THe Laird of Seualtoun, and the other late Magistrats of Irwine, who were nominat by a Letter in anno 1687. (conform to the then custom of the Time) to be Magistrats of the said Burgh, to prevent the utter ruine of the same, being over-burdened with great Debts, and so impoverished that they were not able to pay the Cess, nor repair the Har­bour, Bridge, Kirk, and several others belonging to them, which were almost ruinous. The saids late Magistrats did by advice of Lawers, and the consent of the Town Council and Neighbours, procure a Gift of a Plack upon the Pint of all Ale and Beer, &c. in favours of the Burgh for Nineten years, for the ends and uses foresaids, and for preventing of the total de­cay of the said Burgh. And in order thereunto, upon the Credit of the Burgh, did borrow Five Thousand Merks for defraying the Dues and Expenses in procuring of the said Gift.

The present Magistrats did give in a Complaint to the Lord High Commissioner his Grace and Estates of Parliament, against the Laird of Seualtoun and the other late Magistrats, cra­ving that they as Granters of Bonds, and their privat Fortunes may be lyable for the said Five Thousand Merks, and that the present Magistrats and Town may be free thereof, for the reasons following,

• 1. Because the late Magistrats were imposed upon the Town by an Arbi­trary Power, and that the Gift was illegal, against the priviledge of the Subject, and Claim of Right.
• 2. That the Gift was procured after the report of his present Majesties coming to Brittain, and the emitting his Declaration against imposing of Magistrats, and granting such Impositions.
• 3. That the late Magistrats Granters of the Bonds were not representers of the Burgh, not being elected by them, and so can only oblige themselves and not the Burgh.
• 4. That the Magistrats Granters of the Bonds, after the Money was borrowed, did by a po­sterior Act of Council ordain the Money to be brought back from Edinburgh where it was ly­ing, to be applyed for the uses mentioned in the said Act, so that they were thereafter in mala fide to apply the Money for any other use, much more for paying of the said Gift.

To which it was Answered for the late Magistrats, to the first, That albeit Seualtoun and the other late Magistrats do not vindicat the imposing of Magistrats in late times, nor the granting of Impositions contrair to the Claim of Right, and Priviledge of the Subjects; yet it is uncontroverted that it was the common course of the time, taken by the Government tho­row the whole Kingdom, and that the considerable Burghs of Scotland obtained the like Gifts, so that thereby it is clear that that can be no ground to make the late Magistrats, and their own privat Fortunes lyable for the Debts contracted by them, in procuring of the said Gift, which was done with consent of the most part of the wwole Neighbourhood, and particularly of thir same present Magistrats, which they cannot refuse; who not only before the Revolution, but even since the Revolution, have declared themselves for the said Gift, and if need were, time and place, and persons could be condescended upon to witness the same, and thir pre­sent Magistrats, and others of the Neighbourhood, who now complain against the late Magi­strats, were then so far from it, that they did acknowledge the late Magistrats, who were so far from being uneasie to the people, that they very heartily concurred in the calling of their present Minister from Holland, and in building of their Meeting-house, and did willing­ly contribute out of their own privat Pockets not only for building of the said Meeting-house, but also for the Ministers maintenance, during the wants of his legal Stipends, and did readily condescend to all their just and reasonable desires, for which they did not expect, and far less deserve to be troubled with so unkind and dangerous a Process, wherein if thir present Magistrats were to prevail, it would not only ruine the Laird of Seualtoun the then Provost his Family, but fifteen or sixteen others therein concerned, who never saw, nor had a six pence of profit by that five thousand merks; and for any reflections the present Magistrats are plea­sed [Page 2]to put upon the late Magistrats, as being imposed by the late Government upon the Burgh, or otherways. It is Answered, that they themselves were very desirous to share in the Go­vernment of the Burgh at that time, and to make the samine evident, John Hamilton the late and present Clerk, studied to influence the late Magistrats to that end; and it is presumed he had warrand from them for that effect, and for these and other good deeds, they have con­tinued him in his Office. And it were of a dangerous preparative to declare all the Acts and deeds done by Magistrats, imposed upon Burghs in the late Government, void and null upon that ground, nor hath it ever hitherto yet been pretended by any Burgh in Scotland.

To the 2d. it was Answered, that the same is neither relevant, nor true; for the Gift is opponed, which was long before his Majesties landing in Britain, or emitting any Decla­ration: as also conform to the Acts of the Town-Council, the procuring of the said Gift, was settled and agreed upon, several Months before the Gift was procured, and long before it came to the late Magistrats hands.

