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 [Page 2]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 [Page 3]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 [Page 4]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 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 [Page 5]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 [Page 6]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 [Page 7]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 [Page 8]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 [Page 9]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 this case there was no point of Publick Ʋtility 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 [Page 10]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 [Page 11]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 [Page 12]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 of the Pursuer's there was an aliquis metus and that per impressionem from an person in summo officio consti­tuto, whose command in His Letter could not have been disobeyed by the Pursuer without hazard of being constructed a seditious Con­temner of Authority, so that his acquiescence by taking the 7000 M. imposed upon him, was not in the least an Act of his voluntar E. lection but of meer necessity, which therefore cannot hinder the resto­ring him to his Office. Likeas,

2do. The great Example that is given by Baldus in his 142 cons. a­nent the grounds and occasions of just Fear is that of over Lords of Cities their injoyning the Citizens to a mutual Compromission, in which Case Compromissum dicitur per metum factum eoquod teneantur parere domino. And sicklike Anchoranus is his 299 cons. and Fulgos: in his 191 cons. upon the same subject examplifies the matter thus, That a [Page 13]Person being ordered by the Prince to discharge and exoner his Debitor such an Exoneration is revocable, Tanquam justo metu facata, And that a Person at the Command of the Prince having accepted the Prince's Precept and Order for making payment of an undue Debt, and accordingly thereafter making Spontaneus payment; the said payment is nevertheless Revockable mortuo Tira­nico principe tanquam metu facta. And the same Anchoranus in his 159 cons. num: 4: holds it as a principle, quo confessio vel actus factus ex volun­tate in casu in quo praecedebat jussus & coactio, non dicatur ex voluntate sed ex necessitate, quia sufficit in principe jubente nocendi potentia. And so it is, that in this case the Kings Letter preremptorly injoyned the Pursuers submission to the Lords determination; And which injunction being previous to his Acceptance of the summ determined; And the King that did so injoyne, being still on Life, and jealous enough of the Contemners of his Commands; The Pursuers Acceptance of the sum modified could be no Act of voluntar Acquiescence, but the effect of his Majesties awful recommendation and order, against which he ought to be reponed: And

3tio. The instance that is given by Geminus in his 15 cons: num: 10 & 11: and Angelus his 378 and 379 cons. per tot: as the most pregnant ground of Terror to the most constant Spirited Man, is solum verbale imperium Regis quod causet justum metum quando Rex consuevit male tractare non obedientes; And ita est, that in this case the Kings positive Letter, is more nor a verbal Mandate, and the severities that the Pursuer might have mett with, had he not obeyed the same, but had endea­voured to keep his place without regard thereto, needs not to be que­stioned; Likeas,

4to. Baldus in his foresaid 142 cons: and Angelus in his 215 and 218 cons: adduces the Arguments following, for inferring an impression or Concussion, viz: Quando dominus praecepit aliquid subditis ut faciant; I­tem, Quando fit compromissum in judicem de re tanquam litigiosa, quae non est litigiosa; Item, Quando compromittens protestatus fuit de impressione; Item, Quando laudum est iniquum; And ita est, That in this case the Pursuer was injoyned by the Kings Letter, to submit to the Lords, notwith­standing there was no contraversie or doubt stated anent the matter of his Office: And upon which head the Pursuer did openly and in presence of the Lords protest for a hearing. And that a Representation [Page 14]might be made to his Majestie before furder procedure; Nevertheless his importunity is rejected, and he removed and debarred; where­upon he did the next day offer and attempt to go in and take pos­session of his place, till by the interposition of Friends, that feared the Event of such a course, he was forcibly turned back. And the laudum or modification they made being but 7000. Merks, which hath been since raised by his Office in one Year was highly unequal. Likeas, in the parallel case of a parties protesting, tho but privately against the im­pression, and constraint put upon him, to acquiesce to an unequal trans­action, the Parliament of Paris did upon the 9 of August 1543 re­store him against the said Transaction, as Papon in his Collection of Arrests, l. 16: arti: 3: dec: 10: And [therefore à fortiori, the Pursuers re­claiming, and Testification of his Dissent, and unjustice that was done to him, having been made openly before the Lords, and yet all to no purpose, is an unanswerable Argument of the impression and Con­cussion that induced him to accept of the 7000 Merks, rather then lose all; And therefore in Justice, he ought now to be reponed. Likeas,

