to His MAJESTY at Hampton-Court the 15 th day of October 1689. TO THE KING'S Most Excellent Majesty The Humble Representation of the Lords and Commissioners of Shires and Burroughs of the Kingdom of SCOTLAND Under subscribers and Members of this Current Parliament now Adjourned till the Eight of October next NOthing save the great and general Surprize of this long distressed and at present unsettled Kingdom upon the late Adjournment of Your most Loyal Parliament for so long a time and in so critical a season with the deep Concern of Your Royal Interest therein could possibly have induced us to this so necessary a Petition But the visible Consternation and Discouragement of thousands of Your good Subjects delayed in the Relief and Comfort which at this time they assuredly expected with the Advantages that We apprehend Your Majesties Enemies both within and without the Kingdom may think to reap by such an Interruption being our only Motives We cannot We dare not be silent And therefore to prevent these evil Consequences We in the first place most solemnly Protest and Declare in the Presence of God and Men Our constant and inviolable Fidelity and Adherence to Your Majesties Royal Title Right and Interest so frankly and chearfully recognosced by Us in this Current Parliament wishing and praying for nothing more under the Sun than Your long and prosperous Reign as that wherein the Security of all our Lives and Liberties and also of our Holy Religion more dear to Us than both is infallibly included It was the Perswasion we had of the Justice as well as the Necessity of Your Majesty's Heroic Undertaking for the Delivery of these Kingdoms with the Conviction of the Divine Confirmation that appeared in its Glorious Success that moved most if not all of Us to endeavour and concur most heartily in the late Meeting of Estates for the Advancement and Establishment of Your Majesty upon the Throne when some discovered their Disaffection and were too open Retarders and Obstructers of that good Design And it is from the same true Affection and Zeal that we do now most heartily make the above-mentioned Protestation to obviate all the Misconstructions Your Enemies may make in this Juncture Nor are we less assured of Your Majesties most sincere and gracious Intentions to perform for us to the utmost all that the Estates of the Kingdom have either demanded or represented as necessary and expedient for securing the Protestant Religion restoring their Laws and Liberties and redressing of their Grievances according to Your Majesties Declaration for this Kingdom Neither can it be imagined that so wise and just a King as Your Majesty will ever be perswaded that so Loyal a Parliament as this can be induced either to wish or design any Prejudice to or Diminution of Your true Interest and Prerogative but such as have slavishly served and flattered Arbitrary Power and Tyranny will be always studying for their own sinister Ends to state a separate Interest betwixt King and People a Practice which we are confident Your Majesty abhors But that we may clear our selves upon this present occasion to Your Majesty's full satisfaction and refuting of all Misrepresentations we can incur on any hand we shall briefly rehearse to Your Majesty the Votes pass'd in this present Parliament to which the Royal assent is not given with such short Reflections as we hope may tend to the better Vindication of all concern'd The First Act upon which the Vote of Parliament has pass'd is That declaring the Priviledge of the Estates of Parliament to Nominate and Appoint Committees as they shall think fit and excluding therefrom the Officers of State unless they be chosen And omitting what the Parliament hath already represented to Your Majesty as reasons of their Vote it is humbly conceived that this Act is exactly framed to the extent of that Grievance which together with the rest is desired in the Instrument of Government to be redressed unto us in Parliament The Second was an Act Abrogating the Act of Parliament 1669 asserting the Kings Supremacy over all Persons and in all Causes Ecclesiastical and this Act is so exactly conform to the Second Article of the abovementioned Grievances and the foresaid Act of Supremacy in it self is so dangerous to the Protestant Religion as well as inconsistent with the Establishment of any Church-Government that we doubt not Your Majesty will ever approve all that voted to it The Third is an Act anent Persons not to employed in publick Trusts and all the Ruins and Distresses of this Kingdom have so certainly flowed from the Persons therein noted especially such as by their contriving of and concurring in the Dispensing Power have thereby eminently indangered our Religion and overturned all the Fences of our Liberties and Properties which we have good Ground to believe the Parliament would have extended but to few Persons And your Majesty in Your Declaration hath so justly charged the same upon evil and wicked Counsellors the only Persons pointed at in this Act that we are perswaded that You will find it absolutely necessary for attaining all the Ends of Your Majesty's glorious Undertaking for our Relief The Fourth is an Act concerning the Nomination of the ordinary Lords of Session and the Election of the President To wit that in a total Vacation they be tryed and admitted or rejected by Parliament and in a particular Vacation they be tryed and admitted or rejected by the other Lords And that the President be chosen by the Lords themselves conform to our old Practique and express Statute And this Act is so agreeable to Practique Laws and Acts of Parliament and so necessair for the true and equal Administration of Justice the great security of all Kingdoms that Your Majesty will unquestionably