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The parliament convened, prayers said by [John Paterson], bishop of Edinburgh; the rolls called and absents marked.
The report made by the committee of elections anent the double elections of the burgh of North Berwick in favour of George Suttie [of Balgonie] and Charles Maitland; and anent the controverted elections of the burgh of Selkirk in favour of Sir Patrick Murray [of Pitdunnes]; and anent the controverted election of the burgh of Inverkeithing in favour of [Mr John] Dempster of Pitliver, ordered to be read.
[Sir George MacKenzie of Rosehaugh], lord advocate, moved that the commissioner for the burgh of Anstruther be removed in respect he was not 21 years of age.
It was answered by the said commissioner that he was 23 years of age and offered to produce a testificate relating thereto on the next parliament day, which he was ordered to do; and in the meantime allowed to sit in parliament.
The report of the double elections of North Berwick and of the controverted election of Selkirk and Inverkeithing then was read.
[William Douglas], duke of Hamilton moved that, seeing the said report did relate to certain qualifications of the commissioners for burghs specified in a late act of burghs which does relate upon the privileges of parliament, they must be [...]† first consider that act of burghs before they determine anent the aforesaid elections.
Note: that the qualifications mentioned in the aforesaid late act of convention of burghs for making the commissioners that represents them in parliament able and capable are that they must be burgesses, actual residents and trafficking merchants.
Sir George Lockhart [of Braidwood] did second the duke of Hamilton and represented that it was a matter of importance and should be deliberately considered; and albeit it be pretended that the aforesaid act of burghs is founded upon acts of parliament, yet there was no reason or ground to found the same upon these acts. And they can make no acts in the convention which may either derogate from their own former privileges or may impose upon the privileges of the barons; and there was nothing more usual for several ages bygone that that petty burghs that were not able to maintain commissioners from them to the parliament did ordinarily elect a country gentleman to represent them in parliament upon his own charges. And albeit the burghs are allowed by acts of parliament to meet and make acts, yet these acts are in order to their trade and traffic, and they have not the least shadow of reason to allege that by those acts of parliament in their favour they can make any act in their convention which may either derogate from their former privilege or encroach upon the privilege of any other estate. And reported the [...] act of parliament whereby the burghs are discharged to transfer the ownership of their estate and privileges; and without all question for several ages they had the privilege to elect persons to represent them as commissioners to the parliament, either of their own inhabitants or of country gentlemen. And now to restrict them to elect their own inhabitants only and such of them only as are qualified, according to the late act of burghs, is to take away a part of their privileges which they formerly enjoyed, and also to wear upon the privileges of another estate. He reported likewise several other acts of parliament made in favour of the burghs from which he deduced several arguments against the aforesaid act of burghs. And further urged that, albeit the king by his missive letter to the burghs does approve of the aforesaid act, yet it cannot be pretended that the same has the strength of law; and the parliament ought to determine anent the aforesaid act of burghs according to the laws already made. And as to the double elections of North Berwick now in question, the ground whereupon George Suttie is rejected, being that he was precipitantly elected at 6 o'clock in the morning before he was admitted burgess, the same is of no moment, it being sufficient that he was admitted burgess before he actually served in parliament. And as to Charles Maitland's election, the same was not lawful, in respect he was not elected by the town council sitting in council.
[John Hamilton], lord Bargany urged a simile that a nobleman created during the currency of parliament may sit as a member of parliament, notwithstanding he was not made a nobleman before the parliament was indicted.
Sir John Cunningham [of Lambroughton] seconded Sir George Lockhart, and represented that the parliament had both a decisive and legislative power, and that if the parliament were to make a law anent the qualifications of able and capable persons to represent the burghs as commissioners of parliament, they might consider the conveniency and inconvenience and other circumstances in reference to these qualifications; but that the parliament, being not in the exercise of a decisive power anent the aforesaid act of burghs and his majesty's letter (to which letter albeit the parliament should have a greater deference, yet none will say that the same ought to have the strength of a law), they must now determine the same according to law. And as the burghs by several acts of parliament (which he cited) have the privilege to elect persons to represent them as commissioners in parliament, either from among their own inhabitants or of country gentlemen in their option, so barons have been in use and custom to be elected by the burghs [...]† by sufficient and incontrovertible documents and ancient customs and usages have the force of laws, upon which ground George Suttie's election ought to be sustained.
