[1581/10/84]¹

Ratification granted to the lords of session of their commission for taking order with the commissaries

Our sovereign lord, with advice of the three estates of this present parliament, has ratified, approved and confirmed, as they, by the tenor hereof, ratify, affirm and approve the commission granted and given to the chancellor, president and lords of session concerning the jurisdiction of the commissaries of this realm in all points, clauses and articles contained therein, after the form and tenor of the same, of the which the tenor follows:

James, by the grace of God, king of Scots, gives greetings to all his good men whom this letter reaches. Let it be known that, when [Mary], our dearest mother learned, after the restoration of religion, officialates and ecclesiastical jurisdictions in this realm of ours, that no way was open to her subjects to approach ordinary judges who could confirm charters and take cognizance in ecclesiastical cases, then, by the decision of herself and of the lords of the privy council, in place of the officialates which had been abolished, substituted in their place the jurisdictions of commissaries in this realm. This was of signal convenience and benefit to the subjects, yet, in the initial elevation of the said commissaries, certain men who were unsuited to and useless for these offices, perverted these high offices by fraud and cunning, and acquired the offices of clerks, with the authority to confirm major charters, which were reserved to the commissaries of Edinburgh, with exemption and immunity from rendering account of what proportion from the charters they had assigned in supplement of their salaries, to the lords of council. As a result, an arrangement clearly instituted by her highness was frustrated, there was a deprivation of justice, and the lords of session were frustrated of their incomes. For that reason, in December 1566 [Henry Stewart, lord Darnley], our dearest father, and mother, after consulting the lords of their privy council, in order to avoid these and other similar disasters, granted a new commission, to their loyal councillors the chancellor, president, and to other senators of the college of justice, that, whenever any commissary, his clerk, or another officer of a court died, or happened to vacate office for another reason, they propose and present in their place men fit and suitable for these offices, so our parents and their successors could make appointments to them, and should grant commissions for that purpose to men so nominated and presented by that law, while commissions or donations of the said offices impetrated or requested from [the office-holders'] successors before our session were to be ineffective, invalid and of no weight, also giving power to the said chancellor, president and the rest of the senators of abolishing, cancelling and annulling any privileges and immunities of such offices which at first were instituted in the said commissions whatsoever so to coerce and bring to order all commissaries and subjects of ours deferring to their jurisdiction as shall seem appropriate to the said chancellor, president and their colleagues, for the utility, peace and tranquillity of the subjects, just as is abundantly clear from the said commission of the date which we have mentioned above. As a result, there follows an outstanding benefit for the subjects, a widening of justice, and finally an increase for the lords of council, a singular appurtenance and income, thereby increasing some of their payments. So far, however, this ordinance labours under flaws and mistakes, which it is worthwhile to remedy and amend, chiefly because at the beginning of the said elevation and even thereafter some people acquired offices of commissaries, clerks and other minor officials of that kind, and pursued these offices for the duration of the entire span of their lives, not only for themselves but also after their death for their children and friends, to the extent that they think they have them in perpetuity and hereditarily and cannot be legally expelled or removed. From this dishonesty the most serious losses and immoderate corruptions have sprung. Another flaw and inconvenience in this is that some of the commissaries have obtained such wide commissions of their jurisdiction - with widely scattered boundaries embracing various sheriffdoms - that neither they themselves are able to keep up with and on top of their offices, nor are our subjects able to pursue justice without very serious effort and expense, and the dangers of crossing firths, rivers and estuaries, especially in comparatively minor cases, with a judge being such a long journey away from their homes, despite the fact that each province or sheriffdom has its own sheriff who can make a decision on civil disputes. Thus it is fair and in the people's interest that they should have their own commissary and ecclesiastical judge in their town, primarily and chiefly provided that he is suitable to hear ecclesiastical cases. On this account we, by the decision of the lords of our privy council not only approve, ratify and confirm the former commission granted by our dearest parents to the senators of the college of justice, and equally everything which flows therefrom or could follow afterwards, but also, further and afresh, we give, delegate and grant to the foresaid chancellor, president and their colleagues, that is all who now constitute the senate, or may do so in future, our full and complete power, authority and special mandate to summon and call to them all the commissaries of our realm, their clerks, and other minor officials of the judiciary, so that they may bring and display the provisions and donations of their offices to be seen by the senate and explored. If they have been granted either to them themselves for the entire course of their lives, or to their children, friends or others to succeed them, forthwith by decision of the said senate they are to be abolished, revoked and nullified. As a result, those who afterwards seek that kind of office shall acquire it and perform it only for as long as the senate wills it and considers them suitable for their offices and obedient to the laws and injunctions, and certainly not for any other reason. Likewise we wish, permit and instruct the said senators diligently to study and investigate the jurisdictions of the commissaries of this realm, and reduce, expand, change and separate their limits and boundaries, as shall seem to be in the interest of the people, and especially that they elevate and institute new commissaries in the towns of each province, sheriffdom or diocese, primarily and chiefly, at least those which they see to be fit and suitable. They should set out the limits of each jurisdiction and measure it up with the boundaries of the sheriffdom, or with other districts and areas for its arbitrament, as the nature of the inhabitants and of the country demands and suggests. In this matter we above all order and instruct that they take no account of commissions formerly granted by us or our predecessors, nor indeed should old rites and customs, or longstanding privileges of places and towns, remain, and they should observe all of what we, by the wording of the present document, remove, revoke and extinguish. We give clear power to the chancellor, president and their colleagues to overturn, change and annul, urging and instructing them to give concentrated and serious care to all the things we have said above, especially indeed that all commissaries, their clerks and other junior officials should annually, in the committees and conventions in Edinburgh for the rendering of accounts, be tested and examined regarding the administration of their offices, and complaints and reports regarding them should be heard and decided upon, and crimes of omission and commission should be censured and punished, whether by resignation from their offices or by the imposition of a penalty, at the decision of the senate. We instruct the senate that it should revoke, overturn and denounce as null and void in perpetuity all commissions and grantings of offices in commission if any have been granted for the span of a whole life, or for the benefit of descendants or substitutes, or by any other means other than by request and presentation on the part of the lords of council. Accordingly all the commissaries and their clerks and junior officials should seek new appointments and commissions, lasting as long as the senate wills and approves their administration. Finally the senate should diminish, extend, change and fix the boundaries of jurisdictions and the actual seats of commissaries as shall seem to be of use and expedient in light of the decision of the lords of council, for the convenience of the people and the preservation of justice in this realm. Accordingly they should be willing to render account of these things to us. We instruct that this be done and promise that this commission of ours granted to the college of justice is to be approved and confirmed and ratified by the authority of our next parliament. Given under testimony of our great seal at Dalkeith on 12 July in the year of the Lord 1581 and in the fourteenth year of our reign.