Assembly concerning the election of a Clerk, but he desired to know how
Mr Thomas Nicolsone having demitted his right in favours of the young
man his father, and how his Father having enjoyed the office to this
day, how ane other clerk should be elected, he being yet alive?
My Lord Lowdoun answered—That his father being absent, old, and sicke,
could not now supplie the place, and yʳ the Assembly, now conveened,
behooved to see to it, and surrogat ane other in his place—a man of
skill and judgement—seeing he was _civiliter mortuus_—unable to come
hither; yet I speake not this to prejudge his sones benefice, for the
Assembly may consider of it; but if he hes a power from his father, he
may submitt that to the judgement of the Assembly, and the Assembly may
choose ane other without doing wrong to the young man.
The Commissioner answered—If, by reason of Gods hand on the man, they
would yet macke [him] further to be a sufferer and a loaser, seeing
he hath done the pairt of ane honest man, and his gift of office here
doeth bear deputation, why will ye not suffer him to depute his sone in
his place as others have done before? For albeit he be old, infirme,
and sicke, that may not take away his place, if sicknes be on him by
Gods hand, and againe throw time he shall be frustrat of the meanes to
mentaine his life in his old age.
Lord Lowdoun answered—It is charitablie and justlie pleaded, and I
think he should not be prejudgit the meanes of his life in his old age;
but seeing there are here two prejudices in hand—ane to the Generall
Assembly and other personall to the man—the lateis prejudice must yield
to the former, and the Assembly must be served, and the man in his age
and sicknesse supplied ane other way. As for deputation ane other in
his place, we know he hes no power of it.
My Lord Rothes said—That the strenth of his fathers right to the
office was not from Mr Thomas Nicolsones admission, but of that which
the Assembly gave unto him; and what right the young man craved by
deputation, he hath now put it in the hands of the Assembly.
The Moderatour asked—If the clerks place was not vacant for the tyme,
and if it be not vacant, how shall the Assembly be provydit for a clerk
for the tyme?
My Lord Rothes said—The Assembly calls for a clerk, and his father
compeirs not; how is it furnished?
My Lord Lowdoun answered—Let the young man who craves the right adhere
to it, and let it be decydit by the Assembly, or els submitted to the
Assembly, or els choose your oune Clerk.
Whereupon the young man submitted himselfe to the Assembly.
The Moderatour craved that a lite might be given in for chooseing of a
Clerk, and so a lite of four was given in: Mr Thomas Sandilands, sone
to the clerk, Alexʳ Blair, John Nicoll, and Mr Archibald Johnstone; and
it was requyred that these men that shall be elected shall be obliged
to reside at Edinʳ.
The Moderatour asked the Comʳ which of these four his Grace would voit
into?
The Comʳ answered—That he knew not any of them, neither would he voit
to any of them, becaus he had not as yet seene a lawfull dimission of
the present Clerk.
The Moderatour replyed—Then your Grace will be a _non liquet_.
The Comʳ answered—I desire that the voits of the Assessours nominat by
his Majestie might be asked in a nomination of a Clerk.
The Moderatour said—Seeing your Graces assessours get no voit in
chooseing a Moderatour, being a superiour office, it was not fitt to
trouble them with asking their voit anent the election of a Clerk,
being an inferiour office.
The Comʳ craved that the protestation made yesterday might be read over
againe the day, anent the Kings power in appointing of assessours;
which protestation being red,
The Comʳ craved that my Lord Argyle, Traquair, Southesk, Lauderdaill,
might voit according to his Majesties command, given in severall
letters; which Letters being sein and red,
Traquair craved that these assessours appoynted be his Majestie might
have voit, as the custome was in King James, of worthie memorie, his
tyme; and declaired, according to his Majesties command, he was readie
to assist and give his voit.
The Moderatour answered—That it was not want of due respect to their
Lordships that moved them to refuise your Lordships voits in this, but
onlie to mentaine the Kings libertie—quherfor your Lordship had als
goed reason to be als zealous as any in the house.
Traquair replyed—The imployment of this particular was of such small
moment, that except it were in obedience to his Majesties command, he
would never clame it. As to the Kirks liberties, that they should be
preserved; yet why should any in the Kirk debarr the Kings Majestie
from that libertie which to this day he never wanted in any Assembly?
If the Kings Majestie be standing in a particular possession of
assessours to treat, reason, and voit, who should his Majestie be
dispossessed now?
