Hobbifter — Petition, 25 Nov 1766

N ov. 25. 1766. ■f I-'ti '.1-, vi- | v ^ 1 Unto the R igh t Honourable the horde o f Council and Session, T H E P E T I T I O N O F i Mr George Trail of Hobbis t er, Minister of Dunnet. in the Presbytery of Caithnes s; and Mr D avid Dalrymple, Procurator for the Church of Scot­ land, Humbly Sheweth, T H A T Mr Thomas Lyell, minister of the gospelat Lady-parish in the island of Sanday, and presbytery of North-Isles, and stewartry of Ork­ney, being suspected of very gross and culpable irregularities; and the fama clamosa thereof being flagrant, it gave very great offence, that his presbytery had taken no notice of it, nor shewed any disposition to make the least inquiry. But the general assembly of the church of Scot­ land, always attentive to the interest o f religion, ordered, in the 1764, the presbytery of North-Isles, to serve Mr Lyell with a libel. That the presbytery of North-Isles, in obedience to the above order, s erved Mr Lyell with a libel. But the libel was was so absurd, and the proceedings thereon were so infor­ mal, that the assembly 1765 reversed the whole, and ap­ pointed the presbytery to begin his trial de novo. That the presbytery were very remiss in the execution of this order, and, in all appearance, were resolved to have matters slurred over; for although they served Mr Lyell with a libel, yet they proceeded in such a manner, as gave just offence to the whole country, and gave rise to reflec­ tions very little to the credit of the presbyteries, and even of the synod, in that remote part of the country. That the petitioner, proprietor of Hobbister, and there­ by an heritor in Lady-parish, thought himself bound in duty and conscience to interpose. And the f ama clamosa still increasing, he determined to become the prosecutor himself; and to exhibit a libel against Mr Lyell. That accordingly, of this date, he did exhibit a libel, charging Mr Lyell with fornication with two women, at­ tempts to ravish several other women, the wives of his pa- ris hioners, attempts of assassination, s lander, and defamation, profane cusin g and swearing, &c. And the libel concludes, All which, or part thereof, being found, proven, you the said Thomas Lyell, ought to be deposed from the office of the holy ministry, or otherways censured according to the demerit of your guilt, for the glory of God, edification of the church, and to the terror of others to be guilty of the like enormous crimes and offences, in time coming.” Then follows a long list of witnesses. This libel was presented to the presbytery of North-Isles, but instead of ordering it to be served, they thought proper to reject it, on this pretence. That the presbytery had already served Mr Lyell with a libel at their own instance. The petitioner thereupon entered his appeal. And the same having been heard at the bar of the general assembly in May last, the general assembly received the petitioner’s li­ bel, and ordered his process to be carried on before the as­ sembly sembly themselves, or their commission; to which they gave special powers for that effect. That about this time, viz. the 28th of May 1766, Mr William Nisbet, another minister of Orkney, was brought to trial for the crime of adultery, found guilty by the jury, and banished for life, by Lords Auchinleck and Colston' commissioners of judiciary; who, after the usual sentence' were pleased to add the following clause: “ And in order that inquiry may be made into the cause why no pro- secution was properly brought before the ecclesiastical courts, against the pannel, the said Lords ordained, and hereby ordain, the clerk of court, to transmit copies of this sentence, to the moderator of the commission of the general assembly; to the procurator for the church; to the moderator of the presbytery of Caersto n; and to the moderator of the next ensuing synod of Orkney.” That these proceedings in the ecclesiastical and criminal courts, gave real concern to all wellwishers of religion, and brought a grievous scandal on the clergy of Orkney; and all ranks wished to have it removed as soon as pos- sible. These considerations determined the petitioner to be as expeditious as possible; and therefore, without loss o f time, he served his libel on Mr L y e ll; and reported the libel, with the service, to the commission of the general as- sembly, in August last, “ The commission found the libel “ relevant; admitted the same to probation; and granted a commission for taking the proof in Orkney, to be re- ported to the commission in November.' The commissioners met at Kirkwall the 18th of Septem­ ber, and made some progress in taking the proof. They continued there till the 30th of October; and had full time to have examined all the witnesses summoned, i f they had appeared in consequence of their citation. But severals were kept back by the influence of Mr L ye ll; others who were cited, made their appearance, but refused to to depone; and particularly a procurator, Malcolm Groat of Warsee, refused to depone, alledging, He owed no obedience to the authority of any eccles iastical court. This declaration