Historical Collections of Private Passages of State: Volume 3, 1639-40. Originally published by D Browne, London, 1721.
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For the Right Honourable Philip Earl of Pembroke and Montgomery, Lord Chamberlain of his Majesty's Houshold.
My good Lord,
'I Have large encouragement to use freedom, both from your own favours to me, and my affection to your Lordship, and so may expostulate with you, for withdrawing your wonted (and even lately expressed) respects at the Camp to this Nation. You found we had reason for our lawful Defence, and that we had loyal Hearts to our Prince, and Justice in our Desires; which moved you to plead for us, and so engaged the affection of many to you. But sithence, when my Lord Traquair made his Relation, that moved hard Conclusions against us, not requiring so much as that it should not obtain Truth to the prejudice of a noble Nation, till we were heard; and agreeing that an Army should be levied, and lending Monies, hath much grieved us, to be disappointed of one we so much trusted. I have therefore been bold to entreat that we may keep better Correspondency, or else by mistake we may be brought again to begin a Mischief that will not end in our days. As we have formerly declined it, so shall it not be our fault. And it lies in your Lordship, and in other great Persons, to prevent these Evils. You have lived in all great Ease, Peace, and Plenty, for many years, as any Nation in the World; and if you can like to interrupt your own Happiness for the pleasure of some Prelates, who will share little with the Hardships and Dangers that will be endured, you are not well advised. The Earl of Dunfermling and Lord London are sent with a full information of our Business. They will wait upon your Lordship, and expect your wonted Assistance. They all (as much as may be) decline War, except you will now needs have it. We hope your Lordship and others will make use of these Reasons for the right end, which will fix a great deal of Obligation from both Nations on you, and shall infinitely increase my respects, desiring to continue
My good Lord,
'The Civilities and good Respects which I placed upon you, at the time of my being in the Camp, you stile Encouragements, and insinuate them as Reasons why you may expostulate with me. Your Premises I allow you, but your Inference I return you again, as fuller of Sophistry and mean Designs, than of Truth or Reason.
'First, I never allowed your Defence law fully undertaken, by other Arms than by Petitions and Prayers unto your Master. I never found Loyalty in your Covenant, nor Duty in your taking up Arms. I never affirmed the Justice of your Cause; neither did I consider so much the Merit thereof, as your unwarrantable and tumultuous disobedience therein unto the King, with the Vexation and Disturbance it brought upon the Nobility of this Kingdom. Neither was I in all this Commotion your Advocate for other reasons, than suffering my self to become a Mediator to his Majesty for your Peace and Forgiveness, moved thereunto by your frequent Protestations of paying all Duty and Loyalty to your Master's Commands.
'If from hence you haply gain'd from me an easier credulity than your mask'd Designs deserved at my hands, I know not why you should obtrude on me an Alteration of my Opinion, or a withdrawing of my (but conditional) Respects from you. Thus far an Answer to what concerns me.
'How cometh it to pass that you should upbraid us, or expect from us, that we should not give credit to my Lord Traquair's Relation; that we did not mediate with the King to change his Resolution of sending forth an Army; and that we did not deny the King Loans of Money for his Service?
'My Lord, these Enforcements perhaps as little become you, as it is certainly unlawful and undutiful in the Subjects of England to dispute it with their King. You may pretend Religion to be the sole cause of your Grievance; but we believe it a woful Religion here, that hath thus divested it self of all moral Duty and Civility. Nay, you go further, you threaten and fear us with a Mischief that will not end in our days; and boldly make it your own Act, to have declined it hitherto, without obligation to the King's Mercy at all. You tell us of Plenty, and Ease, and Happiness for many years enjoyed, and wonder we should expose all those to hazard for the pleasure of some few Prelates.
'My Lord, these are Arguments for common People and Men of broken Fortunes to feed upon; but such Suggestions will not find nor make a Party here. Perhaps it may blow them into a Flame, whose Zeal already hath burnt up their Duty and conscionable Allegiance unto their Master.
'To be short, as I never had a correspondency of Business with your Lordship, so your Letters have assured me it is dangerous to begin it. Yet for the Peace of both the Churches and Kingdoms, I will adventure to give you this intelligence, That we have not (in our Council here) proceeded against you without deliberation, a good Conscience, and a just sense of Honour. Neither shall I, or any of us, be entreated or feared by you, or any of you, for contributing our Assents or Fortunes thereunto, but as our Master shall command us.
'Lastly, Know you, my Lord of Rothes, that the return of my old Friendship to you is to be expected, when I shall hear of your Renovation. Be simple my Lord Rothes, and not a Covenanter, and I shall be the same.
This day Alderman Garroway, Lord-Mayor of London, together with both the Sheriffs and Recorder, attended at the Council-Board, his Majesty being present in Council. It was demanded of them, whether the City desired to proceed, and furnish out a Ship of their own for his Majesty's Service, in defence of the Realm, in such manner and equipage as by his Majesty's Writ directed to them in that behalf was required? or whether they rather desired to levy, and pay unto the Treasurer of the Navy, the Sum required by the Instructions sent them with the said Writ? But the Lord-Mayor and Sheriffs humbly prayed, that his Majesty would be pleased to cause a Ship of his own to be provided and employed for the said Service. Which favour desired, his Majesty was pleased to grant; and they undertook, that with all speed they would levy and pay in the Money to the Treasurer of the Navy, required by the said Writ.
Sir John Finch Knight, Lord Keeper of the Great Seal of England, his Speech on the Delivery of his Charge to all the Judges of the Kingdom, in the Star-Chamber, Feb. 13. 1639. by command from his Majesty.
My Lords the Judges,
'The Term is now done, the House of Justice is broken up, yet Justice goes not from us; for such is the Wisdom and Goodness of his Majesty, that all his Subjects may have Justice administer'd unto them in certainty, and with ease and equality. In Term-time they know where to find Justice; in the Circuits Justice findeth out them.
'Your Lordships may know the great Trust, Power and Authority that is committed unto you; how the ancient and excellent Institution of Justice in Eyre is transmigrated into you; and it is a thing will well become your Lordships to uphold the Dignity of your Places, and to preserve that due respect and reverence that is owing unto you by virtue of your Places. It is Stoutness and Courage, and Magnanimity, that becomes a Magistrate; nay, should I say Severity, I should agree with the saying of the Orator.
'There are some that affect Popularity, diving into the Peoples Hearts with kisses, offerings, and fawnings. This becomes no subordinate Magistrate. It is your part, my Lords, to break the Insolencies of such—before it approach too near the Royal Throne. And you cannot too much uphold that Reverence and Respect that is owing to your Places upon the Bench; when you shall give an account of such as these that misbehave themselves, you, my Lords the Judges, shall quickly see the Commission shall not be troubled with them. The Officers, and all other Ministers of Justice, are to attend you to this like purpose, to receive Information from you. You shall do well to look to them, that they do not oppress the People by unjust exaction and extortion; let them be careful to look to the execution of Justice, for Execution is the Life of the Law; for whosoever by wilfulness or negligence suffereth not the Law to be put in execution, doth as much as in him lieth wound the Law in the Life thereof. Sometimes Sheriffs and Under-Sheriffs can hardly be got to execute any Process at all, or Extents, or Cap. Vtlagatum. They will look through their Fingers, and see when and whom they please, sometime for reward, partiality, and affection, or fear of offending Great Ones, or offending a Multitude. For this they have no Plea; for in Law I am sure it was never known, that it was admitted in Court of Justice for a good Return, that a Sheriff could not execute a Writ, he having Posse Comitatus at his Command to assist him, to the end that the Law may not be fruitless, and like a dead Letter, but that vigor may be given unto it.
'While I am speaking of this, I cannot forget to put you in mind of one Particular at least, if I may call it a Particular that doth concern the general Safety and Preservation of the whole Kingdom. His Majesty ever since his happy access to this Crown, hath had a vigilant Eye of our Neighbours Estates, and taken into his Princely Consideration, out of the affection and love to his People, and tender care of their Preservation, and the Safety of this Kingdom, how active the times are, what preparation is made round about us; what endeavours there are to encrease their Naval Powers in other Nations. It is known well, that the Right of the Dominion of the Narrow-Seas belongs unto the King; and it hath been his Majesty's gracious Wisdom and Providence, and Care over us, that these Storms have been prevented, that perhaps had fallen upon us before we could have discerned them. The King hath many Eyes, many Ears, and many Hands; and it is impossible for every Man to attain to that knowledge of Foreign States that he hath. And I will be bold to say, it is a base and unworthy part to suffer it to enter into the heart of any Man, that we the Subjects of England, that have so just, gracious, and pious a King, to imagine, that unless urgent Necessity did require, that his Majesty would charge himself and his Subjects without cause. All the world knoweth he reapeth no benefit by it, and certainly it is a malignant humour to think the contrary. The Regality of it hath been already determined, upon as great, as solid and weighty Debate as ever was in any Cause in Westminster-Hall: It was his Majesty's goodness to have it so. And yet I know not how it comes about, I hope it is out of milapprehension, or iaise incimation put into the hearts of his People, that there is not alacrity and chearfulness given to the obedience of his Majesty's Writs for Shipmoney, that his affection and care of his People doth require. God forbid we should stay for provision of Naval Power, till our Enemies be floating upon us. Let them look to their Duties, I doubt not your Lordships will look to see that there be obedience given, and that those Officers that do neglect their Duties may be brought to account, that they may know what the displeasure is to disobey his Majesty's Commands.
'His Majesty (as all that know him) is the great example of Piety, and of one that daily frequents the House of God, as any Prince in the World; he doth instruct his own People his own way and commands your care to put that Law in execution that must bring Men to God's House; and when they are there they shall learn to obey the Law for Conscience-sake, and not for by-respects. You know well that we have two kinds of Opposers of Religion, as it standeth, and against them it is fit you bend your Forces and your Authority. And certainly, when we do consider that for these eighty years and upwards, we have enjoyed such Plenty and Peace as no Nation hath had the like; what can we better attribute it unto, than the flourishing of the Gospel among us? And if we shall neglect that great Blessing, all other Blessings will quickly turn into Curses.
'The Popish Recusants begin to increase, his Majesty taketh notice of it, he doubteth that there hath not that particular care been taken in looking to them in all places of the Kingdom as is fit; your Lordships attend Civil Causes more than that; he commends it to your care, that if it be so now, it be so no more. The Book of Common-Prayer setteth forth the Rights and Ceremonies, establishing the Doctrine of the Church of England, to which no just exception can be taken; for God loveth not to have his House empty or waste. Some, out of what humour I know not, will scarce admit of any Church at all. I wonder under what show of Religion they can shew themselves, when this Book was penned by those that shed their Blood, and sealed it with their Lives.
'My Lords, in the next place his Majesty hath commanded me to put you in mind of the great abuse that is in this Kingdom, by the swarming of Rogues, that hath been so often commended unto you. Your Lordships shall do well to take course for the suppressing and preventing thereof; and that Men of body and mind may be chosen Constables to execute their places. One great cause of their increase is, that the Houses of Correction, which is the place of their Retreat, are no better look'd unto. Your Lordships shall do a great service to the Common-wealth, to take care that there be stricter course taken of the Houses of Correction, that they may be placed near unto the Goal.
