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The conventione being mett, the commissioner told that there was a report readie from the comittie touching some debatable electiones, whereupon Duke Hamilton said that there were severall objections to be offered against some comissioners for shyres and burghs, which he desired might be received before any report. The chancellor answered that these were to be given in to the comittie. To which it was replyed that some objections had bin offered to the comittie, and it was told those who offered them that any objections they hade to offer were to be given in to the conventione. Thereupon some of the members of the comittie, to excuse themselves, said that they were only to consider double electiones. Then Duke Hamilton answered that the committie hade not only proceeded to consider electiones where there was a competitione upon double commissiones, but they hade also received objections against commissioners where there was not double electiones, particularlie the commissiones from the shyres of Selkirk, Sutherland, Kircudbright and the towns of New Galloway, Culross and Lanerk.
Whereupon it was yielded that these objections should be considered by the comittie, but not before Munday nixt. And then it was farder urged by Duke Hamilton that non ought to vote in any report from the comittie against whom there was any objectiones offered untill these objections should be discussed. To which it was answered by the king's advocat, the president, register, justice clerk, Sir George Gordon and Sir George McKenzie of Tarbet if that were allowed, then it might fall out by the ill humor of any persone objectiones might be made against so many comissioners as (if they were declared) would hardly have the face of a conventione. To which it was replyed by Duke Hamilton that the caice was not so here, for there were but few objected against and the objectiones made against them were very plaine and obvious; and if any were admitted to vote who should afterwardes be found not to be members, it might bring in questione the wholl actings of the conventione; and it was alreadie the procedure of the conventione to debarr those persones from voting against whom there were objections made, particularlie the commissioners from the shyres and brughs abovementioned who were actuallie debarred from voting because there were some objectiones given against them; and why should it be done in the caice of these and not in the caice of others could not be understood.
The earle of Dumfreis urged that when a persone voted it did conclude him a member, and it was very inconsistent that any should be allowed to act as a member of whom it was yet in debate whither he was such or not.
Which was seconded by the earle of Perth, who said that if a person whose commissione was yet debatable should be allowed to vote, this absurditie might follow: that a vote or questione of great importance might be decided by a persone who was not a member of the house, as must happen incaice it fell so out that a questione were caried but by one vote; in which caice if any one of these persones hade voted in it, and were afterwardes found to be no member, then it was evident that the bussnies was determined by a persone who was no member.
To which reasons there was no answer given, but the vote called for upon the questione was thus stated: whither the objectiones offered against severall members should debarr them from voting and acting as members untill the same were discussed or not; and it was caried in the negative.
In this affair it is to be observe, 1st: that some persones against whom any objectiones hade bin offered were debarred from voting and many others against whom many relevant objectiones were made were suffered to vote in this very questione which was their oun concerne, the questione being whither they should be suffered to vote or not.
Secundo, while it was in voting the earle of Marr (after he himself voted in the negative) did when the earle of Buchan's was called, propose that he could not vote because there was this objectione against him: that he could not be a member seeing he was a minor And accordingly he was debarred by the commissioner untill he gave his word of honour he was major.
Thirdly, it was to be observed that immediately after the passing of this vote, Sir Alexander Bruce desired to know why his name was not called as well as others who was in the same conditione with him. To which the commissioner answered that he could not be admitted to vote because the objectiones against his commissione was not yet discust. And tho he replyed that what my lord commissioner said was expressly contrair to the last vote, of which he craved the benefit [of] the same, notwithstanding was refuised him by the commissioner untill after the nixt vote was over, that he againe urged and then had it allowed him, with no small marks and expressions of indignation from the lord commissioner.
After all which the report of the comittie was red in these termes: that the comittie hade considered the commissiones given in by the toun of Culross to Sir Alexander Bruce and the commissione given be the toun of Newgalloway to Mr George Dicksone and had referred the same to the conventione of burrows. And that they hade likeways considered the commissiones given in by the shyre of Selkirk (commonly called the F[ores]t†) to the lairds of Philiphaugh and Haining, with the objectiones given in against it by Pringle of Torwoodie, which objectiones they repelled and sustained the commissione to be good.
Upon reading of this report Duke Hamilton told that when the power of the comittie was declared it was said that they were only to hear and examine and report what was brought before them, and that he thought that short way of bringing in a report of what was their opinion of the matter without telling what was the particular grounds and evidences from whence the same preceeded was beyond the power comitted to them; and therefor craved that these might be produced to the conventione. This was seconded by many others, and on the other hand it was contended by the president, advocat, clerk register and others that the comittie, consisting of a considerable number of everie one of the estates of the conventione, it was necessarie to give a full trust and deference to the inquirie made be them, and that it was the usuall practice of all courts to referr the consideratione to some of their number of what was said, either by write or informed by witnesses adduced in the tryal of any actiones before them, and that they never doubted what was reported to the court by those to whom it had bin committed.