and decision of a man of law, in so remote a corner, effectually determined the execution of the commis- sion; for eight and twenty witnesses, the most material, against whom executions were returned, went into the opinion of Mr Groat, and would not submit to appear, or to examination. The commissioners then had nothing further to do, than to report the proof so far as they had taken i t; and to give to the commission of the general assembly, to meet in November, an account of the above transaction, which had prevented the full execution of the commission. But before taking that step, the commissioners presented a petition to the magistrates of Kirkwall, setting forth their commission, &c.; that Malcolm Groat had been summon- ed as a witness to appear before them, and had refused to give evidence; therefore craving warrant to apprehend his person, that he might give his testimony, or to remain in custody till he should depone and give evidence. But the magistrates conceiving this application to be singular and unprecedented; that they were not in safety nor obliged to grant the desire of such a petition, seeing the commission- ers, as well as the petitioner, could apply to the Supreme Civil Court of the kingdom; and it being doubtful whe­ ther Mr Groat lived within the royalty, “ they refused “ the desire of the petition s i m p l i c i t e r. " In like manner the petitioner put in a petition to the sheriff and stewart-substitute of Orkney, craving a war­ rant to apprehend these witnesses, duly cited upon the di­ ligence issued by the commission of the general assembly, but who had refused to compear and depone before the commissioners. These witnesses were twenty-eight, Thomas Lindsay, merchant in Kirkwall; Robert Laing, merchant merchant in Kirkwall; John Miller, grieve to Mr Lyell, at E lsness; Barbara Smith, spouse to the said John Miller; Barbara Peace, servant to Mr Thomas Lye ll; James Fothe- ringhame, servant or cottar to Mr Lyell; Barbara Spence, spouse to William Strang in Lopness; Besi e Skea, servant to the said William Strang; Thomas Brock, late or present servant to Mr Lyell; Helen Cock, spouse to the said Thomas Brock; Katherine Westness, Janet Westness, Margaret Groat, all servants to Mr L ye ll; Barbara Strang, daughter to William Strang tacksman of Lopness; Barbara Denni- son, widow of Malcolm Scot late in How in Sanday; John Brock elder, servant or cottar to Mr Lyell; Janet Thom- son, spouse to John Mill in Whip in Sanday; John Brock younger, late or present servant to Mr Thomas L ye ll; James Mill, cottar in Hobbister; Thomas Grieve, ser­ vant or cottar to Mr Lyell at Elsness; Janet Paul, servant to the said Thomas G rieve; Barbara Fotheringhame, spouse to Stephen Muir in Mefer in Sanday; Jean Yorston, spouse to John Muir of Bressigar; Jean Dreaver, relict of Robert Smith late smith in Sanday; Mary Reid, widow of John Dennison, late in Backaskel in Sanday; Elfpeth Maxwell, relict of Richard Scot late merchant in Sanday; Richard Spence, carpenter in Sanday; Barbara Reid, spouse to the said Richard Spence. The sheriff-substitute gave the following deliverance: “ Having heard the peti­ tion, would most readily do every thing consistent with the duty of his office, to have the truth expiscate, and ju stice done to the parties concerned; but as he knows no law, nor any precedent, authorising him to grant the warrant required, therefore refused the desire of the pe­ tition.” That the petitioner having laid the whole proceedings before the commission of general assembly, on the 19th cur­ rent, they, on the 20th, Prorogated the term for proving, "renewed the commisio n, and appointed the procurator for B " the the church to take all proper and legal steps for having the witnesses compelled to compear before the commisioners, to give evidence in this cause.” And, in obedience to that injunction, the petitioner submits his case to your Lord- ships consideration, in order to obtain letters of first and se- cond diligence against the said twenty-eight witnesses, and Malcolm Groat of Warsee, the Procurator, Mr Thomas Hepburn minister at Birsay, and Alexander Fraser Surveyor of the window-lights in Orkney. He does not intend to complain of the refusal of the in­ ferior judges to grant warrant to compell the witnesses to compear before the commissioners. Such requisition had not occurred in the practice of their courts. They were struck with the novelty of i t; refused it with decency and seeming regret. But your Lordships, it is humbly appre­ hended, will find no difficulty of explicating the jurisdic- tion of the general assembly of the church of Scotland, or of their commisio n, in so great and important an affair; which if not followed out by due and legal trial, with a sentence on the fullest evidence that can be attained, will be attended with most pernicious consequences to the cler­ gy and to the laity. The petitioner will not trouble your Lordships with a minute discusio n of the law of Scotland upon this head, How far it is the duty of the civil magistrate to aid and support, by the compulsitors of the law, the