Oppression under the colour of law, or, My Lord Hercarse, his new new praticks as a way for peaceable subjects to be ware of pleying [sic] with a hot spirited Lord of the Session so far as is possible when arbitrarie government is in the dominion / published by Mr. Robert Pittilloh.

January, 21 1688.

THe Lords discharges the Clerk to the Bills to expede the with∣in mentioned Suspension, untill the Chargers be heard, be∣fore my Lord Drumcairn, Ordinar; to whom they remit to dis∣cuse the reasons of Suspension upon the Bill: By which delive∣rance (passing the Solesisme therein contained, in discharging the Clerk to expede the Bill who never had power to expede a Bill till it was passed by the Lords, and by the latter part of it make∣ing it impossible for either Lord or Clerk to expede it, in the no∣tion of a Suspension; It being remitted to the Ordinar to discuss the reasons upon the Bill) Inchdairnie had these Advantages, 1mo, The choice of his own Lord, how much he followed my Lord Hercarse his Faith shall appear by what follows hereafter: 2do, Here∣by he prejudged us of the benefit of the Roll, which by the Laws of the Kingdom, and Immemorial Pratick, is allowed to all the Leidges. 3••o, Hereby we were prejudged of the ordinar dyets, Competent to Defenders in pursuts for Mails and Deuties, in so

far as upon the 25 of Januarie, we were ordained to produce our Interests with Certification betwixt and the tenth of Februarie there∣after: Which was the allowing us but 16 dayes, which in all pro∣bability, if we had had the benefit of the Roll, and other Privi∣ledges Competent to Defenders, in Actions for Mails and Dueties, would have been 16 Moneths; A great part of our righs being out of our hands, whereupon an incident diligence would have been granted us. But howsoever this being inacted, wee rested secure, till an Act should have been extracted, as has been the constant practise in all such cases, ever since the erection of the Colledge of Justice: Ane therefore we payed the Extracter to give us out a Scrol to see, before the same should be Subscrived. But the day being elapsed, the Ordinar called it upon the Bench, with∣out any Act extracted; and because we did not instantly produce Decerned, preferring Inchdarnie to the Mails and Duties, whereupon we put in another Bill, of the Tenor following,

MY Lords of Council and Session, Ʋnto your Lordships, Humbly Means and shaws, we your Servitors Margaret Wardlaw Conjunct Fiar of the Lands of Killernie, and Mr. Robert Pittilloch her Husband, That whereas Alexander Altoun of Inchdarnie having raised a summonds for Mails and Duties against our Tennants, after the day of Compearance was past, and Tennants and we were both ready to Answer, he changed the na∣ture of his Action unto a Suspension of double Poynding (as is humbly con∣ceived) contrare to Law and Equity, hereby prejudging us of the priviledges allowed to all the Lieges, in such cases by Acts of Parliament, Acts of Sede∣runt, and immemorial Pratick: Notwithstanding hereof, we in an intire de∣ference to your Lordships pleasure, submitted thereto, providing your Lordships would ordain him to subscrive and abide by the said Bill stuffed with calum∣nious untruths, prejudicial both to us and our Tennants, and therefore disown∣ed and disclaimed by them. And that your Lordships would grant us and our Tennants the same priviledges, which in Law are allowed to all his Maje∣sties Subjects in pursutes for Mails and Duties, this being no other but the same Action in omnibus mutato nomine. Albeit as to the first, your Lordships referred the causing him subscrive and abide by the Bill to the Ordi∣nar to whom it was first presented, there is nothing done therein, and as to the other, when after your Lordships had enacted us to produce our interests hinc inde, the tenth of February, in regard whereof, upon good and Legal

Grounds, we rested secure till an Act should have been extracted, calling for a scroll thereof often in the Clerks Chamber, with a purpose to give ready obe∣dience, in place thereof by an unusual surprisal, without an Act, we were or∣dained instantly to produce, which we could not do. And because we did it not, a Decreet was presently put up against us, in regard whereof, we hum∣bly conceive it ought to be Declared by your Lordships, whether any Process ought to be sustained upon this Bill, before the Pursuer subscrive the same, and abide thereat. And 2dly, Whether your Lordships will sustain this for a practick, that where there is an Act passed, there can be either a Decreet of Preference or Circumduction of the Terme, before Extracting and Calling the Act? And if your Lordships find it can subsist with Law and Forme, we shall instantly produce.

