Church men it was called The Cannon Law And though it has here no positive Authoritie as being compiled by private Persons at the desire of the Popes especially since the Reformation yet our Ecclesiastick Rights were settled thereby before the Reformation And because many things in that Law were founded upon material justice and exactlie calculated for all Church men Therefore that Law is yet much respected among us Especially in what relates to conscience and Ecclesiastick Rights Our Municipal Law of Scotland is made up partly of our written and partly of our unwritten Law Our written Law comprehends first our Statutory Law which consists of our Statutes or Acts of Parliament Secundo The Acts of Sederunt which are Statutes made by the Lords of Session by vertue of a particular Act of Parliament impowering them to make such constitutions as they shall think fit for ordering the â—rocedur and forms of Adminiâ—trating justice and these are called Acts of Sederunt because they are made by the Lords sitting in judgement But are not properly Laws the legislative power being the Kings Prerogative Tertio The books of Regiam Majestatem which are generally looked upon as a part of Our Law and they and the leges burgorum and the other tractates joyned by Skeen to them are called the old books of Our Law by many express Acts of Parliament Tho the books of Regiam Majestatem were originally but the works of one private Lawyer writing by way of Institution and are now very much abrogated by Custome Our unwritten Law comprehends the constant tract of decisions past by the Lords of Session which is considered as Law the Lords respecting very much their own decisions And though they may yet they use not to reced from them except upon grave considerations Secundo Our Ancient customes make up a part of our unwritten Law which have been universally received among us The tacite consent of the people operating as much in these as their express consent does in making Laws And such is the force of custome or consuetude that if a Statute after long standing has never been in observance or having been has run in desuetuâ—e consuetude prevails over the stâ—â—â—â—e till it be renewed either by a succeeding Parliament or by a Proclamation from the Council For though the Council cannot make Laws yet they may revive them Generally all Laws should look foreward though declaratory Laws regulat what is past since their design is to declare what was Law prior to the statute and to direct Iudges how to decide in cases that needed the decision of a Parliament Laws should command not perswade and though the rubrick or title and narrative of the statute may direct a doubting Iudge yet if the statutory words be clear they should be followed in all cases All Laws should be so interpreted as to evite absurdities and as may best agree with the mind of the legislator and Analogie or general design of the common Law Correctory Laws so we call these which abrogate or restrict former Laws are to be strictly interpreted for we should reced as little as can be from received Laws Honourable Laws are to be extended and the Paritie of Reason often prevails with our Judges to extend Laws to Cases that are founded on the same reason with what is expresly determined by the Statute Tit. II. Of Iurisdiction and Iudges in General HAving resolved to follow Iustinians method to the end there may be as little difference found betwixt the Civil Law and Ours as is possible And that the Reader may not be distracted by different methods I do resolve first to lay down what concerns the Persons of whom the Law treats â—at â—do what concerns the things themselves treated of such as rights obligations c. Tertio The actions whereby these rights are pursued which answers to the Civilians objecta juris viz. Personae res Actiones The Persons treated of in Law are either Civil or Ecclesiastick the chief of both which are Iudges with whom we shall begin And for the better understanding of their Office it is fit to know that Iurisdiction is a power granted to a Magistrate to cognosce upon and determine in causes and to put the sentence or decreet to execution in such maner as either his commission law or practice does allow All Iurisdiction flows originally from the King so that none