The Records of the Parliaments of Scotland to 1707, K.M. Brown et al eds (St Andrews, 2007-2024), date accessed: 29 March 2024
[1705/6/119]1
Procedure
Prayers said. Rolls called.
Procedure: minutes read
Minuts 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 intire to be discussed summarly, which remit is as follows.
Remit to the session of Sir Andrew Kennedy's cause against Sir Alexander Cumming of Culter
Her majesties' high commissioner and the estates of parliament, haveing heard the petition of Sir Andrew Kennedy of Clowburn, conservator etc., humbly shewing unto 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 priviledges of this kingdom in the Netherlands for all the dayes of his natural life, of which commission and office the petitioner has been in possession more than fifeteen 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 ad vitam aut culpam but also fully secured both by the law and the Claim of Right, by which the office of all judges ought to be ad vitam aut culpam, and the disposeing of all forfeitures, before sentence, is declared to be contrary to law. Notwithstanding whereof, the petitioner is of late surprized by a commission alleadged to be granted by her majesty of his said place and office in favors of Sir Alexander Cumming of Culter, which being in law presumed to be obtained periculo impetrantis and not to be constructed2 her majesties' 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 likewayes, 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 previous sentence, and doth evidently tend to his enorm prejudice and lesion. For which cause, so soon as the petitioner heard of Sir Alexander's said practice, he immediatly intented a declarator of his right dureing 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 benefite of his said pretended commission. But Sir Alexander not content to prosecute as the law allows and to attend a legal discussion and decision, hath not only past his gift per saltum under the great seal but also presented the same to the royal burrows in order to be presently put in possession, and no doubt will pursue the same method with the States General and toun of Campvere, who are concerned in the said office, which practises do not only tend to dispossess the petitioner summarly 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 forreign 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, tho he humbly presumes to say that they may deserve the consideration of the honourable estates of parliament on severall accounts. But seeing that the petitioner is legally provided by his gift ad vitam, 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 favors be first declared to be lost, amitted and forefeited, he must on these considerations most humbly apply to her majesties' high commissioner and the honourable estates of parliament for their justice and protection against abuses not otherwayes to be prevented. For seeing Sir Alexander hath already, without attending any legal discussion or warrand, as said is, offered to take posesssion 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 toun of Campvere, not only to disturb the petitioner's possession but likewayes to the prejudice of the staple trade in these parts, the petitioner doth, with all submission, presume that his grace and their lordships will take the case into their consideration and, therefore, humbly craveing his grace and the honourable estates of parliament to take the premisses to their consideration and in regaird of the petitioners gift and commission, standing and cled 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 hath no pretence either to right or to possession here or elsewhere, specially in these forreign parts more than if his said second gift had never been granted and that all objections are still intire to the petitioner against the said second gift as accords, as the said petition bears. And her majesties' commissioner and the said estates of parliament, haveing 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 abovementioned intire to be summarly discussed before the lords of council and session without abideing the course of the roll. Extract.
- NAS. PA2/39, f.42-43.
- 'construed' in APS.
- 'right' in APS.