The 64th day of this session of parliament
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Prayer said and rolls called.
The king being present.
The which day the act regarding the dismembering of the seven parishes mentioned therein from the sheriffdom of Stirling and annexing the same to the sheriffdom of Dunbarton for the reasons contained in the act, being read in audience of his majesty and parliament, they continue to give answer thereto until the next parliament that the same may be determined at that time, and in the meantime recommend to the lords of secret council to prepare the same to the said parliament.
[1641/8/155]*[print] [email] [cite] [preceding] [following]
The which day, regarding the supplication given in to the king's majesty and estates of parliament by John, earl of Rothes, Sir George Hamilton of Blackburn, Andrew Ainslie and George Arnott, merchant burgess of Edinburgh, for themselves and in name and on behalf of the other partners of the late Captain Robertson's ship, of the which supplication the tenor follows: To your sacred majesty, the honourable lords of the high court of parliament and other members thereof, humbly means and shows we your majesty's faithful subjects, John, earl of Rothes, Sir George Hamilton of Blackburn, Andrew Ainslie and George Arnott, burgess of Edinburgh, and in name and on behalf of the other partners of the late Captain David Robertson's ship, that whereas the time of the troubles between Britain, Spain and France, 1628, your majesty granted letters of mark to diverse of your subjects in England and Scotland, and in particular to the said late Captain David Robertson, who, being conjoined with two of your majesty's own ships, he as rear admiral did apprehend certain ships of Hamburg and Lübeck carrying ammunition and other forbidden goods, the said late David Robertson, his ship being a little spoiled in the combat, went to a harbour in Norway to supply and mend his ship; and he, having lain beside him in harbour a ship pertaining to Dunkirk which he had taken in prize, the master of the Dunkirk ship, having got ashore, he went eight miles distant from that place and agreed with the masters of two ships of Hamburg of very great force, promising them the half of the ship and the goods for rescuing the rest, and moved the said two Hamburg great ships, the one being 800 and the other being 400 tons, to come and invade the said late David's ship, they entering in a dangerous conflict for the space of two or three hours until many men were hurt and killed on every side and the ships very evil spoiled and hurt, ceasing at that time from the said combat they by treachery seized upon the said late David's person, and having both the far greater force and number of men spoiled the said David's ship by taking out the ordinance, whereof four pieces pertained to your majesty, took the sailors' clothes and the surgeon's chest and spoiled all their victuals, and most cruelly suffering the sailors to famish for hunger and many of them to die for want of cure, denying to give to any of them the use of their own chest, they unrigged the ship and so spoiled her that she was not worth the bringing away, and so was all utterly lost to the owners, they took your majesty's colours, trod on them, tore them and used contemptuous speeches. Your majesty's merchants, shipmasters and others trading in Norway were witness hereto, and because some of the witnesses had no certain dwelling places, being sailors, their depositions were taken before the court of the admiralty of England and Scotland, where they could be found occasionally, who did sufficiently clear and prove the robbery foresaid. Upon complaint hereof to your sacred majesty, one was sent by your majesty to the states of Hamburg, who, receiving no satisfaction, your majesty granted letters of reprisal to the said late Captain David Robertson and his partners, who equipped by virtue of the said letters of reprisal two ships at a very great charge and expense; which ships, apprehending certain ships and goods appertaining to Hamburg, brought them to Leith in this your majesty's kingdom, which were by your majesty's special command to the council of Scotland and your earnest desire signified to us, Captain Robertson's partners, again delivered to them the said ships and goods, your majesty being solicited thereto by diverse of our enemies who ware engaged to the Hamburgers, but upon this declaration: that we suiting justice before the state of Hamburg if they should either delay or deny justice, your majesty would see us, your wronged subjects, repaired either by causing us receive payment or receiving again of new letters of reprisal. But we, the said partners, having sent James Colville, a gentleman of good worth and knowledge, to follow that process at Hamburg, found but strange usage and great delays and was forced to constitute Master Joseph Everie, agent for your majesty at Hamburg, procurator, to follow that process, who, having now pursued the same these four years bygone, has in no way advanced in the said process, but altogether postponed and delayed. The judges, having certified that we must anew cite our adversaries to hear and see the former depositions taken over again, and have granted a long time both for the appearance of the witnesses and parties both before the admirals of England and Scotland, which course, if it be taken, the examinations and depositions at the advising of the cause may be accounted of no validity, albeit the witnesses be either departed this life or being sailors scattered through the world, that it be impossible to us to find them, for the witnesses whose depositions were