have here insert because they tend very much to the clearing many of our old Laws and Customs The Reasons were 1. That the Rule and Way for uplifting Taxations has in all ages been according to Retours and the Taxed Rolls until these late unhappy and irregular times from which it is humbly conceiv'd a Rule and Presedent ought not to be taken It is beyond all question this being the good old way though it were upon no other account ought not to be changed the danger and inconveniency of the alteration of ancient Laws and Customs being so great and obvious from the late experience of these Kingdoms that this age needeth not to be put in mind of the same but may be a sad remembrance to posterity 2. The foresaid way is only now the legal way wherein Taxations can be uplifted at this time seing the same is determined and authoriz'd by ancient and uncontroverted Customs in all ages and beyond memory and by the Law of Nations and the fundamental Law of this Kingdom ancient National Custom is Law and of as great force as Statute and is the great Basis and foundation of the Power and Rights and Property of the Prince and People which for the most part are warranted and secured by the Common Law and Custom and not by express Act of Parliament and Statute 3. This way of uplifting Taxations and the proportions of the same payable by the respective Estates is designed and established by express Laws and Acts of Parliament so that the same cannot be altered but by a Parliament which only has power to repeal as appears by the 56 Act Ja. 3 Par. 7. intituled These Retours should contain the Old and New Extent and the Act 229. Ja. 6 Par. 14. Ordaining all Feu-lands annex'd and other Feu-lands vvhatsomever to be retour'd and vvhen any Taxation or Impost is to be rais'd that the Feuers shall be charged according to the Retour and by the 229 Act Ja. 6 Par. 14. Ordaining His Majesties Property to be Retour'd and such Lands as are dissolv'd and dismembered from Baronies to be Retour'd and charged according to the Retours in order to the payment of Taxation and divers others and in special all the Acts of Parliament concerning the granting and uplifting Taxations 4. Whereas it is pretended by the Heritors of the Western Shires that their Retoures are higher than in other Shires and that it should be a more equal way that the Taxation should be uplifted as Câ—sses according to the Valuation without respect to Retours these Gentlemen have no reason to complain being their own Deeds procured by them upon the verdict of their own Friends and Neighbours per fideles homines patriae and according to which they have pay'd not only Taxations according to the old extent but His Majesties Casualities of None-entry Relief and siklike according to the New Extent contain'd in the said Retours and has been also in use to uplift the like Casualities from their own Vassals according to the said Retoure That the Retours should be altogether taken away both as to Old and New Extent it is conceiv'd that they will not desire seeing if their Retour should be lessened as to the New Extent it would be an irrepairable prejudice to His Majesty as to his ordinary Benefite and Casualities of None-entry Relief and siklike a prejudice to themselves as to the same Casualities due and payable to themselves by their Vassals and what incongruity should it be that the same Retour should be altered as to the Old Extent and should be stated as to the New and that it should be still a Rule as to their own interest and benefite and not as to the payment of the Taxation to his Majesty as it has been in all ages it being also considered that they cannot say that the Lands are valued unjustly by their Retours and extend to more than the true value the time of the Retouring of the same and since that time they cannot deny that they are improven for the most part above any proportion 5. The interest and consequently the way of proceeding of Lawful Princes and Usurpers being so different and opposite that as Princes are patres patriae and do cherish and intend the flourishing of their Subjects so by the contrary it is the interest and practice of Usurpers deglubere to squize and oppress the people that they should not be in a capacity to shake off the Yoke it is neither the honour nor interest of the Countrey to take a pattern and rise from the Usurpers to overturn the ancient Law of the Kingdom especially in the matter of Taxations seeing the necessity and fatal course of these times in order to maintaining of War against his gracious Majesty and his blessed Father did not only require a Taxation which was an easie burden to the people and were chearfully granted and oftimes offered to his Majesties Royal Predecessors as an aid and subsidie when their occasions did call for the same but the Usurpers were driven to exact a considerable part of every persons Estate as a constant Tribute under the notion of Taxt and Loan Maintainance Cess and such like burdens which cannot be remembred without horrour and in order to the same to introduce a new way by Valuation whereas his Majesty is to have an ordinary Taxation and therefore there is no reason but that the same should be rais'd in that good old and ordinary way that has ever been used in the time of his Majesties Father and his Royal Predecessour 6. The way of Cess both as to the manner and thing is so hateful to the Body of the people of this Kingdom that though exhausted in a low condition they did offer and chearfully grant to His Majesty a constant yearly Taxation and Annuity during His Majesties Life of 40000 pound Sterling upon consideration expresly mentioned in the said Act that His Majesty had signified His Royal Resolution not to raise any more Cess it cannot be expressed how great dissatisfaction and apprehension it would beget in the hearts of the people if that unhappy way of Cess should be reviv'd under what name or notion soever now after His Majesties Restitution and that the people had just reason to think themselves secur'd by the ancient Laws and Custom of the Kingdom and His Majesties gracious Resolution so recently and solemnly expressed by His Majesties late Commissioner in Parliament and recorded in a Printed Act being the 14 of His Majesties late Parliament and first Session thereof 7. The Western Shires being only five and the remnant Shires who plead for the good old Way according to the ancient Laws of the Kingdom being five times more it is humbly represented that the interest and number of so many other Shires should weigh down the pretences and desires of so few Shires for a Novation contrary to the Law and Liberty of the Kingdom it being also considered that though the Loyalty of some Noblemen and
The last Act of this first Parliament in the Black Impression is an Inhibition made by King James the First to the Bishop of St. Andrews delegated by the Pope to proceed upon the Dismembration of a Benefice purchased at Rome Nota There are many Acts omitted out of Skeens Impression which were in that Impression because Skeen judg'd them Temporary as this Act and a Taxation impos'd for the Kings Ransome by this Parliament wherein so much was put not only upon every Boll of Victual but upon every Beast of Cattel Some Acts are also to be found in Skeen which are not in that Black Impression as the 80. Act. Parl. 10. Ja. 3. in the old Impression it is Act 79. concerning Purprision As also some Acts which were there only temporary are made by Skeen constant and perpetual Laws as the 29. Act of the 2. Parl. of this King â—uns thus in Skeen It is statute and ordain'd that the breakers of the Acts of Parliament be punish'd after the form and ordinance thereof whereas that Act runs thus in the Black Impression Item that it be enquired by the Kings Ministers gif the Statutes made in his first Parliament be kept and if they be broken in any of their pâ—nctilio's that the breakers of them be punisht after the form and ordinance of the said Parliament The Rubricks also of the Acts of that Black Impression differ almost every where and very much from this Impression which proves that Argumentum à rubro ad nigrum is of no great weight with us the Rubrick being an Inscription made by the Clerk Register and no part of the Act of Parliament King JAMES the First Parl. 2 IN the Inscription of this Parliament it is said and of his Kinrick the 19. year by which word Kinrick is meant his Reign for Kinrick in the Saxon Tongue signifies Reign and sometime Kinrick signifies Kingdome with us as in the 145. Act Parl. 13. Ja. 1. In the Inscription of this Parliament according to the Black Impression it is said that to the three Estates of the Realm there gatherit were propon'd sundry Articles to which was answer'd in manner as after-follows by the Inscription of the first Parliament according to that Impression it is said Electae fuerunt certae personae ad Articulos datos per Dominum Regem determinandos data caeteris licentia recedendi By which it appears that the Lords of Articles being nam'd the Parliament Adjourn'd and the custome was that they never mett again till the last day of the Parliament when the resolution of the Articles was voted 2. The resolution of the Articles is said to be Per Dominum Regem because he is only Law-giver and the Parliament only consents It is said in the Inscription of the third Parliament that these Articles were put to certain persons chosen by the three Estates which insinuats that the Lords of Articles were chosen by the three Estates whereas now the way of choosing the Articles is prescrib'd by the 1. Act 1. Parl Sess 3 Ch 2. BY this Act it is ordain'd that if any Lands or Possessions of Haly Kirk be wrongously annaly'd they should be restor'd by Process of Law For understanding whereof It is fit to know that Regularly the Lands and Goods of the Church are not Annaliable and Church-men are not Proprieters of them but Administrators and Liâ—renters praecarij possessores quibus tanquam commendatis non tanquam proprijs uti debent Salv. lib. 1. And this is clear by the Canon Law Canon sine exceptione 12. Quest. 2. can ult Quest. 1. and the Civil Law l. Jubemus 14. C. de sacro-sanctis Ecclesijs But yet there are three cases excepted in which it is permitted to alienat them exprest in Gloss. causae 12. Quest. 2. viz. 1. In causa necessitatis if the Churches Debts require the same as for maintainig its Fabrick or to maintain the Christian Religion against Infidels or Hereticks 2 do Causa pietatis as to maintain the Poor when starving or to redeem Prisoners from Infidels 3 tio Causa damni vitandi when the Lands are not otherwise improvable for which last there is an Act in the Lateran Council under Alexander the 3 d. Cap. ad aures Extr. de Reb. Eccles non alienand By our Law all Ecclesiastical Persons are discharg'd to lessen the Rental of their Benefices by setting Feues Tacks conversion of Victual for Money or any other Disposition By the 5 th Act. Parl. 22. Jac. 6. Bishops are discharg'd to set in Tacks their Quots and Casualities and though this last Act seems unnecessary because of the former yet it was made least it might have been debaitable whether Casualities fell under the former Prohibition since Tutors may transact for these as we see in Francies Montgomeries case against the Earl of Liven where it was found that Tutors who cannot alienat may transact for Casualities as to give a Liferent to the Husband of the Heretrix in place of the Courtesie and though Prelats aswel as Barrons were allowed to Feu their Ward Lands for the better improvement of them Act. 71. I. c. 2. Parl. 14. Act. 91. Jac. 4. Parl. 6. Yet these Acts are only to be understood of Lands to be Feu'd out for the equivalent Rent when at first they were Barren but they are no warrand to Bishops to Tax their Wards for a certain Dutie for this is contrarie to the Interest of the Church and is so far from being warranted by any Law that there is an express Act. viz. 9. Parl 23. Ja. 6. allowing them only to few out their Ward Lands by a Temporary Statute to endure for three years allanerly which shews that Regularly it was not lawful and this did prejudge the King also who might have right to the Ward and Marriage sede vacante from which he would be debarr'd by Taxing these Casualities And therefore Sharp Arch-bishop of St. Andrews having Taxt the Ward-holdings of the Lands of Blebo that Right was reduced by his Successor 12. March 1684 Though it was alleadg'd that though Church-men cannot alienat Teynds which are the Spiritualities of the Church yet they are domini and not administratores tantum as to the Temporalitie which was said to be also Craigs opinion and Taxing was a more constant Rent to the Church and as a Bishop might Gift a Ward which could not be quarelled by his Successors even for years after his Death or Removal so might he Tax Nota Though by the 41. Act Parl. 10 Ja. 2. The King may resume the annext Property unlawfully Dispon'd but any Process of Law yet in this Act Kirk-men are not to resume the Lands wrongfully annalÈied by them otherwayes than by lawful Process of Law BY this Act Hospitals founded by the King are to be visited by the Chancellor but Hospitals founded by Bishops or other Subjects are to be visited by the Bishop and ordinary which Act is renew'd by the 63. Act Parl. 5. Ja. 6. But by the
101. Act Parl. 7. Jam 5. all the Visiters are to be appointed by the King and by our present Practice All Actions intented for causing Patrons or others Compt for their Intromissions with the Rents of Hospitals are still intented at the instance of the Chancellor By the Canon Law Curis Hospitalitatis Hospitalium ad Episcopi solicitudinem pertinet sed ubi non aedificantur Hospitalia cum permissione Episcopi locus non est sacer nec est sub Episcopi cura HEreticks are by this Act to be punished as Law of haliâ— Kirk requires id est by Excommunication with us they were burnt and by Act 46. Parl. 3. Jam. 6. Church-men who are Hereticks are to be Excommunicated and Depos'd if they revock not their Heresie the punishment by the Common Law is Burning and Confiscation of Moveables Clar. Num. 13. This Act was made against the first of our Reformers called then Lollards for the Rubrick in the Black Impression bears of Hereticks and Lollards Obser. From this Act it is observable that the Kirk was Judge to Heresie in prima instantia and Clarus makes the Tryal so far Ecclesiastick that the Cognition belongs to the Church and the punishment to the secular Judge but with us the Justices are Judges in prima instantia IT may be alledged from this Act that all Transgressions of Law are not punishable as contempt of Authority where there is no express sanction in the Law since by this Act it is appointed that the Breakers of Acts of Parliament are to be punished after the Form and Ordinance thereof By which words also it seems that all Acts of Parliament are with us stricti juris and not to be extended de casu in casum but yet with us Laws are extended by Parity of Reason and by Analogie as in the case of making Men answerable for their Wives not going to Church c. And the meaning of this Act is that Judges shall not have liberty commutare paenam Lege definitam expresse for the best Lawyers acknowledge that though an Statute should say And it is ordained that this Statute shall be understood exactly according to the Letter yet it is capable of even an extensive Interpretation if no unjustice follow on that extension but much more if without this it would be unjust Bald. de stat num 3. Voet. de statut sect 7. cap. 1. And a declaratorie Interpretation is by all Lawyers acknowledg'd to be a Literal Interpretation Voet. ibid albeit in general it cannot be deny'd that these who have power to make Statutes must by a necessarie consequence have power to modifie and qualfie them as they please and as they may allow inferiour Judges a Power to Interpret Statutes in general so they may discharge them in a particular Statute to use that their Power and in that Case an inferiour Judge cannot Extend or Interpret otherways than in the terms foresaid LEagues and Bonds are by this Act only declared null but by the Act. 12 Parl. 10. Jam. 6. and Act 4. Parl. 1. Ch 2. they are declared punishable as Sedition and were punishable by Warding Act 43. Parl. 6. Q. Mary IF any carry Horses under three Years old to be sold out of the Country they Eâ—cheat them by this Act and by the 22 Act Parl. 1. Jam. 6 If Horse without making difference as to their Age be carry'd beyond Sea the Horse and Ship and Goods of the Owner are Escheated and their Persons to be punished arbitrarly It is declared by that Act that there were several Acts before discharging the exportation of Horses whereas I see none save this and therefore these behov'd to have been Acts of Council or unprinted Acts of Parliament though generally all Acts inferring Escheat should be printed for Certioration These Acts are now in Desuetude carrying Horses out of the Country being an Improvement of Rent though that was then discharg'd upon the account of our Wars with England but it would appear that the carrying Horses out of the Kingdom till they be three Years old was not discharg'd upon the account of War but to the end the Horses should be kept till they gave a greater price and so should bring in more Money therefore this Prohibition it seems should still last BY this Act Tallow transported is escheated and the reason hereof is given by the 123. Act. Parl. 7. Ja. 5. because by the transportation thereof it became very dear at home and therefore the escheat of the transporters whole Moveables is added but the ill Increasing the Moveables of the Masters and Skippers of such Vessels in which it is transported are declar'd to fall under Confiscation Act. 40. Parl. 6. Q. M. And this Act extends the former to Strangers It is Observable that though this Act discharg'd all Persons to export yet all other Acts mentions Strangers when it is design'd that the Prohibition shall be extended to them as is also clear by the Act. 22. Parl 1 Ja. 6. and the 31. Act. Parl. 7. Ja. 2 d. So that it may be doubted if such penal Acts should be extended to Strangers where they are not mention'd and if the words all Persons are not in our Acts to be restricted to Natives Though by the Civil Law the owners be lyable for the Skippers fault in so far as concerns the prejudice done in the Ship yet it seems hard that an owners escheat shall fall for the Skippers taking in Tallow else Rich men would not be Owners and Skippers might Maliciously ruine their Owners and therefore it seems that by Masters here should only be mean'd Skippers and by the Civil Law the Skipper was call'd Magister Navis THough this Act punishes only Stealers or Cutters of Green Wood in the night time yet they are punishable for such Faults at all times the punishment is exprest Act. 84. Parl. 6. Ja. 6. but thereafter cutting of Green Wood is punisht as Thift with Death Act. 82. Parl. 11. Ja. 6. and yet I find none ever punished Capitaly for this Crime and the ordinary way of pursuing is by Process before the Sheriffs or the Lords for pecuniarie mulcts BY the Common Law no Judge can cite a Malefactor without his own Territorie and therefore if a man cut my Trees I could only pursue him within my Jurisdiction ratione criminis commissi if I find him within it but yet heâ—e it is enacted that if a man steal my Wood the same shall be punished in the Court within which tâ—e Lands lye out of which the Wood was stolne and none other but it seems that this being only introduced in favours of the Person injur'd he may renunce it and pursue before the Judge of the Jurisdiction in which the Offender dwels who cannot obtrude this Statute FOr clearing this Act Vid. infra Ja 1.9 Parl. Act 131. BY this Act Stalkers of Deer are to pay 40 shilling to the King and their Resetters ten pounds
passes in the Exchequer King JAMES the first Parl 3. IS in Desuetude THis Act was made to exclude all pretentions of the Emperour or Pope and all Laws made or Priviledges granted by them but was not design'd to exclude the Civil and Canon Laws which by many of our Statutes are call'd the Common Law and are followed in this Kingdom and to exclude the Danish Laws in the Isles Jac. 4 Par. 6 c. 79. THis Act against Transporting of Money is after many Innovations severly renew'd and the Merchants ordained to swear thereupon allowing only sixty Pounds to Passengers for their Charges by the 11 Act Par 1. Sess 3 d Ch 2 d. But many think it more reasonable to allow Exportation as in Holland since the hindering Exportation prejudges much all manner of commerce THe first part of the Act discharging Officers in the Countrey wherein any man is Indyted to be upon his Assize seems to be founded upon the suspition that arises from an Interest they may have in having the Pannel Convict since a part of his Escheat belongs to them and therefore I think this should not be extended to exclude any such Officers within the Shire as may expect no share such as Commissars c. The second part of the Act which discharges those who Indyte a man to be upon his Assyze extends also against Informers and these who gave advice for raising the Libel but from this part of the Act it clearly appears that it is not generally true that when a penalty is adjected to an Act the deed is not null though the penalty be due for it is here forbidden that any Officiar or other who Indyts a man shall be on his Assyze under the penalty of ten pounds and yet certainly this Act would sett the informer from being on the Assyze and though to this it may be answered that this is unlawful by the Law of Nations prior to all Law and so this Law is only declaratory yet that cannot be alleadged as to discharging Officers within the Shire to be upon assyzes it may be also alleadg'd that this Penalty is only irrogated in case any should pass on such Assyzes without being known to be such But I do really believe that we in our Parliaments considered not the subtile distinction betwixt Acts which proceed paenam irrogando and these which proceed actum irritando vide Obs on the the 216 Act Par 14 Jac 6. It may be likewise concluded from this Act that the Kings Advocat is oblig'd to condescend who is his informer for else the Informer may be upon the Pannels Assyze and yet because that would discourage men from informing interest Reipublicae ne crimina maneant impunita Therefore the Council has several times found that the Advocat is not oblig'd to condescend upon his Informer further than that if it be referred to the Advocats oath of Calumny that some of the Assyzers or Witnesses were his Informers as to which he will be oblig'd to give his Oath of Calumny THe difference betwixt Forethought-fellony and Chaudmella is only observed as to Murder though this Act seems to extend it to all Transgressions and even as to murder the Murderer is to be imprison'd whether it be committed upon Forethought-fellony or Chaudmella for Chaudmella or homicidium in rixa commissum is Capital by our present Law THis Act appointing all Barons to appear in Parliament may seem abrogated by the 102 Act Par 7 Jac 1. Whereby the Barons of each Shire are allowed to choose two wise Men to Re-present them which is the Custom at this day But it is observable that though by that Act they may for their conveniency choose two yet they are by no expresse Law discharg'd to come in greater numbers Nota It seems by that Act that a Prelat or Earl may send their Procurator to Vote for them if they have themselves a lawful excuse but yet de praxi that is not allow'd but this Act is more fully Explain'd in the Observations on the 7 Act Par 22 Jac 6. OBserve that this Act proves the Books of Regiam Majestatem and Quoniam Attachiamenta to be our Law for they are called the Books of Law ARe Explain'd in the 96 th Act Par 6 Jac 4. THis Act appointing all Ferriers to have Bridges in places where Horses are to be Ferried is renewed by the 20 Act Par 4 Jac 3. Wherein all passages on each side of the Water are ordained to have Bridges whereupon Brunt-Island and Kinghorn rais'd a Process against Kirkaldy to have their Passage-Boats discharg'd as not being able to have such Bridges and for the good of the Kingdom since if all places were allow'd to have Boats Kinghorn and Brunt-Island which in the old Evidents is called Wester Kinghorn could not have sufficient Boats against Storms as now but this being thought by the Council matter of Property was remitted to the Session it being dangerous upon pretext of publict good to discharge Property for else many Innovations might be pretended BEfore this Act the Kings Council were the Supream Judges in civil Causes but by this Act some Commissioners of Parliament are to be chosen by turns who with the Chancellor are to be the Session and are to be pay'd out of the Unlaws so that the Session was then a Committee of Parliament their power is further settled and declared by the Acts 61 62 63 Parl 14 Jam 2 d. By which it is clear that they were to Sit but fourty days at a time and that the Session was then ambulatory and their sitting was Proclaim'd in each Shire where they were to Sit three Moneths before and they were by that 63 Act to bear their own Expenses after which the Sessions were by K James 4 Par. 6 Act 58. turn'd in a dayly Council which was to be chosen by the King and was to Sit at Edinburgh continually and wherever the King Resided they had the same power that the Session had and their Sitting was to be notified to the People by open Proclamation at the Kings pleasure In place of all which The Colledge of Justice and The Lords as they now are were Instituted by King James 5 th Parl. 5 th Act 36. Nota There is power granted by this Act to determine Causes finally which may import an excluding of Appeals but thereafter Appeals are discharged expresly Jac. 2 Par. 13 Act 62. THe Sheriff are not now oblig'd to publish the Acts of Parliament but they are to be published at the Mercat Cross of Edinburgh only and bind not the Leidges till fourty dayes after Publication K. James 6 Par. 7 Act 128. King JAMES the first Parliament 4. ARe Explained in the 96 th Act 6 Par Jac 4. BY this Act wilful Fire-raising is Treason 2. Fire-raising by Mis-governance is punishable in Servants 3. Reckless Fire-raising is punishable either in the Owner or the Mealer or Tennent
Perduellion allanerly What we now call Protections were called there Supercederes but not Protections By the Civil Law publica tutelae assertio principis solius eratl capital § ad statuas ff de pan nunc salvagardiae dicuntur vid. argentrate pag 190. King IAMES the first Parliament 13. IT was lately doubted whether Theft-boot which is the Transacting with Thieves by a Judge for freeing them from punishment be in Desuetude and it was found a Crime yet punishable There are two kinds of Theft-boot declared by this Act to be punishable the one is to sell a Thief which is to take a Ransom for liberating him 〈◊〉 other to Fine with a Thief that is to take a share of what he has stoln and so dismiss him both which are exprest Act 2 Par. 1 Ja. 5. by concording with the Thief and putting him from the Law The punishment by this Act seems to be the loss of the Right of Regaâ—â—â—y as to Lords of Regaliâ—y but to be death in Sheriffs Justices c. And if so it seems strange that the Lords of Regality shall be 〈◊〉 punished than others But I think the punishment as to both 〈◊〉 of Life and Office and the words of the Act are only ill plac'd And by the Civil Law whoever commits either of these are punish'd as the Thief himself l. 1. ff de Receptator where the two species of Theft boot exprest 〈◊〉 in this Act are also there exprest quia cum apprehendere latrones possint pecunia accepta vel subreptorum parte demiserunt and this Act punishes only Theft-boot in Judges but yet if a private person take a part of the stoln Goods he may be punished as a Resetter albeit the meer letting of a Thief go is not a Crime in him since he is not oblig'd to take him This Act was necessary because formerly Transacting with Thieves was discharg'd but no punishment exprest Quon Attach c. 42. 77. stat 1 Rob. 1. c. 3 stat Will. c. 15 By which last who Redeems a Thief est legem aquae subiturus which is now in Desuetude THis Oath is not now put to Assizers except the Party require that they be purg'd of Partiality for the ordinary Oath now us'd is That they shall Truth say and no Truth conceal in so far as they are to pass upon this Assize CRowners do not now arrest Male-factors for all arrestments are by Messengers or the Macers of the Criminal Court but yet some Heretable Crowners do assist at Justice-Airs to this Day and keep the Bar and secure Malefactors as they go and come from and to it THere is a double interest in all Crimes the Fisk or King has an interest because his Peace and Laws are broke and his Subjects wrong'd and this is call'd by the Civil Law vindicta publica The person wrong'd has another interest which is call'd vindicta privata That the King may pursue without the concourse of the person injur'd is clear by this Act but because this Act allow'd only Sheriffs to pursue without consent of the party therefore this is extended to all cases in â—â—vours of the King Act 76. Par. 11. Ja. 6. THis Act is abrogated by the Union of both Nations but argumento hujus legis the taking Protections from or assurance with any Enemie of the State is Treason and it may be alleadg'd that assuring Merchant Goods or Ships by Hollanders when we had War with them vvas Treason by this Act and by the Common Law for this is a corresponding vvith Enemies A Thief novv by the Regulations must be pursu'd upon 15. days only as all Malefactors VIde Act 50. Parl. 7. Ja. 3. Act 107. Parl. 7. Ja. 6. and such as failÈie to bring in Bullion are punished Act 51. Parl. 7. Ja. 3. Act 65. Parl. 8. And all is novv innovated by the Act 37. Parl. 1. Ch. 2 d. THe Bell rung in Edinbrugh at 9. at night conform to this Act till it was ordain'd to ring at 10. as it does which being altered at the desire of the Earl of Arrans Lady when he was Chancellour it is therefore call'd the Lady's Bell. From her also the Steps leading to St. Giles Church are call'd the Ladies Steps BY this Act the Law is to be holden where the Trespass is done which is most just because by punishing Crymes upon the Place the Scandal there given is taken off by a proportional terror 2. The Friends of the Party injur'd are thereby better repaâ—ed 3. Probation is more easy got and Assysers upon the Place are readier to do Justice as knowing better the matter of Fact Vid. Stat Will. Reg. c. 18. And is conform to the Civil Law l. 3. ff in prin de Re milit tot tit C. ubi de crimine agi oportet and that this was the old Law of Nations is clear by Quint. Câ—rt THe carriers of Gold and Silver except in so far as is necessary for Spending infers also the escheat of the Carriers other Moveables Act 69. Parl. 9. Q. M. But the falling of their Escheat was but 5. lib. after that Act and is now in Desuetude so that the words under the pain of Escheat is to be interpreted of Escheating the Money so carry'd allanerly K. JAMES II. Parliament I. THIS is not an Act but a Declaration concerning the Fidelity Sworn by the Parliament to their young King and I find no such Declraation or acknowledgement in an other Parliament of any other King So this is rather set down as a Narration than as an Act of Parliament For it mentions not Bishops and it expresses the consent of alâ— the Free-holders THis is the first Revocation that I find made by any of our Kings and here Dispositions made by the King of Moveables is Revocked and though no mention be made of Moveables in latter Revocations Since a King who is Minor Disponing Moveables without an onerous Cause may Revock them 2 ly It is observable that the King is as his Subjects Minor till 21 years compleat and that the Parliament is in place of Tutors to Him 3 ly This Inventar is conform to the Civil Law whereby the Tutor was oblig'd to make an Inventar of his Minors Estate and which is made our Law by the Act 2. Sess. 3. Parl. 2. Ch. 2. and to make an Inventar unto Dupois is to make it according to weight Dupois being a French word signifying Weight 4 ly That in this Act rather the Parliament than the King Revocks for the King was then minor but regularly the King's Revocation passes under His Privy Seal first and then is Confirmed and past by an Act of Parliament Vid. Act 9 th Parl. 1 Ch. 1. But sometimes it passes first by Proclamation and then by Act of Parliament Act 51 Par. 4 th Ja. 4 th And sometimes by way of Instrument Act 70. Par. 6 th Ja. 5 th King JAMES the Second
6 Ja. 4. these were to come in on 15. days Ejections Intrusions and succeeding in the Vice which are of the nature of recent SpuilÈies But since this Act appointed all Summons to come in upon 21. days dubitatur how the Lords could have priviledg'd any Summons upon fewer days though there was an old immemorial Custom for this prior to this Act of Sederunt and it will be fit to Ratifie this Act of Sederunt in the first Parliament By that Act of Sederunt likewise second Summons may be executed against persons within Edinburgh or the Suburbs thereof upon twenty four hours Vid. Observations on the Act 65 Parl 6 Ja. 4. THis is abrogated by the Union of the Nations MOney is yet escheated to the King and his Customs if taken out of the Countrey without a Warrand but that part of the Act which allows a Noble for every private man's expence is in Desuetude for now every man is allow'd to carry out what may defray his Expence and that part of the Act appointing every man to make Faith and swear that he carries no Money out with him is also in Desuetude but any man may be pursued for having carried out Money and his having carried out and the quantity may be proven by his Oath We see also in this Act that Seculars could not Judge Ecclesiasticks for Ecclesiasticks were to be Judg'd by the Official that is to say the Bishops Judge in whose place the Commissars are now come and this priviledge descends to Church-men from the Canon Law c. 2. de judiciis But since the Reformation this Priviledge fell for now all men whether Secular or Ecclesiastick answer to the Civil Judge The great reason why our own Coyn should not be carried out is because our Money is finer nor forraign Money being eleven denier fine and so is constantly Exported and being melted down into forraign Coyn is brought home again to us at a greater extrinsick value but yet because it might be doubted if this prohibition extended to the carrying out of all Money that is current or if that which is not current may be carried out such as Ryals c. For the carrying out of Gold and Silver is generally ordain'd to pay Custom when it is carried out by Act 15 Par. 1 Ja. 1. but by the 149 Act Par. 13 Ja. 1. The carrying out of all Gold and Silver Coyn'd or Un-coyn'd infers escheat of the Gold and Silver so exported Vid. not on Act 49 Par. 3 Ja. 1 Supra King JAMES the third Parl 2. BY this Act Noblemen and Gentlemen pretend to be free from Custom of what is imported for their own use as to which I have insert this Paper Reasons why the Nobility Barons and other Heretors in Scotland are lyable to pay Customs and Excise for what Commodities they bring in though for their own private use OUr Laws and Acts of Parliament have granted to His Majesty the Custom of all Goods exported or to be imported as is clear by the 251 Act 15 Par. Ja. 6. The Words being That His Majesty with consent of the Nobility Council and Estates have ordain'd that all Cloath and other Merchandice brought into this Realm shall pay Custom c. And therefore the King being as to this founded in the Rule all must be lyable except where there are clear exceptions derogating from the general Concession Likeas by an express Statute 14 Act Par. 1 Ch. 2. The Customs of all Goods are Confirmed to the King And a special A. B. C. Of all Customable Goods expressing what each species is to pay In which Act there is no exception of any person whatsoever By the foresaid Act 251 Par. 15 Ja. 6. Customs are to be paid to the King according to the use of any other Kingdom But so it is that â—y the use of other Kingdoms and particularly of England and France the Nobility Barons and others pay Customs for all imported Goods The Customs being granted for the Defence of the Kingdom and the Support of His Majesties Royal Dignity it is just that the Nobility and Barons should rather pay than any others since they are of all others most concerned to maintain the one and support the other Scotland being a Countrey that has no Consumption for imported Goods save within themselves if the Nobility and Gentry should not pay they might bring home all their own Commoditieâ— and so there should be little or no Customs due to the King They might colour the Trade of Merchants by granting simulat Commissions for bringing home the Goods of Merchants under their names which would occasion much Perjury and at least put the Customers to a Process and Suspend the payment of the true Customes till that were clear'd by Process When this Kingdom thinks fit to guard against the importation of any forraign Goods they do this by imposing great Customs as was lately done by imposing 80 per cent upon all English Cloath But so it is that if this exemption were allow'd to the Nobility and others these Prohibitions would be useless and ineffectual for those Prohibited Goods might be brought in by them and so our Manufactories could never be encouraged nor could we force other Nations justly to ballance their Trade with us or keep our Money within our own Countrey If these Exemptions were allow'd there could be no possibility of lessening and curbing the Luxury of the Nation For the Nobility and Gentry might still wear what they pleas'd at least it would be an encouragement to them to bring home things superfluous they being free from Impositions whereas their being burdened with Custom would discourage them to bring home superflueties The Exchequer has in their Tacks been in use to set the Customs with express order to allow no exemptions and the Customers have exacted Customs from the Nobility and Gentry which proves the Kings Possession and the acquiescence of those who plead the exemption Whereas it is pretended 1 o. Customs are regularly a Duty impos'd upon Merchandice and Traffique But what Noblemen and Gentlemen import for their own use is not Merchandice nor Commerce 2 o. By this Act and by Act 152. Par. 12 Ja 6. the 251 Act Par. 15 Ja 6. And the 143. cap. Leg. Burg. There is an express exemption from Customs granted to the Nobility Barons and other Heretors for what they import to their own use It is answered that as to the first Custom being impos'd for the uses foresaid the payment should be regulated by the reason that imposed the Imposition and not by the nature of the Traffique and if that were a good reason neither Merchants Burgâ—ssâ—s nor any else should pay Customs for what they are to apply and consume for their own privat use 2 o. Though that were generally true as it is not yet the Laws and Customs of this Kingdom should alter the case here as it does in other Kingdoms To the 2 d it is answered that 1 o. There is
and that France and Flanders were then entring into Wars STaple Goods are by this Act to remain in Staple and not to go to Mercats for clearing of which Act it is fit to know that Kings and Common-wealthes allow some Goods only to be sold at particular places and these are call'd Staple Goods and the place is call'd the Staple Port Jus stapuli est potestas sistendi in suo foro restringendique merces speciali emporii beneficio certis civitatibus competens Loccen de Jur. Marit lib. 1. c. 10. num 3. Potest enim Rex ob bonum publicum in hoc casu dispensare l. ult C. de leg But this priviledge of Staple is not competent except it be specially granted and Strangers as well as Natives may be forc'd to observe that priviledge for they are here tanquam subditi temporarii Grot. de jur Bell. Part 2. num 11 and 5. But yet this Act discharging the carrying of Staple Goods by Sea from Simon and Jude's Day till Candlemas is in Desuetude for our best Trade is now in Winter but the reason why Winter Trade was then discharg'd was because our Vessels were small and our Sea-men ignorant so that many perished by Winter Voyages ARe Explain'd in the Acts 67 and 68 8 Par. Ja. 3. and by the 36 Act Par. 8. Ja. 2. as is also the last Act of this Parliament VId. Annot. on Act 59 Par. 3 Ja. 1. Supra King JAMES the third Parliament 4. THis Act is conform to Iter Camer cap. 30. And the last Act ordain'd to be put to Execution by this Act is Act 73 Par. 14 Ja. 2. THis Act is in Desuetude for it is now lawful to carry any kind of Cattel out of the Countrey without hazard of Confiscation It is clear from this Act that the Warden might then have granted Licences for Goods prohibited but this the Commissioners of the Borders cannot now do King IAMES the third Parliament 5. VId. Act 76 Par. 14 Ja. 2. But it is to be observ'd from these words in this Act It shall be lawful to the Kings Highness to take the Decision of any Cause that comes before Him at His empleasance Likeas it was wont to be of before That the King Himself may be Judge as he pleases but though the King did call an Action to be judg'd before himself that was depending before the Lords yet His Majesty was thereafter pleased upon a Representation of the Inconveniences that would arise to refer it back to them and some interpret this of the Kings power when he is sitting in his Judicatures though I think the Act will not bear that gloss â—ut certain it is that at first all Masters were Judges in their own Families and that Kings themselves Judg'd in their own Kingdoms as we see in the instance of Solomon and others vid. ch 16. Stat. David 2. Where there is a Decision of the Kings insert amongst his Statutes and the Doctors are of opinion that princeps habens causam cum suo subdito potest ipse judicare si vult Peregr de jure sisci tit 2. num 7. and this seems founded on l. hoc Tiberius 41. ff de haer instit l. proxime ff de his quâ— in test delent And though thereafter they did disburden themselves of that Charge by electing other Judges yet they did not debar themselves from that power and therefore we use to say that all Jurisdiction in Scotland is cumulative and not privative but if the King take the Cognition of any Cause He will try it according to the Forms of that Court where it should have been decided and therefore if He be to Try a Criminal the Pannel will be allow'd to hear the Witnesses Depone against him and the matter of Fact will be judg'd by an Assyze If it be alledg'd the meaning of this Act is only that the King may Try any Action He pleases in His Council that is to say His Session for of old the Session was call'd His Council and yet they are call'd His Council and Session To this it may be answered this Aâ—t appoints that Causes should be first Try'd by the Judge ordinary and if he either refuse to Judge or Judge wrong the Council is to Judge not the Cause but him and this induc'd some to urge that the absence from the Host could not be pursu'd before the Council though the punishment was restricted to an arbitrary punishment for which they brought these Reasons 1 o. That this would confound the nature and limits of all the Judicatures which are the great foundations of our Law and which is contrary to this Act. 2 o. It is the great security of the People that when they are Try'd for Crimes they should be judg'd not only by the learn'd Judges as to Relevancy but by their Peers whom they may judge again as to the Probation 3 o. Advocats are to be heard before the Criminal Court but not before the Council and the Debate is to be there in Writ which obliges a Judge to do justly and the Probation is to be led in presence of the Pannel 4 o. Before the Council the Crime may be refer'd to Oath which is not suitable to the Criminal Law even where the punishment is arbitrary except the Party be by Act of Parliament oblig'd to Depone as in the case of Conventicles 5 o. There are no Exculpations before the Council which are necessary in Crimes 6 o. Several Acts of Parliament appoint that cases may be pursu'd before the Criminal Court or Council when that is intended and which were unnecessary if all Causes might naturally be pursu'd before either It being likewise Debated from this Act that a Judge for giving an unjust Decreet might be pursu'd before the Council in the first instance for oppression the Council did in January 1682. find that a Sheriff or other inferiour Judge could not be â—ursu'd before the Council until his Decreet were first reduc'd before the Judge ordinary and that because the 105 Act Par. 14 Ja. 3. Appoints all Actions to be first pursu'd before the Judge ordinary and the Lords of the Session are Judges Ordinary to Reductions and are there appointed to cognosce the wrongs done by inferiour Judges and if this were Sustain'd the Privy Council should become the Session nor would any man be a Sheriff since he might every day be pursu'd before the Council And whereas it was pretended that the Council were Judges to Oppression and there might be great Oppression committed by inferiour Judges sub sigurâ judicij It was answered That when the Decreet was Reduc'd they might then be punishâ—d as oppressours if there was no colour of Justice for their Decision as the said 105 Act provided Sheriff of Bamff contra Arthur Forbes Vid. Obs. on the 16 Act 6 Par. Ja. 2. and 16 Act 3 Par. Ch. 2. WE see that the granting Reversions by the Wodsetters were but new
