Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Royal Burghs v. The Burgh of Selkirk
Date: 21 July 1681
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The Royal Burrows, and their agent, against the Burgh of Selkirk; for choosing Sir Patrick Murray, who was not an actual residenter amongst them, to be their commissioner, contrary to the king's letter in I674, and the Act of Burrows: on which Act they charged him and the Burgh; and he presenting a bill of suspension, (the Duke of York present,) the Lords found the said Town of Selkirk had contravened the king's letter, and Act of Burrows made thereon, discharging the Burrows to elect any to represent them but actual trafficking and residenting burgesses: and in the last Convention of Estates, in June 1678, none but such were admitted: but I think it would be enough in law that they once had been burgesses and traffickers. And found the said Act of Burrows obligatory; and that Selkirk had incurred the fine: which was alleged to be 1000 merks each voter, they being nineteen persons on the council. But this fancy of the king's advocate was rejected by others, who, more analogically to law, thought the 1000 merks was only due by the whole aggregate body of the community electing. But in regard, by the act of election, it did not appear who had voted for Sir Patrick, they directed a commission to Haining, and some other neighbouring gentlemen, to take the oaths of all who gave suffrage, to whom they gave their votes; and reserved to themselves to modify the fine at the advising.
Which commission the Lords knew could not be reported this Session; and so, upon the matter, the decision of the question devolved to the Parliament itself: especially seeing in law the election might be valid, though they had incurred the penalty; like a tack set by a minister without consent of the patron, as is recorded in Dury, Nov. 9, 1624, Sir Thomas Hope.
Yet all this cautiousness did not keep the Lords of Session from the censure of some, that they, on the nose of a Parliament, came so near the deciding on dubious elections, which seemed only competent to the Parliament itself. But the Duke of Albany's presence influenced somewhat this decision.
However, this justified them, that the Parliament, by their judicative power, voted and found all the elections of gentlemen for burrows null, unless they were actual residenters and traffickers; though of old they used to be represented by any they thought fit to choose, though they were not actual traffickers and residenters.
