of the other Three as the Law does specifickly require and amongst others Mr Monro is adjoined to Mr John Hay Gratis Anno 1764 The KING being informed that this was against Law and as some said inconvenient He by a Royal Letter to the Session as a just Executor of the Law requires the Lords to reduce these Offices to their lawful Constitution and Number But according to His Clement Nature did also prescribe that these who in consonancy to Law were to be removed should have a Gratification given by the other who was to remain in each Office at such a rate as the supreme Judicature of the Nation should judge fit The Session giving dutiful Obedience to the Royal Will in reducing this matter to the Rule of the Law They modifie no less then the full of what was by custom payed for such an Adjuncts Office at or before that time viz. 7000 Merks to each There is no doubt these who were judged fittest to be removed would rather have kept their illegal possession then take this sum But they could not but think their removal was ordered with Clemencie when as by Law they might have been set off from their illegal Possession without the reimbursment of their inconsiderable Advance yet to be re-imbursed of it and enjoy their gain whilst they possest tho to the Laesion of the other Clerks on whom they were intruded and accordingly they went off in acquiescence But if two who bought their Office did so how well satisfied should Mr Monro have been who not only entered illegally and more illegally than the other two but also gratis And albeit he would rather have kept the Office yet he shewed full acquiescence 1. By using no Protestation nor interpellation to the sentence 2. By homogating it in receiving the Price 3. By a Legal Disposition of all such Right Title as he had to another And 4 by acquiescing for 14 years in this transaction And 5 by a voluntar exercing another Office in that very Court inconsistent with his being a Clerk viz. Of an Advocate without Protestation or Insinuation that he had so much as any pretence or an eye to the Clerkship One who were not versed in the Novel of Mr Monro's Replyes and knew nothing but Law and Reason would think that if there was Injury done to any in all this Affair it was to Mr John Hay on whose Office Mr Monro was obtruded And when the KING restored him to his Right that yet he behoved to pay for this Justice and to one who had no legal Tittle to it and who gave nothing for it had Mr Monro so much of pretence it had sav'd his Lawyers the expences of a great deal of mistake both in citation and application of Laws However Mr Hay goes from the Office Sir Thomas Murray being Clerk Register what should now be done A Clerk is necessar for the Kingdom and exercise of Justice Mr Monro puts in no claime on his notable Tittle and I dare say Sir Thomas Murray did not guess that he could not place one in that Office without hazard of being a Concussor a Robber or some other of the Replyer's Epithets In the name of sport the Clerks place must vaik till Mr Monro think fit to desire it or until he sit down in his Chair Sir Thomas did not know this Obligation he Commissionates another whom he and the Session judged fit and receives a good deed for it viz. 100 Pieces more then Mr John Hay did give for the half of it to Mr Monro He serves the Leidges but what 's payed him for his Service He must by this New Natured Logick pay it in to Mr Monro who Served none Interpelled none and Exerced two other lucrative Imployments at the time inconsistent with this Service of a Clerk And not only so but to the as good he must remove and yield his Place to Mr Monro I hope under the pain of Quadruple For so the Edict prescribes against the unwilling Restorer and no doubt the now Clerks are not frank to Restore hastily Well Tarbat as the Replyer doth shortly call him comes thereafter to be Clerk Register and in his time Actions were multiplyed and it was judged by many not unfit that there should be two in every Office Tarbat advises it and finds the Judges of this Opinion He Represents it to the King who gives his Consent but so as by a Letter to lay it before the supreme Judicature who found that because of the standing Law this could not be done without the consent of the Three who were in Office and they consenting Three were adjoyned Tarbat did not by Vertue of a Clause contrait to a standing Act of Parliament take a Liberty to add one or more in these Offices But Tarbat according to the Law did add one to each with the consent of him to whom he was added And whereas the Clause creept in to the Clerk Registers Commissions was no narrower than to allow him to add one or more Tarbat did take care in the Act of Parliament 1685 That the power of Adding tho with consent should not exceed one of Addition And all this while Tarbat can Declare he never heard or thought of Mr. Monro as pretending to be a Principal or Adjunct Now How comes Tarbat to be called or concerned in this Process if it be for Restitution of what was payed to him in case of Eviction he protests to be heard against that in time convenient since on hitherto uncontraverted grounds of Law he will make it evident that non tenetur de evictione of what he got quatenus in officio and that against the Repetition when urged But he presumes it Legally impossible That Deputes can be in the least hazard from so wild a Claim not only not founded but opposite to all Law Justice and Reason And is far from doubting That the Right Honourable Court of Parliament will take severe Animadversion of so scandalous and calumnious Plea's which indeed as much as in the Pretender lyes reflects as far on the Justice of that Court as can possibly be