Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Ross of Auchnachloich v. Æneas Macleod of Cadboll
Date: 30 July 1708
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The town of Tain having split in choosing their commissioner to the last Convention of Burghs that sat at Edinburgh in the beginning of this month of July, the Mackenzies elected Cadboll for their representative; the party for the Rosses in that town sent Auchnachloich. And mutual complaints being made of this at the Convention, that the Rosses had added three more to the sett of the burgh than their town-council used to consist of formerly, and so, by this innovation, had outvoted the other,—the Convention named three or four adjacent burghs to try and examine what was the ancient constitution and sett of that burgh, with power to determine. The Rosses thinking this was to turn them out and condemn their election, they give in a bill of advocation of this order, on thir grounds:—That they could not delegate their power so as finally to determine, but only to report; for that was to divest themselves, and instai the power in a few of the whole; which was destructive to the nature of societies. And, though our old laws permitted the royal burghs to meet once a-year, yet the subject of their meeting was only for the regulation of trade and merchandise, but not to overrule elections; which belonged only to the sovereign legislative capacity, and now to the Parliament of Great Britain.
Answered,—If the Lords considered the Acts of Parliament empowering the burghs to meet, as the 111th Act, Parliament 14th, James III, and many others, they will find the burghs invested with an ample power not only to regulate trade, but also their elections and questions arising thereon; and, accordingly, they have exercised that jurisdiction, and declared persons incapable of representing them; as in the case of the Town of Selkirk, and many others; and, being the third estate of Parliament, the Lords have never meddled in these questions.
The Lords considered this power delegated to the committee was too large and ample; and that now, by the Union, they were no more a third estate, and that the affair became a civil right, cognoscible by the Lords, as the supreme civil judicatory next to the Parliament; and so could not be declined. Some were for passing the bill of advocation; but the Lords fell on a medium, to declare they would hear the parties on their respective rights in November; and, in the meantime, stopped the procedure of the committee named by the burghs.
Then Cadboll craved the election of Tain at the next Michaelmas might be likewise stopped till the hearing should be. But the Lords refused to interpose.
This debate arose first on their choosing a Commissioner to send up to the Parliament of Britain.
Vol. II. Page 460.
July 31.—Two more appeals were given in, viz. one for James Gray against the Duke of Hamilton and Earl of Selkirk, against the interlocutor pronounced supra, 22d July 1708, and the other was given in by Mr Æneas Macleod, in the cause mentioned, 30th current, betwixt him and Ross of Auchnachloich. But two exceptions were taken against it, viz. 1mo, That he protested not only for himself and the burgh of Tain, but likewise in name of the royal burghs, from whom he showed no special mandate or commission. 2do, That the article of the claim of right allows appeals only from sentences of the Lords; which, in propriety, signifies ultimate decisive sentences, and not interlocutors, as theirs, stopping the burghs' committee to proceed till the cause be heard in November.
But the Lords would signify no resentment against appeals, and therefore admitted it; and allowed their clerks to give out an instrument thereon; though some proposed it might only be done by the notary whom the party brought along with him.
