UNTO HIS GRACE THEIR MAJESTY'S HIGH COMMISSIONER AND THE RIGHT HONOURABLE THE ESTATES of PARLIAMENT  

Information for ALEXANDER MONRO of BEAR-CROFTS.  
THE said Alexander Monro, upon the second day of November 1669, purchased and Obtained from Sir Archibald Primrose then Clerk Register, the Office of an Ordinary Clerk of Session, during all the days of his Life unremovable; As the Gift of the said Office herewith produced, more fully bears; By Virtue whereof, and considering that the said Sir Archibald Primrose, was by his Gift Ratified in Parliament, Expressly and Fully Impowered, during all the days of his Lisetime, to Choice and Appoint Clerks of Session, one or more, during their Lifetimes, in the express words following, (Cum plena & absoluta potestate ei durante spatio antedicto, eligendi, locandi, & Constituendi Clericos, deputatos, & substitutos, unum seu plures in dicto officio durante vit a dictorum deputatorum & substitutorum, idque semper prout ei expedire, vel emolument● subditorum nostrorum in exequendis dictis officiis conducere videbitur.) And that the said Sir Archibald did name to the Parliament six Clerks to serve in parliament and Session, who were sworn and admitted, and approven in Parliament and Seffion, and their Rights ratified in Parliament; It is evident that the said Alexander had good and undoubted Right to his said place and office, so that except upon the account of Malversation lawfully found and proven against him, he could not possibly be removed.  
Yet true it is, That after he had served faithfully in the said office for several years, and notwithstanding of his former many services & sufferings in the wars for the Royal Family, and his Country: Nevertheless upon a letter impetrat from King Charles the second to the Lords of Session, bearing for all other causes, that it was his majesties pleasure, That there should be only Three Ordinary Clerks of Session, according to the ancient Constitution; He was summarily upon the 20 of June 1676, turned out by the Lords of Session: who did arbitrarly modify leven Thousand Marks for his Office to be paid to him by the deceased Mr. John Hay his Colleague.  
When his Majesty's Letter was read, the said Alexander Monro pleaded, that by Ours, and the common Law, the Lords could not warrantably proceed thereupon, to determine any thing concerning his office: which was his property: And to which he had as good Right as any man had to his Estate. And having offered several Grounds in Law to clear the same, he craved to be heard by his Lawyers: And offered to undergo any trial, as to what ever might concern the discharge of his office: And the Veredict of all or any whose affairs had been at any time amongst his hands, Whether ever he had malversed or Extersed, or had been defective in his Duty, or had done any thing unworthy of a Clerk of the Session: And he urged further, That such Letters were many times impetrate upon misrepresentation; and therefore craved some competent time to inform his Majesty of the nature of his Right, and of his services done to the Royal Family and his Country, at the Engagement 1648: And in Ireland in Anno 164●. And at Worcester with his Majesty, (where his Brother Lieutenant Colonel Monro was killed; and himself taken prisoner:) And in the Highlands in the years 1653: and 1654.: and other Occasions; Nothing doubting when his Majesty were rightly informed, he might rather expect a better employment by his Majesty's Free gift, Then to suffer prejudice in his property & Office, (which he had purchased with his own money,) through any thin which might flow from his Majesty's hands. To which it was answered, That he might use these plead on his Services, To be one of the three Clerks appointed by his Majesty. And to that he replied, That he could not be one of the three without wrong done to others who had undoubted right; And he craved no more but the peaceable possession of his own. Then he was commanded to remove; And when he was gone, Sentence was pronounced, Removing him from his Office, and appointing his Colleague to pay him 7000 Marks. Which Sentence was never intimat to him in the ordinary way; Nor was he suffered to return again, Wherefore he resolved the next morning to take his place in the House, and being near to go in, he was pulled hack by Force by some Friends who told him, he would be sent into prison if he attempted it. And though he answered, it would be convenient for him to be so treated, yet they carried him away Violently.  
Now by what is said above, it is evident that he was cast out of his Right and Office by Violence completed against him, after all the Resistance he could make.  
Whereby having ever since been debarred from his said Office, and Right, and wanting opportunity to apply for redress, till the late happy revolution; He did address himself by supplication to his Grace their Majesty's high Commissioner, and Estates of Parliament, craving that his case a foresaid might be taken into consideration, and that his Right to his Office, and the illegal and Awful way of his being thrust therefra, might be declared, and he thereupon reponed, and for that effect; that his case might be recommended to the consideration of the Commission of Parliament, appointed for fines and forefaultures to cognosce thereupon, after hearing of parties; And accordingly the affair having been remitted to the said commission; And the parties having interest, being cited to compear, and the said pursuer at the last peremptory diet, appointed be the said Commission, having compeared with his Procurators, resumed his lybel: Viz. That he had good and undoubted Right to his said Office of Clerkship; But was awfully and illegally thrust therefrom, by concussion, and such force of Authority, in manner foresaid, as he was not able to resist. And therefore that the same might be so found and declared, and he thereupon in Justice reponed to his said Office and Right.  