'I shall only conclude with one thing, which is a thing that hath been by the Lords of this Court commended to your care, upon a Cause that hath been here heard; The Court for Sheriffs of Counties; it is not at their Will and Pleasure, or for their own Vanity and Ostentation that they are to conduct you, but it is out of their Duty; and when the Discretion and generous Disposition of any shall not teach them how to do it, it is fit for you to call them to account.
'Justices of the Peace; you shall have of them that will the first day attend you for an hour or two, perhaps to save a Fine, perhaps to shew their Country they are in Commission of the Peace; Emptiness becomes not the Seat of Justice, therefore hold them to their Duty, to attend you all the time of the Assizes, and not to depart without your License.
'The King our Master doth as well know Men as any Prince in the World, but it is impossible for him to know all; you are the great Surveyors of the Kingdom, for this purpose it is that all Officers and Ministers of Justice are commanded to attend you, to inform you of such as you should have knowledge of, that you may inform his Majesty of them. I have observed (while I had the Honour to be Chief Justice of the Common-Pleas) that few gave their Attendance; what humour they are of that think themselves too good to serve the King I know not, but let them know that it is in no Man's choice whether he will serve the King in the Ministry of Justice, or no. Those that are backward, or have not taken it, give up the Names of them, that they may see what punishment they shall undergo.
'There are some other Justices of Peace that are put in Commission, to injure their Neighbours, and to domineer over them, and to carry things with a Faction. But upon your intimation of such Persons, the Commission shall be eased of them also.
Warrant for a Commission for the Earl of Northumberland to be Lord Admiral, and Captain General of the King's Army.
Two Duplicates of a Commission, appointing Algernoon Earl of Northumberland, Lord High Admiral of England, Captain General of his Majesty's Army to be raised in England and Wales, and of Men to be levied there, or to be joined to or with them. And he is to employ and dispose the Army for Defences, or otherwise, as are or shall be directed by his Majesty's Instructions, &c.
The King's Majesty reposing special Trust and Confidence in the approved Wisdom, Fidelity, Valour, and great Abilities of Algernon Earl of Northumberland, did by his Letters Patents grant a Commission to the said Algernon Earl of Northumberland, Lord High Admiral of England, to be Captain General of his Army, intended to be forthwith raised, and of all other Forces that should be raised in England and Wales, joined, or to be joined with them, to resist and withstand all Invasions, Tumults, Seditions, Conspiracies, or Attempts that may happen within England or Wales, to be made against the King's Person, Crown and Dignity. And also to lead the said Army into the Kingdom of Scotland, there to invade, assault, repel, resist, fight with, subdue, stay, or kill, all, every, or any Enemies or Rebels against the King, of what Nation soever, that in Scotland, or any part thereof, shall make any Insurrection, Sedition, Tumult, or Conspiracy whatsoever, against the King, his Crown and Dignity. And the said Army to govern and conduct, against all and singular Enemies, Rebels, Traytors, and all other attempting any thing against the King, within either of the said Kingdoms; and with the said Enemies, Rebels, Traytors, &c. to fight, and them to invade, resist, repress, pursue and follow, and to subdue, slay, and kill, and to do all other acts and things which shall be in his discretion requisite, for Government of the said Army, and for the suppressing and subduing of the said Rebels and Traytors, &c. and to exercise upon them martial Law, according to his discretion, as Captain General; and to put execution of Death, or otherwise to punish such, or so many of them, as he shall think meet by his discretion; and to tender Mercy and Pardon to all such Enemies, &c. in either of the said Kingdoms, as shall submit and desire to be received to Mercy. And the King, by the said Commission, doth promise that such Persons shall accordingly enjoy his Grace, Mercy, and Pardon: And in case of Invasion of Enemies, Insurrections, &c. in any of the said Kingdoms, that the said Captain General do resist and repress the same by Battel, or other kind of Force; giving him Power to grant Warrants and Commissions to Lieutenants, and Deputy Lieutenants, to raise such Horse and Foot to join with the Army, as he in his discretion shall think fit. And for the encouragement of fit and deserving Persons, the King, by the said Letters Patents, did give full Power and Authority to make Knights, and reward with the Honour of Knighthood, such as in his discretion shall deserve the same in the said Service, and to assign them Arms, and Ensigns of Arms, as he shall think meet, and as to the Estate of Captain General appertaineth; giving him Power to command all Garisons, Forts, and Castles in England and Scotland, and to place or displace any Captain or other Officer, as he shall see cause. And lastly, The King by the said Letters Patents, doth command all Lieutenants of Counties, Dukes, Marquesses, Earls, Viscounts, Barons, Baronets, Sheriffs, and all other Officers and Subjects of what degree soever, that they, with their Power and Servants, from time to time, as they shall be commanded by the Captain General of the Army, to be Attendant, Aiding and assisting in the due execution thereof, as they shall answer it at their Peril; and the said Army to be governed according to the said Commission, or by such Instructions as the King hath delivered under his Sign Manual, or shall be hereafter directed under the said Sign Manual, Signet, Privy-Seal, or Great Seal.
Afterwards a Commission was granted to Thomas Lord Viscount Wentworth, Lord Lieutenant of Ireland, to be Lientenant General to the Earl of Northumberland; who by reason of the Earl of Northumberland's sickness at that time, had the sole Conduct of the Army till the Fight at Newbourn; and whilst the great Council of Peers continued at York, and till Novemb. 11. when he came to London, and was suddenly impeached of high Treason.
Mr. Bagshaw, Reader of the Middle-Temple in Lent Vacation, his Case argued.
'In the Month of February in the time of Lent, Mr. Bagshaw, Reader of the Middle-Temple, made choice of the Statute of 25 Ed. 3. Cap. 7. upon which he did read; and divided his Matter into several Parts, allotting a Case for every day on which he was to read. Among which Cases so divided, being seven in all, one Question was, Whether or no it be a good Act of Parliament, without Assent of the Lords Spiritual? Which he held in the Affirmative, and proved, That some Parliaments were held without any Bishops at all; and that divers Acts have bin made when they were present, and would not consent. And lastly, That the Bishops cannot sit in Case of Blood in Judicature; but they may sit to assist to enact Laws, but not to give Assent for Execution of them in Case of any Blood.
'Out of his second Case this question did arise, Whether any Beneficed Clerk were capable of Temporal Jurisdiction at the time of making that Law? Which he held in the Negative; for the first that ever were made Justices of Peace, or had Power in Temporal Jurisdictions, were the Bishops of Durham and York, nine Years after the said Act.
'But the Reader had no sooner made known upon what Statute he would read, in his said previous Discourse which he had made unto the Bench, the first day when he began to read thereupon; but it was presently carried to Lambeth-House, and the Bishop of Canterbury made acquainted upon what Points the Reader would insist. The King thereupon sent a Command unto him to forbear his Reading at that time. And the Reader was privately told, unless he did repair to the Arch-bishop of Canterbury and give him satisfaction, he was not like to proceed. The Reader accordingly repaired to Lambeth House, and at the third time he had admittance. The Arch-Bishop told him, That he had fallen upon an unfit Subject, and in an unseasonable Time, and that it would stick closer to him than he was aware of.
'To which the Reader replied, He had made choice of that Statute some years since, to prepare himself against the time of his Reading, and that at that time there was no opposition in this Kingdom against the Prelacy; and what was done in another Kingdom as to Bishops, concerned not this Kingdom; and further said, That what he had delivered was good Law, and he was able to maintain it, and would stand by it; and he had much wronged the House of the Middle-Temple, if he had not, according to his Turn and Custom began his Reading, which was very chargeable to the Reader. But he could obtain no leave to proceed further in the Argument of his Cases of Law.
'Nevertheless the Gentlemen of the Inns of Court of the Middle-Temple, shewed their respect unto him for his willingness to read Law unto them, having also read well in the Kitchin, feasting the Hoase during the time he staid (tho a silenced Reader) and rid on Horse-back with him, and attended him gracefully out of Town.
In this month of February the Earl of Sterling, Secretary of State died; in whose place the King made choice of Marquiss Hamilton's Brother, Lord William, whom he created Earl of Lanerick, who was then but 24 Years of Age, yet well qualified, and of good Parts.
'This day a Letter from Sir Christopher Yelverton, High-Sheriff of the County of Northampton, with a Paper enclosed, being a Copy under the Hand of the Clerk of the Peace, of a Presentment made by the Grand Jury at a Quarter-Sessions concerning the Ship-Mony, were read at the Board, and then delivered to Mr. Attorney General; and it was ordered, that he and Mr. Solicitor should call before them the Clerk of the Peace, and the Fore-man of the said Grand-Jury, and should examine all such Particulars concerning the Carriage of this Business, as they should think fit, and thereupon report the same, together with their Opinions, to the Board.
A Letter directed to the Lords Lieutenants of Surrey.
After, &c. to your Lordships. Whereas we are informed by Sir John Lenthal Knight, Marshal of the King's-Bench, That the Prisoners under his charge, within that Prison, are now, and have bin all last night, in an Uproar and Mutiny, and have gotten to themselves divers Staves and Cudgels, and have broken up the Pavements of the Prison, and have furnished and armed themselves with Stones and Brick-bats, and do threaten to force and break open the Prison. These are therefore to pray and require your Lordships, the Lords Lieutenants of the County of Surrey, or one of you, to give present Order and Command to the Captains of the trained Bands, within the Burrough of Southwark, to repair with their Officers and Soldiers presently to the said Prison, and to suppress the said Mutineers, and to keep them in quiet from time to time, until the Judge of the King's-Bench shall return to take Order about their pretended Grievances. And so, &c. dated the 11th of March, 1639.
- Lord Archbishop of Canterbury.
- Lord Treasurer.
- Marquiss Hamilton.
- Lord High-Admiral.
- Earl of Dorset.
- Lord Cottington.
- Mr. Treasurer.
- Mr. Secretary Windebank.
A Letter to Sir Christopher Yelverton, concerning Ship-Money, from the Privy-Council.
'We have had the patience to read your tedious Letter of the 18th of February, wherein with much affectation you represent the Difficulties which you find in the execution of the King's Writ for the Shipping-Business; and yet there is none of the Difficulties for which you have not already received direction how to proceed by your Instructions. We have considered of the Petition of the Grand Jury, very officiously by you sent up, attested under the Hand of the Clerk of the Peace. And upon the whole we make this Judgment, That instead of doing your duty in executing of the Writ, you endeavour to prepare a way for an excuse for doing nothing. Otherwise why should you make a doubt by a Parenthesis, (if Ship-Mony be excepted against:) for we must let you know, we expect that you should perform the Service according to the Writ, and the Instructions sent therewith; and in case you neglect it, and so be the cause (for so much as concerns that County) that the King shall suffer in point of State and Honour, and of the safety of his People, that there will be a quick and exemplary reparation required of you, in proportion to the dangerous Consequence of your neglect. And as we now give you this Admonition, so if you do not make use thereof by redeeming your former Default, not by Discourses, but by Effects, this will likewise be added to your account. And so, &c. Dated at Whitehall the 11th of March, 1639.
- Lord Arch-Bp of Canterbury.
- Lord Keeper.
- Lord Treasurer.
- Lord Chamberlain.
- Earl of Holland.
- Earl of Traquair.
- Lord Goring.
- Lord Cottington.
- Lord Newburgh.
- Mr. Treasurer.