The Moderatour answered—That they should either condiscend to that
his Lordship craved, or else satisffie him in reason; and said, he
would not deny but his Majestie had, in sundrie late Assemblies,
moe asseasours then his one Commissioner, and yet there were also
many Assemblies that neither King, Commissioner, nor assessours were
present: which late Assemblies he wished this present Assembly had no
reason to put them to the tryall.
Traquair asked—If, becaus the King is not present now, as he was not
present in ane other Assembly, if they would exclude him and these
nominat be him to voit in this Assembly?
Moderatour answered—There was no intention to exclude his Majestie, but
rather wished his Majestie were present to be ane eye witnesse to all
thir proceedings, and that he hoped for great favour from his Majestie
if he were present, and that full satisfaction should be given to his
Majestie, by Gods grace, to everie thing.
Sir Lues Stewart said—Seeing it hath beene in use that his Majestie
hath appoynted assessours, Commissioners, and all perteining to the
Generall Assembly, why not now also?
Lowdoun answered—There were sufficient reasons why it should not be
so, and these reasons were put in the hand of the Moderatour to be red.
Thir reasons being red, why the King only should have ane voit,
Traquair said—Not out of any affection of imployment, but of love to
the obedience of so gracious a prince, doe I take upon me to answer
these reasons; neither yet am I of such sharpness, capacitie, and
quickness of witt, to make answer to everie ane of these particular
reasons; yet seeing we are tryed to make answer, we crave ane copie
thereof that we may give our answer thereto, and desires that this
matter of election of a Clerk may not be put to voiting till our
reasons be heard.
The Moderatour said—It is good reason to be so, and all of us hes
alse good reason to be zealous of the Kings honour, authoritie, and
priviledge, as any, yet his Lordship had alse good reason to see to the
Kirkes weill and libertie—the Mother of us all; and when we perceave
that the Kings Majestie, or any in his name, would urge that which may
encroach upon the liberties of the Kirke, they would labour to satisfie
them in reason.
Traquair said—If I knew any thing would conduce more to the
preservation and priviledge of the Kirkes liberties, then that his
Majesties wonted authoritie should continue in the former vigour, I
would condiscend unto it.
The Commissioner said—I render my protestation, made in name of my
assessours appoynted be his Majestie.
My Lord Rothes said—And we also adhere to the protestation made be us.
Traquair craved that his assessours might eik to his Graces
protestation, which was granted.
Then the Voits of the whole Assembly wer craved anent the election of
a Clerk _ad vitam_, and Mr Archbald Johnston was chosen and admitted
unto all the rights, fies, and priviledges, perteining to ane Clerk of
before, to be extractit at large; who, after the acknowledgement of the
weightiness of the charge, and his insufficiencie for it, embraced it
as having a calling from God, and the honourable Assembly.
The Moderatour desired to be informed if any more was requisite for his
admission but a solemne oath of his fidelitie and diligence?
Mr John Row answered—Nothing further, but that he should bring foorth,
keepe, and preserve the Registers of the Church; at least so many as
shall come in his hands, seeing pitifull experience could show how
these Registers had been marred in former tymes.
Then Mr Archbald gave ane solemne oath of his fidelitie and diligence,
and conscious keeping, and use making of all Registers and documents,
was taken of his acceptance and admission.
The Moderatour said—The Bookes and Acts of all former Assemblies should
be produced, and put in Mr Archbalds hands.
Mr Thomas Sandilands answered—That he had receaved no Registers from
his father, but only two books, conteining some acts from the yeare
1590, till the Assemblie at Aberdein, holden 1616. which therein is
only begunne with the Minuts of the Acts of the said Assembly of
Aberdein, in a paper-apairt with the Minuts of St Androwes following
1617, with the acts of the Assembly at Perth, subscribed be Mr James
Sandilands, and delivered the samen to the Assembly: And, being posed
for the rest of the registers, answered, in his fathers name, that he
had gotten these two from the Bishop of St Androwes, and had never
receaved any moe, neither from him, nor from the Assembly, nor from any
uther.
The Moderatour craved that all the Registers might be had and brought
foorth from the hand of any Clerk or haver of them, affirming that
these bookes had in them matters of greater weight then all uther
evidents of land; for they wer the Kirke of Scotlands MAGNA CARTA,
contayning all her priviledges since the reformation. He wished also
that this Assembly should not be deprived of so powerfull a meane of
information for proceeding in matters to be handled there.