Against which it was alleged be the Defenders, viz. The Officiating Clerks personally present, with their Procurators, That 1 more. The said Pursuer had never a legal Tittle to the Clerkship; In respect, That by an Act of Parliament, Anno 1621. the number of Clerks were Restricted to Three, and the Pursuer being but One of Sex, was supper numerarie. And that by the said Act of parliament, no person could be joined to any of the Three Clerks, without the Clerks own consent: And that no patent in favours of Sir Archibald Primrose, Anno 1661., impowering him to name more as one Clerk in one Office, nor any Confirmation in Parliament, of such an Nomination by Sir Archibald in favours of the Purivers Author, could import any Derogation from the said old standing Act of Parliament 1621. 2do. It was alleged, That as the Pursuer had no Right, so could not the way and manner of turning him out of his Clerkship by the King's Letter, and Ordinance of the Lords thereupon, be understood an Act of Concussion, or Aw upon him; In Respect that the King's Letter was founded upon, and related to the said Ancient and Standing Law: And that the Lords did justly debarr the said Pursuer as wanting a legal Tittle, and that there was no force used against him.  
To both which Points, it having been Answered be the Pursuer, That as to the Arguments anent his alleged not having a Right, The same were both Calumnious and Irrelivant. Because 1mo. The pretended Act of Patliament 1621., is but a private Act conceived in favours of the then Incumbents, that no person should be joined to any of them without consent, and was never a public Law. 2do. That it is latent to this hour, and never so much as mentioned in the Printed Index of unprinted Acts of that Parliament. 3tio. That ever since there have nevertheless been six persons officiating as is nottourly known. 4to. That the very words of the Statute allows of two persons in each Office, declaring nevertheless, the principal Offices and Clerkships to be but three which was never controverted. 5to. That the Defenders in their print confesses, that there was no consent of Incumbents so much as required since the Year 1630. nor can the World demonstrate any pretended consent was adhibit ex necessitate, of the Laws requiring it. 6to. That in Anno 1661., when the Pursuers Author was admitted Clerk and joined in the Office with Haystoun, there was a total Vacancy, & Haystoun having been admitted but to a half of the Office, had no farther Interest to Obtrud the want of his Consent to his Colleague, than his Colleague to him. 7mo. That as the pretended Act 1621., was never a public Law, nor the Rule of establishing the Clerkships. So in the Year 1661., upon the universal Vacancy of the whole Clerkships, Sir Archibald Primrose his patent allowing him to join Clerks in Offices, is not only ratified in Parliament, but the very Nomination of the hail six Clerks is Read, Ratified and Aproven in Parliament, whereby the Establishment of the Clerkships, was of new Constitute by the King and Parliament, which no private person can Quarrel, because the Clerkships were all Vacant, and none had any Interest; Nor has the public, or King and Parliament to this hour altered the same. But on the contrar, Sir Archibald Primrose his very Gift is Per Expressum made the Standart of the Lord Tarbats Patent and Gife, from whom the Defenders derive their Right. Likeas, the Act of Parliament 1685, Ratifies the Establishment of two Clerks in each Office, and that with regard to the Condition of the Clerkships in time past, Viz: Per Expressum, three Offices, and two persons in each Office, without the least Insinuation of ones Consent to another. 8vo. That Haustoun the person whose Consent is wrongously pretended to have been necessary, did for seventeen years Acquiesce and Consent to the Pursuer and his Author's officiating, by communicating the benefit of the Office without Control, and never in the least questioned the Pursuers Right; so that it was Jus Tertii for any person else to Quarrel the Pursuer upon that head. And as the Pursuer was well founded in point of Right, upon the considerations aforesaid, so was it alleged for him, that the Kings impetrate Letter and Method used for turning him out by those in Authority were most pregnant Acts of Concussion, as have fallen out in any case, notwithstanding of what was alleged in the contrar, upon the pretended Act of Parliament 1●21, as the foundation of the Letter. For 1mo. The Letter was opponed bearing no mention of the pretended Act of Parliament, but Per Expressum, mentioning his Majesties own Pleasure. 2do. That the said Act of Parliament 1621., could be no foundation, for the pretended Ancient Custom of three Clerks only, because it expressly Establishes three Offices, and allows of two in each Office, and de facto, two have always officiat ever since. 3tio. That the Defenders have in both their Print and Plead, grossly prevaricat in adducing of grounds for the said pretended custom of three Clerks only. They first alleging on a Statute Anno 1594, mentioning three Clerks, which is nottourly in desuetude: Then they pretend the Statute 1621., which Establishes three Offices, and allows of six Clerks, but finding the weakness of the said Act 1621., on the account of all that is abovementioned, adduced against it, why the same could not support the impetrat Letter; They at last pretend, The King at his pleasure without the Parliament, might overturn private men's Rights, by suppressing the Offices, and places they hold, and bought from Subjects according to the establishment of both King and Parliament. By all which it might be evident, the King's Letter was but impetrat, contrary to Law, and that the Defenders were but Ex post facto, excogitating grounds to support the same. 4to. That the Lords of Session did most unwarrantably proceed in debaring the pursuer summarily without either libel or accusation, for Esto, the pretended act of Parliament 1621., had been a standing Law, and in force, yet the precise point that the pursuers case differed in from the said pretended Act, being only the alleged want of Haystouns consent, Haystoun whose alone interest, that point was, aught to have been the only quarrel of the pursuers Right in a legal way, That so the pursuer might have occasion upon the grounds above mentioned, to assert his own Right, as absolutely good and that Haystouns 17 years' acquiescence, and communicating the emoluments, did preclude all pretext of the want of his consent. Beside, that by the tenor of Haystouns own very Right, he had interest but in the half of the office, and the pursuer and his author, the other half, so that there is nothing more manifest than the iniquity done to the pursuer, in turning him out for want of Haystouns unnecessary consent. 