approve it The Fifth and last is an Act Ordaining the Presbyterian Ministers yet alive who were thrust out since the First of January 1661 for not Conforming to Prelacy and not complying with the Courses of the Time to be restored And this Act is in it self so just and so consequential from the Claim of Right and agreeable to Your Majesties Declaration that less in common Equity could not be done And here Your Majesty may be pleased to consider That tho' Prelacy be now by Law abolished yet these few Ministers not exceeding Sixty tho' restored as they are not for want of the Royal Assent to the foresaid Act would be all the Presbyterian Ministers legally established and provided for in Scotland It is not unknown to Your Majesty what have been the sad Confusions and Disorders of this distressed Country under Prelacy and for want of its ancient Presbyterian Government and now the whole West and many other Parts of Scotland are at present desolate and destitute having only Ministers called by the People upon the late Liberty without any Benefice or Living or convenient Place to Preach in It is also certain that there are many Hundreds of forefaulted and sined Persons who are yet waiting to be restored and refounded according to the Claim of Right and Your Majesties Gracious Instructions thereanent It is true the last Thing proposed by Your Majesties Commissioner in Parliament was a Supply of Money for Maintenance of the Forces so necessary for our present Defence and We should have proven our selves ungrateful to Your Majesty and false to our own Interest and Security if We had absolutely refused it But there being a sufficient and certain Fund to maintain all the Forces and support all other incident Charges of the Government for some Months all that we demanded was That some things visibly necessair for Satisfaction of the Country and the better enabling and disposing them to pay the said Supply might be first expeded We are confident that the Vote of Parliament which was only for a short Delay will not give Your Majesty the least ground of Offence And now having presumed to lay these Things before Your Majesty with all humble Submission purely out of Duty for preventing the evil Constructions of Your Majesties Enemies and for our own just Vindication We most humbly beseech Your Sacred Majesty Graciously to Consider what is here represented and in Prosecution of Your Majesties Acceptance of the Claim of Right and Your Declaration emitted for this Kingdom to take such Courses as You in Your Royal Wisdom shall think fit for Passing the foresaid Acts of Parliament and Redressing all our other Grievances And We Your Majesties most humble Petitioners and faithful Subjects shall as in Duty bound every Pray for Your long and prosperous Reign over Us. FINIS
Kings of Scotland to have the sole choice of the Lords of Session Which can import no more save that they have the sole nomination of them but not the tryal of their qualifications seeing all along since both in that Reign and in the next that ensued the examination and acceptance or refusal of those that were recommended by the two last Kings upon emergent Vacancies to be Lords of the College of Justice were always certified to the Actual and Sitting Lords of Session to be by them tryed and admitted or rejected as they should see cause Thirdly What the Gentlemen who make this Exception would give the Crown with one hand they take away with the other For while they would Preclude the Parliament from taking notice of the qualifications of those who upon a total vacancy are nominated by the King under a pretence that the sole choice of the Lords of Session is by the forementioned Statute Declared to be an Inherent Priviledge of the Crown They at the same time seek to skreen and vindicate themselves from the Violation of the other Laws that prescribe the method of trying and approving those who are nominated now by His Majesty for Lords of the College of Justice by alledging that S N and M are both in a capacity through having been formerly Judges and are commissionated to try and approve them Fourthly All that some apprehend to be contained in the 11 Act Parl. 1. Charles the Second is wholly Narratory and no part of it Statutory at least so far as our concernment lies in it and as we are therein referred unto other Acts for the knowledge of what is Statuted and Ordained So upon our application unto and consulting of Act 2. Parl. 1. Charles 2. all we find there enacted is That it is an inherent Privilege of the Crown and an undoubted part of the Royal Prerogative of the King to have the sole Choice and Appointment of the Officers of State and Privy Counsellors but that he hath only the Nomination of the Lords of Session as in former times preceding the year 1637. and what that was we have already shewed and do find it to be so far from interfering with or derogating from what the Parliament doth now insist upon and demand that it both warrants and justifieth it I may fifthly subjoyn That upon supposition that the Act 11. Par. 1 Charles the Second were Statutory which it no ways is yet there is a later Act pass'd in the said first Parliament of King Charles the Second though unprinted yet upon Record in our Registers of Parliament and which was purposely made for the Regulation of the College of Justice and about the admission of the Lords of Session as the very title and rubrick bears wherein all that we find Enacted is That the King instead of having the sole choice of the Lords of Session shall only have the Nomination of them as the Crown stood possessed of it in times before the year 1637. and that their admission in all times to come shall be according to the Laws and Acts which were in being before the year which we have