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A75208
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An Account of the affairs of Scotland in answer to a letter written upon the occasion of the address lately presented to His Majesty by some members of the Parliament of that kingdom.
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1689
(1689)
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Wing A229A; ESTC R225109
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30,888
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46
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in this present Parliament the King had but one Officer of State But Concessions to persons that are not resolved to take satisfaction have never good effects This Overture was rejected and some persons must have all or nothing But all that are indifferent must be convinced that the King had fairly retrinched his Interest in the Parliament having not only consented to the Parliaments Abolishing of the Bishops but he was willing to have taken the Sting out of the Articles and secured the Nation for ever that the Articles could never be packt nor the Parliament imposed upon Article 2. Grievance THat the first Act of Parliament 1669 is inconsistent with the establishment of the Church-Government now desired and ought to be Abrogate This second Article of the Grievance is Answered by the Fourth Instruction thus Instruct 4. YOu are to pass an Act Establishing that Church-Government which is most agreeable to the Inclinations of the People Rescinding the Act of Parliament 1669 and all other Acts inconsistent therewith By the Instruction the King doth entirely Remit to the Parliament to establish what kind of Church-Government was most agreeable to their Inclinations as the Representative of the People without proposing Qualification or Limitation And because the Act of Parliament 1669 doth Recognize and Declare an extraordinary Power in the Kings of Scotland without Consent of Parliament in relation to Ecclesiastical Affairs whereby any Government of the Church established by Act of Parliament might be changed by the King therefore the King Condescends to Rescind that Law and to pass from the Prerogative of the Crown as it is established and asserted by that Act whereof the Tenor follows ACT Asserting His Majesties Supremacy over all Persons and in all Causes Ecclesiastical November 16. 1669. THe Estates of Parliament having seriously Considered how necessar it is for the good and peace of the Church and State that His Majesties Power and Authority in relation to Matters and Persons Ecclesiastical be more clearly Asserted by an Act of Parliament Have therefore thought fit it be Enacted Asserted and Declared Likeas His Majesty with Advice and Consent of His Estates of Parliament Doth hereby Enact Assert and Declare that His Majesty hath the Supreme Authority and Supremacy over all Persons and in all Causes Ecclesiastical within this His Kingdom and that by vertue thereof the ordring and disposal of the External Government and Policy of the Church doth properly belong to His Majesty and His Successors as an Inherent Right to the Crown and that His Majesty and His Successors may Settle Enact and Emit such Constitutions Acts and Orders concerning the Administration of the External Government of the Church and the Persons employed in the same and concerning all Ecclesiastical Meetings and Matters to be Proposed and Determined therein as they in their Royal Wisdom shall think fit Which Acts Orders and Constitutions being Recorded in the Books of Council and duly Published are to be Observed and Obeyed by all His Majesties Subjects any Law Act or Custom to the Contrary notwithstonding Likeas His Majesty with Advice and Consent foresaid Doth Rescind and Annul all Laws Acts and Clauses thereof and all Customs and Constitutions Civil or Ecclesiastick which are contrary to or inconsistent with His Majesties Supremacy as it is hereby Asserted and Declares the same Void and Null in all time coming Never did Law give a King such a Power nor ever did a King part with such a Law. There was an Act Brought in and Voted for Rescinding the Act of Supremacy it was not Touched which cannot be Imputed to the King there being an express Instruction for Rescinding that Act. Article 3. Grievance THat Forefaultures in prejudice of Vassals Creditors and Heirs of Entail are a great Grievance This Article is Answered by the fixth Instruction Instruction 6. YOu are to pass an Act that Forefaultures shall only be extended to what Interest the Rebel had and that innocent Vassals or lawful Creditors for Debts upon Record shall not be prejudged nor such Heirs of Entail whose Rights of Succession are established by publick Infeftment The Laws of Scotland in relation to Treason are very many and therefore Forefaultures there are too