To which it was answered that it was true the examinatione of witnesses was referred to some of their number, but it was well known that there is no court before whom other relevancie or probatione is to be discust, but all must be considered before themselves. And if at any time they happen, for ease and conveniencie, to cause any of their members [to] consider writs or depositions, yett the writts or depositiones themselves are afterwards red to them, to the effect they may themselves be satisfied with the grounds of the report. But it was never heard of that ever a sentence proceeded upon a report of any member asserting such a thing to be proven or not proven untill the grounds of the report be considered. Then it was answered that the inquiring into all these things would make ane infinite labour and retard the king's service. To which Duke Hamilton replyed that it might be remembered that the reasone which moved him to propose the discussing of debatable electiones in plaine conventione was to save double paines, but seeing they have gotten already so far out of the road, it was best to turn in againe in time; and he was sure the king's service required no such haste, but that it migh[t] spare a day or two, and that it was very fit that men should know what they were doing before they did it. Whereupon the vote was urged for by some noble earles (such as the earle of Airle, earle of Wemiss, earle of Abboyn, the Lord Hackertoun and the like) who seemed to be much scandalized at the retarding of the king's service. But it being earnestly pressed by Duke Hamilton, earle of Perth, earle of Dumfreis, earle of Queensberrie, earle of Tweeddale and sundrie other noblemen, gentleman and burrowes that it was impossible for men to vote in a business of which they know nothing of the grounds qherupon it proceeded, it was a lenth yielded to them, after the commissioner hade diverse times thundered with great passion from the throne against what was desired.
And the commissione granted to the shyre of Selkirk to the lairds of Philphaugh and Haining, with the objectiones made against it, was red which were to this purpose: that tho by the proclamatione it was ordained that there should be tymous intimatione given in to the barones to meit and choise ther commissioners; and that by the councell's letter the sheriffs were ordained to conveen the barrons for electing the week after the receipt of the proclamatione and the said letters directed to them, notwithstanding whereof, the laird of Philiphaugh, being sheriff and designing to obtaine himselfe chosen, hade not given tymous intimation in so far as the proclamatione was only intimat at ten aclock and the electione was made at twelve aclock the same day, and in the same week that the letter from the councell came to his hand.
To which it was answered that tho what was alleged against it was true, yet it was also true that he hade given tymous advertisement to the barons by letters and that accordingly they hade conveened.
To which it was replyed, first: that the advertisement by letters was not sufficient and was not the legal, regular way of giving intimatione, but that the intimating of the proclamatione was the only rule for it, which is granted was not tymously done, being done but tuo hours before the electione was made. Secundo, there was some of the heritors that he hade not advertised at all and some of them who he hade not so tymeously advertised as they could come to the meeting, as was offered to be proven by letters under their hands. That these objectiones being made at the meeting of the barones, it was craved by three of their number that the dyet might be delayed for a week and new intimatione given for the barones to meet, which the shireff refused; and likeways refused to give them a vote of this tho it was demanded by these three, upon which they protested. It was also objected against their commissione that severall of the subscribers are not the king's vassalls [and] that it hade not the subscriptione of the clerk. To which last objectione the commissione subscribed by the clerk was opponed, and it was replyed and offered to be proven that it hade not the subscriptione of the clerk when it was given in to the register; and if it hade the same now it had been afterwards obtained upon the noise of that objectione, which was to be made use of for invalidating the commissione given to Sir John Cochran and Sir John Cuningham.
Whereupon the commissioner did from the throne againe and againe renew his urgeing for the vote, which he had done severall times during this debate; and being seconded by the clamour of a great many others, whose constant course it was in such turns to call incessantly for a vote as if they had been sett there for no other purpose, it was put to the vote to approve the report of the committie or not; and it was caried affirmative.
Thereafter the report of the comittie touching the double electiones of the shyre of Cromartie to George Dallas and Thomas Lindsay, with the grounds qherupon the comittie proceeded, was red. And according thereto that commissione granted to George Dallas was approven and the other rejected.