as go to the KINGS Host to take free Quarter or Meat and Drink gratis which we call Free-quarter which may be further clear from cap. 5. Stat. 1. Rob. 1. Where these that come to the Host are ordain'd to be serv'd for their Money and that they take nothing but at the sight of the Baillies and others there mention'd under the pain of being punish'd as Robbers But it is still doubted whether the Countrey may be put to be the first advancers when the Militia is rais'd in such haste that these who are remote cannot provide present money and the Countrey into which they are sent have by their irregularities occasion'd their coming it being unjust that innocent Shires who send in their Militia should be put to expences in levying and entertaining men to repress the irregularities of others IT is observable from this Act that it is not the Parliament but the KING without mentioning consent of Parliament who commands the Proprietars of Castles to furnish them for Defence against the Enemy with Victual and Artillery and the reason of this is because there was no Fort nor Strength or turris pinnata call'd Tower-houses allow'd to be build in Scotland without an express Warrand under the Kings own hand this being one of the effects oâ— his Prerogative in the sole disposing and making of Peace and War and since Arms cannot be born without his Licence much less should Strengths be built and from these grounds and the practise of other Nations it was contended lately that the King may Garrison any mans house when he and his Council find the having a Garrison in that place for maintaining the Peace of the Countrey is necessary But Craig is of opinion that it is Treason or at least Purpresture to deny the King the use of our Castles or Towers in such cases Jure anglorum turres omnes quia ad defensionem sâ—u munitionem regni extructae tantum praesumuntur ad regem pertinent ad quem regni defensio quod si idem jure nostro observari quis dicat non ut opinor aâ—errabit cur enim qui turrim sive fortalâ—â—tium suum regi denegat crimen laesae Majestatis incurrit magis quam si equum aut aedes aut rem aliam nulla alia ratio probabilis reddi potest nisi quod negatio haec ex jure feudali regem dominum videtur privare jure fui dominij species quaedam purpresturae est alias res nostras principi poscenti possumus negare sine perduellionis periculo Which agrees with the opinion of forraign Lawyers who treat of the power of Kings in general Fritz de jur praesidij penes quem Monarchia is urbes arces occupare potest â—isque pro tuenda securitate publica praesidia imponere potest But in this as in all such cases the prerogative should not be made use of except in cases of extream necessity and even then the Heretor is to be repaid if he must hire another House as at Sea in Storms all the parties concern'd in the Ship are to contribute for repairing his loss who for lightning and securing his Ship is forc'd to throw his Goods over-board IF a Woman who has a Conjunct-fee alienat it during her marriage the alienation is 〈◊〉 except she ratifie the same judicially outwith the presence of her Husband upon oath never to revock it and then the alienation is valid but though this Act sustains a judicial Instrument under the Seal of the Judge as a sufficient probation yet now something must be produc'd under her own hand or by two Notars and the Lords would not sustain the Act of Renunciation though under the hand of both Judge and Clerk February 15. 1678. Gordon contra Maxvel The reason of which Decision I conceive to be not because this Act to which the Decision is contrary is only set down as a Memorandum and relates a Decision of Parliament without Statuting any thing thereupon for confirming the same for the meer setting down this Decision among the Acts of Parliament gives it the strength of an Act but because the time of that Act one Notar was sufficient but now either a Woman must subscrive her self or two Notars for her Observ. 1 o. That Decisions of Parliament bind as Laws though they be not set down as general Laws for the inserting them amongst Laws make them equal to Laws Some times Decisions by the King are inserted amongst the Acts of Parliament as cap. 16 David 2. Observ. 2 o. That though an oath is sufficient to confirm the Renunciation of a Joynture stante matrimonio Yet it is not sufficient to confirm a personal obligation granted by a Woman stante matrimonio as is decided November 8 1677. Sinclar contra Richardson and his Spouse the reason of which disparity seems to be that in Conjunct-fees she is domina and the Obligation is not to take effect till after her Husbands death But in other Obligations where the design is to bind her self the Obligation is invalid because she being sub potestate mariti cannot oblige her self and upon the same ground it is that Dispositions granted by Heretrixes stante matrimonio will be sustained they having therein plenum dominium as to the Property and even personal Obligations for sums of Money granted by a Woman who was an appearand Heir there being a Back-bond granted to her declaring that she should not be thereby personally oblig'd was sustain'd to be the foundation of a Comprizing for as she might have dispon'd her own Heretage expresly so she might have lawfully granted an Obligation whereby the same might have been Adjudg'd January 23. 1678. Pringle and Bruce contra Paterson vid. Stockman decis 59. BY the Canon Law Laicks have no power of choising or electing â—hurch men c. Quisquis 43. c massana 56. de elect elect potest So that the priviledge here granted seems contrary to the Canon Law But as the King of France had power by the Concordata with Pope Leo 10 th to nominat Bishops and Abbots so our King had the nomination of Bishops and Abbots and the provision of them belong'd to the Pope as is clear by the 125 Act 7 Par. Ja. 5. Which though this Act says did belong to our Kings by the Priviledge of their Crown for prerogative was then call'd priviledge yet it is conâ—eâ—â— that they deriv'd this priviledge from the Pope Act 53 Par. 5 Ja. 4. For understanding this Act it is necessâ—ry to know that if the Kings who had these priviledges did not nominat within six Moneths the Pope might confer the Benefice as he pleas'd and if the King did nominat an unfit person the Pope might refuse him and the King was oblig'd to nâ—me another within three Moneths vid. past de benefi cap. 8. But our Kings not acknowledging this power of precluding It is Statute by this Act that our Kings may present at all times till the Prelate
that it shall be the fineness of 12 penny fine yet the meaning of that Act is because 12 penny fine is the finest imaginary value but there must be still a twelfth part allow'd of alley to make the Siver malleable and albeit the punishment in the Act against these who work not up to this fineness be arbitrary yet it is declar'd to be punishable by death by the 56 Act Par. 6 Q. M. Observ. 2 o. That the ordaining this Act to take effect after forty days Proclamation implys that regularly Acts may be put in execution sooner as by the 20 Act Par. 3 Ja. 3. King JAMES the third Parliament 14. THis Act is only a Temporary Statute ending with these who swore to observe it but the bringing Malefactors to the Bar in sober manner without assisters is commanded by many Acts and though by this Act it seems that the Justices cannot hinder some of the Pannels friends to stand with him upon the Pannel that is to say to stay at the Bar and that four friends are allow'd to the Pursuer and ten to the Defender by the 41 Act Par. 6 Q. M. Yet the Justices do suffer few or none to stand with the Pannel as they see occasion for it THe Crowner of old received the Porteous Rolls that is to say the names of such Malefactors as were to be pursu'd at Justice-airs but now the Justice Clerk keeps it himself and gives it to the Macers of the Criminal Courts or Messengers who cite the persons to be pursu'd THe Defenders in slaughter are by this to be cited upon six dayes to find Caution or else are to be denunc'd Rebels but now if the Criminals be not in prison they are to be cited to find Caution upon fifteen dayes but if they be in prison they may get an Indictment to answer upon twenty four hours BY this Statute it is clear that a person apprehended and incarcerated must first be maintain'd upon his own expences and if he be not able to aliment himself the Sheriff is to aliment him upon his Majesties allowance and by a late Act of the Justice Court The Keeper of the Tolbooth of Edinburgh is discharg'd to receive any Criminal Prisoner till he who enters him Prisoner find Caution to aliment for before that Act poor people were starv'd and ruin'd by their Imprisonment THis Act is in Desuetude for nothing is due now to Crowners because they do not attach as formerly and this was the price of their pains or Fee THis Act is in Desuetude for no Sheriff tholes now an Assize the last nor no day of a Justice-air except he be pursu'd for some particular Crime or for Malversation in his Office BY this Act if the Sheriff hear of any Convocations he should charge them to cease and if they refuse he should continue the Court and pursue them and the punishment is Imprisonment for a year from which Act it was argu'd justly in the Earl of Caithness case that though men refus'd to dissipat at the Sheriffs desire he could not summarly fall on them and kill them for that were too dangerous a power to be given to any Sheriff and all that he could do by this Act was to acquaint the King and then pursue them THis Act ordaining the Causes of Widows and Orphans Kirk-men c. only to belong to the Cognition of the Lords is in Desuetude and these Actions do properly belong to the Commissariot Court THe Burrows of Scotland have liberty to meet in time of Parliament and to propose as a Body and third Estate any overtures for Trade but no other state of Parliament can lawfully meet this being a singularity indulg'd to them for the good of Commerce and the subsequent Acts are propos'd by that Estate to the Parliament and by them turn'd into Acts as appears by the Rubrick it self VId. Act 12 Par 2 Ja. 3. Vid. observ on 47 Act Par. 1 Cha. 2. and on Act 66 Par. 14 Ja. 2. THe Act here ratifi'd though not exprest is Act 30 Par. 5 Ja. 3. THough this Act allows the Burrows to meet every year at Inner-â—eithing only yet thereafter they are allow'd to meet four times in the year at what place they shall think most expedient Act 64 Pa. 5 Ja. 6. and the burgh of Edinburgh with six of the rest may conveen them Act 119 Par. 7 Ja. 6. Now they meet in July at Edinburgh Pearth Dundee Aberdene Stirling and the Provost of the Town in which they meet being always President without Election and though the Fine of each absent Burgh be here five pounds yet it is made twenty pounds Act 119 Par. 7. Ja. 6. THis Act adds to the ordinary annexations that the King shall be bound by his oath at the Coronation that he shall not alienat the annext Property which oath is given by all the succeeding Kings It is observable also in this Act that the Kings great Seal and the Seals of all the Prelats Lords Barons and Commissioners for Burrows are appended which was usual in these days in all Concessions granted in Parliament and I have several Patents of honour granted by the King in Parliament wherein the Kings great Seal was appended as now it is to the Patent and the Seals of all the Ecclesiasticks were appended upon the right side and these of the Laicks on the left side each Seal hanging from a Label or Tag on which the owners Name was writ and in anno 1558. a Commission to the Lord Seton to be Ambassador in France was thus Seal'd by the King and Sign'd by the Nobility and by the 191 Act Par. 13 Ja. 6. The Morning-gift of the Abbacy of Dumfermling is said to have been under the Kings great Seal and the Seals and Subscriptions of the Estates in favours of Q Ann. THis priviledge was granted by Malcolm 2 leg M. c. 3 num 4. but both that priviledge and this Statute are now in Desuetude so that now the Crowner has none of the Malefactors Horses THis Act appointing that strangers be well us'd and that no new Customs Impositions or Exactions be put upon them seems to limit the Kings prerogative acknowledg'd by the 27 Act Sess. 3 Par. 1 Ch. 2. by which it is declar'd that the King may dispose and order Trade with Forraigners as he pleases a consequent of which Prerogative is that he may either discharge Trade with Forraigners or burden it as he pleases since by this Act no new Imposition can be laid on But the answer to this is that this Act relates to strangers and not to the Kings own Subjects so that though Strangers come they should be civily us'd by this Act yet they may be debar'd by that Act. THis Act granting a Commission to Examine the Laws and put them in one Book took effect in Skeens Edition of the Acts of Parliament and Regiam Majestatem in which
many of the old Acts yet to be seen in the Records of Parliament are left out Observ. That the Acts of Parliament are call'd the Kings Laws and not the Acts of Parliament for the King has only the Legislative power and the Estates of Parliament only consent The Books of Regiam Majestatem are likewise numbred amongst our Laws but what is mean'd by the words Acts and Statutes added in this Act to the Kings Laws and Reg. Maj. I do not understand except by these be mean'd the burrow-Burrow-Laws and the Statutes of the Gildry and these other Books that are bound in with Reg. Maj. K. JAMES IV. Parliament I. BY the twelfth Articl Iter. Just. The Burrows had liberty to repledge their own Burgesses from being upon assizes which priviledge is here regulated but now the priviledge it self is in Desuetude for all Burgesses are oblig'd to pass upon assizes except the Chirurgeons of Edinburgh who have a special priviledge because of their necessary attendence upon sick persons BY this Statute all Ships must come first to free Burghs and no Strangers can fraught Ships but now by the 5 Act 3 Sess. 2 Par. Ch. 2. all â—urghs of Barony and Regality may Traffick in the product of Scotland as freely as Royal Burghs Vid. That Act and the observ thereon That part of the Act discharging strangers to buy Fish that is not salted is now in Desuetude It was argued from this Act in the case of the Town of Linlithgow against Borrowstounness that the Burrows Royal had the only priviledge of having all Goods Liver'd and Loadned at their Ports and which is likewise clear by Act 88 Par. 6 Ja. 4. and by Act 152 Par. 12 Ja. 6. 2 o. Without this priviledge the Burrows were not able to pay the sixth part of the burdens laid upon them in contemplation of their Trade since a Clandestine Trade without this might be carry'd on by the Burghs of Barony and Regality who since they may retail publickly might have the same priviledge as they if they had likewise power to import publickly 3 o. This was most convenient for securing the Kings Customs because where ever there is Livering allow'd the King must have Waiters and upon which consideration the Magistrats of Burghs Royal are by the Acts of Parliament appointed to assist the Kings Customers and whereas it was pretended that the priviledge of Commerce was inter regalia and consequently the King might grant a free Port to any Burgh he pleas'd 2 o. The priviledge of a free Port was different from that of Livering and Loadning 3 o. The Acts of Parliament cited did only discharge Strangers to Load and Liver which is yet more clear by the Act 120 Par. 7 Ja. 6. To which it was reply'd that the King and Parliament having formerly granted the sole power of Loadning and Livering to free Burrows it was no diminution of his power to assert that he could not give a new grant of that to any whereof he was formerly divested To the 2 d it was reply'd that the sole priviledge of a free Port granted by a King to a Burgh of Regality or Barony can extend no further than that thereby they may have the priviledge of bringing into their Port the Goods proper only to be sold by them To the 3 d it was reply'd that this Act discharges Strangers and others to Liver at any place except at the Ports of Burghs Royal and though in that 120 Act Par. 7 Ja. 6. This Act is repeated as relating only to strangers yet in the next line Strangers and others are in that 120 again discharged Likeas by the Acts of Parliament the sole priviledge of losing and loosing is declar'd to belong only to Burghs Royal which in Sea-faring Terms signifies loadning and un-loadning BY the Act 85 Par. 11 Ja. 3. The Rents of Churches or Benefices whereof the King is Patron are declar'd to belong to him sede vacante by the priviledge of his Crown and this was so formerly declar'd by the 7 cap. Stat. 2 Rob. 1. And Skeen there observes that cum alicujus beneficii Ecclesiastici patronatus pertinet ad Regem terra si quae sunt ei annexa pertinent quodammodo ad Regem and therefore by this Act it is appointed that it being declar'd by the best and worthiest Clerks of the Realm that if any Church-man received and purchast such a Benefice at Rome they should be punish'd and these who supplyed them This Declaration from Clerks was requir'd because the Secular would not meddle with Church-men in these days till Church-men had some way declar'd them guilty King JAMES the fourth Parliament 2. THat part of the Act appointing the intromission with the Kirk Rents to be a point of Dittay that is to say to be a Crime is now in Desuetude for they have no other priviledge here more than Laicks but to intromet with their Rents either by Arms or open Force is the Crime of oppression with us and was punish'd by the Romans lege Julià de vi per deportationem in liberos homines ultimum supplicium in servos Observ. That by this Act Parsons and Vicars are founded in jure as to Teinds for it is declar'd a Crime to intromet without a right from them I Understand not how it is said here that the King could not discharge any part of the Taxation granted to him though it was granted for a particular or publick use for it is ordinary and lawful to Kings with us to discharge privat parties their particular proportions except the contrary be expresly provided and the offer be so qualifi'd by the Parliament but here the King was minor as appears by the subsequent Act or rather this Taxation being granted originally for maintaining an Ambassador for the Kings Marriage as is clear by the Act and so ad particularem effectum it could not be diverted from that particular use lest else the Embassie should have fail'd And from this we may observe that what is granted for a general and publick use cannot be otherwise apply'd or taken away IT is observable from this Act that the King was Minor and that is the reason why he could not discharge something here exprest which falls not under his annex'd Property THe Parliament here recommends only to the King that his Majesty shall cause his Wardens observe the days appointed for Truce and they meddle not with it because what concerns Peace and War belongs to the King and not to the Parliament THe restrictions here put upon the King proceeded from his minority Nota Councellours are made accusable to the King and Parliament of their Council till the next Parliament for the words are and shall be responsal and accusable to the King for their Counsel but this was in the Kings minority and therefore there were greater reason that they should have been lyable for their Counsel than when a King is major for then he may judge of
sensim diminui MEn used to give their best Horse or some other acknowledgment to great men and especially to Chiefs of Clans for their protection and these are here discharg'd and are a kind of Black-meal they are now intirely in Desuetude Nota Possession past memory of man is not sufficient in unwarrantable exactions oportet consuetudo sit rationabilis alias non tenet THis Act is in Desuetude for actions of poinding the Ground are now pursu'd for recovering bygone annualrents in the ordinary Form of Process THe Forcing the Kings Tennents to do Service is punish'd as oppression by this Act but the punishment is not specifi'd and though Oppression be punish'd by death Act 42 Par. 4 Ja. 4 and by the Act 88 Par. 11. Ja. 6. Yet I think that here Oppression could not reach that far and though it be ordain'd to be a point of Dittay that is to say a Crime by this Act yet such Oppressions use to be pursu'd before the Council Though some Oppressions may be pursu'd before the Justice Court or Council as is clear by the 2 Act 1 Par. Ch. 1. and Oppression is a general name for Violence as Stellionatus is in dolo King IAMES the fourth Parliament 3. THe Alliance betwixt Scotland and France is here ordain'd to be renewed and new priviledges to be desir'd which were accordingly obtain'd and the Alliance here mentioned is inserted in the 66. Act 8. Par. Q. M. THe form of the Chancellary is not to be alter'd except in the Brieve of the Summonds of Error the reason of which exception is because by the 35. Act of this Parl. the Form of the Summonds of Error is alter'd in some points But by the Act 13. Par. 10. Ja. 6. the Stile is to be alter'd in no Letters BY this Act the Superior of Ward Lands or his Donatar are obliged to maintain the Heir during the time he has the Ward Lands if the Heir has no other Blensh nor Feu-Lands and though he have Blensh or Feu yet if he have not as much of either as may entertain him or if they be Appryzed in either of these cases the Heir will have Action ex paritate rationis and by the same parity of reason it may be doubted whether Donatars to Liferent Escheats are bound to entertain the Rebels whose Escheat they have purchast and it may be argued that they are not since a man is only at the Horn by his own fault This Donatar to the Ward is obliged to Aliment the Ward Pupil by allowing him an Aliment and not by keeping him in his House and the Donatars Assigney is bound to Aliment though he got no Mails and Duties if he cannot shew why he was excluded from getting them Sibbald contra Faulconer The Sheriff of the Shire or Baillies are warranted to take Surety of the Superior or Donatar that they shall not waste nor destroy the Lands during their right which our practique extends also to Liferenters who are bound to find Caution to keep up their Liferent Houses and others in the same condition wherein they found them and this is conform to the common Law and all this matter is learnedly treated Christin ad leges Mechlin tit 14. And the way how this Caution is to be found is fully cleared Act 15. Par. 4. Ja. 5. where this shall be explained This Act is founded upon Cap. 1. l. Malcolm 2. by which there is a mutual Contract betwixt the King and his Vassals in which that King Distribuit totam terram Regni Scotiae hominibus suis omnes Barones concesserunt Wardam relevium de Haerede cujuscunque Baronis defuncti ad sustentationem Domini Regis And though Arnisaeus de potest Majesti num 8 inveighs against this Law for which he cites Boethius and John Majors History as contrary to reason that being to add affliction to the afflicted and because Pupils may serve the Superior by a Substitute or by allowing a part of the Feu to him who serves Yet I know no man would refuse Land upon this condition and it is presumable that whilst the Vassal is a Pupil he will only need an Aliment but yet I confess that according to the very Text of the Feudal Law Pupils are neither obliged to serve by themselves nor substitutes lib. 2. Feud tit 26. cap. Si minor § Si quis decess 5. Tho posterior custume introduced the necessity of Substitutes Gloss. in dict § Si quis To which we by the foresaid Contract have added that the Superior shall have the Feu and not be obliged to accept even of a Substitute It is the received practice of Scotland that the Liferentrix should entertain the Heir if she Liferent his whole Estate which is only founded upon a consequence from this Act and the paritie of reason but in my judgement this practice is neither warranted by this Act Argumento Legis nor is it founded upon the Principles of nor suitable to the Analogie of Law for as to the Act of Parliament it being joyn'd with the Act 15. Par. 4. Ja. 5. whereby it is explained ordains that the Donatar to the Ward shall find Caution not to destroy the Biggings c. As also that he shall entertain the 〈…〉 the Ward but when it comes to Statute anent Life-renters it appoints only that they shall likewise find Caution not to destroy the Bigging but it appoints not that they shall Aliment the Heir ergo not only is there no warrand for the Liferentrix Alimenting the Heir from this Act But on the contrary the Parliament having both cases under their consideration and not having extended the case of Alimenting to Life-renters it must be concluded that they design'd not that Life-renters should Aliment nam casu◠omissus habetu◠pro ommisso 2 o. Laws ought not to be extended at most but ex paritate rationis and therefore though Life renters and Wardatars aequiparantur by these Statutes quoa d the finding of Caution that was most reasonable because there was eadem paritas rationis since neither should waste that to which they had but a temporary right and by the Common Law Life-renters were lyable in the same way which was called cantio usu fructuaria but quoad the Alimenting the Superior in the Ward or his Donatar should be in a different case from the Life-renter because the Superior in effect is but Tutor durante Wardâ and therefore he should Aliment the minor but the Life-rentrix is a singular Successor 3 o. In making Contracts of Marriage there is no more allowed for a Life-renter than what may be a competency for entertaining the Life-rentrix and suitable to her quality and therefore it is against reason contra illud quod agitatum est inter partes contrahentes to take away a part of her Aliment to Aliment another 4 o. She being made Domina of her Life-rent by her Contract and there being jus quaesitum to her thereby
consultum in iis quae usu consumuntur § 3. just de usufruct l. 1. ff de usufructu earum rer quae usu consum But all this matter is learnedly Treated by Christin ad Consuetud Mechliâ— tit 14. where he determines that the lesser and temporary expences are to be bestow'd by the Liferenter but that she will get 〈◊〉 from the Heretor of these expences quae perpetuam rei utilita tem concernunt if she advertise the Heretor that they were necessary and first desir'd him to repair but that she cannot by her Reparation alter the form of the thing though for the better nor use it otherways than the Proprietar himself did By the former Act Ja. 4 Par. 3 cap. 25. to which this relates the Liferenters are to find Caution that they shall not destroy the Orch-yards Woods c. From which it may be observ'd that where Woods are upon Liferented Lands the Liferenter as well as the Conjunct-fiar may make use of as much of the Wood or Coal as is necessary for her own use since she is only restrain'd by this Act from wasting and by the custom of some Countreys she cannot pretend Right to Trees fallen by Winds or accidents if the Trees be such as are fit for sale in sylvâ caedua ita inâ—isionem facere potest ut ad fructum pertineat non vere ad destructionem vid. l. ex sylva 10. ff de usufruct which agrees with our Law by which the Liferentrix has only right to as much of the Coals or Trees as are necessary for her own use but even this Right is only due to her whilst the Land is the Fiars but does not hinder the Fiar to sell his own Land Craig pag. 189. FOrestallers are these who buy Goods before they come to an open Mercat and Regraters are properly only these who buy up all Goods that they may sell them again at dearer rates But our Law has us'd these two words promiscuously though by this Act such as buy any thing before it be presented to the Mercat or who buy it in the Mercat but before the Mercat be proclaim'd which is call'd here the time of day of the Mercat are punish'd as Forestallers yet there must be something of design proven as if they should stand in the way upon a Mercat day or should every day cause buy up what were going to such a Town to hinder the Traffick of that Town for it were hard to make generally all who buy things going to a Town or a Mercat Forstalling for that may be done either ignorantly or necessarly Though the punishment here be Imprisonment and escheating of the Defenders Moveables yet by the 148 Act Par. 12 Ja. 6. The punishment is ordain'd to be fourty pounds for the first fault a hundred for the second and escheating of Moveables for the third and though severals have been found guilty of Forstalling as particularly upon the 9. of June 1596. and the 6. of August that year yet I find no punishment follow'd The Chamberlain of old was the only Judge in his Chamberland-air cap. 35 Stat. Will. Reg. But now the Justices are only competent Judges to this Crime they were call'd Dardanarii by the Civil Law and were punish'd poenâ extraordinariâ l. 6. ff de extraor crim THis Act is innovated and enlarg'd by the Act i6 Sess. 3 Ch. 2 Par. 1. ALL Officers within Burgh are discharg'd to purchase Lordships out of Burgh least they give dreadure to their Neighbours by which they are as I conceive discharg'd to be Lords of Session or Lord Barons or at least they lose their Offices how soon they attain to these Each Burgh does to this day compt in Exchequer for their Feu-dewty yearly conform to this and other Acts. It was thought that a pursuit against the Magistrats of Edinburgh for compting for their Common good upon this Act was not competent at the Instance of a privat Burgess or of any save the Lord Thesaurer of the Kingdom who comes in place of the Chamberlain Air though it was said to be actio popularis and a species of suspectae tutelae but this would have given too great occasion to Faction and would have discourag'd Magistracy too much nor are such popular actions in matters of Government to be easily allow'd under Monarchy though they are necessary in privat Rights THough this Act appoint such as trouble Burrows in using their Liberties to be punish'd in Justice Courts as common oppressors yet this is in Desuetude except the oppression be very attrocious but the ordinary remedy is now either by actions of Molestation or declarator of Property before the Session or by actions of Ryot before the Privy Council COlonel Borthwick having gotten a Gift of this penal Statute pursu'd the Malt-men criminally thereupon which Pursuit was discharg'd by the Council 1672. upon a Bill and these Statutes found to be in Desuetude and impracticable in this age wherein Malt cannot be sold for two shilling more than the price of the Boll of Bear as this Act appoints BY our Law all single Escheats fall to the King for bona mobilia sunt allodialia and hold not of the ordinary Superior who has no Right jure proprio to the Escheats of such as dwell within his Territory and thus Lords of Regality have only right to such Escheats by their Erection from the King But the Liferent-escheats which fall either for civil or criminal Causes belong to immediat Superiors respective so that if a Vassal who is at the Horn have Lands holden of many Superiors each Superior will have right to the Land which holds of himself for Feus being given for service and the Vassal being nullus in jure by his Rebellion the Feu returns to the Superior except in the case of Treason in which it falls to the King Observe from this Act that the Lords of Articles are Judges to Processes in the first instance but the Debate must be resum'd to the Parliament BY this Act Justice-airs and Courts are peremptor at the second Diet but by the Act 79 Par. 11 Ja. 6. they are peremptor at the first Diet and parties not appearing now are unlaw'd if pursuers and are declar'd Fugitive if Defenders at the first Diet. Vid. observ on Act 39 Par. 5 Ja. 3. supra This Act relates to another Act of Parliament dated the 10. of July 1625. but there is no Parliament amongst our Printed Laws of that date THough by this Act Depredations Reiffs and SpuilÈies are ordain'd to be first civily pursu'd yet the Justices use to sustain Criminal Pursuits for these causes in the first instance except a defence be propon'd upon matter of Right as if the Defender alleadg'd he had a Disposition or other Right and in these cases the Justices superceed to give answer to the Criminal Pursuit till the Civil Right and Title be first discust and this the Privy Council uses to do in
which is oft-times very useful and this publication is for these reasons allow'd by the Civil Law and in most Nations vid. Marant de processus publicatione and in England in all cases and is even with us allow'd in some cases yet as in Falshood CLerks to the Signet are now called Writers to the Signet but their Fees specified by the next Act are innovated by the Regulations at first there was but one Clerk of Session who was called the Clerk of Council as is clear by the 53. Act of this Parliament and he was chosen per vices out of the Writers to the Signet but all the Writers to the Signet or Clerks of the Signet were at first admitted to be present at the decision of Causes whereof this Act is a Vestige Thereafter there were two Clerks of the Session and at last three but lest their number should increase by an unprinted Act of Parliament it was declar'd that they could not be moe than three notwithstanding whereof in Anno 1661. The Register appointed six whereupon the King by his Letter in Anno 1676. reduced them again to three and now again there are six Clerks as before the year 1675. IT is appointed by this Act that deliverance upon Bills presented to the Session be only Written by a Writer to the Council that it to say a Clerk of Session and not by a Writer to the Signet BY the last words of this Act it appears that an Advocat may be â—â—mpelled to plead for any man except he can alledge that he 〈…〉 employed for the other Party or the like c. which is 〈…〉 the Civil Law l. 7. C. de postulando 〈…〉 present practice Advocats and all remove at the advising 〈◊〉 the Cause though in England and France Causes are openly advised which discourages very much all arbitrariness THat Advocats should propone all their Dilators together the second time is still ordered but never observed for where the Dilators are of importance or intricat the Lords will allow them to be proponed separatly BY this Act such as misrepresent the Lords or accuse them unjustly either by a formal Process or to the King are to be punish'd Arbitrarly by way of Action for they are here appointed to be called before the King but such as dishonour or lightlie them are to be punished by the Lords themselves and the Lords are in use to send such as contemn them or their orders to the Castle or Tolbooth or to ordain them to crave pardon upon their knees c. suitable to the offence The Lords are to this day free of Taxations conform to this Act but of late if there be no exception of them in the Acts imposing Taxations they are in use to get a Letter from the King declaring them free though this may seem needless because of 23. Act Par. 1. Ch. 1. and the 23. Act Par. 1. Ch. 2. Though the Precedency due to the Wives of Lords of the Session or Advocats be continued with them after their Husbands death which we derive from the Civil Law l faemina 8. ff de Senatoribus yet immunity from Taxes is not extended to their Wives Stockman Decis 65. King JAMES the fifth Parliament 6. THough regularly Crimes die with the Committers and cannot be punish'd after their death yet by this Act it is ordain'd that Treason may be pursu'd after the committers death which holds only in Treason committed against the Kings person and Common-wealth that is to say in perduellion where there is a design against the Kingdom such as raising War bringing in Forreiners c. but holds not in simple Treason or laese Majestie such as are the keeping out of a Castle or in offering to detain the King's Person Prisoner upon any private account for the words against the King's Person or Common-weal are copulative neither does this Act hold in Statutory Treason which are meerly Treasons by vertue of a Statute such as Stealing in Landed men or Murder under trust c. In all cases where Treason is to be pursued after the death of the Committer it is necessary to call the appearand Heir because his right as appear and Heir is to be forefaulted by the sentence but though it is ordinarly believ'd that the bones of the Committer must be raised and brought to the Bar yet this is not necessary Nota That the Common or Civil Law is a sufficient warrand to sustain Actions in this Kingdom because of its great equity except where the same is over-ruled by a contrary Law or Custom The Civil Law to which this Act relates is l. ult ff ad l. Jul. maj Extinguitur crimen mortalitate nisi sorte quis Majestatis reus suerit It has been much doubted amongst Lawyers how far the Delict or Crime of the Predecessor should infer Action against their Heirs which may be resolv'd in these conclusions 1. That all corporal punishment expires with the Committer nam noxa caput sequitur instit lib. 4. tit de nox Act. 8. per tot § 5. 2. As to any Civil conclusion quoad interesse pecuniarium the Civil Law did only sustain restitution against the Heir in two cases viz. If either Litis-contestation had past in the Defuncts own time or if the Heir had got advantage by the Crime or Delict of his Predecessor as if for instance the stollen Goods or the Money conceal'd by his Predecessor had remain'd with him § Non autem omnes 1. Instit. de perpet temporal Action 3. By the Canon Law the Heir was lyable to refound the damnage done by the Predecessor though there was neither Litis contestation past in his time nor did any advantage remain with his Heir cap ult ext de sepult cap. in literis ext de rapt And though the opinion of the Canonists seem to the Lawyers of this age more equitable they thinking Litis-contestation but a subtilty yet I conceive that there was very much reason for the Civil Law to require Litis-contestation since if the Defunct himself had been pursu'd he might have alleadg'd many things which might have defended him that were unknown to the Heir as for instance he might have alleadg'd that the Sheep alledg'd to be stollen were intrometted with by the Owners warrand and might have cited Witnesses who were present which the Heir could not know and yet our practice follows the Canon Law as more conscionable I find that in the 5. Council at Constantinople it was after debate found that Origin and Theodorus might be Anathematiz'd after their death though Vigilius then Pope of Rome maintain'd neminem post mortem condemnandum and this occasion'd a great Schism There is interpos'd betwixt this and the next Act a distinct Act in the Black Impression whereby the King and Parliament ordain several Acts past in the last Parliament to be now pronounc'd and authoriz'd by his Grace and the three Estates which has been left out because the way