frequent the Feudal Laws and Customes takes place in Forefaultures and Treason being the greatest Ingratitude the Rebels Fee returns to the King in that same condition that it was Originally given out without the burden of his Debt or regard to any Deed done by the Rebel after committing of the Crime or to any Deeds or Alienations made before the Crime which were not consented to or Confirmed by the Superior and rendred Real and Publick by Infestment and not only Heirs of Entail are cut off from their hope of Succession â—or the Delinquency of the Fiar but the Rebels innocent Vassals who are not Confirmed by the Confiscation of the Dominium Directum which was in the Rebel the Dominium utile falls in consequence There have been so many sad instances of the severe effects of Forefaultures in Scotland to the Ruin of many Families who had no accession to the Treason that of late this single Concession would have been purchast by that Nation at the dearest rate but Courtiers and Ministers who had hopes to make advantage and procure Gifts of Forefaultures they have alwayes resisted the good design of Restricting the prodigious effects of Forefaultures till now that the King hath resolved Never to consider His Own Advantage and Greatnesse in opposition to the Interest and Ease of His Subjects He hath by this Instruction secured lawful Creditors whose Debts are not Collusive but upon Record and innocent Vassals though not Confirmed and likewise Heirs of Entail whose Rights of Succession are not Privat and Clandestine and so might be antedated though they were truly made after or in prospect of Rebellion but where the Rights are nottour and publick which must be Recorded in that case even the Rebels Heirs are safe which is one of the most considerable and universal Favours which could be done to that Nation Article 4. Grievance THat the obliging the Leidges to Depone upon Crimes against Delinquents otherwise than when they are adduced in special Process as Witnesses is a great Grievance This Article is Answered by the tenth Instruction Instruction 10. WE are satisfied that an Act should be past for securing the Leidges against Inquiries by way oâ— Inquisition but in respect of the present Juncturâ— of Affairs this Matter would be well Considered by the Parliament anâ— therefore when the Terms of this Act shall be Adjusted you are to Transmit the same to Vs that We may give you particular Instructions thereanent By the Custom of Scotland any person might be examined summarly in relation to other persons against whom there was no Process depending and without confronting the persons And albeit such Expiscations did not amount to a Probation except these Depositions had been renued in presence of the Jury yet being taken upon Oath
in absence of the party concerned to sugest any thing for clearing of himself the privat Informers became engaged to hold by what they had once Declared under the pain and disgrace of Perjury by this Instruction which is fuller than the Grievance His Majesty consents to secure His Subjects from such Inquisitions But in regard of the Machinations and Plots which may be necessar for the Government to be discovered at this present Juncture Therefore His Majesty doth Remit to the Parliament to Consider what is proper at this time that they might fall upon some Temporary Remeid as the Parliament of England had done in relation to the Habeas Corpus or Suspending the Commensment of this Law for some time Article 5. Grievance THat Assises of Error are a Grievance and that Juries be considered by Parliament This Article is Answered by the seventh Instruction Instruction 7. YOu are to pass an Act either to take away Assises of Error or otherwaies that they shall take place as well against the Jurie that Condemns as against the Jurie that AssoilÈies any Pannel By the Law and Custom of Scotland the Criminal Judge doth Cognosce and Determine the Relivancy of an Inditement and the Jury doth only Consider the Probation adduced and give their Verdict whether the Pannel be guilty or not guilty And this is a singular Custom in Scotland that when upon the Juries Verdict the Pannel or Party accused is Absolved that Jury was lyable to be Conveened before a Grand Jury and the persons might be found guilty as Temere Jurantes super Assisam for acquiting â—he Criminal but in case they did Condemn the Jury was not lyable to an Assise of Error This hath been introduced in the simplicity of antient times when Juries were more prone to Mercy than Severity because it was presumed no man would pass upon a Jury willingly to Condemn his Neighbour if he did thereby expose himself But in the latter times this has been found a great Inconveniency and Juries may be affrighted and imposed upon to Condemn persons because the King's Advocat may Protest for Assise of Error in case they acquit whereas they are