5to. By all the Arguments adduced by Doctors and Practitioners, for demonstrating the continuance and endurance of Impression and Concussion upon a Man, it is evident that at the time of the Pursuers accepting of the 7000 m: his just dread of the Kings displeasure and fear of utter loss, and a farder mischief, if he had refused the Money, was not over; For, 1mo. Caldas in his 108▪ cons: Natta in his 450 cons: num: 17: Holds it as a principle, that the Impression and Concussion endures quamdiu durat princeps & passus metum est in loco ubi princeps Ti­ranidem potest exercere. And the reason rendered by Alexander in his 144 con: num: 4. Is quia odium quando est irrationabile presumitur continuare nedum in ipso genere sed etiam quoad alia And it a est, That K: Ch: was yet on life the time of accepting of the 7006 Merks that was unequally modified against the Pursuer's will as said is, and it is not to be doubted if he had con­tinued in an obstinate not taking of the 7000 Merks, but the King at least those who did influence him, and impetrate the foresaid Letter from him, might have prevailed with him to have done the Pursuer more prejudice, 2do, Aretinus in his 14 cons: num. 17 and 18. Menochius 1 cons: num: 301. Ancheranus in his 299 and 159 cons: and Aretinus in his 96 con: num: 27 & sequent. Hold it as an principle, That in the [Page 15]Case of Impression and Concussion no Deed done by the Party ex in­tervallo post impressionem factam, in reference to the subject matter of the Concusion can import a purgation of the Impression or Free­dom of will in the Party, so long as the cause and occasion of the Im­pression lasts, and the reason is rendered, Quia actus factus ex voluntate dicitur ex necessitate factus quando praecedebat jussus a potente nocendi, & execu­tio contractus facta per eum qui passus est metum non purgat metum durante causa metus, quia is qui vim possus est si ex intervallo ratificaverit censetur potius id fecisse pro suo interesse quamquod voluerit metum purgare & sic donare. As Bar­tol: also holds ad leg. 4 cod. de his quae vi, &c. Where he states the ac­ceptance of payment be him that sold throw fear to be only quo minus perderet, and nowayes for purging or passing from the fear— Item quod quando alia causa subesse potest nunquam purgatur me [...]us quia nemo presumitur velle jactare suum quod jactaret si exequendo contractum per impressio­nem initum amitteret jus suum. And ita est, That the time of the Pusuers taking the 7000 Merks the cause of the Impression and Concussion was yet extant, which did Over-awe him, and his own Interest did induce him to take the 7000 Merks rather than loss all, so that he cannot be understood to have gratified his Enemies, and past from his Right, and therefore that he ought to be restored to his Office. Likeas,

6to, It is notourly known, That as by the common Law and cu­stom of all Nations, so likewayes by the special practice of Scotland, Transactions made throw Force or Concussion are restored against, as in the late Case, at the Lady Grays instance against Lauderdale, to whom she disponed an Interest she had in the Earl of Dundces Estate within the value.

From all which arises this plaine Reply to the Defenders saids two last Arguments, viz That, 1mo. The Answerer has laboured of grie­vous mistakes in point of Law, and as to the Opinion of Lawyers and Law and Custom of our own and other Nations in reference to the Effects of Impression, and Forcible Awe from those in Authority. And the meaning of those Texts in Law adduced by the Defenders anent the Authority of a sentence or res judicata, is when the same proceed­ed upon Lawful Citation and hearing of Parties, which cannot be sub­sumed upon in the Pursuers case. 2do. That as by what is abovesaid the Pursuers accepting of the 7000 Merks can import no homologation of the King's Letter and sentence of the Lords thereupon, so neither can his renuncing of the Office upon his getting the said 7000 Merks be [Page 16]any Ratification of the Lords their proceedings of any Abdication of the Pursuers own Right, because the sentence of the Lords forced him as well to renunce the Office, as to accept of the 7000 Merks, in respect that the 7000 Merks was decerned to be given him for his Office, and it is not to be imagined that Haystoun would have payed the 7000 M. but upon a Discharge relative to the Pursuer his quitting the Office for which the 7000 Merks was to be the price, and therefore as the Pur­suers accepting of the 7000 Merks was in construction of Law as afore­said; but for preventing of his own greater loss of all, so likewise must his renuncing of the Office, seing without a Discharge in these Terms he could never have saved so much as the 7000 Merks it self.

And whereas the Answerer adduces Arguments for evincing that there could be no Concussion in the Pursuers Case. As 1mo. Because that no execution could have followed against the Pursuer upon any Article of the Lords Interloquitor, and Act turning out the Pursuer and the other two Clerks, so that the Pursuers not reclaiming by Bill or otherwayes, but accepting of the 7000 Merks, and removing him­self from the Office were Acts of his own voluntary choice, and there­fore, that there could be no Concussion.

Replyed, That the forementioned Grounds in Law are opponed, By which the Kings very written Order, with the Lords sentence thereupon, expresly Debarring the Pursuer by appointing his Col­league to pay him 7000 merks; And that notwithstanding all the Ex­postulations used by the Pursuer with the Lords, that he might be heard, before they proceeded to any such Sentence, were too weighty grounds of Awe and Necessity upon him to stay out, when once turn­ed out as said is. And in those dayes not to offer contemtuously to re­possess himself after such an Awful Letter from the King, and Sen­tence of the Lords; So that his Acceptance of the Money, &c. were Acts of meer necessity, and nothing of free Election.

Whereas, It is 2do: contended, That there can be do Concussion where the Lords of Session pronouncers of the sentence had no inte­rest, to Concuss, but acted by Authority of the King, in a matter that [Page 17]was according to the standing Laws; And that the Lords sentence was obeyed by the Party.