habetur pro completo does yet hold good in other Beneficiary cases for though it be altered by Act of Parliament quoad Annats yet where there is no Act of Parliament why should not the old Rule hold But I rather think that the Act extends to all Benefic'd Persons albeit the Rubrick mentions only Bishops and Ministers and so there are two Errors in the Rubrick of the said 13 Act one in that it mentions only Bishops and Ministers another in that it mentions only their Executors and not their Relict or nearest of Kin and the Rubrick should have born Act Regulating the Ann of Benefic'd Persons which shews also how weak the argument is a rubro ad nigrum The ancient Bishops allow'd sometimes the uplifting of the first years Rents of Benefices for assisting Christian Princes against Infidels but the Popes thereafter reserv'd them to the use of the Roman See upon pretext to supply the general necessities of the Church Pope John 22. extravag suscepti de elect was in this follow'd by Boniface the 9. who stated them in an ordinary Revenue till the Council of Basil oppos'd the same and still many Learn'd Doctors of the Romish Church it self condemn'd them as Simoniacal whereupon the French Kings did by Concordats force the Pope to pass from the same in France They were call'd Annats Anns or Annals because they were fructus primi anni and it seems with us they were not at the Popes disposal absolutely else this Act of Parliament could not have dispos'd upon them But it seems our Kings have in Parliament assum'd to themselves what others settled by Concordats with the Popes as may appear in all the Regalia throughout the whole old Acts of Parliament The whole Doctrine of Annats is excellently Treated by Antonius Nassa de materia annatarum But I conceive our Ann which is a half Years Stipend comes from the Saxon reform'd Church wherein ultra Salarium quod defunctus Aecclesiae minister promeruit ex singulari beneficio viduae ac liberis dimidius gratiae annus assignetur Carpzov Jurisp. Consistor lib. 1. tit 12. It was introduc'd there in anno 1580. a little before King James introduc'd it here by the Letter to the General-Assembly in Montrose BY this Act such as did dy in that Army were to have their Ward Non-entress Relief and Marriage freely from the Queen It is observable that though usually such Acts are made when our Armies are in procinctu going to Battel and though the King nor his Exchequer seek no advantage by Casualties in such Cases yet regularly it is no Defence in Law against a Ward or Marriage that he by whose Death they were sought were killed in the Kings Service THough where there is a Governour the style of Acts of Parliament made by him is The Governour with the advice of the three Estates Yet this Act says by the consent of the Governour and the consent of the Noblemen both Spiritual and Temporal By which words also it is clear that the Lords of the Clergy are to be accounted as Noblemen and so are to find Caution under the same pains as Noblemen and to pay publick Burdens as Noblemen c. Queen MARY Parliament 4. BY this Act these who are Excommunicated and continues so for a Year for any cause lose their Moveables Creditors being first paid and by the 3 Act 20 Par. Ja. 6. They are to lose their Liferent-Escheats if they be Excommunicated for Religion Vid. supra observ on 9 Act 4 Par. Ja. 5. VId. My Criminal Tract tit Treason THis Act inflicting the pain of Death and Confiscation of Moveables upon such as shoot at Deer Wild-fowl or Wild-beasts is deservedly in Desuetude Vid. infra observ on Act 51 Par. 6 Q. Mary THis Act and the Instructions subsequent to it were but Temporary Remedies for repairing Lands burnt at that time by the English Invasion But though only Parliaments can regularly invert Property yet the Privy Council do force Heretors to sell burnt Tenements if they will not repair them themselves to the end other Heretors and the publick advantage of the Burgh may not be prejudg'd and this the Council did in anno 1675. when all the Houses near the Parliament Closs were burnt and this is conform to a power granted by the 6 Act 3 Sess. Par. 1 Ch. 2. by which it is appointed that the Provost and Baillies may Charge all persons who have the property of such ruinous Lands to repair them within Year and Day and if they refuse the Magistrats may value and sell Vid. observations on the 226 Act Par. 14. Ja. 6. Queen MARY Parl. 5. THis Act as to the prices of Wine is in Desuetude but not in so far as concerns the mixing of Wines which by the opinion of the Civilians is a species of Falshood and is punishable as such Carpz de falso THis Act against abominable Oaths is enlarg'd Act 103. Par. 7. Ja. 6. Vide my Crim. observ Tit. Blasphemy § 6. THis Act against perturbers of the Kirk is enlarg'd Act 27. Par. 11. Ja. 6. For that Act reaches all tumults in Kirk-yards and the punishment in that Act extends to confiscation of all the offenders Moveables It is observable from this Act that Children are only to be scourged for such Crimes minority lessening the punishment and all within 14 years are accounted Children VId. Crim. obs Tit. Bigamie VId. Crim. obs Tit. Adultery VId. Crim. Tit. Falshood NOtars are still according to this Act examined and admitted by the Lords but are not presented by the Sheriffs for now they are presented by the Clerk to the Notars who gives in a Bill for them to the Lords By this Act the Instruments of such as exerce the Office of Notar not being lawfully admitted are null but yet if the pretended Notar was habite and repute a Notar his Instruments will be sustained Such as usurp the Office of Notars are punishable by this Act as Falsaries or Forgers yet I never observ'd that for this Crime death was inflicted upon them Nota It is observable from this and many other Acts that the Acts are call'd the Kings Laws and not Laws made by the Parliament and the Act related to made by King James the 5. but not condescended upon here is the 81 Act Par. 6. Ja. 5. IT is observable from this Act that the Secret Council used by their own Authority to make Sumptuary Laws both as to Meat and Cloathing and by the Act of Council here related to the contemners of the said Act of Council are to be punished in their persons and goods at the Lord Governours will and yet one of the accusations against the Earl of Middleton was that the Lord Lorn being found guilty of Treason the time of the Execution was referr'd to him as being then the King's Commissioner which it became no Subject to accept PRinting is Inter Regalia and so the
immediatly after Sermon yet they sustain'd the Warning the Execution bearing that it was lawfully used and the user mending his Execution at the Bar 25 of January inter eosdem Though the reasons of Advocation here exprest seem to hold only in actions of removing because they are annex'd to this Act yet they hold generally in all Advocations vid. my Crim. observ Tit. Advocations and though the priviledge granted to Advocats here of being only pursuable before the Lords may only seem competent in removings yet it is extended to all cases and now they may Advocat any Action intented against them before inferior Courts I find that the Advocats of Vtright have the same priviledge Rub. de Advocatis Art 13. vide Voet. de statutis Sect. 7. cap. 3. num 16. where likewse he determines that this priviledge of exemption extends not to Criminal cases but that in these they may be pursu'd before inferiour Judges for these are not properly comprehended under the word Actions nor are Statutes to be extended de casu in casum THis Act is Explain'd in the observations upon the 32 Act Par. 2 Ja. 1. supra and 11 Act Par. 1 Sess. 3 Ch. 2. VId. crim obser tit Pursuers OF old when any Right was quarrell'd as null the nullity was sustain'd by way of Exception or Reply and a day was allow'd to the Defender to call his warrand that is to say the person who was his author and who was bound in warrandice but now few Nullities are regulariter received by exception but by way of Reduction to the end the Authors may be call'd who may defend him and ordinarly the Defender intimats at the Bar the pursuit to his Authors Advocats to the end they may defend him and if they do not they are lyable in an action of Eviction for damnage and interest but the old form of calling Warrands is in Desuetude THough Bonds of Man-rent are hereby discharg'd yet former Heretable Bonds are excepted VId. crim observ tit Falshood num 8 IT is observable that there needed a particular Act of Parliament for cutting down the Wood of Falkland because as I think the Queen was then a Minor and it was to be cut down by the Regent and the Regent being but a Tutor it has been thought he needed a Decreet or Act of Parliament for his warrand even as the Tutor of a private party cannot alienat his Pupils Lands without a Decreet of the Lords of the Session and it may be argu'd from this Act that though a Wood be old yet it cannot be cut down by a Tutor without the warrand of a Judge for this Act bears that this Wood was old and ready to perish It may be likewise doubted whether since the Kings Parks are a part of the annext Property the King or any having Right from him may cut down the Wood without an express Act of Dissolution or other warrand from the Parliament since the King is only but a Liferenter of the annex'd Property and a Liferenter can only cut down what is necessary for his own use But since Woods would perish if they were not cut I think there needs no previous Dissolution THough by this Act Deacons are Discharg'd as tending to Sedition and Visitors appointed to be chosen in their place yet the very next year the same Queen Mary allows Deacons to be chosen by a special grant to the Crafts-men of Edinburgh because as that grant bears expresly the Act was never in observance and since the making of it it was found by experience that Deacons were necessary in Towns from which it may be argu'd that when a Law is found absolutely inconvenient the King may dispense with it till the next Parliament especially where the Law had never been observ'd But I think the speciality of that grant lys in this that this being an Act of Parliament relating to Government and made for the security of the Crown the Monarch may use it or dispense with it as he pleases as every person may dispense with what is introduced in his own favours though to this it may be answer'd that what is introduced for the good of the Common-well as the Act bears this was cannot be dispensed with without the consent of the three Estates To which it may be Reply'd that matters of Government doe not concern them directly but by consequence Government being the interest of the King as Property is of the Subject THis Act is inlarg'd by the Act 156 Par. 12 Ja. 6. by which the Lords of Session are ordain'd to grant Letters summarly on six days against such as stop High-ways THis Act is Explain'd in the Act 13 Par. 2 Ja. 4. THough by the 5 Act 2 Par. Sess. 3 Ch. 2 The Burghs of Regality or Barony are allow'd to bring home Timber Iron c. as the return of the native Commodities of the Kingdom yet it was controverted if they might bring home Salt and it was found that they could not bring home Wine nor Salt nor Brandy even as the return of their native Commodities so that none can Trade in these save the Burghs Royal. THe Acts here related to are the 60 Act 7 Par. Ja. 3. and 13 and 14 Acts Par. 4 Ja. 5. which declares the breaking of Dove-cots Parks and Ponds to be Theft and upon the 25 of July 1623. Raith and Dean are ordain'd to be hang'd for breaking of Yards stealing of Bees-skeps and Sybows and it was Theft by the Civil Law lege Pomponius 8. par Pomponius 1. ff Fam. erisc Vide Crim. observ tit Theft num 15. THis Act against the speaking evil of the Queens Grace or French-men was made when the French-men came over to assist the Queen against the English and though it be Temporary quoad the French yet it is still a standing Statute quoad our Monarchs and it is observable by it that the hearers of false Reports against the Queen and not reporting the same are punishable as the principal speakers but it may be doubted if Hearers are obliged to Dilate when they cannot prove THough this case in so far as concerns these Temporary Pleys have now no force yet that part of the Act appointing Women and others who make perturbation in the passage to Towns is still in observance and the punishment is by our practice arbitrary Queen MARY Parliament 7. BY this Act the Judge is allow'd to exact Caution from such as propone Improbation and this Act was found to extend as well to exceptions of Improbation as to actions of Improbation and though it appoints Caution only to be found yet the Lords ordain oftimes the Money to be Consign'd and fourty pound is the ordinary Sum and sometimes they sustain cautio juratoria where the party cannot find Caution but this cautio juratoria is never allow'd except where there are previous and strong presumptions of Falshood or else the Lieges might
be extreamly vex'd ordinarly the same day is appointed by the Judge for the proponer of the Falshood to consign and for the producer of the Writ to bide by the same like to these Consignations were the Sponsions mentioned in the Civil Law whereby Litigators sponsionem faciebant certae pecuniae quae ejus lucro cederet qui judicio vicisset l. paen ff de alcae toribus l. 17. § ult ff de praescript verb. Nota By this Act where Improbation is propon'd at the Kings instance the informer is to find Caution but if the Kings Advocat insist ad vindictam publicam I conceive he is oblig'd to find no Caution because he is never presum'd to pursue Calumniously WHen any thing is to be proven by Writ if the Writ be not produc'd this Act appoints that Protestation shall be given against the probation of that part of the exception but now the form is to call upon the Act and crave Circumduction of the Term which circumduction is here call'd Protestation but if the Writ be produc'd this Act appoints that the other party shall be heard against the same after Renunciation of probation and the form is that when any Writ is produc'd in modum probationis the other party protests to be heard against the same at the advising of the Cause and the producer puts up an Act renuncing further probation THis Act appoints the expences of Plea to be Tax'd and insert in Decreets which is conform to the Ch. 68 and 69. Quon Attach and though by the Civil Law expences of Plea ought not to exceed the principal sum pursu'd for Bart. in l. 8. Cod. de indiction Yet I have seen more expences allow'd than the sum pursu'd for extended to and it were very unjust that if a person of quality were pursu'd unjustly by a mean Rogue for a small matter that his expences should not be determined according to what he was really forc'd to expend for the necessity of expending is the only just rule in such cases Queen MARY Parliament 8. THis Act of Parliament doth enable French-men to bruik Lands and Estate in Scotland and Naturalizes them so as that they may enjoy all the priviledges here as any Scots-man may do but though quoad the point of Succession strangers have by many Nations been debarr'd and that by the Roman Law cum peregrinis Testamenti factio non erat l. 1. C. de hared instituend l. 1. § 2. ff de ◠yet Craig pag. 96. observes that strangers were not debarr'd from Succession in Scotland and I find it so decided 13 January 1575. in the case of one Richardson These priviledges granted by this Act are likewise confirmed to the Frenches by an Act of Sederunt the 11 of June 1595. From these first words in this Act appointing Letters of Naturality or Naturalization to be given to such of the French Subjects as shall happen to be in the Kingdom of Scotland It may be doubted that French-men cannot pretend to this right except they live here but this is expresly contrary to the French priviledges there granted to us It may be also urg'd that Dutch-men or others cannot pretend to it though they be Naturalized in France for to Naturalize them because they are Naturaliz'd in France were to allow the French King to Naturalize any he pleas'd in Scotland though enemies to us 2. Only French-men are Naturaliz'd which is to be interpreted only of such as are properly so 3. This were fictio fictionis which is reprobated by Law It seems also just that except this priviledge be continu'd to us in France French-men ought not to have it in Scotland Quaer If Merchants though not naturaliz'd will not have right to heretable Rights granted for security of their Money for without this there could be no Commerce THis Act contains the French priviledges to us communicated by the French whereby the Scots may succeed in France in the same way that the French-men themselves did and they are by this Act Naturaliz'd to that and all other effects and which was very necessary for us since by the Law of France the Fisk excludes the true Heirs of strangers except as to Goods brought in by them which priviledge is call'd by the French droict d' anbeine beside this right of Succession the Scots likewise are free to be preferr'd to all Ecclesiastical Dignities The Gentlemen are free from Taxes and the Scottish Ships free from Imposts albeit of late the French exact from us 50 Sols per Tun as from other Strangers As to which I drew this Memorial as Assessor to the Royal Burrows A Memorial concerning the Priviledges due to the Scots in France THe French Nation finding themselves oblig'd to have forraign Recruits for maintaining their Wars pitch'd upon Scotland as a Nation very sit to furnish them Levies and so old was their Alliance that a League offensive and defensive was enter'd into betwixt Charles the Great King of France and Achaius King of Scotland in Anno 787. at which time Charles the Great bestow'd upon the King of Scotland the Double Tressure garnish'd with Flower de Luces or as the French call it Fleurie Contre fleury born by them at this day as all the French Historians and Heraulds do acknowledge After this the French being ingaged in constant Wars with the English they imploy'd the Scots on all occasions in which their great succours and services are set down by Favin a learned French Author in his Theatre of Honour and to ingage that Nation the more as well as to reward their services the guarding of the King's Person was bestowed upon them by Charles the 5 th and they were holden as Naturalized French-men and were exempted from payment of all Customs and though many of these Contracts and Leagues be lost yet these following Papers are still extant A Treaty containing these priviledges betwixt Alexander the 2d and Lewis of France called St. Lewis Another betwixt King Robert le Bruce and King John An Act of Parliament 1558. relative to the like Act in France wherein Q. Mary who was then Married to Francis Dolphine of France doth with the consent of Parliament Naturalize all the French in Scotland and enable them to succeed to Estates moveable and immoveable here and free them from all Taxes payable by strangers In which Act of Parliament the Copy of the priviledges granted by the French to the Scots is verbatim ingrossed Item A Patent by Francis King of France dated May 1510. exeeming the Scots Nation from paying Custome in Normandie Item An Act of Exchequer approving thereof dated the said year Item An Act of the Thesaurers in France consenting to the same Item Letters Patent from the said King to his Great Council for expeding the former Patent dated the said year Item Act of the Great Council consenting thereto Item An Act of the Cour des aides at Paris approving the said Patent Item Charter by King Henry the
shall examine all this very fully in my Treatise of Tithes If the Bishop refuse to admit one presented by the Patron then recourse must be to the Arch-bishop and if he likewise give not redress then the Council will give Letters of Horning to Charge the Ordinary to receive the person presented and by that Act the Bishop may refuse to admit a person who hath not reserv'd to himself a sufficient Maintenance in setting Back-tacks of his personage to the Patron which paction is accounted Simoniacal and the Lords of Session declar'd only Judges competent thereto though by the Ch. 2 lib. 1. R. M. patronages are declar'd to belong to the Ecclesiastick Jurisdiction and the said paction is probable by the parties Oath albeit regulariter nemo tenetur jurare in suam turâ—itudinem by the 1 Act Par. 21 Ja. 6. It is appointed that the Bishop shall not refuse to admit any qualifi'd Minister who hath been once admitted and receiv'd a Minister by which it is clear that the Bishop is not oblig'd to receive an Expectant who is â—ot an actual Minister and the reason is because non constat if he be yet qualified and the Bishop cannot be obliged to Enter him and consequently is not oblig'd to accept his Presentation By the Canon Law four Moneths were allow'd only to a Laick Patron and fix to an Ecclesiastick this was our Law before this Act as is clear by the 2 cap. R. Mai. lib. 1. and there was good reason it should have been so for the constitution concerning it c. 2. Ext. de suplend negl prael is written Episcopâ— St. Andreae in Scotiâ and this is cited as our Law by Le Roy de jure patron c. 28. and in case of the Patrons negligence a gradation was allow'd from Inferiors to Superiors till it ended in the Pope By that Law likewise a Laick Patron might vary in his presentation but an Ecclesiastick person could not and if an Ecclesiastick Patron presented a person that was unworthy he lost the right of his Presentation pro ea vice but a Laick patron did not and by our Law if the Patron present one that is unfit he may present another and a third providing all his presentations end within six Moneths for the presenting one within six Moneths interrupts not so as that he may thereafter present another within other six Moneths as some think except his not admitting be occasioned by the Bishop who cannot seek a jus devolutum by his own fault by the 7 Act Par. 1 Ja. 6. the gradations then allow'd were from the Ordinary to the Super-intendant and Provincial-assembly and from them to the General-assembly Where there are more Patrons they have right to present per vices and he who hath been in possession of presenting trina vice that is to say the three last times successivly without interruption hath the only right of presentation in possessorio in a Competition with the other Patrons pro ea vice without prejudice to the rest to declare their Right for the future as accords and by some it is alleadged that Presentations trina vice ex decessu incumbentis excludes all other Rights etiam in petitorio but this is not our Law Doctor Forbes in his Treaty of Simony exclaims extreamly against this Act of Parliament for allowing the Incumbent to set Tacks reserving to himself a sufficient Maintainance and he urges violently that this Act allows rather Simony than accuses it IT may be argu'd that this Act debars not such of the Royal Line as have right to succeed to the Crown for this relates only to a Coronation and the Coronation it self is not necessary Coronatio enim magis est ad ostentationem quam ad necessitatem nec ideo Rex est quia Coronatur sed Coronatur quia Rex est Oldrad Consil. 90. num 7. Balbus lib. de Coronat pag. 40. Nor do we read that any Kings were Crowned except Joash in Scripture and Clovis King of France was the first that was Crowned nor are any Kings of Spain Crowned to this day neither is a Coronation Oath requisite Sisenandus being the first who in the 4 Tolletan Council gave such an Oath amongst the Christians as Trajan was the first among the Heathen Emperors Gregory was the first of our Kings who anno 879. gave the first Coronation Oath having embraced the Christian Faith in which he was very zealous swore to preserve it but this Oath was not made to the people for they were not present but to GOD nor could he as Blackwood observes Apol. pro Regib c. 26. bind his Successors quia par in parem non habet Imperium nor could he bind himself for them to the people quia Cliens jurat Domino non Dominus Clienti tit de formâ fidelitatis lib. 2. Feud Likeas it may be said that this Act being made in the King's Minority and being prejudicial to the right of Blood in his Successors it falls under his Revocation made Par. 11. cap. 31. whereby he expresly revocks every thing which might hurt the priviledge of the Crown which this Act 8 would do if Kings were thereby debarr'd from Succession for differing in Religion from their Subjects This is contrary to the Confession of Faith which tyes us to obedience to our King though an Heretick and since private Subjects are not debarr'd upon this account from their property the King ought not to be debarr'd from the exercise of his Government which is his Property and that Kings cannot be debarr'd by a Statute is clear by all the Doctors in Can. qui jura distinct 8 Aecurs in l. Princeps ff de Legibus l. 4. de natal restit l Jura Sanguinis ff de Reg. Jur. sed naturalia instit de Jure Naturali forma Juramenti quod praestant Reges in Coronatione per Gloss. 1. in cap. fin de Eccles. aedif est quod jurat se Regni sui jura illibata conservaturum vid. Ant Corset de potest Reg. pars 3. num 62. Some are also of opinion but injustly that Coronation is to a King the same thing that Investiture is to a Subject and therefore as Heirs may continue the possession of their Predecessors before the Infeftment but cannot sell excamb or do any other deads of property till he be Infeft so though a King before he be Crowned may do these things that are necessary for present administration yet he cannot hold Parliaments dispone upon annexed Property and do any other deeds which require the exercise of the Royal Power till he be actually Crowned And whereas this Act ordains that all future Kings shall take this Oath at their Coronation and the recept of their Princely Power which implyes that they should take this Oath before they can administrat It seems that this implyes a contradiction for they must administrat in appointing the Coronation and ordering all things thereto relating and our King did govern long ere he was Crowned but these words are
bound to pay the Debt in the Horning by his Gift THough this Act requires that Seasins within Burgh should be subscrived by the Clerk and given by the Bailie of the Burgh yet the Lords sustain'd a Seasine of Lands within Burgh given by the Sheriff and Sheriff-Clerk where there were no Magistrats or Town Clerk in Office at the time that the Seasine was given 21 July 1666. Thomson contra Mackitrick This is one of the instances that necessitas non habet legem vid. 11 Act 3 Par. Ch. 2. THis Act was but temporary and so is useless now THis Act is Ratified by the 15 Act 2 Par. Ch. 2. and the reason why Maltmen are discharg'd to have a Deacon is because at their meetings they might easily conspire to set a price upon the Victual and upon the Ale and Beer at their pleasure and force the Gentlemen to sell at any rates IT may seem strange that this Act made by Q. Mary should be insert here but that Parliament holden upon the 19 day of April 1567. is not at all Printed and therefore it has been thought fit to insert this Act in favours of the reform'd Religion amongst her Sons Acts and to let it continue in her name because it might clear that her Majesty had consented thereto in her own Reign This Act bears an acknowledgment of the Queens deriving her Authority Royal from God which has been insert by our Reformers to show their abhorrency of their opinion who think that our Monarchs derive their power from the people THere is no such Parliament as that here mention'd to be held upon the 29 of December 1567. and therefore the 33 Act is here renew'd but it was needless to have made a special Act for allowing this to be Printed for both these Acts 32 and 33 might and should have been one vid. obs on this Act in my Crim. Tit. Treason King JAMES the sixth Parliament 2. BY this Act it is clear that Commissions for Regents of the Kingdom were then subscrived whereas they are now superscrived and were then past under the Privy Seal as all Factories Assignations or other private Rights granted by the King are as yet but now all such publick Trusts are past under the Great Seal Nota What was then a Regent is now a Commissioner which word is but late and the Regent was then called Protector The first Commissioner mention'd in our Laws is the Earl of Montrose for the Parliament 1604. but that Inscription speaks nothing of a Commission under the Great Seal as all subsequent Inscriptions do from the year 1607. and downwards Many Acts in this and the ensuing Parliament bear With advice of the Regent three Estates and hail Body of the Parliament which words the hail Parliament seems superfluous for the King and the three Estates are the hail Parliament But this was probably inserted either to show the unanimity of the Parliament or to include the Officers of State because they are not comprehended under any of the three Estates and this may be adduc'd to redargue their opinion who think that the Officers of State did not sit in Parliament till the Parliament 1633. nor do they yet sit as such in the Parliament of England For I find them marked in the Sederunts very anciently but differently for though now they are called and are also marked down in the Sederunts after the Lord Barons and are therefore called Lords yet sometimes the Sederunt adds after the Burghs Together with the Officers of State and the Sederunt of the Par. 15 bear That the Kings Majesty and Officers of State declare the Parliament to run and ordain the Articles to meet IT is fit to know that all Alienations and Dispositions made by persons who were thereafter forfeited for Crimes of Treason are null if they be made post commissum crimen though they be made before Sentence or Declarator and that though it may be pretended that in some latent Crimes of Treason such as where Treason is inferr'd for concealing and not revealing Treason the Subjects could not know the Committers guilt and so might bargain with them or take rights from them but yet such Heretable Rights are declar'd null because the King having Feued out his Lands he is not obliged to acknowledge any singular Successors except their Rights were confirm'd sibi imputent who did not confirm This Act is ratified by the 65 Act 5 Par. Ja. 6. and all former practiques contrary thereto are rescinded which clause in that Ratification was necessary because as Sinclair observes in his old Practiques there had been several Decisions past in favours of the Earl of Mortouns Creditors sustaining Rights made by the Earl of Mortoun who was after 20 years latent guilt convict for concealing the design of murthering the Earl of Lennox Queen Maries Husband As these Acts strike against Heretable Rights made by forfeited persons so by the 202 Act 14 Par. Ja. 6. all Bonds Obligations Factories Pensions and Assignations granted by forfeited persons are declared null except these Rights be confirmed by the King or authorized by a Decreet of the Judge before the citing of the persons forfeited from which Act it may be inferr'd Arg. legis that such Rights granted post commissum crimen but before citation are valid though not confirmed by a Decreet if they were granted for true debts prior to the committing of the Crime since this Act runs only against fraudulent Dispositions as also for the same reason it may be urg'd that where such personal Rights are granted meerly to defraud the Fisk they would be null though confirmed as said is for else a man being to commit the Crime of Treason might purposely dispone his Moveables to prejudge the Fisk. Nota That such Moveable Rights Confirmed as said is will only be a ground for diligence against the forefaulted persons Moveables even as if the saids Moveables had fallen to the King by single Escheat but they will not be a ground of diligence against a forefaulted persons real Estate Nota That as Gifts of forefaulted Lands can only be past under the great Seal so the forefaulted persons Moveables should be regularly Gifted under the Privy Seal being as to the King the same way of Transmission that an Assignation is to a privat party but in the Earl of Argil's case it was found that the Moveables of the forefaulted person might be likewise transmitted under the Great Seals THough by this Act the Superiors forefaulture does not prejudge the Vassals who are innocent yet this Act is expresly abrogated by the 201 Act 14 Par. Ja. 6. and by our Law the Vassals Rights are null except they be Confirmed or unless he has originally consented to them or unless the Feus be set in the Terms of the Act 71 Par. 14 Ja. 2. From this Act it may be urg'd that since by a special Law Vassals of persons forefaulted in this Parliament are
were not null though not Confirm'd and January 20. 1666. Rentoun contra Feuers of Coldinghame The Lords found that Gifts of an Office of Forrestry granted by Kirkmen needed not be Confirmed these not being properly Feus of Kirk-lands ibid. THis Act Appoints that all Money and Victual assign'd to the Captains of the Kings Castles and whereof they have been in possession for five years shall remain with them unquestionably and this is like the Quinquennial Possession given to the King in cases of Forefalture Nota That the King has a Duty paid to him in Exchequer called The Castle Wards so call'd because they are paid in forwarding or keeping His Castles and he has no Right to them but constant payment conform to the Exchequer Rolls and therefore yearly the Sheriffs are charg'd with them and they get Letters of Relief and it was found in a case betwixt the Sheriff of Haddingtoun and Sir John Nisbet January 11. 1678. That the said Sir John had not prescriv'd an exemption as to these Castle Wards neither against the King nor Sheriff though he had paid none for fourty years since there were Letters of Relief yearly granted 2 o. It was alleadg'd that his Lands of Dirletoun having come once in the Kings hands by Forefalture and His Majesty having of new given them out that Servitude was thereby extinguish'd since res sua nemini servit but was repell'd because the King did of new only Dispone the said Lands as when they fall in his hands by the Forefalture King IAMES sixth Parliament 10. MR. Nicol Dalgleish and some other Presbyterian Ministers having reproached the King and His Government this Act declaring slanderous Speeches and Writs punishable by Death as Sedition was made and is more fully explain'd in the Act 134 Par. 8 Ja. 6. and in my crim pract tit Injuries Observ. 1 o. Sedition is a Name that receives different punishments according to its different Degrees of guilt and therefore where it is destructive of the Kings Authority immediatly and designedly it is punishable by Death as here though l. 3. C. de seditiosis the punishment of these qui ejusmodi voces emiserunt is more moderat and as that Law well observes words spoke in civitatibus tumultuosis clamoribus are more punishable than the same expressions would be if spoken in private places or without tumult but yet by this Act such seditious Speeches whether spoken privately or publickly are punishable by Death Observ. 2 o That when His Majesties Advocat designs not to pursue the Authors of such Speeches to the Death he Libels only that the Pannel did speak or write what tends to Reproach or Slander His Majesties Person or to misconstruct his Proceedings but not that they actually did so and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same Observ. 3 o. That though by this Act the Depraving His Majesties Laws and Acts of Parliament is declared punishable by Death as Sedition yet all misconstructing Acts of Parliament is not so punishable and thus though a Sheriff or other Judge would misinterpret a Law so as to make it infer a higher mulct or penalty than the Law design'd that could not infer Sedition or Death though it be likewise punishable but the design of this Act is to declare the depraving and misconstructing of Laws so as thereby to reproach the King or Government to be Sedition and Spotswood tells us pag. 243. That this Act was made for punishing these Ministers who had declaim'd against the Acts of the former immediat Parliament as destructive to their Discipline Upon this Act the Lord Balmerino was found guilty in December 1634. for having dispersed a Petition that reflected upon the Government in which Process it being fully Debated that dolus malus should be found in such cases where the design of defaming makes only the Crime this was repelled because where the words may of their own nature move dislike of and Sedition against the Government the design needs not be proved for if the people be irritate the Author ought to be punished and this Law considers the effect and not the design and he ought to blame himself who meddles in matters of Government without his Sphere It was likewise alledged in this Process that a Petition to the King Himself could not be interpret a misconstructing but this was also repell'd because both by the Common Law and ours it has been found that great affronts have been put upon the Government by way of Supplication Upon this Act also Francis Tennent was found guilty in anno 1680. and Mr. Thomas Ross in anno 1618. and the Earl of Argile both in the Year 1662. and 1681. Observ. 4 o. That in this Act mention is made of raising dislike betwixt His Highness His Nobility and loving Subjects which word Nobility was expresly put in by the Lord Hamilton and other Noblemen who then turned out Captain James Steuart against whom this Act was partly designed whereas in the Act 134 Par. 8 Ja. 6. made the year before by the said Captain James's influence against slanderers there is no mention made of the Nobility as is observed by Mr. Robert Macgil in Balmerino's Process THis Act discharging all Dilapidations of Benefices runs only in the words of the Act against such as dilapidat Benefices that are at His Majesties presentation but yet de praxi no Benefices that are even at the presentation of Laick Patrons or Ecclesiastick Subjects can be dilapidated Dilapidations of Benefices were formerly discharg'd by the 101 Act Par. 7 Ja. 6. but to elude that Act Benefic'd persons us'd not to give down any of the Bolls payable to the Benefice but to convert these Bolls in Money and to make these who were lyable in payment only lyable in very small prices and therefore such Conversions are discharg'd by this Act But it may be alleadg'd that where the Conversion is for less than the present price as Victual now gives it is unlawful since that Conversion was unnecessary and the Benefic'd person is prejudg'd because if no such Conversion had been made he had got the Bolls presently which could have maintained him better than the small prices which these Bolls were worth the time of the Conversion and yet by our Decisions the price that the Bolls gave the time of the Conversion are only considered because both parties took their hazard and the price mentioned in the Conversion is presum'd to be the full price except it could be proven that the Victual gave then greater prices for in antiquis there can be no other probation Vid. observ upon the said 101 Act 7 Par. Ja. 6. BY this Act all Leagues and Bonds made amongst His Majesties Subjects without his consent are discharg'd Observ. 1 o. That though the Rubrick bears that all such Bonds and Leagues are null yet they are not expresly annulled in the body of this Act but they
are expresly annull'd by the 4 Act Sess. 1 Par. 1 Ch. 2. Observ. 2so That the punishment is not here exprest but in general under the pain of being holden as movers of Sedition and punished with all rigour nor is it more special in the foresaid 4 Act Ch. 2. which I admire but yet I think that such Bonds and Leagues are punishable by Death from the Words all rigour which may be very well extended to Death especially in subjecto capaci as Sedition is for certainly some Seditions may be punish'd with Death as we see in the first Act of this Parliament and by this same Act such Leagues are declar'd to be against all Law and Allegiance Likeas by the 7 Act Par. 1 Ch. 2. The Subjects are discharg'd to take or renew the Covenant which is a Bond or League upon their highest peril and I wish the Act had determined what was the highest peril for generally Lawyers do not extend such Statutes to Death I find that the Nobility and others having enter'd into Bonds amongst themselves whereupon His Majesty was surpriz'd at Ruthven there are several Acts of Council and particularly a Proclamation issu'd out in April 1582. discharging all such Bonds so enter'd into and that none enter into such Bonds for the future and that gave occasion to this Act which says that these Bonds have given occasion to a great part of the Troubles that have occurr'd since The Certification in that Proclamation is under the pain of being repute favourers and partakers with the Conspirators against His Highness Majesty The Act here related to is the 43 Act 6 Par. Queen Mary but that Act properly extends only to Bonds of Man-rent but not to Bonds of Combination as this does so that this Act should rather have been founded on the 30 Act 2 Par. Ja. 1. There is in that Proclamation and this Act exception made of Bonds enter'd into with the Kings consent which was added because the Nobility and Estates at the Kings desire entered in a League and Bond for preservation of Religion which is Registrat in the Council Book June 8 1585. But this Bond is subscribed by very few of every Estate BY this Act Charges super inquirendis are discharged but it is a mistake to think that by that Act the King or other Judges cannot examine men without a formal Process for the design of that Act is only to discharge the denuncing men Rebels upon such Charges without previous tryal and yet if the Chief Officers of State or at least four of them concur it would seem that by that Act even such Charges are yet lawful and where the King or Magistrat has previous informations of Crimes latent it were against the interest of the Common-wealth that they should not be allowed to clear these by particular Interrogators It was urg'd from this part of the Act that no man could legally be Imprisoned even by a warrand under the Kings own hand and that this was very just in it self since as Liberty is very precious and the best part of Property it was sit to secure it so as that none could take it away but these who will be answerable and the King could not in Law be made answerable and therefore it was justly by this Act appointed that no man could be imprisoned by any Letter even under the Kings own hand except it were subscrived by the Officers of State who should be answerable to which it was answered by His Majesties Advocat that this Act did not debar the King from granting such privat warrands under his own hand for there might be some cases which he could impart to none of his Officers of State as for instance if all his Officers were upon a plot against him or if the Crime were the being upon a Plot with a forraign State which the King were not yet in a condition to resent though he might justly apprehend his Subjects who were in accession to it but the design of this part of the Act was only to discharge the passing ordinary Letters in common course under the Signet except in this Method and it might be much rather retorted that since only Letters under the Signet are discharged to be past except in this method therefore privat warrands from the King himself are not discharged for if the King and Parliament had designed any such thing they would have expresly discharged all warrands under the Kings hand which is not done in this Act and it is clear by the 184 Act 13 Par. Ja. 6. That the King may give Warrands out of his own mouth to apprehend Rebels or others whom Magistrats are obliged to apprehend I find also that this Act was past formerly in the Privy Council the 23 of June this year 1585. and there the Act bears To have been made to prevent the obtaining of unformal Letters at the importunity and malice of privat persons which clearly evinces that it was not design'd to preclude the King from securing such persons who he had reason to believe were obnoxious to the Government It is observed in the Acts of Sederunt that the King 8 June 1581. by his Letter ordain'd several Advocats to be imprison'd indicta causa By the second part of this Act Writers to the Signet are ordain'd to keep the old Style unalter'd for Arguments brought from Style are a great part of our Fundamental Law and in all our Decisions Argumentum a Stylo is still very strong as from the wills of Inhibitions Interdictions from the Forms of the Chancery c. and yet in some cases this Argument is not concluding and thus Gifts of single Escheat bear all Moveables present and to come and yeâ— they give only right to what Moveables the Rebels have or shall possess within a year after rebellion and though by the Style of Gifts of Wards the relief is discharged yet that discharge will not be valid As also the Style of Inhibitions and Interdictions bears a prohibition to alienat either Heretage or Moveables and yet it extendeth only to Heretage Stilus Curiae is by Justinian call'd forma observantia whence comes our word Form of Process Stilus consuetudo fori vel judicii pro lege observari dâ—bet l. 1. § in honorar de var. extraord cog vid. Vâ—et de Stat. Sect. 3. c. 3. Observ. That though by this Act every Writer should write his name upon the back of the Signature which he writes which doubtless was introduced to the end that every Writer might be answerable for his errors in Style or otherwise yet if at the passing of the Signature in Exchequer the Writer subscribes his name the Signature will be sustain'd which was found necessary though it was alledg'd that this Act was in Desuetude as to this point for it was found not to be in Desuetude THis Act explains the 141 Act 8 Par. Ja. 6. and dispenses with a part of it and that is the Act to which this