have power to make Deputs except it be containd in their commission And if a Depute appoint any under him that sub-depute is called properly a substitute and every Iudge is answerable for the Malversation of his depute Iurisdiction is either Cumulative or Privative Cumulative jurisdiction is when two Judges have power to judge the same thing And generally it is to be remembred that the King is never so denuded but that he retains an Inherent power to make other Judges with the same power that he gave in former commissions And thus he may erect lands in a regality within the bounds of an heritable Sheriff-ship and burghs Royal within the bounds of a regality And these bounds within which a Judge may exerce his commission is called his Territory so that if any Judge exercise Iurisdiction without his Territory his sentence is null and among those who have a Cumulative Iurisdiction he who first cites can only Judge and this is called jus Praeventionis Privative Iurisdiction is when one Judge has the sole power of judging exclusive of all others such power have the Lords of Session in judging of all Competitions amongst heritable rights and here there can be no prevention Iurisdiction is founded to any Judge either because the defender dwels within his territory which is called Sortiri forum ratione domicilij or Secundâ— Because the crime was committed within his territory which is called ratione delicti or Tertio If the Person pursued have any immovable estate within his territory though he live not within the same he may be pursued by any action to affect that estate which is called sortiri forum ratione rei sitae A Iurisdiction is said to be prorogate when a person not other wayes subject submits himself to it as when he compears before an incompetent Judge and propons defences All Judges with us must take the Oath of Allegiance and the Test whereby they swear to maintain the Government of Church and State as it is now established and an oath de fideli administratione before they exerce their Office And no excommunicate person nor rebell against the Government can Judge by Our Law If a person be pursued before a Judge who is not competent he may complain to the Lords of Session and they will grant Letters of Advocation whereby they Advocat that is to say call that cause from the incompetent Judge to themselves And if after the letters of Advocation are intimat to that Judge he yet proceed his Decreet will be null as given Spreto mandato Iurisdiction is
either Supream inferior or mixt These courts are properly called supream from whom there is no appeal to any higher Iudicatory such as the Parliament Privy Council Lords of Session the Criminal Court and Exchequer Inferior Judges are such whose decreets and sentences are lyable to the reviewes of the supream Courts as Sherriffs Stewards Lords of Regality Inferior Admirals and Commissars Magistrates of Burghs Royal Barrons and Iustices of Peace Mixt Iurisdiction participats of the nature both of the supream and inferior courts such a jurisdiction have the high Admiral and Commissars of Edinburgh Both which are in so far Supream that Maritim Affairs and confirmations of Testaments must come in and be tabled before the high Admiral and Commissars of Edinburgh in the first instance As also they both can reduce the Decreets of inferior Admirals and Commissars But seeing their Decreets are subject to the review of the Lords of Session they are in so far inferior Courts No inferior Iudge can judge in the causes of such as are Cusin-germans to him or of a nearer degree either of affinity or consanguinity But there is so much trust reposed in the Lords of Session that by a special Statute they can only be declined incases relating to their Fathers Brothers Sons Nephews or Uncles which by a late statute is likewise extended to the degrees of affinity and to the Lords of privy Council and Exchequer and the Commissioners of Iusticiary and to all other Iudges within the Kingdom The members of the Colledge of Iustice have this priviledge that they cannot be pursued before any inferior Iudge and if they be the Lords will Advocate the cause to themselves Tit. III. Of the Supream Iudges and Courts of SCOTLAND THE King is the Author and Fountain of all power and is an absolute Prince