Edinburgh the Eight day of December 1702

D1702/12/9

D1702/12/9¹

Decreet

Decreit the Lord Montgomry Against McTaggart

Annent The Lyble or Letters of Complaint Raised and persewed Befoir the Lords of Her Majesties privie Councill att the Instance of Alexander Lord Mongromry now Earle of Eglintoun present provest of the Burgh of Irving For himself and in name of the magistrats Councill and Community therof With Concourse of Sir James Steuart Her Majesties Advocat for Her highness intrest in the matter underwrittin Mentioning That wher By the Laws of this and all other well governed realms The Magistracie and Councills of Burrowes Royall ought To be setled and mentained For the good Government therof and to Decide all matters of wrong or unlaw within the same and that all muttinies oppositiones or withdraweings to the discurradgeing or weakning therof ought to be repressed And the authors fomenters and abbetters of the same sevearly punished Nevertheless It is of verity That the Burgh of Irveing Being ane antient Royall Burgh And haveing provest, Baillies, and Councill Laufully authorized For the Government therof according to which constitution and knowen sett of the Burgh Seventeen persones Wherof the plurality The Quorum make up the Councill of the same and a certain day is prefixt about the tyme of Michaelmess yearly for electing of a new toune Councill Which happened to be in this present year The Tuenty Fyfth off september Last and was accordingly duely intimat upon which day at ringing of the Bell in the usuall manner Mr Alexander Cunynghame ther Provest Came to attend the Councill for the said Election as knoweing the dyet to be peremptory And in his way finding William Mctaggart Dean of Gild of the said Burgh, and William Thomson shoe maker ther boeth Councellors He Desired them to goe along with him for makeing of the said Election and accordingly the said William Thomson came the length of the Tolbuith stair And after he had advanced the first step The said William Mctaggert in a most insolent undutifull and indiscreet manner Came up and took the said William Thomson by the arme and pulled him back Crying out that he would be the most infamous persone one earth if he went to that meeting Wherupon the Provest Haveing called the Clerk and protested against the said William Mctaggert And haveing requyred him to attend the said meeting The said William not only refused himself to be present But dealt with the said William Thomson to withdraw and by himself and his accomplices hurried him from place to place untill at length they brought him to the house of Mosses Crafourd wher the said William McTaggart and his associats affternamed inclosed themselves and him in a roome and loocked the doors and in the mean tyme The said provest Haveing proceeded to cause call publictly and seaverall tymes upon the whole remanent Councellors To Conveen and keep the meeting Bot non appearing save Eight that wer already meet in the Councill house with James Nisbet a late Baillie of the said Burgh and voted to be ane assessor and assistant in the said Election The Provest took a new protest and then a litle after for super abundance He went in persone to the house wher the said William McTaggart and John Thomson William Broun, John Caldwell, and Samwell Duncan all toun Councellors had shut up themselves and the said William Thomson and the provest after seaverall knocks at the door requyred them all to open the door and to goe and attend the Toun Councill for the said Election at least that they should allow the said William Thomson whom they forcibly detained his freedome to come out But all of them refused Wherupon the Provest againe protested and took Instruments againest them as acting Elegally and unwarrantably and conterar to their duty and alledgence to the Burgh And then returning to the Toun Councell house and againe causeing call publictly the absent Councellors He of new took Instruments upon their Disobediance and Contempt as the said Instruments put in the Clerk of privie Councills hands will testefie Wherupon and after the forsaid and out most dilligence the Provest and these with him With a proxie for John Marshall absent whose mandat was produced and the said assessor whom they hade assumed makeing Ten in all To preserve the previlidge and government of the Burgh proceeded to Elect and Choyse Alexander Lord Montgomry, Mr Alexander Cunynghame, Mr William Cunynghame, William Stivenson, John Marshall, George