Then the report touching the debatable electiones returned from the shyre of Perth was red, the caice of which affair was this: the shyre of Perth, having according to the old custome of Scotland at Michaelmassheadcourt elected two commissioners, viz: Sir Thomas Murray of Glendoick and [...] Graham of Fintrie, the said Sir Thomas, being put in the register's place and thereby as ane officer of state becoming ane member of the conventione, the shyre of Perth upon the issueing of the proclamatione indicting the conventione found themselves obliged to meet and make a new electione; and accordingly did choice Liuetenant General Drummond instead of the said Sir Thomas Murray. And at their meeting they found that the laird of Fintrie, who was the other commissioner, was now totally denuded of his wholl estate, and being no more the king's vassall was not capable to serve for them in parliament or conventione; and upon that account did chose [...] Murray of Strowan in his stead.
Att the sitting doun of the conventione the said [...] Graham of Fintrie did compear and claime that his commissione ought to be sustained, the considerations of which coming before the comittie, the[y] found that for the reasons beforementioned† the[y] could not sustain the commissione granted to [...] Grahame of Fintrie. And being unwilling to sustaine the commissione granted to [...] Murray of Strowan and judgeing that, if the report should take notice of the competitione, it was absurd to cast both, they resolved on this course, viz: to let the commissione granted to Grahame of Fintrie fall to the ground without giving any judgement concerning it, and to bring in the report singlie touching the other ground to Murray of Strowan, which was to this purpose: that having considered the commissione to [...] Murray of Strowan by the shyre of Perth they found that the same ought to be rejected in respect that the shyre was in mala fide to chose him, having at the Michaelmass before chosen another.
To which it was answered by Liuetenant General Drummond that the shyre being mett they found that he who hade been chosen at the Michaelmass was not capable of being elected for the reasons beformentioned. And therefore, having made a wrong electione of a man who was not capable to serve, they found themselves obliged to chose one who was capable in his stead, and accordingly hade chosen [...] Murray of Strowan.
To which it replyed by the president, advocat and Tarbet that the shyre was bound to know what was Fintrie's capacitie or incapacitie before they hade elected him; and that electione at Michaelmass, having bin formerlie made, it could not be repealled by the shyre, but that whatever it was there could be no other electione made in the place therof without the king's warrand, in respect by the procalamatione indicting the conventione the shyres were required to send the commissioners they hade elected at Michaelmass, and were not impowered to elect new commissioners except in caices where they hade elected non at Michaelmass. Whence the election of Strowan was a high and mainfest usurpation and invasione upon the king's authoritie.
To which it was answered that, 1st, the laird of Fintrie had not bin formallie elected at Michaelmass by votes, but only tacitly continued by a few barons who mett at that time, and who not foreseeing any occasione for commissioners did not think it of any moment or importance to change him. Secondly, the ground of his incapacitie to serve was either new or but new[...] [...]ouce† to their knowledge after he hade been elected, and finding their error, they judged it was their duetie to mend it. And that it was all upon the matter as if he hade been dead, seeing he became incapable and so was civillie dead, and that it appeared they behooved to choose another in his stead by this: that when his commissione come to be considered by the conventione, if is found to be no commissione; and it being taken away, it behooved necessary to follow that the other granted to Strowan should be sustained.
To which it was answered that the competitione was not considered in the report and what ever validitie or invaliditie was in that ground to Fintrie, yet that granted to Strowan was here singlie to be considered and ought to be casten upon the illegalitie before mentioned.
Against which it was contended that these two commissioners being in competitione, and that competitione being the cause of the debate, they ought not surglie be considered. And therefore it was prepared that it should be referred back to the comittie to consider of the competitione. But the commissioner urgeing that it should be put to the vote, whither approve of the comittie's report as it stood or not, and being seconded by the usuall clamour, it was put to the vote in these termes and caried affirmative.
Upon the close of this vote it was proposed by the earle of Dumfreis that Murray of Brughton, who pretended a commissione from Kirkcudbright, should be removed as being infamous by a sentence of the lords of session standing against him for forging of writs, and he offered the decreet to be considered by the conventione.
It was answered by the king's advocat that he hade the king's remission, which was produced and red, and by which the infamie was taken off and he recapacitat to any functione whereof he was capable before the sentence passed against him.
The earle of Dumfreis told that he needed not debate with the king's advocat the import of that remission if my lord chancellor would be pleased to ask the president of the session and the other gentilmen of the long-rob whither a remission of a sentence of infamie could capacititat a man to be a witnes or not.
The king's advocat interrupting, alleadged that the questione was not for this place, that it was not to be doubted that the king's remission did restore Brughton in all things.
Then the earle answered that the advocat's assertione was contrarie to the practice of the lords of sessione, for they the last session rejected one Frazer from being a witness because he was once convict of infamie, and a far less cryme than forgerie, albeit he had the king's remission, and if he could not be a witness, certainly he could be no judge. Then how absurd were that Brughton, convict of so gross and abominable a crime, should be permitted to sitt as a member and judge in so eminent a court as the conventione of the wholl estates of the kingdome; and that a persoune so dishonourable should be admitted among soe many peers and worthie gentilmen.