having as much power as any King or Potentate whatsoever deryving his power from GOD Almighty alone and so not from the people The special priviledges that he has are called His Prerogative Royal such as that he only can make Peace or Warr call Parliaments Conventions Convocations of the Clergy make Laws And generally all meetings called without his speciall command are punishable he only can remit crimes legittimate bastards name Iudges and Councilors give tutors Dative and naturalize strangers And is Supream over all persons and in all causes as well Ecclesiastick as Civil The Parliament of old was only the Kings Barron Court in which all free-holders were oblidged to give sute and presence in the same manner that men appear yet at other head courts And therefore since we had Kings before we had Parliaments it is rediculous to think that the Kings power flowed from them The Parliament is called by Proclamation now upon fourty dayes tho it may be Adjourned upon twenty but of old it was called by brieves out of the Chancellary It consists of three Estates viz. the Arch-Bishops and Bishops and before the Reformation all Abbots and Mitred-priors sat as Church men Secundo The Barrons in which estate are comprehended all Dukes Marquesses Earles Viscounts Lords and the Commissioners for the Shires for of old all Barrons who held of the King did come but the estates of lesser Barrons not being able to defray this charge they were allowed to send Commissioners for every Shire And generally every Shyre sends two who have their charges born by the Shyre Tertio The Commissioners for Burghs Royal each whereof is allowed one and the Town of Edinburgh two Though all the three Estates must be cited yet the Parliament may proceed albeit any one estate were absent or being present would disassent The legislative power is only in the King and the Estates of Parliament only consent and in Parliament the King has a negative voice whereby he may not only hinder any Act to pass but even any overture to be debated The Acts of Parliament must be proclaimed upon fourty days that the Lieges may know them To secure the Crown against factions and impertinent overturs in open Parliament Our Parliaments choose before they proceed to any bussiness four out of each State who with the Officers of State determine what Laws or Overturs are to be brought in to the Parliament and they are therefore called the Lords of Articles We have another meeting of the three Estates called the Convention of Estates which is now called upon twenty days and proceeds in the same way that the Parliament does diffreing only from it in that the Parliament can both impose Taxations and make Laws whereas the Convention of Estates can only impose or rather offer Taxations and make Statutes for uplifting those particular Taxations But can make no Laws And of old I find by the Registers of the Conventions the eldest whereof now extent is in Anno 1583. that the Conventions of Estates consisted of any number of the three Estates called off the Streets summarly by the King And yet they cryed down or up money and judged processes which now they do not The Privy Council is constituted by a special commission from the King and regularly their power extends to matters of publick Government in order to which they punish all Ryots for so we call breach of the peace They sequestrate Pupills gives aliments to them and to wives who are severely used by their husbands and many such things which require such summar procedour as cannot admit of the delays necessary before other courts And yet if any of these dipp upon matter of Law for they are only Iudges in facto they remit the cognition of it to the Session and stop till they hear their report The Council delay Criminal executions and sometime change one punishment into another but they cannot remit Capital punishments They may also Adjourn the Session or any other court It has its own President who preceeds in the Chancellours absence and it has its own Signet and Seal All who are cited to compeat there must be personally present because ordinarly the pursuer concluds that they ought to be personally punished All dyets there are peremptor all debat is in writ no Advocat being allowed to plead because the Council only Iudges in