quo casu either it must be said that albeit the Exchequer make him Tutor Dative yet he is not properly Tutor or Curator but only a Curator ad lites or else if he be once properly Tutor the next Agnat cannot thereafter serve himself nam Tutorem habenti Tutor non datur vid. observ on the 67 Act 8 Par. I. 3. IT is to be observ'd from this Act that Laws ought not to be extended ad praeterita but only ad futura and as the Act sayes most reasonably Subjects cannot observe what is not yet made and not only so but Argumento hujus Legis it may be concluded that Processes are to be decided according to the Laws that were made before the Process was intented though the Law be made before the Decision in the Process which is very observable a notable instance may be seen in Act 94. Par. 6. Ja. 6. where the Parliament makes an Act upon occasion of a Process depending before the Session to be a rule in like cases for the future but leaves the case depending to be decided as they think just Vid. Observ. on 10 Act P. 3 Ch. 2. IT is by this Act appointed that no Signatures or other Writs shall be prâ—sented to his Majesty but by his ordinary Officers to whose Office the same properly belongs And it appears by the Registers of Council that this Act was a part of the remedy of that complaint mentioned in the 13 Act of this Parliament Observ. 1. That by Officers here are mean't Officers of State for none else can present Signatures and though a General Major or a President be his Majesties Officers they cannot present Signatures and yet any Officer of State may present promiscuously any Signature though it would seem by these words By his Majesties ordinary Officers and to whose Office the same properly belongs that every Officer of State may not promiscuously offer but that the Thesaurer or Thesaurer-Depute can only present Papers relative to the Thesaury the Justice-Clerk to the Justice Court c. Observ. 2. That though any Officer of State may present Signatures yet by the 60 Act 1 Sess. 1 Par. Ch. 2. any Officer who presents such Papers is obliged to send the Registrat Docket to the Secretary to the end his Majesty be so informed as that he may not grant double Rights King James the sixth Parliament 11. BY this Act the King 's lawful Age is declared to be 21 years compleat which Act was made to prevent a debate that had fallen out in France a little before that time where the Parliament of Paris had declared that the French King was not Major till he had compleated the last year of his Minority whereas the Parliament of Rouen had declared him to be of lawful age when he had begun the last year of his Minority nam in favorabilibus annus inceptus habetur pro completo and though Minors may revocke deeds done at any time before the last moment of their Minority and that Minoritas computatur de momento in momentum yet it is advantagious for a King to enter upon the Government of his Kingdom as soon as can be And though this be the age for reducing of deeds done by them they have another Majority in relation to the Government for we find that Josias entered upon the Government at 8 years and Solomon at 11. Cicero Philip. 5. tells us that the Kings of Macedon entered very early and in Anno 1375. the Kings of France were declared to be Majors and capable of the Government at 14. but by the Commission of Regency set down in the Act 1. Par. 1. Ja. 6. The Regency is declared to continue till 17. at which time the King is to take upon him the Government but yet King James 6 took it upon him sooner nor do I find any particular time limiting the King as to this point and therefore there may be many doubts amongst us whether the King or the Governour should be obeyed betwixt the Kings ages of 14 and 21. but before 14 no Pupil is thought fit by Law for administration and it may be strongly urg'd that 17 is the Legal age for why was the Commissions insert it being only a temporary right and such use not to be insert amongst our Laws By our Law minority runs in all persons to the last moment of 21 years whereas by the Civil Law it runs till 25 years compleat and in this our King differs not from others but because by the 2 Act Par. 1 Ja. 2. Our Kings were declared to be in minority till 21 years therefore by the 87 Act Par. 10 Q. Mary 21 years of age compleat was declared to be the perfect age of our Queens and by this Act it is declar'd to be the perfect and lawful age of our Kings It were to be wished that for proving the age of all Minors there were authentick Registers appointed as in other Nations and in some parts of our own since for want of this true probation of their birth perisheth and false probation is adduced OBserv. 1. That by this Act the receipting persons of the Romish Religion is not simply made Criminal except they did reset them for three days together or at three several times knowing that they were such which may be urg'd in all cases of Intercommuning and resetting of Rebels and yet in other cases once and short Intercommuning is sufficient to infer a Crime Observ. 2. That by the 164 Act 13 Par. Ja. 6. The resetting excommunicat Papists or Traffecting Jesuits for three nights together or three nights at several times is made sufficient to infer that they knew they were such per presumptionem juris de jure nor could the knowledge of their being such be otherways proven and if it had been necessary to prove their knowledge the Law might have been easily eluded by industrious ignorance and by that Act likewise the third fault is declared punishable as â—reason and because the punishment was so great it was just the presumptions whereby it was to be infer'd should be strong THough by this Act only the Sellers and Dispersers of erroneous Books are to be punished at our Soveraign Lords will and such Books to be burnt yet by our practise the Bringers home of Crucifixes Popish-beads c. are to be used in the same way and though there is only warrand here given to a Minister and Magistrats of Burgh to seize and burn such Books yet Magistrats use frequently to seize without a Minister and Sheriffs and other Officers do likewise seize but since burning seems to be an extraordinary power and so not to be assum'd without a special Statute I think that no Officers save Magistrats of Burghs with the concourse of a Minister can burn· THe reason why Ministers Benefices under Prelacies are declared to be free of the first Fruits and fifth penny of their Benefices is because in time of Popery the first years
our Laicks with the consent of our Kings did think they could bestow the Teinds belonging to these Kirks whereof they were Patrons upon Religious Houses whereof I have seen very many Instances in our old Charters one whereof I shall set down for an Example Alexander Dei gratia Rex Scotorum c. Sciant tam posteri quam praesentes nos concessisse c. Deo Ecclesiae sanctae Mariae de Dryburgh Ecclesiam de Lanarch now Lanerk cum terris decimis omnibus rebus juste ad illam pertinentibus Item How the other Church-lands became first to belong to Monastries I shall God-willing clear in an express Treatise concerning Kirk-lands and Teinds THis Act is Explain'd in the former Revocations only here the Fees and Pensions granted to the Officers of the Crown are excepted from this Revocation and the Officers of the Crown are declar'd to be the Thesaurer Secretary the Collector which Office is since joyn'd to the Thesaurer the Justice that is to say the Justice-General Justice-Clerk Advocat Master of Requests Clerk of Register and the Director of the Chancellary the Director of the Rols is but his Deput The Order wherein they are set down makes the Advocat to preceed the Register and though the Justice Clerk be named before the Advocat yet that is only because in all this enumeration these of one Court are still set together and therefore the Justice Justice Clerk and their Deputs are still set together but it would appear that the Justice-General should by this preceed both the Register and Advocat But by Ch. 1. His Revocation which is the 9 Act of his first Parliament the Register and Advocat are rank'd before the Justice and Justice-Clerk posteriora derogant prioribus Nota The Privy-Seal and Thesaurer-Deput are not here marked though they be both Officers of the Crown The Precedency amongst the present Officers of State was by Act of Council February 20. 1623. thus determined Lord Chancellor Lord Thesaurer Lord Privy-Seal Lord Secretary Lord Register Lord Advocat Lord Justice-Clerk Lord Thesaurer-Deput by Act of Parliament 1661. the President of Session was then and not till then ordain'd to preceed the Register Advocat and Thesaurer-Deput and the Register and Advocat then were ordain'd to preceed the Thesaurer-Deput By this Act of Revocation all the Exceptions in any former Acts are likewise Revocked but under this part of the Revocation do not fall the Exceptions in the former Act of Annexation for King James was then major and though he had not been major yet these Exceptions being made by a publick Law it may be said that publick Laws cannot be taken away by a Revocation for the Revocation is but a privat Act of the Kings whereby His Majesty secures Himself against privat Deeds done by Himself in His Minority but not against what He consented to as publick Laws By the last Clause of this Act it is provided that his Majesty shall not be prejudged by suffering any party to possess any Lands or others fallen under the Revocation but that his Majesty may put his hand thereto at any time but any obstacle by the first part of which Clause it is not meant that prescription shall not be valid against the King but only that the possessors shall not have the benefit of a possessory judgement and by the last Clause it appears that our King 's having revock'd they needed not intent Reductions ex capite minoritatis but may brevi manu intromet with what falls under Revocation even as they may do in their annex't property for this same Clause is like to that contain'd in the Annexation Ja. 2. Par. 11. Cap. 41. and which is repeated in all the other Acts of Annexation See Observ. upon that Act but it is more reasonable to think that the King needs no Reduction because he must prove Lesion in case of Reductions ex capite minoritatis but the King needs prove nothing in the case of Annexation yet our King is still in use to pursue Reductions and not summarly to dispossess these who have right WHilst our Parliaments grew very factious in the time of Q. Mary the Popish and Protestant Party contending who should prevail in Parliament the Popish Clergy who were very numerous in Parliament since all the Bishops and Miter'd Abbots did sit there as Church-men each of them who had Lands and Heretage craved two Votes one as Church-men and another as Barons To prevent which for the future this Act was made discharging any of the three Estates to take upon him the Office of all the three Estates or any two of them but the following words are not so clear viz. That every man shall only occupy the place of that self same estate wherein he lives and of which he takes the style which was designed to keep Barons who could not get themselves chosen to represent their Shires from being chosen as Burgesses of Parliament though they were Provosts or Magistrats as they then ordinarily were and by it also a Burgess who is ordinarily so design'd may be debarr'd from being chosen as a Baron of a Shire This Act was long in Desuetude but of late by Acts of Burrows all Burgesses are discharged from electing Gentlemen to represent them in Parliament under the pains specified in these Acts for they found that Gentlemen did not adhere to nor understand the true interest of Burghs and the King found that none desired to be so elected except such as had private designs albeit upon the other hand it is represented that this is the way for Burgesses to have their interest maintain'd by Lawyers or able States-men either of which they may choose and the people of England who are very jealous of their priviledges do choose such by which likewayes their Parliament is so considerable and their Laws are made by so judicious Lawyers But by an Act of the 3 Par. Ch. 2. it is determin'd that only actual Trading Merchants can represent Burghs-Royal in Parliament and that Act was founded upon an express Decision of the Session THe unlaws for absents from Parliaments here set down are 300 pounds for every Earl 200 pounds for every Lord 100 pounds for every Prelat and 100 Merks for every Burgh but there is no penalty appointed for Barons and I think that they are comprehended under the word Lords for the Lords and Barons make but one State of Parliament and Laird is but a corruption of the word Lord of old 10 pounds only was the unlaw or amerciament as is to be seen by the Preface of all the Acts of Parliament which bears ordinarly these words alii vero quasi per contumaciam se absentaverunt quorum nomina patent in rotulis sectarum quorum quisque adjudicabitur in amerciamento decem librarum THis Act appointing every State of Parliament to have three Apparels conform to a pattern to be made was not made that every man might have three several Habits
but to the end each distinct Estate might have a special Habit and yet Barons nor Burgesses have as yet no distinct Habit for Parliament FOr understanding this Act appointing the number of the Lords of Articles in every State to be equal and that the most shall not exceed ten nor the least be fewer nor six it is fit to know that by the 1 Act 3 Sess. Par. 1. Ch. 2. The Lords of the Articles are ordained to be elected and constitute in manner following viz. the Clergy choose 8 of the Nobility the Nobility 8 of the Clergy and these sixteen so elected or such of them as are present do choose 8 Barons and 8 Burgesses to whom are added the Officers of Estate and the Chancellor Presides And the Articles being so constitute do prepare Laws Acts and Overtures and orders all things remitted to them by the Parliament BY the 135 Act Par. 7. Ja. 6. no Advocat could plead in Reductions of Forfaulters without a licence which is abrogated by this Act but because this Act gave leave only to persons accused before the Parliament to have Advocats without licence therefore by the 90 Act of this Parliament Advocats are ordained to plead in all Criminal Cases and they do so upon Supplications This craving a Licence was founded upon 98 Act 14 Par. Ja. 3· vid. crim observ tit Advocats THis Act is fully cleared crim observ Tit. Jurisdiction of the Parliament IN this Act the King promises to do nothing that may prejudge the liberty of Voting and reasoning but yet if any person should offer to argue what is down-right Treason this Act would not defend him for by voting and reasoning jointly may be inferred that that reasoning is only allowed which relates to a stated case and to be put to the Vote and nothing that is treasonable will be allowed to be stated in order to a Vote THis Act discharging all contention for priority of place relates only to Parliament and the disturbance thereof but by a Decreet of Ranking in anno 1606. his Majesty having ranked the Nobility has commanded them to observe the Precedency there assigned in all places and that under the pain of being punishable as contemners of his Authority THough by this Act all actions of molestations are ordained to be pursued before inferiour Judges as being naturally but actions for cognoscing of Marches where the controversie being facti can best be understood upon the place yet now such actions are ordinarlie pursued before the Lords because there is a Declarator joyned with the molestation for the Pursuer Libels that though such Lands be his Property yet he is molested in the possession thereof and the reason of this Invasion is because Declarators of Property as all other actions concerning double Rights can only be pursued before the Lords of Session The form prescribed to molestations by this Act is that the Lords shall direct Letters to the inferiour Judges upon 15 dayes warning who shall continue their Courts from 8 dayes to 8 dayes and these inferiour Judges having discust the points of Law they shall choose an Assize the most part whereof shall have 4 Ploughs of Land or 300 Merks of yearly Rent in the same or Neighbouring Parochs if there be mutual pursuits the Judge shall discuss both together and choose an Assize out of the Assizes cited by either party equally and the Odd-man to be choos'd by Cavil if the Judge ordinar be suspect the Lords shall grant Commission by their own Act or by a Commission under the testimony of the Great Seal to unsuspect Judges This form is still almost in observance only the Lords in dubious cases grant Advocations to themselves where the Judge is suspect and after the Cause is debated the Lords ordain the Ground to be visited by some of their own number or grant Commissions to others if the Lands ly very remote but these Commissions under the testimony of the Great Seal are absolutely in Desuetude If the most part of the Inquest be not clear the Lords find that in that case the Cause should be Advocat to them as the Supream Court and they will judge according to the probation already taken or will grant warrand to cite new Witnesses as they did 21 July 1675. Walstoun contra Cheislie Though this Act appoints the Inquest to be chosen of Landed-men having 4 Ploughs or 300 Merks and that in or near the Paroch where the contraverted Land lies yet the verdict will be sustained though they have not so much and though they dwell not in that Paroch albeit there be such in the Paroch This was formerly appointed §· 14. c. 74. lib. 2. R. M. where such cognitions are appointed to be per fideles homines de viceneto And Skeen there observes that Perambulations differ from Molestations in that Perambulations are petitory Judgements and concern Property but Molestations are only possessory Judgements though both tend to the tryal of Marches Nota That by the last Clause of this Act the Members of the Colledge of Justice are exeemed from Tryal before Inferiour Courts which was formerly granted in Removings p. 6. c. 39. Queen M. and is here extended to all Causes according to old accustomed use and though it was alleadg'd that thir last words were restrictive and so the Members of the Colledge of Justice could not Advocat their Causes from Inferiour Courts except in such Cases only as they could prove old use and wont yet these words are found Exegetick and to be equivalent as if the Act had said because of old accustomed use granting them that priviledge and this was very reasonable for since they are oblig'd to attend the Lords and their Clients the Citing them before Inferiour Courts had been inconsistent with both The Action of Molestation is the same with us that finium regundorum was by the Civil Law and what can stop Perambulations in our Law are set down Statut. David 2. cap. 20. where amongst other things it is observ'd that a Minor is not oblig'd to Defend in Perambulations and this is the only place in our written Law where that old Maxime is to be found minor non tenetur placitare de hareditate paternâ and yet it seems that a Molestation being declar'd by this Act to be judicium possessorium a Minor should be oblig'd to Defend in this as he is in all other possessory Judgements but the reason of this Exception in Molestations seems to be because ordinarly Molestations resolve in Declarators of property or are joyn'd with them BY this Act the Defender is indefinitly to pay the Expence of the Obtainer of the Decreet at the modification of the Judge vid. Act 110 Par. 7. Ja. 5. But though this Act be general yet statutum quod disponit simpliciter ut victus victori in expensas sit condemnandus hunc sensum admittit si non habuerit justam litigandi causam hic quippe sensus juri communi est
conformis rationi conveniens Voet. de Statut. Sect. 7. cap. 2.116 BY the first part of this Act the Lords of Session are made Judges to the Interpretation of the Act of Oblivion whereas by the Act 67 Par. 9 Q. M. several particular persons were named for that effect There is an unprinted Act saying that because several of the Lords were dead and that because many legal actions arose upon the Indemnity therefore this Act was necessary By the second part of this Act nine Lords of Session are sufficient to be a Quorum and which is now observ'd though by the 57 Act 5 Par. Ja. 5. ten Lords with the Chancellor or President at the first Institution were necessary to make a Quorum THis Act is fully Explain'd in the 78 Act 9 Par. Queen M. except in so far as concerns the Obligation laid by this Act upon the Notars to bring their Prothecals to the Lords of Session and which are to be kept by the Clerk register and his Deputs these Prothecals are the Book wherein Notars set down the Breviats of what Instruments they take protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss in Novel 44. de tabel the reason why they are ordain'd to be brought to the Register is that false Papers may be hereby try'd and lost Papers may be made up for if an Instrument be lost the person in whose favours it was at first made may raise an Action before the Lords craving that it may be made up out of the Notars Prothecal and this being nobilis officii cannot be done before inferiour Courts Vid. 22 Act 22 Par. Ja. 6. Upon the 19 of February 1680. The Lord Register contra Sir William Primerose It was found that the Registers Deput called the Clerk for the Notars was Deprivable for not calling in the Prothecals of Deceassed Notars by the space of five years to which the Lords found him actually oblig'd though it was alleadg'd that by these Acts he was only oblig'd to receive the Prothecals when they were brought in but not to call for them nor was it possible for him to know when Notars dy'd and therefore by this Act Sheriffs c. are ordain'd to acquaint him of the Death of Notars within their Jurisdictions for it was urg'd that the Obligation to bring in the Prothecals being committed to this Clerk and he being only intrusted with it the Act would be elusory if he were not oblig'd to do Diligence since none else could do it and he might easily inform himself at least once a year It was also Debated that by this Act the Clerk to the Notars was oblig'd to understand sufficiently the Office of Notary though it was answer'd that he was no further oblig'd than to draw a Bill for their admission and the Clerks of the Session are not oblig'd to understand the Civil Law which they are oblig'd to Minut MEssengers being grown too numerous therefore by this Act they are restricted to 200. comprehending the seventeen Heraulds Macers and Pursevants in that number which number is here divided amongst the Shires but the number is now increas'd contrary to this Act and to the great loss of the people The Lyon is Constituted by this Act sole Judge to the faults committed by Messengers and to their Cautioners whom they find for their good behaviour at their Entry which power is Ratifi'd by the 125 Act 12 Par. Ja. 6. And the Lyon with his Brethren Heraulds are declar'd Judges to all the Malversations of Messengers in their Offices by the 21 Act 3 Sess. 2 Par. Ch. 2. by which Act though the Malversation of the Messenger be punishable by the Lyon yet he has not power thereby to determine upon the Damnages done to privat parties by Messengers and to determine against the Messenger or his Cautioner for the sums for which the Messenger should have us'd Execution albeit the Lyon has privat Ratifications from the Parliament with this priviledge vide June 27. 1673. Heriot contra Corbet BY this Act all Supersederies are discharg'd for Protections against Execution of the Law were so call'd then This Act is renew'd 13 Act 23 Par. Ja. 6. By which the Granter is declared lyable for the Debt and by the 9 Act 3 Par. Ch. 2. These Acts are Ratifi'd and because the last Act related only to the Session therefore the Privy Council Session Commissioners of Justiciary and Exchequer are declar'd lyable if they grant Protections except to such as are Cited to answer before them and so the Act protects not pursuers for they are not Summon'd and if pursuers were protected any man might raise a summons and thereby grant himself a Protection but yet if the interest of the Common-wealth require that a Crime be prosecuted I think they may after inquiry secure the pursuer during the dependence for though His Majesties Advocat may pursue without an Informer yet an Informer helps much Albeit that Act Discharges the granting Protections and makes the Granters lyable yet the Contemners of the Protection are punish'd and a Writer to the Signet was Suspended in November 1678. for causing apprehend a person notwithstanding of the Lords Protection albeit it was there alleadg'd that though Protections might be granted by the Lords upon depending Processes yet these Protections could not extend to secure them against delivering of Papers which are in their own power and though a Protection granted by the King for Debt does not secure against things that are in the Receivers own power as Exhibition of Papers c. yet if either the King or the Lords grant expresly Protections against all Cases whatsoever then it will secure even against such Exhibitions until the same be expresly re-called though it seems that by that Act Judicatures have only power to grant Protections to such as are Cited before them during the time wherein they may come and return to obey the Judicature in cases wherein their personal presence is necessary for the Administration of Justice not exceeding a month in all It is also clear that even the Defender may be apprehended if he get not a Protection for this Act does not protect but is only a warrand for granting one And there is lately an Act appointing Protections that pass under the Kings Hand to pass the Great Seal per saltum The Council to prevent the granting of Protections whereby the privat interest of the Subjects was so much destroy'd and the execution of Law eluded did by an Act in January 1678. and signed by all of them declare that whoever voted to any such Protections should be lyable to the Debt to elide which they thereafter changing the name of Protections granted Licences to persons to stay in the Countrey free from all Execution and therefore the King by His Letter in July 1679. did Discharge the Council to grant any Licences or Protections except conform
to which the Laick Patronage is annext are Woodset as other wayes FOr understanding Ecclesiastical Pensions it is fit to know that of old when the present incumbent was sickly the Synods allow'd him to resign his Benefice reserving to himself a Pension or portion out of it as is clear by Balsamon ad Synodum Ephesinam but thereafter the Pope having reserv'd to himself the power of burdening Benefices with Penesions men did by Simony impetrat from the See of Rome immoderat and causless Pensions though it was pretended that there could regularly no Pension be granted but for one of three reasons 1. The favour of the resigner of a Benefice that he might after the resignation live suitably to the Character he once bore 2. That when two Benefices were excamb'd the greater Benefice might be burden'd with a Pension in favours of the lesser 3. When there was any debate concerning the Benefice it was lawful to burden the same with a Pension But notwithstanding of this Pensions increased so far as to be complain'd of as a Harvest without Sowing and our Law did take very much pains to lessen Pensions and by the 1 Act of K. Ja. 1. his first Parliament in the Black Acts which is not now Re-printed the King reserved to himself the cognition of Pensions obtain'd at Rome And by the 4 Act of the 1 Par. K. Ja. 3. it is appointed that no Pension be purchased out of any Benefice without consent of the possessor which was very just in it self and was made to exclude the Popes power who pretended that he could Arbitrarily impose any Pension he pleas'd as is clear by Gigas de pensionibus Ecclesiasticis Quaest. 4. By this Act it is declar'd that the principal gift of Pension being improven all Confirmations and Decreets following thereon shall fall in consequence By the 29 Act of this Parliament it is likewise appointed that Pensions shall not be prejudg'd by the Act of Annexation they being lawfully authoriz'd by Decreets or Possession and therefore by the 137 Act Par. 12. Ja. 6. It is ordain'd that all Pensions not authorized by Decreet or Possession in the lifetime of the Prelat alledg'd disponer thereof shall be null and by the Canon Law Pensions imposed upon Benefices of Cure extinguuntur morte gravantis but the reason given by this Act is because such Pensions not so confirmed in the granters lifetime are null of the Law and may be presum'd to be false Another reason that may be given is because the Incumbent having no power over the Benefice but during his life it were unjust that any burden granted by him should last longer than his life and if it lasted longer it would prejudge very much the care of Souls because the burden of a Pension would discourage the Intrant and the reason why it is presum'd to be forg'd is because it is very probable that if it had been a true Pension it had been own'd during the lifetime of the granter By the 207 Act Par. 14. Ja. 6. all Pensions and Dispositions out of the Temporalities of vacant Benefices since the Act of Annexation are declar'd to be null which shews that Pensions were never consider'd as solid and unquarrellable rights OBserv. 1. Though this Act appoints the Exchequer to sit till the last of August yet it sits sometimes no longer than the last of July and it being doubted whether the King could notwithstanding of this Act of Parliament ordain the Exchequer Compts to begin upon the first of March it was resolv'd that could not be done because by this Act of Parliament the not Compting till the first of July was introduced in favours of the Subjects who are by this Act liable to no Compt till July and so the King could not anticipat the obligation by making them Compt in March this being rather matter of Property than of Government Observ. 2. That Denunciations at the Mercat Cross of Edinburgh against such as do not Compt in Exchequer they being thereto lyable are equivalent as if the Denunciation had been at the Head Burgh of the Shire but yet I conceive Escheats would not fall upon such Denunciations because no Escheats fall by Denunciations upon general Letters but it is alleadg'd that Escheats may now fall upon such Denunciattons by the 15 Act 3 Ses. Par. 1. Ch. 2. where this Act is renew'd and such Denunciations are there declared to be equivalent to Charges and Denunciations personally and at their dwelling house and head Burgh of the Shire and that as to all intents and purposes and by that Act such Letters and Executions may be Registrated either in the general Register of Hornings or in the Thesaurers Register albeit generally all Letters of Horning ought to be Registrated in the particular Register of the Shire Act 75 Par. 6. Ja. 6. or in the general Register THis Act is explained in the 77 Act 6 Par. Ja. 5. EXecution by this Act may pass at the Kings instance against High landers and Borderers ubi non patet tutus accessus upon Citation at the Head Burgh of the next quiet Shire Though this Act was only in favours of Executions at the King's instance which seems to be a priviledge ob bonum publicum yet by a late custome Dispensations are granted upon common Bills by the Lords to cite at any mans instance though it was not proven that there was not tutus accessus and therefore the Lords did by Act of Sederunt discharge the granting of such priviledges upon common Bills and ordained that something should be adduced for proving that there was not tutus accessus and that such warrands should only be granted in praesentia 29 June 1666 Mepherson against Mccleud Per clem 1. de Judic clem 1. de sor compet citatio potest fieri per edictum ubi locus non est securus vid. Marant de jud part 6. num 84. where he observes well that these edictal citations being so prejudicial cannot be granted by inferiour Judges and thus if any person be to be cited as out of the Countrey at the Peer of Leith this cannot be done before inferiour Courts without Letters of Supplement from the Lords BY this Act the Comptroller is lyable for the Chamberlains whom himself nominats but he is only lyable for diligence against Heretable Chamberlains because he names them not The Thesaurer is lyable in the same manner as the Comptroller was though the Thesaurer be not here nam'd because the Thesaurer is now in place of the Comptroller But it may be doubted if a person who is repute solvent and was really so were nominated a Chamberlain proving afterwards insolvent will make the Thesaurer lyable BY this Act Rentals set by the King not bearing Heirs are not extended to Heirs but resolve in naked Liferents though regularly qui sibi providet haeredibus providisse videtur Nota That our Law has thought that this needed an Act of Parliament and therefore
these Laws by the same reason that in England the Paroch is lyable for the Robberies committed therein betwixt Sun and Sun and thus these who have power of Jurisdiction from the Emperour are lyable vias publicas a latronibus purgare Gail observ 64. lib. 2. vid. etiam l. 3. l. congruit ult ff de officio Praesidis It has been doubted whether the Council could in other cases not warranted by express Acts of Parliament oblige the Subjects to give Bond to live peaceably conform to Law and particulary that their Tennents should not keep Conventicles but should go to Church and pay 50 pound Sterling for every Conventicle kept upon their Ground or should present their Delinquents and it was alleadg'd that the Council cannot because regularly one man is not lyable for another mans Crime nor can this inversion of Property and Natural Liberty be introduced by a lesse power than a Parliament nor had Acts of Parliament in this case been necessary if the King and Council could have done the same by their own authority but yet since the King has by express Act of Parliament the same power here that any Prince or Potentat has in any other Kingdoms and that Government belongs to him as Property does to us nor can the peace be secured otherwayes than by allowing him to take all courses for securing the peace and preventing disorders that therefore this joyned with the practice of the Council is a sufficient warrand for exacting such Bonds the practice of our King and Council being the best interpreter of the prerogative especially where the things for which Band is to be taken are not contrary to express Law and it is implyed in the nature of alledgiance that Land-lords should entertain none but such as will live regularly and if they transgressed the Master could not in common Law thereafter recept them without being lyable as we see in SpuilÈies or if the King pleased he might denounce the transgressors Rebels and so might put the Master in mala fide and though there be no such particular Laws warranding the taking of such Bonds yet it will appear by many instances in this Book that Laws are extended de casu in casum and thus this power seems inherent in the Crown likeas the matter of Property is sufficiently secured by the alternative foresaid of either presenting or paying the damnage which alternative seems to be founded upon the same principle of justice with actiones noxales mentioned in the Civil Law Domino damnato permittitur aut litis aestimationem sufferre aut ipsum servum noxae dedere vid. Tit. 8. lib. 4. Institut I find many instances in the Registers of Council wherein the Subjects are charg'd to secure the peace under the pain of Treason as in the case of the Lord Yester BOnd 's given by Cautioners for broken men do oblige the Heirs and Successors of the Cautioners though they be not mentioned in the Band. Observ. 1. In Law he who obligeth himself to pay a Sum obligeth his Heirs for as in Law qui sibi providet haeredibus providet sic qui se obligat haeredes obligat and therefore a man having bound himself and his Heirs Male it was found that the Creditor was not thereby excluded from pursuing the Heirs Female or any other Heirs but that he was only bound to discuss first the Heirs who were specially named in the Obligation 18 February 1663. Blair contra Anderson but yet Obligations for performing a deed such as to present a Thief are of their own nature personal and therefore this Act was necessary THe taking of Surety from Chief of Clanns doth not loose the Obligation taken from Land-lords e contra and the reason why this Act seemed necessary was because this seemed to be an Innovation and it seemed not just that both the Chiefs and Land-lords should be lyable since they could not both have absolute command over the person to be presented but yet this Act was most suitable to Law since novatio non praesumitur nisi ubi hoc expresse actum est l. ult Cod. de Nov. And the Tennents in the High-lands are influenced both by Chiefs and Land-lords but to make this Law more just the Council gives action of a relief against the Lands-lord if the Lands-lord harbour or to the Lands-lord against the Chief if the Chief recept him BY this Act if Goods be taken away by any Clann'd man and recept in the Country of their Chief for the space of 12 hours to his knowledge the Chief shall be lyable in solidum for all the Goods taken away though there were but very few of his men present as was found in a case pursued by Francis Irwing against Glenurchie before the Council all such Chiefs being lyable in solidum and not pro ratâ only for the wrongs committed by their Clanns BY this Act no Magistrat may keep a Thief or Malefactor in Arms with him albeit he pretend he is his Prisoner but he must deâ—ain him in a closs house both because squalor carceris is a part of the punishment due to Malefactors and because if this were allow'd Magistrats might by collusion suffer Malefactors to enjoy their liberty IS explained Crim. pr. tit Theft THis Act ordaining Masters to present their Tennents upon the Kings closs Valentines or Orders in little Papers like Valentines is observ'd in the whole Registers of Council THese two Acts discharging the Borderers of Scotland to marry with the Borderers of England or to labour their Lands are abrogated by the Union BY this Act the Land-lord doing diligence by obtaining Decreet of removing using Horning and doing all other things that was in his power after the fact comes to his knowledge is no further lyable Nota By this Act the Land-lord must be put in mala fide by intimation of his Tennents Crime 2. Dubitatur whether this priviledge should not likewise extend to Chiefs of Clanns since they have less interest in the Delinquents then the Land-lords BY the 100 Act of this Parliament such as committed Slaughter Mutilation or other hurt upon Thieves are not lyable But by this Act an Indemnity is likewise granted to such as raise fire against them that being there forgot THis Act is explained in the Observations upon the 29 Act of this same Parliament BY this Act the Burrows pay the sixth part of the Impositions of Scotland which is yet in observance and because of this burden they have the only priviledge of Trading and therefore they justly pretended that their priviledge of Trading could not be communicable to the Burghs of Barony and Regality who bore no part in this burden Nota That though by this Act the Taxation of the Burrows is not to be altered that is only mean't of the 6 part which is to be born by the Burrows in general for notwithstanding of this Act the Convention of Burrows do