5to. As to the matter of force and violence upon the pursuers inclinations, he leaves to the World to judge whither the Lords their baffling all his expostulations at reading of the King's Letter, their summar debarring of him without giving a cause, & actual installing an other in his place, Their arbitrarly modifving of seven thousand marks Scots, which was little over a Years purchase, of his Office, and that all this was done by authority, and these in the Government warranted thereto, by the King's Letter, were not more nor sufficient grounds to Overawe, any man that had the least regard for his own safety to an awful yielding to the authority, that enjoined these things, especially when the reclaiming against the Lords ordinary sentences in those days, was so highly displeasing, that the impunging of the King's pleasure in his Letter would certainly have a risen to an, higher crime, as is evident by the very tenor of the said letter, expressly threatening his Majesty's displeasure against the impu●gers of the Lords their proceed, especially if any that served before their Lordships should adventure upon it; and likeways by what the defenders, and the Viscount of Tarbet in their Prints, did at this very time threaten the pursuer with, on the account of this very action; Which albeit the claim of Right does expressly authorise, and that the Parliament has sustained the same upon the grounds pleaded by the pursuer, yet he is threatened to be Arraigned as one guilty of high crimes; 6to. That there was nothing clearer from the points of Law, opinion of Doctors, the practice of Nations and the very customs and Laws of Scotland, than that Subjects may be overawed and concussed by those in Authority, and that even by the King himself, and for verefying whereof, did adduce whole Schools of renowned Lawyers of great credit in all Christian Courts. And particularly adduced, not only the case of the lady Graves concussion by Lauderdail, but likeways the concussion of the Earl of Mortoun by K Ja: 5th. The concussion of Brainford by the then Government, and the concussion of all these who in the late Government transacted for their Estates, liferents or joynturs, who were all of them restored against the Transactions and deeds they were over awed into, so that as the Pursuer had an undoubted Right, it is most palpable, he was turned out of the same by concussion, and against which albeit it be notarly known he did violently reclaim, yet ex superabundante, he has sufficiently proven the same by severals of the then Lords of Session, and other Gentlemen beyond exception, so that his accepting of the 7000 m: can never be sustained in Law as an act of homologation or freedom of election and will in the said pursuer. The commissions interloquitor upon the said debate, was in the express terms following, Viz.  Edinburgh 5. December 1690. The Commission appointed for fines and forfaulturs, after full and deliberate advising of the above mentioned debate, are of opinion, that the pursuer had a legal Tittle to his office, And was put from the same by concussion, Reserving to the defenders to be heard upon the Acts of the pursuers alleged Homologation. 
Thereafter the cause being again called upon the 9 of March 1691, the Defenders urged the grounds following for inferring an homologation by the pursuer of the Lords proceed, upon the King's letter against him. viz. 1mo. That he acquiesced without any Reclaiming. 2do. That he accepted of the 7000 marks modified, and gave a discharge thereof, and renounced the office, and that neither law nor practice, can be abduced for derogating any thing from the sufficiency of the forsaid Acts of homologation, So that Esto, the pursuer had been concussed, the said's Acts of homologation, utterly debars him from restitution. 3tio. The pursuer did exerce an other employment, of an advocate which is inconsistent with that of being a Clerk.  
It was answered for the pursuer. 1mo. That he oppones the Testimonies of severals of the Lords of Session, Clerks, and others upon his positive and axpress Reciaiming both the time of turning him out, and ever since. 2do: That the turning the Purfuer out of his Office, the way and manner proven, being an Act of manifest Goncussion, according to the principles of Law, and the practice of This and other Nations, And that the Lords of the Commission has now found the same to have been an act of concussion. It is an other consequential principle therefrom, that so long as the cause of concussion, and awe that was upon the pursuer, the time of his being turned out did last, that what ever he did medio tempore in pursuance of, or compliance with what was absolutely enjoined and commanded, can import no act of homologation, as being in Law no more but the effect of the same original Aw, and an act of necessity and not of free election & choice, as is notarly held by the whole world of foreign Lawyers; And as the famous Mascard who citys the opinion of the Lawyers, in the case of the Bishop of Placentium his being metu regio, turned out of his Bishopric, for that of Ostia shows, That albeit he had not only renounced that of Placentium, but likeways possesed Ostea, for five years, yet after the Emperor's death, he is reponed against his said renounciation upon the above mentioned ground, expressly; Viz. That during the Emperor's life, who commanded him out of his benefice Durabat causa metus; So that his renounciation, and all that he did in compliance with the Emperor's command, was the effect of his dread and awe of the Emperor. So likeways, is it practised in Scotland, according to the learned Durie in his decesions 27 June 1632. Gassie against fleming, where a wife is restored against her consenting to her husband's alienation of her joyntur lands, because that she having proven that her Husband had overawed her some time before, and was yet on life, the time of her consenting, (for the ground debated, was that during her Husband's life, Durabat & subsistebat eadem causa metus:) Likeas upon the 21 Jully the said year; The Lords declare in the paraleal case that they will decide the same as they did the former case of Cassie & Fleeming; Thereby establishing it as a principle, that while the cause and motive of Aw and Fear continues the awe itself and dread always lasts; And upon which, established and uncontraverted principles in Law and Reason, it is that by the claim of Right and act of Parliament rescinding Fines and forfaulturs, the Liege's are restored against whatever transactions they made in reference to the said's Fines and forefaulturs, during the late Government, as accordingly the Commission has decided already in the case of Humer his accepting of a new Tack from the Lord Yester: That it could not prejudge him of the benefit of his former standing tack. And therefore the pursuer his accepting & discharging of the 7000 Marks, & renouncing the office in favours of Haystoun, who by the Lord's arbitration was wrongously thrust upon the pursuers Right, can be no act of Homologation, no more than the Lady Grace, her giving a disposition of her Estate for a Sum of money to Lauderdail, after she was thrust out of the possession. And it is well known, that notwithstanding thereof she was restored against the same. 3tio. It is nonsense to pretend that the pursuer exerceing as an Advocate, after his being debarred, was a Homologation of his debarring because the Officiating as an Advocate is inconsistent with the office of a Clerk; For it is obvious that the pursuer, his being altogether idle is as inconsistent with the station of an Officiating Clerk, But this merits no answer, And it is not true.  