matters of fact The Lords of Council and Session are Iudges in all matters of civil Rights of old they were chosen by the Parliament and were a committy of Parliament But the present modell was fixt and established by King Iames the fifth after the modell of the Parliament of Paris Of old it consisted of seven Ecclesiasticks and seven Laicks and the President was a Church man But now all the fifteen are Laicks And there sits with them four Noble men who are called extraordinarie Lords and were allowed to sit to learn rather then decide But now they vote after the ordinary Lords All the Lords are admitted by the King and by Statute cannot be admitted till they be twenty five years of Age and excepâ— they have a
for his Lifetime for else it will fall under single Escheate single Escheates comprehending every thing that is not a Life-rent Escheate and therefore if the Superiour having right to the Vassals Liferent Escheate become Rebel himself the Vassals Liferent Escheate will fall under the Superiours single Escheate for the Superiour had not right to those meals and duties during all the dayes of his own Lifetime and so it could not fall under his Liferent and the like does for the same reason hold in all such as have assignations to Liferents or to Liferent Escheats or to Tacks for any definit number of years few or many The Superiour has also right to the Sub-Vassals Liferent Escheate which falls after the Vassals denounciation for by the denounciation of the immediate Vassal the Superiour comes in his place and so has right to the sub-Vassals Liferent The Liferent Escheate falls by the Rebellion that is to say by the denounciation and the year and day is given only to the Rebell to relax himself so that if he relax not within that time his Liferent will fall from the denounciation In competition betwixt the Superiour of the Rebell and the Rebells Creditors these Rules are observed in our decisions Primo No Legal Diligence nor Voluntar right for payment of any debt contracted after Rebellion will prejudge the Superiour for else after a Vassal were at the horn he might fraudulently contract debt to prejudge the Superiour Secundo If the debt was prior to the denounciation no voluntar infeftment will prejudge the Superiour except the Rebel was obliged prior to the Rebellion to grant that infeftment and that the infeftment it self was expede within year and day of the denounciation Tertio Though Legal Diligence be more favourable then voluntar rights because there is less collusion yet no legal dilligence will be preferred to the Superiour except it was led for a debt prior to the denounciation and was compleated by infeftment or charge within year and day thereof albeit the said Legal diligence was deduced after the denounciation Though this be the course in competitions quo ad liferent Escheates yet actual payment made or diligences done to or by Creditors for payment of debts prior to the Rebellion or the commission of crimes will be preferred to the donator if these Rights or Diligences be compleated before declarator which we owe rather to the benignity of our Kings than to the Nature of these Rights since there is jus questitum fisco by the denounciation Liferent Escheates is proper to all kinds of holding except Burgage and mortification for the Vassal being a Societie or Incorporation dyes not and so can have no liferent Escheate and albeit the administrators were denounced for debts due by the Incorporation yet that is still presumed to be their Negligence which ought not to prejudge the Societie For compleating this Casualitie a general Declarator must be raised at the Superiour or Donators instance to hear and see it found and declared that the Vassal was orderly denounced Rebel and has continued at the Horn year and day And in a competition betwixt Donators the last gift if first declared will be preferred If the gift be taken to the behoove of the rebell it is null and is presumed to be to his behoove if he or his Family be suffered to stay in possession The last Priviledge of the Superiour is that he may force his Vassal to exhite his Evidents to the end he may know what is the nature of the holding and in what he is lyable to his Superiour which proceeds ordinarly by an Action of Improbation Title VI. Of