Act of the Commissariats and Jurisdiction given to Archbishops and
Bishops.
24th June 1609.
Our Soveraigne Lord, understanding that in all well governed
republicks, the jurisdiction civill and ecclesiastick are severall,
distinct, and divers jurisdictions, whilk aught to be administrat
by the persons to whom the same properly belangs; and according to
his Heighnes most loving and princely affection born alwise to the
Christian reformed Kirk within this realme, being maist willing that
the said Kirk should bruike and joyse their liberties, priviledges,
freedom, and jurisdiction granted to them by his Majesty, (from whom
only their temporall jurisdiction doth flow,) and in that regarde
belanging to them as being ane of the estates of Parliament maist
necessare to be mainteined for giving their advice, counsell, and
assistance in all his Majestie’s great and waighty affaires, hes
with expresse advice and consent of the Estates of Parliament,
restored and redintegrate the Archbishops and Bishops of this realme
to their former authority, dignity, prerogative, priviledges, and
jurisdictions lawfully pertaining, and shall be knawne to pertain
to them, (alwise flowing from his Majesty, alswell as any other
ordinar jurisdiction doth,) and specially to the jurisdiction
of Commissariates, and administration of justice by their
commissioners and deputies in all spirituall and ecclesiasticall
causes contraverted betwene any persons dwelling within the bounds
and diocies of their prelacies and bishopricks; with full power
to the saids archbishops, bishops, and their successours in all
tyme hereafter, to nominat and create sufficient wise, discreit,
and learned men best acquainted with the law and practick of this
realme, to serve and administrat justice in the saids places of
judicatorie, to constitute clerks and all other under officers, sa
oft as the same shall vaik by dimission, decease, deprivation, or
otherwyse, and to provide others in their places, with as great
freedom and liberty as any archbishops or bishops in this realme
formerly hes done. Whilks commissares to be nominat and create
by them, shall judge and decyde in all causes belanging to their
judicatory. And wherein the commissares presently in office are in
use to decyde, keeping the same style and forme whilk is presently
observed, and that manner of proceeding whilk shall be prescryved
and injoyned to them by speciall injunctions without any alteration
of the present lawes, or introduction of new and uncouth practicks
upon the subjects and leiges, and shall have power of confirmation
of testaments every ane of them within their awin bounds. The quotes
thereof to be payed to the archbishops, bishops, their chamberlanes,
factors, and under-receavers appoynted by them. For the better
effectuating whereof, his Majestie and Estates of Parliament ordeins
letters of horning to be given and granted by the Lords of Session
in that same very sort that the commissares present hes it, for
execution of all their sentences and decreits whilk shall happen
to be pronounced by them, and compelling of persons to enter and
confirme the testaments of their defuncts in the very same manner
that formerly hes been done. And for mainteining all things in
better order, and the restraining of unlawfull divorcements, over
frequently practised within this realm, to the heigh dishonour of
God and slander of the true religion, His Majesty, with advice and
consent foresaids, hes statute and ordeined, that in the burgh of
Edinburgh there shall be resident alwyse four commissares, twa to
be nominate and appoynted by the Archbishop of Sanct-Androes, and
twa by the Archbishop of Glasgow, wha shall have the only power to
decide in all causes of divorcement. As likewise shall have power of
reduction of all decreets pronounced by any other commissares, to the
hurt and prejudice of any of the leiges; before whom it shall be only
lawful to intend and persew reductions of inferiour commissares their
sentences and decreets _in prima instantia_. And in case the saids
commissares to be appoynted by the Archbishops of Sanct-Androes and
Glasgow, as said is, performe not their duety, the Lords of Session
shall have power to try, cognosce, and determine in the same; and
shall judge upon all decreets and sentences alledged to be wrangously
pronounced by them. And that because they are his Majestie’s great
consistory, to whom his Heighnes, with advyce of the said Estates,
gives and grants an heigh supreme commission for all sik causes,
to judge and determine of them in sik causes. And declares that it
shall be lawfull to the saids Lords of Councell and Session, to
advocat causes to themselves from any of the commissares, upon just
and lawfull complaints made to them by any of the subjects, and not
otherwise. Provyding alwyse, that the said Session shall ever be
ready to give an account to his Majesty, that their advocations have
bene grounded upon probable and lawfull grounds for the well of the
subjects. And that this foresaid Act may be put in present effect,
his Majesty, with advyce foresaid, declares all former erections
of commissariates to be suppressed and extinct from this forth and
for ever, all constitutions that have bene in former tyme of the
same in whatsoever part of the realme the same hath bene erected,
and by whatsoever manner the same hes proceeded, Act of Parliament,
Secreet Councell, and others made thereanent. And in lyke manner,
discharges and annulles all presentations, gifts, or dispositions
made by his Heighnes to the commissares present, or to any other
concerning the said commissariates, and all rights acquyred by them
by decease, dimission, or howsoever the same hes vaicked, and all
gifts and dispositions made in favours of their clerks and members of
court, by whatsomever manner of order the same hes proceeded. With
this provision alwyse, that the commissars presentlie in office,
their clerks and others members of court, wha shall be authorized
with testimoniall from the Lords of Session of their sufficiencie
and qualification to their severall places and offices, shall bruike
and joyse the same, they alwyse receaving new presentation and gift
of their offices from the archbishops and bishops of their diocies
where they serve, betwene and the first day of December next to
come. Otherwise, if in case the saids commissares and others members
of court do not produce the foresaid testimoniall from the Lords
of Session, as said is, it shall be lawfull to the archbishops and
bishops to provide other sufficient persons to the saids places.
The restitution of the said jurisdiction alwyse to be with expresse
reservation of his Heighnes and his successours their prerogatives
and supremacie in all causes ecclesiasticall and civill within this
realme. Provyding alwyse, that this present act shall na wyse be
hurtfull nor prejudiciall to the heritable right of the commissariate
within the bounds of Argyle, perteining to Archibald now Earle of
Argyle, but the same to stand in the same force, strength, and effect
as it was before this present act, and notwithstanding thereof, or
any clause therein conteined, _prout de jure_.