<!DOCTYPE ETS PUBLIC "-//UMDLPS//DTD EEBOPROOF 2.0//EN">
<ETS>
<TEMPHEAD>
<REVDESCR>
<CHANGE>
<DATE>2014-10-06</DATE>
<RESPSTMT>
<NAME>Mona Logarbo</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Proofed and reviewed as part of batch B140721.pdcc.</ITEM>
</CHANGE>
</REVDESCR>
</TEMPHEAD>
<EEBO>
<IDG S="marc" R="UM" ID="B04977">
<STC T="W">R1098A</STC>
<STC T="C">R182669</STC>
<BIBNO T="oclc">52614884</BIBNO>
<VID>176036</VID>
</IDG>
<TEXT LANG="eng">
<BODY>
<DIV1 TYPE="text">
<PB N="1" REF="1" MS="y">
<HEAD>REPRESENTATION Anent the U&s;efulne&s;s and Nece&s;&s;ity of Commi&s;sar-Courts.</HEAD>
<P>THe U&s;efulne&s;s and Nece&s;&s;ity of Commi&s;&s;ar-Courts, both for the Convey|ance of Moveables, &amp; Deci&s;ion of Actions competent to the&s;e Judicatures, is &s;o well known, that it were unnece&s;&s;ary, to Repre&s;ent the Con&s;equen|ces, that might ari&s;e by the Suppre&s;&s;ion of the&s;e Courts: Yet in re&s;pect, that the Nature of the Judicature, the Methods of their Procedure, and Subject anent which they are Ver&s;ant, are be&s;t known to Lawyers, and that the Abu&s;es and Exactions of &s;ome Commi&s;&s;ars within the Kingdom, may have created Preju|dices in the minds of &s;ome of the Leidges, to whom the Ri&s;e and the U&s;eful|ne&s;s of the&s;e Courts are not known: Therefore, the Prejudices again&s;t them, may be thus obviated and removed.</P>
<P>As
<LIST>
<ITEM>1. The&s;e Courts have been con&s;idered by &s;ome, as a Con&s;equence of Popery, or Epi&s;copacy: And therefore, that they ought to be Aboli&s;hed with Bi&s;hops.</ITEM>
<ITEM>2. That the Confirmation of Te&s;taments, or other Proce&s;&s;es competent to them, may be remitted to other Inferior Courts, re&s;erving &s;uch as are of the greate&s;t Importance, to the Lords of Se&s;&s;ion.</ITEM>
</LIST></P>
<P>It is an&s;wered, 1. That Commi&s;&s;ariots had not the lea&s;t dependance upon Epi&s;co|pacy at their Erection, for at the Reformation when Popery was aboli&s;hed, all the Of|ficials Offices which depended upon that Clergy, were al&s;o extingui&s;hed, &amp; in place thereof the Commi&s;&s;ariot of <HI>Edinburgh</HI> was then erected, with an immediat de|pendance upon the Crown, &s;o that the&s;e Commi&s;&s;ars had neither the ri&s;e when Epi&s;copacy prevailed, nor did any ways depend upon Bi&s;hops; and by their Ere|ction, there was little or nothing left to other Commi&s;&s;ars through the King|dom, either as to Juri&s;diction or Emolument; and the Forms of the Judicature, als well as the Juri&s;diction, and Execution of the Decreets thereof, were whol|ly altered from what was practized by the Officials, &s;o that there remained no|thing Eccle&s;ia&s;tick in the Judicature, but that the mo&s;t favourable Ca&s;es were Remitted to it, which Piety and common Hone&s;ty required to be managed and di&s;patched with the greate&s;t Care, Tenderne&s;s and Diligence.</P>
<P>The Commi&s;&s;ars of <HI>Edinburgh</HI> continued to enjoy a general Juri&s;diction over the Kingdom from their Erection in <HI>anno</HI> 1560, till Epi&s;copacy was E&s;tabli&s;hed in the year 1609; and the &s;ame Parliament 1592, which did fully e&s;tabli&s;h Presbytery, did Ratifie the Commi&s;&s;ariot of <HI>Edinburgh,</HI> as ap|pears by the 25th Act of the printed Index of the unprinted Acts of that Parlia|ment.</P>
<P>The Quots of Te&s;taments were exacted and applyed to the Lords of Se&s;&s;ion, after the aboli&s;hing of Popery, till the year 1<GAP DESC="illegible" EXTENT="1 letter">09: and by a Clau&s;e of the &s;ixth Act of the Paliament holden that year, the Quots were appointed to be payed to the &s;everal Arch-Bi&s;hops and Bi&s;hops.</P>
<PB N="2" REF="2">
