[1609/4/20]¹

²Act of the commissariats and jurisdiction given to archbishops and bishops

Our sovereign lord, understanding that in all well governed republics the jurisdiction civil and ecclesiastic are several, distinct and diverse jurisdictions which ought to be administrated by the persons to whom the same properly belongs, and according to his highness's most loving and princely affection borne always to the Christian reformed church within this realm, being most willing that the said church should possess and enjoy their liberties, privileges, freedom and jurisdiction granted to them by his majesty (from whom only their temporal jurisdiction does flow), and in that regard belonging to them as being one of the estates of parliament most necessary to be maintained for giving of their advice, counsel and assistance in all his majesty's great and weighty affairs, has, with express advice and consent of the estates, restored the archbishops and bishops of this realm to their former authority, dignity, prerogative, privileges and jurisdictions lawfully pertaining and shall be known to pertain to them (always flowing from his majesty as well as any other ordinary jurisdiction does), and specially to the jurisdiction of commissariats and administration of justice by their commissioners and deputes in all spiritual and ecclesiastical causes controverted between any persons dwelling within the bounds and diocese of their prelacies and bishoprics; with full power to the said archbishops, bishops and their successors in all time hereafter to nominate and create sufficient wise, discreet and learned men best acquainted with the law and practice of this realm, to serve and administrate justice in the said places of judicatory, to constitute clerks and all other under-officers so often as the same shall fall vacant by demission, decease, deprivation or otherwise, and to provide others in their places with as great freedom and liberty as any archbishops or bishops in this realm formerly have done, which commissaries to be nominated and treated by them shall judge and decide in all causes belonging to their judicatory and wherein the commissaries presently in office are in use to decide, keeping the same style and form which is presently observed and that manner of proceeding which shall be prescribed and enjoined to them by special injunctions without any alteration of the present laws or introduction of new and uncouth practices upon the subjects and lieges, and shall have power of confirmation of testaments, every one of them within their own bounds, the quots thereof to be paid to the archbishops, bishops, their chamberlains, factors and under-receivers appointed by them; for the better effectuating whereof, his majesty and estates of parliament ordain letters of horning to be given and granted by the lords of session in that same very sort that the commissaries present have it for execution of all their sentences and decreets which shall happen to be pronounced by them, and compelling of persons to enter and confirm the testaments of their defuncts in the very same manner that formerly has been done. And for maintaining of all things in better order and the restraining of unlawful deforcements too frequently practised within this realm, to the high dishonour of God and slander of true religion, his majesty, with advice and consent foresaid, has statute and ordained that in the burgh of Edinburgh there shall be resident always four commissaries, two to be nominated and appointed by the archbishop of St Andrews and two by the archbishop of Glasgow, who shall have the only power to decide in all causes of divorcement, as likewise shall have power of reduction of all decreets pronounced by any other commissaries to the hurt and prejudice of any of the lieges, before whom it shall be only lawful to intend and pursue reductions of inferior commissaries, their sentences and decreets in the first instance. And in case the said commissaries to be appointed by the archbishops of St Andrews and Glasgow as said is perform not their duty, the lords of session shall have power to try, examine and determine in the same, and shall judge upon all decreets and sentences alleged to be wrongfully pronounced by them, and that because they are his majesty's great consistory, to whom his highness, with advice of the said estates, gives and grants a high and supreme commission for all such causes to judge and determine of them in such case; and declares that it shall be lawful to the said lords of council and session to advocate causes to themselves from any of the commissaries upon just and lawful complaints made to them by any of the subjects and not otherwise, providing always that the said session shall ever be ready to give an account to his majesty that their advocations have been grounded upon probable and lawful grounds for the well of the subjects. And that this foresaid act may be put in present effect, his majesty, with advice foresaid, declares all former erections of commissariats to be suppressed and extinct from thenceforth and forever all constitutions [that]³ have been in former time of the same, in whatsoever part of the realm the same have been erected and by whatsoever manner the same have proceeded, acts of parliament, secret council and others made relating thereto; and in like manner discharges and annuls all presentations, gifts or dispositions made by his highness to the commissaries present or to any other concerning the said commissariats and all rights acquired by them by decease, demission or howsoever the same has fallen vacant, and all gifts and dispositions made in favour of their clerks and members of court by whatsoever manner or order the same has proceeded, with this provision always: that the commissaries presently in office, with clerks and other members of court who shall be authorised with testimonial of the lords of session of their sufficiency and qualification to their several places and offices, shall possess and enjoy the same, they always receiving a new presentation and gift of their offices from the archbishops and bishops of their diocese where they serve between now and 1 December next; otherwise if in case the said commissaries and other members of court do not produce the foresaid testimonial from the lords of session as said is, it shall be lawful to the archbishops and bishops to provide other sufficient persons to the said places, the restitution of the said jurisdiction always to be with express reservation of his highness and his successors, their prerogative and supremacy in all causes, ecclesiastical and civil, within this realm. Providing always that this present act shall in no way be hurtful nor prejudicial to the heritable right of the commissariat within the bounds of Argyll pertaining to Archibald [Campbell], now earl of Argyll, but the same to stand in the same force, strength and effect as it was before this present act and notwithstanding thereof or any clause therein contained as by law.