such as are in Prison there needs no Solemnâ—y and yet for the more security Inditements of Treason are also executed against Prisoners by a Herauld That part of the Act which relates to the Deprivation of Messengers is formerly Explain'd Act 46 Par. 11 Ja. 6. Only it may be observ'd that though the Lyon by this Act is ordain'd to deprive Messengers by advice of the Lords of Session yet he uses to Deprive them by his own Authority and in his own Court and though he publishes the Deprivation at the Mâ—reat Cross yet Executions after that Publication have been sustain'd if the Messenger after that Publication was habite and repute a Messenger November 10. 1676. Stenart contra Hay And though it may be alleadged that this Publication should put the Lieges in mala side as well as the Publication of Interdictions and Inhibitions yet the answer is that there are publick Registers in these cases which may inform these who are to Transact which cannot clear them as to the Deprivation of Messengers THough this Act appoints that the Justice-Clerk or his Deputs shall within six days after Criminal Letters are returned deliver the names of the persons Denunced with a brief Note of the cause of their Denunciation to the Thesaurer as also the Names of such as are Unlawed for absence from Assizes yet this is not now in observance all that is observed now being only that upon a Command from the Thesaury these Lists are given in so that this Act is rather forgot than in Desuetude By the last part of this Act all Commissions of Justiciary for longer space than the particular affair for which it is granted are Discharged and therefore by this Act it would appear that Commissions for Justiciary granted for a year or any definite time and not for a particular Business are null It is likewise appointed by this Clause that such as procure Commissions of Justiciary shall find Caution to Re-produce the Process and to pay that part of the Commodity which by the Commission is destinated for the Kings use which is most rational because this would likewise oblige these who get the Commission to do Justice knowing that the Process may be revis'd when it is lying in publica custodia that is to say in the Books of Adjournal for such Processes ought to be brought back and are usually Registrated there but this is oftimes neglected and it was Debated in the Case Turnbul against the Lord Cranstoun July 1678. That the Tenor of a Decreet of Forfalture pronunced upon a Commission granted to the Earl of Dumbar could not be proven except the Process were produced whereupon it proceeded conform to this Act since all that the Witnesses could prove was that they had seen such a Decreet which is not sufficient for else an unjust Decreet of Forefalture might be pronunced and lost to the end the Tenor thereof might be proven without any possibility of quarrelling the VVarrands whereupon it proceeded It may be doubted what is meant by that part of the Commodity which belongs to the King and I conceive that when such Commissions of Justiciary are granted the whole Escheat belongs to the King and the Commissioners have only Right to their necessary Expence tanquam mandatarii except a particular Quota be condescended on in their Commission though some are of opinion that these Commissioners have right to the same Quota's that Sheriffs have since they are Sheriffs in that part BY this Act the Comptrollers consent is requisit in all Infeftments of Feu-ferm or Confirmations of the Kings proper Lands and though there be no Comptroller now yet the consent of the Commissioners of the Thesaury or Thesaurer if he were supplies the same Hence it is that this Act appoints all Feu-ferms and Confirmations to pass the Comptrollers Register which is likewise Ratifi'd by the 171 Act 13 Par. Ja. 6. It is sit to know that the Thesaurer and Comptroller had different Registers but now there is but one Clerk to all the Exchequer who is called the Thesaurers Clerk and he keeps but one Register each Volumn whereof is divided in two parts the one whereof contains only Gifts that pass the Exchequer and the other all other Signatures of Confirmation c. BEasts found in His Majesties Forrests or Parks may be brevi manu intrometted with Vid. Act 12 Par. 4 Ja. 5. But since Forrests are not now Fenc'd it seems unreasonable that a Beast straying should be Escheated though where Beasts are designedly driven into a Forrest it deserves punishment and this Act seems only to speak of Fenced Forrests for it says Parks or Forrests and it requires advertisement before Beasts even found in these can be Escheat Vid. Argent Tit. des Assize where this matter is fully Treated ALL English Goods may be searched for and if they be not Sealed by the Customers may be Confiscated which Act being put in practice at Edinburgh in anno 1664. occasioned a great Tumult and the Act was alleadged to be in Desuetude The word Selling in this Act is wrong Printed in the last Impression for it should be Sealing Nota This Act Ratifies only an Act of Privy Council which ordained formerly Confiscation and this shews how great the Kings power was of old in the matter of Trade Vide Act 24 Par. 16 Ja. 6. which renews again this Act. VId. last Act 1 Par. Ch. 1. THis Act is Temporary but from it it is observable that as the King may as Superiour call for production of any Vassals Rights and Infeftments in a Reduction or Improbation and even by way of Exhibition which is conform to the Feudal Law and to c. 24. Quon Attach so the King may by Act of Parliament sometime call for production of all the Rights of His Vassals of Kirk-lands together as in this Act or of all the Rights of any particular place as of the Isles Act 262 P. 15 I. 6. And I think the King might have call'd for them without this Act by Proclamation and albeit it be said c. 25. Quon Attach That the Vassal shall only be oblig'd to shew his Evidents once in his Life to the King this is not now observ'd and the true meaning of it is only design'd against too frequent troubling of the Liedges which as no Calumniousness is never to be presumed in the King or His Officers THis Act appoints Lords of the Session not to be admitted till they be twenty five years of age which agrees with the Law of France Langlei Semâ—str c. 10. and with that of Venice Contar. L. 3. c. 3. Whereas of old the Romans admitted no Senators till thirty five which Augustus retrenched till thirty Sweton c. 32. Vid. 93. Act Par. 6 Ja. 6. But that part of the Act appointing that none shall be admitted Lords but such as have a thousand Merks of Rent or twenty Chalders of Victual is not now strictly observ'd though this was an Act
suffering the Rebel to possess three years has been found to be presumptio juris for inferring Simulation June 1666. Oliphant contra Oliphant There is a Title in the Civil Law de collusione detegenda which though it run there only against Collusion inter dominos servos yet the whole matter of Collusion is there Treated by the Doctors and it is defin'd to be sub specie litis lusus Vide Barthol Caâ—oll de simulationibus where this Subject is fully Treated By the last Clause in this Act it is provided that the Thesaurer or his Deputs may cause secure the Houses of the Committers of the Crimes upon the expences of the readiest of the Escheat Goods that is like that annotatio bonorum allow'd by the Civil Law in Criminals against absents and though the Act of Parliament specifies only that this may be done in Crimes yet I conceive that all Rebellion is comprehended under the word Crimes for in all cases even for civil Rebellion not only may the Thesaurer Seal till Caution be found but even the Lords of Session will upon a Bill allow the Sealing of the Rebels Goods at the Donatars instance till Caution be found WIlful setting of Fire in Coal-heâ—ghs is Treason vid. crim pract Tit. Fire-raising THis Act is Explain'd crim pract Tit. Beggars and Vagabonds THis Act against Forestalling is fully Explain'd crim pract tit Forestallers TAis Act punishing the Carriers of Wool Nolt and Sheep into England by Escheating the Transgressors Moveables is not abrogated by the Union of the Crowns the Nations being still distinct THis Act against Deforcers is Explain'd crim pract tit Deforcement THis Act is Explain'd crim pract tit Art and Part num 2. THis Act declaring that none but actual Burgesses shall Traffick is fully Explain'd 5 Act 3 Sess. 2 Par. Ch. 2. BY this Act all manner of persons Inhabitants of Burghs exercing any manner of Traffick or having Change therin shall bear Stent Which Act was found not to extend to Indwellers though they have the benefit of the Mercats and had never any other Residence but within Burgh and have the benefit of Seats in the Kirks and so should at least pay Contribution for the Ministers Stipend January 11. 1678. Town of Alerdene contra Lesk And by the 275 Act 15 Par. Ja. 6. All such as have an hundred pounds of yearly Rent may be Stented but by 276 Act of that Parliament they are only to be Stented according to the value of what Rent they have within that Burgh and not according to what they are worth else-where but it may seem that by the 275 Act all who have an hundred pound to spend ought to be Stented that therefore Indwellers are to be Stented though they have not an hundred pound of Rent in House-mail or Trade for the Act sayes if they may spend and not if they have and therefore that the persons who come in accidentally to live in Town should not pay yet if they have no other constant Dwelling save in Burgh that in that case they ought to pay because it is just all Subjects should bear some burden and they bear none else-where to which nothing can be answered but that the Act ordains only such to be Stented as have Rents and Livings copulative Observ. That by this Act one of every Craft is to be exeemed as His Majesties Servant from all Taxation Watching and Warding such as the Kings TailÈour His Smith c. And yet this Act does not exeem them actually but only allows His Majesty to exeem if He pleases so that except these be actually exeemed by their Gift this Act will not exeem them This priviledge is renew'd Act 275 Par. 15 Ja. 6. And His Majesty by His Gifts to His Work-men declares them to be exeem'd conform to these Acts whereupon the Council in anno 1680. did find they should not be stented and all these priviledges are again Ratifi'd in the Parliament 1681. But there being a Declarator rais'd of these priviledges before the Lords of Session in anno 1684. It was objected first That because these Acts being made in favours of the Kings Servants whilst our Kings liv'd in Scotland and they actually ty'd to Service the saids Acts should not now take place but should cease with the Service whereupon they are sounded 2. Though Wrights Masons c. Who are actually at present ty'd to serve may plead this priviledge yet the same cannot be crav'd by the Kings Barbers Shoe-makers c. who never serve 3. The said Exemption could extend no further than to the value of the imployment they had from the King but if the Kings Smith c. have from the people the imployment that other poor Smiths should have it were not just that he should be exeem'd which were to make them pay the value of the Impositions that should be put upon him 4. That these Laws could not exeem from paying for their other Trades So that if the Kings Mason be likewise a Vintner he should pay for his gain in that Trade 5. These Acts of Parliament could only free from Watching and Warding which are inconsistent with personal attendence but should not be extended to Stents and Impositions which were not usual before these Acts since the general words of Laws are ordinarly restricted to what ordinarly happens in the time 6. Though these Exemptions could secure against Impositions laid on by the Town yet they cannot secure against Impositions laid on in Parliament by voluntar offers made by the Subjects themselves in which those Trads-men must be considered as voluntary Offerers as well as others since they are re-presented in Parliament as well as others And in which Act Colledges and Hospitals are only exeem'd and not they this Debate is as yet come to no Decision BY this Act the Crafts-men living in Suburbs of Free and Royal burrows are discharg'd to work and their work declared conâ—â—â—â—able but this Act is not extended to Suburbs that are erected in a Burgh of Barony for these are priviledged by their erection and are not meer Suburbs but distinct Jurisdictions July 21. 1629. and there is a Decreet arbitral betwixt Edinburgh and the Suburbs wherein there is a Liberty allow'd to these who live in their Suburbs to work to Strangers but not to Towns-men This Act of Parliament has likewise been extended not only to Suburbs but to all who were within the Liberties and Priviledges of Burrows Royal though the saids places be not properly Suburbs and that the Act of Parliament discharges only the exercise of such Crafts in Suburbs adjacent to the saids Burrows July 7. 1671. Town of Stirling contra Polmais whose Tennents and Trads-men in Saint Ninians lived a mile from the Town of Stirling vid. etiam Durie March 21. 1628. and the reason of this Decision was because such Un-free men as live within the Priviledges do as well abstract the Trade of the Inhabitants as
those who live within the Suburbs It may be doubted whether since this Act of Parliament allows only the Provost and Bailies or the Officers to intromet with and Escheat the materials so wrought if therefore the Crafts-men within Towns may intromet they being neither named in this allowance and because they are too interested to have had this power committed to them It may be also doubted whether though they may Escheat the Goods when they are actually taken if they may by vertue of this Act pursue the Un-free-men for though there be no such warrand in this Act yet it seems that without they have this allowance the Priviledge granted by the Act would be useless since it would put them to keep more Servants to catch the Inbringers then the Priviledge deserves VId. Nota's on Act 74 Par. 14. Ja. 2. crim pract Tit. Remissions THis Act discharging the Transporting of Skins forth of the Realm under pain of Confiscation is still in force and was introduc'd to encourage our own Manufactors these Skins when carry'd out being wrought by strangers into several useful Commodities and sold back to our selves at great rates though this Act discharges only the carrying out of Calf-Skins Hudrons and Kid-Skins yet by the 178 Act 13 Par. Ja. 6. This is extended to all other Skins and though by this Act the Confiscation is to be for His Majesties use yet by that Act the half belongs to the Apprehender Observ. 2. Not only the Transporting but even the packing and pielling is found to be a sufficient ground of Confiscation for packing and pielling is presumptione juris concluded to be in order to Transportation but it is not presumptio juris de jure since to elide the Confiscation it is sufficient to alleadge that the Skins were packed and pielled in order only to an inward Transportation from one place of the Kingdom to another Observ. 3. That by the 45 Act Par. 1 Ch. 2. The Exportation of all wild Beasts Skins and Shorlings are expresly discharg'd and by Shorlings are meant Skins which have the Wool pluckt off and comes from the word Shearing but by that Act power is given to the Exchequer to give Licences for Exporting of Skins as they shall find cause and though the power to grant such Licences may seem to cast loose all these Acts it being very presumable that they would be purchast for Money yet that was thought necessary because if our Trades-men knew that no Skins could be Exported they would lessen the price as they pleas'd and sometimes the Trads-men cannot make use of all the Skins in the Nation and Skins are a considerable part of some mens Rent nor should the Exchequer give Licences in any other case THis Act renews the 54 Act 6 Par. Queen Mary Discharging all persons to stop the way to Free-burrows or Sea ports under the pain of being pursu'd as Oppressors and allows the Lords of Session to pursue the Contraveeners summarly without any Assize which Act was necessary because all actions of Molestations such as this was formerly ordain'd to be try'd by Assizes and before inferiour Judges 11 Act Par. 42 Ja. 6. From which Act these Tryals are excepted because of their great importance and that they require present expedition for which cause the Civil Law allow'd several Interdicts against stopers of High-ways Vid. tit 10. l. 3. ff 6. By the 38 Act 1 Par. Ch. 2. All High-wayes to Mercat Towns are ordain'd to be twenty Foot of Measure and the Justices of Peace are ordered to see the High-wayes made to have that Latitude at least and by the Civil Law via privata debet esse octo pedum in porrectum 16. pedum in ansractum l. viae latitudo ff de servit prae rusticorum via autem publica seu consularis tam lata esse debet ut currus obvii sibi invicem cedere possint Coepol de servit rusticis cap. 3. I find this Law for securing the High-wayes to â—oyal Burrows was very old in France Argentorat pag. 201. where he very well observes that Ita fit ut itinera quae ab agris paroeciiâ— aut pagis inâ—hoantur lâ—â—et in mercatum ducant publica dici non debeaâ—â— cum a mercatu ad merâ—atum non ducant ut hoc textu sed eâ—si ab urâ—ibus inciâ—iunt nec tamen in urbes aut alios mercatus ducant publica hac quidem lege non sunt I find always that Ways leading to Burghs had a particular priviledge by the Civil Law THis Act allows the Admiral no more Jurisdiction than he exercised before the death of King Ja. 5. Notwithstanding of any Specialities contained in their Infeftments and it may be doubted whether the Admiral is to prove when he is challenged that that for which he is challenged was exercised by his Predecessors in the time of King Ja. 5. Or if such as Challenge the Admiral are to prove what was the custom then But the Admirals Jurisdiction is now fully clear'd by the 16 Act Par. 3. Ch. 2. THis Act is Explain'd Act concerning Provestries Ch. 2 Par. 1 Sess. 1 Act 54. King James the sixth Parliament 13. THis Act discharging Mercats and Fairs on the Sabbath-day was made at the desire of the General Assembly as our History observes Vid. Spotswoods History of the Reformation THis Act appointing such as contemn the Decreets of the Kirk to be Denunced Rebels is still in force though it relates only to the Decreets of Presbyteries and Presbyterian Judicatures and though these be now abrogated THis Act is formerly Explain'd in the Act 48 Par. 3 Ja. 6. IT may be doubted whether this priviledge granted to Ministers freeing their Stipends of all Impositions can be taken from them by Conventions of States since Conventions cannot derogat from Acts of Parliament and they can only offer their own Money but cannot make Laws and yet the Convention 1666. did burden Ministers Stipends with the Imposition then laid on IT is observable from this Act that some Crimes which are not Capital of their own Nature become Capital by reiteration though many Civilians doubt of this point and yet crescente malitia crescere debet paena l. 4. C. de servis fugit plus punitur qui saepius deliquit l. 8. § 2. C. ad l. Jul. de vi pub BY this Act the pains of such as find Caution to answer in Criminal Dyets and report Criminal Letters for Law borrows are hightned every Earl or Lord two thousand Pounds every great Baron a thousand pounds every Free-holder a thousand merks every Feuar five hundred merks and these are called in our present stile the pains of the new Act of Parliament Observ. 1. That it has been debated from this Act whether this Caution should be found according to the quality of the Pursuer or the Defender as for instance if an Earl were pursuing a Feuar should he find Caution according
did write such a hand and for proving of this must produce the Hand-writs of all these Servants at that time February 7. 1672. Kirk-hill contra Ketlestoun IT was Debated upon this Act whether the Lands of Duncow though here annexed by a publick Law were sufficiently annexed so as to exclude the Earl of Nithisdale who pretended that a year before this Act he had a valid Right under the Great-Seal from the King and so could not be prejudg'd by a posterior annexation which behov'd to be salvo jure quoad him To which it was Reply'd that this annexation being by a publick Law was not of the nature of Ratifications which were salvo jure and such Acts of annexation were in effect the Kings Charter and being granted by a publick Act of Parliament in favours both of King and People they could not be taken away but by another Act of Parliament sibi imputet he who had the prior Right and compeared not at the time of this publick Law and objected it but now after so many years the King had at least prescrived a Right by vertue of this Act this case was not decided but the Lords inclined to think that there was a great difference betwixt original annexations where special Lands were annexed as falling in the Kings Hands by a special Forefalture or other cause which they thought could not be quarrelled by the Session or other Inferiour Judicatory and general Acts where Lands formerly annext are only repeated such as this is in which Lands belonging to privat parties may be by mistake repeated Nota The Lands of Duncow annexed by this Act came to the King upon Forefalture of Robert Lord Boyd anno 1477. BEfore this Act Decreets pronunced by Magistrates within Towns could not be the ground of a Charge of Horning till a Decreet conform had been first obtained before the Lords but by this Act Letters of Horning are summarly appointed to be granted upon such Decreets It is observable that though this Act says That Letters of Horning shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts yet it would seem that Commissars had no such priviledge at the time of granting this Act for that priviledge is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered but that Commissars had that priviledge even at the time of this Act de praxi though de jure it was only granted them by that Act for their further Security VId. Act 155. 12 Par. Ja. 6. THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer is Explained in the Observations upon the 2 Act 4 Sess. Par. 2 Ch. 2. IT is observable that by this Act the Dean of Gild is founded in the power of judging all Cases betwixt Merchant and Merchant and is here declar'd to be the most competent Judge because the most knowing Judge in such cases and declar'd to have the same power that the like Judges have in France and Flanders and in France such Cases are Judg'd by these who are call'd les consuls des marchants The Lords have found that according to this Act the Dean of Gilds Court is a Soveraign Court in suo genere and not subordinat to the Towns Court July 21. 1631. and they use to Advocat Causes from the Admiral to the Dean of Gild's Court upon this Act it being declar'd that he is Judge to all actions betwixt Merchant and Mariner though it be alleadg'd by the Admiral that these general words should be restricted by the nature of the respective Jurisdictions and so the Dean of Gild should be only Judge competent betwixt Merchant and Mariner in cases which fall out at Land but not at Sea THe Act related to here is the 36 Act 3 Parl. Ja. 4. IT is observable from this Act that it is there declar'd in geneneral that Acts of Parliament should only in reason and equity extend ad futura for regulating future cases for though Declaratory Acts may oft-times extend ad praeterita yet Statutory Acts should only extend ad futura THis Act differs not one word from the 170 Act of this same Parliament and has been only repeated here by mistake BEfore this Act such as were at seid with one another us'd ordinarly to fight together upon the Street of Edinburgh and us'd to beat the Magistrates or their Officers when they came to red them and that truly gave rise to this Act though the Narrative here bears only that several persons used to Deforce the Magistrates in their Execution of their own or the Councils Decreets By the Act it is declar'd That whosoever disobeys or opposes the Command of the Provost and Baillies of Edinburgh when they are Executing the Kings Commands or Letters from the Secret Council or Session or the Ordinances of their own Burgh shall be punished as Committers of Deforcement as Seditious and Perturbers of the Common well It has been found that naked assistance at such Tumults without Arms is not punishable by Death though a person be killed in the Tumult December 1666. But Convocation at all such Tumults with Arms is punishable by Death if a person be Murdered as was found September 11. 1678. And the acting any thing either by word or deed was found to infer Death Observ. That the using Fire-weapons within Town is discharged by this Act and long weapons that is to say Halbards Picks c. are only allow'd lest innocent persons passing on the Street might be kill'd but yet if Souldiers shoot in defence of their Prisoners on the Streets they are not punishable and this Act was found not to militat against the Kings granting Commissions to the Magistrates of Edinburgh to raise a Company with Fire-locks within Town for the Act discharges only Fire-locks without the Kings consent and a Commission implys his consent THe Act here related to is the 159 Act 12 Par. Ja. 6. THis Act is Explain'd in the 7 Act 9 Par. Ja. 6. VId. Obs. on the 29 Act Par. 11 Ja. 6. THe Abbacy of Dumsermling was Dispon'd by Ja. 6. in a morning Gift to Queen Ann. This Lawyers call Morganeticum and King Charles the First was Infeft in these Lands as heir to His Mother Observ. That this Confirmation was under the Great Seal and under the Seals and Subscriptions of the States King IAMES the sixth Parl. 14. THis Act seems very ill conceived for it appears that wilful hearers of Mass shall be executed to the death how soon they shall be found guilty or declared Fugitive since no man by our Law dies upon his being Denunced Fugitive except in the case of Treason and wilful hearing of Mass is not Treason even by this Act. Observ. 2. That as this Act is conceiv'd the wilful hearing or concealing is punishable by death either by Conviction or being denunced Fugitive before
both as to time and sums and therefore though by the 36 Act Par. 3 Ja. 4. Tacks of the Rents of Burghs be declar'd null if set for longer space than three years yet by the same reason they should be sustained if restricted to three years THese Acts are Explain'd in the 36 Act 2 Par. Ja. 6. THe design of this Act has been as I conceive to secure such as had intrometted with the Kings annex'd Property summarly by vertue of the 41 Act 11 Par. Ja. 2. Because it is probable the Warrand granted by that Act was thought dubious and somewhat severe in the Analogy of Law vid. observ upon that Act. A Provost is in our Law no Prelat and therefore Tacks sett by him are null without consent of the Patron Hope Tit. Kirks THis Dissolution of the Kings annex'd Property has several specialities in it as that it shall not extend to the setting in Feu-ferm of Castles Forrests Coal-heughs and Offices c. But that these shall remain inseparably annex'd to the Crown and from this it may be observ'd that to this day all Castles Palaces Woods Parks Forrests Pastures Coal-heughs and Offices are to remain inseparably with the Crown and therefore except they be expresly dissolved they fall not under Dissolution This part of the Act is renewed by the 235 Act 15 Par. Ja. 6. This Dissolution is likewise only in favours of kindly Tennents and ancient Possessors and of such as should pay their Composition betwixt and the first of August 1595. THis Act is Explain'd Crim. Pract. Tit. Injuries num 6. BY this Act the Duty granted by the States to the King upon Wines is to be charg'd for by Letters of Horning and I find by Act of Council February 21. 1581. That a Commission is granted to the Kings Master-housholds to break up the Doors of such Merchants as refus'd to let the Kings Servants Taste their Wines to the end they might chuse the best for the Kings own use but this certainly presupposed that the King would pay for the Wines FRom this and many other Acts it is observable that the Parliament may and does by a general Law annul Rights granted to privat persons without calling them and without the hazard of the Act salvo though any one privat mans Right cannot be declar'd null by the Parliament without citing him BY this excellent Act a Horning or Escheat following thereupon cannot be taken away and declar'd null upon acquittances and Discharges which were alleadg'd to be prior to the Horning so that the Escheat could not fall the Debt being pay'd except the producer of the Discharge make Faith that it is of a true Date because such Discharges with ante Dates use to be granted by the Creditor when himself is paid It has been doubted whether Assigneys be bound to swear in this case but since this is factum alienum which they are not oblig'd to know and if this be necessary the Cedent by refusing to swear may destroy the Assigney but yet the Act of Parliament obliges indefinitly the producer of the Discharge to swear and so it seems whether he be Cedent or Assigney he is still bound since his Oath is solemnly requir'd by Act of Parliament Quaeritur whether it can be remitted to Quakers Anabaptists c. who think swearing unlawful THis Act giving many priviledges to the Kings Forrests seems not communicable to all Forrests though it be pretended that all Forrests are the Kings Forrests it having been very ordinary to erect Forrests in privat mens Lands in imitation of the Kings Forrests but because these Erections of Forrests were very prejudicial to Neighbours since they might fine their Neighbours and poind their Beasts therefore the Lords of the Session did in July 1680. give their opinion to the Lords of Exchequer that all such new Erections should be stopt and it appears to me very clearly that all Forrests are not the Kings Forrests by comparing cap. 17. leges forrestarum which Treats of Crimes committed in the Kings Forrest with cap. 21. which Treats of the Delicts committed in the Forrests of Barons and wherein they are Infeft cum libera forresta Observ. 2. That that part of the Act which ordains all that Hunt within six miles to His Majesties Castles VVoods Parks or Palaces to be fin'd in an hundred pounds is in Desuetude and it seems then only to be observ'd when the King Himself Dwells in his Castles and uses actually to Hunt in His VVoods or Forrests this Act bearing To be made for His own Royal Pastime or at least this priviledge should not be continued to Castles or Forrests which the King has Dispon'd to privat Subjects VId. observ on the 13 Act Par. 3 Ch. 2. THough this Act say That the Lords of Session were not oblig'd to sit down till nine a Clock yet it appears clearly that they were oblig'd to sit down at eight by the 49 Act 5 Par. Ja. 5. IT is observable from this excellent Act that where Evidents are not thought necessary to be kept there is no reason to grant Certification against them after many years and therefore the Lords refuse oft times to grant Certification against the Grounds and VVarrands of Appryzings such as Executions though they cannot be produc'd after twenty or thirty years ex paritate rationis though the Act secures only against the not producing of Procuratories and Instruments of Resignation and Precepts of Seasâ—nes and July 1680. Strowan contra Earl of Athol This Act was extended to secure against the production of the Decreet of Compryzing and Decreet whereupon it was led albeit this extension seems dangerous since thereby great Estates may be carryed away by null Compryzings and small Debts which might be satisfi'd by less than a years intromission whereas none or small prejudice can be infer'd from not producing Instruments of Resignations c. It is observable that this priviledge 〈◊〉 â—ot being oblig'd to produce such Papers is only allow'd to such as are and were in Possession for fourty years There is likewise in this Act a presumptio juris founded that these from whom Lands are Appryz'd will industriously abstract their Evidents and therefore the Lords use to be very favourable in granting Certification against Compryzers THe Act salvo jure is still subjoyn'd to Parliaments except here where it is insert in the midst of the Acts of this Parliament BY this Act Lords of the Session Advocats Clerks Writers and their Servants nor no other Member of the Colledge of Justice nor no Judges Clerks c. of inferiour Courts may take Assignations to Pleys which is conform to the Civil Law lib. 2. cod tit 14. ne liceat potentioribus patrocinium litigantibus praestare vel actiones in se transferre Nota The Right taken by them is not declar'd null but themselves only punishable and the reason seems to be because when they are depriv'd from being
Members the advantage they had over others is taken away and which advantage was the reason inductive of this Act nor should the punishment be extended beyond the Cause which is also conform to the opinion of the Civilians vid. vin select Quest. jur cap. 1. But it may be doubted if he who takes such Assignations should not be lyable to resound the damnages which are occasion'd by taking such an Assignation since it is a principle that Damnage is still due where the injury is done to any man against a positive Law though that Law ordain not Damnage and Interest to be repay'd and in this case the taking such Assignations is declar'd unlawful and so an injury is done against a positive Law 2. Without this the party injur'd is not repair'd for though the publick Interest vel vindicta publica be repair'd by the Deprivation yet the interest of the person les'd which is chiefly to be considered is not 3. Deprivation is oft-times no punishment and seldom a Commensurable Punishment for many Members of the Colledge of Justice lose nothing by Deprivation and a Plea may be worth a great sum and their Imployment worth nothing whereas Damnage as it is a natural so it is a most Commensurable Punishment Because this Act Discharges only Members of the Colledge of Justice to buy Plea's Therefore it is still lawful for them to take Assignations to Plea's gratis as a Donation July 30. 1678. for as this falls not under the express prohibition of the Act so it is noâ— presumable that they will be as keen in pursuing such Processes as these for which they have pay'd out Money nor were it just to make the Members of the Colledge of Justice incapable of their Friends and Relations Liberality By this Act Advocats Servants do pretend they are Members of the Colledge of Justice because this Act says their Servants and other Members Though this Act and the Rubrick Discharges only the buying Debateable Lands Teinds or Possessions and speaks nothing of Moveables nor even Heretable Bonds mobilia being ordinarly accounted vilioris naturae yet the Lords do now ob paritatem rationis extend this Act to such as take Assignations to Moveable Debts or any other debateable Rights This Act uses to be so Interpreted as to be extended only to the Members of the respective Courts who take Assignation to Plead before the Court where they serve and thus if an Advocat should take an assignation to a Plea depending before an Inferiour Court it may be urg'd that this Act should not reach them because he has not influence before that Court but if he should go and Plead before that Court as an Advocat may before any Court then the Act would reach him also Item Though this Act does not speak of Procurators before Inferiour Courts yet the word Advocats seems to comprehend them BY this Act Caution is to be found in actions of Ejections for the violent profits and though cautio juratoria be ordinarly sustain'd where persons cannot find other Cautioners yet it is not sustain'd in this case July 17. 1630. Because this Act says that by the proponing of these Defences against Ejections delays are granted therefore the Defender either in Removings or Ejections is not oblig'd to find Caution where the Defence can be instantly verifi'd and although it has been doubted whether this Caution is to be found at the proponing of the Defence or at the first Term assign'd by the Act yet it is clear that the Caution should be found at the first Term assigned by the Act both because this Act says that the Caution shall be found at the first Dyet of â—itis contestation and because there must be some time given to find Caution Nota That in the Brieves of Dissasine which was the same thing of old that Ejection is now Caution was to be found as here by the Defender Quon Attach cap. 53. num 2. For clearing some mistake in the Printing of my Criminals pag. 294. my meaning was that there may be Perjury in cautione juratoria as for instance if a person should Depone that he could not find Caution for the violent Profits and yet it could be prov'd that such a person who was very responsal offer'd to be Caution this I think would infer Perjury BY this Act it is appointed that twenty dayes after the Parliament is proclaim'd and before it meet four of every Estate should meet to receive Articles to be presented to the Parliament but this is now in Desuetude for no State can now meet except the Burrows and yet sometimes the King writs down to call whom He pleases to name to meet and consult previously what Laws are fit to be made in the future Parliament By this Act also it seems that nothing can be presented in plain Parliament by any of the Members of Parliament but that every thing must be first presented in the Articles for eviting confusion and this Act was made use of to that purpose in the Parliament 1674. against a proposal made then for having a Commitee of grivances To which it was then answered that the Articles being but a Committee of Parliament they could not restrict their own Constituents and this Act was rather directive than restrictive THis Act is fully Explain'd crim pract tit Jurisdiction of the Lords num 7. THis Act is explain'd crim pract tit Paricide THis Act is formerly Explain'd 15 Act 4 Par. Ja. 5. where Liferenters are to find Caution By this Act also a power is granted to the Magistrats of Burghs to cause repair Burnt and Waste Lands but yet ordinarly the Magistrats of Burrows use to give in Petitions to the Council craving liberty to force the Heretors of such Burnt Lands to repair their Burnt Lands themselves or else to sell their part and when there are many small Heretors concern'd the Council grants Warrand to the Magistrats to regulat their Venditions though I know it hath been alleadg'd that the Council could not do this because it was an Inversion of Property and that this was only competent to the Parliament and yet the Council have still been in use to do so for the common good of the people nor is any man a loser since he may repair by himself and if he will not he gets his just price This was granted to the Magistrats of Edinburgh in anno 1678. publice enim interest ne civitatis aspectus deformetur ideo constitutum est l. 4. C. de jur reipub aream collapsam posse a fisco distrahi si proprietarius monitus eam reficere non curaverit vid. l. 46. ff de dam. insect I have seen a Decreet in anno 1636. at the Town of Edinburghs instance against several Heretors before the Lords of Session for ordaining the Heretors of these Houses upon which the Trone-Church now stands to denude themselves of their Right in favours of the Town ob utilitatem publicam and to