Replied for the Defenders. 1mo. That the case of a wife's being overawed by her Husband, observed by Durie, has no Annallogie with the Pursuers case, that being ex capite metus, and the pursuers case upon the head of concussion. 2do. That the ground of the Pursuers pretended Aw and Fear in this case, being the Lords of Session's sentence, turning him out, It is uncontraverted. That if any of the Liedges comply with the Lords of Session's sentence or decreet, in any case by payment making conform, or giving Obedience thereto; Yea by the very extracting of the decreet, the same is so far a Homologation of the sentence, that the party cannot be heard to reclaim. 3tio. That in this case there was no Legal Compusitor at all, competent against the pursuer, for causing him accept of the 7000. marks, so that his acceptance thereof, and giving renounciation, were voluntary and spontaneous deeds.  
Duplied for the Pursuer; to the first, That it was an absurd mistake in point of Law, To suppose a distinction or difference betwixt the acts of Homologation of a factum meticulesum ex metu maritali, and a factum meticulosum ex concussione, for metus is always the medium in both cases, only that in concussion, the metus is inferred by a person in public Authority. And in the other case by a person usurping, or too far extending a private Authority, and the indureance of the Fear, is in both cases commensurate by the continuance and lasting of the cause and motive of it. And as to deeds of Homologation and nature of the action of Restitution arising to the party Laesed in either cases, The principles in Law are indivisibly the same, as appears by what is learnedy Debated, by Durie from the Texts in Law, and Doctors in the forecited case, agreeing in every point with all that has been debated for the Pursuer. To the Second, That 1mo. It is simpliciter denied, that the giving Obedience to the Lords decreet, when there is no remedy competent, for reclaiming against the same, can infer a Homologation, as the Lords themselves found in the case of Mrs. Dowglas, and the Children of Monswal against the Duke of Queensberrie. 2do. That in this case of the Pursuer, it is utterly denied there was any thing of a Legal sentence, upon a lybel, or hearing of the Pursuer upon his interest, but allanerly a summar and executive act, or Ordinance of the Lords in pursuance of the King's pleasure, against which there was no Remedy by Reclaiming, without the hazard of being counted seditions, and punished as an impugner of the King's pleasure, Which how dangerous, is left to your Lordships to judge. Especially, when upon his owning of his interest, And pleading the benefit of the Claim of Right, after This Happy Revolution, he is threatened with extraordinary matters, as is well known, And the said very executive act, or Ordinance of the Lords, is one of the means of concussion, complained of; For had not the same followed on the King's Letter, the Pursuer might have keeped his place; And therefore nothing done be the Pursuer in compliance with the Executive Ordinance, while that Government lasted, can in construction of Law be understood any thing else, but the effects of the Aw that was upon him, why he durst not assert his own Right, but either comply or outerly lose all. To the 3d. That the same is an absurd quibble, for not only were all imaginable compulsitors that might turn the pursuer out of his place (The keeping, whereof was the only mean that did secure him against the 7000 Marks) already execute, and he actualy turned out, and an other installed in his place; But there still remained a farther and most vehement compulsitor against him, for taking the 7000 Marks, Viz. That otherways by inevitable necessity he behoved to lose all; And the Law securing him under such a necessitous Juncture, That what ever he did for saving a part of his means, rather than to lose all: His so saving to prevent his utter loss, can never be constructed an act of deliberate and spontaneous renouncing the benefit of recovering what he injuriously lost, but allenatly a saving of what for the time he could, and this likeways is held as a principle by all Lawyers, that the party concussed from his Right and accepting of the mean price, and disponing his interest, is never understood to Homologate the concussion or affent to the wrong done him: But allanarly to consult his own interest, Quo minus perderet, and the same question occurred in that case of the Lady Gray's, and all others of concussion, wherein the party laesed, did both give Rights and take money, and notwithstanding thereof was always restored against such deeds, and whatever else they could have done under awful circumstances, which debarred them from redress and remedy for the time. Upon which debate, the Commission pronounced their interloquitor in the Terms following, Viz.  The Commission of Parliament appointed for Fynes and Forfaulters are of opinion, that any deed done by the pursuer during the power of the concussion cannot import an homologation of the Lords sentence, so far as to debarr him from restitution, when the bazard is over: And therefore that the said pursuer aught to be reponed to his Office of Clerk ship. 