The Proceedings of the Scots Commissioners, sent from the Parliament of Scotland, with the King's Majesty at Whitehall.
'So soon as our Commissioners got presence, and had the honour to kiss his Majesty's Hand, they did in all humility represent to his Majesty how grievous it was to his Subjects of that his antient and native Kingdom that their Loyalty should be call'd in Question, or that their Proceedings should be traduced as trenching upon his Majesty's Authority, or as contrary to the Laws, and craved a publick hearing before his Majesty's Council of both Kingdoms, for clearing the lawfulness of their Proceedings, and vindicating them from the unjust Aspersions laid upon them by sinister information, and that relation publickly made by the Earl of Traquair, before the whole Council of England, to their prejudice; and did likewise deliver to his Majesty a Thanksgiving from the general Assembly, containing in it a Supplication for ratifying the Conclusions thereof. This Speech was delivered upon the 10th of February, (English stile) 1639.
'The King hereupon commanded, That whatsoever they had to Remonstrate or Petition to him, they should present the same to him in Writing, and that he would signify his Pleasure to them by the Earl of Traquair; whereupon they gave a Remonstrance or Supplicarion following.
'Upon the 26th of February, the Earl of Traquair did shew our Commissioners, That it was his Majesty's Pleasure, that they should subscribe the two former Petitions, given in the 20th day by them to his Majesty, and that they should keep the same way thereafter in all Petitions that should be presented by them to his Majesty; which accordingly they did. And they required the Earl of Traquair to write and subscribe any Direction or Commandment he brought from the King to them: which he did.
'Upon the 2d of March, the Earl of Traquair did signify to them, under his Hand, That it was his Majesty's Pleasure that they should artend at the Council-Chamber the next day, at two of the Clock in the Afternoon, such Lords of the Council as his Majesty had appointed for that effect. And our Commissioners understanding that the King was going to Hampton-Court, and that the Hearing he had appointed for them, was only before some of his Council, specially selected and appointed as a Committee for that purpose; but being enjoined by their Instructions, not to answer or acknowledge any Committee, nor other Judicatory; they desired the Marquiss of Hamilton to shew his Majesty, that they would decline to propone their Desires and Reasons of their Demands, or make answer to the Committee, or any other whatsoever, except the King their Master, to whom they were sent. Which being made known to his Majesty, he was graciously pleased to delay his going to Hampton Court till the Afternoon, and did hear our Commissioners himself: In whose Royal Presence and Audience (his Majesty having his Committee with him) our Commissioners did clear us and our Proceedings from those unjust Aspersions laid upon us, and did shew what high estimation we had of Soveraignty, and our constant Resolution to stand to the defence of our Religion. And that our desires, both in matter and manner, are no other but what we did crave in our former Petitions, and are necessary for establishing of Religion, and the good Peace of the Kingdom, and are agreeable to the fundamental Laws, and laudable Practices thereof, and to the Articles of Pacification, without wronging the Kirk or State, or any ways trenching upon his Majesty's Princely Power and Royal Authority: And did therefore crave, that he would be graciously pleased to command the Parliament to proceed and determine for ratifying of the Conclusions of the Assembly, and enact such Statutes as are necessary for establishing Religion, and setling the Peace of the Kingdom, as their Speech then spoken (and afterwards given in Writing,) doth import, as followeth.
The Speech made to the King by the Lord Loudon.
'As we did show in that humble Remonstrance which we gave to your Majesty in Writ, That no earthly Thing could be more grievous to your Majesty's Subjects, convened by your Royal Authority in the Parliament of Scotland, than that their Loyalty should be call'd in question, or any such hard Impressions should be given against their Proceedings, as might derogate from that high estimation which they have of Sovereignty, and the tender respect they carry to your Majesty's inviolable Authority: So we do acknowledge your Majesty's Goodness and Justice, in keeping one Ear for us against all Suggestions and Obloquies, till the Reasons of our Proceedings and Demands were made known from our selves; and that your Majesty is graciously pleased to grant us this favour, of a full and publick Hearing. But because the Parliament of that your Majesty's antient and native Kingdom, is Independent, and not accountable to any other Judicature, we hope your Majesty will pardon, and allow us to decline to speak, or answer before any of your Majesty's Council, or other Judicatures whatsoever, as those who have not any Power to judge of the Laws, Actions, or Proceedings of the Parliament of that Kingdom. And as we acknowledge your Majesty's favour in allowing us to tender the Liberties and Freedom of your Majesty's antient and native Kingdom; so are we glad before all the World, to clear the loyalty and lawfulness of their Proceedings, and do congratulate that your Majesty hath indicted a Parliament here, which we hope will advert to the good of Religion, your Majesty's Honour, and Peace of your Dominions: Albeit they be not Judges to determine of our Actions, (which are such, as when they shall be known to your Majesty, not upon Report, but upon true Trial, we are most confident will merit approbation at the Throne of your Majesty's Justice.) But because we hear that your Majesty's good Subjects are traduced, as having intention to diminish your Majesty's Authority, and shake off that civil and dutiful Obedience due to Sovereignty: Therefore before we descend to the particular Actions and Articles of the Parliament, for vindicating us from so grievous and foul an Imputation, we do in our Name, and in the Name of the Parliament that sent us, declare before God and the World, That we never had nor have any such thought of withdrawing our selves from that humble and dutiful Subjection and Obedience to your Majesty and your Government, which by the Descent and Reign of so many Kings is due to your Majesty; and never had nor have any intent or desire to attempt any thing that may tend to the diminishing of your Majesty's Princely Power; but on the contrary, we acknowledge our Quietness, Stability, and Happiness, to depend upon the safety of your Majesty's Person, and maintenance of your Greatness and Royal Authority, as God's Vicegerent set over us for maintenance of Religion, and Administration of Justice; and have solemnly sworn, not only to stand to the Defence of your Majesty's Person and Authority in the preservation and defence of Religion, Liberties, and Laws of the Kirk and Kingdom; but also in every Cause which may concern your Majesty's Honour, shall according to the Laws of the Kingdom, and duty of good Subjects, concur with our Friends, in quiet manner, or in Arms, as we shall be required. But if any be so wicked, as to seek occasion to divide betwixt your Majesty and your Kingdom, and for their own ends go about to prostitute the purity of Religion, and the Liberties and Laws of that your Majesty's antient and native Kingdom; we can give them no other Character, but that which your Majesty's Father of blessed Memory gave them, terming such Men, Vipers and Pests against the King and his Kingdom. And if it please God for our Sins, to make our condition so deplorable, as they may get the shadow of your Majesty's Authority, (as we hope in God they will not) to palliate their ends, then as those, who are sworn to defend our Religion, our recourse must be only to the God of Jacob for our refuge, who is Lord of Lords, and King of Kings, and by whom Kings do reign, and Princes decree Justice. And if in speaking thus out of zeal to Religion, and the Duty we owe to our Country, and that Charge which is laid upon us, any thing hath escaped us, since it is spoken from the sincerity of our Hearts, we fall down at your Majesty's seet, humbly craving Pardon for our freedom.
'Having thus, with your Majesty's permission, cleared the Loyalty of your Subjects, that we may next shew the reason of their Demands, and equity of their Proceeding in Parliament, we do first crave, That if our Answers cannot give plenary satisfaction to the Objections and Exceptions that shall be made against their Proceedings, that our not knowing of those Objections (albeit we did often require your Majesty's Commissioner to shew the same, that we might be the more able to give your Majesty content; yet being still concealed from us, and the Records and Registers of Parliament also still kept from us,) may serve much for our excuse. And if any the Propositions and Articles sought and craved in Parliament, shall seem harsh at the first view to such as know not our Laws, that we do expect from them the Judgment of Charity, who ought (rather than to pass a rash Censure upon us) to profess Ignorantiam juris & facti alieni; and that they would distinguish betwixt the Desires and Actions of a Parliament, who (being convened by Royal Authority, and honoured with your Majesty's or your Commissioner's presence) are makers of Laws, against whom there is no Law; and the Actions of private Persons, against whom Laws are made.
'And as the desires of the Subjects are no other in the matter, but what they did humbly crave in their former Petitions, and are necessary for establishing of Religion, and the Good and Peace of the Kingdom, which can never oppugn the King's Honour, and are agreeable to the Articles of Pacification; so in like manner they are agreeable to the Laws and Practices of that Kingdom.
'And to descend more specially; all the Articles given in are either such as concern private Subjects, such as are for Manufactures, Merchants Trading, and others of that kind; which do not so much concern your Majesty, or the Publick, as the Interest of private Men, which are but minima, & de minimis non curat Lex: Or they are publick Acts, which do concern the Religion and Liberties of the Kirk and Kingdom; as the ratifying of the Conclusions of the Assembly, the Act of Constitution of Parliaments, the Act of Recision, the Act against Popery, and others of that kind. Wherein, because the eyes of the World were upon them, and that hard Constructions have been made of their Proceedings, and that Malice is prompted for her Obloquies, and waiteth on with open mouth to snatch at the smallest shadow of disrespect to your Majesty, that our Proceedings may be made odious to such as know them not, we have endeavoured to walk with that tenderness which becometh dutiful Subjects, who are desirous to limit themselves according to Reason, and the rule of Law.
'For the better understanding whereof, we must distinguish betwixt Regnum constituendum, and Regnum constitutum, a Kingdom before it be setled, and a Kingdom which is established by Laws. Wherein (as good Subjects esteem it their greatest glory) to maintain the Honour and lawful Authority of their King; so good Kings (as your Majesty's Father of ever blessed Memory affirms, holding that Maxim, that Salus Populi est suprema Lex) will be content to govern their Subjects according to the Law of God, and fundamental Laws of their Kingdom.
'Next we must distinguish betwixt the Kirk and State, betwixt the Ecclesiastick and Civil Power, both which are materially one, yet formally they are contra-distinct in Power, Jurisdiction, Laws, Bodies, Ends, Offices, and in Officers. And albeit the Kirk and Ecclesiastick Assemblies thereof, be formally different and contra-distinct from the Parliament, and Civil Judicatories; yet there is so strict and necessary conjunction betwixt the Ecclesiastick and Civil Jurisdiction,betwixt Religion and Justice, as the one cannot firmly subsist and be preserv'd without the other; and therefore like Hippocrates's Twins, they must stand and fall, live and die together. Which made us all in our Petitions to your Majesty, who is Custos utriusque Tabulæ, to crave, that as Matters Ecclesiastical be determined by the General and other Assemblies of the Kirk, and Matters Civil by Parliament; so specially to crave, that the Sanction of the Civil Law should be added to the Ecclesiastical Conclusions and Constitutions of the Kirk and her Assemblies, lest there should be any repugnancy betwixt the Ecclesiastick and Civil Laws: which your Majesty did graciously condescend unto. And your Majesty's Commissioner representing your Majesty's Royal Power and Person, in the General Assembly, wherein the whole Congregations and Parishes in Scotland are represented, upon diligent enquiry, finding that all those Evils which troubled the Kirk and Kingdom, proceeded from the Prelates, consented that Episcopacy be removed out of the Kirk of Scotland, and declared, that all Civil Places of Kirk-men to be unlawful in that Kingdom; and having ratified the Covenant, ordaining all the Subjects to subscribe the same, with the General Assembly's Explanation, in that sense. And being also obliged to ratify the Conclusions of the Assembly in Parliament, it doth necessarily follow, that Bishops who usurped to be the Kirk, and in the name of the Kirk, did represent the third Estate; and that all Abbats, Priors, and others, who either did or do claim to represent the Kirk, be taken away. Which also by necessary consequence doth infer, that there must be an Act of Constitution of the Parliament without them, and an Act for repealing the former Laws, whereby the Kirk being declared the third Estate, and Bishops to represent the Kirk; both which the Kirk hath now renounced and condemned. So that unless the Act of Constitution of the Parliament, and Act of Recissory pass, it is impossible either to have a valid Parliament, or to ratify the Conclusions of the Assembly, which your Majesty hath graciously promised to perform, and which your Subjects are obliged to maintain.
