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to the said Offices or Repositories, or any of them, or any Officers within the same, and which shall be in the Custody of them, or any of them respectively: And Our further Will and Pleasure is, That ye, or any Three or more of you (whereof the said First Commissioner of Our Treasury, One of Our Principal Secretaries of State, the Speaker of the House of Commons, the Master of the Rolls, or Our Advocate for Scotland, severally and respectively for the Time being, to be One), upon due Examination of the Premises, shall cause such Matters to be duly and speedily executed, as ye shall judge fitting and proper to be done for the more effectual Execution of the several Measures recommended by Our faithful Commons, in the said Report of their Proceedings relative thereto. And to the end that Our Royal Will and Pleasure in the Premises
may be executed with the greater Regularity and Expedition, We further, by these Presents, will and command, and do hereby give full Power and Authority to you, or any
Three or more of you, (whereof the said First Commissioner of Our Treasury, One of Our Principal Secretaries of State, the Speaker of the House of Commons, the Master of the Rolls, or Our Advocate for Scotland, severally and respectively for the Time being, to be One), to nominate and appoint from Time to Time, such Person of Ability, Care, and Diligence, as ye
shall think fit, to be and act as your Clerk or Secretary, for the Purpose of aiding you in the Execution of these Presents; and also to nominate and appoint in like Manner such several Persons of Ability, Care, and Diligence, as ye may think fit, to be Sub-Commissioners, to be employed under
your Direction and Controul in the Premises; and more especially to methodize, regulate, and digest the Records, Rolls, Instruments, Books, and Papers, in any of Our Public Offices and Repositories, and to cause such of the said Records, Rolls, Instruments, Books, and Papers, as are decayed and in Danger of being destroyed, to be bound and secured ; and to make exact Calendars and Indexes thereof; and to superintend the printing of such Calendars and Indexes, and original Records and Papers as ye shall cause to be printed; which said Clerk or Secretary, and Sub-Commissioners, and every of them, shall and may be removed by you, or any Three or
you, (whereof the said First Commissioner of Our Treasury, One of Our Principal Secretaries of State, the Speaker of the House of Commons, the Master of the Rolls, or Our Advocate for Scotland, severally and respectively for the Time being, to be One), from Time to Time at your Will and Pleasure, full Power and Authority being hereby given to you to appoint others in their Places respectively: And We further will and command, and by these Presents ordain, That ye, or any Three or more of you, (whereof the said First Commissioner of Our Treasury, One of Our Principal Secretaries of State, the Speaker of the House of Commons, the Master of the Rolls, or Our Advocate for Scotland, severally and respectively for the Time being, to be One), shall from Time to Time certify under your Hands and Seals, unto Our Lord High Treasurer, or unto the Commissioners of Our Treasury for the Time being, what shall be a fit and suitable Recompence to the above-mentioned Clerk or Secretary, and SubCommissioners respectively, for their Pains and Services in the Execution of the Duties hereby required to be by them performed; which said Recompence it is Our Will and Pleasure shall thereupon be paid to them respectively and accordingly. And Our further Will and Pleasure is, That ye, or any Three or more of you, (whereof the said First Commissioner of Our Treasury, One of Our Principal Secretaries of State, the Speaker of the House of Commons, the Master of the Rolls, or Our Advocate for Scotland, severally and respectively for the Time being, to be One), do and shall, on or before the Twenty-fifth Day of March, in the Year of our Lord 1807, and so from Year to Year, on or before the Twenty-fifth Day of March in each Year respectively, so long as this Commission shall continue in Force, certify unto Us in Our Privy Council, under your Hands and Seals respectively, all and every of the several Proceedings of yourselves and of the said Sub-Commissioners, had by virtue of these Presents, together with such other Matters (if any) as may be deserving of Our Royal Consideration, touching or concerning the Premises; and what further Measures (if any) ye shall think fit to propose thereupon. And lastly, We do by these Presents ordain, That this Our Commission shall continue in full Force and Virtue; and that ye Our said Commissioners, or any Three or more of you, (whereof the said First Commissioner of Our Treasury, One of Our Principal Secretaries of State, the Speaker of the House of Commons, the Master of the Rolls, or Our Advocate for Scotland, severally and respectively for the Time being, to be One), shall and may from Time
to Time, and at any Place or Places, proceed in the Execution thereof, and of every Matter and Thing therein contained, although the same be not continued from Time to Time by Adjournment.-Given at Our Court at Saint James's, the Twenty-third Day of May 1806, in the Forty-sixth Year of Our Reign.
By His Majesty's Command,
At a Board of the Commissioners appointed by His Majesty, for carrying into Execution the Measures recommended by the House of Commons, respecting the Public Records of the Kingdom, &c.
Holden at the House of the Right Honourable the Speaker of the
House of Commons, the 31st Day of July 1807.
The Right Honourable CHARLES ABBOT, Speaker of the House of Commons,
Ordered, That the Plan proposed by Thomas Thomson, Esquire, Deputy Clerk Register of Scotland, for framing an Abstract of the Records of Retours of Services, be forthwith carried into Execution, and that the said Work be printed without delay.
John Caley, Secretary.
, , “ Inquest,” or the Verdict of an “ Assize,” which originate in certain Writs issuing from
, Chancery, and which are ultimately transmitted or “ retoured” to that Office.
