REPLYES FOR ALEXANDER MONRO of Bearcrofts To the ANSWERS made to the PETITION and INFORMATION presented by him to the COMMISSIOMER HIS GRACE AND ESTATES OF PARLIAMENT WHEREAS the Answerer in his Preface craves leave to represent the point of Fact thereby professing to clear the Parliament how far Alexander Monro's desire in the foresaid Petition was contrare to the Rules of Justice and in order to which clearing states the matter of Fact so as thereby and in the Answerers intention to demonstrate that there could be but three Clerks of Session viz. One for each Office and that particularly in the year 1594 and 1621 Acts of Sederunt were made appointing only three principal Clerks and that no other Clerk should be joyned but of consent of these Principalls for the future and that the said Act of Sederunt was ratified in Parliament and that there was no Legal Title for appointing two Clerks in each Office till Tarbat procured the same by a Letter from the KING ratified in Parliament Anno 1685 and upon all this Insinuating that the Petitioner's Right to one of the Offices of Clerkship in conjunction with Mr John Hay in the year 1669 was Illegal and therefore that the thrusting of him out by an impetrate Letter from the KING was no Act of wrong especially seing that any collour of Right Sir Archibald Primrose then Register had by his Gift to present the Petitioner was a surrepticiously insert Clause into the said Sir Archibald his Gift relative unto his naming of Deputes one or moe in each of the Offices after that Sir Archibald had abstracted the Records of the year 1621 which did bear the Act of Sederunt anent three Clerks only recorded therein and also that the Petitioner became troublesome to the LORDS in the year 1674 which occasioned the procuring the KING'S Letter for turning him out and consequently that the Petitioner cannot in Justice be reponned to the Office of Clerkship especially seing he accepted 7000 Merks as an adequate price modified therefore and thereupon renunced the Office Replyed That the Anwerer considering the mistake alsewell as the Irrevolancie of these points of Fact accumulate by him had good reason to crave leave for his adventuring by such an Ingenious Contexture of words to impose upon the World in stead of clearing the Parliament of the Truth and that all the abovementioned Storie ought to derogate nothing from the sufficiency of Alexander Monro's Title to the Clerkship in point of Right nor yet hinder him from being restored in Justice to his said Office notwithstanding of his Recept of the 7000 Merks and Discharging his Office thereupon is clearly evident from the unanswerable Grounds following viz. 1mo That as to the pretended Act of Sederunt in the year 1621 the Answerer confesses there is no such Act and therefore he ought not to sound thereupon nor consequently upon the alledged Act of Parliament relative thereto because by the principle of Law Non creditur referenti nisi constiterit de relato especially when the said Act of Parliament is neither amongst the Printed Acts nor in the index of the Imprinted Acts nor can the Answerers alleadged Cause and occasion of abstracting of the said pretended Act of Sederunt be in the least respected as being a most unjust reflection on Sir Archibald Primrose considering the World knows that Sir Archibald at the delivery up of the Registers deponed he had abstracted none besides that these Books of Sederunt have been alwayes in the Custody of the Clerks of Session but which totally takes off the said Reflection Sir Archibald had no Temptation thereto for the whole six Clerks came in uniformly upon Recommendation to him so that there was no use for any indirect method 2do That the pretended Act of Sederunt in anno 1594 as the same is printed by the Answerer bears That the Clerk of the Proces should be only present with the LORDS at Voting and Reasoning c. Alsewell as Mr Alexander Gibson Clerk his Admission at that time to have been of consent of the other two principal Clerks yet all the World knows how far that of removing the Clerks the time of advising alsewell as the getting the incumbent Clerks consent to a Conjuncts Admission has gone in desuetude in so much as upon the contrare now about 70 years six Clerks have alwayes been in use to serve and all of them allowed to be present at advising and this is demonstrated 1mo From the Books of Sederunt as follows viz. That in the year 1621 the Defenders acknowledge there were six Clerks and the first Admission of any Clerk thereafter is found to be on the 25 of July 1932 when Sir John Hamiltoun Clerk Register presented Mr Alexander Gibson and John Gibson his Brother conjunctly and severally Clerks to the Session in one Office and upon the first of June 1636 Sir John Hay Clerk Register presented Mr John Hay and Mr William Hay his Son conjunctly and severally to one Clerkship and upon the first of June 1649 Mr David and Mr John Hayes were presented by the Register conjunctly and severly to one Clerkship and in the year 1661 at the settlement of the Government two Clerks were presented to each of the three Offices who were every one of them recommended by the KING to the Clerk Register except Mr Lawrence Scot who came in in the place of Mr James Mariland who was so recommended and they and the Petitioner Alexander Monro who succeeded to the said Mr