'And seeing your Majesty's Subjects have no other ends, but such as may serve for establishing of Religion, and Peace of the Kingdom, and are agreeable to the fundamental Laws thereof, and to the Articles of Pacification; and that the Parliament is the only lawful means to remedy our Evils, remove our Distractions, and settle a solid and perfect Peace: The sum of your Subjects desire is, That your Majesty may be graciously pleased to command the Parliament to proceed freely in those Articles given in to them, and to determine them. And whatsoever Objections or Informations are made against any of the particular Overtures, Articles, or Proceedings of the Parliament, we are most willing and desirous, according to your Majesty's Commandment, for avoiding contestation about words, to receive the same in writ; and are content in the same way to return our Answers and humble Desires.
'The first was, That albeit his Majesty might have any with him to hear us, and to ask their advice; yet his Majesty would pardon us in declining to answer before any, as Judges of our Proceedings in Parliament; and that we would answer none of their Questions. This his Majesty was pleased to admit, but said, he would crave their Opinions.
'The second request was, That because the last day some did write as we spake, and for that the writing of a word only of a Sentence, or a sentence only of a Speech, might admit of a wrong Construction, and wrest the meaning of the Speaker; therefore that nothing spoken by us, and put in writ by any there present, should be of any faith or credit against us, unless it be first read unto us, and we allow of it. Otherwise we would disclaim it, and would rather give all that we should speak in writing, upon condition that if his Majesty should take Exceptions at any thing therein contained, we might have liberty to interpret our own meaning, because unusquisque est optimus Interpres sui; and thereupon we delivered his Majesty a Copy of what was spoken the day before.
'To this we replied, That we were not now before any Judicatory, and we would adhere to no Man's writ but our own, or that we did approve of. His Majesty then said, that nothing which was written should be used to tie us, except it were first read unto us, and we approved of it.
'When we had shewed his Majesty our Instructions, he gave them us again to read. Which being read, notice was taken who had subscribed them, and of their Names written; and it was objected, that there were only some few Noblemens hands at them, and some few Gentlemen and Burgesses; and that the Noblemen of prime places and antiquity had not subscribed, as Argyle, Rothes, Montross, Marshal, &c. and that those who had subscribed them were all but Noblemen of the King's own creation, save Balmerino, who held his Life and Head of the King.
'It was answered, That those Instructions were warranted by the Parliament, and were relative to former Instructions given to the Earl of Dumfermling, and Lord Loudon, which were subscribed by a great many Noblemen, Gentlemen, and Burgesses, who were present at that time when the Parliament was sitting; and their last Instructions were subscribed by those Noblemen and others, who were Commissioners appointed by the Parliament, to make Remonstrances to his Majesty, and receive their Answers. Which was done with consent of the whole Parliament, and had a more formal Power than if they had been subscribed by the other Noblemen, then not sitting in Parliament. His Majesty hereupon desired to see the former Instructions, subscribed by the other Noblemen, which we did then shew him. And after he had seen the same, he urged us to shew the Warrant given by the Parliament to those who subscribed our last Instructions; which we told him was not about us: the King required to see it at the first opportunity, which we did accordingly.
'The King then asked us, as he did the former day, What power we had to give him satisfaction? for our Instructions were only for justifying and not satisfying; and that he dealt with us on very unequal terms, having power to satisfy us. And albeit he could make it appear, that some of our desires and proceedings in Parliament were not agreeable to Law, yet we had not power in any wise to yield in any point to give him any satisfaction.
'Whereunto it was answered, That as the Parliament had no other desires, but what is contained in our Petitions, nor no other ends, but such as might serve for establishing of Religion, and the Good and Peace of the Kingdom; so had they given us full power to clear, that their Desires and Proceedings were agreeable to the fundamental Laws and Practices of the Kingdom, and to the Articles of Pacification. And that accordingly we were ready to clear their Proceedings were agreeable to Law and Reason. And that there was no necessity of a further power from the Parliament, until we knew what exceptions and objections would be made against it Neither was it likely that the Parliament would divolve their full decisive Power (which was proper to themselves) to any other, by way of reference, and deprive themselves of their Parliamentary Privileges and Right Neither was there any but necessary Acts, and such as conduced to the Peace of the Kirk and Kingdom, and were agreeable to the fundamental Laws thereof, and such as the King was obliged to ratify by the Articles of Pacification.
'Hereupon the Arch-Bishop of Canterbury (admitting what was granted by the King, and acknowledged by them, viz. That the King was not in Judicature, nor they to speak in any sort as Judges, but only as those whom his Majesty had required to hear and give their Opinion) desired his Majesty to enquire of us, that seeing we did aver, That all our Desires and Proceedings were agreeable to the Laws and Customs of that Kingdom, (which could be no other than the present Statutes of that Kingdom,) how could the same consist with the other part of our Desires, whereby we craved present standing Laws to be repealed? And where we said his Majesty was obliged to ratify the Conclusions of the Assembly, was only but a Parenthesis, and said, It was more than he believed, that his Majesty was bound to ratify the Conclusions of the Assembly. And then he said to the King, Sir, I think your Majesty hath not obliged your self to take away the present standing Laws.
'To this we answered, That there was no repugnancy betwixt these two Assertions, viz. That our Desires were agreeable to the fundamental Laws, and yet that we craved, That the Acts which were repugnant to the Conclusions of the Assembly should be repealed; for both could very well consist: because, as it was competent to the Parliament to make Laws and Statutes for the good of the Church and State; so it was proper for them to repeal all Laws contrary thereunto. And for that which you call the Parenthesis, of the King's being obliged to ratify the Conclusions of the Assembly; we do not speak it by way of Supposition, but do positively affirm, That his Majesty is obliged to ratify the Constitutions of the Assembly.
'The Arch-Bishop replied, That he hoped that we thought him not so gross nor ignorant, but he knew that the Parliament had Power as well to repeal Laws, as to make Statutes, pro ratione & distinctione temporum; but his Objection was, How was it possible? how our Desires were agreeable to the Laws, and yet craved standing Laws to be repealed, by Reason of the Acts and Conclusions of the Assembly, ex consequenti? For if the Clergy of England being now call'd to their Convocation-House at the time of this Parliament, should take upon them to annul and repeal Acts of Parliament, his Majesty might easily consider what great Confusion and Danger would follow.
'To which was answered, That by reasoning his Objection, he gave no further strength to his Argument than it had before, and which was sufficiently answered; but only now he added, That Acts of Parliament could not fall because of the Acts of the Assembly, ex consequenti, which he would prove by an Instance of Comparison, between the Convocation-House and the Parliament of England. For answer whereof it was replied, That it did necessarily follow, that Acts of Parliament, which depend upon Acts and Conclusions of the Assembly, must fall and be repealed when the Assembly had reduced, repealed, and annulled the Acts of the Assembly, whereof those Acts of Parliament were but Ratificatory, and depended upon the Acts of the Assembly; because sublata causa tollitur effectus, & accessarium sequitur suum principale. And as for the Instance concerning the Convocation-House, which did only consist of Prelates, and some of the Clergy, it was of a far different nature from our general Assembly, where his Majesty or his Commissioner sit, and where the whole Congregations and Paroaches of the Kingdom were represented by their Commissioners from Presbyteries; so that what was done by them, was done by the whole Church and Kingdom, and so ought to be allowed in Parliament: Therefore there could be no such Inference thereof made of any such dangerous Consequence, as if the Convocation-House (which consisted only of Prelates, and some of the Clergy) should change Religion, or take away Acts of Parliament made by the whole Estates of the Kingdom.
'The Arch-Bishop replied, That their Convocation-House was as eminent a Judicature as ours, and ought not to be so slighted: That the Clergy and himself had bin a long time Members of the Parliament; and that neither the English, nor no reformed Church, had Laick Elders as we had in our Assemblies, and protested he should lose his life before they should have them.
'It was answered, That we were not medling, nor would have spoken of their Convocation-House, unless he had mentioned it himself; and that it was a gross mistake of any that conceived Laicks were Members of the Assembly; but that the Office of Elders was Ecclesiastick, and as Orthodox and agreeable to Scripture, as any Order they had in the Convocation-House: But we were only clearing the Power of our own general Assembly, and of the Equity and Desires of the Parliament: And that as the Acts of the Assembly had repealed and taken away the former Acts of Assemblies, which did take away the Acts of Parliament, ratifying those Acts ex consequenti; so we craved, That the Act of Parliament it self might repeal the Acts of Parliament which now had no force, and so ought to be repealed.
'The Earl of Traquair said, That all the Acts given into the Articles, were not consented unto by the whole Estates and Subjects, but that in some of them they were of a different Judgment among themselves, and that he hoped we would not stick in some things to yield to the King for his Majesty's Satisfaction; but if we stood to justify all, the King had the more reason to crave from whom they had Warrant so to do.
'To which it was answered, That he knew very well that all was not stood upon, for there were divers things past in Articles, some of them to be consulted with the King; and what was stuck upon, was upon good Reason: Besides, every thing done in Articles were not enacted Statutes, but only Propositions prepared for the Parliament; and it was sufficient, if there were so much Law and Reason for those Propositions, as merited the consideration of the Parliament; but we told them, That we desired rather to answer such Objections in Writ, than Verbally.
'The King having thus long debated and objected against the Sufficiency of our Power, made us remove to the next Room; and after advisement taken, we were call'd in again, and told, That albeit his Majesty in his own Judgment, as in the unanimous Judgment of those that were with him, conceived we had no Power to give him Satisfaction, yet he was pleased to hear the particular Reasons of our Demands. We replied, That our Demands were only, that the Parliament might proceed and ratify the Conclusions of the Assembly, and to determine all the Articles given in unto them, as being agreeable to the Laws of the Land, and Articles of Pacification. And if any Objections were made, they would answer them in Writing. The King said, It behoved his Commissioner to give the Objections. We answered, That we knew his Lordship might give them presently, and we would answer them again the next day; but they refused to give them till the morning. This we told them was a protracting of time, and would force us to crave a time to return our Answers.
Whether are you warranted or instructed from Parliament to satisfy his Majesty, anent the Power of Prorogation of Parliaments of himself, and of his own Prerogative simply? And whether a Parliament thus Prorogued simply by his own sole Royal Power, can or may sit before the time to which his Majesty hath Prorouged the same? And if you have no Warrant nor Instruction herein from the Parliament, What are your own private Judgments herein?