the Right which the Vassal acquires by getting the Feu THE Vassal by getting the Feu settled in his Person by Charter and Seasin as said is has right to all Houses Castles Towers but not Fortalices Woods and other things that are above ground of the Lands expresly disponed and to Coals Lime-stone and other things within ground and to whatever has been possessed as part and pertinent of the Land past memorie of Man But there are some things which passe not under the general dispositive words and require a special Disposition which belong to the King in an eminent way and are called therefore Regalia and are not presumed to have been disponed by his Majestie or any other Superiour except they were specially mentioned such as are all Iurisdictions Forrests Salmond-fishings Treasures hid within the ground and Gold Silver and Fine-lead for other Mines such as Iron Copper c. belong to the Vassal If Lands be erected in a Barrony by the King then though the lands lye discontiguously one seasin will serve for them all because Barrony implyes an union This erecting them in a Barrony will likewise carry a right to Iurisdictions and Courts Fortalices Forrests hunting of Deer and Ports with their small Customes granted by the King for upholding these Ports Milnes Salmond-fishings c. because Barronia est nomen universitatis and possession of any part of a Barrony is repute possession of the whole But Mynes of Gold and Silver Treasures and goods confiscate are not carried with the Barrony The Heritor has also power to set Tacks remove and in-put Tennents as a consequence of his property A Tack is a Location or contract whereby the use of any thing is set to the Tacksman for a certain hyre and in Our Law it requires necessarly that the terms of the Entry and the Ish must be exprest that is to say when it should begine and end and it must bear a particular dutie else it is null and if it be a valid Tack that is to say if Write be adhibit verbal Tacks being onely valid for one year to the thing set the Contracters names Tack-duty Ish and Entry clearly therein exprest and cloathed with possession it will defend the poor Tacksman against any Buyer * and even against the King and his Donators when they succeed by forfeiture which was introduced in favours of poor Tennents for encouraging them to improve the land but it will not defend against a Superiour of ward lands for the ward c. though by Act of Parliament the Superiour be obliged to continue them in their possession till the next term of Whitsonday Albeit Tacks have not all the solemnities foresaid yet they are valid against the Granter and his Heirs Tennents cannot assign their Tacks except they be Liferent Tacks or that the Tack bear a power to assign but they may be comprysed or adjudged and if the Master suffer the Tacksman to continue after the Tack is expyred he will be obliged to pay no more than he payed formerly during the Tack and this is called in Our Law the benefite of a tacite Relocation that is to say both the Setter and the Tacks-man are presumed to design to continue the Tack upon the former terms till the Tennent be warned If the Tack be granted to sub-tennents then the Tacks-man may
punishable by infamy and deprivation Plagium or the stealling of men is a particular Crime by the Civil Law but is a species of theft with us And Theft-boot which is the saving a thief by fyning with him is punishable as theft Baratrie or the obtaining benefices from Rome is punishable by banishment and infamy Ambitus or the obtaining offices by unjust means is not punishable under Monarchie The punishment of Crimes is taken off either by Remissions which must pass the Great Seal and must express the greatest Crime for which the Remission is granted Or by Indemnities which is a General Remission granted by the King or Parliament betwixt which two there is this difference that the obtaining a Remission does not free the obtainer from assything the party that is to say from repairing his losses since it s presumed the King does only discharge what belonged to him which is vindicta publica But not what is the interest of private parties or vindicta privata but because all the people are represented in Parliament the King and Parliament may by their Indemnity discharge both the one