jurisdiction of the ecclesiastical courts, in those processes which the legislature has delegated to them, and which are only cognizable by them in their courts? It is apprehended to be clear from many statutes, and particularly from the 22d act 1693, intitled an act for s ettling the quiet and peace of the church; which shall only be quoted, because it is the latest, and enacted during the present happy establish- ment of the church. The words are, “ And, lastly, their Majesties, with advice and consent foresaid, do hereby statute and ordain, that the Lords of their Majesties privy-council, and all other magistrates, judges, and officers officers of ju stice, give all due asi stance for making the sentences and censures of the church, and judicatories thereof, to be obeyed, or other ways effectual, as accords.” It would have been absurd for the legislature to have gran­ ted a jurisdiction, and to have withheld the necessary powers for making it effectual. Javolenus says, l. 2. ff. De ju risdict. Cui jurisdictio data est, ea quoque concessa esse videntur, s ine quibus jurisdictio explicarnon p o te s t. In the present case, the point is not left to inference from the above ju st and proper principle, but is determined by ex- press enactment of statute. The petitioner has heard, that a common and vulgar error prevails, That the whole statutes of Scotland on this head, are virtually repealed by a clause in an act of the 10th of Queen Anne, generally called the toleration-act. The clause is as follows, “ And be it further declared and. enabled, by the authority aforesaid, that no civil pain or forfeiture, or disability whatsoever, shall be in any ways incurred by any person or persons, by reason o f any excommunication, or prosecution in order to excommunica­ tion, by the church-judicatories, in that part of Great- Britain called Scotland; and all civil magistrates are here­ by expres sly prohibited and discharge, to force or compell any pers on or pers ons to appear when summoned, or to give obedience to any s uch s entence, when pronounced, any law or custom to the contrary notwithstanding.” The above clause mentions excommunication, prosecution in order to excomunication, and prohibits any compulsitor against persons summoned in s uch pros ecution, or to give obedience to such sentence. This, in the st r ictest sense, applies solely to the proces s of curs ing, andcursepo, as it is expressed in our old Scots acts of parliament; because it declares, that no civil pain, forfeiture, or disability, which formerly took place by the law of Scotland, shall thereafter be incurred by the sentence of excommunication. ' Then Then it takes notice of the process itself, and endeavours to make it as pointless as possible, by prohibiting the civil magistrate to interpose. In this view, it does not affect any other case, but that simple process in order to excomu nication, well known in the forms of the church. But the clause may perhaps receive a broader interpre­ tation, and be extended to those processes of mere scandal, which are chiefly directed for the reformation of the delin­ quent, and though originally not in order to excommunica­ tion, yet ultimately may end there. These processes of scandal, besides the sinfulness of the act, for which alone they are prosecuted in the ecclesia stical courts, carry along with them a public wrong to society; and therefore may be prosecuted before the civil judge, and punished, by in­ flicting the penalties enacted by statute against them. These scandal likewise carry an imputation upon character and reputation, which the law is most careful to protect, and for that reason has trusted to the several commissariots a special court of ecclesia stical origin. The legislature might see reason also, even in this case, to support and maintain the jurisdiction of the civil courts, estab lished for these matters, and therefore to prohibit any interposition in favour of the clergy; leaving the ecclesia stical courts to deal with the consciences, and proceed on the voluntary submission of delinquents or witnesses. And in general the clause, if the spirit of the law is thought to give ground to it, may be-extended to all pro- secutions in matters of mere discplne against the office­ bearers in the church, or against laics. The last would draw the line at once betwixt ecclesia stical courts and the civil courts, which have a delegated power, or an ordinary jurisdiction to judge in the same matters, although for diffe­ rent purposes, and to different ends. It is humbly submitted, if the clause in the 10th of Queen Anne, can be carried farhert than the cases above above mentioned, or indeed i f it can be carried so far. The clause certainly has a meaning; and the legisla- ture, it must be supposed, intended to make an altera­ tion in the law of Scotland, as it stood before the union. That intendment was either particular, or gene­ ral. I f the first, it goes no farther than the process s ing, and curs ed person, which is a ll that the words do fairly in fer: But i f the spirit of the act points at some- thing more, then, taking