appoint four for them and four for the Town for valuing the Lands that the price may be pay'd accordingly But to prevent all such Debates it is appointed by the 6 Act 3 Sess. Par. 1 Ch. 2. That the Magistrats of Burghs Royal shall cause cite all such as pretend Right to any such Waste or Ruinous Lands as have not been inhabited for three years or shall be waste and not inhabited for other three years to Repair the saids Lands with Certification to them that if they do not the Magistrats will cause value the same by certain persons to be chosen for that effect and to sell the same which sale shall never thereafter be quarrelled So that it appears that after this Act the Privy Council can grant no Warrand to sell except in the Terms of this Act at the least they cannot grant any such warrand to build or sell upon any privat account or even for beautifying the Town but the Privy Council has since this Act granted a Warrand to force privat Heretors to sell and accept their price for making the Entry to the Parliament-House more large and convenient though it it was alleadg'd that this could not otherwise be done than after three years and in the way prescriv'd by the Act of Parliament which has made no exception of any such case as this and if the Council could do this they might as well have made the Act of Parliament it self for the power granted to Magistrats by Act of Parliament proceeds upon the same motive of publick Good It might likewise have been alleadged that whatever the Council might have done in cases of absolute necessity as if the Parliament-House had wanted an Entry altogether yet they could not invert Property meerly for the conveniency of enlarging the Entry beyond what formerly serv'd in our Predecessors time BY this Act Chiefs of Clans are not made lyable but all Land-lords and Bailies are oblig'd to make their Men-tennents and Servants answerable to Justice and to redress the party skaithed which Obligation is not alternative and therefore the Council in the case of Leith and Grant August 1680. did find that the Land-lord was lyable for the Skaith though he should present his men King JAMES the sixth Parliament 15. BY this Act Bishops are in effect restored to sit in Parliament though the Act is cautiously conceived in favours of Ministers who shall be provided to Bishopricks by the King but yet the Bishops themselves were not restored to their Jurisdictions in spiritualibus till the 2 Act 18 Par. Ja. 6. in anno 1606. This Act gave occasion of calling a General Assembly at Dundee to whom the King proposed several Overtures and it was condescended on that fifteen Ministers should sit in Parliament because so many Re-presented the Church in time of Popery but remitted to a Committee to consider what Revenue each Church-man should have for defraying that expence and who should be elected In this Act likewise it is declar'd That this Restitution shall be without prejudice to the General and Provincial Assemblies and Presbyteries and the Act of Parliament here related to Establishing these is the 114 Act 12 Par Ja. 6. IT is observable that Kirk-yeards have in many things in our Law the same priviledge as Kirks and therefore the killing or wounding of men within Kirks and Kirk-yeards are punishable in the same way 118 Act 12 Par. Ja. 6. and the Raisers of Frays in Kirks and Kirk-yards are punished in the same way 27 Act 11 Par. Ja. 6. and by the 83 Act 6 Par. Ja. 4. Fairs and Mercats are prohibited to be kept within Kirk-yards as well as within the Kirk as also by the 86 Act Quon Attach Courts Civil or Criminal within Kirks or Kirk-yards are forbidden all which is conform to the Canon Law cap. 5. de immunitate ecclesiarum cap. 2 h. t. in sexto decretal By this Act Letters of Horning are to be directed by the Lords of the Session for bigging of Kirk-yard-dykes and for making Stiles and Entries to Kirks and Kirk-yards By which last Clause it would seem also that Heretors would get Letters of Horning against any Heretor who lyes betwixt him and the Kirk to give him a sufficient way to the Kirk through his Land albeit the words bear only That there shall be sufficient Stiles and Entries in the saids Kirk-yard-dykes But when any thing is allowed in Law all is understood to be allowed without which that which is expresly allow'd cannot be useful Yet I find by a Decision June 27. 1623. betwixt Neilsâ—n of Carcassiâ— and the Sheriff of Gallâ—wâ—y that the Lords refus'd to grant a Servitude through a privat Mans Lands even for a way to the Church except the Pursuer could prove immemorial Possession and to reconcile this Difference it seems that every man must have some way to the Church but that he will not have Right to any special way if he seek the same upon the account of nearness except he can prove immemorial Possession Mornatius ad l. penult ss de just jur shews that this Law is observ'd in France Quaeritur to whom a Coal found in a Church-yard or Trees growing there will belong whether to the Heretor the Poor or the Patron or if the Trees will belong to the Minister THis Act declares all Alienations of the annexed Property to be null except where they are set with augmentation of the Rental and therefore to this day there is still some small augmentation made but it has been doubted whether if the Charter bear an augmentation but yet it can be proven by the Exchequer Rolls that the Lands pay'd more formerly than is exprest in the new Charter if in that case the alienation will be null and I conceive it should for though the Feuer may alleadge that he was in bona fide because of the former Charters yet seeing the hazard by this Act of Parliament he ought to have looked to the Exchequer Rolls I find the 233 and the following Acts till 240. of this 15 Parliament of King Ja. 6 were at first Statutes of Session inserted in the Books of Sederunt upon the 14 of March 1594. and here in 1597. they are turn'd in Acts of Parliament without mentioning that they had been Acts of Sederunt formerly as uses to be done when the Parliament Ratifies such Acts it seems that it was rather the Exchequers part than the Sessions to have Regulated the Kings Revenue and Property whereunto all the above cited Acts relate but about this time I find in the Sederunt Book several Acts ingrossed bearing to have been made by the Lords of Secret Council Session and Exchequer met together which is like the several Chambers whereof the Parliaments of France consist who conveen all together when any solemn arrest or Decision is to be pronunced in purpuris as they call it and these Acts being Declarations of what was Law in relation to the Kings
other Church-men had when they possessed the same is inconsistent with Law and with the Respect and Priviledges belonging to that Sacred Order 11. Whereas it is pretended that since His Majesties Restitution and the said Act of Parliament containing His Promise and Resolution not to raise any more Cess A Taxation hath been pay'd to the Lords of Session in the way of Cess that pretence is of no weight it being considered that the said Taxation is granted not to His Majesty but for an honorary allowance to the Lords of Session and by an Act of the same Parliament wherein His Majesty Declar'd that no more Cess should be rais'd so that the said Act being in the same Parliament and it being an exception from the said Act firmat regulam in non exceptis and shuts the Door as to the future upon that manner of Raising of Impositions 12. Whatever a Parliament may do as to the repelling of former Laws and Customes a Convention of Estates though a meetting most eminent has not that Legislative Power And albeit the Commissioners from Shires has power by their Commission to offer and condescend to a Taxation Yet they have not power to alter and take away the fundamental Laws and Customs of the Kingdom as to the manner of uplifting of Taxations being the Birth-right of the people and which cannot be taken away but by a Law made in Parliament King James the sixth Parliament 16. THe Earl of Gowrie having endeavoured Treasonably to Murder King James the sixth he was Forefaulted in the beginning of this Parliament and after his Death his Brother and Posterity were disabled to succeed and the Name of Ruthâ—â—n aâ—olished as is to be seen in the first three Un-printed Acts of this Parliament and a publick day of Thanksgiving is appointed by this Act which is yet constantly Celebrated upon the 5 of August which was the Day upon which the Murder was to be committed The malice of the Fanaticks in those times is most remarkable who pretend that he was unjustly Forefaulted albeit the Depositions of the Witnesses are yet extant whereby the Traiterous Dâ—sign of having contriv'd and accordingly attempted to kill that excellent King is prov'd by his own relations and many eminent Witnesses of intire Reputation It is also observable that Witnesses of old in Processes before the Parliament were only led before the Articles and repeated in Parliament Item That the Summons was still in Latin sub testimonio magni sigilli they were at the Instance of the Justices and of the Kings Advocat and the Summons in all such cases were still rais'd before the Parliament did sit for our Parliaments sat very short time and so they err who think that such Processes can only be rais'd by a Warrand from the Articles though that be ordinary now And now likewise the Summons is in Scots and under the Signet only THe Earl of Gowrie being Forefaulted his Lands are by this Act annex'd to the Crown and though by the former Acts of Annexation Lordships and Baronies were only in general annexed yet here all the particular Baronies of the Lordship and all Tenements of the Lordship are expressed with all the Pertinents thereto belonging which are here specially enumerated and amongst the Pertinents Patronages are enumerated which shews that Patronages in our Law are comprehended under the word Pertinents which is also clear by the Author of the Book call'd The Parsons Law See more of this in the Notes on Act 29 Par. 11 Ja. 6. The Regalities and Heretable Offices belonging to Gowrie are likewise supprest expresly and the saids Lands erected in a Stewartry for a Regality is properly the Erection of Lands holding of Subjects and a Stewartry is only in Lands which are the Kings Property THis Act is Explain'd in the 37 Act Par. 2 Ja. 6. and that is the Act related to in this Statute BY this Act Invading or pursuing any of His Highness Session Secret Council or Officers it being verifi'd that they were pursu'd or Invaded for doing His Highness Service is Declar'd punishable by Death and upon this Act Mr. James Mitchel was Hang'd for Invading the Bishop of Saint Andrews in which Process it was upon debate found that the Pursuing and Invading for doing His Highness Service was sufficiently proven by presumptions except the Pannel could have condescended upon another reason which provockt him to the attempt arising from private quarrel or grudge and that because it is impossible to imagine that the Design of the Invader can be otherwise prov'n that being an occult and latent Act of the mind By the Civil Law the Invading a Counsellor was Treason for sayes the Emperour sunt pars corporis nostri l. 5. C. ad l. Jul. Maj. It may be questioned from this Act 1 Who are to be call'd the Kings officers 2. If the Invading them when they are out of the Kingdom or Suspended or when they are only nam'd and not yet admitted to their place will infer the punishment of this Act. 3. If these words in the Narrative of this Statute that they are oft quarrelled without any just cause will excuse the Invader if he can show that he was truly wrong'd by that party either in Voting or deciding against him or otherwayes Scipio Gentilis in his Books de conjurationibus adversus principes explains the l. 5. cod ad l. jul Majest and shews how far the Invading of the Kings Counsellours is Treason Sir Francis Bacons observes that an Act of this Tenour was made at the suggestion of the Chancellor in the Reign of Henry 7. because of the danger the Chancellour was then in from the Courtiours drowning the envy of it in a general Law and I am sure that was also our case for our Chancellour was in ill Terms then with our Nobility but their Conspiring was made a Crime whereas with us Invading is necessary THis Act is Explained in the 80 Act Par. 10 Ja. 3. THis Act is formerly Explain'd in the 248 Act Par. 15 Ja. 6. THis Act Discharging Herring to be carried abroad before Michaelmas under the pain of Confiscation is now innovated by the Priviledges granted to the Fishing Company and that very justly for the sooner Herring be carryed abroad they give the better price And though there were not Herring enough taken to serve the Countrey the time of this Act which was the reason of the Prohibition yet now there are sufficiently for serving both the Countrey and Strangers THough the slaying Salmond in forbidden times be Theft by this Act yet none has ever been pursu'd capitally therefore but the same is only punish'd as a penal Statute by an arbitrary punishment The reason why the Rivers of Tweed and Annand are excepted from this Act is because the killing Fish upon them prejudges only the English Fishing but after the Union of the two Kingdoms this exception as to these two Rivers is also taken away by
said to be no more when they make but a part of the Parliament of Great-Britain for Scotland cannot be called Britain nor a part of a Parliament cannot be called a Parliament no more than the Commissioners for the North of Scotland can be called the Parliament of Scotland but how our Commissioners could sit in the Parliament of Great-Britain by vertue of their former Commissions I see not and therefore it seems to be both fit and just that the Commissioners of Shires and Burrows should be sent home to their respective Constituents to crave their advice and consent in so weighty and comprehensive an Affair nam quod omnes tangit ab omnibus debet approbari It may be likewise contended that this Great Determination of Uniting both Parliaments requires at least the full assent of the Members of both Parliaments and that though the Parliament had power to alter its own Fundamentals yet if any one dissent the Union of both Parliaments must stop for both in Law and Reason the power of making Laws and the Right to retain or resign Priviledges are two different things the one is a Legislative Power which is regulated by plurality of Voices the other is founded upon Dominion or Property and is not subject to Suffrage no more than other Properties are for as every Member has Right so his Right cannot be taken away from him without his own consent though all these who are in the Society with him should renounce what is theirs in re pari melior est conditio prohibentis in re communi nemo dominorum jure quicquam sacere potest invito altero L. Sabinus ait 28. ff com divid thus if the Members of a Society were by Law free from Impositions though all the Society save one should submit to pay yet plurality would not in that case oblige the Refuser and if all who had interest in a Commonty should condescend to Resign their Right therein in favours of another yet if one were refractory that one would not be prejudged by the consent of all the remanent partners whence it seems consequential that as the Parliament cannot Debar any Member from sitting in Parliament so that if one Member by advice from his Constituents oppose the Union of Parliaments it could not be carry'd by plurality for what ever Reason militats why plurality should not oversway in the one does likewise militat in the other and if the right of every Member is given as the cause why he cannot be debar'd from sitting Why should not the same Right empower him much more to stop the total alteration of the Parliament even as a man cannot be Debar'd from using a Commonty It will likewise operat that the Commonty cannot be altered in its Nature without his consent and the Right of these who sit in Parliament is as much prejudg'd by extinguishing the being of a Parliament as by debarring them from sitting or Voicing in it Our Shires and Burghs have Right to be Represented in no Parliament save that of Scotland and therefore if the Commissioners had power to overturn the being of the Parliament of Scotland they could have debar'd our Shires and Burghs from being Re-presented in the Parliament of Great-Britain seing they could pretend no Right to sit there so that it seems either plurality of Voices may exclude any particular Member and may retrinch that Member Or else by the same Reason no plurality can establish an Vnion of both Parliaments and if our Parliament could by plurality of Voices overturn the Fundamentals and destroy the very being of our Parliament How shall it be possible to secure our Parliament when it is joyn'd in with the Parliament of England into one Parliament of Great-Britain so as that the Parliament of Great-Britain may not by the plurality of Voices likewise overturn any Fundamentals that shall be condescended on but that the Fundamental Constitution and priviledges of Parliament are not subject to Suffrage and cannot be abrogated nor innovated without the universal consent of all its Members and Commissioners may be clear likewise from many Instances for it is most certain that the Parliament as now Constitute could not by any Statute Ordain that there should be no more Parliaments or resign over their Parliamentary power in the hands of the Council nor could they Transmit the Power they possess in favours of their own Heirs or exclude any of the Three Estates and sure if Fundamentals be not subject to plurality of Voices the power of Uniting of Parliaments and suppressing of Monarchies is not for these comprehend all other Priviledges and Fundamentals and if the priviledges of one of the Three Estates cannot be altered by plurality I see not how the priviledges of all the Three can be and we have seen Parliaments in the last age do such irregular things that the succeeding Parliaments have been forc'd not only to abrogat their Laws but even to find that they had exceeded their power which implyes that it was not arbitrary King IAMES the sixth Parl. 18. THis Act Declares His Majesties Royal Prerogative by way of acknowledgement without any new Concession in these words They all in a voluntar humble faithful and united heart acknowledge His Majesties Soveraign Authority Princely Power Royal Prerogative and priviledge of His Crown over all Estates Persons and Causes and Confirms to His Majesty His Imperial Power and whatever Soveraign Authority any of His Predecessors had and Casses annuls and abrogates all any way done to the prejudice of His Authority any manner oâ— way so that it seems that all former Acts of Parliament lessening any way the Royal Power are hereby abrogated By this Act likewise the Estates of Parliament promise to maintain defend and advance the Life Honour Soveraign Authority Prerogative Royal and priviledge of His Crown with their Lives Lands and Goods to the outmost of their power But because this Act was too general therefore by the 2 3 4 and 5. Acts of the first Parliament Charles the Second His Majesties Royal Prerogatives in the choice of the Officers of State Counsellours and Judges in Calling and Dissolving of Parliaments and making of Laws in making of Peace and War and ordering the Militia c. are expresly acknowledged and Ratified and by the second Act of the second Session of the first Parliament All endeavours to restrain His Royal Person to Depose or Suspend Him and all endeavours tending thereto are Declared Treasonable and all stirring up of the People to the hatred or disâ—ike of His Royal Prerogative are punishable in manner therein mentioned and by the 27 Act of the 3 Sess. of the 1 Par. Ch. 2. His Majesty is Declared by His Prerogative Royal To have the only Power of Ordering all Trade with Forraigners Nota This is the first Act that mentions the word Prerogative which was formerly call'd the Priviledge of the Crown and therefore this Act mentions both the Old and the New Words by asserting
Action against others of the same Manufactory for resetting their Servant who had run away from them and to whom they had learn'd their Trade and yet I have seen action granted in the Council against Heretors who had entized away other mens Fishers and the parity of Reason seems to reach to such as work in Lead-mines This condition of CoalÈiars and Salters by our Law makes them to be like to the addicti glebae adscriptitii mentioned in the Common Law THis Act is Explain'd formerly in the 72 Act Par. 14 Ja. 2. BY this Act men are Discharg'd to lay Lint in their own Lochs since thereby Fish is destroy'd and the Water becomes Noxious to Neighbours and thus property is in many things restricted for the good of the Common-wealth there being nothing more consequential to property than that quilibet potest jure suo uti modo principaliter hoc non faciat in aemulationem alterius But it seems that only the Parliament can restrain this exercise of property else this Act had been needless and therefore when the Laird of Haining offered to Drain his own Loch it was justly Debated whether the Fishers upon Tweed could hinder him because the Water that run in from the Loch to Tweed prejudged their Fishings But that which made the case there more Debateable was that publick Rivers and Salmond Fishings are of their own Nature priviledg'd It may be likewise Debated whether paritas rationis should extend this Act against such as lay stinking Hides or other such noysom things in their Loches or Burns and the laying any such things in the Loch of Lochlevin is specially Declar'd punishable by the 29 Act Par. 1 Ch. 1. Vide quaestiones medico legales Pauli Zacchej lib. 3. Tit. 3. where he condemns what is here Discharg'd as noxious both to Man and Beast BY this Act the Vassals who hold Blench of His Majesty are only lyable in their Blench-duties if they be required allanerly and these Blench-duties cannot be converted into Money by the Exchequer Observ. 1. It is declared by this Act that Blench-duties are not to be any Burden or yearly Duty by their own Nature but only an acknowledgement or recognizance if they be requir'd allanerly and yet by our Law in Lands holding blench of a Subject we thus distinguish viz. either the Charter bears si petatur tantum and then the Blench-duty cannot be required beyond the year in which it was due Or else the Blench-Charter bears not this Clause and then either the Blench duties are such as are of a yearly growth as Wax Pepper c. and these can only be crav'd within the year Or else they are things of some intrinsick value and not of an annual growth such as Silver Spurs c. and they may be pursued for at any time within fourty years Nor can any annual Prestations such as Carriages be acclaimed after elapsing of the respective years wherein they were due by the Tack or otherwayes January penult 1624. But though a Vassals Charter who holds of the King bear si petatur tantum Yet the Exchequer by an Act does Tax the price and pursue for these and for annual growths albeit they have not been crav'd within the year for which I can give no other reason but that the negligence of the Kings Officers cannot prejudge the King But how can the Act of Exchequer alter the Nature of the holding which is an express Contract betwixt the King and His Vassals and it may be alleadged that by Act of Exchequer it may be as well Declar'd that prescription shall not run against the King for this is a species of prescription but especially since it is Declar'd by this Act that they shall not pay notwithstanding of any Act of Exchequer past or to come nor does the Act anent the negligence of the Kings Officers abrogat this Act as it ought to have done The Advocats Protestation in the end of this Act seems to be in-intelligible for how can Blench-duties be conform to the Kings Estate and Dignity Some Interpret this Act as if it only prohibited the Conversion of the Blench-duty into Money in the body of the Charter but does not hinder the Exchequers valuing of it Others to reconcile the present practice with this Act make a distinction betwixt holdings in blanco and in alba firma as if the first being an inconsiderable Duty as a Rose or a Penny may not be converted to Money but the other affording some profit such as Gilt-spurs Gloves a pound of Pepper c. may be valued by the Exchequer This Act quadrats with Tit. 2. lib. 11. Cod. Theodos. THis Act is formerly Explain'd in the 77 Act Par. 6. Ja. 5. BY this Act all such as Convocat or Assemble themselves within Burgh without Licence of the Provost and Baillies are declar'd to be guilty of Faction and Sedition and it has been doubted whether Keepers of Conventicles within Burgh may be punishable by this Act for though there be a specifick punishment appointed for Conventicles yet since this and oâ—her Laws by which Conventicles may be punished in specifick and particular cases are not abrogated expresly It is therefore alleadged that they are not abrogated conform to the general Rule set down in the 243 Act Par. 15. Ja. 6. Observ. 2. It may be doubted whether since this Act runs in the general against Convocations within Burgh if this Act should not as well extend to Burghs of Barony and Burghs of Regality as to Burghs Royal since the word Burgh comprehends all and the Reason inductive of this Act viz. the quenching Convocations extends likewise to all and when the Parliament designed to extend their Acts only to Burghs Royal they were particularly exprest as is to be seen in the immediat foregoing Act and albeit it may be urg'd that this Act speaks of Provost and Baillies yet this must be Interpreted applicando singula singulis for there are many Burghs Royal as well as Burghs of Regality and Barony that want Provosts Observ. 3. That though this Act ordains only such as obey not their Magistrates and Officers to be fined yet if the Inhabitants of any Town refuse to obey any Officers in the Kings Name such as Captains c. they may be fined Observ. 4. This Act appoints that it shall be proclaim'd at all the Mercat Crosses of the saids Burghs albeit by the 128 Act Par. 7 Ja. 6. all Acts of Parliament are only to be published at the Mercat Cross of Edinburgh but this Act being posterior and special derogats from that general Law and this was specially appointed because of the special interest of the Burrows Observ. 5. It is observable that this Act proposes no punishment for Towns where the Magistrats do not their duty to oppose Tumults against the Government yet the Town of Lanerk was fin'd for not pursuing those who burnt the Test at their Cross anno 1681. and privat Burgesses pay
be no Burgh Royal July 10. 1623. The reason of which Exception was founded upon the exactness of Town Clerks and the constant Custom thereof Booking how soon the Seasin is granted and so far are Seasins within Burgh exeem'd from such Solemnities that the Lords sustain'd a Seasin within Town being subscribed by the Town Clerk though there was no Vestige of it in the Towns Register nor the Notars Protocal and was Latent for many years June 30. 1668. and thus singular Successors were not sufficiently secur'd by this Statute within Burghs for though Town Clerks use to Registrat yet there being no necessity upon them to Registrat and the Seasin not being annulled for not Registration it follows clearly that there is no security and therefore by the 11 Act Par. 3 Ch. 2. This is alter'd and the necessity of Registration is thereby extended to Seasins within Burgh and to all other Writs which by this Act must be Registrated THe Form us'd in loosing Arrestments of old was by the Messengers giving a Testificat under his Hand that the Arrestment laid on by him was loos'd this being too great a Trust for a Messenger and they receiving oftimes irresponsal Cautioners By this Act it is ordain'd that Arrestments shall be loos'd only by Letters on Bills past by the Lords which is now observ'd and Caution is found to a particular Servant in the Bill-Chamber to whom the Trying that the Caution is sufficient is referr'd and the ordinary way to hinder an unsufficient Cautioner is by getting a Warrand in praesentia from the Lords of Session for that Effect after presenting whereof to that Servant if insufficient Caution be receiv'd The Lords will give Warrand to Arrest de novo but if the Caution be once found and the Letters exped The Lords will not allow upon a Bill Arrestment to be made de novo nor recal their Letters though the Caution be insufficient the Clerk of the Bills being answerable by his Office for the sufficiency of the Caution THis Act grants power to all who are Infeft in â—oâ—â—estâ—ies to Judge such as shoot and kill Vennison and Wild-fowl therein and that by an Inquest which seems to exclude all other wayes of Tryal for inclusio unius est exclusio aâ—â—â—rius and this Inquest was ordain'd to prevent the partiality and passion of the Heretor THis Act punishing Drunkards by sining is not well enough observ'd though it be renew'd Act 19 Par. 1 Ch. 2. It seems by this Act that the Kirk is regulariter founded in the judgeing and sining of Drunkards though it may be alleadg'd that this were to secularize too much Kirk Sessions which is properly an Ecclesiastick Judicature and by the Commission granted to the Justices of Peace The Justices seem to be made the only Judges as appears not only by the Instructions given to them but by the said 19 Act Sess. 1 Par. 1 Ch. 2. Though it be alleadg'd that Kirk-sessions have likewise a cumulative Jurisdiction for punishment of all Scandals for which the 22 Act 3 Sess. Par. 2 Ch 2. is alleadg'd and the constant practice of the whole Nation and it was found by the Council May 1681. The Kings Advocat contra the Justices of Peace of Dumfermling that the Kirk-sessions might uplift such fines as were voluntarly pay'd to them for such Scandals without being countable to the Justices of Peace for them THe difference betwixt a Caulp and HereÈeld is that a Caulp is is the best aught or Beast that a man has which is due to the Chief or Master after his Death for protecting his Bairns given by express paction whereas a HereÈeld is the best Beast due to the Master only by Law after his Tennents Death Caulps are here Discharg'd but HereÈelds were allow'd Quon Attach cap. 23. But it would seem that HereÈelds and all taking of the best Beast is discharg'd by this Act albeit indeed they are not THis Act is Explain'd in the 45 Act Par. 11 Ja. 6. To which is to be added that by this Act the Relicts and Bairns of Notars being oblig'd to bring in their Protocals to the Clerk-register within fifteen dayes after any Notars decease the Register uses to appoint a Deput call'd now the Clerk of the Notars who draws their Bill and receives Caution from them and is by his admission oblig'd to do Diligence to mark the Books of Notars and to receive Band for their returning their Books and therefore Sir William Primrose for not doing Diligence was Depos'd upon a Bill to the Lords February 19 1680. Though he alleadg'd that the Wives and Bairns only of the Notars were oblig'd to bring in their Protocals but not he and he was content for the future to follow what Instructions should be given him King IAMES the sixth Parl. 23 THere being a General-Assembly held at Pearth in August 1618. by Hadingtoun Southesk and Scoon as His Majesties Commissioners there were five Articles therein past in order to uniformity with England viz. Kneeling at the Sacrament Privat Communion Privat Baptism Confirmation of Children and the observing some Festival Dayes for conformity with the Church of England as far as was possible Which Articles are here Ratifi'd in Parliament nor is there any standing Law made since to abrogat them albeit for Peaces sake they have not been much observ'd VId. observ on Act 3 Par. 22 Ja. 6. Supra IN this Act it is warranted that such as Compris'd great Estates for small sums did notwithstanding possess the whole Rents for payment of their small Annualrent and therefore to Correct this it is ordain'd by this Act that the Comprizer shall impute in payment of his principal sum the superplus of the Rents of the Lands intrometted with by him and the true reason of the former Custom was because by the 37 Act Par. 5. Ja. 3. The Lands Comprized were to be adjusted by the Sheriff with the sums Comprized for and so the Rent was at first but answerable to the Annualrent though thereafter all being Comprised the Compriser appropriated all the Rents without imputing as said is Observ. 2. That this Act makes only the Compriser lyable for his actual intromission and it has been found that the Compriser is not bound to intromet But yet this is so severe to the poor Debitor and the other Comprisers all whom the first Compriser may debar and so suffer the Tennents to Bankrupt and the Lands to become waste that therefore if a Compriser once intromet he is bound to continue his intromission and where there are Tacks standing he is bound to do Diligence February 9. 1639. or where there are moe Comprisers the Lords may force the first Compriser to do Diligence or if he do not betwixt and such a time yearly they may allow access for the second to enter to the Possession February 11. 1636. July 1662. Or if the first Compriser exclude any Diligence that the second is using he will eo ipso
at due Rates but Teinds holden of Collegiat Kirks are subject to buying and selling as other Teinds the 3. of February 1632. Though it would appear by this Act that every man shall only have the Leading and Drawing of his own Teind after the same is valu'd since the Act sayes the same being first truly and lawfully valued Yet if the Heretor intent a Pursuit for Valuation he will during the Dependence get liberty to lead his own Teinds if he offer Caution to pay his Teinds conform to the Valuation that shall be led July 14. 1630. But this benefit of leading is only granted to Heretors by the the foresaid Act and therefore no Liferent Tacks-man hath this benefit except the Liferent be Constitute by Infestment of Conjunct-fee or the like November 30. 1631. Neither can Rentallers or Tennents crave this benefit ex eodem capiâ—e March 8. 1630. It is only granted likewise to such Heretors whose Teinds were drawn before but not to these who pay'd Rental-bolls July 24. 1635. And yet the contrary is found the 3. of July 1643 But the Heretor may have the leading of his own Teinds though he does not instruct a publick Infeftment if he shew that he is not in mora to be Infest and that he is the person who should be Infest July 6. 1642. But the Teinds belonging to Church-men whereof they were in possession the time of the Submission are not to be led upon Caution and yet by a Missive the 9. of May 1634. His Majesty declares His Favour not to be extended to their Tacks-men being Laicks but that during these Tacks the Heretor may lead he finding Caution as said is By the Submission the Decreets following thereupon and the express words of this Act Ministers are to be provided before the Heretors have liberty to buy or value and therefore the Titular may allocat what Teinds he pleases towards the Maintainance of the Minister and the Heretor eo casu cannot force the Titular to sell February 17. 1645. But though the Kirk be not provided yet the Heretor may buy his Teinds if he be content to undergo his part of the augmentation when it shall be granted the 20. of January 1645. Earl of Hadington contra the Laird of Bairfuird So that it appears that albeit a Titular may assign any one mans whole Teinds towards the Ministers Maintainance when there is no present provision yet if there be any though it be small he may not but the same should burthen proportionally the whole free Teinds of the Paroch where there is a present provision and where the Teinds are once bought the Heretor will not be burdened as long as there is any Tack-duties free in the Titulars hands February 15. 1643. But the Tacks-man will not be found lyable in the said Relief January 27. 1635. But if there be no free Teinds in his hand then the Buyers and all the Heretors must be burdened with the augmentation January 16. 1635. It seems that the Titular cannot assign the Teinds of one Paroch for paying the Stipend of another For by this Act it is said That the Teinds shall be burdened with the Stipend of the Minister serving the Cure of the Kirk But the Commission allocats sometimes the Teinds of one Paroch to make up a Stipend to the adjacent Paroch if the Minister of the Paroch out of which the free Teinds are allocated be competently provided for the Commission thinks the Teinds as the Spirituality of the Church to be burdenable in general and yet if this argument prove any thing it will prove there can be no free Teinds as long as there is any Minister in Scotland unprovided competently BY this Act the Exchequer is Declar'd a Soveraign Court and power is given them to pass and discuss Suspensions and to Decern in all things concerning His Majesties Property and all things concerning the Annuities of Teind which was the particular reason of making this Act at this time but because of this Act giving them power to decide every thing relating to the Property therefore by the 59 Act Par. 1 Sess. Ch. 2. It is declared that the deciding concerning the validity and invalidity of Infestments shall only belong to the Session And whereas this Act allows the Exchequer only to proceed in things relating to His Majesties Property and others depending thereon that Act declares they have liberty to judge in all things relating to His Majesties Rents and Casualities as they might have done before the year 1633. And it being doubted whether the Lords of the Session were Judges competent to the Discussing Suspensions rais'd against the Customers by the Masters of Manufactories who pretended that as to goods imported for the use of their Manufactories they were free from Custom the Lords did justly determine that thogh the Exchequer were only Judges Competent to Discuss Suspensions as to Customs or any part of His Majesties Revenue where the same were due by a clear Law or constant use of payment yet the Lords of the Session were Judges Competent to clear what was due by Law and to interpret Acts of Parliament Nota The Act of Parliament alleadg'd to be made upon the 22. of May 1584. Concerning the Exchequer Ratifi'd by this Act can neither be found amongst the Printed nor the Un-printed Acts. Though by vertue of this Clause and a Letter from His Majesty It is declar'd That the Exchequer are Judges competent to liquidat Wards and Marriages and that the Exchequer has decided in some such cases Yet regulariter the Session are only Judges Competent to such Actions and albeit the Session be only Judges Competent to Contravention of Law-borrows yet after the Contravention is Decided in His Majesties favours if the party against whom the Decreet is obtain'd Suspend the same the Charge being at His Majesties Instance it ought only to be Judg'd by the Exchequer that being a Casuality already stated and the point of Law being already determin'd although it be alleadg'd that this being a Suspension of the Lords of the Sessions Decreet it should only be Discuss'd before them ob continentiam causae Though by the 25. Act Par. 16. Ja. 6. It is appointed that all Hornings henorth d ee shall be upon no less than fifteen Dayes Yet that is to be restricted as has been there observ'd in Cases before the Council for by this Act all Charges of Execution before the Exchequer are to be upon twenty dayes upon the North-side of Dee and ten days upon the South-side of Dee THis Act is the first Commission granted for valuing of Teinds conform to the Surrender and Decreets Arbitral pronunced thereupon which Commission is renew'd in several subsequent Parliaments And for clearing somewhat of The Form of Process before that Court it is fit to know that all Dyets before the Commission are with Continuation and because of their uncertain sitting there needs no Wakening all Procurators appearing before them should have Written
18 Act Par. 1 Ch. 1. But by a Letter in anno 1663. The Chancellour is Discharg'd to preside in Exchequer and this shâ—ws his innate power to dispense with Acts of Parliament which relate only to Government and His own Service Observ. 4. That though by vertue of this Act it may be pretended that the Chancellour may preside in the Justice or Admiral Court if he pleases to be present Yet I conceive he cannot come to any of these Courts without a special Nomination and even this Act says That the Chancellour and such as shall be nominat by His Majesty shall preside This Act likewise sets down the Oath of Allegiance wherein the King is acknowledg'd to be Supream over all Persons and in all Causes which is founded upon the 2 Act Par. 18 Ja. 6. and is the foundation of the Act of Supremacy which is the first Act of the 2 Par. Ch. 2. THe Parliament 1641. had taken from the King the Nomination of the Officers of State Counsellours and Judges and therefore by this Act the power of Nominating these Is declar'd to be a part of the Kings Royal Prerogative which is conform to the Law of all Nations l. unica ff ad l. Jul. de ambitu haec Lex hodie in urbe cessat quia ad curam Principis Magistratuum creatio pertinet non ad populi favorem By this Act also It is Declar'd that our Kings hold their Royal Power over this Kingdom from God which was exprest here to condemn that fundamental Treason of the last age which Taught That the King was subject to His People because He Deriv'd His Power from Them And from that they infer'd their power of Reforming and at last of Deposing the King But lest it might have been obtruded that though by this Act it be Declar'd That the King holds His Power from God alone Yet the holding it from God did not exclude the Interest of the People for all Men hold of God whatever they hold of others Therefore by the 5 Act of this Parliament It is Declar'd that our Kings hold their Crowns from God Almighty alone and lest it might still have been said That though the King holds His Power of God yet he Derives His Power from His People Therefore the Convention of Estates in their Letter to the King 1678. and the Estates of Parliament in the 2 Act 3 Par. Ch. 2. anno 1681. Acknowledge That He Derives His Power from God alone And though Conventions of Estates cannot make Laws yet it may be said that they may Declare and Acknowledge their Obedience as fully as Parliaments may Observ. That these words To hold the Crown from God is ill exprest For by our Law He that Holds from Me Holds not of Me for a me de me are Diametrically opposit in matters of Holdings THe former Rebellious Parliaments especially the Convention of Estates 1643. Did Sit without a special Warrand from His Majesty and therefore by this Act The Power of Calling Holding Proroging and Dissolving of Parliaments is Declar'd to be Inherent only in His Majestie as a part of His Royal Prerogative and therefore the 6 Act of this Parliament annulling in special Terms the said Convention 1643. was unnecessary I conceive that the word Proroguing here is us'd for Adjournment only though the Word in its property signifies only to Adjourn so as to make all the Overtures past in that Session to be null which distinction is unknown to and unnecessary with us The Impungers or Contraveeners of this Act are Declar'd by this Act guilty of Treason BY this the former Acts against Convocations and Leagues or Bonds are Ratifi'd and Discharg'd under the pain of Sedition and the keeping of all Assemblies and Meetings upon pretence of preserving the Kings Majesty or for the publick good are declar'd unlawful notwithstanding of these Glosses except in the ordinary Judicatures The Design of which Act was occasioned by and levelled against such Meetings as the Green Tables in anno 1637. Whereat the Nobility and Gentry did formally meet in great numbers though their Papers did alwise begin We the Noblemen Gentlemen and others occasionally met at Edinburgh THe former Rebellious Parliaments having rais'd Armies Fortifi'd Garisons and Treated with the French King without the Authority of their own King It is therefore declar'd by this Act That the Power of making Peace and War Resides solly in His Majesty and that to Rise or Continue in Arms or to make any Treaties or Leagues with Forraign Princes or amongst themselves shall be Treason Observ. 1. That by this Act the King is Declar'd to have the only power of Raising Armies and making Garrisons the Subjects alwayes being free of the Provision and Maintainance of these Forts and Armies and therefore it was asserted that free Quarter except in the Case of actual Rebellion was unlawful and that even then it behov'd to be warranted by a Parliament or Convention though it seems that Rebellions may be so sudden or Parliaments and Conventions so dangerous that free Quarter may be warranted by the Kings own Authority in cases of necessity and if any part of Scotland should rise in Rebellion it is not imaginable that they will either give Quarter for Pay or deserve to be pay'd and so to refuse the King the Power of free Quartering without Parliament or Convention in that case were to deny Him the Power of raising an Army without which it cannot be maintain'd But free Quarter is expresly Discharg'd by the 3 Act Par. 3 Ch. 2. Observ. 2. Some likewise think by this Clause that though the King may force Towns and adjacent Countreys to carry Baggage and Ammunition of His Souldiers the publick Good so requiring yet He must pay them for it since by this Act the King is to pay for the Provisions as well as Maintainance of the Army and to take away Countrey-mens-horses without pay is as great a Tax upon them as Free-quarter But yet our Kings have still been in use by immemorial Possession to exact such Carriage without payment and so the only Doubt remains Whether this Act Innovats the former Custom And whether the Subjects not seeking payment being merae facultatis prescrives against them jus non petendi Observ. 3. It has been controverted Whether though by this Act the King may Dispose upon all Forts Strengths and Garisons if He can thereby make any privat Mans House a Garison that was not so Originally it being pretended that if this were allow'd no man can be sure of his Dwelling-house which is the chief part of his Property but it cannot be deny'd but that all Houses with Battlements or turres pinnatae as Craig observes are inter regalia and of old could not be Built without the Kings special Licence and as to these the King may Garrison them for since He has the absolute power of making Peace and War it were absurd to deny Him the power of Garisoning convenient