Replyed, That the whole Alleagiance proceeds upon affected mi­stakes certainly, for the Lords of Session were not the principal Con­cussors, what ever Accession some of them might have had in bring­ing it about; But the Kings Letter complyed with by the Lords, was the chief mean of Impression, and Awe upon the Pursuer; And which Letter commanded a matter which took away the Pursuers property, and was downright contrary to the Law of the Nation, in reference to the number of the Clerks, in sua far as inveterate custome and con­suetude, the benefite of the Lieges, express Concessions by Kings, and Ratified in Parliament, can make a Law for any thing, especi­ally when the six Clerkships in three Offices, as then established, is made by an express Law the very Standard and Rule of the Clerk­ships now and in all time coming; So that no Obedience was ever given to that sentence of the Lords be the Pursuer, but by Force and Awe, and for saving his own utter Loss, as said is.

Whereas it is 3tio. Alleaged that esto, there had been a distinct and clear Concussion; And that consequently, the Sentence of the Lords had been unjust; That yet it was never heard, an unjust sentence did vitiat the subject whereon it proceeded, so that it could not be bona fide acquired by a singular Successor; And therefore, that the Defenders acquiring the Office bona fide, must be assoizled from restoring it to the Pursuer.

Replyed, That the point of Law is also every way mistaken here, and specially in the Case of Concussion or Deeds done throw Awe and Force, as to which the Action of Restitution competent to the Party laesed is in rem scripta, as aforesaid; and goes directly for recovering the thing extorted from whatsomever Possessor, so that the Defenders ac­quisition tho never so bona fide made, cannot hinder the Pursuer from getting back his own Office. And 2do. there was no formal sentence in this Case proceeding upon Citation or Debate, but an Act of sum­mar Arbitrary violence. Whereas it is 4to. alleadged, That esto there had been Concussion and a Right of recovering the Office thereupon competent to the Pursuer; yet the Pursuer having resigned and trans­mitted all in favours of Mr John Hay and his Successors, he can never [Page 18]be heard now to pretend to the said Right of recovering his Office.

Replyed, That this Argument proceeds likewayes upon a mistake, because according to the principles in Law above adduced, The Pur­suers Acceptance of the 7000 Merks, and thereupon Discharging and Renuncing, being while the King that overawed him by His Letter a­foresaid, was on Life; and the Pursuer aforesaid within His Reach and Jurisdiction all things done by him in pursuance of that Arbitration of the Lords that was so Masterfully injoyned are deeds that in constructi­on of Law, are the effects of the same continued awe & force as aforeiaid. And the same as if Robbers had plundered the Pursuer of 100: lib: and offered him back ten upon his Discharge of the whole, in which case no Man can imagine that by accepting the ten pounds on these Terms he had either prejudged himself, or excused the Robber from Restitution; So that the Defenders say nothing, unless they could Alleage and Prove, that after the cause and Occasions of the Force and Aw that were upon the Pursuer were over; And that he might had his Option to Retake his place, or Accept the 7000: merks, he did notwithstanding transact and renounce his Right, which is impos­sible they can Alleage.

And as it is evident from the principles of Common Law, possitive Texts, Opinions of Doctors, and practice of our Own, and other Na­tions, that the Pursuers Claim is beyond contradiction Just; And its most Reasonable upon these Grounds that he should be Reponed; So upon the other hand, and in point of material Equitiy, and suitably to the proceedings of the Government, in Order to the Redress of these manifold Wrongs that were committed in these Latter Reigns. The Pursuers Case Merits special Consideration, as that which is not only provided For by the same Claim of Right, mentioning loss of Offices, per expressum, in Order to a Restoration and Redress of the Persons damnified thereby; But likewayes, Equally Just, and Favour­able with the most meritorious of all those provided For by the ge­neral Act anent Fines and Forefautures. In respect, That 1mo: The generality of the Parties therein mentioned, have made Bargains by themselves or their Friends; whereas the Pursuer in this Case, nor any Person for him, had not the least accession to the agreeing for, or mo­difying the said 7000 Merks for his Place; but he resisted the same to [Page 19]the utmost of his power, as said is. 2do. That by the said general Ah it is provided that all compositions for Forefaulters and Fines thoug transacted by the Forefaulted Persons, or in their Names may be re­peated, &c. And that Wives or Relicks who themselves made Bar­gains for their Li [...]rents, and disponed the same for Causes not ade­quate thereto, are nevertheless reponed against these Bargains: And ita est, That the Pursuer is yet in a more favourable Case upon the Grounds aforesaid, in order to the repeating and being reponed to his Office, and whom therefore the very general Act it self seems to comprehend, by declaring that it shall be effectual to all the Liedges Forefaulted, Fined or otherwayes le [...]ed, and to be interpreted in their Favours in the largest sense.

In respect of all which the Pursuer ought in Law, Justice, and Equity, to be Reponed to his Office and Place.