[A1641/8/36]*[print] [email] [cite] [preceding] [following]
Act regarding the election of the officers of state, councillors and sessioners
Our sovereign lord and the estates of parliament, considering that whereas there was an article in the treaty regarding the manner of choosing and placing of officers of state, councillors and sessioners, whereof the answer was remitted to be determined by his majesty and this parliament; and his majesty being willing to give this his ancient and native kingdoms all satisfaction possible that fit and qualified persons shall ever fill these places, and considering that his majesty's residence (because of his great affairs) will be more ordinary in England than here, whereby the qualification of persons may not at all times be so well-known to him, therefore his majesty, with advice and consent of the estates of parliament, declares for himself and his successors that he will nominate and make choice of such able and qualified persons to fill those places as shall be fittest for his service and may give most contentment to the estates of parliament, which nomination and choice his majesty will make with the advice and approbation of the said estates of parliament during their sitting. And if any of the said places shall happen to become vacant and must be provided in the interval between parliaments, his majesty will choose and nominate officers of state and councillors with the advice and approbation of the council, all that number being warned upon 15 days' calling to meet relating thereto and most part of the whole consenting; and in like manner the sessioners, with the advise and approbation of the most part of that house. Which elections made in the interval shall be allowed or disallowed in the next ensuing parliament as the king's majesty and the parliament shall think expedient. And the officers of state, councillors and lords of session so nominated and chosen by his majesty and the parliament or allowed by his majesty and them shall be provided for life or for the offence, and they all shall be liable to the censure of the king's majesty and parliament.
Since by your answer to my doubts pretended on Monday, you manifestly show to everyone (as well as believed by me) that with your knowledge you will never derogate anything from my just power, and that the chief ground of your demand is upon the just sense you have of my necessary absence from this country, which otherwise but for the supplying of that want you would forbear to press, therefore not to delay more time, my answer briefly is that I accept this paper [...]†
16 September 1641
Read, voted and passed in parliament. To the post script which is written with the new hand and this part thereof only to be recorded, but the first part only to be printed.
[John Elphinstone, lord] Balmerino, in presence of the lords of parliament
[A1641/8/37]*[print] [email] [cite] [preceding] [following]
Bill by the lairds of Ayton and Lochend for a dispensation to the sheriff of Clackmannan etc.
To the king's most excellent majesty and honourable estates of the high court of parliament, humbly means and shows William Home of Ayton and Sir James Baillie of Lochend, knight baronet, and Dame Magdalene Carnegie, lady Lochend, Sir Patrick Hamilton of Little Preston, knight, the said William Home of Ayton and William Butter, tutors testamenters to the said Sir James Baillie for their interest, that where the late William [Alexander], earl of Stirling, and the late William [Alexander], lord Alexander, his son, are due and owing to me, the said William Home of Ayton, as assignee constituted by the late Sir Gideon Baillie of Lochend and by certain other persons, creditors to the said late Earl of Stirling and Lord Alexander, diverse great sums of money principals, annualrents and penalties according to certain bonds granted by them thereupon, the rights whereof are established in the person of me, the said Laird of Ayton. Likewise, I, the said Sir James Baillie, have likewise right to the same sums, bonds and other securities made thereupon, partly as heir to the said late Sir Gideon, my father, and partly by assignations and translations of the same made to me by the said Laird of Ayton and other persons, creditors to the said late Earl of Stirling and Lord Alexander. And in respect that the said late Earl of Stirling and Lord Alexander are both deceased, we, your majesty's petitioners, are necessitated to intend and pursue actions at our and either of our instances against Alexander's lawful daughters to the said late William, lord Alexander, and heirs portioners of line to him, their father, and grandchildren and heirs portioners of line to the said late William, earl of Stirling, their grandfather, at least as lawfully charged to enter heirs to their said late father and grandfather and to either of them, according to the act of parliament, and their tutors and curators if they have any for their interest, and against Harry, now earl of Stirling, as son and male heir, of tailzie and provision to the said late William, earl of Stirling, his father, and brother and male heir, of tailzie and provision to the said late William, lord Alexander, his brother; at the least as lawfully charged to enter male heir, of tailzie and provision to his said late father, brother and