already mentioned So that fancy what they will beyond this granted unto the King by Act 11. yet it is all withdrawn and reassumed from him by this later Act of April the 5 th All that now remains to be further added on this Subject so far as concerns the controversial part is to inquire whether the King hath at all times the sole Power and Right of chusing and appointing the President of the Session And we presume with all humility to say that by the Laws of the Kingdom and according to ancient Practice and Custom he hath it not nor can he legally lay claim unto it seeing by Act 93. Parl. 6. James 6. Anno 1579. It is Statuted and Ordained That the President of the College of Justice shall be always chosen by the whole Senators of the said College Which Statute is confirmed by Act 134. Parl. 12. James 6. wherein it is expresly declared That the King with advice of the Estates doth ratifie and approve all the Acts made either by his Majesties Predecessors or by his Highness himself before upon the Institution of the College of Justice and the Reformation of the abuses thereof Nor can it be denyed but the appointing that the President should be chosen by the whole Senators was designed as the Reformation of an Abuse in the College of Justice which either had not been provided against and obviated in the first Institution of the Session or which had crept in afterwards And as this was the Law about the Election of the President so the Practice was always conformable thereunto until that my Lord S came to be constituted President by King Charles the Second and was illegally obtruded upon the Lords of Session without the being either chosen or approved by them For from the time of the making the Act until then there was not one that had ever sate President but who had been chosen by the Lords of the College of Justice except Sir John G who upon being nominated and recommended by the King in the Case of the total Vacancy Anno 1661. was approved and confirmed by the Estates in Parliament But for the Lord P the Lord U the Lord C Sir Robert S and the Lord D who were all that had been Presidents from 1579. until 1661. they were every one of them chosen and admitted by the Lords of Session Nor is it unworthy of Remark that the Lords of Session upon every Election they made of a President declared that they did it in conformity unto and in pursuance of the Act of Parliament And as King Charles's departing from the Law in this particular was one of the first steps towards Arbitrary Power so it was both in order to farther Incroachments upon our Laws and Rights and prepared the way for most of the Tyranny that he exercised afterwards And as S assuming the Office of President upon the illegal choice of the aforementioned King was both an Affronting and Betraying of the known Laws of the Kingdom so his whole Behaviour in that Station was of one piece and complexion with his entring upon it being a continued Series of Oppression and Treachery to his Country For besides that all his Verdicts between Subject and Subject were more ambiguous than the Delphick Oracles and the occasion of the Commencement of innumerable Suits in place of the determining of any he was the principal Minister of all L 's Arbitrariness and of King Charles's Usurpations Nor was there a Rapine or Murder committed in the Kingdom under the countenance of Royal Authority but what he was either the Author of the Assister in or ready to justifie And from his having been a Military Commander for asserting and vindicating the Laws Rights and Liberties of the Kingdom against the little pretended Invasions of Charles I. he came to overthrow and trample upon them all
Subjection For among several things which they covenanted as well as provided for the redressing of when in the Name both of themselves and of the whole People of Scotland whom they represented they yielded up and conveyed over the Crown of that Kingdom to William and Mary This was the first Grievance that they mentioned and made it a matter of Bargain and Compact as well as of Petition and Desire to be eased from it The words that were proposed and read to Their Majesties in the Banqueting-House upon that Solemn Occasion of presenting Them with the Instrument of Government are as followeth The Estates of the Kingdom of Scotland do represent That the Committee of Parliament called the Articles is a great Grievance to the Nation and that there ought to be no Committees of Parliament but such as are freely chosen by the Estates to prepare Motions and Overtures that are first made in the House What ill Men must they now be that durst advise a Prince of that Honour Veracity and inviolable Faith as His Majesty is universally known and acknowledged to be to delay or clog the satisfying of His People in the foregoing particular Seeing the meer procrastinating and adjourning the giving them contentment in it hath a visible and natural tendency if possible to the weakning their Faith and Confidence both in his Truth and Goodness It would appear that some have a mind to make their Master seem faithless to justify their being truly such themselves· Or else they have a design to vindicate King James's breach of all Stipulations and Promises by persuading King William to do the same Or which is extreme likely they would by His present Majesty's departure from that seeming Compact upon which he received the Crown reflect folly and injustice upon the Parliaments Deposing the Late King for his violating the Original Contract But that we may discourse intelligibly of that Committee called the Articles it will be needful to give some brief account both of what it originally was and what by degrees it grew up or rather degenerated into till it became at last an insupportable Grievance