Prayers said. Rolls called.

Procedure: minutes read

Minutes of the last sederunt read.

Petition: read and remit to session

Petition for Sir Andrew Kennedy against Sir Alexander Cumming of Culter, read and remitted to the lords of session to determine the point of right and possession of the petitioner's office as entire to be discussed summarily, which remit is as follows.

Remit to the session of Sir Andrew Kennedy's cause against Sir Alexander Cumming of Culter

Her majesty's high commissioner and the estates of parliament, having heard the petition of Sir Andrew Kennedy of Cloburn, conservator etc., humbly showing to them that it pleased the late King William, of ever glorious memory, very soon after the late happy revolution, to grant a commission to the petitioner to be conservator of the privileges of this kingdom in the Netherlands for all the days of his natural life, of which commission and office the petitioner has been in possession more than fifteen years and did justly judge himself secured therein as his property unless he should forfeit it by his malversations, and that the same were declared against him, it being not only the plain import of his commission for life without offence, but also fully secured both by the law and the Claim of Right, by which the office of all judges ought to be for life without offence, and the disposing of all forfeitures, before sentence, is declared to be contrary to law. Notwithstanding whereof, the petitioner is of late surprised by a commission alleged to be granted by her majesty of his said place and office in favour of Sir Alexander Cumming of Culter, which being in law presumed to be obtained at the risk of the impetrator and not to be constructed2 her majesty's deed, who is far from all injustice, the petitioner must with all submission represent that this second gift is unprecedented, and may be of ill consequence. And likewise, that therein the petitioner is not only concluded guilty without any due sentence, but also as he is informed, deprived of both his right and possession which could not legally be done without a prior sentence, and does evidently tend to his enormous prejudice and damage. For which cause, so soon as the petitioner heard of Sir Alexander's said practice, he immediately intended a declarator of his right during life and reduction and improbation of Sir Alexander's said gift, before the lords of session, the most competent judges in this cause, wherein he called the said Sir Alexander in order to a legal and free discussion, pretending to no more but that, if innocent as the petitioner hopes he shall be found, he might be secured from Sir Alexander's molestations and that, on the other hand if found guilty, Sir Alexander might then and not before have the benefit of his said pretended commission. But Sir Alexander not content to prosecute as the law allows and to attend a legal discussion and decision, has not only passed his gift all at once under the great seal but also presented the same to the royal burghs in order to be presently put in possession, and no doubt will pursue the same method with the States General and town of Campvere, who are concerned in the said office, which practises do not only tend to dispossess the petitioner summarily against law and his foresaid right, but must also be the occasion of great confusion to the prejudice of trade both here and in these foreign parts, where the said office is appointed for it's due regulation. The petitioner shall not here further reflect upon Sir Alexander's foresaid gift and commission, and what extraordinary clauses may be found therein, though he humbly presumes to say that they may deserve the consideration of the honourable estates of parliament on several accounts. But seeing that the petitioner is legally provided by his gift for life, as said is, and that his office so secured is indeed his property and that he can neither be deprived thereof nor in the least molested in his possession save by course of law, which he never declined, and that by our law it is certain that any such second gift can take no effect whatsoever unless the former gift in the petitioner's favour be first declared to be lost, amitted and forfeited, he must on these considerations most humbly apply to her majesty's high commissioner and the honourable estates of parliament for their justice and protection against abuses not otherwise to be prevented. For seeing Sir Alexander has already, without attending any legal discussion or warrant, as said is, offered to take possession here to the petitioner's prejudice manifestly against law and that the petitioner cannot expect but that he will follow the same practice with the States General and town of Campvere, not only to disturb the petitioner's possession but likewise to the prejudice of the staple trade in these parts, the petitioner does, with all submission, presume that his grace and their lordships will take the case into their consideration and, therefore, humbly craving his grace and the honourable estates of parliament to take this matter to their consideration and in regard of the petitioner's gift and commission, standing and provided with long possession, as said is, and that the petitioner has also raised a declarator of his right and reduction and improbation of Sir Alexander's gift wherein he is called to ordain that the petitioner's gift3 and possession continue unmolested or undisturbed in any sort, except in due course of law, and that while the petitioner's foresaid gift is standing and not declared to be lost or forfeited, Sir Alexander has no pretence either to right or to possession here or elsewhere, specially in these foreign parts more than if his said second gift had never been granted and that all objections are still entire to the petitioner against the said second gift as appropriate, as the said petition bears. And her majesty's commissioner and the said estates of parliament, having this day fully considered the said petition and being therewith well and ripely advised, they remitted and do hereby remit the right and possession as to the petitioner's office above-mentioned entire to be summarily discussed before the lords of council and session without abiding the course of the roll. Extract.

  1. NAS. PA2/39, f.42-43.
  2. 'construed' in APS.
  3. 'right' in APS.