The former Clerks sone affirmed that he had destroyed none of these
bookes.
The Moderatour urged the production of these bookes, and desired the
Commissoner to take course for it.
The Commissioner answered—That he was willing to use any good meane
that could be used for production of these bookes, if any could show
in whose hands they were; for (said he) I desire not that any register
should be absent, but, above all, the Kirkes Registers.
My Lord Rothes said—That, by a warrant from King James, the bookes
wer taken from Mr Thomas Nicolsone and the last Clerk, and put in the
hands of the pretendit bishop of St Androwes, and so of neid, force and
course must be taken for getting of these bookes from the Bishop.
Mr Archbald Johnston said—That, by Gods providence, als many bookes
were come in his hands, as should be able to make up a perfite register
of the whole affaires of the Kirke, from the Reformation until this
day, which Bookes he produced on the table, and declared by whom and
what meanes they wer come to his hands—To witt, Mr Robert Winrahame,
Depute-clerk under Mr Thomas Nicolsone, and from him to Alexʳ Blair; of
quhich bookes there are fyve volumes in folio. But Mr Patrick Adamsone,
Bishop of St Androwes, rent ane of them, and yet there are four to
the foir of them, written be Mr James Richie and Mr Thomas Nicolsone,
qʳof the first two containes the acts of Assembly from the year 1560
to 1572, subscribed by John Gray, Clerk to the Assembly; and the third
volume, fra 1586, till 1590, written and subscrived in the margine be
Mr James Richie, Clerk to the said Assembly—the first Booke being ane
great volume of the Acts of the Assembly, fra the year 1560 to 1590,
(whereof he had but ane len from ane minister,) whereof, the first
four volumes the said Mr Archbald declared he had receaved them from
Alexʳ Blair, wreater, who was servant, and succedit in the place of
modifications of Stipends to Mr Robert Winrahame, who had a deputation
from Mr Thomas Nicolsone, Clerk to the Generall Assembly.
The Moderatour said—These are good and comfortable newis unto the
Church of Scotland—that a perfect Register of the Acts of the
Assemblies are yet to the foir, and that it was neidfull that course
be taken for tryell of these bookes, whether they be these same bookes
written be the Clerks, or be their deputs, or Copies only of these
bookes.
It was answered be the Clerk, That they are the same, written and
subscryved be the Clerkis oune hand, and the leaves riven out of ane
of them be the bishop from the 22 to the 27 leafe, may yet be knewen
be the marked number of the leafes. The first Clerk, Mr John Gray, who
subscribed everie Assembly with his hand. The next is also subscribed;
and ane Memorandum on the first leaf of it, where Mr Archbald Huntar
past to the Chancelour Maitland and receavet that Volume, and this
uther, and the halfe of that which was rent by Bishop Adamsone, is
marked in the next booke. The third booke, and the first act of it, is
the election of Mr James Richie, Clerk; which booke is all of ane hand
write. The ane booke is from the 60 to the 70 year; the next from the
79 wherein the bishop of St Androwes is censured and excommunicat; and
now, in God’s Providence, there is now in the present Clerks hands a
perfyte Register from the 70 year to this last Assembly, for which all
of us have reason to praise God.
The Commissioner said—See that we build on ane suir foundation, and try
weill that these bookes be authenticks.
The Moderatour craved that some judicious men, and skilled in
dignoscing hand writtes, might be nominat for tryell of these bookes;
and intreated the Earles Lawderdaill, Southesk, and Argyle to take
inspection of the Bookes.
Argyle objected his youth and unskilfulness for so weightie a charge,
yet, at command of the Commissioner, declaired his willingnes to assist
the work.
The Comʳ said, that if his aune paines could contribute any thing to
the furtherance of the worke, he would be readie to sit up day and
night, but would not lay the burthen on his assessours; for, he said,
seeing it is refuised that they should be Members of the Assembly,
he said he saw not how they could be appoynted for trying of these
Registers.
The Moderatour answered—We are hopefull that their Lordships will not
refuse to further the good of this Assembly, seeing it is said heir, it
is not for want of due respect we owe to their Lordships, but only for
preservation of the Kirkes liberties, as said is.
The Comʳ said—I cannot see how these that are not granted to be Members
of the Assembly, can cognosce bookes containing matters of so great
weight.
The Moderatour answered, that they can best judge.