<P> At the E&s;tabli&s;hment of Epi&s;copacy the &s;aid year, Commi&s;&s;ars were appointed to confirm all Te&s;taments within their re&s;pective Diocies, and the Arch-Bi&s;hops and Bi&s;hops ob<GAP DESC="illegible" EXTENT="2 letters">ined the Quots thereof, as is fully expre&s;t in the &s;ixth Act <HI>Parl.</HI> 1609, but the Parliament had that regard to the privat Right of the Commi&s;&s;ars of <HI>Edin|burgh,</HI> then in Office, and even to their Succe&s;&s;ors, that no di&s;membration of the Ju|ri&s;diction of that Court could be obtained, till the Commi&s;&s;ars of <HI>Edinburgh,</HI> their con&s;ent were fir&s;t procured, and a rea&s;onable Satisfaction made to them and their Succe&s;&s;ors; and to this end the Arch-Bi&s;hops and Bi&s;hops upon the one part, and the &s;aids Commi&s;&s;ars upon the other, entered into a Submi&s;&s;ion anent what &s;ati&s;|faction &s;hould be made to them, whereupon there followed a Decreet Arbitral upon the <GAP DESC="blank" EXTENT="1 span"> day of <HI>June</HI> 1609.</P>
<P>Thereafter the Commi&s;&s;ars Offices were always during Life, and the Court was &s;till a civil Judicature, without any other Dependance upon the Bi&s;hops, than that of Pre&s;entation, and the Right of Quots: And therefore, during the Suppre&s;&s;ion of Epi&s;|copacy, the Commi&s;&s;ars did continue in the &s;ame Condition, only depending upon the Crown, and when Bi&s;hops were re&s;tored in the year 1662, though all other Deeds to their Prejudice; after the year 1637, were re&s;cinded, yet the Rights of the &s;everal Commi&s;&s;ars Offices, were expre&s;ly Ratified.</P>
<P>When Presbitry was la&s;t e&s;tabli&s;hed in this Kingdom, there being then greater Exactions in the&s;e Courts, than at this time, there was a De&s;ign to have Suppre&s;t that Judicature, on the &s;ame Grounds formerly mentioned, but the Ca&s;e being fully Con&s;idered, it was found, that the Court had no Dependance upon E|pi&s;copacy and that the u&s;e thereof, was &s;o univer&s;ally Di&s;&s;eminat through our Law, that any Inva&s;ion upon the &s;ame, would in con&s;equence, have overturned the mo&s;t nece&s;&s;ary Foundations thereof: And therefore, they did continue, during all the time of Presbitry.</P>
<P N="2">2. The &s;ame Grounds that did formerly &s;atisfie the Parliament, That the Commi&s;&s;ariots could not be &s;uppre&s;&s;ed, by annexing of their Offices to Sheriffs or Lords of Se&s;&s;ion, mu&s;t &s;till &s;atisfie.</P>
<P>For 1. It is to be con&s;idered, That the annexing their Offices to another Judicature, doth import, the nece&s;&s;ity of the being of that Office: and &s;eing the Office mu&s;t &s;till continue, it is mo&s;t ju&s;t, that it do remain in the per&s;ons of tho&s;e, who have fitted them&s;elves for their Imployments, and who have ac|quired the&s;e Offices, for mo&s;t onerous Cau&s;es during life; So that albeit the publick Intere&s;t of the Nation, might preponder the Intere&s;t of a privat Party, &s;o far as to &s;uppre&s;s an unnece&s;&s;ar Office, yet the &s;ecurity of privat Right, doth require, that &s;o much of that Office as doth remain, &s;hould pertain to the&s;e who are legally po&s;&s;e&s;t of it, rather then to be gratuitou&s;ly given to others, who have no claim to it.</P>
<P N="2">2. Sheriff&s;hips and Regalities, are oftimes heretable; and &s;uch as are not &s;o, are not &s;upplied by per&s;ons cho&s;en, upon any con&s;ideration of their fitne&s;s or ca|pacity, in the Deci&s;ion of Matters of Law, the Bu&s;ine&s;&s;es that falls before them, being commonly po&s;&s;e&s;&s;ory, or concerning the Peace of the Country, which are not of Intricacy; whereas the mo&s;t nice, delicat and preci&s;e Debates in our Law, do ari&s;e upon the&s;e Subjects, which properly are re&s;erved to the Commi&s;&s;a|riots, as the Conveyances of Moveables, in which a thou&s;and delicat Debates do a|ri&s;e, which have never yet fallen under the Deci&s;ion of any other Court; and the particular knowledge of this great Branch of our Law, is pre&s;erved by the practice of Commi&s;&s;ariots, to which the Lords have no &s;mall regard; And are altogether un|known to other Inferior Judges within this Kingdom.</P>