secure if they Condemn and therefore the King hath consented that the Parliament make their own choice whether they will take away Assise of Error in all cases or if they will make Juries lyable for Condemning as well as acquitting Pannels Article 6. Grievance THat the 18 Act of Parliament 1681. Declaring a Cumulative Jurisdiction is a Grievance This sixth Article of the Grievance is Answered by the eight Instruction thus Instruction 8. YOu are to pass an Act Rescinding the eighteenth Aâ—… of Parliament 1681. Asserting the Prerogative iâ— point of Jurisdiction This sixth Article of the Grievances and eighth Instruction iâ— Answer thereto will be best understood by the Act it self to whicâ— they relate Follows the Act. ACT Asserting His Majesties Prerogative in point of Jurisdiction September 16. 1681. THe Estates of Parliament Considering That all Goveenment anâ— Jurisdiction within this His Majesties Antient Kingdom oâ— Scotland does originally Reside in His Sacred Majesty Hiâ— lawful Heirs and Successors And though His Majesty and His Royal Predecessors have bestowed Offices and Jurisdictions upon severals oâ— His well deserving Subjects yet these are not privative of His Jurisdiction They do therefore in a dutiful and humble Recognisance of His Majesties Royal Right and Prerogative as to this Point Declare That notwithstanding of these Jurisdictions and Officeâ— His Sacred Majesty may by Himself or any Commissionat by Him take Cognisance â—nd Decision of any Cases or Causes He pleases Shortly after this Act there was a Commission under the Great Seal to the Lords of Session rendring their places Arbitrary and â—d placitum in which the Lord Stair President of the Session Lord Newbyth and others were left out These the King hath now Restored to their places according to His Declaration and even Heretable Jurisdictions were Invaded and not only matters Civil but the highest Points of Criminal Jurisdiction were commitâ—ed to Soldiers and other persons who were Impowered Summarly to Execute to the Death free Subjects without any formality of Process or Jury and many persons were taken off that way whereby the ordinary Legal Judicatures might be rendred â—neffectual And the King had Power to Judge every Scots-man either for his Life or Fortune by himself or such persons as he pleased to appoint and to Avocat Causes to be Cognosced by His Courtiers at Whitehall This gave the King the greatest latitude â—f Arbitrary Power imaginable and more than is practised in any â—lace of Europe And when such Laws are once Established in â—avours of the Crown we seldom see Princes willing to Renounce â—hem but only to moderat the Execution in ordinary Cases reâ—erving alwayes the Power and Capacity to themselves But by â—his Instruction our King was willing to part with this extravagant Power and it is matter of Surprise that He was not taken at His Word Article 7. Grievance THat the Commissariot Courts as they are now Constitute are a Grievance This is Answered by the ninth Instruction â—nstruction 9. YOu are to pass an Act for Regulating the Abuses in the Commissary Courts and all other inferior Courts The Commissars were a most Antient Constitution the Nomination of them was committed to Church-men but after the Reformation the Bishops being excluded the Nomination of the Commissars did fall to the King and after the Restitution of Episcopacy in Anno 1606 the Nomination of the Commissars was given to the Bishops as their Officials and they are the sole Judges in the first Instance of Scandel Matrimony Divorce and several other Matters which have alwayes been reserved in the hands of the Clergy as the Confirmation of Testaments and ordering the performance of the Wills and Legacies of Defuncts and the Provisions of Relicts and Orphans In this Grievance it is Represented That there are Errors according to the present Constitution of this Court yet these Errors are not specified Neverthelesâ— the King remits it to the Parliament to Rectifie whatsoever they thought amiss in this Court and the Instruction is much larger thaâ— the Grievance for thereby the King Remits it to the Parliamenâ— to Regulat all inferior Courts Article 8. Grievance THat the 27 Act of the Parliament 1663. Giving thâ— King power to Impose Custom at His Pleasure upoâ— Forraign Import and Trade is a Grievance anâ— prejudicial to the Trade of the Nation This is Answered by the seventeenth Instruction Instruction 17. YOu are to endeavour to procure an Act or Actâ— for the encouragment of Trade and if the 2â— Act of the Parliament 1663. be found incoâ—venient it may be Regulat or Rescinded and when the Propâ—sals are Adjusted you are to transmit them to Us that you maâ— receive Our Instructions thereanent For the better understanding of this Grievance I have set dowâ— the Act it self ACT Asserting His Majesties Prerogative in the Ordering and