Wherefore, may it please your Lordships, to take the premises to your serious consideration, and to give us your positive Determination thereanent, and to Declare whether we and our Tennants shall have the privi∣ledges of other Defenders, pursued for Mails and Duties, or if the same shall be Arbitrarlie altered in favours of Inchdarnie, because this Action hath gotten the name of a Suspension; And in the mean time to ordain the Decreet abovementioned to be expunged.

The Deliverance and Answer whereunto, was in these Terms.

Edinburgh, Februarie l8th. 1688.

The Lords having heard this Bill, remits to the Ordinar, who passed the Bill of Suspension to allow the Petitioners a farder Terme to produce their Inte∣rest or not, as he shall find just.

If the Lords had refused or rejected this Bill, as frivolous and im∣pertinent; it is like the Petitioners submitting to their Lordships Judgements, would have acquiesced. But as the things therein de∣sired, are in themselves pregnant, and most pertinent, so the Lords implicitly at least, have approven them to be such: by giving them some thing like an answer; but in effect answering none of the par∣ticulars petitioned for in the Bill. For albeit it may be alleaged, that a farder Dyet was craved in this Bill; It is easily answered, that albeit by the granting the just desires of this Bill, it would have fol∣lowed by Consequence, that a further Term would have been granted, yet this is no wayes the desire of the Bill; but 1mo, That Inchdairnie subscrive the Bill, and abide thereat, that a solid ground

might be laid of an improbation against him for his Falset and For∣gery. 2do, That the Circumduction of the Term might be declar∣ed Null; That so that Decreet might be turned into a Lybell: and no Circumduction might pass till an Act were Extracted, and cal∣led, conform to the Laws of the Kingdom. 3tio, That the Lords would declare, they would allow us the Priviledges due to other Defenders, in actions for Mails and Deuties: Or if the same should be Arbitrarly altered, in favours af Inchdairnie, because it has the name of a Suspension.

But all Petitions being in vain, we produced Margaret Wardlaw her seasin, bearing her to be infest in the Lands above specified: Which was all the Rights we had in the Town at that time con∣cerning these Lands. And Inchdairnie produced his Rights, found∣ed on, whereupon we were ordained to see in the Clerks hands: tho' the ordinar Custome according to Law, and practice, is to send out the pursuers process, to the Defenders Advocate: Which he is not bound to return till six dayes be Elapsed, and the De∣fender is not tyed to produce his, till he propone thereupon, and if his Defence Founded upon his Interest be founded Relivant, a day is assigned to him, whereupon the Pursuer extracts an Act, and forces him to produce. But as to the Pursuers Production, we were only ordained to see in the Clerks hands, who refused to give it up without a receipt from our Advocate: Which being grented, before or a little after twenty four hours were elapsed; (a time scarce Competent to Inventar the many writes given in by the Pursuer) we were urged to deliver them back again: tho' ours is keept up to this day. Inchdairnie pretending it is his evident; And an Action of Removeing Depending against us; tho' this was the only evident we had whereupon to found a Defence; And albeit his Father in Law, and Procutor had declared; there should no such Action be pursued till it were given up, adding they were not so base, as to fight with a man when they had taken his Armes from him.

The production being thus satisfied, My Lord Drumcairn called it upon the Bench: Where my Lord Hercarse compeared with his Purple Gown, and debated the case as Inchdairnies Advocat, repeating all his writs, it seems relying on the old Proverb, Quum singula non pro∣sunt, multa juvant. But so far as I remember there past no Decreet that