respectively according to the act of parliament for payment making to us and either of us of the said sums of money owing to us by the said late Earl of Stirling and Lord Alexander contained in their said bonds, and for fulfilling of the same to us after the forms and tenors thereof and of the assumptions and rights made to us thereto; which actions we have partly intended and are of intention to intend and pursue before the sheriff of Clackmannan and his deputes in respect of the not sitting of the lords of session. And by reason that a great part of the said late Earl of Stirling and Lord Alexander their lands and estate within this kingdom to which their said heirs of line and of tailzie may succeed lies within the said sheriffdom of Clackmannan, so that the said sheriff and his deputes are and should be most proper and competent judges before whom the said actions ought and should be pursued, specially seeing the said heirs of line and tailzie respectively have no certain dwelling place outwith the said shire within this kingdom, but remain and dwell actually within the kingdom of England; in the which actions (as well intended as to be intended relating thereto) the said sheriff of Clackmannan and his depute cannot nor may not goodly sit and hold courts without your majesty's and estates of parliament's express warrant and dispensation in manner underwritten by reason of the present sitting of the high court of parliament; and that the said parties dwell outwith this kingdom, whereby we your majesty's petitioners will be heavily prejudiced and damnified by the delay of time and want of justice unless remedy be provided, therefore we most humbly beseech your sacred majesty and estates of parliament to grant warrant and dispensation hereby to the said sheriff of Clackmannan and his deputes and to authorise them jointly and separately as judges delegated by your majesty and parliament to sit and hold courts, proceed and administer justice in all actions either already intended or to be intended and pursued by us or either of us against the heirs of line and tailzie of the said late Earl of Stirling and Lord Alexander and against all other persons concerning the premises foresaid, and to that effect to direct precepts and citations against them either being outwith this kingdom or within the same in the ordinary form, and to proceed to the final decision of the said actions. And that it may be declared by his majesty and estates of parliament that the said actions and sentences to follow thereupon before the said sheriff and his deputes are and shall be as valid and effectual grounds and warrants to furnish comprising of their lands, poinding, horning and all other manner of execution personal and real as if the said defenders were actually and really dwelling and residing within the said sheriffdom, or as if this high court of parliament were not sitting; as also as if the same sentences were pronounced by the lords of session. Concerning which, your majesty and estates of parliament would be pleased hereby to grant your dispensation and express warrant and ordain an act to be granted and extended hereupon in due form.
16 September 1641
Read in audience of his majesty and estates of parliament, who grant the dispensation written within, and ordain the clerk to give forth and extract an act and warrant according thereto, authorising and warranting the sheriff of Clackmannan and his deputes to proceed in the actions written within as below.
[John Elphinstone, lord] Balmerino, in presence of the lords of parliament†
[A1641/8/38]*[print] [email] [cite] [preceding] [following]
16 September 1641
Memorandum by the burghs regarding the new commission for the ministers' stipends
1. First where the commission is for dismembering of parishes, it would bear so that the same be done with consent of the whole heritors.
2. Item, where augmentations are appointed to be given to ministers serving the cure at college kirks and collegiate kirks, to crave that there may be a provision that this commission shall in no way be extended to the college kirks of Edinburgh to which they have right, and namely the college kirk of St Giles and the college kirk of the Trinity and their pendicles, because the ministers serving the cure thereat have sufficient stipends provided to them by the town of Edinburgh and whereof they are in possession.
3. Item, it is not reasonable that heritors who have cost their teinds and have good right to the same should maintain the ministers at the general assembly, seeing they have sufficient stipends or are to be provided by this commission to sufficient stipends which may bear small expenses in going to the assembly once in the year.
4. Item, where it bears power to give augmentation to ministers who had not the benefit of the last commission, it would bear 'and who are not already sufficiently provided', because there are many sufficiently provided who neither sought nor get any benefit of the last commission, and therefore should not seek nor get any now.
5. Item, the appointing of glebes ought to be out of the kirklands within the parish, for it is not reasonable to take a gentleman's proper heritage without his consent and give it to the minister; and where there is no kirkland, they may be the better considered in their stipend.