Lawrence Scot continued in the peaceable possession of their Offices until the year 1676 after Arbitrary power began to exert it self 2do That in the special case of Alexander Monro the Petitioner his Admission there was no possibility that Mr John Hay the incumbent Clerk for the time his consent could have contribute any thing to the said Alexander his Right the said Mr John his own Right and Gift being from Sir Archibald Primrose in the year 1661 upon the KING'S recommendation as said is but to the half of the Office only nevertheless esto that the said Mr John his consent would have contribute anything Alexander Monro and Mr Lawrence Scot his Predecessor had the samen sufficiently testified to them by the said Mr John his Acquiescence from the 1661 year of GOD till the 1676 without ever reclaiming during their Incumbency as indeed he could not considering the established custom of two Clerks in each Office at that time and long before as said is and that he had no Right to reclaime and Mr Lawrence Scot Alexander Monro were principal Clerks as well as he 3tio That as Alexander Monro's Right was founded in the established custom and consuetude of the Sessions being served by six Clerks as said is which is sufficient per se to sustain his right custom in such Cases being equivalent to a Law nevertheless ex super abundante Sir Archibald Primrose then Lord Register and from whom the said Alexander his Right
this case there was no point of Publick Vtility condescended upon as the cause of turning out the Pursuer but allennerly the KING'S pleasure as the Letter bears Likeas on the contrare the publick Utility after the private design was effectuate was found to be concerned in the re-establishment of the six Clerks as the Act of Sederunt made thereanent anno 1682 and the Act of Parliament ratifying the Establishment of the Clerks by two in each Office can testifie 3to The acknowledgment modified to the Pursuer being but 7000 Merks was vastly under the worth of his Office as aforesaid 4to From what is above represented it is evident That the Pursuers Right to his Office is unanswetably founded in Law both upon the account of the immemorial custom of six Clerks and the positive Faculty in his Author Sir Archibald Primose his Patent and which Patent is the very Foundation and Standart of all the Right that Tarbat or any Clerk Register sensyne had to Name six Clerks and who accordingly and conform thereto per expressum have named and joyned Clerks in Offices ever since as aforesaid So that it is admired with what confidence the Defenders can so nauseously repeat these misrepresentations in point of Fact Whereas it is 2do alleaged against restoring the Pursuer to his Office that the Defenders are in no worse case as to the point of Right then the Pursuer Besides that the Defenders have the advantage by being in possession in dubio potior est causa possidentis Replyed That the Alleagance is founded on a gross mistake for the Pursuer is beyond competition preferable in point of Right which no deed extorted from him by necessary complyance with the Kings Letter could in Law irrecoverablie extinguish so that as the Pursuer in point of Right was prior tempore to the Defenders he is potior jure and their possession can avail them nothing in respect of the illegal and Violent way that the Pursuer desut possidere as aforesaid Whereas it is 3tio alleaged against the Restoring of the Pursuer to his Office that the whole tract of the Affair and steps in the procedure of turning out the Pursuer and installing the Defenders in the Office of Clerkship are ingrossed in the Publick Records as the Kings Letter to the Lords and the Lords sentence thereon turning out the Pursuer with the Defenders gift from Tarbat c So that the Defenders having followed the publick Faith are in perpetual secutitie by the L 6 cod de re judicata where it is said that gesta quae in publica monumenta translata sunt habere debent perpetuam firmitatem Replyed That this Alleagiance is but a pitiful Quible and the meaning of the Law by the Gloss and Commentators on that Text Is only of Testimonies and Depositions of Parties and Witnesses and such like being once made and performed judicially and recorded as such remain in Credite and Force Notwithstanding both Partie and Judge afterwards die or would offer to retract the same And it is an absurd notion in the Defenders to think that any Transaction or matter in it self defective being once put in Record supplies its defects or that the Recording the Kings Letter c. in the Books of Sederunt precludes the Pursuer from quarrelling the wrong done him by the said Letter Whereas it is 4to Alleadged That the Act of Sederunt made be the Lords upon turning out the Pursuer conform to the King's Letter being homologate by the Pursuers accepting of the 7000 Merks therein modified the Pursuer cannot be heared to reclaime against the samen because a Sentence tho unjust may be homologate by the Party and that no Lawyer that ever understood but the common principles could advise the Pursuer that his taking the 700 Merks could not preclude him from craving to be reponed because standum est rei judicatae nisi a sententia appellatum fit and that qui qualibet modo sententiae acquieverint cannot reclaime be the L 5. and L 32 Digestorum de re judicata and 5to That the Pursuer did not only