done by bringing ridiculous Claims to vex the Leiges As if that High Court could not soon discern what every Person of common sense cannot but discern As to which Lybel and Replyes so full of the darkest mistakes of Law and Lawyers and so stuft with Paralogisms in Law and Solaecisms in Grammar He will make no Answer that being with far more Learning nor is proportionable fully made by the Clerks in their Answers and Duplies to the Petition and Replies And albeit he knows himself not reachable in the particular yet your Lordships will I hope allow him to expostulat for redress against such Injuries to Subjects to Laws and to our Soveraignes For as to our selves perhaps Record cannot instance so calumnious a Plea Sometimes the Adversaries gives their Action the name of Concussion another time of Quod metus causa and sofurth I may say with Cato in salust Jam pridem equidem nos vera rerum vocabula amisimus If there was Concussion will the Possessor sine crimine be decerned against before a Concussion be proved And can a Concussion be proved Judicially without so much as citing a Concussor For they are not yet so ridiculous as to alleage that the now Clerks were the Concussors Well if they miss of a Concussion it must be found reduceable ex capite metus But where is the Violence not so much as one threat alleaged to dimit the Office no not a Legal Execution nor possibility of one to force an Homologation And yet both Dimission Disposition and Homologation so voluntarly granted without a shaddow of Coaction must be reduced ex capite metus Is not this unparellel'd calumnie and ridiculing of our Laws intollerablie But to make up all Concussion Violence Robbery And all the Black Names is sum'd up at last by the Replyer in this It was done by the Letter of a King who because he writes to his Senate to Reduce Enormities and illegal Invasions of Rights to and according to the Standing Laws and that by no extrajudicial Edict nor new erected Court nor extraordinary Commission but by the Ordinar Supreme and best loved Court of the Nation So far from shewing Anger at the Persons that in Rectifying the wrong he gratifies them by Reward rather than Punishment And so far from Threats that Gentler Expressions could not be Adapted to excuse the faults of a Child than was used by this Father of the Country to these transgressors of his Law But this is treated with no more Civil Name then Concussion And in plain Terms a KING for so Just so Clement so moderate so beneficial execution of the Just Laws is branded with the express Character of a Concussor a Robber a Tyrant which touching so rudely on the lawful exercise of the Soveraign Power as not only to Defame a late Glorious King Uncle to both Their MAJESTIES But with a most Criminal Insolence to Pannel Kingship And to Attacque the Monarchie in its most Eminent Rights Therefore to conclude The Viscount of Tarbat Does Humbly Intreat Your Lordships to consider this Invasion of the Royal Honour and Power as a matter worthie of Your Notice And Desires that no Progress be made in this matter which wholly depends on the Kings Soveraign Power And the Execution thereof until His Majesty be informed of the nature of this pursute wherein His Honour and the Right of the Crown is so deeply concerned And Humbly Offers and Proposes as a Subject a Peer and a Member of Parliament That His Majesties Advocate Solicitor or their Substitutes may be consulted in so high a Point And that inquiry be made for the Authors of this scandalous Criminal Lybell And further Humbly Offers to Yours Lordships Consideration if the Cause do not require that the Authors and Spreaders be secured untill His Majesties Pleasure be known herein
acknowledged That Sir Archibald Primeroses Gift did likewise import that Liberty But all that is contended is That the Lord Tarbat was the first that did exercise that Liberty according to Law viz. By conjoyning only upon the express consent of the Incumbents in the Office For if the Register might conjoin one without consent there can no rational ground be given why he might not conjoin three or four in each Office So that the cause of Deputing one or more in each Office will either run too farr or must be regulat by the Act of Parliament and the Interest and Conveniency of Lieges of which the Lords of Session are the only proper Judges And it is hoped it will not be pleaded That the King could dispense with the Act of Parliament And the reason why the Lords of Session did think it convenient that there should be no more then one Clerk in one office unless the other Clerk were brought in at the Desire and with the Consent of the Incumbent was by reason of the prejudice that the Liedges might sustain through the delay it might occasion in the dispatch of Justice by the Debates and Quarrellings that might arise betwixt two Clerks in one Office that were not in a good understanding together whereof the Petitioner is a living Instance It is then apparent that His Majesties Letter being conform to the standing Law of the Kingdom neither it nor the Act of Sederunt following thereupon can import any injustice as to the Petitioner But on the contrair Mr John Hay had better ground to alleadge That the Lords sentence appointing him to pay 7000 Merks was unjust seing the Petitioner was imposed upon him contrair to Law then the Petitioner has to alleadge that the 7000 Merks was not a reasonable Composition being more than ever before that time was payed for any of these Imployments And the vast difference betwixt Tarbat his bringing in of Conjuncts in each Office and Sir Archibald Primrose his bringing them in does clearly appear in that the one was done in the express