taken in England were William Goffe and George Scott, and are yet alive, but it is impossible to get them bide at home to a peremptory day to the which Long and Uttenhold, their heirs and assignees, can be summoned to hear them sworn and testify. As to the witnesses received in the admiralty of Scotland, Allan Livingstone, George Grieve and Robert Dawling are all three departed this life, only [...] and Thomas Sandilands are alive, but by reason of their seafaring calling it is impossible for them to be at home at such a day to the which the Hamburgers may be cited. Now the testimony of those witnesses who are departed this life holds sure without control because 'the death of witnesses has the power of confirmation, because it does not appear true that a dying person would have left behind false witness'. And as to the depositions of those who are yet alive, they are craved to be reexamined upon this ground, namely: that the depositions of a witness is of no moment and of no faith 'when the party has not been summoned', but say they Long and Uttenhold were not summoned to the depositions either taken in the admiralties of England or Scotland. But your majesty will be pleased to consider that this rule does not hold in this present case, 'for a thing is removed from the rule of common law as often as the trial is delayed'; for an infirm and sick witness, an aged person, a man going in pilgrimage or long voyage, a sailor going to sea, a woman going with child near her delivery may, say the lawyers, be examined 'by the judge in competent part, either not cited for perpetual memory, or because it is plausibly feared concerning death of witnesses or a long absence, and all is allowed because of a necessity, except necessity caused by a sin'. Neither have the interrogators sent over from them prescribed the manner nor time of citing the Hamburgers to compear in this kingdom, and when they are summoned they will allege 'that they are not rashly to be summoned forth from Germany', and that the admiralty of Scotland has no authority to that effect, and that there has been already probators† used by the supplicants, reprobators† used by the defenders and reprobators of those reprobators produced by the defenders, and so there can be no further used except by business without end, seeing the nature of the business craves a summary procedure and ought not to be protracted with lengthiness of a solemn process. Therefore, being thus delayed and frustrated of justice, we humbly beseech your majesty, the lords of this high court of parliament and other members thereof to take to your consideration this our humble supplication and the hard condition of a great number of your majesty's subjects, being above 12 parties, poor widows and fatherless children and other merchants who are so impoverished by their other frequent disbursements, the total of their loss and just claim exceeding the sum of £15,000 sterling, that being thus exhausted we are unable to lay out any more monies, and that your majesty would be pleased either to procure us reparation of our wrong proven in the admiral court of England and repayment of our loss proven in the admiralty of Scotland or otherwise that your majesty would be pleased again to grant us new letters of reprisal that we may be repaired of our grievous wrongs and heavy damages, and that this be summarily performed, otherwise we are overthrown and utterly ruined, as the foresaid supplication in the self purports. Which supplication being diverse times read in audience of the king's majesty and estates of parliament and duplicates thereof given to every separate estate to be advised therewith by the ordinance of the king and parliament, and thereafter the same supplication being of new again this day publicly read in open and plain parliament in audience of his majesty and estates thereof, and the desire of the same taken to consideration, the estates of parliament did advise his majesty to grant letters of reprisal in favour of the supplicants for themselves and in name and on behalf foresaid, and to cause complete the same letters of reprisal presently in the most ample and surest form under his highness's great seal, and being so completed and sealed, to testify the same to his highness's secret council to remain in their keeping to the effect that if his majesty does not procure reparation to the supplicants of their damage and loss according to justice the foresaid, letters of reprisal may be delivered by the council to the supplicants to make use thereof, according to the tenor of the same letters of reprisal. Likewise his majesty, at the desire and by the advice of the estates of parliament, did accordingly promise to grant the foresaid letters of reprisal, and thereafter to testify the same letters so accomplished under his highness's great seal to the council to the effect that if his majesty did not procure reparation to the supplicants of their said damage and loss according to justice as said is, the foresaid letters of reprisal may be delivered to the said supplicants for themselves and in name and on behalf foresaid to be made use of by them, according to the same letters of reprisal.
[1641/8/156]*[print] [email] [cite] [preceding] [following]
The which day the supplication given in to the king's majesty and estates of parliament by James, lord Johnstone, for the officers of fortune of his regiment regarding their pay, being read in audience of the king's majesty and parliament, his majesty and estates of parliament remit the same supplication and desire thereof to the committee appointed by the king and parliament for the common burdens of this kingdom, their consideration.