homologate but ex super abundante he freely Renunced and Overgave from him and his Successors to Mr John Hay and his Successors his Right as one of the Clerks of Session with power to him to dispose upon the profites thereof which as an ample dimission ought to exclude the Pursuer albeit he had not got a Sixpence therefore And that the Pursuer cannot pretend any thing of Concussion for excusing his said Acceptance of the 7000 Merks and voluntar Renunciation especially when he never reclaimed by Bill nor proponed a Defence against his Removeal Replyed That the Pursuers grounds in Law whereupon to eleid those last and seemingly greatest of the Defenders Arguments and yet as empty as all the rest is indeed the Concussion Impression Irresistable awe that was upon him by the King's Letter and which ground of Concussion that the Honorable Lords of the Commission may perceive the nature of the samen from its Causes and Effects in Law and how far in the Case in hand the Pursuer should be reponed against his accepting of the 7000 Merks and renuncing of his Office as Acts that can operate nothing against him in Law considering the circumstances he was in the Pursuer is able to demonstrate the same beyond Contradiction that not only by direct Consequences from positive Texts of common Law that he is in the Case of one whose Deeds aforesaid are Null as being the effects of Fear and Impression but likewayes by the opinion of all Doctors and most Famous Practitioners that ever wrote upon the point of Restoring against Deeds done per impressionem metum in so far as they adduce the Pursuers Case in Terminis as the great example of their Practice and Observation for illustrating the points following viz. What infers just Fear a Fear that the firmest of Men may be subject to and a Fear by Impression and Concussion and how far such a Fear may endure so as to construct the Parties subsequent Deeds to have been the effects and results of the Fear and nowayes acts of Freedom or that might import the Fear to have been purged and Over Are all at length illustated by Tuschus in his Practical Conclus Lit M Conclus 216 Seqq. And 1o Quoad the Texts of Law it is said L 6 9 7. digest deacqu vel amit haered Eum qui metu verborum vel aliquo timore coactus fallens adierit haereditatem five liber sit haeredem nom fieri placet sive servus sit dominu haeredem non facere Item L ij Cod de his quae vi vel metus causa gest Cavetur si per impressionem quis aliquem metuens saltem in mediocri officio constitutum rei suae in eo loco ubi tale officium peregit venditionis titulo fecerit cessionem quod emptum fuit raddatur And ita est that in this Case
did flow had an express power in Gremio of his Patent anno 1661 to Name six Clerks viz. One or more in each Office as the same should seem good to him or be profitable to the Leidges and which Clause is so far from being surreptiously ingrossed by Sir Archibald as is injuriously suggested by the Answerer that upon the contrare 1mo The Answerers cannot deny but Sir Archibald's Patent was under the KING' 's great Seal Read and Ratified in Parliament anno 1661. and that Sir Archibald at that time presented six Clerks to the Parliament that their Gifts were Read and Ratified and they Sworn and Admitted Clerks to the Parliament that they were also Sworn and Admitted Clerks to the Session and their Gifts recorded in the Books of Sederunt and that they were 15 or 16 years in possession before the KINGS Letter to turn out three of them was impetrate and which Ratification not passing unvoted of Course but in prosecution whereof six Clerks being Admitted by the Parliament and in possession serving the Parliament it is sufficient for establisting two Clerks in every Chamber 2do That the said Letter buir no other Cause for overturning the establishment and recurring to an abolished and impracticable custom of restricting the Clerks to three and appointing their Nomination by the LORDS but allanerly His MAJESTIES pleasure without respect to the conveniency of the Leidges which was a part of the Fundation of Sir Archibalds Patent as to the point of Naming Clerks 3tio That when the Contrivers of the said impetrate Letter their design was served and Alexander Monro turned out within a short space thereafter the whole number of six Clerks was restored by Tarbat's Gift in anno 1681 and by an Letter from the KING in anno 1682 in Favours of Tarbat The tenor of the Letter expresly relates to the power of constituting Deputs one or more as Sir Archibald Primrose per expressum had and did the same nor does the said Letter in Favours of Tarbat bear any thing of the incumbent Clerks consent as is alledged by the Answerers which is a Demonstration that the power of the naming Substitutes in the way and manner mentioned in Sir Archibalds Gift is alwayes held as the True and Legal Standart of subsequent Registers their Patents And 4to as a farder evidence of this the LORDS of Session in November the said year 1682 in the Books of Sederunt do declare that it was necessary there should be two Clerks for each of the three Offices or Clerkships of the Session in respect of the Multitudes of Process that the Leidges might be the better dispatched and because that formerly there had been two Clerks in each Chamber Likeas 5to in the year 1685 there is an Act of Parliament which in effect is declaratory