[1621/6/133]¹

Ratification in favour of the clerks of session

Our sovereign lord and estates of parliament, understanding that there is an act and ordinance made by the lords of council and session concerning the number of the clerks who shall be hereafter presented and admitted to have place to serve in session as deputes to the clerks of register in that court, whereby the number is restrained to three clerks and declared that it shall not be lawful to the clerk register present, nor his successors in that office in any time to come, to present any more clerks depute to them in session over the number of three, nor to adjoin any fellow to any of the three without the express advice and consent of that clerk to whom the other is intended to be joined, and no otherwise, as the act made thereupon more largely purports. Which act his majesty and estates now, after mature deliberation, considering the same to tend to the good of his majesty's subjects and credit of that court, decree and ordain to be of full force and effect and to have the strength and authority of an act and statute of parliament and to be observed without alteration by the senators of the college of justice and by the clerk register present and his successors in that office according to the tenor of the said act in all time coming, which his majesty and estates, by the tenor hereof, ratify, approve and perpetually confirm in all points for now and ever, together with the gifts and provisions of the three offices granted to the clerks presently serving in session and to their fellows jointly and severally admitted in the places with them after the form and tenor of the several gifts completed to them and longest liver of the two persons provided thereby, in all points, and which are held as herein word by word inserted and declared to be good, valid and effectual securities to the persons provided and every one of them for possessing of the said offices and all the privileges and duties belonging thereto during the lifetime of the longer liver of them and as are more largely expressed in the said provisions; and ordain the tenor of the said act to be engrossed in this present statute as the same is conceived, that none pretend ignorance thereof in any time to come, whereof the tenor follows:

The lords of council, being now mindful that at the earnest desire of the three principal clerks of session and with their express consent they have lately received in each one of the three offices and places possessed by them a fellow clerk provided jointly and severally with each principal clerk who formerly served in the office alone, and lest by this manner of proceeding any misconstruction should thereby arise as if each one of the said three offices were dismembered and that the two provided to each place were admitted to two several and distinct places or the number of the clerks thereby increased, which is in no way intended, but by the contrary it is the express will of the said lords, likewise they hereby find and declare that their authorising and providing of the provision given to two persons admitted in each one of the said three offices tends only to establish the right and security of the indivisible place and office in the person of two provided and the longest liver of these two, to the effect the one in absence of the other may exercise the function of the offices and that the survivor may, after the other's decease, possess and enjoy the same, whole benefit and privilege thereof as amply as any clerk of session has done of before and according to the tenor of the gifts granted thereupon in all points, it being always hereby provided that the number of the offices in all shall not increase over three. Likewise it is declared that it shall not be permitted to the clerk register present or his successors in any time to come to join any person with the clerks serving in any of the said three offices, or to provide two persons together to one place, except by the advice and consent and at the desire of the principal clerk serving for the time in the place and no otherwise, seeing this late conjunction of the aforesaid two persons in one place, which is now approved, proceeds and has taken effect at the earnest mediation of the three principal clerks serving in the said offices and is procured by their travails and warranted with their express consent, which otherwise without their consent could never have been found valid nor lawful. And whereto the lords are the more moved to condescend at this time, both in regard of the experience of the long service dutifully discharged by the said three principal clerks, whose greater age now requires some supply and release in the burdens of their calling, and also in respect of the hopes conceived from past proof of the still continuing of the same sufficiency in the persons adjoined, which has previously been apparent in themselves and in their antecessors of good reputation; and therefore the said lords, having at length well considered that the plurality of clerks, if the same shall exceed and increase over the number of three, cannot escape but to prove more chargeable to the subjects and to breed confusion and hindrance to the lords in examining and deciding of matters moved before them, after mature deliberation and with the express advice of Sir George Hay of Kinfauns, clerk register, who tending the public well (which is the aim and end of this ordinance) more than his own private interest, has willingly assented thereto, find, decree and declare that they will not admit nor receive in any time coming any more principal clerks to serve in session over the number of three, which number they find and declare to be sufficient for the dispatch of all affairs belonging to that office with least disorder and greatest ease and benefit of his majesty's subjects. And consequently, with consent aforesaid, find and declare that it shall not be permitted to the clerk register present, nor his successors to that office hereafter, to present to the said lords by gift or other grant any more depute clerks to serve in session, council or parliament except the number of three only, namely: one for each one of the three offices and no more. And this above-written ordinance the lords find and declare that they will observe in all time to come as a statute and inviolable decreet, which they ordain to be enacted in their register and to the which they humbly entreat his majesty to interpose his authority and approbation, and that his majesty might be pleased to give warrant for confirmation of the same in this ensuing parliament, being a constitution tending materially to the benefit of his majesty's subjects and for the honour and credit of this court. At Edinburgh, 3 July 1621. It is thus subscribed: Al[exander Seton, earl of Dunfermline], chancellor, in presence of the lords, [Thomas Hamilton, earl of] Melrose, [John Spottiswood, archbishop of] St Andrews, [John Maitland, viscount of] Lauderdale, [David Carnegie, lord] Carnegie [of Kinnaird], [John Erskine, lord] Erskine, George Hay, W[illiam] Oliphant [of Newton], [Sir William Livingstone of] Kilsyth, A[lexander] Elphinstone, Sir Robert Melville [of Burntisland], R[ichard] Cockburn [of Clerkington], L. Craig, J[ohn] Cockburn [of Ormiston], S. A. Hamilton, George Erskine, J. Wemyss, Sir J[ohn] Skene [of Curriehill], A. Hay, with the declaration that if any clerk depute be promised to any place in session or council, that he shall not execute that office any more.