terms of the Act of Parliamenr and conform to Law and the other expresly contrair to Law which was fully considered by the Parliament 1685 wherein what Tarbat did was approven and ratified not in course but by a special Act of Parliament which is not Declaratorie but is Statutory and yet not Derogatory from the Act 1621 for as the Act 1621 allowes only one Clerk in each Office without consent of the Incumbent so the Act 1685 allowes only of two with consent and so secures that the Register should not be able to bring in more then two in each Office albeit he should procure the Incumbents consent which seemed to be unclear by the Act 1621. To the second Defence on the Brocard That in dubâ—â— melior est causa possidentis It is Replyed That the Petitioner in point of Right was prior tempore and therefore potior jure And that the possession of the present Clerks can avail them nothing in respect of the violent way that the Petitioner desiit possidere To which it is Duplyed That it is true caeteris paribus qui prior est tempore potior est jure But in this case tho there were no such thing as the Act of Parliament the advantage of the possession would make the difference and preferr the Clerks And the Law does indeed provide That qui dolâ— desiit possidere cannot thereby better his own case which may be the Petitioners but unless it could be proven that the Clership were not in commersio or had vitium rei furtiva this advantage must by Law follow the possession that in dubio it prefers the Possessor And it is observable that albeit by the Law of the twelve Tables rei furtivae aeterna fuit authoritas Yet the Praetorian Law in the Edict quod metus causa neither did nor could extend in rebus metus causa gestis such a vitium reale for ever nor against all singular Successors and supposing there had been just cause of fear in this case as there could be none it were but an unjust wreasting of the Roman Law to the plain prejudice of the Clerks to give the Petitioner the benefit of that Edict the effect of which against singular Successors was at first but Annual ending with every Pretor's Authority and thereafter endured no longer even in rebus immobilibus then for the Ten years of the Roman Praescription and to refuse the Clerks the benefit of that Ten Years Prescription which considering that their Rights have been bona fide acquired and possest be them and their Authors for fourteen Years together without a shaddow of interruption would settle and secure the same according to the Roman Law beyond all possible controversie The third defence founded on the recording of his Majesties Letter the Clerks consent and all these publick Acts of Sederunt and Parliament mentioned therein and the Petitioners so long acquiescence and not quarelling the same meets with no other Reply then that it is a quible on the l. gesta cod dere jud to apply it to any other thing then to the Testimonies and Depositions of Parties and Witnesses and that the recording any Transaction or Matter in it self defective cannot supply its defects To which it is Duplyed that it would appear the Replyers common sense in Applying of that Law goes no farder then his Gloss and Commentars led him otherways he could not oversee the Import of the word Gestum in his so much boasted Edict Quod metus causa gestum est c. And the ll 19. and 58. ff de verb signif Are the best Commentars for the meaning of that word which make it to signifie any Deed that can be the foundation of a Right and it was not reasonable to think that the recording Depositions of Parties and Witnesses should interess the publick Faith more or put singular Successors in greater security in Relation to the subject matter of such Depositions then the Recording publick Rescripts of Princes and solemn Acts of Sederunt and Acts of Parliament should do in Relation to what is defined and enacted thereby And albeit the Discharge and Renunciation to Haystoun on payment of so considerable a Sum be the likest thing of any to a Transaction yet it is hoped that the KING's Letter for executing the Law the express and judicial consent of the three Clerks who had then the sole Right and the several Acts of Sederunt Recorded and whereupon the Clerks Rights are founded will not be found matters in themselves defective and tho' they should the two Acts of Parliament cannot So that without the highest Violation of the publick Faith that can be made in reference to private Rights and most unjust Derogation to the uncontraverted Law of the Kingdom there can be no question of the Rights of the present Clerks to their respective Offices which were bought as dear and have as many clear and solemn Laws for their
Law it had cleared the point For when in his Reply to the Dilators he cites l 14 § 3. ff quod met causa After the words In hac actione non quaeritur utrum isqui convinitur au alius metum fecit sufficit enim hoc docere metum sibi illatum esse He industriously suppresses these which immediatly follow Et ex haere eum qui convenitur etsi crimine caret lucrum tamen sensisse Which words do not only quite exclude this Case from falling under that edict seing the Clerks have their Offices for most Onerous Causes as is notour to all concerned and so cannot in Law be said Lucrum sensisse But likewayes these words must secure all such singular Successors from the Avarice of evil Men whose pretences they could not possibly obviat and what is said before to enforce the second Defence as to the difference of res furtiva and metu gesta in relation to singular Successors is here repeated tho' it be sufficiently cleared by what is already said That the Petitioner was under no Impression whereof the Law