The Commissioner said—But I cannot consent unto it. Therefor
The Moderatour said—Let the skilfullest of the Clerks of Session,
Counsell, and burrow Clerks, with the Ministers, such as the Laird of
Durie, the Clerk of Dundie, Mr Alexʳ Pearsone, with their Assessours to
help them of the Ministrie.
Mr James Bonar.
Mr John Row.
Mr John Livingstone.
Mr Andrew Ramsay.
* * * * *
[The Moderator called upon] Mr John Row.
Mr John Row answered—That he had yett in his hands the booke of the
Kirke Policie subscribed be Mr James Richie, Clerk, which will serve to
dignosce the hand writt.
Mr Archbald Johnston said he had the principall Booke of Policie,
written in lumbard paper, in his hand, which also would conduce to that
end.
This being judged to be the fittest way for tryell of the Registers of
the Kirk, and makeing them to be authentick,
The Moderatour desyred that the Commissioner would proceed to try the
Members of the Assembly and the Commissions, that soe the Assembly
might be fullie constitut.
The Commissioner answered—That he who yesterday presentit a written
paper from the Lords of the Clergie, desires that his bill or paper
might be first read for information giving, anent the Members of the
Assembly to be constitut; and becaus the reading of it yesterday
was denyit before a Moderatour was chosen; now ane Moderatour and
Clerk also being chosen, I desire this paper to be read; seeing the
objections qᶜʰ were proponed yesterday are now removed, and that
Doctor Robert Hamilton may be called to produce the paper, written in
name of the Lords of the Clergie and their adherents; who being called,
compeired and presented his paper to the Commissioner, desiring he
would give charge to read it.
The Moderatour said—Some parte of the Impediments of reading it in
publict are removed, but not all; for the Assembly is not as yet
constitut fullie. But, so soone as the Assembly is constitut, it shall
be read before any other bill or paper qwhatsoever.
The Commissioner urged still the reading of it before the Members of
the Assembly were agried upon and constitut, becaus the paper contained
many thinges neidfull to be knowen before the Members of the Assembly
be constitut.
My Lord Lowdoun answered—That the reasons proponed yesterday for not
reading of it, are yet standing in force; and as it was inexpedient
yesterday that it should not be read till a Moderatour was chosen, so
it is yet inexpedient till all the Members of the Assembly be fullie
constitut; for, (said he,) there is no Assembly constitut till the
Commissions of the Commissioners to the Assembly be tryed.
The Commissioner replyed—It is a hard cause, that a man cited before
the Assembly should not be heard to object against the Members of the
Assembly who were to be there judges. Who ever heard that a man accused
as guiltie of a fault, was refused to be heard to object against his
judge?
My Lord Lowdoun answered—If the objection wer now against the whole
Assembly, it could not be read before the Assembly wer constitut to be
judges. But if the objections wer against any particular Member of the
Assembly, it were only fitt tyme to object when that mans Commission
were in reading.
My Lord Rothes said—Let objections be given in against a particular
Member and it may be heard, but cannot be heard against the whole
Assembly before it be constitut; and
The Moderatour eiked—If that paper should open your eyes to give
further light after constitution of the Assembly, that the errour of
not reading it before shall be repented in dew time; for no sooner
shall the Assembly be constitut but it shall be first read.
My Lord Commissioner said—I take instruments of your refusall to read
it.
My Lord Lowdoun answered—It cannot be said that the Assembly hes
refuised till it be ane Assembly constitut. Neither yet is the paper
presented to the Assembly, but to your Grace.
The Commissioner replied—Because ye have refuised I took it; and I
crave it might be read.
My Lord Lowdoun answered—So soon as it is an Assembly, it shall be read.
The Moderatour said—Then let us proceed to the tryell of the
Commissions, that the Assembly might be constitut, and then it shall be
read.
The Commissioner said—I am content, so be my Lords of Clergie receave
no hurt nor prejudice; and before yee proceed, 1 ask documents that
nothing be done in tryell of Commissions, and constituting the said
Members of Assembly, to the prejudice of the said Lords of Clergie;
and I desyre that the newlie constitut Clerk may pen ane act for this
effect and give out ane extract of it.
The Clerk answered—I can neither make nor give out Acts without a
warrand from the Assembly; and the Assembly cannot give warrand till it
be constitut.
