Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Clerks of Session, Petitioners
Date: 1 November 1695
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November 1.—The first thing moved to the Lords was the executing that part of the new regulations anent the Clerks, and if they were recorded in the sederunt-books according to the order given at last meeting in summer; and, finding the quorum had dissolved them before the warrant was got signed, the Lords renewed the order, and appointed them to be presently recorded in their books.
Then Mr James Dalrymple, as the oldest Clerk, and in name of the rest, presented a petition desiring they may be heard why they could not comply with these articles of regulation which concerned them; in respect they incroached on their rights and properties established by former laws.
The Lords rejected this bill as general, and not condescending on the particular rights wherein they conceived themselves prejudged.
Then they produced a bill containing a more special representation of their grievances by the regulations, bearing, That, by a table of prices made in 1606, and ratified in the Parliament 1521, and the regulations established in 1670, and confirmed in the Parliament 1672, and by the 38th Act, 1686, their dues were settled in such manner that they were neither capable of alteration, dismembration, or diminution; and that the Act of Parliament 1693, empowering the Commission to regulate judicatories, and particularly the Session, spoke only of trying abuses, exorbitancies, and corruptions. Now, their fees could come under none of these denominations, being established by law; and consequently the Commission had not power to retrench these; and so had exceeded their mandate, and acted ultra vires.
The Lords found themselves not competent Judges to cognosce upon the actings of the Commission, which had the force of an act of Parliament; though it was urged that the Lords were judges to all cases of property, as this was. But it was answered, That, though their office might be called, in some respects, their properties, if any were putting them out, yet every perquisite and alleged due of it was not such. So the Lords waved it.
Then the Lords were desired to recommend them to the members of the Commission for redress or rectification of such articles as they thought heavy. The Lords shunned to do it in writ; but recommended their case, viva voce, to such of their number as were upon that Court.
November 6.—The Clerks gave in a new bill, craving to be exemed from the oath imposed by the regulations; seeing, by these made in 1672, it was found an ineffectual method to secure them; and therefore, by an Act of Parliament in 1681, the statute, in so far as it imposed an oath on Advocates and Clerks for observance, was rescinded; and that, by the claim of right in 1689, oaths seemed to be pointed at as a grievance and snare; and they, by their words of honour, would engage to keep with the salary prescribed.
Some Lords urged to forbear exacting their oaths till the Clerks might procure a meeting of the Lords' regulators to hear them. But the plurality carried, That they behoved either to give obedience, or the Lords must debar them from acting, which would cast the session loose.
Then the Clerks pleaded, That Clerks were only appointed to swear at their admission, which did not concern them who were admitted already. But it was thought that the regulations arising from complaints against the Clerks presently in office, it were strange if they were free, and only entrants to swear: So, whatever ambiguity was in the clause, the regulators having declared its meaning, they behoved, before officiating, to give their oaths.
Their next refuge was, That they craved it to be marked that their compliance with these regulations, and taking the oath, should not tie them up from craving redress and rectification of what they thought heavy upon them, according to law; and that the words of the oath, anent their holding themselves content with their salary, should import no more but their submission and acquiescence, and should bind them no longer than the law imposing it stood. This was yielded to by the Lords, and recorded in that manner in the books. Whereupon they were all sworn.
Then their servants, the under-clerks, being called for, they presented an address, showing how mean their allowance of £1000 per annum was; and that there was latitude for the Lords to augment them in some omitted articles. The Lords were sensible of the hardship; but found they could do no more but recommend them to the Commission to reconsider their case with all the favour they could.
The next thing was to settle a Collector; and the competition arising between Thomas Pringle, Stitchell's brother, and James Hamilton, brother to the Laird of Orbiston, the last carried it. And the Clerks were allowed to read all the bills which were in their hands the last session and then paid for without being marked by the Collector; seeing the lieges ought not to pay for them again. And the Lords signed Mr Hamilton's commission; and he gave in a bond, with a cautioner, for his faithful counting; and gave his oath that he should exact no more but the dues allowed by the act. And, in regard it would be too burdensome for him to discharge it all in his own person, they permitted him to make use of servants under him, they being such for whom he would be answerable.