day, but to morrow thereafter his Lordship calle it again, at the Side Bar; where my Lord Hercarse compeared again, in his former habit, and the dispute was renewed: in which dispute, our Advocates would propone nothing as to the Annualrents, aled∣ged due by the Infestments following upon the Heritable Bonds: Because an Action for such Annualrents, and an Action for Mails Deuties, are toto caelo different, 2dly, Because there was nothing in Libello: There being nothing in the Bill of Suspension, which was the ground of the Process, but Mails and Deuties: But knowing there could be nothing in this process for a ground of Mails and Du∣ties, which are the Emolument of the property, but the Apprising; This unanswerable Defence was proponed: Offers to prove the Ap∣prising Reduced, in foro contradictorio, quo ad Margaret Wardlaw, the Conjunct-fiar, and tho they were bound to say no further; Yet ex super abundanti, because what he proponed upon a Back-bond of Re∣version, seemed to savour much of Natural Equity: It was answer∣ed, primo, This Back bond was granted by a Wife, stante Matrimonio, and under Reduction, 2do: Finding there was much weight laid up∣on it, we offered under protestation that it should not be prejudicial to our Reduction, to Count and Reckon presently, without an Or∣der of Redemption; Albeit in Law without an Order, we were not tyed to Answer. To the first it was replyed, the Reduction is with∣out prejudice of Inchdarnies Authors real Right, which Inchdarnie produced to clear the same, which was true as to the matter, but most impertinent as an answer to the Defence produced: It was not contraverted but their real Rights were valid; but they could never be a ground for Mails and Duties in prima instantia; nor any other Right they produced but the Apprysing, which the Defence above∣mentioned, did totally elied. But my Lord Drumcairn being strait∣ned with the Defence, answered himself, that our Reduction was but as to personal Execution against Margaret Wardlaw. To which I replyed my self, my Lord, The peril of the cause upon that. And hear we desire the Judicious Reader to consider, whether the Or∣dinar who gave such an Answer, had purused the process, or if im∣plicita fide, he had followed my Lord Hercarse his Faith: seeing the very words of the Reduction are, Finds the first Reason of Reduction re∣livant, and proven, to so far as concerns the personal Obligdment, and all that has followed, or may follow thereupon as Null; And therefore, Reduces, Retreats,

Cassis, and Annuls the saids Bands, in so far as they personally obliege the said Margaret Wardlaw, with all Decreets of Apprisings, Charters, Seasings, Decreets of Removing following thereupon, Declaring the same to have been from the beginning, to be now and in all time coming Void, and of none Effect, quo ad eam, in so far as the samen are deduced against her, upon the fore∣said personal Oblidgement. Likeas if his Lordships patience would have admitted us a Hearing, we could shewed him further, that she stood in no need of a Security for her person; in regard the same was already sufficiently secured, by a Suspension standing yet undis∣cussed. To the second, there was nothing answered, But there was no Reduction produced; which was an Answer of no value, it being time competent enough to produce it, at any time before the Count and Reckoning was ended: Especially the same being offered, before useing an order of Redemption, or raising Declarator thereon. But my Lord without further answer, or heeding what was said, decerned, and so went hastily from the Side Barr, refusing us the Lords Answer upon a Maund; which in Law is competent to all Subjects in the Kingdom.

Hereupon to morrow thereafter, I put in a Bill to the Lords, of the Tennor following:

MY Lords of Council and Session, unto your Lordships humbly Means and Shews; We your Servitors Margaret Wardlaw, Conjunct Fiar of the Lands of Killernie and Bandrum, and Mr. Robert Pittilloch Advo∣cate, her Hushand for his Interest. That whereas on Friday the 24, of this Instant, My Lord Drumcairn at the Side Barr past a Decreet in favours of Inchdarnie, preferring him to the Dueties of the saids Lands: For the Demonstrating the Iniquitie of this Sentance, Your Petitioners conceives it their duty, to Represent to your Lordships the whole tract of this Affair, which is as follows, viz. Inchdarnie having fain in by an unexpected Ac∣cident to some Mails and Deuties alleged, resting to Alexander and Arch∣bald Stewarts, Ʋncles to the Laird of Rossyth, and my Lord Hercarse having sent for the said Mr. Robert, under pretence of Agreement therefore, and received from him these Rational Answers: That he could not make any Agreement for any Mails and Dueties, till he had agreed with Rossyth, in whose person the Heritable Right stood, because it would not only be an Ho∣mologating of Rossyths Right, but the paying out of Mails and Dueties for a Liferentrix. For the return whereof he had no assurance, by reason