places without which the War cannot be mannag'd It having been controverted whether the Earl of Caithness might Garison one of his Castles without express Warrand from the Council they found he could not though it was alleadg'd that he was a stranger in Caithness and the Countrey was broken For this Act of Parliament having Discharg'd all Garisoning of Houses upon any pretext whatsomever if it should be allow'd upon such pretexts as this not only would the express Letter of the Law be overturn'd but all persons dissaffected might Garison upon this pretext whereas on the other hand there can be no inconveniency since the Council will allow liberty to Garison and if present danger do press the Heretor he may Garison his House for his own Defence till he obtain that Order THis Act annulling the Convention of Estates 1643. was unnecessary it being formerly annull'd by the third Act of this Parliament THis Act Declaring the League and Covenant null and the Discharging the Renewing thereof under the Highest perril seems unclear because of the indeterminatness of the punishment and seems unnecessary because by the fourth Act of this Parliament Subjects making Leagues amongst themselves or with Forraigners are guilty of Treason THis Act does in the first part Command all Jesuits Priestâ—â— and Traffiquing Papists not to say Mass and to remove forth of the Kingdom within a Month under the pain of Death whereupon it was doubted whether within that Month they could be punished with Death else this Month had not only been elusory but might have prov'd a snare since they might have thought that this Month was allow'd for preparing for their Departure and so they might have appear'd and gone about their Business in order thereto By the second part of this Act Children are ordain'd to be taken from Parents Tutors or Curators Popishly affected that they may be bred with well affected Protestants at the sight of His Majesties Privy Council which Act is renew'd by a Proclamation of Council in January 1679. THough the Parliament 1648. be here Ratifi'd yet it is thereafter abrogated by the general Act Rescissory which is the fifteenth Act of this Parliament that not having been resolv'd upon till after this was past The Parliament 1649. is by this Act absolutely Rescinded and that without a general salvo and though by the Act Rescissory there is a general salvo in favours of the Rights and privat Securities past in other Parliaments as is clear by the last words of the 15 Act yet there is none subjoyn'd to this Parliament That Parliament 1649. had taken from Patrons the power of presenting they having conceiv'd it most Antchristian that the Minister who was to care for Souls should be chosen by one man and oftimes by one who would never hear him but they reserv'd to the Patron the Right of Teinds without prejudice to the present Stipend and therefore that Act is hereby Rescinded and Patrons restor'd to the power of Presentation and though it cannot be deny'd but that the people had a share in the Elections as is clear by Saint Cyprians Epistles yet this was when they pay'd them and were themselves very judicious and dis-interested in the infancy of Christianity and before Patrons had by founding Churches the interest they have now and now the people are by an Edict cited to Declare what they know why such a man should not be chosen And in the Reform'd Churches of Germany as Carpz in his jus Consist Relates the people have vocationem from which the Presbyterians borrow'd their Word Call By this Act it is Declar'd That such Parsons and Ministers as are in present possession of Kirks belonging to Laick Patrons shall claim no Right nor Possession but what they had before the making of this Act they being otherwise sufficiently provided THis Act was unnecessary because these Parliaments are taken away in the general Act Rescissory THis Act appoints all Officers of State to take the Oath of Allegeance and to assert under their Hands all the former Royal Prerogatives but now the Council do put the same to all who are suspected and Fine or Banish such as refuse to take it because the Act having left to the Council to put this Oath to any and having nam'd no penalty the penalty is to be understood arbitrary But now all who are in publick Trust take the Test appointed by the 6 Act 3 Par. Ch. 2. THis Act Confirms all Judicial proceedings under the Usurpers except when they were quarrel'd within a year and this Act having appointed that within that time the Sentences of the Usurpers might be quarrell'd without Suspension or Reduction and the Writ by which they were quarrel'd was call'd a Review which was in effect a Reduction and was like both in the Name and Matter to that revisio allow'd by the Civil Law THe Usurpers having by the Example of our Rebellious Parliaments laid on an Excise upon Bear and Ale this Loyal Parliament did grant His Majesty 40000 pounds Sterling to be uplifted yearly out of the Custome and Excise in manner mentioned in the 14 Act But it has been much doubted whether it had not been better to have continued the Excise upon the Bear and Ale than to have laid it upon the Malt for now Brewers endeavour to take as many Pints out of the Boll of Malt as they can which hinders much the consumption of the Malt by making the Drink weak whereas if it had been laid upon the Drink they would have endeavoured to make the Drink strong And for which Excise the Commissioners of the respective Shires are lyable personally and they have their Relief off the Deficients the Goods of which Deficients are hereby to be poinded without carrying them to the Mercat Cross they being apprised at the next Paroch Church Door which is like the priviledge given to Ministers Stipends by the 21 Act of the 3 Sess. of this Parliament Though by this Act the Excise is laid upon the Retailer of Commodities yet by the 12 Act Par. 2 Ch. 2. The Importers are declar'd to be lyable for the same Excise AFter this Parliament had Rescinded some privat Parliaments they considered that all the Parliaments from the year 1640. till the year 1650. were but Branches of one and the same Rebellion and therefore they did annul them all by this Act which is call'd The Act Rescissory But privat parties Rights obtain'd in these Parliaments are salved In this Act it is acknowledg'd by the Parliament That our Kings hold their Crowns immediatly from God Almighty which was done to exclude that Rebellious Republican and Sectarian Principle That our Kings deriv'd their Power from the People for if so then the people might call them to an accompt Depose or Suspend them and our very Stiles which acknowledge our Kings to be by the Grace of God does convince us that they are not Kings by the people and therefore Argentorat
pag. 206. Observes well that formula illa quae est in titulis Dei gratia utuntur illi soli qui nulli mortalium imperium suum debent vid. obs on the 251 Act Par. 15 Ja. 6. THis Act allowing the Government by Synods Presbytries and Sessions is Rescinded by the 1 Act of the 2 Sess. of this Parliament THis Act appointing a Solemn Aniversary Thanksgiving for His Majesties happy Restauration was scrupled at because this Act did appoint it to be set a-part as a Holy-day and therefore it was thought fit by the 12 Act of the 3 Sess. Par. 2 Ch. 2. To renew it as an Anniversary Thanksgiving leaving out the words Holy-Day THis Act against Cursing and Beating of Parents is fully Explain'd crim pract tit Paricide THis Act is Explain'd crim pract tit Blasphemy THis Act concerning casual Homicide is Explain'd crim pract tit Homicide but it is fit to add here that the Rubrick of this Act of Parliament bearing Act concerning the several Degrees of casual Homicide is very rediculous for the degrees mentioned in the Act are casual Homicide Homicide in lawful Defence and Homicide committed upon Thieves and no sober Lawyer can think that either Homicide in Defence or Homicide committed upon Thieves are degrees of casual Homicide BY this Act the whole priviledges belonging to the Colledge of Justice that is to say Senators Advocats Clerks Writers and remanent Members or whereof they have been in use or in possession at any time bygone are expresly Ratifi'd and that notwithstanding of whatsoever Act Custom or Practice to the contrary Vid. Act 8 Par. 2 Sess. 2 Ch. 2. Where the priviledge of Immunity from Taxes is only given to the Lords of Session Upon which Act it was Debated in December 1678. Whether Advocats should not be free from the Annuity impos'd by the Town of Edinburgh since they were by this Act freed from all Impositions and though by a special Act of this same Parliament Ch. 2. The Colledge of Justice was made lyable to the Annuity Yet they being free by this Act and the other Act being but an un-printed Act and an Act to which they were not call'd their priviledge could not be thereby taken away albeit it was contended that the being free from Annuity was no priviledge ever expresly Declared in their favours But on the contrary was a Debt upon them as Hearers of the Word of God and so the Parliament might very well by a general Law declare this Priviledge not to prejudge the Annuities nor was that Law concerning Annuities a special but a general Law binding all the people who came to live in Edinburgh and therefore there needed no party be cited nor was it necessary to the Essence of an Act of Parliament that it should be printed BY this Act the Creditors of the Defunct are prefer'd to the Creditors of the appearand Heir as to all Execution against the Defuncts Estate they doing Diligence within three years after the Defuncts Death which three years was found to be tempus continuum and not utile and that these three Years did run even contra non valentem agere December 19 1678. Paterson contra Bruce The reason of which Act of Parliament is that it is just that every mans Estate should pay his own Debt though upon the other hand it is likewise just that in the next place the appearand Heirs Creditors may likewise do Diligence even against that Estate to which their Creditor may succâ—ed Nor ought his voluntary lying out to prejudge them for which cause likewise it is that they may Charge the appearand Heir to Enter and Comprise or adjudge the Predecessors Estate BY this Act it is ordain'd that fourty dayes after the Sentence of Excommunication Letters may be rais'd at His Majesties Advocats instance for Denuncing the persons Excommunicat Rebels the Process being first revis'd by the Lords of the Session but this power of the Lords of the Session being made before the Bishops were Restor'd is abrogated by the 23 Act of the 3 Sess. of this Parliament BY this Act the person from whom Goods were Stollen is to have his Goods or the value thereof restor'd to him out of the readiest of the Thiefs Goods he alwise pursuing the Thief to Sentence Observ. 1. Since this Act reserves to the Sheriff or Takers of the Thief the expence war'd out by them in taking the Thief and putting him to â—xecution It seems that they ought to be prefer'd to the Owners of the Goods though the Act sayes that he is to be pay'd out of the readiest Observ. 2. It may be doubted whether the Justices or the Judge ordinary should Restore and though the Justices have no civil Jurisdiction yet I have seen them Restore in such Cases and this is in effect an incident Jurisdiction â—b continentiam causae Observ. 3. That it has been doubted whether third parties buying the Goods though in a publick Mercat are oblig'd to restore THis Act pardoning penal Statutes seems by a mistake to except Usury for Usury is properly a Crime punishable by all Law at all times Whereas a penal Statute is properly a Statute which punishes a Delinquency that is only punishable upon some occasions by an arbitrary punishment and therefore Acts of Grace or general Indemnities Discharging the Execution of penal Statutes should no more be extended to Usury than it should be extended to Murther or Adultery and Usury is by the Act of Indemnity which is the 29 Act 3 Sess. of this Parliament excepted from that Indemnity amongst Murderers Thefts and other Crimes of that Nature and it was excepted only in this Act ad majorem cautelam because the Chancellour had then the Gift of Usury What are properly counted penal Statutes may be seen Act 9 Par. 21 Ja. 6. Where amongst other Crimes Usury is ordain'd to be punish'd and not to be pardon'd as a penal Statute and if Usury fell under penal Statutes it would very much encourage Usury for men would still expect a Discharge of it because penal Statutes are frequently Discharg'd But yet the Lords in the case betwixt the Laird of Haining and Cruick found that Usury was Discharg'd by the Act of Grace 1674. because of the special conception of that Act. BY this Act the Quots of Testaments are taken from the Commissars but upon the Restoring of Bishops this Act is abrogated by the 1 Act and 2 Sess. of this Parliament THis Act is formerly Explain'd Act 77 Par. 13 Act 10 Par. 18 Ja. 6. THis Act is formerly Explain'd in the 14 Act Par. 1 Ch. 1. BY this Act all Comprisings are to be allow'd within sixty dayes after the date thereof with Certification that if they be not allow'd and Recorded within that space a posterior Comprising first Recorded shall be prefer'd thereto and upon the 8 of June 1665. The Lords upon a Supplication ordain'd a Comprising to be allow'd
though the person against whom the Comprising was led was dead and the sixty dayes were expir'd and found that notwithstanding thereof it should be prefer'd to a Comprising whereof the allowance was Registrated after its Registration Observ. 2. That by this Act a Comprysing is not declar'd null for not being allow'd and so was not excluded by a posterior apprysing first allow'd but both were brought in pari passu which last part of the Decision may seem strange since it is expresly declar'd by this Act that the not allowance shall be with Certification that a posterior Comprising first allow'd shall be prefer'd according to the date of the allowance November 29. 1672. Maxton contra Cunninghame and so they could not come in pari passu But the reason of this Decision must be that by the posterior Act 62. of this same Parliament all Comprysings led within year and day of others are ordain'd to be brought in pari passu and these Comprisings have been led within year and day though the Decision mention not this And this I find decided July 17. 1668. Stuart contra Murray Observ. 3. That if the Appryser has obtain'd Infeftment without allowance he will be prefer'd because as I think his Infeftment being Registrated in that case supplies the not Registration of his allowance and Certiorats singular Successors sufficiently Observ. 4 This Act Narrats that it was ordain'd formerly by Act of Secret Council that the whole Comprisings and not a Breviat should be Registrated Which not being authoriz'd by any Law or Act of Parliament is therefore Discharg'd from which it appears that the Secret Council use not only to make Acts relating to Government or to regular prices of Writs as appears by the 19 Act 23 Par. Ja. 6. Or to discharge Bakers and Candle-makers to keep their Broom-stacks or Melting-houses within Towns as in the 29 Act 23 Par. Ja. 6. But even to make Acts relating to Registration and Competition of Writs which though the Parliament does here openly condemn yet tacitly this Act declares their Act was no Law and they could less have made such an Act than the Lords could have made an Act of Sederunt ordaining Seasins within Burgh to be Registrated which they found only the Parliament could do and it is observable also that this Act of Council did therefore soon run in Desuetude and the Parliament confirms the contrary Custom Observ. 5. This Act Narrats that by a Custom allowances of Apprysings did contain and express the Names and Designations of the Apprysers the Names of the Defenders whereas it should have said Debitors though the Debitor be a Defender in the Comprysing which is a Decreet the Debts for which the Comprising is Deduc'd the Messengers and the Clerks names the Date of the Executions the Witnesses names thereto and the Superiours names which Custom being authoriz'd by this Act it may be doubted if the omiting any of these particulars in the Registrated allowance would annul the same since the Act does not subjoyn an irritancy THe difference concerning Heretable and Moveable Bonds is fully Explain'd in my Institut Part 2. tit 2. BY this Act these who Marry themselves Clandestinly or inorderly are to be imprison'd for three Moneths and beside to pay each Nobleman a Thousand Pounds each Baron and Landed Gentleman a Thousand Merks each Gentleman and Burges five hundred Pounds each other person an hundred merks Observ. 1. The want of the Parents consent or of the consent of others having interest seems by the Narrative to infer the Clandestinness of the Marriage But yet by our practique Children Marrying without the consent of their Parents if they be of age and the Marriage otherwise regular they are not punishable wherein we seem to agree rather with the Counsel of Trent than either with the Law of God Exod. 22. and 17. Numb 30 Deut. 7.3 Or the Civil Law Institut de nuptiis l. 2. ff de Ritu nupt Observ. 2. That it may be doubted whether since this Act appoints no punishment to Women if a Noble-woman being an Heretrix Marry a Gentleman Disorderly she may be punish'd as a Noble-woman or he only as a Gentleman and I think she should be punisht as a Noble-woman having precedency as such Observ. 3. That it has been doubted if an Expectant having power to Preach and being appointed a Presbyter but having no settled Kirk and Marrying persons the Marriage can be punished Or if such as Marry by a lawful Minister of another Paroch without Warrand either from the Bishop or the Minister of their own Paroch may be punished by this Act. Observ. 4. By the 9 Act Sess. 3 Par. 2. Ch. 2. Such as enter into these Disorderly Marriages lose their jus mariti or jus relictae by and attour the penalties here express'd Observ. 5. That the Marrying in England or Ireland without proclamation of Bonds in Scotland and against the Order observ'd in this Church infers the former Fines but the Marrying without proclamation of Bonds is not per se sufficient and therefore if there be a Dispensation from the Bishop Quaer if the Marriage is not Clandestine and it seems it is not for the Bishop may be mis-inform'd as if the Woman wanted parents And by the Narrative of this Act the want of the parents consent is made an impediment as well as the having granted a prior promise to another and therefore as the Bishops Warrand should not defend in the one case so neither should it in the other but it is still periâ—ulo petentis else Bishops should innocently become the Instruments of Robbing us of our Children and Estates and of taking them away in such manner as that parents can neither see their Daughters provided to competent Jointures by the Husband nor the Husbands who Marry them sufficiently provided by the Father in Law Quaer 2. Whether is the consent of the Mother necessary when the Father is Dead and I conceive it is especially when she is intrusted by the Father and the Child stays with her for though the Daughter be not in potestate materna yet she is a Parent and this Act requires the consent of Parents and the Instituts tell us that naturalis civilis ratio requirit consensum parentum nor can it be deny'd but the Mother has an equal natural Relation and by this Interest Law incourages and rewards the Mothers pains Quaer 3. What if the parents refuse reasonable offers and yet the Child is Marriageable To which it is answer'd That the consent should be first askt and why they refuse that the Judge may when the parent thereafter complains consider if the parent was culpable in refusing his consent Quaer 4. If the being Married by their own Minister without proclamation or Dispensation from the Bishop be sufficient and though the Minister have a Warrand from the Bishop Yet by Act of Synod he is discharged to Marry in a privat House except the Warrand dispense therewith
within year and day thereof December 12. 1666. Hume contra Hume For clearing this and all other Acts of Parliament which appoint Diligences to be done within year and day It is fit to know that the year is the time design'd by these Acts and the day is adjected only ad majorem evidentiam and therefore dies ille inceptus pro completo habetur February 25 1680. Weddel contra Salmond Where the Husband was found to have the Tocher though the Wife liv'd not the intire day following the year but died in the morning of that adjected day Observ. 2. That the first effectual Comprysing is interpreted to be a Decreet of Apprysing whereupon Infeftment follows and therefore if the second Comprysing be led within year and day after Infeftment was taken upon the first it will not come in pari passu with it except it be within year and day of the Decreet of Apprysing for the first Comprysing was expir'd and so the next Creditor could Comprise nothing so that his Comprising could not come in pari passu Which was so decided Albeit it was alleadg'd that by this Act all Comprysings led within year and day are fictione juris to be repute as if one and the same Comprysing had been led for all the sums contained in all these Comprysings quo casu one of the Creditors Rights could not have expired in prejudice of another and in effect this year is a new Prorogation of the Legal quoad that Con-creditor who has led his Comprysing within year and day of the other July 4. 1671. Laird of Balsour contra Dowglas Upon this Clause it was also Debated very subtilly whether an Infeftment of Annualrent having interveen'd betwixt a prior Comprysing and other posterior Apprysings could be prefer'd to the posterior Apprysings for all these Comprysings having been led within year and day It was alleadg'd that by this Statute they behoved to come in pari passu as if one Comprysing had been led for all and therefore since the first was preferable to the Infeftment of Annualrent so should the rest though posterior to it But to this it being answered that the meaning of the Act was That Comprysings led within year and day should come in pari passu only in competition with one another but that Infeftments of Annualrents or other Rights could not be postpon'd to posterior Rights for which Annualrents if the Creditor had Compris'd he had been prefer'd The Lords brought them all in pari passu the matter being dubious and the doubt arising on the unclearness of a new Statute February 6. 1673 Brown of Colstoun contra Nicolas which shews what 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Lords have and what is done for clearing of new Statutes Observ. 3. That this Computation is only to be made with respect to the first effectual Comprising and therefore though it be extinguished by Discharge or Intromission Yet the third Compriser will not upon this Act of Parliament come in pari passu with the second upon pretence that the second becomes first by extinguishing the first Comprysing Decemb. 13. 1672. Street contra the Earl of Northesk Obser. 4. That this Act of Parliament being Correctory of a former Law was found not to be drawn back so as to make such as intrometted prior to that Act oblig'd to Communicat their Intromissions before the Act though their Comprysings were led within year and day the Intrometter having been bona fide possessor January 7. 1665. Grahame contra Brown But yet some think that after the Act 〈◊〉 first Compryser will be lyable for his Intromissions and to Communicat them with a second Compryser Comprysing within year and day from the very date of the second Comprysing and not from the Date of a Citation only for though it may be alleadg'd that before a Citation a second Compryser is bona fide possessor and is not oblig'd to know that there was a second Comprising or whether he was pay'd aliunde Yet to this it may be answered that by this Act the first Compryser is to count as if the same Comprysing had been led for both the Debts quo casu Intromissions would have been Communicated even before Citation and by the foresaid Decision The Lords found that bona fides Defended only as to Intromissions prior to the Act Ergo it did not Defend as to Intromissions subsequent to the Act. Observ. 5. That this Clause of the Act is somewhat innovated by the 22 Act Sess. 3. of this Parliament whereby in favours of those posterior Comprisers who bought in the first Comprising to prevent its expiration It is Declar'd That the first Comprising so standing in their person shall not be brought in pari passu with other Comprysings though led within year and day But it being doubted whether that Act of Parliament should only secure such as were necessitated to buy in the first Comprysing Because that seems to be the Design of the Legislator Yet the Lords extended it to all Comprisings so bought in the Statutory words being general December 9. 1664. Veatch contra Williamson Observ. 6. That since posterior Comprysers were brought in pari passu with the first Compryser It was justly ordered by this Act That the first Compryser should be pay'd of his Expenses by the posterior Comprysers which was found to extend to all the Expenses laid out by the first Compryser who is to contribute no part thereof himself that being all he has in recompense of their coming in pari passu But quaritur whether if one of these Comprysers were only pursuing to come in if he would be oblig'd to pay all the Expence or pro rata off his sums And I think he would be oblig'd to pay all reserving his Relief It is likewise doubted whether one of many Comprysers coming so in will have Right to any more than proportionally to his sums all the rest remaining with the first Compryser till the rest of the Comprysers seek to come in or if that Compryser will force the first compryser to divide with him according to the proportion of their two sums only without respect to the other Comprysers till they come in Observ. 7. That Comprysings led for real Debts and debita fundi remain as formerly so that Comprysings led within year and day come not in pari passu with Comprysings led upon these real Debts such as Ground-annuals Annualrents due upon Infeftments or sums whereupon Inhibition was rais'd for clearing whereof it is fit to know that debita fundi are either when Lands are burdened by an express Act of Parliament which makes the burden real and to affect the Ground against singular Successors Or 2. What is pay'd to a Superior as a part of his Reddendo are likewise debita fundi and do in like manner affect the Land Observ. 8. That though Adjudications and Comprysings have generally the same priviledges Yet where Adjudications are not led for liquid sums but are granted by the Lords for
before the other Act allowed the Importation of them and the Parliament in the Narrative of this Act Declares That the King had done this upon good Considerations THis Act for preventing the fraudulent mixture of the Finer sort of Tinn with baser Mettle has ordained the Peutherers to put their Name with the Thiâ—â—le and the Deacons Mark upon their Work and that the same be as fine as the Peuther of England marked with the Rose It may be argu'd that this Act does not hinder all mixture of Lead and Tinn for one pound of Lead must necessarly be mixt with two pound of Tinn to make it work The Peutherers and Plumbers are with us under one Deacon we had no Plumbers till of late our Peutherers of old having been our only Plumbers but now it is pretended from this Act and upon other grounds that the Peutherers should not work in Lead THis Act Discharging Advocations from inferiour Courts for sums within 200 merks did not except the members of the Colledge of Justice and therefore by the 16 Article of the Act for Regulating the Session Causes belonging to the Members and sums due to Merchants Cooks Vintners and others in Burgh for Furniture taken off from them by such as dwell not within the Shire where the Furniture was taken off are expresly excepted from this Act and because this Act wanted a Sanction or Penalty therefore by that seventeenth article the Clerk of the Bills is ordained not to present pass or write on any such Bill at his peril because this Act of Parliament sayes That the Lords shall not pass any such Advocations for Causes which may competently be decided by inferiour Judges Therefore it is ordained by the 16 Article foresaid That when the Lords pass any such Advocations for sums within two hundred merks they shall write upon the back of the Bill that the Lords have found sufficient ground why the Cause should not be pursu'd in the first Instance before the Inferiour Judge and this was done to prevent any mistake and to cause this Act be carefully Observ'd THis Act is formerly Explain'd in the 6 Act of the 23 Par. Ja. 6. THe Exportation of Money being Discharg'd by many Acts as Ja 3 Par. 1 Act 8. Ja 1 Par. 6 Act 84. For making these Acts effectual By this Act every Skipper and Merchant is oblig'd upon Oath to Declare before the Thesaurer Thesaurer-depute or such as are appointed by them that they shall not carry abroad any more Money than is able to make their Expence to the next Port and to reveal either before or after the Voyage any who does and that a Book shall be keeped in Exchequer for that effect but this Act is not exactly observ'd BEcause by the 40 Act Par. 6 Q Mary The carrying of Victuals Tallow or Flesh out of the Countrey was then Discharg'd under the pain of Escheating the same Victuals having been then scarce Therefore by this Act it is Declared lawful to Export Corns when the Wheat is under twelve pounds the Bear and Barly under eight pounds Oats and Pease under eight merks the Boll and also to Export all sorts of barrell'd Flesh for nineteen years free from Custom and Bullion but the Custom and Bullion here impos'd upon Corns Exported is absolutely discharg'd by the 14 Act Par. 2 Ch. 2. It may be observ'd from the former Act of Q. Mary That Skippers are not regularly lyable for Transporting Merchandise forbidden by Acts of Parliament except the Sanction of the Act do expresly strick against them since that Act is appointed to be extended to Masters and Skippers as well as Owners of the Goods for beside that the Parliament thought fit to express them which they needed not have done if the Act had imported it these words this Act to be extended seem to imply that the Act naturally did not import it for to extend an Act or any thing else is to carry it beyond its natural import THis Act Imposing great Impositions upon English Commodities for the advantage of our own Manufactories is in force but not in observance and one of the great dis-advantages of Setting the Kings Customs in Tacks is that it is the Tacks-mens interest that all Prohibited Commodities be brought in for the advantage they get by their paying Custom and for conniving at the bringing them in BY this Act there is a great Custom Imposed upon Victual brought from Ireland But thereafter by the 3 Act 3 Sess. Par. 2 Ch. 2. Importing of Irish Victual is totally discharged THis Act is formerly Explain'd in the 63 Act Par. 11. Ja. 6. But it is further observable that by this Act it is Declared the Duty of all Sâ—eriffs Steuarts and Baillies of Regality to cause apprehend all Rebels and to count for their Escheats and to punish all the Contemners of His Majesties Authority and this is Declar'd to be both by Law and the nature of their Office a Duty incumbent to them and therefore it is fit that Sheriffs and others advert to this THis Act Ratifies by mistake the 4 Act Par. 6 Ja. 6. But the Act that should have been cited is the 74 Act of that Parliament This Act Ratifies also the 168 Act of this 15 Parliament but it should have cited the 268. The Act it self provides for the maintainance of Beggars and Manufactures by putting the one in the other but the Act was never observ'd though in it self it be a very excellent Act. THese Acts are Explain'd in the 96 Act Par. 6 Ja. 4. But for further clearing of the Act 16 It is sit to know that though Coals were forbidden of old to be Exported by the 84 Act Par. 9 Q. Mary Yet when they grew more frequent they were allowed to be Transported and Custom and Bullion is put upon them viz. Two ounces of Bullion for every four Chalders Coals as is clear by the 37 Act Par. 1 Ch. 2. and by this Act the Culross Chalder is Declared to be the measure by which the Custom and Bullion is to be Exacted because as I conceive that was the least of all Chalders The Lothian Chalder of Coals being generally a third more but thereafter Bullion being only Impos'd upon Goods Imported Coals do now pay no Bullion for Exporters pay no Bullion and there are no Coals Imported to this Nation THe keeping Mercats upon Sunday was Discharged 122 Act Par. 12 Ja. 6. and by this Act they are Discharg'd to be kept upon Munday or Saturday lest people might be oblig'd to Travel to and from Mercats on the Sabbath But by that Act it was appointed that they should keep them upon any other Day not being the Mercat-Day of the next Burgh which provision in favours of the next Burghs was ill forgot here vide the Observations upon that Act. THis Act is formerly Explain'd in the Observations upon the Act 48 Par. 3 Ja. 6. and the 7 Act 3 Sess. 1
Par. Ch. 2. THis Act is Explain'd in the 62 Act Par. 1 Sess. 1 Ch. 2. THis Act is Explain'd in the 25 Act of the 1 Sess. Par. 1 Ch. 2. THe Bishops having consented by this Act to the Imposition upon themselves in favourâ— of Universities it is Declar'd That this Act shall be no preparative for laying on any burden upon the Clergy hereafter without their own consent From which it may be argu'd that though all the rest of the Parliament should consent to an Imposition upon the Clergy yet that would not be valid except they themselves consented to it though the Imposition were carry'd by plurality of Votes but this Inference is not concluding for the Parliament is a Collective Body Compos'd of the King and three Estates in which the major part determines the rest and if this were granted to the Clergy they being but a third Estate every one of the other two Estates might pretend the like and so each Estate should have a Negative as well as the King Whereas not only Craig has Determined that the Parliament may make an Act without the consent of any one of the States having stated this question expresly But we see that the Burrows having unanimously dissented from the 5 Act of the 3 Session of the second Parliament concerning the Priviledges of Burghs-Royal the same was notwithstanding past in Parliament and we all remember the memorable story of the Burrows rising and leaving the Rebellious Parliaments 1649. before the Parliament passed the Act for allowing the value of Annualrents whereupon a worthy Peer said that since they had sitten so long without the Head they might well enough sit without the Tail BY the 14 Act of the 1 Sess. of this Parl. the Annuity of 40000 pounds Sterling being granted to His Majesty to be uplifted out of the Excise in manner mentioned in the said Act by this Act the proportion of the said Excise is Regulated and laid on upon the several Shires and Burghs accordingly Nota. This is the only Act wherein I find the word Grievances BY this Act the Militia of 20000 Foot and 2000 Horse is Establish'd which was found not to take off the Obligation of rising betwixt 60 and 16 according to the ancient Laws for attending the Kings Host when called for This Act Declares That if His Majesty have further use for their service they will be ready every man betwixt sixty and sixteen to joyn and hazard their Lives and Fortunes as they shall be call'd for by His Majesty and though it be pretended that at least they cannot be called betwixt sixty and sixteen by this Act without an express Order from the King The words running When call'd for by His Majesty without adding or the Council in this Clause as it did in the former immediat Clause of this same Act and which shews that this was designedly omited in this Clause yet we see that the Council does call to the Host all betwixt sixty and sixteen without express Warrand from the King and that the Justices fine such as are absent upon these Proclamations and which is very just because the King is still presumed to be in the Council sictione juris they Re-presenting by their Commission His Royal Person and we see by many Instances that Rebellions may rise before any such Warrand can come from the King By this Act it is Declar'd That these Forces shall be in readiness as they sâ—all be call'd fâ—r by His Majesty to march to any part of His Dominions of Scotland England or Ireland for suppressing of any Forraign Invasion Intestine Trouble or Insurrection or for any other service wherein His Majesties Honour Authority or Greâ—tness may be concerned Which Clause was much excepted against by some in the Parliament of England as if Scotland had thereby design'd to Authorize the Invading of them but it cannot be properly said to be an Invading of them if we be call'd by the King and the Calling of Subjects etiam extra territorium is inter reservata principi and a just Right of all Kings as is clear by Castal de Imperatore quaest 57. num 57 And the Subjects of this Kingdom have been oft-times fined and Foâ—efaulted for not attending the Kings Host when they were called to Invade England nor could any War be mannaged or Rebellion supprest even in the justest Cases without this BY this Act the Ordering and Disposing of Trade with Forraign Countâ—â—â—s is Declared to be His Majesties Prerogative and though it be alleadged that this Act was only Design'd as a power to His Majesty for the better Debarring English Commodities whereby to bring both the Nations to an equal ballance of Trade which Design was said to have been then represented to the Parliament as the only Motive for making this Act and that if this were allowed in its full extent our Kings might by Debarring us from Iron Copper Timber Spices and other necessars force us to any Condescendencies or might by this Prerogative grant Monopolies at their pleasure Yet I see not how this Gloss is consistent with the general words of the Act or with our Declaring that this by the Law of Nations belongs to all free Princes Or with subsequent Parliaments allowing the priviledges granted to the Fishing Company the prohibiting of Brandy and other strong Waters and several other things which are founded solely upon this Act. It may be Debated whether under the word Forraigners the English may be comprehended since we are not Treated by them as Forraigners in the point of Succession it being frequently decided amongst them that the Scots may succeed to Heretage in England notwithstanding of their Statute debarring alibi natos and why then should they be repute as Forraigners to us in the matter of Trade and this were indeed solid Reason for both Nations but since the English debar us from their Plantations and look upon us as Forraigners in the point of Trade it is just that we should give them the same measure King CHARLES 2. Parliament 2. Session 1. IT is observable that in all the Sessions of this Parliament the particular day of the Month whereupon the respective Acts were past is set down and yet since the Acts are to take effect not from the passing but from the publication as is clear by the 3 Act of this Parliament it would have seem'd more rational to have set down the day of the Publication To which nothing can be answered but that the Laws are presum'd to be publish'd the day they were past in In no former Parliament the day is set down but the whole Parliament is said to be held upon such a day and the old use was that the Articles prepar'd all the Acts and they were all past in one day THis Act Declaring the Kings Supremacy in Ecclesiastick Causes is formerly explain'd in the Observations upon the 2 Act Par. 18. Ja. 6. IT is observable from this
