SCOTLAND MOURNING: OR, A Short DISCOVERY OF THE Sad CONSEQUENCES Which accompanies the Delay of the settling Judicatories in that NATION.  
By Robert Pittilloh Advocate.  1 CHRON. 22.16. 
Arise therefore, and be doing, and the Lord be with thee.  ESTHER 4.16. 
I will go in, which is not according to law, and if I perish, I perish.  
LONDON, Printed in the year 1659.   

SCOTLAND MOURNING: OR, A short Discovery of the Sad Consequences which accompanies the delay of the settling Judicatories in that Nation.  
TO every thing there is a season and a time to every purpose under the Heaven, saith the Wiseman, and among other things a time to keep silence, and a time to speak: And if ever there was a fit time to speak, it is when the Cause of the Dumb is pleaded, and iniquity not only done: But when there is hazard that it shall be established by a Law; If full information be not given concerning the truth of Affairs: The consideration whereof makes me look upon it as my duty at this time to give a word of Information to the Supreme Authority, concerning the desolate condition of the Nation of Scotland, by want of Justice, and the sad affliction, it should further undergo, if the settling of Judicatories shall be delayed for any long space: upon closing of the Union of any other pretence whatsoever. It may seem to some impertinent for me to use such freedom in so high a concernment; but beside that, every member of the body, albeit, the meanest ought naturally to care for the good of the whole; in time of a dangerous Tempest, every Passenger in a Ship ought to put to his hand; and albeit in a Calm, his service would have been accounted Officious, yet in such a case when the Storm is over, if he have been instrumental in preserving the Ship, none will defraud him of his deserved Commendation. I am not ignorant of the envy and hatred it may procure, at the hands of some of my Countrymen here; knowing how much some of them have already smitten me with the Tongue, making their Arrows fly in sacred upon groundless imaginations against me: and if I durst follow the prudential consideration of self interest, I should put my Seal to whatsoever they say; but when I consider that the fearful and unbelieving shall receive the same dispensations of wrath from God: And that Job reckons it among the chief of his vindications from the Calumnies of his Friends, did I fear a great multitude, or did, the contempt of Families terrify me, that I kept silence, and went not out of the Door: I am taught intentionally not to do any thing against the Truth, but for the Truth; neither shall I write any thing which justly may give offence to any sober spirit, knowing that men may be of different apprehensions, being all of pure hearts and innocent hands: and if by this, Truth all shall be discovered Lovers of Truth, will rejoice therein, if otherwise, I have but lost my labour, and published my own weakness.  
The thing to be considered is, Whether it be fit and expedient to delay the settling of the Courts of Justice, in Scotland, and Officers necessary, for carrying on the Administration of Justice before them, till the Union betwixt Scotland and England be closed or not.] The Negative we contend for.  
For clearing whereof, we shall first examine the meaning of this expedient, secondly the reasons thereof, and thirdly remonstrate the many sad consequences that accompany it, which shall be as so many Arguments against it. As to the first, The meaning and sense of it cannot be, till the Parliament ratify and confirm the Act of Union passed in the time of the late Protector, Because it is humbly conceived, neither could it stand with the honour of the Parliament, fide implicita, to ratify that Act, nor if it had been intended, would the Parliament or their Counsel have made any reference to Scotsmen, for considering the expediency of the settling Judicatories, before or after the closing thereof: nor had it b●n wothy their consultation, seeing it is obvious to the meanest capacity, that an Act of ratification of this nature, and for settling of Judicatories, might have been passed in one and the self same day at different hours, after they were prepared. The true and genuine sense of it then must be, till the Union betwixt the two Nations be closed in a legal and solid way, to the rational satisfaction of both. For effectuating whereof, It is humbly conceived, 1. Commissioners lawfully chosen must come from Scotland for Treating of the matter, or meet with Commisioners of Parliament upon the place appointed by them for that Effect For to pass an Act of Union without their constent, were to make a forced Marriage without consent of Parties; and if any in their name should consent, without Commission, such cousent would be ipso jure null, as to the thing, and crimen false, in a high degree to the Actors. 