of the uncertaintie of her Life, and that he was in terms with Rossyth, for the Heritable right in order to Agreement, for what Mails and Dueties should be found due. In place of expecting the close of this Agreement which your Petitioners hastned, they being in terms before to this purpose, rationally to have satitfied his Lordship. Inchdarnie with concourse of my Lord Her∣carse, his Father in Law, after your Petitioners had verbally agreed with Rossyth, for the said heretable Right, and it was concluded it should be drawn in write with all possible conveniencie, caused him dispone his Right to his said Son in I am for a 1000. Merks Scots less then your Petitioner had agreed, for he having a great Action depending in the Session against my Lord Annandale; and knowing the great Figure Hercarse made amongst the Lords. 2ly. Having obtained this Right, his Son in Law raised summonds against your Petitioners and their Tennants for Mails and Duties in which Action, we were most ready and willing to have answered him according to the Laws and practick of the Kingdom, but instead thereof, in an unusual man∣ner, after the day of Compearance was past, he raised a Suspension of double Poynding in the Tennants names, which (at we are informed by able Lawy∣ers, was never sustained but in favours of Suspenders really distressed by Chargers to be discussed upon a Bill, when they could not find caution: Farr less at the instance of the Pursuers, when the alledged Suspenders disclaimed and disowned the same, under their hands. As also, your Petitioners al∣ledged Chargers on the other part, Disowned the same. 3dly. When the saids Tennants did put in a Bill, Craving, That in regard they had disowned the same, and that it was filled with calumnious untruths, it might be either given up to them, as their own proper Evident, to be cancelled; or at least Inchdarnie might be ordained to subscrive the same before witnesses, and for∣maliter abide thereat, whereby they are prejudged of their Improbation, the remedie of Law in such cases. 4ly. That in all Actions for Mails and Due∣ties (of which nature this is mutato solummodo nomine) no Decreet can in Law be pronounced where a terme is assigned for producing an Interest for disobedience, till an Act be Extracted and after Extracting, Called, and the Terme Circumduced for not Production; Yet in this Action before an Act was Extracted, a Decreet was pronounced, while your Petitioners upon Le∣gal grounds rested secure, and had given money to the Extracter for a sight of a scroll of the Act, when it was called by their Adversary, my Lord Drumcairn, past a Decreet of Preference in favours of Inchdarnie. 5thly. His Lordship upon an Address made to him since we produ∣ced Margaret. Wardlaws Infefiment, having called this Action

again, we proponed an unanswerable Defence, why Inchdarnie could not be preferred, viz. That the Apprysing which was the ground of all, the Process was reduced quo ad Margaret Wardlaw, My Lord Hercarse Procurator for Inchdarnie answered, that our Reduction did not prove our Alledgance, and that be would produce the same himself, and added that there was an Backhand of Reversion granted to Andrew Wardlaw, whose Right stood in Inchdarnies person, which made it appear that Margaret Wardlaw is payed, for all that she could crave out of this Estate: To which it was replyed, that the Defence being unquestionably Relevant, the proba∣tion ought to admitted to the Proponer, at least if he produced the Decreet of Reduction, which was made use of for proving our Defence, we ought to see and be heard to object against it. And as to the Band of Reversion, it was answered it was granted by her tante Matrimonio meerly for Love and Fa∣vour, and under Reduction long after she stood publickly infest. Lastly, My Lord Drumcairn having called this Action again after he had tak n the Dispute above mentioned to a visandum, My Lord Hercarse still compear∣ing as Procurator for his Son in Law (a Practick without a paralel) without giving us a sight of the Decreet they produced to object against it or admitting us Accompt or Reckoning in referrence to the Reversion, which we offered under protestation it should not be prejudicial to our▪ Reduction, still decerned accord∣ing to the desire of My Lord Hercarse, Inchdarnies Procurator, prefer∣ing him to the Mails and Dueties.

Wherefore we humbly pray that your Lordships for shunning the guilt of an un∣just Sentence, and for vindicating your own Honours before the World, would seriously consider the Concussions, the overhailings, the Injuries, the Illegalities, and Informalities of the said Process, and particulars deduced therein, tending to the ruin of your Petitioners, without any free hearing or the benefit which by the Laws of the Kingdom is allowed to all his Ma∣jesties Subjects, and discharge the Extracting of any such Decreet, till your Petitioners be heard fully and freely to debate their Interests as others his Majesties Subjects uses to be heard in such cases.

This Bill being read to the Lords, It is given up to my Lord Hercarse to see: Who (as is informed) went to the Kings Advocat, and consulced it, to make up a strong Accusation against the ingi∣ver: Who was appointed to answer to the Bill on Tuesday thereaf∣ter, upon which the same being called the said day, in the After∣noon, the Lords gave their Deliverance in thir Terms:

The Lords finds the Representations contained in the said Bill Calumnious, and therefore refuses the desire of the said Supplication, and ordains Macers and Messangers at Arms, to apprehend the said Mr. Robert, and incar∣cerat his Person till further Order.

