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and sundrie bis jurisdictions als weill upoun the south as nort sydis of the water of Forth within the diocis of Sanct Androiss, Qubilk pertenit to the Archbishoprik of the samen; to be usit by him and his commissaries in all tyme coming in the same manner and form of justice as it is now usit: with all and sundrie commodities usit and wont pertaining thereto. Discharging by their presentis all utheris commissaries, clerks and utheris commissaries now establishit thairintil, of thair offices farder in that pairt. With power to thair said traist counsallor Johne Archbishop of Sanct Androis to cheise commissaries clerks, and utheris officiaris throuchout all his saidis jurisdictions, to minister justice thairintill, and to confirm all and sundrie testaments be himself and his deputies in the samen moid as thay are usit at this present. And siclike, That all testamentis within this realm, above fiftie poundis, may be confirmit in all tymis be him and his commissaries, Siclike as they wer and are comfirmit be the commissaries now present. And generallie that he use all and sundrie his jurisdictions donations of benefices and privileges like as he or any of his predecessors hes usit of befoir, in all manner of sortis. Provyding always that the Lordis of thair session be thankfullie payit of sa mekle of the reddiest of the cottis of the saidis testamentis as sal cum to the saids traist counsallors parts pro rata yeirlie of the soume of ane thousand sex hundret pundis qubilk thay haif grantit of befoir to the saidis Lordis of Ses. sion, to be tane of the reddiest of cottis of testamentis of the haill diocis of Scotland; notwithstanding any act or gift geven be thair hieness, in ony tyme by past in the contrair. Charging alswa the Lordis of Sessioun to gif letteris for forefilling and obeying of this thair present will and restauration, in dew forme as effeires
&c. At Striveling this xxiii day of December the yier of God 1566 yiers.
In opposition to this record, the instances quoted by Whitaker, (iii. 370. 541) of a consistorial jurisdiction after the reformation, amount to nothing. Marriage might be annulled by the canons, as void ab initio ; but as marriage was a sacrament, divorce was precisely limited to a separation a mensa et thoro. The reformers in Scotland, however, thought that the adulterer should be cut off, and that the innocent party should be permitted to marry again. But if the offender should be foolishly spared by the civil sword, and on fruits of repentance, reconciled to the church, then, on urgent necessity, for fear of further offence, he might use the remedy (of marriage) ordained by God. First Book of Discipline; Marriage. In conformity with these doctrines, the assembly of 1562, applied to the privy council to transfer actions of divorce to the church and its sessions, or else to establish judges of good repute (the commissaries) to decide such questions; and an appeal was made to the assembly 1563, from the Bishop of Orkney's sentence in a cause of divorce. Keith, 515-24. The sentence undoubtedly preceded the reformation, as the next question before the assembly was the reversal of Hamilton the martyr's sentence in 1532; and the Bishop of Orkney, a protestant, far from possessing a consistorial jurisdiction, had already obtained for a year, a commission as superintendant, from the same assembly to which the appeal was made. The new doctrine of divorce was not yet recognised by the civil judges, and the example merely proves, that before the appointment of commissaries, the assembly assumed the review of questions decided formerly in the consistorial courts.
The other example is not more to the purpose. A paper published by Tytler, (ii. 401) containing a proof of the consanguinity between Bothwell and bis cousin, Lady Jane Gordon, is assumed by Whitaker (iii. 517) as a judicial act of the consistorial court. It is dated February 21, 1565, the day before their marriage (Prescott, 217); and is, evidently, an extrajudicial attestation of propinquity, as the first step towards a dispensation, " in the qubilk dispensation passit between them, sic process was usit.” The proof was taken, not in consistory, but in the chamber of the commendator of Lindoris, Bishop Lesly, Bothwell's procurator, before whom and Lady Jean Gordon's procurator, it is attested by Forest, rector of Logie Montrose, prothonotarius ac datarius prefati domini, reverendissimi domini legati. A verbal process taken in Lesly's chamber, and attested by the archbishop's secretary, as prothonotary and datary to his legatine powers, proves the very reverse of a consistorial court. It was merely the evidence on which a clandestine dispensation was probably granted by the legate, or his datary, which required to be confirmed, if I am not mistaken, by the court of Rome.
The revival of such extensive jurisdictions, was undoubtedly the immediate consideration for which the archbishop concurred in the murder, and in Bothwell's divorce from his wife, and in his marriage with the queen. Knox, however, in whose history the preceding signature to the archbishop is mentioned, the general assembly that framed a supplication against it, Calderwood who transcribes a letter from Knox to enforce the supplication, are all respectively accused of forgery, (Whitaker, iii. 510-21-8) and it is amusing enough to see the records and histories of the church of Scotland
condemned as forgeries, by one who had no access to its records, and was ignorant even of its literary history. The first edition of Knox's history was printed at London in 1581; but before the printing was finished, the work was suppressed, as it contained affairs of state. The fifth book was neither written by Knox, nor by Banantine his amanuensis, as it is not contained in a single MS. of the age ; but was compiled from his papers by David Buchanan, who published the history in 1644, in quarto at Edinburgh, and in folio at London, in which last edition, among other alterations, Knox's letter, though inserted in the quarto, was omitted as tedious or unimportant to the English reader. Mathew Crawford, in 1732, republished the four first books verbatim from the original MS. but reprinted the fifth preposterously, in the Scottish orthography, from the English edition: and Whitaker, who'might have known that Knox did not write the fifth book, though compiled from his papers, (Crawford's edit. preface, 51-3) accuses Calderwood of forging a letter in that reformer's name, who knew nothing of it, because it was not contained in Crawford's edition; the only one that Whitaker had the patience to consult. From these fruitful mistakes, Knox becomes a mere protestant Jesuit, the brother forger of Buchanan, with the honours of forgery blushing strong upon his brow; (Whitaker, iij. 518-20-1) because a signature still extant, and on record, is mentioned with its consequences, in an addition to his history by another hand. The church of Scotland itself is accused of forgery, because its records contain a supplication against the signature; and Calderwood, because he quotes a letter from Kuox, to recommend the supplication.
But there is nothing so familiar, or so well established, even in public treaties, as to escape the imputation of forgery from this divine. The concessions to the Scots, in the treaty of Edinburgh, are rejected as a forgery, because the copy preserved in the Cotton library is attested by Murray, Ruthven, and Maitland, 66 villains whose touch carries such contagion with it, that whatever paper has passed under the hands of those political harpies, is marked and polluted with their defiling claws.” Whitaker, jii. 41-2. In the negociations at Edinburgh for a peace with England, a direct treaty with the lords of the congregation was deemed derogatory to Francis and Mary; but Elizabeth could not desert her allies, nor could the French troops be withdrawn from Leith, where they were straitly besieged, or preserved without a treaty, in which the Scots were included. It was concerted, therefore, that the articles or demands of the congregation should be granted, not as terms of peace, but as concessions of special indulgence, to be confirmed, however, in the treaty with England, and a new commission was necessary, to enable the French deputies to grant concessions, or in plain language, to treat with the Scots. The first commission to Monluc and Randen, at Chenonceau, May the 2d, 1560, was accordingly transcribed in a new commission to the same deputies, dated Remorentin, June the 2d, to transport themselves, in the same terms with their former commission, to the frontiers of Scotland, in order to treat with the English commissioners for peace; with additional powers “ to assure our subjects of Scotland, that notwithstanding their grievous crime of rebellion, if they return to their obedience, we shall receive them into favour, desirous