to the Nation and rendred Parliaments either wholly useless or mere Instruments for pursuing and executing the King 's Will. Now by what appeareth either from our History Records or Statute-Books there was no such thing anciently as a Committee or Lords of Articles but every thing was as well originally moved as debated and concluded in full Parliament For the first mention we meet with in our Records of Lords of the Articles is in the Year 1466. Under the Reign of King James the Third Where we find that upon the Convention of the Estates of Parliament they not only chose so many from among themselves to be Judges in Civil and Criminal Causes who are styled Domini ad querelas there being then no Judicial Court save what the Parliament constituted from time to time out of their own Body But that they also elected three Persons for the Clergy three for the Barons and three for the Burgesses to consider of and prepare matters fit and needful for the House to bring into debate and to come to Votes and Resolutions about By which it seems that this Committee of the Articles had no auspicious beginning having its rise under one of the worst of all our Kings and who came to the most unhappy and unfortunate end However there appears no such thing here as that the Officers of State were to be supernumerary to those chosen by the Parliament or that the King either by himself or by one representing him chose any of them but it is evident from the Record that they were wholly and entirely elected by the States themselves in Parliament assembled And though the being an Officer of State was never esteemed a ground disabling and incapacitating a Person from being a Member of the Committee of Articles yet upon a perusal of the Records I do not find that any Officers of State made a part of the Lords of the Articles until the year 1567. and their being then of that number was not ratione Officii but by reason of the Parliament's having elected them into that Station For whosoever consults the Records of Parliament of the years 1467. 1475. 1524. 1526. 1528. 1537. 1542. 1543. will find that the Officers of State were so far from being supernumerary in the Committees of the Articles that they were not so much as elected into that Trust nor had any room or place allowed them there though it appears by the Records of all those Parliaments that there were Members chosen by and out of the respective Estates sometimes in larger and sometimes in lesser numbers to make up and constitute such Committees Yea I cannot but add That our not meeting with any mention of the Lords of Articles of the Parliaments Assembled and held 1469. 1471. 1474. 1481. 1483. 1488. 1489. 1491. 1493. 1505. 1515. 1522. 1535. 1540. 1546. 1551. is an undoubted Evidence that the having Committees of the Articles was not a thing of indispensible necessity or to which Parliaments were legally obliged but that it was a matter of Arbitrary Pleasure and that they were chosen or omitted as the House thought to be most useful and convenient for the management and dispatch of their Affairs And though it cannot be denied but that after the year 1567. some of the Officers of State were now and then thought worthy by reason of their moral and intellectual abilities to be chosen among others for Lords of the Articles as in the Parliaments held in the years 1581. and 1593. yet it is most evident that they were not elected into that Committee by virtue and reason of their Offices much less sat there as supernumerary to those chosen by the Estates forasmuch as in other Parliaments particularly in those held in the years 1587. 1592. and 1594. there is no intelligence report or remembrance of them in the Registers and Lists of those of whom the forementioned Committees were made up and constituted And that which puts it beyond all possibility of being controuled save either by ignorant or by impudent and self-condemned Men that no Officers of State had right anciently to be of the Committee of Articles unless previously chosen by the Estates of Parliament is the 37. Act of Parl. 11. of James the Sixth Where Provision being made by Law about the number whereof that Committee should be constituted It is without the least mention or suggestion of those Officers of State enacted and ordained that the number of the Lords of Articles be equal in each Estate and that the ' fewest number of every Estate be Six and the greatest number Ten. Yea so far were those styled Lords of Articles from having originally the sole power of preparing matters and of bringing in Motions and Overtures to be considered and debated in Parliament exclusive of other Members of the House who were not of that Committee that both at
the Lords of the Session in all time coming and that as well in the case of a total as of a single Vacancy This being the Vote so declaimed against and in contempt whereof and in opposition whereunto some Persons having surreptitiously and fraudulently obtained Warrant Countenance and Authority from the King are so vent'rous as to dare to act We shall both with all the Loyalty and Modesty that becomes a Subject and an honest Man and yet with that freedom and plainness which one who hath no other design save to serve God his King and his Country with uprightness and integrity should value himself upon endeavour to vindicate the Wisdom as well as the Justice of the Parliament in the forementioned Vote In the performing whereof with all that exactness which brevity will allow I shall begin with an account of the first Administration of Civil Justice in the Kingdom of Scotland that we meet with in our Records For the College of Justice consisting of those called the Lords of the Session not having been institute till the Reign of King James the Fifth Anno 1537. The Administration of Justice was before that time not only ambulatory and itinerant but was discharged and executed by such Members of Parliament as the Estates of the Kingdom in their several Sessions elected from among themselves and authorized thereunto Nor had they only their whole Authority from the Estates in Parliament but to speak properly they were Committees of Parliament Authorized to such a Work and Office and accountable to Parliaments for the discharge of the Trusts committed unto them for the Domini electi ad causas whom we so often meet with in the Records of Parliament particularly in those of the Years 1524. 