Which Sentence in this was the more grievous, that it was pas∣sed the Penult day of the Session, so that if he had been Appre∣hended on the morrow thereafter, he must have lyen in Prison till the sitting down of the next Session, being the first of June, see∣ing no one Lord nor three would have taken upon them to have inlarged him. But taking this Deliverance into my serious consi∣deration, I found it 1st. Generally finding the Representations con∣tained in the Bill Calumnious: And I humbly conceive, there are some of them, which my Lord Hercarse himself will not avert to be Calumnious: 2dly, I found there was no mention of the latter part of the deliverance, anent my imprisonment, mentioned in the Decreet, when the said Deliverance is repeated for fortifying there∣of. Lastly. I find none of our Bills, first or last, insert in the De∣creet, nor the Answers thereto, tho it be the constant custome in such cases, alwayes to insert Bills and Answers as a part of the pro∣cess: Which Fortifies or Weakens, as they are Granted, or Refu∣sed; And as to the Reason hereof, I leave it to the Judicious Rea∣der, and will not take upon me to judge thereof, least it be recko∣ned to me for a second Crime; But come to the Bill it self: The first Representation bears, the Conference which past betwixt my Lord Hercarse and the Petitioner, when he first sent for him; And that albeit the Petitioner hastened the Agreement, Inchdarnie with concourse of his Father in Law, after the same was done, caused him dispone it to him for a 1000. Merks less than I had agreed for; He having a great Action depending in the Session, against my Lord Annandale, and knowing the great Figure Hercarse made among the Lords. As to what touching the first part of it, anent our Confe∣rence, it is believed Hercarse will not deny the Truth, of it himself, and there is no shaddow of a Calumnie in it. As to the 2d: part of it, That Inchdarnie caused him▪ Disnone with concourse of his Father in Law, &c. We hope my Lord will not deny he was present, at the making of the Bargain, which if he do, we offer to prove it: And if he was present, all the World will conclude he came not

there as a Cipher. Yea, we are free to say, any Man who knows him and his Son in Law both, speaking his mind with any ingenui∣ty, will conclude he was the chief Actor. That Rossyth had a great Action depending before the Lords, against my Lord Annandail, is nottour; and I have often heard it of himself. And that Hercarse made a great Figure among the Lords, is no less nottour. The Bill bears neither that my Lord promised to hasten his Action for the Bargain; nor to do him any good office whatsoever, but simplie relates the Truth as it was: And if my Lord himself makes any such Applications, he may blame the witness within himself, and not the Ingiver of the Bill: Tho he believes it had been neither ca∣lumnie, nor reflecting upon my Lord, tho he had added, Rossyth having in his view the service such a Lord might do him, farr beyond the worth of 1000. Merks or two. The second Representation is, That in an unusual manner, he raised a Suspension in the Tennants names, which was by them and the other alledged Chargers disowned, which as we are informed, is not agreeable to Law. If it be usual we desire the Complainer to condescend but upon three cases (which is the least makes a perfect number) quadrating with this since the Erection of the Colledge of Justice, and we shall acknowledge it an Error, tho it would prove no calumnie; but a mistake of the Form of Process before the Lords▪ And if it be denyed, that it was disowned by the Tennants, it is offered to be proven scripto; and the Answers given in to Inchdarnies Bill sufficiently verifies, it was dis∣owned by one of the Chargers, and their carriage all along in the whole business. As to the third, That the Tennants put in a Bill, craving the Bill of Suspension might be given up to them to be de∣stroyed; or that Inchdarnie might be ordained to subscribe the same before Witnesses, and abide thereat. If it be denyed, their Bill is Extant to verifie it: And that it was not granted, is a Negative, and proves it selt, till the contrar be instructed. As to the Fourth Re∣presentation, it is, that where in an Action for Mails and Dueties it is enacted that the Defender produce such a day, no Decreet can be pronounced, till an Act be Extracted, and called, yet without Extracting and calling an act, this Decreet was Pronounced: And as to the first part thereof, there is hardly a Pock bearer about the house, but will give Testimony to the Truth of it; and as to the second, it is beliered the ordinar will not deny he past a De∣creet