the clause according to the general intendment, it must be limited to what the parliament of Scotland had declared to be the ordinary jurisdiction of the church. This jurisdiction is established by the act of parliament 69. anno 1579, intitled, “ Quhairin consistis the juris diction of the kirk. Our Soveraine Lord, with advise of his three estaites of this present parliament, hes declared and granted jurisdiction to the kirk, whilk consistis and stands in the preaching of the treu word of Jesus Christ, correction of manners, and administration of the halie sacraments,” &c. This jurisdict ion for the correction of manners coincides and is precisely the same with that of discipline, in the larger sense of the word a- bove mentioned. It is therefore humbly submitted, i f the above clause, upon any good ground, either from the words, from the spirit o f the statute, or any just ground of interpretation, can be extended to other cases. But the petitioner apprehends that the libel which he has exhibited against Mr Lyell does not fall under the prohibition of the act of Queen Anne; because it is a ci­ vil action, and to civil effects, both with respect to the defender, and others who have a residuary interest in the event of the defender being found guilty, 2do, These effects were not consequent to the acts of ordinary ju ris­ diction of the church, but introduced by statute, which has defined the crimes inferring deposition, and enacted the penalty. It is a wrong conclusion to infer, because a cause is, or only can be tried in the first indance, or privatively and finally before a church-court, that therefore the cause is ecclesiastical. The commissioners of judiciary, upon ap­ peal, judge in civil causes not exceeding L. 12 Sterling. These causes do not become criminal on the appeal, nor do the Commissioners of Judiciary judge in them by the powers of ordinary jurisdiction; they are extraordinary ju- risdictionis, non jure magistratus sed lege speciali concessa and the high Court of Judiciary had no such powers before the jurisdiction-act. In like manner is the jurisdiction of the church. Their ordinary jurisdiction stands on the basis of the act of par­ liament 1579; but then special statute, for wise purposes, has delegated particular cases to the cognisance of eccle- siastical courts. They thereby, as the Commissioners of Judiciary in the other, have an extraordinary jurisdiction, founded on the special statute creating and granting them that power. Thus the 20th act, pari. 16 17, anent the pu- nishment of drunkards, “ Special power, authority, and commission is given, granted, and committed to s essions within every parish, to call, conveen, and try the foresaid persons, unlaws to uplift ad piosetncar usus, in every parish to apply, and all and sundry other things to do and exerce, which necessarily is required for execution of these presents.” The same holds in other matters which are better known, and unquestionably established. A jurisdiction by special statutes is given to an ecclesiastical court for building and reparation of manses, churches, and church-yard dikes, designations of glebe, and of grass for a horse and two cows; and your Lordships grant warrant for letters of horning, to force or compell the heritors to give obedience to such sentence, w hen pronounced by the presbytery, notwith- standing the prohibition in the statute of the 10th of Queen Queen Anne: The reason is, that presbyteries are n o t exercing ordinary jurisdiction for the correction of manners, but judging in a civil cause,-and to civil effects, in virtue o f a special statute, delegating an extraordinary jurisdic- tion, to the purpose of granting the bountiful addition of a glebe, &c. to the benefice. As the law has delegated this jurisdiction, and on the exercise thereof your Lord- ships are required to give the executorials of the law, and the same pass of course, or in common form, it cannot, with the greatest submission, admit of a doubt, that if it was necessary to explicate jurisdiction in these matters by examining witnesses, that your Lordships are not debarred by the prohibition of the act of the 10th of the Queen, to compel the witnesses to compear and give evidence: For it would be most absurd to divide the prohibition, that your Lordships were in duty bound to compel the heritors to obedience of the sentence when pronounced by the church-courts; and, by the other part of the prohibition, were discharged to compel a witness to appear and give evidence before said church-court, which had powers by statute to give sentence. The petitioner humbly conceives, that the charge against Mr Lyell, now depending before the general assembly of the church of Scotland and its commission, will fall to be determined on the principles above stated, and appears to be a civil cause defined, as also introduced by special st a ­ tute, and much o f the same nature with that of glebes, above mentioned. And here it will be proper to mention a- gain, that the charge contains a number of crimes; and the conclusion of the libel is, That M r Thomas Lyell ought to be deposed