Monro, Alexander Dyet, William McTaggart, John Thomson late Baillie, John Thomson Candlemaker, John Thomson Cordiner, William Davidson, Andrew Henderson, William Martain, Robert Huistie, John Calderwood, William Caldwell to be Councellors for the ensueing year, and upon the subsequent ordinar dyets. These elected and choysed the saids Alexander Lord Montgomrie provest William Stivenson, and John Marishall Baillies, George Monro Dean of Gild, and Robert Huistie Theasurer, and the it were to be the Councellor’s Who are certainly Boeth Laufullie and necessarly Elected And Therfor The saids Alexander Lord Montgomrie provest, William Stivenson, and John Marishall Baillies, George Monro Dean of Gild, and Robert Huistie Theasurer and Mr Alexander and Mr William Cunynghames, John Calderwood, Alexander Dyet, William Martain, William Davidson, and William Caldwell Councellors, Haveing accepted and being qualefied as they are according to Law ought to be accknowledged for such boeth by the remanent officers and Councellors and Community off the said burgh Notwithstanding wherof The saids Mr McTaggart and John Thomson late Baillies, John Thomson Candlemaker, and John Thomson shoe maker, and Androw Henderson who wer elected Councellors and have not accepted or qualefied themselves, Doe still contumaciously refuise to Concurr with and assist the forsaid Magistrats and Toun Councill as in duety they ought to doe And therby not only give well example But endevour to Stirr up faction and direction in the said Burgh to the great hinderance of the Government, Disturbance of the Community and prejudice of the Commone good therof By all which It is evident how necessary It is That the saids Lords of Her Majesties privie Councill To whom the oversight, Cair, direction, and policie of the Burghs royall pertaines to take the premisses to ther Consideration and not only to find Laufull and approve the forsaid electione with the preceedings of the Elections in the premisses Bot also ordaine and Decerne the forsaids other persones viz William McTaggart and John Thomson Baillies, John Thomson Candlemaker, John Thomson shoemaker and Andrew Henderson To attend and Concurr according to ther duety with Certefication That otherwayes ther places shall be Declaired vaccant and otherwayes appoynted by the saids magistrats and Toun Councill authorized by the Lords off her Majesties privie Councill to fill the same and Farder the saids persones viz William McTaggart, John Thomson late Baillies, John Thomson Candlemaker, John Thomsone shoemaker, Andrew Henderson, William Broun, Samwell Duncan, and John Caldwall mutinous and Contumacious as said is ought to be punished in persones and goods For ther said Contumacie and Faction’s withdrawing and for ther violent hurreing away and detaining the abovenamed William Thomson And also Decerned in large expensses and Coast skaith and Damnadge as the saids Lords of Her Majesties privy Councill shall think fit to the example and terror of others To Committ the lyke in tyme coming And annent The Chairge given to the saids Defenders To have Compeired personally Befoir the Lords of Her Majesties privie Councill at ane certain day now bygone To have answered to the grounds off the forsaid Complaint And to have heard and seen such order and Course taken therannent as appertaines As the said Lyble or Letters of Complaint with the Executiones therof at more length proports and annent The answers made and given in for William McTaggart Dean of Gild of Irvine, John Thomson late Baillie there, John Thomson Candlemaker there, John Thomsone shoemaker, and Andrew Henderson for themselves and in name and behalfe of the Communitie off the said Burgh To the Councill Complaint raised in name of My Lord Montgomrie Mr Alexander Cunynghame late provest hes for many years Inhanced the Majority of the Magistracie and Toun Councill off this poor Burgh Infavours of himself and his dependants By which manadgement It becomes impracticable to call him to ane effectuall accompt for the publict good disposed off by him particularly for the merk per Boll of malt allowed by act of Parliament towards payment of Debts or the benefit which was was² accressed to the Toun through publict Tacks wher ther name hes been used etc and in the mean tyme ther debt is growen about Ten Thousand merks more when it was when he and his brother began to get themselves made provests time about Hereupon the Nighbourhood of the Community Did groan under the sense of these