upon the Bench; when there was no act extracted: tho' after∣ward he past it de-novo upon as was alledged better Grounds: To which many others likewise were witnesses. The fifth Reprsen∣tation contains nothing, but an Abbreviat of the Disput', and that my Lord Hercarse compeared as Procurator for Inchdairnie: If it be denyed that Hercarse compeared as Procurator, we are ready to prove it by many witnesses: That we proponed the Defence mentioned in the Bill, and gave in the replyes specified therein to Hercarse his answers, we offer to prove it if denyed by Hercarse his own oath, he being now but a private person, and the Declaration of my Lord Drumcairn. The last Representation is, that tho' we offered to compt and reckon without an order of Redemption it was not granted; And that we never had a sight of the Decreet Her∣carse proponed upon; For eleiding our Defence; That the Aprry∣sing was reduced, which we offer to prove by the oath af Hercarse and the Declaration of my Lord Drumcairn, and that Hercarse was still Procurator, for shame will not be denyed: Yea only Procura∣tor in this Debate. And that it was a Practick without a Paralel, we also represented, which we shall acknowledge for an Error, but no Calumnie, when the contrair is instructed: We have seen a Lord come to the Barr, when his own cause was debating, but behav∣ing himself with such Modesty, that hardly would he meddle in the Dispute, or any thing, unless it had been to inform in the matter of Fact, but referred all to his Advocats: But for a Lord to come to the Bar, and debate as Procurator for another man, is indeed that which we never either heard or saw, and as to the Precatory part which desires the Lords to consider the concussions, the overhailings, &c. It is answered , 1st. Tho therein there were something, which be∣ing insert in the Narrative might inferr Calumnie; Yet the scop of the Petitioning part, being meerly to desire the Lords to consider, if things be so and so, and to rectifie as they shall find cause: It would be very hard to declare upon a mistake here, the Petitio∣ner to be guilty of Calumnie: There is never a Bill put in, which is a complaint, but craves something to be rectified, and conse∣quently complains, at least Implicirly of Injustice; And if it be not in Terms sufficiently flattering, they must excuse me for this Error: I will not give Flattering Titles unto Man willingly, least my Maker take me away suddenly: Job 31. ver. 21. But 2dly, We believe we

have sufficiently instructed injurie, which in the largest sense, is quicquid fit non jure, overhailing, by precipitating Judgment, Ille∣galitie, and Informality, in carrying on the Action in a way una∣greeable to the Laws of the Land: And that there was concussion is sufficiently made out, in shewing the way, how Inchdarnie came to the Bargain, to which we now add: My Lords ingaging the King's Advocat in the cause, unde abusus est patronatu Caesaris; Labouring to make it a publick concernment, and his influencing the Ordinar so much to follow his Faith: Upon pretence of his great skill in Law, whom the Ordinar conceived to be of as great Ingenuity as him∣self. And if it be alledged that he could not injicere terrorem, in the Ordinar; who was of equal station with himself, and Cussing Ger∣man to my Lady Errol, a great Courtier in that day, by reason of Communon with the Romish Church. It is answered, granting that he was not only of equal station with my Lord Hercarse, but also that his Mountain was presumed to stand strong in that day; because of his near Relation to my Lady Errol a Professed Papist, by whose Moyan likewayes many believed he was preferred to his place; but all fear upon Concussion, is not a slavish fear whereof we judge my Lord Drumcairn was least capable: but there might be a fear of being toped by Hercarse, when matters came to be Debate in the Inner-house, and a fear of losing his Friendship, with whom he was very Intimat. Neither is Concussion alwayes taken in so narrow a sense, as importing only a slavish fear: Cod: Tit: de Concussione le∣ge 4. Jubemus atque hortamur ut si quis forte honoratorum de curionum pos∣sessorum postremo etiam colonorum, aut cujuslibet ordinis a judice fuerit ali∣qua ratione concussus, si quis scit vaenalem fuisse de jure Sententiam; si quis poe∣nam vel pretio remissam vel vitio cupiditatis injestam, si quis postremo quacun∣que de causa improbum jndicem potuerit improbare is vel administrante eo, vel post administrationem depositam in publicum, prodeat crimen deferat delatum approbet cum probaverit & victoriam reportaturus & Gloriam. To all which may be added, that while we speak be way of complaint of my Lord Hercarse; we spake against him not as a Lord of the Session, but as Inchdairnie his Procurator, if a Lord of the Session, should be found in a Plebeian habit, in some base imployment, and meet with some afront which would be esteemed such to a Lord; but not to one of a vulgar station, he could not complain that there were any injurie done, or a Lord were affronted: And therefore though

there were something in this Bill which might be quarrelled if done against a Lord: (which we cannot find) Sure there is nothing in it which might not have been said, against a Procurator, and more also.