The president and others of his functione, being forced to acknowledge their oun decisione choud by the earle, [in]sisted the poynt and pleaded that uither caice of forfaulture for treasone, the forfaulted persone upon the king's remission might vote in parliament or conventione.
To the which it was answered by Duke Hamilton that ther is no paritie in the caice of the crime of treasone: [it] infers forfaulture of life and fortune, yet it does not directly conclude infamie as the crime of forgerie doeth; and treasone being only against the king may be interely remitted and taken off by the king, but a forgerie being understood [to be] a person lying in waite to supplant the wholl people, his cryme is against them; and the king can only remitt the punishment, but the infamie sticks so closs upon him that the king's remissione cannot restore him to any capacitie whereby the people may be indangered by him, such as judge or witness.
Thereafter the king's advocat did againe read the remission and particularly the clause restoring Brughton to all capacities he hade before his committing of the crime, and the certification that was contained in the remission discharging all persones whatsoever to object against him or upbraid him with the said crime under all highest paines. After reading of which, he did most vehemently urge the interest of the king, his master, that no man should offer to say anything in prejudice of Brughton contrarie to the king's will signified in his remission.
Upon which the laird of McKerston desired to know whither that remission was drawn in extraordinarie termes or only in the commone stile; and if so, then he did not think that it could put Brughton in a better conditione than the like remissiones could put other persones who were guiltie of infamie, who, notwithstanding of their remissions, were debarred from the capacitie of being witnesses, as was acknowledged by the lords of sessione here present.
Upon which the lord commissioner in a great furie said that he would faine see the man who durst debate his master's will or durst after to quarrell the validitie of that remissione. It was the king's power to pardon and, having pardoned, he would hear no man quarrell it. And that therefor he would not suffer it to go to the vote, and if there was any man that durst ask a vote, let him appear.
He made also a long discourse deduceing the way and meanes of procuring that remission, indeavoring by many circumstances [to] extenuat the fault and crime which was the ground of the sentence of infamie pronounced against him.
Liuetenant General Drummond said for his part he would call for no vote upon the head, but had he bin Brughtone's friend he would have advised him rather to shun that imployment than to expose himself to the shame of having such objections thrown in his teeth in such a meeting; that he thought the matter in hand was fitter to be judged by a court marishall, who were the proper judges of honour and dishonour and basenes. He said he did not know what was the custome of Scotland, but he was sure in other places a man guiltie of such a crime would have had his eares cropt and been kicked doun stairs if he had offered to come in the companie with gentilmen.
Here my lord commissioner, interrupting with great heat and passione, called for the vote of the house, and said now that he saw his master's power is contraverted he would have a vote.
It was earnestly pressed by Duke Hamilton, Liuetenant Generall Drummond and many others that there should be no vote in it, declaring that they were so tender of bringing any thing in questione which might seem to clash with his maties pleasure that they were clear, and earnestly desired that this matter should goe without a vote.
But the lord commissioner insisted with great furie, declaring he would have a vote, altho the wholl house were against him, in those termes: whither the king had power by his remission to restore Brughton to the capacitie of sitting in the conventione, and according thereto he ought to be admitted or not; upon which it was voted and carried affirmative.
Then was the report red touching the double electiones returned from the shyre of Berwick, the one in favours of Sir Roger Hog of Harcars, the other in favours of Sir Patrick Home of Polwart. The first had the number of threttie two subscriptiones at his commissione; Sir Patrick hade but nynteine at his commissione, but offered to prove that there was eightine of these who subscribed Sir Roger Hog's commissione who were not barons nor capable to elect a commissioner; and said that, having several things to offer in fortificatione of his commissione, he craved leave to have advocats to speak for him, not being (as he said) sufficiently qualified himself to speak against Sir Roger Hog who was a knowen practitioner of the law and had bin ane advocat. Which being refused him by a vote, he alledged several informalities in the election of Sir Roger and repeated the peremptor above proponed in fortificatione of his own commissione and offered to prove it.
Sir Roger Hog answered that there was no man subscribing his commissione but such as hade bin in the sute-rolls of the shyre these many years by past.