and the other He who founds on a Remission acknowledges the Crime but he who founds on an Indemnity does not The King likewise restores men sometime against forefaultures which Restitution is either by way of Iustice finding that the person was unjustly condemned and then the Person condemned is restored to all that ever he had and he recovers not only his fame but his estate though transmitted to third parties Or secundo the Restitution is by way of grace and meer favour and then the partie condemned cannot recover what was bestowed by the King upon third parties for the King cannot recall what was once Legally and Warrantably granted by him FINIS * K. J. 6 Par. 8. Act â—31 * K. Ja. 4. Par. 4. Act 51. K. Jam. 5. Par. 6 Act 80. â— Mary Par. 5. Act 22. K Ja. 6 Par. 1. Act 31. * K. Ja. 5. Par 7 Act 93. * K. Ja. 1 par 3. Act 54. K. Ja. 3. Par. 14. Act 115 †K. Ja. 6 par 3. Act 18. * K. Ch. 2. Par. 1 Act. 2. Par. 3. Act 18. * K. C. 2 par 3. * K. C. â— Par. 1. Sess. 1 Act 11. ‡ par 3 Act 18. * K. J. 6. par 14. Act 212 * K. C. 2 par 3. Act 13. * K. J. 6. Par. 15. Act 251 * K. C. â— Par. 1. Sess. 1. Act 5. and 15 Par. 3. Act 2. * Act foresaid * King Ch. 2. Par. 1. Ses. 1. Act. 2. * K. Ja. 6. par 18. Act 1 K. Ch. 1. par 1. Act 3. K. Ch. 2 par 2. Ses. 1. Act 1. * K. J. 1. Par. 7. Act 101 K. Ja. 6. Par. 11. Act 113 * K. Ja. â— Par. 7. Act. â—28 * K. Ja. 5. par 5. Act 36 37 38 39 40. * K. Ja. 6. Par. 12. Act 132. * K. C. 2 Par. 2. Sess. 3. Act 18. * K. C. 1 par 1. Act 18. * K. C. 2 par 3. Act 16. * K. J. 6. Par. 12. Act 124 * K. C. 2 Par. 1. Sess. 3. Act 15. * Leg. Mak. 2. Act 11. Quoniam Attach cap. 79 †K. Ja. 2. Par. 1â— Act 43. * K. Ja. 6. Par. 11. Act. 29. * Quoniam Attach cap. 89. * K. C. 2 Par. 1. Act 38. * K. Ja. 6. par 1. Act 2 * K. Ja. 6. Par. 9. Act 7 * K. Ja 6. parl â— Act 131. K. Char 2. par 1. sess 1. Act 4. sess 3. Act 5. * K J 6 Par 22 Act 1. * K. J. 6. par 21. Act 1. * K. Ja. 6. par 18. Act 3. * K. Ja. 6. par 19. Act 8. * K. Ja. 6. Par. 1 Act 12 * K. Ja. 6. Par. 2 Act 1. * Act foresaid * K. Ja. 6. Par. 22. Act 3. * K. Ja. 6 Par. 13 Act 161 * K. Ja. 6 Par. 21 Act 8. * King James 6 Par. 3. Act 48. * King James 6 par 11 Act 161 * King Charles 2 par â— sess 3 Act 13. * King James 6 Par 29. Act 6. * Levit. chap. 18 K. Ja. 6 Par. 1. Act 1. * King Charles 2. parl 1. Sess. 1 Act 34. †King James 4 par 6. Act 77. K Char Par. 2. Act 9. Sess. 3. * K. C. 2 Par. 3. Act 10. * Reg. Ma. lib. 2. cap. 58. Leg. Burg. cap. 44. * K. Ja. 6. Par. 4 Act 55 * K. Ja. 3 Par. 7. Act 32. * Q. M. Par. 6. Act 35. * K. C. 2 Par. 2. Sess. â— Act 2. * K. C. 2 Par. 3. Act 19. * Statuâ— a Will cap. 39. * K. J. 6. Par. 10. cap. 18. * K. C. 2 Par. 1. Act 32. * K. C. 2 Par. 3. Act 5. * K. J. 6. Par. 14. act 214. K. J. 6. Par. 22. Act 16. * Q. Ma Par. 3. Act 5. K. Ja. 6. Par 2. Act â—2 * K. J. 6. Par. 18. Act 14. ‡ K. J. 6. Par. 1. Act 27. * K. C. 2 Par. 3. Act. 11. * K. J. 4. Par. 3. Act 25. K. Ja. 5. Par. 4. Act 15. * Stat Rob. 3. cap. 19. * Stat Rob. 3. cap. 18. Reg Majest lib. 2. cap. 63. Par. 6. 9. * Leg. Mal. cap. 1 * K. J. 6. Par. 15. act 226. * K. J. 5. Par. 4. Act 32. * K. J. 6. Par. 22. Act 15. * K. J. â— Par. 1. act 12. ‡ K. J. 2. Par. 6. Act 17 * K. J. 4. Par. 3. act 26. * Q. Ma Par. 6. Act 39. * K. J. 6. Par. 5. Act 66. * K. C. 2 Par. 2. Sess. 1. Act 3. * K. J. 3. Par. 5. Act 28. * K. J. 6. Par. 22. Act 16. * K. J. 6. Par. 14. act 222. Par. 15. act 247. * King Char. 2. par 1. Act 62. * K. J. 3 Par. 5. act 37. * K. C. 2 Par. 1. Act 62. * K. C. 2 Par. 3. Act 10. †K. J. 4. Par. 6. Act 77. * K. J. 4 par 3. Act 25. * Tyths or Tenths * K. J. 6. Par. 11. Act 29. * K. C. 1 Par. 1. Act 17. and 19. K. Ch. â— Par. 1. Sess. 1. Act 61. * Act of Sed. 19. Feb 16. 1680. * K. J. 6. Par 1â— Act 264 265. par 1â— Act 1â— * K. C. 2 Par. 3. Act 26. * K. J. 6. Par. 7. Act 119 * K. J. 6. Par. 5. Act 37. * K. C. 2. Par. 1. Sess. 1. Act 62 * K. C. 2 par 1. Sess. 3. Act 19. * K. J. 6. Par. 23. Act 6. * K. J. 6 par 21. Act 6. * K. J. 3. Par. 5. Act 37. K. J. 6. Par. 23. Act 6. * K. C. 2 Par. 1. Act 62. * Act foresaid * K. C. 2 Par. 2. Sess. 1. Act 18. * K. C. â— Par. 2. Sess. 3. Act 19. * K. C. 2 Par. 1 Sess. 1. Act 62. * K. C. 2 Par. 2 Sess. 1. Act. 18. Oâ—lâ—gatâ—on * Contracts * Contracts * Mutuum * Commodatum Precariuâ— Depositation Pledge Condictio Indebiti