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The which day the king's majesty, with advice and approbation of the estates of parliament convened in parliament, nominated and elected the persons underwritten to the places and offices of estate of this kingdom respectively after-mentioned respectively formerly possessed by them, namely: Robert [Ker], earl of Roxburghe, to the place and office of privy seal, William [Hamilton], earl of Lanark, to the place and office of secretary, Sir Thomas Hope of Craighall, to the place and office of his highness's advocate, Sir James Carmichael, to the place and office of treasurer depute, and Sir John Hamilton of Orbiston, to the place and office of justice clerk, and that for life without offence, according to the act of this present parliament made regarding the election of officers of state, councillors and sessioners upon 16 September last past. Likewise his majesty, with advice and approbation foresaid, gives and conveys to their forenamed persons, and each one of them for life without offence as said is, the foresaid offices respectively above-mentioned to which they are nominated and elected in manner foresaid, together with all honours, dignities, profits, benefits, liberties and privileges which have been possessed and held by any preceding officers of state of the foresaid offices above-written, and which may be now possessed by the laws of this kingdom. And ordains a gift to be passed and completed under his highness's great seal to each one of the persons above-named of the foresaid offices respectively above-written, to which they are nominated and elected in manner before rehearsed.
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The which day William, earl of Lanark, produced in plain parliament, in presence of his majesty and estates of parliament, a gift granted by the king's majesty of the office of secretary for life, which gift being so produced was superscribed by his majesty and uniformly approved by the whole estates of parliament, whereupon the Earl of Lanark asked instruments.
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The which day the king's majesty, with advice and approbation of the estates of parliament, nominated and elected John [Campbell], lord Loudoun, chancellor, Archibald [Campbell], earl of Argyll, William [Cunningham], earl of Glencairn, John [Lindsay], lord Lindsay†, and Sir James Carmichael, depute treasurer, or any three of them, for discharging the office of treasury principal to the next parliament, according to the commission to be drawn up for that effect.
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The which day the king's majesty, with advice and approbation of the estates of parliament, nominated and elected Master Alexander Gibson, younger, of Durie to the place and office of clerk register of this his highness's ancient and native kingdom of Scotland and that for life without offence, according to the act of this present parliament made regarding the election of officers of state, councillors and sessioners upon 16 September last past. Likewise his majesty, with advice and approbation foresaid, gives and conveys to the said Master Alexander Gibson, younger, of Durie, for life without offence as said is, the foresaid office of clerk register with all honours, dignities, privileges, profits, casualties and liberties pertaining to the said office, according to the foresaid act and to the gift to be granted to him of the foresaid office under his highness's great seal, to be held and possessed by him as the same has been possessed and held by any preceding clerk register and which may be now possessed by the laws of this kingdom, and ordain a gift to be passed and completed under his highness's great seal to the said Master Alexander Gibson of the foresaid office of clerk register with all honours, dignities, profits, casualties, liberties and privileges belonging thereto.
[1641/8/161]*[print] [email] [cite] [preceding] [following]
The which day the king's majesty, with advice and approbation of the estates of parliament convened in plain parliament, nominated and elected the persons underwritten, namely: [John Campbell], lord Loudoun, chancellor, [James Stewart], duke of Lennox, [James Hamilton], marquis of Hamilton, [Archibald Campbell], earl of Argyll, [William Keith], earl Marischal, [John Gordon], earl of Sutherland, [John Erskine], earl of Mar, [William Douglas], earl of Morton, [Alexander Montgomery], earl of Eglinton, [John Kennedy], earl of Cassilis, [William Cunningham], earl of Glencairn, [James Stewart], earl of Moray, [John Drummond], earl of Perth, [Charles Seton], earl of Dunfermline, [John Fleming], earl of Wigtown, [John Lyon], earl of Kinghorn, [Robert Ker], earl of Roxburghe, [George MacKenzie], earl of Seaforth, [John Maitland], earl of Lauderdale, [William Kerr], earl of Lothian, [George Hay], earl of Kinnoull, [David Carnegie], earl of Southesk, [John Wemyss], earl of Wemyss, [William Ramsay], earl of Dalhousie, [James Ogilvie], earl of Findlater, [William Hamilton], earl of Lanark, [Alexander Leslie], earl of Leven, [Archibald Douglas], lord Angus, [John Lindsay], lord Lindsay†, [John Hay], lord Yester, [John Sinclair], lord Sinclair, [Alexander Elphinstone], lord Elphinstone, [John Elphinstone], lord Balmerino, [Robert Balfour], lord [Balfour of] Burleigh, [James Livingstone], lord Almond, [David Lindsay], lord Balcarres, [Sir Alexander Gibson of Durie], clerk register, [Sir Thomas Hope of Craighall], advocate, [Sir John Hamilton of Orbiston], justice clerk, [Sir James Carmichael], treasurer depute, [Sir James Galloway], master of requests, Sir Robert Gordon, Sir William Douglas of Cavers, Sir Patrick Hepburn of Waughton, [Sir George Dundas], laird of Dundas, [Sir David Graham], laird of Fintry, [Sir Thomas Myreton], laird of Cambo, [Sir Alexander Erskine], laird of Dun, [Sir Robert Innes], laird of Innes, [Sir Robert Graham], laird of Morphie and the provost of Edinburgh for the time being, to be of the council for life without offence, according to the act made in this present parliament upon 16 September last regarding the nomination and election of the officers of state, councillors and sessioners, and according to the commission to be granted by the king's majesty, with the advice and approbation of the estates of parliament, to the said lords and others of his majesty's secret council above-named for government of this kingdom in all affairs concerning the peace, good and happiness thereof, which by the laws and custom of this kingdom pertain to his majesty's secret council. Likewise his majesty, with advice and approbation foresaid, likewise nominated and elected [Thomas Howard], earl of Arundel, [Philip Herbert], earl of Pembroke, [William Cecil], earl of Salisbury and [Henry Rich], earl of Holland to be supernumerary councillors of his majesty's privy council of this kingdom and to be contained in the foresaid commission to be granted to the council as supernumerary therein. And his majesty, with advice and approbation foresaid, gives and grants to the said councillors above-named, and every one of them, all honours, dignities, liberties, immunities and privileges whatsoever belonging to the lords and others of his highness's privy council of this his ancient and native kingdom, to be held and possessed by them likewise and with all respects as the same have been possessed by any preceding councillors of his majesty's privy council foresaid, and which may be now held and possessed by them by the laws of this kingdom, according to the foresaid act of 16 September last, and to the commission to be granted to the said lords and others of his majesty's privy council as said is.
