly craved That before the saids Lords proceed to any sentence That the saids Lords allow the saids defenders to be heard In respect of all which and of the grounds represented in the defenders bill The defenders ought to be assoilzied from the Conclusione of the petitioners bill And Anent Ane other petitione Given in to the saids [Lords] of Majesties privie Councill be Sir John Hall Robert Cheeslie James Bouden William Meinzies and George Stirling Shewing That where the Complaint Given in againest the petitioners be James McLurg and others being debate upon Thursday Last The saids Lords appoynted a Comittee for examineing of the witnesses adduced be persewers and by the petitioners in there reconventione And ordered the petitioners to give in Informationes againe tuesday Last That the saids Lords might then advyse the debate which the petitioners could not get drawen and readie againe that tyme In regaird the depositiones were not taken till tuesday at tuelve acloack Befor which the Informatione could not be Concluded And that upon tuesday last There Lordships proceeded to advyse the debate And thereupon annulled the last electione as to the haill councill of tuenty fyve And apointed a new electione upon Frydday next Dischargeing James Bouden Uilliam Meinzies and George Stirling three of the petitioners to have vote in the said electione As to which the petitioners Humbly represent Primo As to the annulling¹⁶ of the haill Last electione That they repeat the grounds Contained in there Informatione Given in with the said petitione why the samen Cannot be annulled which they hope there Lordships will consider since they could not get the samen readie again tuesday for the reasone abovementioned Being fully Convinced that upon peruseall thereof The saids Lords will aither assolzie the petitioners or remitt the samen summarly to be discussed befor the Lords of sesione or else apply to His Majestie to know his pleasure therein / Secundo/ The petitioners electione Cannot fall unles the haill electione fall And the haill electione Cannot be annulled Because there are sixteen of the toun Councill not Legallie Called As to whom there Lordships have sustained the process In regaird tho they were cited upon Saturday yet the warrand wes not signed till monday Tertio The petitioners presume The saids Lords there ground for reduceing the election of the ordinarie Councill wes the turning out of the proxies the day of the election of the magistrats that hade votted the day of Leitting As to which it is humbly represented that there wes no proxie turned out but Alexander Baird And that whatever Influence that might have hade as to Illegall electione of magistrats yet it hade no relatione to the electione of the rest of the members of the Councill who were Legallie chosen some dayes befor And therefor the Electione of these other members Cannot be quarrelled as a Consequence of that Informality whatever might be pretended thereupon againest the electione of the magistrates Quarto As to the dischargeing of three of the petitioners abovenamed to vote in the next electione It is humbly represented that this is a punishment not Concluded againest them There being nothing Concluded but the annulling of the last electione turning the petitioners out of the Councill and punishing them in there persones and goods And in all Lybells before the saids Lords which Conclude arbitrarie paine however there Lordships doe Lessen the pain ordinarly Less then what is Concluded yet there Lordships doe never Inflict that which is not Concluded And Certainly the punishment of persone and goods Can nowayes Comprehend Infamie nor Incapacity and therefore Can never Import the dischargeing the petitioners to vote in the new electione And as for the words (turning out of the Councill) that is only a Consequence of annulling the electione and not a penaltie So where the former electione is not annulled The petitioners Cannot be turned out of the office they hade thereby And therefore the three petitioners abovenamed Haveing uncontraverted right to vote to the electione at Michaellmess Last (there election at michaellmes J^aj vj^c nyntie one not being annulled) Cannot be hindered to vote at the Ensueing electione but per modum pene to Incapacitate them for a delinquence done by them in there office And which pain not being Concluded in the Compleaners Lybell The petitioners Cannot be hyndered to vote in this electione unles there electione at Michaellmess J^aj vj^c nyntie one were annulled Quo casu The turning them out of the Councill for the year preceeding would necessarly Import that they should not vote at the ensueing electione and therefore since there electione the year preceeding is not annulled And that there is no Incapacity Concluded againest them They ought to have a vott at the next electione And therefore Craveing That the Saids Lords would Consider the premises with the Grounds Contained in the petitioners Information And thereupon aither to assolzie the petitioners or remitt the same to the Lords of sessione or to advyse with His Majestie thereanent as the said petitione bears And The Saids Lords Haveing this day Considered the said petitione Given in to them be James McLurg and others with the ansuers made thereto and haveing also Considered the other petitione Given in be the said Sir John Hall and others and Haveing heard there oune Interloquitor of the dait the sixt Current read In there presence They adhere to the same And Haveing Lykewayes considered the Lybell and ansuers and the book of the proceedings of the toun councill of Edinburgh anent the Last electione The Lords Finds the poynts Lybelled¹⁷ againest the said Sir Archibald Mure Relevant and proven to Inferr a breack of the sett And therefor Declares him Incapable to have any votte in this electione By electing or being elected pro hac vice and appoints his place to be supplyed by a proxie And as to Patrick Johnstoun adheres to ther former Interloquitor And as to Patrick Halyburtoun declares the process to be Lett fall againest And appoynts the Eldest Bailzie elected at michaellmess J^aj vj^c nyntie one to Intimate the meeting of the toun Councill to be on Frydday next for Leitting and Saturday therefter for Electing the Councill and Magistrates to serve this year In maner forsaid And appoynts the eldest magistrat who shall be present of the saids Leitts and electione Conforme to the forsaids Interloquitor and sett of the burgh.