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A75208 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. 1689 (1689) Wing A229A; ESTC R225109 30,888 46

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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 Assoilȝies 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 ●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 A●… of Parliament 1681. Asserting the Prerogative i● point of Jurisdiction This sixth Article of the Grievances and eighth Instruction i● Answer thereto will be best understood by the Act it self to whic● 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 an● Jurisdiction within this His Majesties Antient Kingdom o● Scotland does originally Reside in His Sacred Majesty Hi● lawful Heirs and Successors And though His Majesty and His Royal Predecessors have bestowed Offices and Jurisdictions upon severals o● 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 Office● His Sacred Majesty may by Himself or any Commissionat by Him take Cognisance ●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 ●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 commit●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 ●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 ●f Arbitrary Power imaginable and more than is practised in any ●lace of Europe And when such Laws are once Established in ●avours of the Crown we seldom see Princes willing to Renounce ●hem but only to moderat the Execution in ordinary Cases re●erving alwayes the Power and Capacity to themselves But by ●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 ●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 Nevertheles● the King remits it to the Parliament to Rectifie whatsoever they thought amiss in this Court and the Instruction is much larger tha● the Grievance for thereby the King Remits it to the Parliamen● to Regulat all inferior Courts Article 8. Grievance THat the 27 Act of the Parliament 1663. Giving th● King power to Impose Custom at His Pleasure upo● Forraign Import and Trade is a Grievance an● 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 Act● for the encouragment of Trade and if the 2● Act of the Parliament 1663. be found inco●venient it may be Regulat or Rescinded and when the Prop●sals are Adjusted you are to transmit them to Us that you ma● receive Our Instructions thereanent For the better understanding of this Grievance I have set dow● the Act it self ACT Asserting His Majesties Prerogative in the Ordering and