of the constitution of the Clerks of Session and ordains two to be in each Office or Chamber so that it is admired with what confidence the Answerers could adventure upon the misrepresenting of the point of Fact so far as to assert that Tarbat was the first that procured an legal Warrand for two Clerks to officiate in each Office which as the samen was past Memory of Man in use and Sir Archibald Primose Patent aforesaid to that purpose not only ratified but put in execution by the Parliament as said is so it was made per expressum the Standart of any alleadged new Right purchased by Tarbat 4to As it is evident from what is abovesaid That Alexander Monro's Right is unquestionably well founded in Law so is it on the other hand most groundless and Irrelevant to pretend That the said Alexander was trouble some to the Lords and that thereupon they were necessitate to impetrate the Letter for turning him out For 1mo the said Alexander his carriage towards the LORDS and all others can be testified by hundreds to have been inculpable and were it otherwayes the LORDS no doubt might and ought to have turned him out upon a fair Tryal by order of Law and needed not have taken such an extraordinary course by an impetrate Letter without allowing him an hearing 2do The Petitioner must vindicate the generality of the Lords from the charge made against them by the Answerer in that it is notar that most of them were alse much surprized by the KING's Letter as the Clerks themselves And why should the LORDS have done such an Act of Injustice as to turn out three Clerks for the alledged fault of one and when the removing of that one if guilty by the ordinary course of Law had been far more honourable and safe for their Lordships 5to The acceptance of the 7000 Merks modified can never debare the Petitioner from being reponned in Justice to his Office Because 1mo The same was far short of the adequate worth of the Place and Office as is evident by the great Compositions of 10 or 12000 pounds that are given for such Places by Persons that intend no farder Advancement in their Life and the good Estates severals have made and daily makes 2do That both by Texts of common Law opinion of Doctors and practice of our own and other Nations as in the subsequent Replyes shall be made appear A Person in the Petitioner's circumstances the time of his taking the 7000 Merks it is understood under such impression by reason of the KING'S Authority who in joyned the Transaction and who was still on Life and the Petitioner under his power that as the complyance with the Kings Injunction would have been reckoned an Act of contempt so the not taking of any Money at all would have been reckoned an insolent Aggravation of the same and tended to the Petitioner's utter loss of all and that therefore in such Cases and Circumstances the Petitioner's taking the Money and renuncing the Office is far from an Homologation of the unjust and unequal imposed Price or any absolute Acquiescence to the LORDS determination and is only a necessary and Lawful consulting of his own Interest for saving something rather than lose all Therefore Persons in such Cases should be restored in Integrum ex capite metus impressionis notwithstanding any such acceptance or Discharge all which the Petitioner did very well know the time of the Discharge and so discharged because in those circumstances he could not better do and yet could not be thereby prejudged in Law or reason whenever Justice could take place And whereas the Answerer after his mistated matter of Fact alleages by way of Preface to his Dilators That the President of the meeting of the Estates rejected the Petitioners Claim And that by express Order of the Commissioners Grace the same was Expunged in plain Parliament out of the Act for Fines and Forefaulturs Replyed That these pretences are of a piece with the rest of the Answerers matter of Fact for the President of the meeting of the Estates could not hinder any thing that the Estates sand just And so it is that
the Estates did find it just in the Claim of Right to Ordain the loss of Offices to be Redressed upon which Claim of Right and common Justice and Equitie of the same the Petitioner founds his pursute Likeas the Reason why the Commissioners Grace expunged all Clauses out of the Act but such as concerned Fines and Forfaulters was indeed because his Instructions mentioned only Fines and Forefaulters so that he could not consent to any more by way of Act of Parliament and publick Law but His GRACE never intended to put any stop to the Judicative power of the Parliament as he declared to the Petitioner and His GRACE having read the Petition gave it to the President of the Parliament to be remitted to the Commission and which accordingly is remitted and Citationes execute thereupon and several dyers of Court already past in the Commission there anent Whereas the Answerer at length comes to his Dilators and alledges 1mo That the Petition whereupon the reference to the Commission of Parliament is made was not read in Parliament 2do That the subject of the Petition being the loss of Office cannot be considered by the Commission because the clause relative to that subject was expunged out of the general Act of Parliament as said is 3tio That all Parties having Interest are not called such as the LORDS of Session the two late