1526. 1528. were such Members as every respective Parliament elected from within their own Walls for the Administration of Justice between the King and his Lieges and between one Subject and another From whence it appears that it not only appertained unto the Parliament to see that Justice was duly administred but that the Right was originally in them of nominating and ordaining the Administrators of it Which makes it very improbable that after rheir having been possessed of such a Right Authority and Jurisdiction for so long time they should so wholly part from and intirely surrender it as upon no Occasion or Emergency whatsoever to leave unto themselves a share or reserve a concern in it Let us add to this That when the College of Justice came to be instituted Anno 1â—37 Parl. 5 King James the 5 th Act 36. though it was Established and Ordained by the Legislative Authority of the King and Estates joyntly and not by an exertion of meer Royal Prerogative yet the Estates in Parliament then Assembled both took upon them and were allowed the Nomination and Choice of the President as well as of all that were then called forth and advanced to be Lords of the Session or College of Justice as appears by the 39. and 41. Acts of the aforementioned Parliament Yea it is further evident from the Records of Parliament that the Estates of the Kingdom did often in succeeding Parliaments Nominate Choose and Impower those very Lords that were actually of the Session to continue in the Administration of Justice which sheweth beyond all rational contradiction that they could much less â—nter upon the Office at first without their being Chosen and Approved by the Estates 〈◊〉 â—arliament Thus Anno 1542. being the first of Mary we find the President with the rest of the Lords of Session Chosen and Impowered a new as Auditores ad causas for the hearing and deciding Civil and Criminal Causes And again we find the Parliament of the Second of Mary Anno 1543. not only ratifying by the Legislative Authority of the Queen and Estates the Institution of the College of Justice but we find the Estates alone nominating and choosing ad causas the President cum caeteris Dominis Sessionis Collegii Justitiae But forasmuch as there was a change given afterwards by Laws to this Course and Method and a new Regulation ordained by subsequent Statutes of the College of Justice wherein both the qualifications of those that are to be Chosen Lords of the Session and the manner of their Approbation are required and appointed We are therefore obliged in the next place to look into those Laws and to examine whether they detract from the Prudence and weaken the Justice of the Parliament in their fore-mentioned Vote or whether they not only Countenance and Suppport but Justifie and Vindicate them And We 'll begin with the 93 Act 6 Parliament James 6 where it being acknowledged That the Nomination of the Lords of the Session belongeth unto the King and that he ought to name such as have the Qualifications there required which are already specified in the aforesaid Vote It is further added That in all time coming when an ordinary Place becomes vacant in the Session the Person nominated thereunto by the King shall be sufficiently tryed and examined by a sufficient number of the Ordinary Lords of the College of Justice for whom it shall be Lawful to refuse the Person presented unto them and that the King in that Case shall present another and that so often until the Person presented be found qualified But seeing this Act may be said to have passed in the minority of King James and the force of it be thereupon endeavoured to be eluded We will therefore consult Act 134. Parl. 12. James 6. wherein besides a Repetition and a Confirmation of all that is mentioned and ordained in the former Act there is further added That none shall be received to any Place of Senator in the College of Justice unless he be sufficiently tryed by the whole College of Justice Now as those are the Laws relating unto and regulating the Nomination Examination and Approbation of the Ordinary Lords of the College of Justice the Practice hath been in all Times conformable thereunto So that the First Parliament of King Charles the Second which through the prevailing of the like Folly and Madness in Scotland which then reigned in England rob'd the Kingdom of many of its Rights and Privileges to increase and inlarge the Prerogative of the Crown yet they were so â—ender of making any Innovations in his particular that by their Second Act of that Parliament they Ordain The Nomination of the Lords of Session to remain as in former Times preceding the Year 1637. And accordingly we find as there have been several who upon single Vacancies in Former Reigns had been rejected by the Lords of the College of Justice though nominated by our Kings So there was one Sir William Ballanden whom Charles the Second had nominated and recommended who upon examination by the rest of the Lords was refused and rejected as a Person not Qualified according to the Statutes of the Realm Is it not therefore unreasonable to be imagined That the King who