1. 'As our Power and Instructions from the Parliament do warrant us to shew, That their Proceedings and Desires are agreeable to the Laws and Practice of the Kingdom, and to the Articles of Pacification: So are we particularly enjoined to answer all Objections which either may be propounded, or which they conceived could be propounded, against the Acts and Proceedings of the Parliament. And as concerning any other Question, which was not moved in Parliament, nor is against the Articles and Propositions given in to them; as the same did not fall within the Consideration of the Parliament, so neither can it come within the compass of our Instructions, as that whereunto we have Warrant to answer. It is also to be understood, that the Propositions and Acts given in to the Lords of the Articles, are not Statutes, but are only propounded and given in to them to be prepared for the Parliament, that the Parliament may enact or refuse the same as they shall find them expedient or inexpedient, for the good of the Church and State.
'And as concerning the Query anent the Prorogation of the Parliament, we are warranted by our Instructions and Informations to shew, That the Prorogation of the Parliaments of that Kingdom being once convened in plain Parliament, and having chosen the Lords of Articles, or entred on Actions, hath ever bin done with the consent of the three Estates; as may be seen in the Reigns of King James 6. Queen Mary, King James 5. King James 4. King James 3. King James 2. King James 1. and so forth, in all the printed and written Records of Parliament; and they are confident that your Majesty will be graciously pleased to keep that same Form and Order of Prorogation of Parliaments, which all your most Worthy and Royal Ancestors did: Neither did the Parliament expect that your Majesty (who did graciously grant this Parliament for establishing of Religion, ratifying the Conclusions of the Assembly, and setling the Peace, and hath accordingly given an ample Power, under your Majesty's broad Seal, pro retentione & observatione Parliamenti, without and Power, or Clause of Prorogation or delay) would require this Parliament to be Prorogued without consent of the Estates of Parliament, until those things were performed, which your Majesty was graciously pleased to condescend unto.
Answ. 'It is answered, That only proves the Denomination of the Act to be taken from the King, but doth no ways prove, that the Act was made without consent of the Estates, no more than that Act of Parliament holden at Edinburgh, Junii 28, 1450. An. 3. Ja. 2. so. 33. expressing, That the three Estates did continue the Parliament without naming the King, will infer, That the Estates wanted the King's Consent; for it is usual that the Denomination of Parliaments be taken sometimes from the King only, sometimes from the three Estates, and sometimes from both; and in that the Prorogation was done by Act of Parliament, it is enough it be done with consent of the three Estates. Also the Letter written by King James the 6th to the Lord Balmerino, his Majesty's Secretary in the Parliament, May 1604. expressing, That seeing the Parliament of England was continued, therefore the States should continue the Parliament of Scotland, which they did. And this doth evince, that the Parliaments were still continued with the consent of the three Estates.
'And having thus (according to our Instructions given us) shewn the Judgment of the Parliament (whose Language and Mind we ought now to speak, and not our own private Opinions) concerning the Form and Order of Prorogation, which hath bin constantly observed in all preceeding Parliaments; we do so much tender your Majesty's Royal Power and Lawful Authority, (which we have sworn never to diminish) as we neither do nor will presume to exceed our Instructions to define what your Majesty may do in the height of your Power: for to dispute a posse ad esse, is both against Law and Divinity; and whatsoever your Majesty may do in the height of your Power, we hope that your Majesty will ever be graciously pleased to Rule your Subjects according to Law; the continual practice whereof we have shewn in this Point, neither know we any former Law or Practice to the contrary; and if any Man hath informed your Majesty, or affirmed that it is otherways, affirmanti incumbit probatio.
2. 'As concerning that Act, whereby it is craved, That the Power of the Lords of the Articles may be defined, we have Direction and Information from the Parliament, to shew the Equity, Lawfulness, and Expediency of that Act, which may be easily perceived from the Reasons contained in the Narration of the Act it self, which brevitatis causa is referred thereto: as also from the written Records and printed Acts of Parliament, from the Nature of all Committees, and from the present Estate and Condition of the Parliament of that Kingdom: For as it is clear by the History of that Kingdom, and Records of Parliament, that there was never such a thing heard of as Lords of Articles, until the time of King David Bruce, so it is manifest in all the printed and written Records of Parliament since that time, That many Parliaments had no Lords delegate for Articles at all; and when there were any chosen, the Nomination and Election of them was ever with the common consent and advice of the whole Parliament, until the Parliament 1617 that the Bishops took upon them to remove out of plain Parliament to the Inner House, and there chose some of the Noblemen, and those Nobleblemen chose them, and they two chose the Commissioners of Shires and Burroughs to be of the Articles; Which as it is against the first Institution and Form of Election of all precedent Articles introduced by the Prelates, so doth it fall, and ought to be removed with them, ut Effectus removeatur cum sua Causa: For they being removed cannot chuse the Noblemen to be on Articles, and the Noblemen cannot chuse them, nor can they both together chuse the Barons and Burroughs: So that it doth of necessary follow, that either there be no Lords of Articles, but that all be done in face of plain Parliament, as it was of old; or else if Articles be, that the Order of Election be from the whole Parliament; or that every State of Parliament make choice of their own Number which are to be on the Articles: for according to the common received Maxim, Quod omnes tangit, ab omnibus approbari debet; who are chosen to represent the whole Kingdom, and are appointed to convene in their Name, for establishing such Laws as are necessary for the good of the Common wealth, ought to discharge the trust themselves and not to intrust potestatem Universis Commission. to some elected Persons, except only in Cases of Necessity and Utility, which ever may be done or omitted according to conveniency and occasion of Affairs. For as this freedom of chusing, or not chusing of Articles in practice and de facto, was arbitrary and changeable pro occasione & distinctione temporum: So there is never any Statutory Law enjoining the necessity of Articles, determining the Power and Manner of their Proceedings, & in actibus liberis of the Law, non currit prescriptio. And it is very agreeable to Reason, that the power of Articles, which is but a Committee delegate from the Parliament to prepare matters for their Consideration, have not a boundless and unlimitted Power, but be countable to them; and the Power of Articles is only preparative and not determinative, and is but curatio, by virtue of a Delegation; which ends at the redemand of the Granter, and ought no ways to be privative of the Parliamentary Power, but only Communicative, and ought before closing or riding of the Parliament, to render an account to them of all that hath bin propounded or past in Articles, that the whole Parliament may have a competent time for Consideration, Agitation, mutual Communication, Discussion, and Deliberation of the Reasons and Conclusions of those Articles, which are to be voiced, and not to vote blindly and without foreknowledge, to agree or disagree to such things as by their Suffrages are enacted to be Laws, which requires not only Voicing, but also Hearing free Reasoning, and ripe Advice, as is clear by the Commissions granted to the Shires and Towns to their Commissioners, and from the Acts of Parliament of the first Parliament, 7 Act 101, and Acts of Parliament 1584, and 1587, An. Jac. 6.
3. 'As for answer to the new Augmentation of Customs and Book of Rates, it is humbly acknowledged, That the Customs belonging to your Majesty, as a part of the Patrimony due to your Crown, as appears by divers Acts of Parliament, especially by the 179 Act, An 13. Jac. 6. and 206 Act, An. 14. Jac. 6. and 251, and 254 Acts An. 15. Jac. 6. It is evident that the Customs of Native and Foreign Commodities hath bin imposed by the Exchequer, and condescended unto by some of the Barons, upon promise made unto them by the Earl of Traquair (as they affirm) that the Book of Rates without alteration should be ratified in the next Parliament, (the performance whereof was only craved by the Article given in) and that no new Augmentation should be imposed upon Custom, but that which is agreeable to Justice and the Laws of the Kingdom, which the Burroughs conceived they might lawfully represent to your Majesty and the Parliament's Consideration.
4. 'The Reason and Occasion of that Article given into the Parliament, anent the value of Mony, and concerning Copper Mony, doth flow from the sensible Loss and great Prejudice which your Majesty's Subjects of that Kingdom do sustain, by the huge quantity of Copper Mony which hath bin coined here, and allowed with Advice of your Majesty's Council, to pass here at a rate so far above the intrinsick value thereof; as also, (besides what is coined in the Kingdom) there are likewise a great deal coined abroad in other Countries and brought into Scotland, and great quantities of false ones forged by Tinkers; and through occasion thereof all other Mony is exported and taken away, and no other Mony almost left; and the proclaiming of them up and down in so short a space of late, hath brought the esteem and value of them to such an uncertainty and confusion, as no Man knows at what rate they should pass at, or whether they should pass or no: which to your Majesty's Subjects is a very great prejudice, especially to Tradesmen and poor People, in whose hands most part of those base Monies are, whose distressed Condition cries to your Majesty for Remedy: Like as the importing of Dollars from foreign Kingdoms, and tolerating them to pass for a long time at a higher Rate and Price, than is answerable to the true value, gave occasion to export and take away your Majesty's own Coin; and the crying down of the Dollars thereafter by your Majesty's Council, at such a time when there was little or no other Mony in Scotland, occasioned great scarcity of Mony in this Kingdom. From the by-past experience of which loss, and for Remedy thereof, that Article craving, That Mony should not be altered without Advice of the Estates of Parliament, was given in without thought or intention to intrench in any sort upon your Majesty's Royal Authority: but that your Majesty, for the good of your Subjects, may be graciously pleased, That the Standard-Mony (consisting in Finenels, Weight, and price of Mony) which from time to time hath bin ruled and set down in Parliament, may be seen by that Act of Parliament, An. 1366. in David the Second's time, in these words, Statutum quod fabricetur moneta de materia jam allata in Regnum, & quod in pondere & metallo equipollent monetœ currenti in Anglia, & fiat in ipsa signum notabile, per quod possit ab omni alia prius fabricata evidenter cognosci, quosque in proximo Parliamento super hoc maturius avisari possit. The same is also manifest from a great many other Acts in the Reigns of Ja. 1. Ja. 2. Ja. 3. Ja. 4. Ja. 5. Ja. 6. especially Parl. 1 An. Ja. 1. cap. 33. An. 1424. Item, Ja. 2. Parl. 6. cap. 29.& Parl. 8. cap. 33. Parl. 15. cap. 59. Parl. 14. cap. 72. Item, Ja. 3. Parl. 1. cap. 9. Parl. 3. cap. 18. Parl. 4. cap. 21. Parl. 6. cap. 46. Parl. 7. cap. 50. Parl. 8. cap. 64. Parl. 13. cap. 93. Item, Ja. 4. Parl. 1. cap. 2. Parl. 2. cap. 17. In the unprinted Acts, An. Jac. 6. Parl. 5. 1578. Parl. 7. Cap. 106. Parl. 8. 1584. Parl. 13. An. 1593. And in the printed Acts, Parl. 15. Cap. 249. Parl. 16. Cap. 9. And also in the Parliament 1633, holden by your Royal Majesty, there is Commission given in Parliament to the Privy-Council, and other Commissioners, anent the frequent course of Dollars, and base Copper-Mony. By reading of which Acts it is manifest, that the fineness, weight, and price of Mony, hath bin ruled and determined by your Majesty's Predecessors, and your Self, with the advice of Parliament. Neither is it meant or intended, that your Majesty's Royal Privileges (which have bin and are due to your Majesty, and Royal Ancestors) shall thereby in any sort be trenched upon, or impaired.