Registers and their Representatives from whom the Defenders derive their Rights to their Offices and in course ought therefore to be called lest otherwayes the Defenders may be excluded from their Relief if they propone Defences their Authors not being called 4to That the Defenders being in possession these seven years by past by vertue of a Title and Right to the Office cannot be removed until their said Right be reduced and that there is no ground of Reduction lybelled nor Right called for to be reduced and therefore that no Proces ought to be sustained Replyed to the first That the Petition was read in Parliament tho not at the instant when it past But Esto it had not been read the Objection is most frivolous for it was very well known not only to the Defenders but to all the Members of Parliament the same having been destribute in Print long before and that it was needless to have spent time in reading a matter which the Parliament was not at that time to dipp into and discuss and had determined only to remit the samine as aforesaid Likeas the generality of the References to the Commission are upon Petitions in course without reading where the matter is previously understood And yet the Commission never rejects a Reference upon that head To the 2d that what is formerly adduced anent the difference of the Commissioner his Grace his not admitting of Restoration of loft Offices by a publick Law and Act of Parliament in a Legislative manner and his allowing of the Parliament to cognosce thereupon in a Judicative capacity is here repeated beside that the Lords of the Commission have already cognosced upon cases of lost Offices remitted to them by the Parliament in course As particularly that of the Town Clerkship of Glasgow at the instance of Master Spruel To the third That the point of Law is here grosly mistaken misrepresented by the Answerer for the Petitioners Claim and Action is upon the Edict Quod metus causa And upon these grounds in Law that relate to impressions made by persons in Authority And that therefore this Claim and Action is competent contra quemcunque possessorem of the thing extorted as being ex equitate pretoria a real Action in rem scripta So that the Petitioner needs no more but to get the Causes and Occasions of the Vis and Metus declared by the Judge which is sufficient ad rem vindicandam contra quemcunque possessorem As is clear by the Testimony of all Lawyers according to the L 9 § 8. and the L 14 § 3 digest quod metus causa whereof the words are to this purpose Viz. In hae actione non queritur utrum is qui convenitur an alius metum fecit sufficit enim hoc docere metum sibi illatum esse c. And the reason is rendered in the said L. 9. § 8. Viz. Cum haec actio in rem sit scripta nec personam vim facientis coerceat sed adversus omnes restitui debet id quod means causa gestum est c. And the Defenders may intimate their Distress to their Authors and their Representatives in Order to their Relief To the 4th That the immediate above Reply is repeated whereby it is evident that by the principles of Law the Petitioners Claim and Action proceeds upon special grounds and is singularly sustained upon the Pursuers proving that the Office lybelled was his Right and that he was turned out of the same by Impression and Concussion So that the Pursuer is no wayes concerned what Tittle the Defenders may have or how long they possest the Office for the Pursuer tanquam spoliatus est ante ominia restituendus according to the principles of Law abovementioned And therefore the whole Dilators ought to be Repelled and Process sustained Whereas the Answerer comes at last to his peremptor Defences and states the Petitioner's Claime as resolving into two Articles viz. That the Petitioner may be restored to his Office of Clerkship and next that the Defenders may be decerned to pay him the Emoluments of the Office since he did quite the same And 1mo alledges absolvitor from the Lybel as to the bygone Emoluments in respect the Defenders were bonae Fidei Possessores c. Replyed That the Pursuer pro loco tempore insists only for being restored to his Office and Place And whereas it is alleaged against the Restoration of the Pursuer to his Office That 1mo Esto that the Pursuer had a sufficient Right and Title thereto the supreme Magistrate might for an publick conveniency have suppressed the Pursuers Office and Place which was Erected for the publick good especially where the Party has gotten a reasonable satisfaction and that in this Case the Pursuer got satisfaction though his Office of conjunct Clerkship was established by no Law And that the Clause in Sir Archibald Primrose his Gift which is the Fundation of the Pursuer's Right anent the naming more Clerks than one was surreptious and with express condition that the same should be found conducive to the Liedges benefit Replyed That the Allegeance is but a Recapitulation of the matter of Fact above redargued and proceeds upon gross mistakes For 1mo It is certain in Law and in the constitution of our Government that private Rights cannot be prejudged even upon consideration of publick good otherwayes then by KING and Parliament and upon hearing the Parties and resounding all Damnages 2do Esto That the supreme Magistrate might for publick utility dispose on private Mens Interests on reasonable satisfaction to the Party Yet in