The pursuet is able to instruct. That by continual persecutions, imprisonments, and other miseries which he was exposed to in the late evil Government, even after he was cast out of his Office, his losses multiplied and did arise to a very considerable sum, to the great detriment, & almost ruin of his Family, though the preceding part of his life had been a course of serving and suffering for the Royal Family & his Country. All which did not discourage him from the little services he was capable of & had occasion to perform since the late happy Revolution. Therefore he is most confident to obtain Justice, and to be restored to his office, which is his undoubted right by a Parliament that hath expressed so great a sense of the evils done in the late reigns, & did patticularly by the claim of right, provide for restitution of the loss of offices. Especially seeing the grounds of Law and reason in his case, whereupon the Commission proceeded are most clear & convincing to every man's reason, yet for further satisfaction & conviction, the proper words in the Act 1621., and in the King's Letter 1676, with the Depositions of the Witnesses, and Quotations of Law, and Practices are hereto subjoined.  Follows the Clauses of the Act of Sederunt 1621., whereby it appears evidently, that the Establishment of the Clerkships in three Offices, was only intended, and not the discharging of two officiating Clerks in each Office, and that whatever may be pretended; Yet the private Interest of the then Clerks, was the only Cause and Occasion of the Act. 
It is the express will of the Lords, Likeas, they hereby declare that their Authorising and providing of the Provision given to two persons admitted in ilkee an of the said's three Offices, tends allanarly to establish the Right and Security of the indivisible Place and Office in the person of two provided. etc. Likeas it is declared, that it shall not be permitted to the Clerk Register present, or his Successors in time coming, to join any person with the Clerks serving in the said's three Offices, except by the Advice and Consent, and at the desire of the Principal Clerk serving for the time in the place; And no otherways, etc.  Follows the Clauses of the King's Letter, anent the Deference enjoined to the proceed of the Lords of Session, and the Order for turning out the Clerks: Anno 1676. 
As we have trusted you with the preservation of the Rights and Properties of our Subjects, etc. So we will suffer none of our Subjects to reproach your procedure, much less those who serve before you, &c: And it is OUR Further Pleasure, that in all time coming, there be only three ordinary Clerks of Session, besidethe Clerk of the Bills, according to the Ancient Constitution, and that of the number that now serve, ye make choice of three that shall still serve, and that ye modify such satisfaction to be paid by those that remain, to those that are to go out, as ye shall find Just and Reasonable.  
Follows the Texts of Common Law, Opinions of Doctors, Decifions of foreign Courts, Pratiques, and Decisions of the Lords of Session, whereby it is demonstratively evident, That any Transaction, Contract, or other Deed, that a Party has been induceed into, by the Aw and Dread of Persons in Authority, is reduceable, And the party laesed to be restored against the same, as being induced by Concussion, or Impression, and that even in the Case of Dread and Fear of a Sovereign, or King's Command.  
And that while the Authority or Cause whence the Fear proceeded does last, no Deed medio tempore by the Party laesed, can import a Homologation in the least.  
And that the Party laesed his very private reclaiming, and testifying of his dissent is an Evidence of his being overawed, and that he had not the freedom of his Election and Will.  
1mo. The whole Tittles in the digest: & God: de vi & metu, particulatly the Lex. ij. Cod. de his qui vi, etc. whereof the words are, Si per Impressionem quis aliquem metuens in offieio constitutum (id est, in authoritate constitutum) rei suae sub venditienis titulo fecerit cessionem, quod Emptum fuitreddatur; That is, if a person out of Dread of any in Authority sell his Goods or Right, that the thing sold, be forth with restored back to the Seller, & according to which Law, Bachovius and the Doctors, Judge Restoration competent against the Impression, and Fear Inferred by persons, Qui sunt in potestate Summa & perpetua, as Brounman upon this Law citys them.  
2do. Mascardus deprob Concl. 1055. Num. 36. Holds it as a principle that a Subject is restorable against the Laesion, sustained by a Transaction entered into by Authority, or Command of a King, and his words are, Quod metus Regius propter quem facta fuit Renunciatio ab Episcopo placentino de Episcopatu ejusdem eivitatis non impedit, quo minus illa renunciatio retractari possit. And the same is held by Baldus in his 142 Counsel, whereof the words are, Compromissum dicitur permeium factum eo quod partes teneantur parere Domino, so that wherever the Authority of a Sovereign, or Lord intervenes the party laesed thereby, is in Law always restoreable against the samen.  
3tio. Sinclar in his Collection of the Lords descisions in the year 1543, anent the case of the Earl of Mortouns action against Q: Marry for reducing the Resignation and disposition of the Earldom, made in favours of King James the 5th her Father; The Lords sustained the action against her summarily. And Albeit she was Minor, and the reason rendered in the decision, Per expressum, is as follows, Viz. Because it is provided by the act of the Lords of Council, lately made since the decease of the King, that whosomever complains, that they were hurt in their possessions, Land, Heretages, Goods, or gear, be the King Mediate vel immediate, that it should be leisum for them to call the Queen's Advocate and comptroller be an simple Bill without delay of Table or diet, to hear them restored again to their possession & that because it was heavily murmoured that the King oppressed some of his lieges in sick sort in his life-time, and they now complained thereon; The Lords now for relief of their own conscience, and Saul devised the same, and therefore the Lords discerned, as said is, April 12. 1543.  