Then (said the Commissioner) I will take instruments in the hands of
the Lord Register, seeing the Clerk of the Assembly refuses to write.
The Clerk said—I shall write it quhen the Moderatour gives direction;
yea, I shall write it presentlie, but cannot give ane extract of it
till the Assembly be constitut.
The Commissioner said—If ye be Clerk to all, why not to me? Shall I
make a Clerk for myselfe? I did protest before, that niother the Lords
of Clergie nor their adherents should be prejudged in their dignities
or priviledges, by their refuseing to read their paper, presented by Dr
Robert Hamiltoun; which paper containes reasones against election of
the Members of Assembly.
My Lord Traquair said—It is very hard that these reasons against the
election of such and such Members of the Assembly should not be heard.
The Moderatour said—When the Assembly is fullie constitut, then the
Member complained of shall be removed.
The Commissioner said—I still will protest in name of the Lords of
Clergie and their adherents, that they receave no prejudice by your not
reading of their paper before the Assembly proceed to the examination
of Commissions.
My Lord Traquair said—The protestation is upon your refusall to read it.
My Lord Lowdoun answered—Their refusall is no longer then till the
Assembly be constitut; their reading of it is only deleyed till then.
The Commissioner said—But for my securitie I will take instruments of
all in my Lord Registers hand, till that promise he performed; for,
albeit I be his Majesties Commissioner, yet am I a poor subject, and
must answer for my service.
The Moderatour said—I will judge reverentlie of your Graces
proceedings; yet I may say there is a too too burning haste in these
men for whom your Grace pleads, that they will have their bill read
before the Assembly be constitut.
The Comʳ answered—They have reason to look to themselves, seeing it
stands them now on their reputation, dearer to them nor their life;
and, therefore, thinkes it only now fitt tyme to use their best
defences: for what weight will their reasons have when their parties
are constitut their judges? If myselfe were to be constitut judge, I
would not refuise to heare reasons why I shᵈ not be such a mans judge;
therefore, I requeist the Moderatour to state the question, and ask the
Assembly what they think of it?
Then the Moderatour said—There is a motion made anent the reading of
a paper, given in be the pretendit Archbishops and Bishops, and their
adherents, for clearing of yʳ mynds who are present, concerning the
election of the members of this Assembly, and ye did formerlie refuse
it till the Assembly was constitut. Now, it is urged againe; and,
therefore, I ask, whether it be convenient to read it now, or to delay
it to the Assembly be constitut, and the commissions tryed?
My Lord Traquair said—If my Lords of Clergies information be not read
before the voit and judgment of the Assembly be given, and before
a judicatorie be constitut, it shall be to no purpose thereafter;
therefore, it is only craved that then information may be heard, and no
answer shall be craved till the Assembly be fullie constitut.
The Moderatour said—An absolute judgement of the Assembly shall not be
given without reservation.
My Lord Traquair said—Instruments should be taken before they give out
their judgements, that it prejudge not my Lords of Clergie.
My Lord Lowdoun answered—Ye cannot crave the judges Sentence in this
matter before the judge be constitut.
The Comʳ said—We only crave to informe these who should be judges, and
that reasons should be heard wherefore they cannot be judges.
My Lord Lowdoun replyed—It is no wayes competent to this Assemblie to
heare that information as a judge, before yʳ be a judge, seeing that
information shall be alse valide after the Assembly is constitut as now.
My Lord Traquair said—What if it can be showen by good reason, that
such ane election of the members of this Assembly as ye are about,
cannot be; and if this be, how shall it be tymeous to show it after the
election is made?
My Lord Lowdoun answered—The judicatorie being constitut, it shall then
be judged.
The Moderatour said—Whether should our owne or externall instruments be
first heard?
My Lord Traquair answered—When a judicatorie is to be sett, whether is
it more propper to except against those who are to be judges, before or
efter the judicatorie is established?
The Moderatour answered—They shall be heard; but ourselves must be
first heard.
My Lord Argyle said—I compare these here conveined to be ane assise
nominat, but not yet sworne why may not then we, ane pairtie accused,
informe the assise before it be sworne?
The Moderatour answered—We doe verilie perceave great sufficiencie in
the Commissioners Grace, who only should speake here unto us; and if
your Lo. have any information to give in, doe it in a convenient tyme;
and it is not fitt your Lo. should speake here as a Commissioner; and
it will be hard to us to make answer to every difficultie that such a
number of wittie noblemen can propone.