6. Item, the appointing of new manses where the old are decayed is in no way reasonable, but there should be only power granted to repair them.
7. Item, where it bears that glebes are decayed, to appoint new glebes is unreasonable because it is not understood how glebes decay.
8. Item, the appointing of manses and glebes upon other necessities than the decaying of them and becoming of them unprofitable and the referring of these necessities to the commissioners' arbitrament is of too large an extent in respect of the generality, the necessities not being defined as to what they are and therefore they would be specified that the estates may consider if they be reasonable until they are sitting in a body and not defer the same to a few commissioners.
9. Item, fuel, winter grazing, fail and divot etc., there ought to be no power granted to determine on the same, but they should possess the same according to the old use and wont. And where that is none, they may be considered of the same in their stipends.
10. Item, providing of pious uses [...] be agreed and not remitted generally to the arbitrament of a few commissioners, for by this means the heritors who by warrant of law have bought their teinds shall be circumvented by the law in giving out their monies for acquiring of that which they shall be compelled to give out for nothing.
11. Item, where they have power to set down the prices of sellable teinds, providing they exceed not the number of years' purchases set down by the king in his decreet arbitral.
12. Item, it is not reasonable that a minor not buying his teind should have only action against his tutor and not admitted at his majority to buy his teinds, because in all case of law minors are privileged and their restitution fully in case of harm never denied to them. And as for the subsidiary action against the tutor, that proves often times unprofitable when tutors become irresponsible.
13. Item, where it is declared that ministers serving the cure at colleges, hospitals and schools and leads the teind for his stipend shall not be sellable, it is desired that those teinds may not be excluded out of the valuation.
Memorandum: The commission regarding the teinds would also contain a power to the commissioners that where any heritors have been stayed in their valuations the time of the former commission by powerful titulars, and where in the said commission it has been enacted that the said heritors shall be subject only to the valued duty or old rental duty, that they may stop all actions of spuilzie or leading of the said teind, and that the said heritors shall be only subject for bygones to the said valued duty or old rental duty.
Item, the said commission would contain power to the commissioners when parishes are numerous and populous and are provided but with one minister to provide the same with two, and to appoint them sufficient stipends out of the readiest livings belonging to the kirk of that parish or otherwise where the same may be had.
[A1641/8/39]*[print] [email] [cite] [preceding] [following]
Answers to the remarks of the burghs upon the commission
To the first:
It is answered that remark would be restricted thus: that the dismembering of parishes be with consent of the most part of the heritors who are to be taken off. And in case of their dissent, the reason thereof given in by them to the commission would be such as the commissioners shall approve. The presbytery is to recommend thinking it convenient.
To the second:
The collegiate kirks in Edinburgh and their pendicles need not be excepted if (as it is alleged) they have sufficient maintenance already, because in that case the commission will not have power to grant augmentation. And if they be not sufficiently provided, it were unreasonable to exclude them.
To the third:
It is the promise of the parliament by letter directed to the general assembly at St Andrews that course should be taken for supplying the charges of commissioners. Therefore it is confidently expected that ministers shall be eased of that burden, which is not so small as is alleged.
To the fifth:
Seeing ministers are bound to reside within their own parish, it is most just and necessary that they be provided with manse and glebe, whether there be kirklands in the parish or not, without the which they cannot reside. It is always thought reasonable that the whole heritors contribute for buying of the manse and glebe.
To the sixth, seventh and eighth:
The appointing of new manses and glebes upon the reason of decay or unprofitableness or upon other necessities cannot but be referred to the consideration of the commission because particulars are diverse and best may be examined by them.
To the ninth:
Let us insist for the obtaining of it.
To the thirteenth:
That the tithes belonging to ministers, colleges, hospitals and schools ought to be excluded from valuation because otherwise they would suffer great prejudice in their provision, both in quantity and manner of payment, and for diverse other reasons which moved his majesty and the parliament to exclude them in the former commission.
How the commission shall be bound to sit? What way shall be taken that valuations and planting of kirks be not stopped?