'The reason of that Article, whereby it is humbly craved, that the Castles of Edinburgh, Dumbarton, and Striveling, may be entrusted only to Natives, and those to be chosen by advice of Parliament, of such faithful and honest Men as do tender your Majesty's Honour, and Safety of the Kingdom; may be seen not only from the nature and importance of the Charge, but likewise from the former practice of your Majesty's Royal Predecessors, who did dispose of those Castles with special advice of Parliaments; as is recorded in the old Registers of Parliament, 1368; like as fol. 83. An.—Jac. 4. It is concluded by the advice of the three Estates, that Patrick Lord Hayes be Keeper of the Castle of Edinburgh, and Artillery of the same. Item fol. 21. cap. 35. Jac. 6. the three Estates ordain the Castle of Dunbar, and Fort of Inchkeeth, be demolished and destroyed, that no foundation remain thereof. Like as by divers unprinted Acts, as in Anno 1578, 1585, 1606. your Majesty's Houses have bin disposed of by advice of Parliament. And not only National Statutes, but the Law of Nature and Nations, do forbid the receiving of Strangers to be Keepers of the Strength of a free Kingdom. And Anno 1604, when the Parliament of Scotland gave Commission anent the Union with England, with exception and reservation of free Monarchy, and the fundamental Laws, Liberties, and Privileges of that Kingdom. And your Majesty's Father in his printed Speech to the Parliament of England, 1607, when he interprets the Clause of fundamental Laws, declares, That he could not make Scotland a naked Province without Liberty, and to set Garisons over Scotland, as the Spaniards do over Sicily and Naples, or govern them by Commissioners. So that his Majesty in his own interpretation doth acknowledg, that the putting in of Garisons, especially of strangers, as of Englishmen, in the Forts and Castles of Scotland, is a breaking of the fundamental Laws and Liberties of Scotland, and using it like a naked and conquered Province, like as Sicily, Naples, or Ireland is. And as your Majesty's Subjects gave an undoubted proof how tender their Minds are in point of Obedience to your Majesty's Commands, not only in delivering the Castles to be disposed of at your Majesty's Pleasure, without any assurance, other than their Confidence in your Majesty's Goodness and Justice; so have they of late given a very submissive and rare Testimony of their Obedience, in the humble reception of those Strangers and Ammunition, which your Majesty was pleased to send to the Castle of Edinburgh, where the Honours of your Crown and Kingdom, and Registers are kept; preferring their Obedience to your Majesty's Commands to their own Safety, even at this time when their ears are filled with hostile Preparations against them. All which makes them, and us in their Names, humbly to supplicare and expect, that your Majesty will be graciously pleased, by recalling that Garison, to free your loyal Subjects of those Fears and Dangers, who will ever be ready to hazard both their Lives and Fortunes to do your Majesty service. Neither do they in that Act given in to the Articles, arrogate or assume it to themselves to appoint Keepers for your Majesty Castles, but do humbly crave, That your Majesty will be pleased to declare (for further satisfaction of your Subjects) that the Commanders of your Castles may be chosen by the advice of the Estates of the Parliament; and that such as shall happen to be placed betwixt Parliaments, may be tried, and found by your Majesty's Council to be Men of such quality, as are fit and able to undergo that Charge. Which, in the Judgment of the Parliament, derogates nothing from your Majesty's Royal Authority.
- 1. 'The Session and Exchequer are two distinct Judicatures, and not subordinate one to another, and cannot be contruerent in the same Object. And therefore seeing the question of Right and nullity of Right is competent to be decided by the Lords of Sessions, by way of Action or Exception, it is altogether incompetent to be discussed by the Lords of the Exchequer.
- 2. 'The Lords of the Exchequer are incompetent Judges in a Declarator of Nullity by way of Action, and consequently cannot annul any Right by way of Exception, which is a more summary way. And it were absurd in Law, (seeing the Subject and Question is one, whether proponed by way of Action or Exception) that incompetent Judges of the Action should have a more absolute and summary Jurisdiction by way of Exception.
- 3. 'It appeareth by an Act of Parliament not printed, 1593, entitled, A Commission to the Exchequer anent deciding Suspensions in the King's Cause, that before the said Act the Exchequer had not power to decide in Suspensions, until it was given them by the said Act; far less can it be thought, that they ever had or can have power to decide in the point of heritable Right, neither doth the late Act 1633, authorize to decide therein expresly. And if it be truly considered, some general words contained therein, intermixed with the particular Cases therein expressed, should not, nor cannot be extended to so high a point, as the disputing and deciding of the Subjects heritable Rights. Like as at the making of the said late Act, the Lords of the Session having heard some surmise that the King's Advocate was giving such an Act, seven or eight of them convened together, and sent for the Advocate, who assured them that there was not nor should not be any such thing, but that the Act should be conceived in so clear terms, that it should not be possible to draw in under any part thereof a power to the Lords of the Exchequer to dispute, far less to decide in heritable Rights. And as the Subjects heritable Rights and Infeoffments are by this Act saved from being decided and annulled by incompetent Judges; so your Majesty is no ways prejudiced thereby, seeing the Lords of Session (who by the Laws of that Kingdom are proper and competent Judges of all heritable Rights and Infeoffments) may and will decide any Questions which may concern your Majesty, in nature, tenor, and validity of any heritable Right.
|1639 English Style.||as followeth.|
|1640 Scotish Style.|
The Protestation made by some of the Noblemen, (that their giving way to the present Treasurer and Privy-Seal, should not prejudice them of their Right) carrieth the same reason of the Protestation in it self; because in Law and Practice it is usual to any, who conceives himself prejudged, even in those things where Acts of Parliament pass against them, to protest multo magis. In such a case as this it is lawful for him to protest, that you giving way to that, which they conceive hath no Law for it, should not prejudge their Right, which is only craved prout de jure.
Secondly, 'That the Act against the Constitution of the Parliament, remitted to the Articles to be considered by your Majesty till next Parliament, was questioned and urged, that the same might be brought in open Parliament without any such reference, for divers reasons: First, because in that Act there was a Clause, craving it might be enacted, that there should be Stataria Parliamentarita once in two or three years at least; which Clause of the Act, so soon as it was understood by the Propounders and In-givers thereof, that your Majesty might conceive the same to derogate from the freedom of your Royal Power of indicting Parliaments when your Majesty pleased, they did pass from that part of clause of the Act. And albeit it may be easily demonstrated from the prejudice which your Majesty's antient and native Kingdom sustains, through want of your Royal and personal Presence, and living at so far a distance from the place of your Majesty's residence, how requisite it is that there be frequent Parliaments holden in that Kingdom; yet lest the desire of your Majesty's Subjects might seem in any ways to trench upon your Authority, they did pass from that part of their desire, and did only insist that there might be a right Constitution of the Parliament, and that an Act might be past for rescinding and repealing of such former Acts which repugn the Acts and Conclusions of the Assembly; which is conceived to be so absolute necessary, as there can never be a valid Parliament without the same, nor can the Acts and Conclusions of the general Assembly be ratified; which to refuse, were both contrary to the primate end for which the Parliament was indicted, and against your Majesty's Royal and Gracious Declarations. And that it is impossible without passing the Rescissory Act, and Act of Constitution, to have a valid Parliament to ratify the Conclusions of the Assembly is manifest; seeing by former Constitutions of the Parliament, no Act of Parliament can pass without the Consent of the three Estates, of which the Kirk was the third (as is to be seen by the Act of Parliament 1609) and any Act of ratifying the Conclusions of the Assembly, or for any other cause whatsoever, which can be put in this Parliament, till the Parliament be lawfully constitute without Prelates, or any other representing the Kirk, cannot be valid, but may be quarrelled and annulled upon that formal and fundamental ground of the former Constitution of Parliaments, which stands established by Acts of Parliament, Anno 1584, 1587, 1597, and 1606. By all which it is clear that the Parliament was constitute of the three Estates; and that the Prelates voting in Parliament, and representing the third Estate, was a Privilege granted to the Kirk, and that they (as her Office-bearers) had only Vote in the name of the Kirk, may be clearly seen by the 231 Act Parl. 15. Jac. 6. Anno 1597. where the King's Majesty and his Estates restores Ministers provided to places, to have vote in Parliament, and that upon this reason, as having special care of the greatest Privileges and Immunities granted by his Predecessors to the holy Kirk within this Realm, and to the special Persons exercising the Office, Dignity, and Title of Prelates within the same, which is reputed one of the Estates; and that the said Prelates have bin from time to time conserved in the same integrity wherein they were at any time before. So that his Majesty, out of his singular affection to the advancement of Religion, declares this Kirk to be a true and holy Kirk, and that the Ministers and Pastors within the said Kirk, provided to the Office, Place, Title and Dignity of a Bishop or Prelate, shall at all times hereafter vote in Parliament, such-like and as freely as any other Ecclesiastick Prelate had at any time by-gone; and that all Bishopricks shall be disponed to actual Preachers. Which proves that in time of Popery, and ever until that time 1597, this privilege of voting in Parliament was granted to the Kirk, and only to the special Persons, who by virtue of their Office did represent the Kirk; which is also clear from the Act of Annexation, anno 1587, whereby all the Temporalities of Benefices were annexed to the Crown. Notwithstanding whereof they did still vote in Parliament, in name of the Kirk, having no Temporalities at all, till the Parliament Anno 1606. Wherein it is clear in the Act of the Restitution of the Estate of Bishops, and also in the 6th Act of Parliament Anno 1609, that Vote in Parliament is given to the Prelates, as one of the Liberties and Privileges granted to the Kirk, whom they did represent, and did ever sit pro Clero on his Majesty's right hand, and voted in the name of the Kirk. But seeing in the late general Assembly holden at Edinburgh, after particular enquiry anent the true and real Cause of the Evils which did so much trouble the Peace of that Kirk and Kingdom, it is found, that the Government of the Kirk by Bishops, and Civil Power and Places of Kirk-men, especially their voting in Parliament, amongst other Novations brought into that Kirk, were two main Causes of those Evils; and that the Spiritual Assembly, by consent of your Majesty's Commissioner, representing your Royal Power and Person, hath removed Episcopacy out of the Kirk of Scotland, and declared all Civil Places and Power of Kirk-men to be unlawful in that Kingdom, as contrary to the Confession of Faith, and Constitutions of the Kirk, and hath ratified the Covenant, ordaining all the Subjects to subscribe the same, with the general Assembly's Explanation in that sense. And your Majesty being obliged to ratify the Conclusions of the Assembly in Parliament; it doth necessarily follow, That Bishops (who usurped to be the Kirk, and did in the Name of the Kirk represent the third Estate) be taken away: which also by necessary consequence doth infer, that there be an Act of Constitution of the Parliament without them; and an Act of repealing the former Laws, whereby the Kirk was declared the third Estate, and that the Bishops did represent the Kirk; both which the Kirk hath now renounced and condemned as a detriment and prejudice incomptiable with her Spiritual Nature. Neither doth the passing those Acts wrong the Kirk nor State, nor diminish your Majesty's Princely Power, as was demonstrated by that which was spoken to your Majesty the 3d of March, and which we did yesterday present to your Majesty in writing, which for brevity we forbear to repeat. And if your Majesty's Commissioner deny that he did assent to the Act of the Assembly the 17th of August last, whereby Episcopacy and the Civil Places and Power of Kirkmen, and specially their voting in Parliament, was declared to be unlawful, as being contrary to the Confession of Faith, and Constitutions of the Kirk; and that he did approve that all the Subjects should subscribe the Confession of Faith, with the Assemblies Explanation thereof, we offer to prove the same by the very Acts of the Assembly, and Records thereof, bearing his assent, first verbally, and afterwards given in by writing.