2. Examination of the legal elections and qualifications, for non fieri & non rite fieri in jure ●parificantur. 3. The matter must be debated, and conditions of the Union held forth pondered, and accepted, and if Commissioners of Parliament shall be sent to Scotland for that purpose, if any thing fall out dubious, expresses must be sent up to the Parliament for resolution, for the answers whereof they must wait before they bring the matter to a period. 4. The Act must be prepared and passed. Lastly, Before writes can be emitted in name of the keepers of the liberties of England and Scotland Commissioners, from Scotland lawfully chosen by warrant of the Parliament, must be set down in Parliament as sharers in the Authority. For it seems contrary to Law and reason, that the Parliament of England can be called keepers of the liberty of Scotland, till Members of that Nation be a part of their number, having an intrinsic repugnance in itself, in so far as it is to them merely a Provincial Government, Diametrally opposite to the liberty of a free People, to be governed only by the representatives of another Nation. There being as yet no Order of Parliament Issued forth for choosing Commissioners in Scotland, for Treating of the Union, nor Commissioners of Parliament appointed, (if it shall be found needful,) to meet with them upon the place, the Journey being long, the matter weighty, and of great concernment, the Persons interested many, of various Judgements, and different abilities; with many other dilatory circumstances considered: It cannot in reason be presumed, that before the expiring of five or six Month's time, albeit gone about with the greatest alacrity, the Uunion can be brought to such perfection, as that Commissioners of Scotland lawfully chosen, may be sitting in the Parliament of England, without which they cannot be called keepers of the liberty of Scotland: besides that it is not impossible that the closing of this Union may be interrupted for at me, by unexpected emergencies: So that in plain english, the sense of it in itself is, It is fit and expedient to delay the setting of the Courts of Justice in Scotland, etc. as yet for five or six Months in coming, and if at that time the Union be not closed; that accordingly this be delayed, albeit I am so charitable as to believe it is not intended by those who are of this Judgement, tha● it shall be for so long a space.  
But it may be objected the Parliament may close the Union upon the consent given by the Commissioners for Scotland, in Anno. 1652. To which it is answered, 1. Quod possibile est esse possibile est non esse. 2. Those who choose wisely among probables, consider that which is most probable as the ground of her actings; and we humbly conceive, it is more probable the Parliament will not close the Union upon that consent for these reasons. First, Though it be the same Parliament and Authority that then was, yet virtually and consequentially the consent seems to be interrupted, in so far as it was to [their Commissioners,] because of the Act of Union, passed by the single Person, wherein Scotland was forced to acquiesse, having no power to resist. 2. That consent being now near seven years old, cannot be presumed to be so effectual for engaging Scotland cordially to concur with England in the common concernment as it would be, being renewed: if a man had so long been kept at a distance from his intended Wife, a more intimate renovation of their acquaintance, would be thought necessary before, the consummation of the Marriage. 3. The exercise of the present Authority having been for so long a time interrupted, it is humbly conceived it will be found necessary that by a new consent, Scotland do acknowledge the present Authority, and that they are lawfully again called to the exercise thereof: Lastly, The nature and conditions of the Union having never as yet been examined and approved by the present Parliament, when they fall upon the debate, if it shall be found necessary that any thing therein be altered, or that any new thing be added thereto without new representatives of the Nation, they have none to confer with about the same.  