4to. Balfour observes out of the records of the Session, that on the 14 April, the said 1543 Year of GOD, in the case of the Lord Mortoun against the Q: and 14 Jully 1543. Laird Dundass, Contra Craighall. I: ●: C: 58●. The Lords found that if a man be but solicited by the King to make a disposition or alienation of his goods and gear, the alienation so made is understood to be throw just Fear & Dreadour and much more, if a man be threatened and imprisoned be the King, and therefore that any such alienation or disposition is Reduceable, Void and Null.  
5to. Sinclar observes, That upon the 23 of April, in the said year 1543, in a Red: at the Lord Yeasters Instance, of a Sentence and Declaration of his Majesty's Pleasure pronounced by the King himself, annent the Shirriffship of Peebles. which belonged heritably to my Lord, whereby upon the Kings being displeased with my Lord, that two Thiefs did escape out of Prison in my Lords Brothers Life-time, which was the Brother's fault only, and submitting himself to the King's Determination and Will, the King discerned him to tyne the Shirriffship, and to grant Infeftment of the same to the Lord fleming. All which is accordingly performed, and yet in the said year 1543, and after the King's decease, the Lord Yeaster having intended his Reduction as said is, The Lords by their Sentence Definitive reduced the Declaration of the Kings will, and Infestment that followed thereupon, and that for the reason following in express Terms, Viz: Because the King exc●sserat arbitrium boni Viri in declarando suam voluntatem quia gravius punierat dictum Dominum quam de jure puniendus erat pro hoc delicto. Because by no Law, Reason or Consuetude, ought he to have tint his Heritage thereof, and so the King could not upon the submitting the matter have taken my Lord's Heritage from him, Quia quando quis se refert voluntati adversarii sui ille non potest de jure inique arbitrari, & contra rationem, Quod si fecerit reducitur ejus voluntas.  
6to. The Lords of Session upon 20 December 1671. Observed by the Lord Stairs in the case Betwixt Bramfoord and Callender, wherein Bramfoord seeking repetition of a Sum paid be him to Calendar, which payment Callender alleged that Bramfoord had acquiesced unto by entering to the possession of the Estate of Bramfoord, which had been forfaulted, and to which the Government in the year 1647. Did restore him upon the express condition, that he should not quarrel the payment of the Sum that he was then craving repetition of, the Lords found Bramfoord no ways bound to stand to the Terms or condition of the foresaid restoration, and that his possessing his Estate, Albeit in the Terms and qualifications of the said condition imported nothing, whereof the reason is marked to have been, because Bramfoord was Ex necessitate, to yield to the power of the Government for the time, wherewith he was not able to contend.   

That in the case of concussion, the party Laesed his private reclaiming and testifying the wrong done him to his own friends, is good ground whereupon to restore him against all deeds done by him, medio Tempore in referance thereto, is Recorded.  
1mo. By Papone as expressly decided by the Parliament of Paris, on the 9th of August 1545, whose words are, Feu Monsieur le Chancelier Poyet, homme redouté, sit Commandment á un convenu par ses soeurs, de fair partage avec elles, & leur laisser leur portion virile dans troin mois: a peine de perdere sa part en l'heredite dont estoit question. Voyant ce frere la Grandeur de ce Commandment dont il ne powoit reclamer, oars que ses foeurs eussent quit. Voyant aussi L. intolerable greiff que ce luy estoit, obeyt mais ce fut apres avoer protest a part de l'iniure qui luy estoit fact, & de tout fair irriter en temps de justice. Ce qu'il obtint depuis par Arrest de Paris a moyen de ladicte prestation, Le. 9 iour d' Aoust, 1543. Papon Lib: 16: tit. 3 arrest 10. And it is proven that the Pursuer did reclaim both publicly and privately.  
2do. The case is also observed to have been the same way decided by the Senate of Tholouse, and it is so determined by the practice of Holland, as is knotted by Christinaeus in his Decisions of the sovereign Courts of Holland, vol: 2 decis: 114. num. 5 wherein he citys the practice of the Senate of Tholouse, and others.  
3tio. That Fear and Aw arising from Deeds, which of their own Nature may import Awfulness, needs no Protestation at all to be interposed, is held as a principle by all Lawyers. Yet the Pursuer did protest and contend as much as was possible against the Awful Authority with which he had to do, as is evident by the Depositions following.   

Follows the Depositions of the Witnesses, Proving that the Pursuer Reclaimed both in public and private.  
In presence of Sir John Hall, and Sir William Hamiltoun. In the Cause of Mr. Alexander Monro, against Mrs. John Mackenzie and James Justice.  