[Sir George MacKenzie of Rosehaugh], lord advocate, answered and reported that act of parliament whereby it is ordained that none should serve in office in a burgh but a burgess actually residing; from which he infers that much more the person that bears office in parliament for a burgh and represents it as their commissioner should be a burgess actually residing. He repeated also another act of parliament whereby it is ordained that none of the three estates should be represented in parliament but by those who are actually members of the said estates, so that the burghs cannot but choose one of their own burgesses and inhabitants, and, if it were otherwise, it would open a door to disaffected persons to disturb the peace of the kingdom at their pleasure, it being very easy for such persons to influence petty burghs and procure themselves to be chosen to represent them as commissioners in parliament; and his majesty has taken a course to prevent this by ratifying the late act of the burghs, wherein nothing was detrimental by the burghs but what did tend for the good of their own incorporation, so of the king and whole kingdom. And acts of burghs have been sustained in parliament and in conventions of the kingdom and before the lords of session; and albeit acts of burghs to be ratified and approved by his majesty's letter have not the force of a positive law, yet subjects should have a great deference and respect thereto. He repeated likewise the 4th act of the 14th parliament of King James III whereby the burghs are allowed to convene and consider what concerns their estate, which imports what concerns them as an estate of parliament; for by several former acts they are allowed to convene and consider what concerns their trade and traffic, and consequently by this act they are allowed to convene and consider what concerns them as one of the three estates of parliament, and so might consider on those qualifications of those persons who are to represent them as commissioners in parliament. And therefore George Suttie, being a person that wants these qualifications, his commission ought to be rejected. And as to the pretended custom founded upon, it was answered, firstly, that the same was not relevant; secondly, it was not quarrelled; and thirdly, it was interrupted; and therefore craved the matter might be put to a vote.
His royal highness made a short speech bearing that he had particular instructions from the king to assist the burghs in the aforesaid affair.
The duke of Hamilton moved the second time that, before the particular objections against the double and controverted elections of the said three burghs were considered, the general head anent the act of burghs might be first fully heard, and [John Hay], earl of Tweeddale seconded him.
[Richard Maitland of Gogar], the lord justice clerk, answered that the general head had been fully debated already and sufficiently understood, and moved it might be put to a vote.
[John Paterson], bishop of Edinburgh made a discourse bearing that, as a commissioner from a shire cannot be capable unless he is infeft as the king's vassal, so it stood to reason that none could represent the burghs but actual burgesses; and as to the use and custom founded upon, the same was frequently interrupted, and by the late convention of estates, none were admitted to represent burghs but actual residing burgesses.
Lockhart answered that there was a great disparity between commissioners of shires and commissioners of burghs: the commissioners of shires being by act of parliament ordered to be persons who hold a forty shilling land of the king or 10 chalders of victual or lands worth £1,000 of kirklands; but the commissioners of burghs are not appointed by act of parliament to be burgesses, actual residents and traffickers, and offered to prove the barons past all memory and without interruption had been in use to be elected as commissioners for burghs.
[Sir James Dalrymple of Stair], president of the session, had a short discourse which tended to this: that the parliament would consider of the general head according to the laws already made.
[John Bell of Hamilton Ferme], provost of Glasgow, moved that the aforesaid act of burghs might be ratified.
The commissioner of the burgh of Ayr moved that it might be delayed.
The lord advocate moved that the king's letter to the burghs in 1674 might be read, which accordingly was read.
The duke of Hamilton moved that, seeing this matter was to be put to a vote, the state of the question might be whether the general or particular case of the report should be first discussed. Which being voted, it carried by 30 votes that the general should be first determined. Thereafter the general head having after some debate resolved in this question, namely: whether or not a person may be a commissioner for a burgh who is not a burgess, actual resident and a trafficking merchant, which being voted, carried in the negative by 52 votes. Whereupon George Suttie, commissioner for North Berwick, was rejected upon the general head that he was not a resident and trafficking merchant. As also Sir Patrick Murray's commission for the burgh of Selkirk was rejected upon the former head, but Dempster of Pitliver's commission for the burgh of Inverkeithing was sustained in respect he represented that he was the present provost and resided now and then in the said burgh and did sometimes trade in victual and timber. Thereafter the commission of Charles Maitland, commissioner for North Berwick, was read, together with the missive letter directed by two of the bailies thereto [...] to George Suttie, representing the illegality of Maitland's election; as also an instrument taken by Charles Maitland in the presence of the town council of North Berwick sitting in council anent the legality of his election. And after a little debate it resolved in this question which was put to a vote, namely: whether or not Maitland's commission should be approved or remitted to a new election; and it was carried by 14 votes approved.
The report of the double elections of the shire of Peebles, whereby the committee of elections gave their opinion that the commission granted in favour of [Sir Archibald Murray of] Blackbarony and young [David Murray of] Stanhope should be sustained, and the commission granted in favour of the laird of Posso should be rejected, was read and approved in parliament.
Thereafter the commissioners for the shire of Peebles and for the burgh of Inverkeithing and North Berwick took the oath of allegiance and of parliament and subscribed the declaration, and took their place in parliament.
The articles ordained to sit tomorrow at 9 o'clock, and the parliament adjourned until tomorrow at 10 o'clock.
Prayers said by [John Paterson], bishop of Edinburgh.