The second particular is the foundation whereon this expedient is built, or the Arguments brought for strengthening of it, which, so far as we can learn, are. 1. It would be a means to cause the Union to be slighted, forgotten, or delayed. 2. It is not fit, Writs in Scotland should be emitted in name of the keepers of the liberties of England, but Scotland also. To the first it is answered, If the settling of Judicatories be a ground of slighting or delaying the Union, it must be so either to the Parliament or People of Scotland, but neither can rationally be said, ergo, etc. not the first, because according to the Principles both of reason and sound Divinity, the performing of one duty is so far from indisposing them for the performance of another, that it rather habituats, and further enables them for a second: so that it were bad Logic so to reason, because the Parliament hath done one duty to Scotland, therefore they will neglect another. They must pardon me, to say they have hard thoughts of the Parliament of England without reason who fears the delay of the union because of the settling of Judicatories there, when their Army in Anno 1650. (whom they then did and to this day do own) declared in Scotland, Their consciences did bear them record, they did above any thing in the world desire the union of the two Nations: and that it was their daily prayer, that those that feared the Lord in England and Scotland, might become one in the hand of the Lord, and join together in the advancement of the Kingdom of Jesus Christ, and throwing down and trampling upon the seat of the Beast: And when in order to the settling of this union, the present Parliament in Anno 1652, with the first convenience, sent their Commissioners to Scotland for that effect; Not the second; First, Because it cannot be imagined that the people of Scotland will be averse from the union: are any people so foolish, as to choose rather to be a Province than a free people? Secondly, It is evident in reason, the more favours the Parliament confers upon them, the more cordial they will be in the union, and cheerful thereto, the greater loveliness one extreme perceives in the other, the larger desire it hath to be united thereto. To the second it is answered; It cannot be conceived where the difficulty lieth, for either it must be because of the indignity Scotland sustains, by issuing forth Writs in name of the Keepers of the Liberty of England; or because some confusion will follow upon the change, when the union is closed. The first cannot be alleged, for these reasons; First, the overturning of the Government in a single Person having taken the original of it here, it is no indignity for Scotland to emit Writs in name of the Keepers of the Liberty of England, till they may likewise with Commissioners from Scotland, become Keepers of the Liberties of Scotland, it being impossible it should be otherwise for the time. Secondly, It is known to all England and Scotland, and many hundreds of thousands more, that Scotland is now under the power of the Parliament of England, as the only supreme Authority, which rules and governs them, and therefore emitting Writs which will never be published in any place but in their own Nation, can be neither an addition to, nor publication of this condition. Thirdly, It is but the continuing Writs in that same form they were in in Anno 1632; and thereafter till the erection of the late Protector. Fourthly, It is but the emitting Writs in that same form for the people's good and advantage, wherein Orders of their suffering for payment of Custom, Sess and Excize are emitted. Fiftly, There can be no more absurdity for Writs to be issued forth in name of the Keepers of the Liberty of England, than for Sheriffs and Justices of Peace to keep Courts in Scotland in their name, magis & minus non variant speciem: As to the second it is clear, no confusion of Process or other Writs whatsoever, can follow upon change of the Style when the union shall be closed by former experience, in so far as at the erection of the deceased Protector, no man who had a summons executed in name of the Keepers of the Liberty, etc. was ever put to the renewing of them, nor any who had an Execution upon a Charge, put to the renewing of his Letters; yea which is further, no person who had an Action depending in the late King's time, before the Lords of Session, was put to that trouble as to begin the same de novo, before the Commissioners for administration of Justice, but only to waken it, notwithstanding the change of Government.  
As to the third, besides many particulars which I will not enumerate, there are these sad consequences following clearly upon the delay: First, If Judicatories be not settled before the first of November (which is the time of the down sitting of the winter Session or Term in Scotland,) neither Judges, Advocates nor Clarks, will be in readiness for their employments, nor people throughout the Nation attending for Justice, by reason of the uncertainty of the sitting of the Courts, whereby, albeit there were nothing more, that Session for a great part will be rendered uneffectuall: and if it be delayed a month or two longer, altogether useless. Secondly, There will be little work prepared for them, albeit both parties and Officers of Court were present, in so far as there are neither Judges having power to grant deliverances upon Bills, nor a Signet for granting summons, nor Messengers in all Scotland for executing; but after the Courts of Justice are settled, pursuers must first raise their summons; secondly, send Messengers at Arms to cite the defenders personally or at their dwelling places, giving them twenty seven free days before they be tied to compeer, betwixt the day of their citation and their compeerance, if within the Nation in most of Actions, besides the time which must be allowed to the Messenger for going to their dwellings, which in some parts of that Nation in storms of the winter season, may be as long: and 60 days if the defendant be without the Nation after the citation, at the Market Cross of Endenburrough Peer and shore of Leith. Thirdly, When they are returned and called by the Clerks, the Defendant and his Advocate must have a competent time to see the pursuers Claim or Libel, and prepare him for the dispute, where upon the same inconvenience formerly mentioned will follow.  