To which Sir Patrick replyed that there were many heretors contained in the sute-rolls of the shyre whose land was retoured under fourtie shilling and so were not capable to elect; and againe offered to prove that there were eightine of these whose hands was at his commissione. He added furder that he was sorrie the conventione would not admitt his lawiers to plead in a caice of so much importance, it being the concerne of all the barones of Scotland and which touched their very birth-right; and therefore for his part he should only propone what concerned his oun particular caice; and so represented to the conventione that a warrand being directed for conveening the shyre of Berwick, it was ordered to be intimat by messingers at armes and yet was only intimat by ane sheriff-officer. That six free dayes aught to be the shortest time betwixt the actuatione and the meeting, but on the contrarie the intimatione was made the 5th Juny and the meiting upon the 7th, by reasone of which there was many heretors absent and protestatione taken thereupon. That at the meiting they made choice of a preses who was neither capable to elect nor to be elected, not being the king's vassal.
The conventione in the consideration of this debate fell upon this poynt: whither it be propper or not for the conventione to inquire of persons subscribing commissiones be capable to doe so or not. In which it was alledged by the president of the session, the advocat, the justice clerk and several others that it was not propper for the conventione to make inquirie or take it to their consideratione whither the persons, electores, were sufficiently qualified or not; that it was sufficient for a commissione if it hade most hands at it, and that these persones, subscribers, have been repute barons and hade been orderly called in the sute-roll, which was a known constant, unalterable thing and continued from age to age. That the court of the electors was the only competent judges who were capable to vote and sitt at the electione. That if it were permitted to questione the capacitie of the electors before the conventione it would take up so much time as to retard the king's service exceedingly and might prove ane infinite labour, seeing therby many gentilmen and barones might be obliged to bring their evidences and writs to be cognisced upon by the conventione.
To which it was answered by Duke Hamilton that he was very sensible it was his own interest or any other shireffs to have that held for a ground, seeing by that meanes they could procure any persone they pleased to be elected upon any occasione, by bringing in and suffering to sitt and vote at the electiones multitudes of small and inferior heretors whom they might influence to doe what they pleased. But he thought the law and former practice hade determined otherwayes, for it was against all reasone to say that a commissione subscribed by a number of persones who were not capable to elect should be sufficient. And there is nothing more certainly known that that the sute-rolls of the shyre did often receive great variationes by reasone that sometimes a baronie would be so dismembered and divided amongst many particular persons as there would not remaine amongst them all one capable to elect. That the electors themselves could not be propper judges [of] who were capable or not capable to sit, for, first: no man will remove but if he be pleased, nor can they force him; the only remedie is that the parliament or conventione punish him for his invasione upon their priviledge. 2dly: it may and will undoubtedly fall out in such caices that those who ought to be debarred as incapable are the major part themselves, or at least are so with the assistance of those whose part they inclyine to favour, and so they will undoubtedly procure themselves to be admitted to vote, so that remaines no possible cure or defence against illegal and insufficient electiones, but that the parliament or conventione examine the same and determine therein when it comes before them. Otherwayes this inconveniencie will be inevitable, that tho a commissione were never so illegal, it must be received without contraversie by a parliament or conventione who must be determined without examining the matter; and hence it will follow that no illegal commissione be sent. That this is expressely contrare to the constant practice of all parliaments or conventiones, for, it will appear that in the parliament 1661†objections were receaved against many commissiones, and that not only the persones elected but also the electores were obliged to produce their retours or some other evidence of their being capable to elect. That samen was done also in the parliament 1669 held by the duke of Lauderdale, now present commissioner, in which many electors were obliged to produce their retours or charters to make appear they were capable to elect. And particularly as the caice of the shyre of Stirline from whom there was then returned (as there in nou also) double elections in which there was the same electiones made, received and discust that are in this caice, and the electors obliged to produce their retours and charters before the committee, which was all particularly reported to the parliament, that as to the inconvenicies urged, they may be avoided by the summar way of procedur which aught to be used in these caices. And what ever objectiones are made ought either instantly or speedily to be proven, so that the king's service would thereby receive no retardment, as is offered to be done in this caice. That this has been the practice of this present convention in the caice of Thomas Lindsay's commissione for the shyre of Cromartie, which is rejected not only for the informalitie of the stile, but because it is subscribed by persones who are not capable to elect. And there are other commissiones yet lying undiscust before the committee against which there is no other objectiones made but the incapacitie of the electors. And therefore it was proposed that it should be remitted back to the comittie to make inquirie in the qualification of the electors. Which being put to the vote in these termes: whither approve of the report as it stood or remitt it back to the committee, it was caryed approve. During this debate the commissioner often interrupted the members and with great passion urged the putting it to the vote whither approve or not approve, still clamouring that the king's service would suffer by such delays.
Then was the convention adjourned till Munday at four aclock in the afternoone; and the committee ordained to sitt in the forenoon.