But possible it will be alledged, I am presumed to be guilty, be∣cause there was no Compearance for me, In answer to which it is to be considered, the order was that I should compear on Tuesday, to answer to my Bill, (which whither it was publick or not I do not remember) which according to the Grammatical Construction, and the letter, seems to be in my favours; for explaining and clearing something in the Bill, and taken in this sense; I might compear or not, as I thought good: For any man may renounce jus suum, but I soon found it was in the scope of it, to answer to Hercarse his Accusations, founded upon my Bill, in which case I was not tyed to compear: till First, they had given me notice who was my Accuser, 2do. The double of my Inditement, especi∣ally it being founded upon write, and a Complex business. 3tio, I ought to have been Cited by a Macer or Messengers at Arms, none whereof were done: And therefore I was not bound to compear; And yet I did compear, and was ready to answer all the Forenoon, but they delayed the calling of it till the Afternoon; at which time I judged it no wayes mv duty to compear, for these reasons, 1st. In the Afternoon the Officers of State are Absent, 2do. All the ex∣traordinary Lords are absent who were unconcerned in the Business: 3tio. It was impossible for me to get my Advocat whom I had con∣sulted, to attend in the Afternoon, in the close of the Session, he being a Gentleman of great Imployment; and it was uncertain whi∣ther they would call at 2. or 3. a Clock ot at 6. or 7. at Night. So much for the Clamercus Bill, so called.

Within a few dayes after the rising of the Session, the Lords meeting for some concernment of their own, They recommended to the President to agree the Civil Interest, and for that effect delay∣ed the Execution of the Sentence, for my Imprisonment for a Mo∣neth, with power to my Lord President to prolong my Liberty if he should find cause therefore. Hereupon we made an Address to my Lord Hercarse, to draw an Absolute Submission to my Lord Pre∣sident, to do in the matter as he should find just: To which Hercarse chearfully condescended, being then in a tender frame, partly through the rescent lose of his Place, and partly through the sick∣ness

and death of his Daughter, who if Fame be not a false witness, was a Gentlewoman qualified with singular Induments: Whereup∣on we caused draw the Submission and subscrived it, I my self and my wife, who was going out of the Town, Hercase having declar∣ed (because Inchdairnie was not in Town) he would take burden for him. But it being uncivility to trouble him, while he was in extre∣mitate luctus, we forbear for a time, and when we came to desire he would subscrive, found he was returned to his old Temper, and he resiled, alledging a Communing would do the business, and when we told this to the President, we found him of the same mind, and albeit I well knew a Communing would be to no purpose, yet that it might appear I was averse from nothing which might effectu∣at Peace, I attended a moneth after the Session rose; being in a ve∣ry infirme and Valetudinarie condition, in which at length hav∣ing obtained a meeting before the President, I found nothing in his Comuning but Calumnniating my Person, and justifying all he had done: But concluding that they might get these Lands with a Bles∣sing, he would give what the President should appoint. But not be∣ing satisfied with his rough discourse, and knowing he might as well reseill from the Presidents determination by word, as he did from the Submission: We parted without a Conclusion, only the Pre∣sident said, he would order his Decreet to be extracted, which ac∣cordingly was done.

This being done, Inchdairnie with John Law, Hercase his Servant, went alongst the Tennents, and with many Threatnings and bigg Menacing words perswaded them to take their Lands holden of him. But all in vain, their love to their old Masters was so deeply root∣ed, that they would take of no other, till necessity forced them: Hereupon Inchdairnie in July thereafter charged them, to make pay∣ment of their Mails and Dueties as he had lybelled them in his Bill of Suspension; upon 15 days: But his Charge being given upon the 6. of July, they were denounced upon the 11. which was upon 5. days, all Registrate at the Horn, and Caption taken out against them. Whereupon (as is informed) Inchdairnie was upon his way, to have taken all the Tennents, but his Father in Law knowing the gross∣ness of this Act, sent over Mr. Law and stoped him▪ And to Palli∣ate the Illegial Denunciation, and Caption, which was taken out, he and his Guide abovementioned, came to the Tennents, and Threat∣ned