SIR 
John Baird of Newbyth, one of the Senators of the Golledge of Justice, Aged Sixty and above Married, being solemnly sworn, purged, and examined, depones, That it being now so long a time since the King's Letter, concerning the Clerks, was read, to the Lords of Session, The deponent cannot be special as to all and every one of the Particulars mentioned in the Interrogators, but depones that he remembets very well that the Pursuer did always reclaim and repine against the order of the Lords, for reducing the Clerks to Three; and particularly for voting the Pursuer out as one, according to the meaning of the King's Letter; And that he did reclaim both the time of the reading of the Letter in presence of the Lords, and thereafter: And particularly that the Pursuer reclaimed against the deponent himself, and would hardly speak with him for two years thereafter, Causa scientiae; The deponent was present where the said Letter was read, and saw and heard ut Supra. And this is the truth, as he shall answer to GOD,  
Sic subscr bitur, John Baird, John Hall, William Hamiltoun.   
Sir 
John Lockbart of Castlebill, aged fifty or thereabout, Solutus, being solemnly sworn, examined, and purged, depones, that the deponent cannot be positive as to the particular circumstances of the expressions mentioned in the Interrogators, But depones, that he heard Commissar Monro declare his dissatisfaction to the deponent before the Letter was read; And as he remembers used some expressions reclaiming against the Letter the time it was read in presence of the Lords; and after he was turned out, remembers he has used words of very great resentment, for his being turned out, and that the deponent never heard Mr. Monro speak of that subject, without repining Causa scientiae; The deponent was one of the Lords of Session, the time of reading the said Letter, and this is the truth, as he shall answer to GOD,  
Sic subscribitur John Lockhart, John Hall, William Hamiltoun.   

Robert Hamiltoun of Presmennan, one of the Senators of the Colldege of Justice, Aged sixty eight years, married, being solemnly sworn purged, and examined, depones; He cannot remember of all the particular circumstances mentioned in the Interrogators, but that he remembers on the day the Letter was read; The pursuer reclaimed against the same, and said that he had acquired his place from Sir Arebbald Primrose Lord Register, and he thought it strange that he should be disquieted therein for though he wanted a place, he thought the King in Honour should have provided him to a place in regard of his great services & sufferings for his Majesty both in England, Scotland, and Ireland, Depones, that the Letter being read, and after the Commissars reclaiming all the Clerks were put out to the outer house, and without calling any of them in, as the deponent heard, to intimat the sentence to them that they were put out. And the next morning the Pursuer came to the deponents Chamber, and declared he would go in and possels his seat as Clerk of the Session, since there was no intimation of the sentence against him, and desired the deponent might go with him, whereunto the deponent consented & went both towards the Parliament house, The length of the middle of the old Kirk, where Sir Patri●k Murray met them, who asked where the deponent, and the Pursuer were going, To which the Commissar answered, that he was going to keep possession of his own seat as Clerk of the Session, and the deponent did acknowledge he was going there also for the same purpose, whereupon Sir Patrick Murray by several arguments did dissuade them to go because it would be ill taken, and would prejudge them, by which they were both persuaded to go back with him, and further depones, that the deponent did often after that, hear the Pursuer reclaim against the said sentence Causa scientiae patet, and this is the Truth, as he shall answer to GOD,  
Sic subscribetur Robert Hamiltoun, John Hall, William Hamiltoun.   
Sir 
Alexander Gibson of Adeston, one of the Clerks of Session, aged fifty five years or thereby married, being solemnly sworn, purged, and examined, depones, that after the King's Letter for reducing the Clerks was read, Commissar Monro did make a Representation to the Lords of his concern in that Matter, and desired that they would take his Case to consideration, before they proceeded on the matter, but what were the Expressions or Arguments used to that purpose, The Deponent does not remember, now after so long time, having taken no note or minute thereof at the time, nor does he remember what answer was given to what he spoke; But depones, That Commissar Monro did reclaim, and complained of his being removed from his place, as a great injury done to him. And depones, That he never heard Commissar Monro speak of his being turned out, but with gerat dissatisfaction, and resentment, causa scientiae pates; And this is the Truth, as he shall answer to GOD,  
sic subscribitur, Al: Gibson, John Hall, Will: Hamilton.   
Sir 
Patrick Murray, Their Majesty's Receiver General, Aged about fifty years, married, being solemnly sworn, purged, and examined, Depones, That he met with Pres●●●●an and Commissar Monro in the Old Kirk the next day, after they were put out, And he asked them, Where they were going? Who answered, That they were going to take their seats as Clerks of Session; And that the Deponent used many arguments with them, to return back, and not go in; And that Commissar Monro was more earnest to go forward then Presmennan: But the Deponent having used many persuasive Arguments with them, to return for fear of greater prejudice to them, they were at last enduced to return: And the Deponent went with them, to the house now called Alexander Crombies, and took his Morning drink with them. And farther, Depones, That he never heard Commissar Monro speak of his being turned out, but with great resentment, and complaint, as a great Oppression done to him, but remembers nothing of his giving in a supplication to the King thereanent at Windz●r, Anno 1679. causa scientiae patet, And this is the Truth, As he shall Answer to GOD;  
sie subscribitur Patrick Murray, John Hall, Will. Hamilton.    

The Next Point is.  
That in the case of Concussion, Fear or Aw arising from any person in Authority, nothing done by the party Laesed, during the continuance of the said Awful Authority, can import any Homologation, nor yet hinder the party Laesed from being restored, it positively beld.  