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The which day the king's majesty, with advice and approbation of the estates of parliament convened in plain parliament, nominated and elected Sir George Erskine of Innerteil, Sir Alexander Gibson of Durie, Sir Andrew Fletcher of Innerpeffer, Sir John Hamilton of Orbiston, justice clerk, Sir James Carmichael, treasurer depute, Sir James Learmonth of Balcomie, Sir James MacGill of Cranstoun-Riddel, Sir George Haliburton of Fodderance, Sir John Hope of Craighall, Sir John Scott of Scotstarvit, Sir Alexander Falconer, younger, of Halkerton, Sir John Leslie of Newton and Sir Thomas Hope of Kerse, knights, Master Archibald Johnston of Wariston and Master Adam Hepburn of Humbie to be the 15 ordinary lords of session and senators of the college of justice, and that for life without offence, and judges for administration of justice to the lieges, according to the first foundation and erection of that sovereign judicatory of the college of justice. Likewise his majesty, with advice and approbation of the said estates of parliament, gave and conveyed and hereby gives and conveys to the fifteen ordinary lords of session above-named, and to each one of them for life without offence as said is, the fifteen ordinary places of the said ordinary lords and senators of the college of justice, with all fees, honours and dignities, profits, casualties, immunities, liberties and privileges whatsoever pertaining and belonging to the ordinary lords and senators of the college of justice, and their places thereof to be held and possessed by the persons above-named now nominated and elected thereto as said is, and each one of them likewise and with all respects and privileges, fees, casualties, immunities, liberties and privileges whatsoever as the same have been possessed and held by any preceding lords and senators of the said college of justice, and which the said lords and senators foresaid may now possess and enjoy by the laws of the kingdom, and that for life without offence, according to the act of this present parliament made concerning this upon 16 September last. Likewise his majesty, with advice and approbation foresaid, likewise nominated and elected Archibald [Campbell], earl of Argyll, Archibald [Douglas], lord Angus, John [Lindsay], lord Lindsay† and John [Elphinstone], lord Balmerino, to be the four extraordinary lords of session and senators of the said college of justice, according to the act foresaid made regarding the nomination and election of the officers of state, councillors and sessioners of the date 16 September last. And his majesty, with advice and approbation of the said estates, gave and conveyed, and hereby gives and conveys, to the said four extraordinary lords of session above-named, and to each one of them, the four ordinary places of the said extraordinary lords and senators of the college of justice, with all honours, dignities, immunities, liberties and privileges whatsoever belonging to the extraordinary lords of session and their places thereof, to be held and possessed by the foresaid four lords above-named now nominated and elected thereto likewise and with all respects the same has been possessed and held by any preceding extraordinary lords of the session, and which may be now possessed and enjoyed by them by the laws of this kingdom.
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The which day the king's majesty and estates of parliament, having heard and considered the objection made by the Laird of Moncreiffe against Sir Andrew Fletcher of Innerpeffer, his nomination and election, that he cannot be one of the lords of session because he has incurred the pain contained in the act of parliament and lost his place by buying litigious lands, which he offered to qualify and prove, his majesty and estates of parliament have remitted and hereby remit the trial thereof to the secret council, that in case the said Sir Andrew Fletcher be found guilty, he may incur the pain contained in the act of parliament made relating thereto, otherwise in case Moncreiffe insist therein and succumb in probation he may be punished at the councillors' pleasure accordingly as they shall think his carriage to demerit.