abuses Besides seaverall other rigors and irregularities Committed By him in the place, and because they Could not conveniently (at this last Michaelmess Election) get access to express ther sentiments by word of mouth, They expressed ther mind in ane address to the Toun Councill humbly Creaving That Mr Alexander his brother and Baillie Stivenson might not be Choysen upon the grounds above represented Notwithstanding wherof Mr Alexander Cunynghame gits togither seven with himself makeing in all about Eight of the Councill (Which is not aquorum since the sett requyres nyn as being the major pairt of Seventeen) and proceeds to make ane Election of a new Councill of Magistrats Which could not be supported by a pretended proxie for the Nynth seeing ther was noe quorum off Councill to legittimat that proxie The new Magistracie wer proceeding to prosecut such persones in the Toun as could not oun the legality of that Election Wherupon It was necessary for the defenders To raise Advocation of such proceedings befoir the Lords of Session For as Her Majesties privie Councill was not then sitting soe ther is noe form or style of Advocation Befoir the Councill and the Inhabitants wer not obleidged to suffer Decreits to pass Which besydes the Execution by poynding, Imprisonment Tearing of ther Burges The quits etc Which might be summarly used theron ther is need of Caution in Suspensiones The affair thus falling Befoir the Lords of Session in Considering the reasones of Advocation The Deffenders thought it fit That the whole matter of the Election should be Cognosced by the same Judge and therupon have raised Reduction and Declarator off Nulitie of the Election and Declarator of the priviledges off the Burgh against the present pretended Magistrats and Toun Councill etc This Advocation was intimat and this Declarator and reduction was execute befoir the raising and Execution off any Councill Complaint againest the Defenders and wheras ther is now raised a Councill Complaint in name off my Lord Montgomrie For himself and in behalfe of the pretended Magistrats and Communitie pretending that some of the Defenders withdrew From the Election and others will not attend notwithstanding off there being elected etc And Concluding that the Election shall be Declaired Laufull and the Defenders Decerned to attend and Concurr or otherwise The nomination of other’s Devolved upon those who sitt and to be punished For bygones etc It is answered Primo That the Defenders have the profoundest respect for that noble person in whose name the Lyble is raised as being not only soe illustrious in his familly But lykewayes who have been allwise very nighbourly freinds to the Burgh And as the Inhabitants and Community will allwayes pay the honour to his Lordships which is due to his Charaiters, soe they are most Confident That when his Lordships is rightly informed, he is not capable to own the rapts that have been Committed on their Liberties and Intrests. Tho Mr Alexander Cunynghame to Cover and Colour his oun designes Which he keeps up from his Lordships has presumed to make use off his name But Secundo This whole matter is lis alibi pendens Befoir the Lords of Session anterior to the Dependance off the present Complaint The forsaid Advocation herewith produced Being expressly Lybled upon the nulitie of the Election and Which Advocation they have soe far owned that they have judicially Called for it befoir the Lords of Session and soe have approven therof and Constitut the Lords as Judges to the matter therin contained and the forsaid Reduction and Declarator Calls for production off the Touns wrytts To the effect that the certain priviledges therof may be Declaired and for production off the minut’s and acts concerning the present pretended Magistrats To the effect that the same may be reduced and the Civill rights of the Inhabitants Founded upon express acts off parliament are lybled For that end And as the Lords of Session ther Jurisdiction is unquestionably founded soe it is noe wayes doubted But that the Lords of Her Majesties most honourable privie Councill when they come to know therof By the forsaid Dependance will have the respect that is due therunto and consequentelly either not sustain this Councill proces in regaird of that prejudiciallity or remit the same to the Lords of Session to be summerly Discussed And Therfor the Defenders shall not give any farder trouble to or take up the tyme of Her Majesties most honourable privie Councill