The peculiar Forms, or legal Effects of those Proceedings, it would be out of place here to explain ; but an enumeration of their different sorts, and a slight outline of their nature, may be useful to those who are not already conversant with the practice of the Law of Scotland.
Of those Proceedings, the most considerable in number and importance originate in a Writ issuing from Chancery, in the King's name, called sometimes the Brieve of Mortancestry, but more properly the Brieve of Succession ; the purpose of which, is to establish a Claim by Inheritance, or to be " served nearest lawful Heir” to those subjects of a feudal nature, in which the alleged ancestor of the Claimant was vested at the time of his death.
According to the rules of the Law of Scotland, the complete and effective right to such subjects does not pass immediately and spontaneously from the ancestor to the heir; but is said to remain “ in hereditate jacente” of the deceased owner, until the claim of the heir has been formally recognised and established by the procedure under a Brieve of Succession.
By that Writ, the Judge to whom it is addressed, is authorised and required to ascertain, by the verdict of a Jury, the following points :-1. In what Lands and Annual Rents, within the limits of his jurisdiction, the alleged Ancestor of the Claimant died vested and seised as of fee, at . the faith and peace of the King; or in the words of the Brieve “ de quibus terris et annuis re“ ditibus, cum pertinentiis quondam B. C. pater D. C. latoris præsentium obiit ultimo vestitus * et sasitus, ut de feodo, ad fidem et pacem nostram, infra balliam vestram ;"-2. If the Claimant be the nearest lawful heir of the deceased in these Lands, &c. ;-3. If he be then of lawful age ;4. What is the annual value of the Lands, &c. according to certain Valuations, usually called the Old and the New Extent, or in the technical language of the Brieve, “ quantum valent dictæ 4 terræ et annui reditus cum pertinentiis nunc per annum ; et quantum valuerunt tempore pacis ;"-5. Of whom, as feudal Superior, the lands are held ;—6. By what feudal service or species of Tenure ;-7. In whose possession the lands now are, and on what account, and how long they have been so possessed. The result of these inquiries, duly authenticated, the Judge is directed to transmit to Chancery, together with the original Brieve.
ANOTHER apparent innovation upon
usage, has been the application of the Brieve of Succession, to the establishment not of a claim to any specific inheritance, but of the general character of Heir to the alleged Ancestor. The form of the Brieve remains in this case unaltered, but the verdict of the Jury is, of course, restricted to those general points, which it is the immediate object of the Claimant to ascertain.
The Proceedings which are held in pursuance of a Brieve of Succession, are usually denominated a “ Service :” Those which have relation to a particular Estate of Inheritance, are denominated the “ Service of an Heir in Special,” or a “Special Service ;" in contradistinction to those other Proceedings last mentioned, which are denominated the “ Service of an Heir in General, or a “ General Service.” These Proceedings may sometimes involve a great deal of judicial discussion : but whether in a Special or a General Service, it is only the ultimate Verdict of the Jury, framed in a certain technical form, that is transmitted to Chancery. It is there entered on Record by the Director of Chancery or his Deputies; an Extract of that Record is given to the Claimant; and, in this completed state, it is commonly termed the “ Retour of the Service.”
Of the ancient practice of Chancery in the Registration of the Retours of Services no certain knowledge is preserved. That the original Inquisition or Verdict of the Assize was “ retoured”
” to the Chancery as a necessary step towards the feudal Investiture of the heir, may be confidently presumed ; and that, of this Inquisition, some Record or Memorandum was preserved by the Officers of the Chancery, cannot be doubted; but that the original Inquisitions were again delivered to the private party, and not merely an Extract, as at present, may be fairly conjectured from the many Originals which yet remain in private custody.
But those ancient Records of Chancery, whatever may have been their peculiar form, appear to have been totally destroyed before the middle of the sixteenth century. Of that event, no historical account is preserved; but in the writings of the following age, it is alluded to as a distinct tradition, and is even founded on as the basis of several judicial decisions *. It is probable that this destruction of the Records of Chancery happened in the month of May 1544, when the town of Edinburgh, the monastery of Holyroodhouse, and the royal Palace adjoining to it, were burnt by the English army under the Earl of Hertford. The zeal and
perseverance with which that work of devastation was carried on, leave but too little reason to wonder at the loss of those public muniments which were not protected by the fortifications of the Castle 7.
The supposed destruction of the Records of Chancery in the minority of Queen Mary is perfectly consistent with the state of those which now remain in that Office.
Of the original Inquisitions retoured to Chancery, the present series begins no earlier than the
year 1547; and no original Retours of prior date have been found, but such as may have been preserved in the custody of individuals, and long afterwards deposited and recorded in the Office. The imperfections in the series subsequently even to the period above mentioned, are indeed very great; but these may be traced to other causes. Till the
In the Report of a judgment of the Court of Session in the year 1624, it is said “ The Lords found, that Retours of elder dates, before the “ year 1550, ought not to be decerned to make no faith for non-production, where the principal Service, sealed by the Assisers, is produced ; “ albeit the same be not extant at the Chancellary, nor extracted out of the same.”---Durie's Decisions, Feb. 17. 1624, Lord Elphingston contra Earl of Mar. In allusion to this case, Lord Stair, who wrote in the reign of Charles II. has said, “ The Service is kept in the Chancery for war
rant of the Retour; yet it was found that Services before the year 1550, were sufficient to satisfy the production, in Improbations or Reductions,
+ The following account of the events here alluded to, is given in a narrative published by authority, entitled “ The late Expedicion in Scotland