1mo. By Mascard ubi supra ●●●●lus: 1055. num: 34: & 36: where his words are, Quando metus femel illatus fuisses semper perseverare praesumitur ideoque, quod metu follum est ab initio, & si posteaconstrmatum futrit, nullas vires tamen babet, quia praes●●●itur metu confirmatuin And for this, citys the foresaid Lex TWO: ●●d: si per impressionem. And the Example he adduces is in the words following, Quod metus regius propter quem facta fuit renunciatio; ab Episcopo placentino de Episcopatis ejusdem civitatis pro Episcopatu Astensi, Non sit purgatus ex eo quod Gessit se per quinquennium pro Episcopo Astensi; And the reason rendered by him is, quia omnia quae facta sunt, post renuntiationem metioulosam facta fuerunt durante eodem timore regiae Majestatis quae non impediunt quo minus illa renunciatio, Retractari possit; and for this aduces the authority of Bartole, Abbas, Alexander, Cornel: Barbat: Decius: Paris: Boer: and twenty more.  
2do. The foresaid Balfour observes that upon the 15 of April 1543, in the said case L: Mortcun contra the Queen, The Lords did find in the express words following, Viz. That the Dread and Fear once occasioned by the King continued, and endured till his Highness' decease, who was the cause thereof, So that dureing his life-time, the maker of the said infeftment or disposition durst not Pursue for reduction thereof.  
3tio. That the Lords of Session in the foresaid Case of Bramfoord Anno 1671, did expressly find, that albeit the forefaulture of Bramfords' Estate was taken off, and the Estate restored to him upon the condition that he should not Quarrel the Sums uplifted by Callender: And albeit Bramfoord did accordingly possess his Estate, to which he was restored upon the said express Condition: Yet the Lords found that his so possessing could not import an homologation of the Condition, or debarr Bramfoord from craving Repetition of the Money, & the Reason adduced is, because Homologation must import a free consent, which the Lords found Bramfoord had not the freedom of under the then Government, but behoved to possess his Estate under what ever Condition or Qualification they pleased, till the revolution did come about, whereupon the alleadgeance of his Homologation was repelled.  
4to. The Lords upon the 27 of June 1632, As Durie observes in the Case betwixt Cassie and Fleyming, did repone a Wise against her consenting with her Husband to the alienation of her Jointure Lands, in respect that her Husband had over awed her thereto sometime before, and was still on Life the time of her Consent, and the ratio decidendi expressly marked by Durie in the very Terms of Law, and Language of the Doctors is, Quia durante & subsistente eadem causa metus, nunequam etiam cum intervallo metus purgatur So that during the Husband's Liftime, the Wife was always found to be under Aw, albeit the time of her Consenting, she testified nothing of it. Likeas in the same Decision, the Lords found the Wife's Action of Reduction, ex capite metas, competent against a Wodsetter of the Liferented Lands, who had no accession to the Fear, because Durit makes the Action ex metu, to have been sustained as in rem scripta, and competent contra quemcunque possessorem, as also that in the same Decision, the Lords found that neither the Wife's consenting, nor yet her receiving the Price of her Joyntur Lands, immediately herself could be any Acts of Homologation, because she had not freedom of Will during her Husband's Life, and that it is a principle, that velle non creditur qui obsequitur imperio patris vel domini.  
5to. That the Lords upon the 21 of July the said year, (as Durie aiso observes in the parallel Case betwixt Hamiltoun contra _____) declare they will decide that Case of Hamiltouns, as they did in the foresaid Case of Cassie contra Fleming: So that the practice of Scotland, has established it as a principle, that durante causa metus nunquam purgatur nutus; And therefore that what is medio tempore done by the party Laesed, can never import an Homologation of the Transaction Meticulosa.  
6to. In the late Case of Concussion at the Lady Gray's Instance, against the Earl of Lauderdale, it is very well known, that after Lauderdale was in Possession of the Lady's Estate, by Concussion she did receive either 20 or 30000 Marks as the price of her Estate, and thereupon actually disponed the same to Lauderdale, nevertheless the Lords did in Justice repone her against the said Transaction, as being the effect of invincible necessity upon her for the time, to accept of some thing rather than loss all. So that a paritate rationis; Haystoun being actually installed in the Pursuers Office, out of which he was not able to remove him for the time: What in the world remained for him, but (as the Lady Grace did) to take the mean thing that was wrongously modifyed by the Lords, and renounce for the time rather than to loss all.  
7mo. The positive opinion of Lawyers and Doctors, as Bartol: upon the Lex: 4. C●●● De his que vi & metu. States it in the case of one that is thorough Fear & Terror induced to sell, and afterwards receives the price, is That his so receiving the price does never import a Homologation of the transaction metioulosa: If the seller for the time could do no better. And if any other consideration can be fixed upon for the Seller his taking the price, Then that of homologation, his words are, Quod receptio pretii Spontanea non inducit approbationem contractus imo enim recipia pratium ut sit mihi majus ●autum, Quia tant● minus babeo perdere unde potest esse alia ratio quam apprebationis.  
8vo. And lastly to Sum up all The late Act of Parliament restoring against Fynes and Forfaulturs in the late Reigns, and reponing against all transactions thereanent, is upon no other ground, but that the parties Laesed and transacting, were dureing the whole time of the late government under Aw; So that they had no freedom of election, or choice, But were under Constraint and Necessity to undergo that which seemed to be the least ill.