from the office of the holy ministry. This is there­ fore a process of deprivation. The next point to be cleared is Whether a process of deprivation is for the correc­ tion of manners? and if it is not, when it came to be of a civil nature? What is the civil penalty of deprivation, by the the statute-law? And what was the cause that moved the legislature to inflict such penalty? For many years after the reformation, and posterior to said 69th act 1579, settling the jurisdiction of the church, sentences of deprivation had no civil ef- fects; the person deprived continuing in the lawful possession of the benefice. This was attended with very dismal consequences, and called out for a parliamentary remedy. That remedy was obtained by the act 132d parliament 1584, intitled, “ The causndmanner of depri­ vation of ministe r s.” The preamble sets forth, “ That our sovereign Lord, and his three estates, willing that the word of God shall be preached, and sacraments ad- ministrate in purity and sincerity; and that the rents whereon the minister ought to be sustained shall not be pos- sessed by unworthy persons, neglecting to do the duties for whilks they accepted their benefices, being otherways polluted with the frail and enorm crimes and vices after specified.” It is therefore enacted, that all ministers sus- pected culpable of common fornication, common drunkennes s, & c. “ being lawfully and orderly called, tried, and adjudged culpable in the vices and causes above written, or one of them, be the ordinar bishop of the di- ocese, or others the king’s majesty ’s commisioners, to be constitute in ecclesiastical causes, s hall be deprived, as well frae their function in the ministry, as frae their be­ nefices; whilks shall be thereby declared to be vacant, to be presented and conferred of new, as g if the persons possessors thereof were naturally dead.” And this act is furder enforced by the 117th act 1592, which narrates the reason of the contempt of the sentence of deprivation, when they were found worthy thereof by the sentence of their own presbytery, or before the synodal or general assemblies; Because albeit they be deprived of their function and cure within the kirk, yet they think they may bruike lawfully the profites and rents of their saids benefices in- “ during during their liferents, notwithstanding the said sentence of deprivation.” Upon these acts of parliament it shall be observed, that as the admisio n, so the deprivation of ministers was in­ herent in the jurisdiction of the church: Yet prior to the 1 584, the sentence o f deprivation was attended with no civil pain or forfeiture, but now, by the said statutes, such sentences draw along with them the loss of benefice; so that the process o f deprivation is now of a mixed nature, inferring disability a s a minister of the church of Scotland, and the civil forfei­ ture of the benefice. It therefore, in no sense, can be reckoned a process for correction of manners; it is a lopping off a corrupted and rotten member, with the ruinous con- sequences of forfeiture of benefice. It is not a process of excommunication, or in order to excommunication, to which the prohibition of the 10th of Queen Anne applies; it is a question of freehold and o f property. In such questions of property, it could not have been in the view of the legislature, and it is absurd to imagine, that the necessary expiscation of truth, and ascertaining of facts, by examination of witnesses, was either prohibited or made impracticable to that court, which, by the law and constitution of Great Britain had the privative right to try the fact, and to judge upon it. It is impossible to believe the British legislature would have declared that such contested property should be held by the present pos- sessor per fas et nef as, or taken from him in the same man­ ner. For let it be supposed, a case possible to happen, that by mistake and misapprehension of three or four witnesses taking another man for Mr Lyell, they had deponed that he was guilty of the grossest acts of immorality; Mr Lyell pleads alibi, and can instruct it, in the most satisfactory manner, by the depositions of six witnesses of credit and re­ putation. They are cited, but will not appear or submit to examination: The church-courts-must proceed: the de- • D fence Fence is not proved; the proof falls to be concluded, and Mr Lyell deposed. It never could be the intention of the legislature to command so gross an iniquity, nor would your Lordships give way to it. The sovereign powers vested in the court would be exerted for the great ends, of justice, a fair and impartial trial, that injured innocence may be vindicated, and the truth brought to light, by a full examination of all the witnesses. As the intention o f the legislature cannot be supposed to extend the prohibition to this case, so neither the words, nor the spirit of the law, can be pleaded to comprehend it. It the statutes 1584 and 1592 had never been enacted, then the sentence of deprivation would have had no civil effects; and as a matter merely ecclesia stical, touching character and reputation