<PB N="3" REF="2">
<P> The Debates al&s;o ari&s;ing anent Teinds, are &s;ubtile and various; as mo&s;t of all the Ca&s;es that are particularly re&s;erved to Commi&s;&s;ariots, and could not be fitly determined by any other Inferior Judicature; neither can the&s;e ca&s;es be properly decided by the Lords of Se&s;&s;ion, becau&s;e of the multiplicity of Bu|&s;ine&s;s depending before them, which would render Parties attendance mo&s;t chargeable and expen&s;ive. Whereas, many Affairs concerning Orphants, Wi|dows and poor people, cannot admit of delay, nor bear the nece&s;&s;ar Ex|pence of &s;uch Proce&s;&s;es before the Lords; and therefore the Commi&s;&s;ars do, and mu&s;t proceed Se&s;&s;ion and Vaccance, as Affairs occur; and their Summonds are peremptor without continuation: So that Parties have always their proper Judge at hand, which would all be contrare, if the Cognition of the&s;e Matters were taken to the Lords.</P>
<P N="3">3. There is no Nation that wants a particular Judicature, for Con&s;i&s;torial matters: So that the ground of Clamour being only in relation to the abu&s;es, and exorbitant exactions of &s;ome Commi&s;&s;ars, the natural con&s;equence is only to Regulat their Rates; for which effect, &s;everal Commi&s;&s;ions have been granted, and the Commi&s;&s;ars are fully &s;atisfied, that there be an effectual cour&s;e for Regu|lation, both of the Dues of Te&s;taments, (which is &s;pecial in their Courts) and of ordinar Actions, wherein their ca&s;e is common with other Judicatures, and that in the &s;aids Regulations, there be a due regard had both to the rea&s;on|able ea&s;e of the Leidges; and al&s;o that there be a competent Emolument left to the Po&s;&s;e&s;&s;ors of the&s;e Offices, which may enable them to the diligent and faithful Exerci&s;e thereof, and may encourage others of good capacity to breed and fit them&s;elves for the di&s;charging of the &s;ame; For if &s;ome competent Emolument do not remain, it cannot be expected, that &s;uch as are mo&s;t fit and proper for the&s;e Offices, will imploy their time improfitably in them, whereby they will fall in the hands of Ignorant, Unskilful per&s;ons; which will be very prejudicial to many per&s;ons, who&s;e affairs, mo&s;t nece&s;&s;arly fall to be con&s;idered in the&s;e Courts, and that which was mo&s;t Grievous and Burden&s;om to the Leiges, was,</P>
<P N="1">1. The Quots of Te&s;taments, which of all other Charges, was mo&s;t unwilling|ly paid; And by the aboli&s;hing of Epi&s;copacy, is now laid a&s;ide; And next, the &s;ummar Charges of Horning, formerly given to Confirm Te&s;taments, which by the late Act of Parliament are di&s;charged. So that a rea&s;onable Regulation of the ordinary Dues, payable to the Commi&s;&s;ars, will disburden the Leiges of all that was grievous in that Court, and &s;et known bounds to any particular Com|mi&s;&s;ars who have been u&s;ed to exorbitant Exactions, who were mo&s;t part the&s;e who were at greate&s;t di&s;tance from the Seat of Ju&s;tice, whereby the Leiges had neither Information of what might be ju&s;tly exacted, nor could without great charge obtain Redre&s;s, which by &s;ome living in the&s;e Bounds, was looked up|on as the practices of all the Commi&s;&s;ars of the Kingdom.</P>
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