To the 3d. it was Answered, that the first Answer is opponed, whereby it is clear, that they were nominat according to the course of the Government for the time; and so they be­ing according to the Custom and Dialect of these times, legally establisht, they had the sole power of Administration as Magistrats, and consequently to procure the said Gift, as other Burghs had done, and which was lookt on at the time, not only by themselves, but also by these same present Magistrats, and other Neighbours of the Town, as tending highly to the Interest, Benefit and Advantage of the said Burgh, for the ends and uses foresaids, and for preventing the ruine thereof.

To the 4th it was Answered, that the reason for making that Act, for bringing back that Money from Edinburgh, was, that the procuring of the Gift was delayed so long, that they were altogether hopeless thereof; but immediatly thereafter, the Gift did come to their hands, and past the Great Seal, and the Money so far as was not advanced at the beginning of the Bargain, was payed and approven of, by an Posterior out of the Town-Council.

Whereunto it was replyed by the present Magistrats, that the alledged consent of Neigh­bours, to the procuring of the Gift, is so great a falshood, that it is offered to be proven, that the Neighbours, did both dissent and oppose, the procuring of the said Gift.

2. That the Gift was payed: for after his Majesties Declaration was abroad, and the news of his Arrival every hour expected, and when no man at that time, could value the Gift worth a Groat.

3. That it is the constant Custom of the Burgh, that no Debt could lawfully be con­teasted by their Magistrats, without consent of the whole Neighbourhood, and Community.

4. That the Provost of the Town of Drumfreis, for the time (though a Papist) when he had the like Gift in his offer, yet he first called the Community, and because they dissented, he would meddle no further in it. The foresaid Complaint, being remitted to Commission of Parliament, for reducing of Fyns and Forfeiters, and it being invidiously suggested to them, that the money was Imbazell'd & not given out in procuring the said Gift, they ordained Robert Wallace, one of the late Baillies, to give in a Declaration, to whom they payed the money, which accordingly he did: and therefore they before Answer, did ordain Mr. Tho­mas Wallace, of Eldersly, and George Drummond, who received the greatest part of the mo­ney, for procuring of the foresaid Gift, to compear before them, and declare what Sums they received thereanent, and granted Diligence for that Effect, and accordingly they were Cited, and did not compear; so that the Commission gave their Opinion, that the late Ma­gistrats ought to be lyable, reserving to them Repetition, from those that received the Money.

The present Magistrats being charged with Horning for payment of the said Five thousand Merks, at the Instance of John Craig, and John Bryce, from whom the same was borrowed, they did suspend upon this Reason, that it was Lis pendens before the Parliament; and there­fore the Lords of Session could not meddle with it, before the matter were determined by the Parliament; which Dilator the Lords of Session sustained, and now the saids Credi­tors, have given in a Petition to the Parliament, representing that they bona fide having lent their Money, upon the Faith of the Magistrats and Council, who were then in possession of the Government of the Burgh, they neither did nor were oblidg'd to know any thing of the Illegal imposing of these Magistrats and Council upon the Town, nor did they know what way the Money was imployed, but did only lend their Money upon the Credit of the Town of Irwine, by their receiving Bonds for the samine, after the constant and usual manner of the Burgh; nor [Page 3]is it pretended by any other Burgh in the Kingdom, who had Magistrats Imposed upon them in the like manner, nor did ever contravert any Deeds done by these Magistrats: And if it were otherways, that a Creditor who lends his Money to a Burgh should be concerned whe­ther the Elections of the Magistrats be legal or not, and should run the hazard of losing his Mo­ney, if it were found, that they were not elected legally, then there would be few Burghs in Scotland, who would have Credit to borrow Money; And consequently the credit of all the Burghs in Scotland would be thereby ruined. And therefore, craving that his Grace, Their Majesties high Commissioner, and the Estates of Parliament, would be pleased to take the Premisses to their Consideration, and to remit to the Lords of Session, to discuss the foresaid Suspension, and notwithstanding of any Action depending before the Parliament.

To which Petition, thir present Magistrats have given in their Answers following.

• 1. That imposing of Magistrats upon Burghs by the late King, were inconsistent with Law, and con­sequently no Deeds done by them can be obligatory upon, the Burgh, especially in this Case, where the Money was applyed for the foresaid gift which is a Crime, and to which the foresaid Creditors, give their Assistance by furnishing the Money after they were desired not to Lend the same.
• 2. That the foresaid gift was obtained contrair to the advice of many of the Emi­nent Burgesses of the Place, who opposed the samen.