Thirdly, No person in Scotland can at this day charge his debtor to make payment of any some of money or other duty resting to him upon Bond, Obligation or Contract, albeit there be many thousands of that Nation in this condition, and many hundreds of Widows, Orphans, and fatherless Children, which have no other way for getting their bread: and generally the most part of all Creditors have been much delayed from payment of their money, first by the late Act of Debtor and Creditor, ordaining them to take Land for their debts, and many thereafter by the late Act taking of Forfeitures, ordaining their Creditors to quit a great part of their Interest, and take Land for their some at a dear purchase: which might presently be supplied by settling the Courts of justice and Officurs needful for them: so that it is a gross misrepresentation of affairs in a false glass, to affirm there is no need of settling these Courts till the time of the down sitting of the winter Session or Term, in regard the Summer Term is past, the prejudice which is sustained by want of ezecution upon Bonds, Obligations and Contracts, being beyond that which is sustained by want of a Session or Term, whereupon Creditors may have the ultimate of the Law, (if suspension do not intervene) as fully and freely in time of vacancy, as in Term time: Albeit now paying personal self out of these Estates by Law, they are put in an incapacity of obtaining any personal estate either for paying thereof or entertaining their own life by want of Law.  
Fourthly, Albeit a Creditor see his Debtor disposing or dilapidating his whole Estate, to the utter ruin of him and his family, he can neither serve Inhibition against him, nor apprise from him, but with a forced patience must behold the destruction of himself and nearest relations, in their worldly being: for which, settling of Judicatories as is beforesaid will be a present remedy.  
Fiftly, The Sheriffs being the only persons in that Nation at present authorized by the Parliament to sit in Judgement in matters Civil; of whom some are ignorant, and others corrupt, (as witness the many advocations from them yearly, with the suspensions and reductions of their deceets passed before the High Court of Justice,) have now power to carry on Processes albeit incompetent for them, without contradiction, and give our Decreits though never so wicked, without control: and the suffering Defendant hath neither power to advocate his Action from them, while it is depending, nor to suspend when it is decernd, but must sit down in silence, suffering the Sheriff's Officer to poynd and take away his goods, albeit contrary to Justice, and the light of nature.  
Sixthly, No malefactor, of whose crimes the High Court of Justice in causes criminal is only Judge competent, can be convict, or brought to condign punishment, but must either escape free, or lie in prison, to the great and unnecessary burden of the people, the reproach of Justice, and encouragement of evil doers.  
Seaventhly, No person who stands in the greatest hazard of his life, or estate, at the hands of his desperate enemy, can get Letters of Labourous for his security.  
Eighthly, All the public Revenue payable to the Exchequer must sleep in the hands of the debtors, and the public Treasury remain empty.  
Lastly, That Nation being now put in confusion by want of Justice, and hardly any way left to a great part of them how they shall get of their own for entertaining their natural life, there can be no stronger inducement of new insurrections thought upon, than the delay of Justice; desperation being King of incendiaries; nor any mean more conducing for enlarging their hearts in love to the present Authority, than a present settling of Judicatories among them. It had been better service to God, to the Parliament and to the Nation, that some of our Countrymen who have been instrumental in impeding the sitting of the Summer Session or Term, had been useful for obtaining such a speedy settlement, that Scotland with England might have been unsensible of the interruption of Justice among them, upon the Alteration of the Government, and not put to mourn under their private sufferings, when others are rejoicing in their public Liberty.  
These who reap the benefit of the delay, are the Outlaws, the prodigals, wasters, the bankrupts, the oppressors, the lawless, the disobedient, the Covenant breakers, the heady, the highminded, and haters of those things that are good. The sufferers are the more frugal of the Country Gentlemen, the Merchants, and shopkeepers, the poor, the stranger, the fatherless and widow, the most conscientious and sober minded: and in reference to both, we shall say no more, but humbly remember the supreme Authority of England, of two passages of the Declaration of their Army at Musleborow in Anno 1650. viz. pag. 5. We are poor unworthy instruments in God's hand to break his enemies, and preserve his people. And again in the same page; We do bless the Lord, we are not only a rod of Iron, to dash the common enemies in pieces, but also a hedge (though very unworthy) about Christ's vineyard: and if we know our own hearts, wherever the Lott of God's Inheritance shall appear to be found in Scotland, we shall think it our duty, to the utmost of our lives to preserve the same. Where the same spirit is in the Parliament and their Army, they will still speak the same language, and practise accordingly.  
FINIS.