Thirdly, 'The Reason of that Article which craveth, That every Commissioner of Shire should have a several Vote, appears in the very Proposition it self: for that any who by the Laws of the Kingdom, and by their Commissions, comes authorised as Commissioners to hear, treat, and determine in Parliament, and yet not to have a decisive Voice, seems to be repugnantia in adjecto; and that by the antient practice the whole Burroughs and Freeholders in that Kingdom had Vote in Parliament, may be seen in antient Records of Parliament; as in the Reign of King James the Second, in the old Acts of his Parliament, fol. 20, 33, and 36. In the Reign of King James the Third, the 14 Parl. and 112 Act. Also in the Reign of King James the Sixth, the Parliament begun the 15th of October 1587; which Parliament being convened and continued, all Freeholders are thereby enjoined to come to the Parliament to treat and conclude upon things needful: Notwithstanding whereof no such Privilege was claimed, but only craved the Declaration and Determination of the Parliament, whether each Commissioner of the two sent from a Shire, have right in Law of a several decisive Voice; which if at any time it had been marked otherwise, they alledged the same proceeded from the Ignorance, Error, or Corruption of the Clerk: And as the Burroughs and Freeholders are the far greatest part of the Body of the Kingdom, and that all of them of old had Voice in Parliament, till their absence by some late Acts, specially the 10th Act. Parl. 7. Jac. 1. and Parl. An. 1587. Jac. 6. is dispens'd with, and they exempted from necessity of coming, and Unlaws, (id est, Forfeitures) which they were liable to pay for non-appearance, providing they send Commissioners in their Names to Vote in Parliament; and therefore they think it agreeable both with Law and Reason, That every one of these few Commissioners, who do represent so many, should have a several decisive Voice. And the Act of Parliament made by King James 6, An. 1587. bears, That the Commissioners of Shires shall be equal upon Articles with Burroughs, and shall have Voices in Parliament. The meaning whereof doth import, That every one of the said Commissioners shall have a decisive Voice, because quod de omnibus dicttur de singulis dicitur. And if both the Commissioners of one Shire should have but one decisive Voice; then it would follow that every one of them hath but half a Voice; and consequently when one is absent, the other being present should have no Voice; and one could not be chosen upon the Articles without the other: both which are contrary to Reason and Custom; and it is undeniably true, and constant by continual Custom, that when there is only one of the Commissioners of a Shire chosen upon the Articles, that one by himself, without concourse of his Colleague, hath a plenary Voice in Articles. Therefore it follows necessarily, that as every one of the two Commissioners have a full Voice in Articles, so every one of the two should have a full Voice per se, and severally in Parliament, otherwise every one of them could have but half a Voice in Parliament, and a full Voice in Articles.
Fourthly, 'And the Act given in anent the Burroughs Voices, is not to demand or crave any new thing or Innovation, or new Privilege to be granted them, but only craves the Declaration and Determination of Parliament, which in justice may be craved by any who desires their right to be cleared.
Fifthly, 'Neither is there any such thing moved in Parliament, as the chusing of any other Clerk, but it was humbly craved that some should be allowed from the Parliament to sit by the Clerk, to mark that the Voices were rightly enumerated.
Sixthly, As for that Article whereby it is craved, That every Estate may chuse their own Lords of Articles, or else that they may be chosen by the whole Parliament, is agreeable to the Liberty of all free Judicatories, who have power to chuse their own preparative Committees; who except they be chosen by the Judicature it self, or by those whom they do represent, cannot be possibly reputed to have any Power from them; and they can only Propound and Voice in Parliament in Name of those who did chuse them, and gave them power; and what they do in Name of those who did not delegate them, is a non habente potestatem. But because the Reason of this Article is more fully cleared in one of our former Answers, anent the power of Articles, (which is incident to this) we remit it to our former Answers.
Seventhly, 'The Reasons of that Act, desiring that Proxies may be discharged, and that no Patent of Nobility be granted to any such as have not 10000 Marks of yearly Rent in Scotland, as is contained in the Act it self. And it seems not to be agreeable to Reason and Equity, that the Honour and Power of voting in Parliament, which is conferred on Noblemen and their Successors personally, and whereby they have power to Reason, and Voice, and Judge, according to Law and Conscience, can be entrusted to another with an implicit Faith, to determine and give the Judgment of the Granter of the Proxy in Matters of highest moment concerning Religion, your Majesty's Service, and the Good of the Country, before the Granter thereof knew so much as was to be propounded. And as concerning the second part of the Act, craving, That no Patent of Nobility may be granted to any other who are not Natives, but such as have 10000 Marks of Land Rent in that Kingdom, the same was remitted, and recommended to the Commissioner to be represented and remonstrated (with the Reasons thereof) to your Majesty, whose gracious Answer therein they now expect.
Eighthly, 'As concerning the Book intituled, A Large Declaration; The general Assembly taking notice thereof, and conceiving that thereby both your Majesty, the Kirk, and Commonwealth were wronged, therefore they gave a Supplication to the Commissioner, and Lords of your Majesty's Privy Council, humbly craving to represent the same to your Majesty's Consideration: Like as in the Articles of Parliament, the States did humbly recommend the Assemblies Supplication: to the Commissioner for obtaining the desire of the said Supplication: Neither did they know a more humble and respective way for redress and removing of the Imputation which lies upon them by occasion of that Book; concerning which, amongst the other Particulars recommended to the Commissioner to be represented to your Majesty, they do confidently expect the return of your gracious Pleasure.
Ninthly, 'As concerning that Proposition, whereby it is desired, That the Commissioners for Shires may be allowed to give in a Roll of Freeholders, out of which the Justices of Peace are to be chosen: The Reason of that desire is, Because the Commissioners of each several Shires know best who are ablest and fittest Men within their own Shires for your Majesty's Service, and good of the Country; which is no ways craved to derogate from your Majesty's Power of chusing, but only as expedient to be past or refused, as your Majesty and the Parliament shall think fit.
Tenthly, 'As for that Act concerning the Disorders in the North; the Reason why the same was craved, did result from the Complaints and Grievances against the Thefts, Oppressions, Slaughters, and great Insolencies committed there divers Years by-gone, and of late in those parts; the Redress and Remedy whereof, and for keeping Peace in that part of the Country, deserves your Majesty's Consideration and Justice; and all that we remember was required of the Parliament, was only, That the former Acts of Parliament made for punishment of those Rapines and Oppressions, might be revived with further Additions, as your Majesty and the Parliament should find expedient and conduceable for the Peace of the Country, which we hope your Majesty will ever tender.
Eleventhly, 'The Reason of that Act craving the Council to be Subalterne and Censurable by the Parliament, is from Warrant of former Laws cited in the Act it self, wherein there is no more craved, but that the former Acts of Parliament against Liars, and makers of Division betwixt the King and his Subjects, may be revived; and that the Session and Council may be countable to your Majesty and Parliament for any Injustice that shall happen to be committed by them.
13. 'As concerning the Act of Pacification, the Warrant and Ground thereof flows from the humble Petitions and Remonstrances of your Majesty's Subjects, when they did clear their Loyalty, and made offer of their civil and dutiful Obedience to your Majesty; which by their humble Supplication to your Majesty's Commissioner, to the Lords of the Council, and to the States of Parliament, inserted and registred in the Records thereof, they have again solemnly renewed, and from your Majesty's Favour in condescending to the Articles of Pacification, wherein your Majesty was graciously pleased that an Act of Pacification or Oblivion should be past; and in the Narrative of the Act it self, there is an humble and thankful acknowledgment of your Majesty's Justice and Goodness, and is drawn up in such Terms as was conceived might best express your Majesty's Fatherly Care and Goodness towards your antient and native Kingdom, without wronging the true loyal Meaning and Intention of your Majesty's Subjects. And as for the Body and legal Part of the Act, the same was after much debating framed, with advice of Lawyers, and consented unto by the Parties chiefly interessed.
14. 'As to that Article anent particular Commissions of Justiciary and Lieutenantry, all that was intended or desired thereby was, That the Abuses of those Commissions might be in all humility represented to your Majesty by your Commissioner; and that your Majesty might be graciously pleased to grant the like Commissions only upon weighty and necessary Causes, and to endure only during this time of necessity; and the Ingivers of that Article were content to have it reformed that way.
15. 'As concerning that Article given for Sheriffs and Stewards, craving, That they may only be obliged to produce Horning for the Taxations; it is not a new Desire, but that which hath bin craved by them in divers former Parliaments; and they think that production of Horning against the Persons liable in payment should be an exoneration to them, because they alledge they want many of the Casualties, Benefits, and Powers which Sheriffs had of old by virtue of their Offices.
16. 'As concerning the Proposition made anent the Patent for Gunpowder; all that we remember was craved by the In-givers, of that Article was, That in respect the Earl of Linlithgow's Patent was void by a Clause irritant in his Patent, whereby he was obliged to keep the Work going, was now decayed, and so the Country frustrate of the Benefit and Profit which might have accrued to them by that Commodity; It was therefore thought fit to be allowed to any who were most fit and able to undergo the work of making of Powder.
17. 'As for the Act given in for discharge of Remissions for Murder, Slaughter, Theft, but upon satisfaction to the Party; all which was intended thereby, was only, That the heavy Prejudices redounding to the Country by Remissions purchased upon misinformations, might be by Supplication presented to your Majesty's Considerations, that by your Majesty's Justice and Goodness, the like Inconveniencies may in time coming be prevented.
18. 'As for the Act craving the discharge for Protections; it was nothing but the reviving of two former Acts of Parliament, viz. the 47 Act Parl. 11. and 15 Act Parl. 23. of King Ja. 6. without any other derogation to your Majesty's Power or Authority, which was done with the Commissioner's consent.
19. 'As for the Act concerning Common Relief. The Reason is, Because as the Blessings of Religion and Peace, which from your Majesty's happy Government, and fatherly Affection to your Majesty's antient and native Kingdom, (especially at this troublesome Time) are common Benefits, whereof every good Subject ought to be sensible, so it is agreeable with Reason and Justice, that according to their Interest every one may contribute a proportionable part of the Charges which hath been spent for so good ends; and the ordinary Cause for which Taxations are granted, are ad revelationem Imperti ob conservationem Libertatis, ac Dignitatis, ac Religionis, vel utilitatem communem subditorum: Wherefore albeit some be adverse, yet the Consent and Voices of the most part should oblige for these ends; whereunto your Majesty's Consent and Royal Authority is humbly craved to be added, that the same may flow from your Majesty's Justice and Goodness, and have execution to inferior parts thereof, since the whole Commissioners of Shires and Boroughs, and the whole Nobility (very few excepted) are content freely and willingly to make offer of their proportional part thereof.
20. 'As for that Article craving the Act 1633, ordaining that Conformations and Infeoffments of Ward-lands shall not prejudge the King's Ward to be repealed; there was no Dispute nor Conclusion made there anent in Articles, neither (as we remember) was it craved by that Article, that the Act 1633 be repealed simply, but that the meaning of that Act may be explained and interpreted.