takes notice Whereas it is Replyed to the 4th Allegiance That the Renounciation being granted while the King who signed that Letter was in life And the Petitioner within his reach The Renounciation ought in Law to be looked on as an effect of the same continued Awe and Force whereby he was removed And the same as if Robbers had plundered him of an hundred pounds and offered back ten on his Discharge of the whole in which case the Discharge could not hinder Restitution It is Duplyed 1mo Although the Letter had expresly commanded him to remove from his Office yet unless it had adjected a certification of Death or an or other of the above effects of the vis atrox defined in the Text it could import none of the Legal and fixt causes of justus metus But it s far otherwise and that Letter is intended and conceived in such terms as could not possible fright any Rational Man And it is not in the least questioned but the Petitioner if he had not been conscious to the nullity of his Gift as being grounded on that dispensing clause in express contradiction to the Act of Parliament and constitution mentioned in that Letter he would have refused to accept of the money and without delay would have applyed to the King to be reponed who as the Petitioner cannot deny looked on him at that time as a very Loyal Subject and wanted but such an occasion to reward the Faithful Sacrifice he constantly rendred to him during the English Usurpation But 2do The Letter and Act of Sederunt were sufficiently obtempered by his removing and if he was thereby bound to give a Receipt to Haystoun on payment of the Seven Thousand Merks which is not unquestionable yet it is plain beyond all contradiction that there was no necessity from that Letter or the Act following upon it either for his accepting of the Money or after he had taken it for his granting so positive and ample a Renounciation in terms sufficient both to Denude himself and to transmit his pretence in favours of others tho the Letter and Act of Sederunt had left his pretended Right as entire as it was at the first granting of it and as to the ungentle parallel of the Robbers there are so many disparities and so palpable that it merits no more Particular answer then that the Petitioner is not in the case of the Edict and tho he were the difference in Law betwixt Res metu gestae and res furtivae betwixt singullar sucessors for most onerous Causes and Robbers need not be insisted upon The Replyer ends with a Reflection on the Wrongs commited in the latter Reigns as if the dispensing clause in Sir Archibald Primroses Gift and be vertue whereof he appointed six Clerks of Session in manifest contempt of the Act of Parliament were not one of the most pregnant instances though nor the most important that can be observed of that Nature since the Restoration of the Monarchy and was a wrong done not to a single Person only but to that intire Fraternity the making a preparative to break that Imployment and thereby occasion the greatest disorders in the Administration of Justice in all time thereafter if the Registers thought fit to constitut as many Clerks of Session as the Secretaries of State are in use to admit Writers to the Signet which they might very well have done be vertue of that Clause if the King could have thereby dispensed with the Act of Parliament 1621. Although it be but consonant to the Modesty of the Replyer to obtrude that the Kings letter for Executing the Act of Parliament was an act of Tyrrany and yet that Clause was a deed of legall Administration because it is the Foundation of the Petitioners pretended Right who does very much disparage the sufferings of these Persons in whose favours Their MAJESTIES and the ESTATES past the Act of Parliament for Rescinding Fynes and Forefaulturers by so Whinning a Comparison of the merits of his cause for tho his MAJESTIES Commissioner had not in plain Parliament Ordered the Petitioners Case to be Expunged out of that Act it is very well known that he never suffered the least inconveniencie for Conscience sake Nor will any Man who has not darkned that Light by Self-love and Avarice pretend to an Office which after he enjoyed for several years without paying a Groat for it He then Renounced upon Receipt of Seven Thousand Merks And knows very well that the present Clerks whom he would now Rob of it did purchase it bona fide for a greater Sum And whereof if he should prevail they have no Action competent to them for Recovery of a Sixpence In Respect whereof The desire of the Petition ought to be Refused and the Petitioner condemned in such Expenses as the Honourable Lords and other Members of the Commission of Parliament shall find just THE VISCOUNT OF TARBAT Being Cited INCIDENTER in the Action betwixt Alexander Monro and the Clerks of the SESSION Does humbly Offer what followes to be Considered by the Right Honourable COMMISSION of PARLIAMENT BY The express standing Statutes the Clerk Register's Deputes for Parliament and Session are restricted to the number of Three The Law prohibites the Clerk Register to commissionat any more or to adjoine any to these Three without express consent of the other Principal to whom any shall be adjoined Some three or four times one desires of the Principals one has been adjoined to the Desirer before the year 1640 and this was consonant to Law But Sir Archibald Primrose casts in a Clause in his Commission allowing him to joine one or more in these Offices as should be found conducing to the good of the Leidges and on this warrand joins one to every one of the Three Offices ratifies their Gifts in Parliament and they serve in Session but without asking or getting any express consent