Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Daniel Hamilton v. Hugh Cuninghame
Date: 10 December 1702
Click here to view a pdf copy of this documet : PDF Copy
The Duke of Lennox, as heritable Admiral of Scotland, takes the oaths before the Queen at London, in presence of the Duke of Queensberry, and other Scots privy councillors, and then gives a commission to Mr James Graham, advocate, to be his admiral-depute, and to Daniel Hamilton, the Lord Belhaven's brother, to be his clerk; which they intimated to Mr Robert Forbes, present admiral-depute, and to Hugh Cuninghame, present admiral-clerk; and craving they might forbear the exercise of these offices, as having no farther right; which they refused, in regard they were in possession by virtue of their gifts from the late King William. On this Mr Graham held a court, and caused cite Hugh Cuninghame to deliver up the records to Daniel his clerk; and he being absent, decreet is given against him; whereon he craving horning to charge, the clerk of the bills scrupled to write thereon, in regard he knew there were others in the actual possession of these offices, both as admiral-depute and clerk: which made Daniel give in a bill to the Lords, complaining, that the clerk refused to give him horning against Hugh Cuninghame, and craving a warrant to command him so to do.
To which it was answered,—That King William, jure coronœ, had given commissions to Mr Forbes as judge, and Mr Cuninghame as clerk, and they have been in possession, and cannot be summarily turned out; but, if the Duke of Lennox have any right, they may pursue them in a declarator, where they shall get an answer: And the Lords, in the competition between Sir Patrick Aikenhead and Sir Walter Seton, for the commissary-clerkship of Edinburgh, put them to a declarator.
It was replied,—That nothing debarred the Duke of Lennox's right but his not being qualified; and that Charles II. had given it to the Duke of York during his lifetime; so that King William had no right to dispose of these offices, but only supplendo vices, and as caducum by King James's abdication: so that both these impediments being removed, the one by King James the liferenter's death, and the other by the Duke of Lennox's taking the oaths before the Queen herself, there can remain no more doubt or question of his right; just as, in other heritable offices of sheriffs or regalities, when the heritable sheriffs, &c. did not qualify themselves, the King and his Privy Council did nominate deputes, clerks, and others, supplere vicem for the interim, that there be no defect nor stop in the administration of justice; but how soon these parties qualified, then immediately these deputations became, ipso facto, void and null. And it was never heard that a fiar, on the death of a liferenter, needed a declarator before he could enter.
It was suggested, That the Duke of Lennox, at the time of his qualifying himself, had promised to the Queen not to fill these offices without her consent: But that being in causa, the Lords considered there was no more at present before them, but if horning should be granted for bringing the affair summarily in; and, by plurality, it carried in the affirmative, that horning ought to pass in this case.