21. 'As for the Article or Act anent the Duty paid to the Conservator upon Coal; The same was craved to be discharged by the Coal-Masters, because it was an unlawful Exaction, which he had no Warrant to exact by his Gift, which was instructed in Articles by production of his Gift, whereupon the Act was past in Articles.
22. 'The Article craving Ammunition and Arms brought in, to be Custom-free, is warranted in Law in so far as the Commodities exported or imported for the particular use of Noblemen, Barons, and Free-holders, which are for the King's use, and not to be sold again, are by Act of Parliement declared to be Custom-free.
23. 'As concerning the Articles anent the Election of the President of the Session, and Admission of the Judges presented by his Majesty: There was no new thing craved thereby but the ratifying and approving the 39 Act Parl. 6. King Ja. 6. 1579. and that allanarly, so far as concerns the freedom of Election to be made by the Senators of the College of Justice of the President thereof, without any other Clause of the said Acts; neither doth the Act given in bear any thing concerning the admission of any other Judges presented by your Majesty.
25. 'As to the last Proposition concerning the Opposition made by the rest of the Clerks against Mr. William Hay's deputation in his Father's Place, the Commissioner to whom they did produce their Reasons in Writ can best give account thereof. And albeit we have in obedience to your Majesty's Commandment (according to our bounden Duty) shewn the Reasons why these Propositions (whereof your Majesty hath taken notice as prejudicial to your Authority) were demanded; yet many of these Propositions are of so small moment (being only and merely about the interest of private Persons) as they are of no publick Concernment,& de minimis non curat Lex; nor doth the Parliament stick upon these, or any other Articles of that kind, any further than they have warrant of Law, and your Majesty and Estates shall find them convenient for the good of your Subjects.
'By all which it is most evident and perspicuous to any who shall without prejudicate Opinion, read and consider the former Proceedings, that we have no new Desires, but those only which are contained in our former Petitions and Remonstrances made to his Majesty, which are agreeable to the fundamental Laws and laudable Practices of that Kingdom, and to the Articles of Pacification; and that our chief and main Desires are, for ratifying the Conclusions of the Assembly, for removing of Episcopacy and the civil Places and Power of Kirkmen, which is condemned in the General Assembly, with consent of his Majesty's Commissioner, as contrary to the Confession of Faith, and Constitutions of that Kirk, and which his Majesty is obliged to ratify in Parliament. And that Religion is the only Subject, Conscience the Motive, and the enjoying of our Religion the only aim and height of our Desires; and whatsoever is craved in civil Business, is mainly for the establishing and preservation of Religion; for obtaining which, we have never strayed from the humble and loyal way of a legal Redress, and are but seeking the performance and consummation of what his Majesty was graciously pleased to condescend unto, and promise in his Declaration of Pacification. And as concerning any other demand about civil Matters required or propounded in Articles, albeit it be most sure from bygone Experience, that the corruption and thraldom of the Parliament hath been the occasion of the corruption and thraldom of our Kirk; and that it is most evident, by all the Registers and Records of our Laws, That the cognition and decision of those Articles doth properly belong to the Parliament; and that we have proceeded upon no other Grounds, than the Laws and ancient Practices of that Kingdom, (never before questioned, but inviolably observed as the only Rule of our Government); yet it hath been offered that we would not adhere, nor stick upon any of those Articles for civil Businesses, but only upon such as were absolutely necessary for establishing of Religion and the peace of the Kingdom, without the least trenching upon his Majesty's Authority: Like as the Articles themselves are no Conclusions, but only motions and desires propounded to the Lords of Articles to be prepared for the Parliament: That after his Majesty and Estates have advised and pondered upon the Reasons and Equity of those Demands, they may either enact or refuse the same, as in their Judgments they shall think most expedient; and so the proponing of those Demands upon reasonable and legal Terms, and which are so justifiable both in Law and Practice, can never give just occasion of his Majesty's Indignation and Displeasure; far less can the same be any Ground or Cause to incense his Majesty to use that Power which God hath put in his Hands for maintenance of Religion and administration of Justice, to the overthrow and destruction of his Subjects, who are ready to give ample and real Testimony before God and the World of their loyal and dutiful obedience to his Majesty. Wherefore the occasion and cause of Wars may be sought elsewhere without the bounds of the Assembly and Parliament, which are the supream and lawful Judicatories of that Kingdom, by which, next under God, the Purity of Religion hath been conserved, his Majesty's Authority and the Liberties of the Kingdom have ever been upholden. But it is as clear as the meridian Light, that all our Troubles and Commotions do proceed from those Churchmen justly ejected from this Church, who being hopeless to regain their former condition, (if all things take a legal, fair, and orderly Conclusion in Scotland) do spightfully labour to bring Church and State (from whence they came) to confusion, and to re-enter by force of the English, with assistance of such as are popishly affected, and of some disnatur'd Countrymen, who for their own ends thinking to reap Fruit from the ruin of others, and delight to fish in troubled Waters, for bettering of their own Condition, (otherwise desperate) or for preventing the Challenges and Punishments they have justly deserved, and that their Faults may be drown'd, and themselves escape in the midst of so great a confusion. And because the Prelats, and such as are popishly affected, can hardly by themselves alone afford so much Money as to entertain a constant War, they have assented to a Parliament, wherein they expect upon some fair promises of removal of such things as are grievous unto you for the present, to allow you to open your Purses wide, and to contribute largely with your Means and Assistance against us, that when they have by force subdued us, they may the more easily establish their Tyrannical Hierarchy over you. But we hope that the God of all Truth and Wisdom, who hath wrought all our Works for us, and doth offer you this fair opportunity, will give you Courage and Wisdom, that you suffer not your selves to be deluded; but that as those whom God hath joined with us in one Island, and under one King, and are as feeling Members of that mystical Body whereof Christ is the Head, you will have a sympathy with us of those great pressing Evils which do so much trouble the Peace of both our Kirks and States, and will by the Effects and Streams be led to the Cause and Fountain of the Disease, that the same may be perfectly cured; which can come to pass no other ways than by taking away the Wicked from before the King, that his Throne may be established in Righteousness: and we shall henceforth, from the influence of his Government, reap the sweet Fruit of Truth and Peace; and (God getting what is God's) we shall live together like Brethren in a blessed harmony, and pay to our Cœsar the Tribute of chearful Obedience which becometh good and faithful Subjects.
At Whitehall the 11th of March, 1639.
This day his Majesty being present in Council, was pleased himself to make known to the Lords what had passed at the Committee appointed by his Majesty to hear those Lords and Gentlemen that came lately from Scotland, pretending to be sent from the Parliament there.
'In the first place his Majesty acquainted the Lords, That after those Scotish Lords and Gentlemen had subscribed the Petitions which they had formerly presented to his Majesty, and had been read at the Board, order was given to the Earl of Traquair, his Majesty's Commissioner, to assign them a time to be heard of the Committees; which falling out to be at the time of his Majesty's being at Hampton-Court, they refused to come to the Committee, alledging, That they had Order and Instruction to treat with none but his Majesty himself: Whereupon his Majesty appointed them to attend him at the Committee on the day of his remove to Hampton-Court, which was the third of March; at which time they did attend his Majesty accordingly.
'Then the Lord Loudon made a long Speech, the effect whereof was, A Protestation of the Independency of the Parliament of Scotland, and that it was subject to no other Judicatory; and a profession of their Affection and Loyalty to his Majesty, with a Justification of their Proceedings in the Assembly and Parliament, as agreeable to the Articles of Pacification, and to the Laws and Practices of that Kingdom; and thereupon desired, That his Majesty would ratify and confirm those their Proceedings. And for that purpose they petitioned his Majesty to command that the Parliament might proceed freely for the determining of all the Articles delivered unto them, for the establishing of Religion and Peace in the Kingdom; undertaking that whatsoever Objections or Informations should be made against their Proceedings in Parliament, (provided they received them in writing) they would give a satisfactory answer to them.
'This Discourse ended, his Majesty demanded what Power and Commission they had to give him satisfaction, and to oblige those from whom they came? for if they had none, he must hear them upon great disadvantage, they expecting Satisfaction from him who had certainly Power to give it, but they had no Commission to render the like to him.
'His Majesty asked who should be Judge of that? They answered, The Law would appear so clear that there would be no need of a Judge. And though his Majesty insisted much hereupon, they would give him no other Satisfaction. But they presisting to assert they had Power and Commission, and would bring them to his Majesty; they were ordered to do so at the next Meeting, and so for that time they were dismissed.
'Upon the 9th of March, after his Majesty's return from Hampton Court, they attended his Majesty at the Committee again. There they produced Instructions signed by some Scotish Lords, and some other Persons of no great eminency; which Instructions having been read, were judged by his Majesty (all the Lords of the Committee concurring in the same Opinion) to be no Commission, and that they had no Power or Authority by them to give his Majesty Satisfaction, or to oblige those from whom they said they came, to any thing that his Majesty should yield to or desire. Wherefore his Majesty demanding whether they had any other Power? they said. They had a Paper formerly subscribed by some of the Lords in Parliament, by which the Earl of Dunfermling and Lord Loudon were only authorized to come and present their Justification to his Majesty, and said, they could for the present have no other, the Parliament then not sitting. Whereupon they were required to withdraw; and his Majesty advising seriously with the Committee what was best to be done in this weighty Business, and also considering, that if they should be dismissed without further hearing, they would take occasion to clamour, his Majesty resolved (that although he found himself bound neither in Honour nor Justice to hear them any further, they having offered no Foundation for an Accommodation, nor having Power to do it) yet to the end that no colour of sinister Construction might be left, and that his Majesty might justify himself to God and the World, that he had omitted nothing on his part that might tend to Peace, and to the setling of a better Intelligence between his Majesty and them, that he would continue to hear them, and would make his Objections to such Particulars as had been proposed in Parliament, and against which he had just grounds of Exception, that so it might appear whether they could give him that satisfaction which they had promised and presumed they could do, or not.
'Upon this they were called in again, and his Majesty making this known unto them, not one of them made shew of the least sense of this his Majesty's Grace and Goodness so expressed to them; which the Lord Marquess Hamilton observing, took occasion of himself to say, That though he was not of their Company, yet being a Scots Man, he held himself obliged to acknowledge with all humility this his Majesty's singular and princely Favour to his Country, and besought him to accept his most humble Thanks for it. This drew them on to do the like, and so they presented their humble Thanks to his Majesty on their knees.
'His Majesty having thus acquainted the Lords with this Business, commanded the Instructions to be read at the Board; which being done, the whole Board unanimously concurred in Opinion, that the Petitioners had not Power nor Commission to give his Majesty Satisfaction, but only to endeavour to justify and maintain their former Proceedings. Whereupon his Majesty commanded this Judgment of the Board, together with the former Proceedings upon the whole Matter, to be passed into an Act of State, and to be register'd and remain upon Record in the Council-Book.
'Upon Wednesday the 18th of March, his Majesty being in Council again, was pleased to acquaint the Board with what had passed at the Committee since the former Meetings, and that the Petitioners had produced the Paper above-mentioned, subscribed by some of the Lords of Scotland in Parliament, by which the Earl of Dunfermling and the Lord Loudon only were heretofore authorized to come and present their Justification to his Majesty; which Paper his Majesty having commanded to be read to the Board, the Lords unanimously then also agreed that the Petitioners had no more power by this Paper.