Records of the Kirk of Scotland / containing the Acts and Proceedings of the General Assemblies from 1638 downwards, as authenticated by the clerks of assembly.

by Church of Scotland. General Assembly

The Commissioner asked—Before whom must they seeke a reduction of their proces?

The Moderatour answered—Before a Commission from this Assemblie.

The Commissioner answered—If this Assembly shall not approve the sentence of the former Commissions from the last Assemblie, and the partie sentenced seeke a reduction of the proces before a new Commission from this Assemblie, can he ever expect another answer? But it is alreadie decyded before this Assembly, or, if they doe otherwayes, they shall oppose the formalitie of this Assemblie.

Argyle answered—The Commissioners may doe legallie and formallie in judgment, according to the probation of the witnesses, and yet the pairtie may thereafter improve[235] the deposition of the witnesses; and soe he may get favour either when he improves that is done, or upon his repentance.

Rothes sayes—It stands verie weill with formalitie to say the sentence was justlie pronounced upon that that was proven at that tyme, secundum allegata probata; as, for example, they declyned their Mother Kirk at that tyme; and what could the Kirk doe lesse than depose them from it now?—They having rectified their judgement, they recall the sentence, and recommends the men to your Grace to be provydit at the first occasion; and soe there is a cleare distinction. The Lords of Session may reduce their owne decreits, the pairtie compeirand who before was absent, and impugning the probation. As for these who have done nothing but declyned the last Assemblie, upon their acknowledgement of their error, and supplicating for favour, are presently put out of controversie, your Grace shall get satisfaction; for the Assembly shall presentlie declair them capable of a ministrie; but for others who hes beene procest for personall faults, and neither compeiring themselves, nor no procurator for them, but all proven, I remit to the judgement of the Assemblie, whether or not they, compeiring before ane other Commission impugning the processes, saying the witnesses wronged them, and using legal objections, the Commission from this may repone the sentence, and make it null? But I thinke if they have been able to doe this, they should have offered before this Assembly.

The Commissioner said—They choosed rather the way of humble supplicating, becaus they conceaved it most satisfactorie to the Assemblie; and I trust the Assemblie shall not take advantage by that to proceed the more strictlie against them; but, if they heare of this, I thinke some of them shall mene their supplications against the afternoone.

Argyle said—I shall represent to the Assemblie this mids. Let the Assemblie approve the diligence of the former Commission, and remit further consideration of the proces to a Commission from this Assemblie.

Lowdoun said—It would be considered that there are two parties interest in this question: first, there is the Commissioners who had the charge of the former Commissions and ar now makeing their reportes for their exoneration; 2ᵈˡⁱᵉ, There is the pairties now supplicants, and they are either such as upon their penitence or acknowledgement of their errours, and upon their ignorance of the Constitutions of the Kirk, doth merite favour; or they are such as complaines informalitie in their proces, and so seekes to have them reduced and annulled. Now the ane pairtie—to witt, the Commissioners, seekes to be exonered. The uther pairtie supplicants, seekes, that they may not be so exponed as they be stoped from being heard hereafter. Your Grace objects how that can be reduced, which, after it is deduced, is approven here? If it lyke your Grace, verie easilie. The Assemblie doth approve that they have done, secundum allegata probata; and yet this approbation may be given with this qualitie, that it be without prejudice to uthers to be heard, and to reduce their sentences before the Commission, and grants Commission for that effect. This being a parte of the Act, it keepes the mater inteere for reduction. Now, tell me if any pairtie be wronged by this?

Argyle said—I hope your Grace, by urging of this Assemblie not to approve the sentences of the Commission from the last, doth not intend to make us doe any thing which may import our passing from our Assemblie at Glasgow, which we will never doe. Whilst we breath, we cannot thinke this; for some of them are approven alreadie. It is lykewise a great mistake to thinke that [by] our craving of the bringing in of reportes, we seeke ane approbation of the last Assemblie.

The Commissioner answered—Your Lordship speakes to verie good purpose. I intend no such thing; but onlie I declair what is done in this I will assent unto it as ane Act of this Assemblie.