in makeing any more particular answers to the speciall matters of fact lybled which in due tyme will be fully Consulted or vindicated The Defenders Doe only informative represent that the forsaid Election can never subsist in Law seeing ther was only Eight Councellors present Wheras by the sett and Constant Custome of the Burgh Nyne is aquorum And here Even by the Lyble it self It is accknowledged that Eight only wer present and the Nynth only supplied by the proxie of one absent Councellor Which proxie Could not be receaved in Councill Except ther had been a full quorum this being a judiciall act to receave and allow of a proxie The Councill of the Burgh being alwayes in use to sustain proces or not as they thought fit Besides that the proxie Being blank it was null seeing it ought to be filled up by any other But this being only informative represented The defence to the Lyble is the Depending Advocation and Declarator Befoir the Lords of Session abovementioned As the said answers bears Which Lyble Being upon the first day of December Called in presence of the Lords of Her Majesties privie Councill and the persewar Compeiring personally with Sir James Steuart her Majesties Advocat and Mr John Fergusson his Advocats And the Defenders Compeiring alsoe personally at the Barr as marked in the roll with Sir Walter Pringall, Mr Robert Steuart, Mr Francis Grant ther procurators And the Lyble with the answers therto being read, And boeth pairtes procurators Being fully heard at the Barr The Councill admits the Lyble to the point of fact of the ryot lybled and noe farder to probation And the witnesses Being Called in Did make faith as marked in the Roll The Councill Nominates and appoints The Earls of Lauderdale, Loudoun, and Forfar, The Lords Register and the Lord Halcraig To be a Committee to settle and aggree pairtes and in caice they cannot aggree to Examine the witnesses and Recommends to the said Committee to meet to morrow And Declaires any tuo aquorum And reserves all objectiones against the witnesses to be proponed and Discust Befoir the said Committee Conforme wherunto the said Committee haveing meet They made and Gave in the report Wherof the Tenner followes Edinburgh 2d December 1702³ Committee for settling and aggreeing My Lord Montgomrie and William McTaggart Dean of Gild of Irving and others And For Examining the witnesses adduced by my Lord Sederunt the Earle of Lauderdale, Earle of Loudoun, Lord Register and Lord Halcraig The Earle of Lauderdale Elected preses The said day The Committee of privie Councill Haveing meet in obedience⁴ To ane ordinance and recommendation of privie Councill of the date The first Day of December Instant for settling and aggreeing Alexander Lord Montgomrie Lord Provest of Irving and William McTaggart Dean of Gild ther and others And boeth pairtes Haveing Compeired The Committee, Did freely and volentarly Referr them selves to the Committee To be determined by ther Lordships In every thing in debeat betuixt them And boeth pairtes being removed It is the Committees opinion That the Election made at Michaelmess last of the Magistracie of the Burgh of Irving should be ratefied And that the Lord Montgomrie Should give his assistance in Discovering and Finding out if any persones Who have been upon the manadgement or in the Government of the said burgh and have Imbazled or Misapplied the Commone good therof and in prosecuting such malversers The Expensses infinding out and prosecuting the samen being allwayes out of the Touns common good and patrimony And it is Lykewayes The Committees opinion That the proces hinc inde boeth befoir the Councill and the Lords of Session should Cease and be desisted And that the Lords of her Majesties privie Councill should interpon ther authoritie and that off Consent of boeth pairtes There should be a Decreit of Councell In the above termes To which boeth pairtes being called in aggreed and accquiesced Sic Subscribitur Lauderdale The Lords of Her Majesties privie Councill Haveing this day Considered the above report in the proces Betuixt Alexander Lord Montgomrie now Earle of Eglingtoun and William McTaggart Dean of Gild of Irving and others made and given into them By the Committee appointed in the said proces for settling and aggreeing pairtes And the samen being read in ther presence The saids Lords of Her Majesties privie Councill Have approven and heirby approves therof And ordaines Decreit of Councill To pass theron and be Extracted accordingly.