only, it might, with others of the like nature, have been left to the discretion and good-will of the witnesses to compear or not. But when express sta- tute has declared, that the rents whereon the minister ought to be s ustained shal not be possessed by unworthy persons, and for that reason and cause has superadded a penalty and forfeiture of benefice against the defender, and the sentence of deprivation affects third parties, the time of presenting a successor running against the patron, after proper notice given; it becomes altogether a civil question, intitled to the same compulsitors of the law as other civil questions subject to the jurisdiction of presbyteries. On this head, as in the former part of the argument, it shall be observed, that the prohibition to compel cannot be divided; it must apply to the whole process, as well as to the sentence, or to no part of either. Now if a minister is deposed by sentence of the ecclesiastical courts, your Lordships will carry that sentence into execution, by de­ nying action to the minister deprived to levy his stipend, b y sustaining action against him to remove from the manse and glebe, and by compelling him to deliver the keys of T ’ '- < the the church to the patron, presbytery, or a successor. and thereby forcing him to give obedience to the s entence when pronounced: As these do not fall under the prohibition, so neither does the compelling of witnesses to appear and to give evidence in the process fall under the prohibition. It may not be improper here to take notice of that call upon the judicatories of the church, in the above sentence by Lords Auchinleck and Colston, to inquire why no prosecution had been brought against that pannel before the ecclesiastical courts; a notice suitable to the dignity of the honourable Judges, and that respect which they always show to the constitution of the church of Scotland. But they have surely taken it for granted, that there was a competent jurisdiction in these ecclesi a stical courts, or if it was defective, that your Lordships would supply it, and explicate their jurisdiction in a matter of such vast import­ ance and consequence. I f parties shall chuse to enter into a submission to have an amicable judgment for the determination of disputable matters, it is a settled point, and estab lished in practice, that warrant will be granted for letters of diligence against parties, witnesses, and havers of writs, to appear and to be examined, and to produce before the arbiters. In this case there is no jurisdiction to be supplied, but the great public utility has prevailed with your Lordships to inter- pose. And, 1st, To suppose that there is a jurisdiction, or to create it. Then to supply the defect of this new jurisdiction by all the powers of the law. Can it then be imagined that the general assembly o f the church of Scotland, or the sub- ordinate judicatories thereof, in prosecutions which neces- sarily draw after them questions of civil right, of property and freehold, and which prosecutions the laws and con- stitutions of Scotland have vetted in their courts privatively, are debarred and excluded from the only means by which they can explicate that jurisdiction, by obtaining from your your Lordships warrant for letters of diligence, to compel parties and witnesses to compear before them, and give evidence? May it therefore please your Lords h ip s, to take the premis- s es under consideraton, and to grant warrant for letters of first and s econd diligence, at the instance of the petition­ er M r George T r a i l, against thesaid Malcolm G roat, Tho­ mas Lindsay, Robert L aing, John M iller, Barbara Smith, Barbara P eace, James F otheringham, Barbara Spence, Bes- s ie Skea, Thomas Brock, Helen Cock, Katharine Westnes s, Janet Westnes s, Margaret Groat, Barbara Strang, Barbara Dennis on, John Brock, Janet Thomson, John Brock, James Mill, Thomas Grieve, Janet P au l, Barbara Fothering- hame, Jean Yorkston, Jean Dreaver, Mary Reid, E lfpeth Maxwell, Richard Spence, B a rba ra R e id; aslo Thomas Hepburn minister of the gospel at B irsa, and Alexander Fras er s urveyor of the window-lights in Ork­ ney, who were cited, but failed to compear: altocmper and depone before M r H ew M ouat mininister at Evie, M r Hugh Sutherland at Kirkwall, M r Alexander Oli- phant at Bowier, Mr Alexander Nicolson at Thurso, Mr. J ames Taylor at Watting, Mr. M artin M cPherson at Golspie, M r George McCulloch at Lath, ministe r s; M r Graeme of Graemeshall, ruling elder, and sh eriff-de­ pute of Orkney, or any of his substitutes; M r James Blaw merchant in K irkw all; Mr Andrew Ross late factor to Lord Morton, and present factor to Sir Laurence Dundas; and M r Drummond Ros s collecto r of the customs in Kirkwall; or any two of them, who the Commission are appointed a quorum; commissioners appointed for taking the proof in the said caus e at K irkwall, and any other place or places within the Shire of Orkney, the day of or s uch other time and place as the s aid commissioner s shall appoint for taking the s aid proof. • According to ju stice, &c. DAY. D A L R YM P L E.