As to all which, and in Answer by way of Duply, to all that is above represented, it is humbly Desired and Intreated, by the Laird of Seualtoun, and the other late Magistrats, that his Grace, Their Majesties High Commissioner, and Estates of Parliament, would take unto their serious consideration, these Points and Grounds following,

• 1. That the late Magi­strats, were cled with the Authority of the Burgh for the time, and consequently, had pow­er to do such Acts and Deeds in favours of the Burgh, which at that time, would so much have tended to the Profit and Advantage of the Burgh, and it is known, to several of the Mem­bers of Parliament, that the said Burgh of Irwine, was at that time, and is yet in such a deplo­rable and poor Condition, that nothing but a remedy, like unto the foresaid Gift (which would have proven very advantagious to the Burgh, if not Repealed by Law) can in all humble probability, yet prevent the total decay of the said Burgh, notwithstanding of the great pains taken, by the present Magistrats, to recall their Predecessors, Deeds, which by ap­pearance is not the way, to prevent further decay to the Burgh, but by the expences of such needless Pleas, may be a mean to add to the samine.
• 2. It cannot be pretended, that ever the late Magistrats did Inhanse or Imbazle a six pence of the Towns Goods, but upon the contrair, they were so carefull and tender of the Credit of the Burgh, that what was spent in Relation to the Towns Affairs, was for the most part, out of Seualtouns own privat Money, and the Towns Revenues were set a-part, for payment of the Towns Debts, which consists with the knowledge of their present Magistrats, who cannot deny upon their Oath, that they gave their Advice, Concurrance and Consent, so far as they were concerned at the time, for procuring of the said Gift, and any pretending Opposition, made by the other Neighbours against the procuring thereof, it was only done by the Brewars and Venters of Ale, them­selves.
• 3. The Bonds granted for the foresaids five Thousand Merks, did only oblige the Town and the then Magistrats, and their Successors in Office: So that it is contrair to all Law, by the Conception of these Bonds, to oblige the Subscrivers thereof, as privat Persons, who are functi officio, to pay the samine.
• 4. The late Magistrats, can never be said to have Mis­imployed the Money, in procuring of the foresaid Gift, because there was an absolute necessi­ty of some help to the Burgh, for preventing the utter ruine thereof. And Gifts of the like nature, being at that time usual in other Burghs, and the Gift it self would have been so bene­ficial, that in a very short time, it would have liberat the Town of all Debts, and that it would have repaired the Harbour, Kirk, and others, for which it was designed, whereby it is clear to any impartial Man. That the late Magistrats did act most Candidly and Pro­fitably, for the good of the Burgh for the time: And it were a very hard matter, that because the Gift was by Law taken away, that the Magistrats who procured the samine, and were acting Frugally and Advantagiously for the good of the Burgh, for the time, should be Sufferers thereby.
• 5. It is calumnious to alledge, that the Burgh of Irwine was never in use, to grant Bonds without the Consent the whole Neighbour-hood, for their constant Custom, and former Bonds granted by them, are opponed. And as to that pretence, that the Neighbourhood of Dumfreis, having disassented from procuring of the like Gift, and there­upon that Provost (though a Papist) did forbear to meddle further therein. It is Answer­ed, that the samine is both Frivulous and Calumnious, because the remanent Magistrats and Town-Council of Dumfreis, having opposed the said Gift: Therefore, the Provost by him­self [Page 4]would meddle no farther therein, and the hail other grounds of Complaint, against the late Magistrats, are sufficiently taken of by the Answers above-mentioned.

In Respect of all which, the Laird of Seualtoun, and the other late Magistrats, who reaped no Advantage by their Office of Magistracy, but Acted Faithfully and Candidly for the good of the Burgh, without the proposal of the least Advantage to themselves, but upon the contrair, did spend of their own Money upon the Towns Affairs, they ought therefore to be assoilȝied from such an unkind and groundless Complaint, which would tend so much to the prejudice of the late Magistrats, and would ruine the Faith and Cre­dit of the whole Burghs of Scotland; & if any Difficulty remain with the Parliament upon the Circumstances above Represented which may afford a long and Cotentious Plea; by leading of Probation and otherwayes: And which may be an in-let to many other such Pleas of the like Nature. It is hoped that His Grace and the Estates of Parliament will remit the whole Affairs to be decided in Law by the Lords of Session.