them, if they brought not their Dutie to him, and that to his own house before the 15 days were expired, he should not leave them a Cock to crow Day: And (as is informed) his Father in Law took the Messenger to the President, who being a poor man took all the fault upon himself; giving an Excuse therefore, not worthy of the writing, and far less of an Answer. But one thing was forgot∣ten by them both, the same Messenger was thereafter imployed to apprehend the Tennents, which no rational man being free of the guilt, would have done; he being so gross a Criminal, untill he had either been Purged, or Punished. But the Tennnents finding that the charge it self was judged Illegal, by several Writers to the Signet, it being but in effect a general preferrence, and a Declarator of Inch-Inchdairnies right, a Bill was put in to the Lords, complaining upon the writter, who had raised such a Horning, they being charged particularly, for the Sumes as Inchdairnie had lybeled them. To which the answer was, finds the Writter has done no wrong: Hereupon the Fifteen dayes being near expired, a Bill was put in in the Ten∣nents names, for a Suspension, as the last remeed, whereof the reasons were. 1st. The generality of the Charge (for the Charger disowned the particular Charges given by the Messenger.) 2do. There was no Liquidation, tho some of their Dueties were partly Victu∣al. 3tio, There was no probation of the quantities. 4to. There were several others not called, who had an Interest, viz. The Superior for the few Duties, and the Minister, and School-master for their Stipends: Which Bill was given up to see, and kept up till the last day of the Session, that in case there were any necessity for it, all remeed might be cut off. The reasons were unquestion∣ably Relivant, and passing by the last, the 3 first were instantly proven being Negatives; all that ever saw it concluded, it could no be refused, but if it had been past, it would have cost Hercarse a second Bellum, and it was too strong to be refused. A new course is invented, for fortifying Inchdarnies Decreet, (whether by Her∣carse his contrivance or not, we leave it to the Reader to judge.) The Lords ordained the Tennents to compear in time of Vaccan••e, viz. Betwixt and the 15 of August, before my Lord Castlehill, and depone anent the species and quantities who had no Tacks: and such as had tacks to produce, and restricked the Chargers diligence, to what u∣pon Oath they should depone, and to what was contained in

their Tacks who had any. Which Sentence is never drawn in an Act, Extracted and Read out of the Minut-Book, to put the Tennents in Mala fide; But Writen by the Clerk upon a Lords Direction, several dayes after the rising of the Session: Yea so close it was in the carrying of it on, that the Gentel∣man who was Agent in the cause, having inquired of it at the Clerk, he told him he could not tell him what it was, nor could I my self by any inquiry, have certainty in the matter, till I came to my Lord Castlehill hearing it surmised, it was referred to him as it was indeed. Hereupon the Tennents did compear, and produced there Tacks and Deponed: Only two sent Testificats subscrived by the Minister, and four Elders, witnessing that in regard of their great Age they were not fit for Travel, the one being upwards of Fourscore years, and the other being near about this Age: Which was not sustained because it wanted Soul and Conscience, concerning which we shall only say this much, that albeit it be ordinar, in Test ficats under the hands of Physicians and Chirurgions, to re∣quire they be upon Soul and Conscience: It was never required in a Testificat, concerning a Mans Age, for if so the Testifiers them∣selves must be about a Hundred, which is rare in this Age: For he cannot give rationem scientiae till he be Fourteen; and secondly they must have been witnesses either to his Birth or Baptism 80 years agoe. But we leave thir ticklish questions to my Lord Hercarse to solve. The Tennents having some deponed, and some produred their Tacks Inchdairnie denunced them registrare and took out Caption de novo, and upon the 21 of August the same Messenger, at his instance apprehended the Tennents; being ten in number, whereof two were the old men abovementioned, and incarcerat them in the Tolbooth of Dunfermling: W ere they continu d Prisoners ten dayes, being the time of Harvest: till they were forced to pay him their Dueties; such as could get Money, and such as could not to give Bond, or find Caution, as also after they had agreed for their Duetie, he forced them to take a three years Tack of him, or else threatned them to return them again to Prison.

How the Lords will relish this diligence, before advsing of the Tennents oaths, and a Declaration judicial what was contained in their Tacks, time will declare hereafter: But we believe up n im∣partial Examination, it will be found a clear Spulzie, and also a

breach of Arrestment, there being two Arrestments layed on upon the Mails and Duties, which were not loosed by Inchdairnie, till the Tennents were brought Prisoners to the Town of Dunfermling. The Chancellour his Over-awing power being now gone with him∣self, tho' not long since, Inchdairnie foread out his kindly Letter to him, before the Tennents in Tillo••••ill, to terrifie them by his Authority.

FINIS.