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'The New Consistorial Order: Context and Constitutional Theories from 1559'
The main purpose of this paper was to outline the post-Reformation constitutional understanding upon which Mary, Queen of Scots, and various members of her Privy Council proceeded to appoint the Commissaries of Edinburgh in 1563/64. The paper began by sketching the received understanding of what had befallen the consistories of the Catholic Church in Scotland, namely that they had been abolished by the Act abrogating papal authority in Scotland, 24 August 1560. Various legal, ecclesiological and chronological problems with this narrative were considered, and it was proposed that an alternative understanding was required. It was argued that the consistories of the Catholic Church had in fact been rendered inactive by the rebel Lords of the Congregation during the autumn of 1559, on the grounds that the consistories were enforcers of the laws of the Antichrist. From this new perspective it was argued that some of the leading men of law involved in the creation of the new consistorial order of the Commissaries of Edinburgh, such as Henry Sinclair and James Balfour, considered the consistories to be de facto inactive, but not legally abolished. It was argued that this understanding is borne out by the charter of constitution of the Commissaries of Edinburgh, which narrated that the consistories were ‘inactive or absent’ rather than permanently abolished, and that the Commissaries were appointed ‘until such time as further order may be taken’. From here it followed that if the consistories of the Catholic Church were still considered to be a valid part of the legal system in 1563/64, then the new consistorial order had to be capable of being set aside should the consistories become active again. That this was the case was illustrated by a concluding discussion of the restoration of Archbishop Hamilton's consistorial jurisdiction in December 1566.