For though these be Heretable yet they are but Temporary Rights being Redeemable there is another Paper Register likewise for Retours Of old the precept of Seasin did pass the Quarter-Seal But because that was expensive and troublesome therefore they are now ordain'd to be ingrossed in the Charter and so pass the Great Seal only By this Act likewise Charters which were formerly in a large Skin of Parchment are by this Act ordain'd to be Written by way of a Book that they may thereby be the more commodiously Read the Line being very much shorter in the one than in the other BY an old Custom in Scotland Burgesses might have arrested Strangers if they found them within their Burgh till they faud Caution to pay them what was due But by this Act this is Restricted to Horse or Mans Meat AbuilÈiments or other Merchandise for which they have no security which Act was found not to extend to such as lived upon the Borders of either Kingdoms The Custom having been amongst the Borderers of each side to cause one another find Caution judicio sisti judicatum solvi lest otherwise the English might have drawn the Scots to London or the Scots the English to our Session Laws unknown to either and therefore since the English continued this Custom after this Act of Parliament it was fit that the Scots should have the like priviledge of arresting such as dwell in England January 13. 1676. Bell contra Robertson and it was found by the Council that the same Custom had been and therefore should be allow'd to Sheriffs and other Magistrates without Burgh so that the Sheriff upon the borders may arrest any English-man till he find Caution judicio sisti judicatum solvi By this Act Burghs of Regality and Barony are discharged to arrest or Incarcerat any person who are not Burgesses or Inhabitants in their Burghs for any manner of Debt which seems to imply that they may arrest their own Burgesses who are Inhabitants Likeas de facto they use to arrest such This Act having Discharg'd all such arrestments except for Horse or Mans Meat AbuilÈiments or other Merchandize The Lords February 22. 1677. Found that a Merchant could not arrest a stranger within Burgh until he should find Caution to answer as Law will for payment of the price of a Bargain of Victual which had fallen to the said Burges as a part of his Fathers Stipend and consequently was of the nature of other Ferms though it was alleadged that this did fall under the word Merchandise and that Corn so falling to be due might as well fall under this Act as a Merchands Shop falling under Executry or Legacy THis Act Ordains that no person shall Ordain or be Ordained Ministers except in the way prescriv'd by the present Government of the Church under the pain of Banishment and Confiscation and whosoever shall be married within this Kingdom by the foresaid persons or any not authorized they shall amit and lose any Right or Interest they may have by that Marriage jure mariti vel jure relicti and that by and attour the penalty contained in the Act 1661 which is the 34 Act Par. 1 Ch. 2. Upon this Act His Majesty having Gifted the jus mariti of Hume of Kimmorghame who had Marâ—ied the young Lady Aiton and a Declarator being pursu'd at the Donatars Instance· It was alleadg'd That first The person who Married them had a Licence from the Arch-bishop of St. Andrews to Preach 2. That the jus mariti was not declared by this Act to fall to the King but only that the Husband had amitted the same and that the King can have Right to no Confiscation except where the same is expresly declared to belong to Him by the Statute which inflicts the Confiscation To which it was answered That as to the first no man could Marry any within the Paroch of any Minister without leave from that Minister who could only understand whether the parties might be Married lawfully nor is the being ordained a Presbyter sufficient since that gives only power to Preach but not to Baptize or Marry Marriage especially requiring Proclamation of Bonds which is de officio Parochi To the second it was answered that by Law all Confiscations cedunt fisco whether the Act appoint so or not this being the very nature of Confiscation as is clear by Peregrin de jur fiâ—â— lib. 4. cap 8. num 9. For cui competit accusatio ei desertur poena nam poena est effectus tantum accusationis and Penalties being introduc'd in solâ—â—ium ejus cui fiâ— injuria that should belong to the King to whom the Injury was done 2. The design of the Act was to punish such as Transgressed and contemned the Government of the Church whereas it were no punishment for the Husband to lose his jus mariti if the same fell to the Wife 3. If it fell to the Wife she was uncapable of it being in the same Delict 4. Nothing by our Law can subsist in the person of the Wife and therefore if the Husband do Renounce his jus mariti in favours of the Wife it does by our Law return to the Husband 5. If this were allow'd not only might the Wife in other Cases and particularly in this be Rewarded for Transgressing the Law since for Marrying irregularly she would have â—â—ight to the jus mariti of her Husband but this would prompt all humorous Women to Marry irregularly that they might get a jus mariti and Administration of their Husbands Estate and Dominion over him 6. If this were allow'd the Husbands Creditors might be easily cheated for they might Marry disorderly and so their Creditors could have no Right to the jus mariti and this would open a Door to those Frauds against which our Law has so seriously guarded It may be doubted from these words of the Act Whosoever shall be married within this Kingdom that such as are Married without the Kingdom incur not this Penalty though they should go upon Design which if it were allow'd would frustrat absolutly the Act for the Transgressors might still go over the Border and be Married and by the said 34 Act Par. 1. All persons having their Residence in Scotland are discharged to get themselves married in England or Ireland without Proclamation in Scotland and since the Law looks upon actus elusorios as inefficaces so that if a man should go out of Scotland to shun a Citation to the end another Compriser may be prefer'd coming back after he is Cited by the first upon sixty Dayes to the end the second may Cite him upon a shorter time and so be able to lead the first Comprising the first Citation would be preferr'd and consequently it were unjust that this which is a greater Collusion should be allow'd THis Sumptuary Law against Apparrel is restricted and Explained by the 3 Act Sess. 4. of this Parliament and the whole Act is now in Desuetude THis
Act is Explain'd in the 6 Act Sess. 2. of this Parliament THis Act is Explain'd in the 17 Act Par. 1 Sess. 1 Ch. 2. THis Act is Explain'd Act 4 Par. 3. Q. Mary IN all Retoures it is usually exprest whether or how the Lands are in his Majesties Hands as if they be in his Majesties Hands by vertue of Ward the Retour bears it but since the Retour did not use to bear the Taxt of the Marriage or of the Feu cum maritagio Therefore this Act appoints these to be exprest and the reason why I think these were not exprest formerly was because Taxt-Ward was a very late invention and Lands holding feu cum maritagio is a very extraordinary thing and so the inquest took no notice of either THis Commission for Plantation of Kirks differs nothing from the Commissions given by the other Parliaments but only in that the Power whereby Titulars were forced to sell to each Heretor his respective Teinds is only to last for three years after this Act so that all that great design ends here except it be reviv'd by the next Commission but if the impediment during that time flow from the Titular by reason of his Minority or other inability in that case the Heretor who offered to buy his own Teind is to have place to buy his Teind as soon as the impediment is remov'd but the Act does not express within what time and therefore it would seem that except the Heretor offer to buy during the Minority and did really renew the offer to buy immediatly after the Minority or inability was over he cannot have place to buy It is also declared that if the Heretor be Minor and his Tutors neglect to buy his Teinds the Minor shall have action for 2 years after his minority to compel the Titular to sell them but the Act is ill conceived not mentioning Curators but the giving power to buy after minority includes both but it may be doubted whether this should extend to Idiots and fatuous persons or where there is tutor bonis datus ob non existentiam haeredis and it seems the liberty to buy should be extended to their Heirs for two years after they succeed or two years after furious persons Reconvalesce THe King in anno 1669. by a Commission under the Great-Seal did impower Noblemen and others to Regulat the Judicatures and these Regulations set down by them are here Ratifi'd But it was objected that this could not have been done in Law because by the Institution of the Colledge of Justice and particularly by the 93 Act Par. 7 Ja. 5. The Session has power to make sick Acts Statutes and Ordinances as they shall think expedient for ordering of Processes and hasty expedition of Justice And it was thought strange how Noblemen and Gentlemen who understood not Forms of Process could Regulat incident Diligences and the ordinary Terms in Reductions and Improbation which with many other things specified in these Regulations were so much matter of Form and were so little to be known by the strongest Reason that the greatest Lawyers did oft-times understand less of them than the ordinary Leaders of Processes The first thing in these Regulations is the Roll in which all Causes are to be taken up and are Ordain'd to be Discuss'd according to the Dates of the Returning of Processes which Roll was formerly in use though by the 12 Article it was here added That if any Cause should be call'd by anticipation out of its due place the Pursuers Advocat might refuse to insist or the Defenders Advocat to answer and upon this Article it was that the Lord Almond appeal'd to the Parliament because in the Action at Dumsermlings Instance against him there having been a Debate in the Outter-house Reported to the Lords they had ordain'd the Cause to be summarly heard before themselves in praesentia Whereas by the 5 Article where the Lords upon intricacy Ordains a Cause to be heard in praesentia the Process should have been insert in the Roll of the Inner-house according to the Date of that Deliverance which Article being controverted It was alleadg'd that by this Article Almonds Procurators were not oblig'd to Debate To which it was answered that though where a Cause is Ordain'd to be Inroll'd it must be heard according to that Date yet that did not hinder the Lords to call in any Cause for clearing the Terms of a Debate in the Outter-house Reported to them before they give their Interlocutor therein which as needing no Inrolment falls not under this Article and this Course of Calling in Advocats summarly for clearing some Points is ordinarly us'd without Inrolling Causes in the Inner-house Roll but after a Cause is once Inrol'd in the Inner-house Roll it must be heard according to its Date The Council sometimes likewise when they sustain themselves Judges Competent to Ryots do if any Defence be propon'd before them in point of Right remit the matter of Right to the Lords of Session but ordain it to be discussed summarly without attending this Enrolment to the end that when the matter of Right is Discuss'd they may know how to Judge the Ryot As to the 16 and 17 Articles Vide Observations upon the 9 Act Sess. 3 Par. 1 Ch. 2. By the 22 Article it is appointed That the Advocat who Returns the Process shall give out all the Papers whereupon he resolves to found his Defences which was done to prevent the Pursuers being forc'd to take a time to see those Papers upon which the Defence was founded but this was found unpracticable because the Defenders Advocats knew not what would be found Relevant or not and therefore the Defenders Advocat does now propone his Defence and if it be found Relevant he takes a Day to prove it as formerly The Difference betwixt Outter-house and Inner-house Advocats which was appointed by the Regulations is omitted in this Act which Confirms the Regulations without that distinction Before this Act in Incident Diligences four Terms were allowed for producing the Writs which were accidentally crav'd to be produc'd The first was Letters with Certification that if the Havers produc'd not other Letters would be direct against them Charging them thereto simpliciter 2. That Letters of Horning would be direct The third was Horning The fourth was Caption But by this Act the first Diligence is appointed to be Horning The second Caption which may seem too short for it is hard that third Parties should without any previous advertisement be Charged with Horning for though no Escheat will fall on this Denunciation yet the Rebel will upon this Denunciation be debarr'd ab agendo beside other inconveniencies As to the Regulations concerning the Justice-Court it has been doubted whether they extended to Justice-airs or Circuit-Courts and therefore it was doubted whether a Citation given to a Pannal who is in Prison might be given upon fewer than fifteen dayes in a Justice-air and the
unsecure during a whole Minority yet the said Legal in Adjudications will not run against Minors for Adjudications having come in place of Apprisings are to be regulated by the same Rules except where it is otherwise provided by express Law and therefore Adjudications cannot be led upon Bonds bearing Requisition except Requisition be first used this being formerly necessary in Comprisingâ— February 11. 1680. Gordon contra Hunter albeit it was there alleadg'd that an Adjudication was a more solemn Action requiring previous Citation of Parties than a Comprising and so there needed no Requisition in Adjudications as in Apprisings Observ. 3. That where Land is Decern'd proportionally to the sum with a fifth part more the Creditor is to possess the Land in satisfaction of his annualrent during the not Redemption without being lyable to Restitution or Compt and Reckoning and therefore when the Act does thereafter say that he shall be pay'd of his principal sum and annualrent that must be understood in the Terms foresaid viz. that the Rent of the Land shall be allowed for his annualrent without Restriction Observ. 4. If the Creditor acquire once Possession he cannot thereafter use personal Execution which I think should be understood only where the Debitor compears both because this Clause is adjected to that part of the Act which presupposeth Compearance and before the Clause punishing his absence and because it were unjust that a Debitor should have advantage when he will not consent It may be also doubted whether though the Debitor compear he may be free of Personal Execution when the Land adjudged is not able to pay the sum according to the Terms of the Act for the reason of the Law ceaseth viz. That a man should not use Execution when he has attain'd payment and thus albeit of old in Comprisings the Compriser could not use personal Execution where he was in possession except he Renunced the same July 23. 1633. yet where he had not attained the possession albeit the Comprising was expir'd he might have us'd personal Execution by Horning and Caption though not by arrestment and poinding December 7. 1631. Observ. 5. That since this Act Declares that neither the Superiour nor Adjudger shall be prejudged by this Act it clearly follows that the Superiour may in this case as in Comprisings Redeem the Adjudger by payment of the sum it being unjust that a stranger Vassal should be forced upon him when he is content to pay what is due Quaritur Whether albeit by this Act no Comprisings can be led of Lands not already Comprised if yet Adjudications may not be led even where Lands are formerly Comprised for this is not expresly discharg'd and this seems to have been introduc'd in favours of the Creditors who may make their own Election and I think they may Whereas it is Declar'd That the Superiour and Adjudger shall be in the same case after Citation in the Process of Adjudication as if Apprising were led and a Charge given It may be doubted how a simple Summons can be equivalent to an Apprising and Charge for if that were sustained he who had rais'd the first Summons would be preferr'd to him who having rais'd a posterior Summons had got the first Decreet because the first Summons would be equivalent to an apprising and consequently to a Decreet of Adjudication But the Lords have very justly found that the meaning of this Clause is That the first step in an Adjudication shall be preferable to the second step in a Comprising and so forth But not that the first step in an Adjudication shall be equivalent to a compleat Comprising and yet it still remains that a Summons in an Adjudication is equal to a Denunciation in an Apprising for tho a Denunciation be the more solemn Act yet a Summons publickly call'd in the House does likewise make the Diligence very notour King CHARLES 2. Parliament 2. Sess. 4. THE King having Designed to improve Salt made in Scotland whereby poor people were maintained and the Money kept in the Countrey did buy the Salt made in Scotland and ordain it to be sold out at reasonable Rates which was called the pre-emption of Salt but the Servants and Officers imployed in venting the Salt having taken exorbitant prices as was alleadg'd and remote places such as Galloway and the Highlands being ill furnisht since it was difficult to keep Store-houses every where and many fearing that this might be a preparative for the pre-emption of Coal Corn c. His Majesty was therefore pleased for removing all such jealousies and prejudices to condescend by this Act to discharge the said pre-emption and all pre-emption of Salt in time coming but to give some advantage to our own Salt above forraign Salt our own Salt is declared free of all Excise and imported Salt is to pay fourty shilling upon every Boll THis Act is Explain'd in the Observations upon the 7 Act 3 Sess. Par. 1 Ch. 2. Nota That before this Act the King had right to twenty shilling of Custom for every Tunn of imported Beer by the 179 Act Par. 13 Ja. 6. MAny Noblemen and Gentlemen having been ingaged for Debts contracted by our late Rebellious Parliaments and Committees and not being able to shun these Debts because they had given their privat Security for the same the Parliament 1661. and posterior Parliaments suspended Execution upon them but could not in Justice take away the Debt Therefore for payment of this Debt an Imposition was granted upon Tobacco to be imployed for payment thereof as being the most unnecessary Commodity that was imported and yet this being complained of as a Monopoly or at least a great Imposition upon a Commodity which though at first useless was now by Custom necessary His Majesty did therefore Discharge the said Imposition and allow the importing of Tobacco in all time coming free of all Custom and Imposition except the ordinary Custom King CHARLES 2. Parliament 3. AFter many Draughts of an Act to secure the Protestant Religion wherein His Royal Highness allow'd all Liberty and Encouragement many of them were found great snares to the Subjects and thereupon it was remembred that in anno 1633. King Charles who was a very zealous Protestant and dyed a Martyr for our Church resolv'd to make new Laws for its Defence but it was found that the Laws made by King James Sixth were so full that nothing could be added and that was very probable for that King being a most Learned and Zealous Protestant and the dangers arising to the Protestant Religion being then so Recent and urgent it cannot be thought that any thing would have been omitted and therefore as that Parliament satisfied themselves with a general Ratification of all former Acts so did this Parliament but to shew their earnestness this Act appoints the old Laws against Popery and for securing the Protestant Religion to be put to Execution according to the Tenor and proport of these Acts which
OBSERVATIONS ON THE ACTS of PARLIAMENT MADE BY King James the First King James the Second King James the Third King James the Fourth King James the Fifth Queen Mary King James the Sixth King Charles the First King Charles the Second Wherein 1. It is Observ'd if they be in Desuetude Abrogated Limited or Enlarged 2. The Decisions relating to these Acts are mention'd 3. Some new Doubts not yet decided are hinted at 4. Parallel Citations from the Civil Canon Feudal and Municipal Laws and the Laws of other Nations are adduc'd for clearing these Statutes BY SIR GEORGE MACKENZIE of Rosebaugh His Majâ—sties Advocat for SCOTLAND EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1686. TO THE KING SIR NOne are so much obliged to Laws as Monarchs since by them Millions whom corrupt Inclination and mistaken Interest tempt to shake their Thrones are yet forced by these to defend them and find great satisfaction in the reasonableness and gentlenâ—ss of that kind of force By those Your Majesties Predecessors were able to Govern us very long without any other Arms And when successful Usurpers got the most victorious Armies in Europe these Armies were perswaded by Law to serve You and ruine them tho they saw in Your service a dissolution of that Society for which they had with much Courage but no Justice so often exposed their lives To prevent which for the future provident Law settled on Your Majesty suitable Revenues to defend Your Authoritie and therein shewed that the safety of the King and Law were inseparably joyned It is to our IAMES'S that we owe the great Body of our Laws and so there lyes a special obligation upon Your Majesty to cherish them as their Off-spring to maintain them as Your surest and least expensive Guards and to look on them as the only Counsellours that can neither be byassed by partiality nor interest But because Your Majesty has a special esteem for Heroes and Courage Allow me to represent to you that all those eminent Romans who conquered the World were raised by Pleading and the Command of Armies were rewards bestowed by the suffrages of the People on those who Pleaded best for them nor did Cesar as their Story observes take him to the Camp but because he loved rather to be first there than second to Cicero at the Bar where if he had stayed he had not destroyed his native Countrey which Cicero who continued to Plead so wisely preserv'd That is the most generous heart which is warmed by Reflection elevated by the hopes of Fame and used to Victory And no Reflections are so strong as those of men always imploy'd in reasoning Fame has no such Trumpet as Eloquence nor can Courage give so many and solide Victories as Reason does and such Courage does the love of Justice inspire in those who adore it that our Profession has had its own Martyrs too who dar'd to die for it without being diverted by action from looking fixedly on the terrours of death or comforted by the hopes of escaping it as Souldiers in Battels are The vertuous Papinian is a glorious instance of this who being chief Minister of State to his Emperour after he had illustrated the Law by many learned Volums before he attained to the age of 36. choosed rather to die than justifie a barbarous act even in his Prince Master This only use of our Reason we want under Your Majesties happy Reign you being more unwilling to command what is unjust than any of Your Subjects would be to suffer And it was Sir the attending Your Royal Brother You that hightn'd thus in me an esteem of Law for I could not but admiâ—â— that fixt Justice which govern'd so absolutely two Glorious and Wise Monarchs and made so many thousands happy under them amongst whom none is more sensible of that general Happiness and of Your Majesties special Favours than May it please Your MAIESTY Your MAIESTIES most Dutiful Loyal and Obedient Subject and Servant GEORGE MACKENZIE TO THE READER MY great pleasures are to inform and defend my Countrey the one whereof I do without vanity and the other without humour equally desirous to have my designs succeed and careless how they are censur'd We have an excellent pattern for a Lawyer in the great Labeo tit de Orig. Juris Labeo plurimum studiis operam dedit totum annum ita diviserat ut Romae sex mensibus esset sex mensibus â—ecederet conscribendis libris operam daret In those Observations I have satisfied the ardent desire our Parliaments have had to have the Laws revised I have sincerely endeavour'd to preserve honest men from falling into snares by their ignorance and to instruct my yâ—unger Brothers in a Science by which I wish them to rise for the seâ—vice of their Countrey and their own advantage One of the reasons which mov'd me to undertake this work was that even after I was a Lawyer I found that I understood â—ot our Statutes though these be the chief Pillars of our Law and I wisht often then such an Interpreter as now I hope this Book will be These who have read my Observations upon the Act concerning Bankrupts will find that I might have been more Voluminous and seemâ—d more Learn'd but my design was to write Notes and not Commentaries And this Book as all others of this kind should not be judg'd by any one Page but by the whole and yet oft times a Line which may seem easie now haâ— cost me considerable pains even after I was Kings Advocat The difficult Acts or Questions which sometime I omit shall be largely treated in the Papers I shall leave 1. It is 〈◊〉 for my 〈…〉 to know that I 〈…〉 these Acts â—y Skeens Edition and sometimes by Glendocks anâ— so that Act which for instance is the 3d in the one may be the 4th in the other 2. Sometimes I refer my Reader for the Explication of one Act to the Observations on another and yet sometimes possibly it is not treated there which was occasion'd by my not having all my Papers together but the Reader may look the Index of Glendocks Acts and he will find the Acts omitted treated in one or other of the Acts relating to that Subject and thus also that Index may serve generally for one to this Book also 3. I follow sometimes the ordinary opinion though possibly it is not my own Common opinions being still safe even when they are not well founded 4. The errors of the Transcriber have occasion'd those here corrected and it â—ere very fit that the â—uyer would cause correct the Book before he read it for thus by small pains he may prevent considerable mistakes Errata PAgina 1. Linta 4. for Justimans read Justinians Paâ—â— 8. Act 11. l. 3. r. 74. ibid. l. ult for Sunday r. Moonday P. 14. l. 8 Act 37. for Act 1â— Par. 6. 1. Par. 12. Act 126. P. 25. Act
are doom'd to have lost their Estates and Goods after much debate are notwithstanding quoad their Persons only warded during the Kings pleasure And His Majesty by His gracious Letter Nov. 1679 allowed such as were absent from the Host at Bothwel-Bridge to be only fined at most in two years valued Rent This Act was also the foundation of all our old Proclamations whereby all the Heretors betwixt sixty and sixteen were charged to come to the Kings Host when our Kings were either engaged against their Enemies at Home or Abroad at which occasions Heretors and Liferenters whether Men or Women holding immediatly of the King were cited and they cited and brought out their Vassals and therefore it was a good defence that they held not of the King as is to be seen in the Journal Books Feb 19 1600. But now the Council commands all Heretors by Proclamation to go to the Host under the command of such Captains as are named in the Proclamation This Obligation and Statute is not now taken away by the late Act giving His Majesty the Militia as was found by the Privy Council October 1677 and by the Justices in March 1680. so that Heretors must attend either but not both in the same Countries so the last Act abrogates not the first and that being given as a favour were none if it took off the first which is greater and arises from a feudal obligation or at least is due to the King as King and without which the peace of the Country could not be maintained and by the Act 25 Sess 3 Par 1 Car 2 after the Militia is granted the Parliament in the same Act makes a further tender of all their Lives and Fortunes betwixâ— sixty and sixteen when they shall be called for Secundo It was found that this Crime was not punishable now only by the punishment exprest in Chap 15 Stat Alexander 2 whereby a Thane was only punishable in six Cows and a young Cow an Ochiern in fifteen Ewes or six Shillings and a Labouring Man in one Cow and one Sheep for that Statute is justly abrogated by this Act that is posterior the Remedies in that Statute having been probably found ineffectual because of their meanness This Ochiern is by Skeen called a Freeholder but I find by many old evidents that an Ochiern is a Chief of the Branch of a great Family who has a considerable command and it is the corruption of the Irish Wochteran which signifies still in the Highlands a Master or Superior Tertio It was found that though such as were above sixty or below sixteen were not obliged to go to the Host themselves because of the 23. Stat K. Will and this is sustained Feb 21 1600 yet their Age did not excuse them from sending which clears why David Lawson was convict for byding from the Raid of Dumfries in Regent Mortons time though he was alleaged to be past sixty five Quarto That such Burgesses as had Lands in the Countrey were obliged to send one for these Lands though it was alleaged that Burgesses did not usually keep Horses except they had been commanded by the Town where they lived to serve there Quinto That the Captains under whom they were commanded to go to the Host could not warrand them to stay at home because this Feudal obligation could not be dispensed with by Captains who were only impowered to command but if they came once out and were listed it was found that the Captains might allow them to return home upon occasion of sickness or for other excuses of which he was a competent Judge Sexto That the King needed not prove that the Pannels came not to the Host that being a Negative but that it was necessary for the Pannel to prove that he was at the Host. Septimo That the King was not obliged to prove the Pannels to be Heretors but that they were obliged to renunce any Heretage they had in favours of the King if they denied they were Heretors even as in other cases the King is not obliged to prove that any were his Vassals but they behoved to disclaim upon their hazard and of old the notoriety of their being Heretors was refer'd to the Assize without any further probation as June 12. 1557. and some times to the Pannels oath as in the case of William Wallace July 2. 1600 Octavo That not only such as were Heretors by being actually Infeft were to send to the Host but that appearand Heirs and such as possessed the Lands were to send it being unreasonable that the appearand Heir's lying out and not entering should prejudge the King more in this case than it does as to the casuality of Escheat c. Nono It was found that such as possess'd by the courtesie of Scotland were obliged to go to the Host by an express Decision at this time though the curiality be but a Liferent and other Liferenters were not obliged to go since Heretors in our Law are exponed in opposition to Liferenters These words in this Act without a reasonable excuse seem to insinuate that not only relevant or legal Defences but even reasonable or equitable Defences ought to be received to defend such as stayed from the Kings Host And thus Inquests favour such as were known to be of so infirm a Constitution as that they could not without great danger to their life undergo the fatigue of an Army though they were not labouring under any present form'd Disease or Morbus Sonticus and for the same reason mean Heretors were excused though of old I find that this was found to be no Defence in the case of John Ross of Drumgranich July 2. 1600. but the reason that inclined the Judges in this year 1680. not to fine small Heretors was because the Proclamation commanded none to come out but such as were to come upon Horseback and so such only could be fined as could keep Horses and though the Decisions at this time did only oblige such as had 100 l of valued Rent to go yet by the 120 Act Par 9 Jac 1 such as can spend twenty pounds of Land-rent yearly are obliged to keep a Horse which by the 267 Act Par 15 Jac 6 is to be computed 200 l of yearly constant Rent I find by the Feudal Law that the Vassal qui Dominum in bello non adjuvavit aut periclitantem deseruit feudum amiâ—â—ebat Rosenthal Conclus 16 num 1 but yet the words of the Text in the Feudal Law feudorum lib 2 tit 24 Par 2. are only Item qui dominum suum cum quo ad praelium iverit in acie periclitantem dimiserit beneficio indignum se Judicavit and yet even by this Text it is implyed that he is obliged to go and the expressing of that Obligation seems omitted because it was unnecessar being implyed in the very nature of the Few Craâ—g expresses it thus Alia est etiam feudi si non anâ—iâ—tendi saltem Vassalli ob quasi delictum
puniendi ratio si Dominum se pro Caesaris expeditione instruentem non suerit Comitatus feudum enim eo casu amittet dimidium fructuum illius anni ex feudo domino pendet non enim hic tantum contra dominum sed contra imperium Remp peccatur so that it seems in his time the Vassal who hâ—ld of another Superior then the King forfaulted his Feu for not going to the Host but the immediat Superior had Right to half a years Rent and the reason of this seems to have been because by all our old Laws the Vassal was obliged to attend his immediat Superior in going to the Kings Host and the Proclamation then commanded every man to come with his Vassals and therefore as the King had Right to the Forfaulture for not attending his Host so the immediat Superior had right to this half years Duty for his not attending him and sometimes by the Journal Books it appears that when Vassals were Fined and not Forfaulted the immediat Superior craved the half of the Fine THe punishment of such as ride with moe than their ordinary Houshold is Arbitrary and this Act must only be interpret against such as ride ordinarly with great Trains and which may look like an unpeaceable design nor is any man punished for riding at solemn Occasions with his Friends and Followers and I also think that this Act would only extend to such against whom there lies a presumption that they gather or keep men together upon some sinistrous design either against the Government or their Neighbours for if this were allowed great men might keep Troups together and for this same reason are Convocations discharg'd by other Acts and betwixt these Acts and this there is this difference that by these the Convocating for a time irregularly those in whom the Convocater pretends no interest is discharg'd but by this Act the conveening men upon pretext of a Retinue is discharged and though it may seem that every man may keep as great a Retinue as he pleases yet quilibet tantum in suo facere potâ—st illud quod fieri potest sine aemulatione vicini but multo majus sine aemulatione Reâ—publicae THough by this Law it is only appointed that there be Officers and Ministers of the Law made through all the Realm indefinitly without telling by whom they are to be made yet by the 2. Act Par. 1. Ch. 2. The power of choosing Judges is declar'd to be one of His Majesties Prerogatives It is observable from this Act that none can be Judges who have not sufficiently of their own where-through they may be punished if they transgress which is very just for a Judge who Decerns unjustly by palpable unjustice litem suam facit and therefore it may be well argu'd that when any who is a Judge or has an heretable Office becomes insolvent he may be forc'd to find a Depute who is solvent or else he may be discharged to sit Obs. Though it may seem That if any Heretable Officer be incapable to exerce the King should name Deputs jure devoluto yet by this Act it is ordained That if the Heretable Officer be incapable he shall ordain others for whom he shall be answerable The Design of this Act is to empower the Sheriff to arrest Oppressors and Vagabonds By these words to sojourn Horse is meant to quarter Horse from the French word sejour By Husbands of the Land is still meant Husband-men in our Acts of Parliament By taxing the Kings Skaith is meant to cause modifie what is due to the King and by Assything the King is meant the causing the Malefactors pay what is modified Obs. That the Legislative Words in our Statutes are very various for in this and many other Statutes of this King the formula is the Parliament Statutes and the King forbids which words shew that the Legislative Power is in the King for to forbid is the chief and most vigorous part of a Statute In the 17 th Act it is said It is Statute and the King forbids In the 14 th It is Statute by the whole Parliament and the King forbids In the 13 th It is Statute by the whole Parliament and by the King forbidden In the 30 Act 2 Par. Jac. 1. It is Decreeted by the whole Parliament In the Act 37 It is Decreeted and Statute In the Act 47 Par. 3 d. It is ordained by the King and Parliament Act 50. It is ordained and forbidden Act 60 Par. 3. Jac. 1 Our Soveraign Lord through the whole Ordinance of the Parliament Statutes Act 125 Par 9 Jac 1 Through the consent of the whole Parliament it is ordain'd Act 62 Par 3 Jac 1. It is seen speedful Act 76 Par 5 Jac 1. It is Statute and Ordain'd and Act 78 and 79 It is Ordain'd Act 83 Par 6 Jac 1. Rex per modum statuti ordinavit Act 85 Rex mandavit In the old Statutes of King Robert and King Alexander c. It is said Dominus Rex vult or statuit Rex or desinivit Rex or prohibet Rex or decrevit deliberavit Rex without speaking one word of the Parliament or Estates Act 105 Par 7 Jac 1. The King with the consent of the Council Act 104. The King with the consent of the Parliament and Council Act 108. The King of deliverance of Council But the formula now is Our Soveraign Lord with advice and consent or Our Soveraign Lord and Estates of Parliament which last is not so proper and though in most of the Acts of the 14 th Parliament K. Ja. 3 d It be said That it is Statute and Ordained by the whole three Estates yet it may be easily seen that these Acts were but in effect Overtures propos'd by the three Estates to be Ratified in Parliament and so in effect are conceiv'd rather as Overtures than Acts As also where any thing is to be put in execution by the King there the Act runs in name of the Parliament and not of the King as in the 23 d Act Par. 1 Jac 1. It is said that the Parliament has Determined and Ordain'd that Our Lord the King garâ—mend his Money and in the 6 Act Par 3 Jac 2. The three Estates has concluded that Our Soveraign Lord Ride throw all the Realm c. THere are many wayes whereby the Superior may crave Production of his Vassals Evidâ—nts for the King sometimes gets an Act of Parliament ordaining all the Vassals of such a Countrey to produce their Evidents as 262. Act. Parl. 15 Jac. 6. whereby all the Heritors in the Highlands are ordain'd to produce their Evidents with certification of losing their Rights The Superior may also crave exhibition of these Rights But the ordinaâ— way is by an Imprâ—bation wherein certification is granted against the Papers that are not produced which is deriv'd to us also from the Feudalists who affirm that Vassallus imperari potest sub poena
By the Civil Law incendium casu fortuito is not punishable but conductor tenetur de levissima culpa incendium praesumitur culpa inhabitantium factum fuisse si intra domum originem habuerit â—o casu pater familias tenetur ex facto delicto familiae sed non tenetur si ortum habuerit incendium extra familiam vide Gail lib 2 Obser 21 22. Though by this Act the Magistrates of Towns are to enquire concerning the skaith suffered by Fire-raising so that this seems to be a matter of Government and consequently proper to be try'd also by the Privy Council yet where the case is intricat in point of Law the Council uses to remit the same to the Session as in Doctor Sibbalds case April 1684. King JAMES the first Parliament 5. FOr Explication of this Act Vid sup Act 39 Par 3 Ja 1. and Act 86 Par 6 Ja 1. THis Combination of Workmen was also punished by the Civil Law and it was found in the case of the Lord Hattoun against the Deacon of the Masons of Edinburgh that a Man might choose any Stranger Mason to build his House and if any Mason within the Town give over the Work any other Mason within the Town might undertake it notwithstanding of their own private Statute King JAMES the first Parliament 6. THe Act here related to is 24 th Act Par 1 Jac 1. DEacons are discharged by this Act as tending to Sedition and in place of them the King did introduce Wardens of Crafts who were to Supervise the Work of the respective Trades-men and were indeed Deacons but were called Wardens quasi Guardians Act 102. par 7. Jac. 1. But thereafter though Q Mary of new supprest Deacons and introduced in place of them Visiters yet thereafter about the time of the Reformation to strengthen the Popish party and to oblige all Trades-men thereto she restored Deacons by a special Gift and a Letter to the Council of Edinburgh since which time they remain still legal Corporations and each private Trade has their Deaconry Confirmed by Parliament Vid. Act 39 Par. 3 Ja. 1. THis Act Regulating the Expenses of unjust Pleas seems to have been first made in a Provincial Synod for it relates to the Official or Commissary Court and ends thus Et quod istud statuatur de authoritate Concilij provincialis But I find that in Voet. de stat that general Laws are call'd jura provincialia THough all Submissions with the Decreets following thereupon be declared null if the Submission be not made to an odd person yet this is now in Desuetude vide R. M. l. 2. c. 5. num 4 5 which sayes that it is ordinary to submit to two though it be difficult to make them agree and therefore the Law recommends to them to submit to an Odd Man THis Act relates only to Processes for by it the Causes of all Merchants dying abroad should be decided by their ordinary Judges within the Kingdom viz. in the respective Commissariots and Shires where they liv'd if they went not abroad animo remanendi but notwithstanding of this Act the Testaments of such as live abroad though animo remanendi must be confirm'd in Scotland by the Commissars of Edinburgh as communis patria else no Pursuite can be sustained for their Moveables that are in Scotland July 18. 1666. in the case betwixt Duff and Bisset ANd if it be Fore-thought-Fellony he shall die therefore This may seem to imply that men die not for Murder committed without Fore-thought-Fellony But this holds not in our Law for Murder though committed without Fore-thought-Fellony is punishable by Death except it was either Casual or in Self-Defence and then it is call'd properly Homicide or Man-slaughter It is observable that Crimes ought regularly to be punished in the place where they were committed that where the Scandal was given there the Reparation should be made vide act 34 par 2 Jac 1. act 148 par 12 Jac 1. and this same Act is renew'd act 98 par 6 Jac 1. THe way prescribed by this Act is now obsolet and in Desuetude but the juster way now used is That when a man is Denunced Fugitive for a Crime there are Letters of Intercommuning got out against him by authority of the Council and these are publish'd at the Mercat Crosses where he uses to reside and if any within these Shires where these Letters were publish'd do reset or speak with him they are pursu'd as Intercommuners Nota The Resetter of a Murderer is punish'd as a Murderer and this by the Civil Law is clear in Resetters as to all Crimes l. 1 ff de receptat l un C de crim pecul which is made our Law by the 144 act par 2 Jac 6. and yet some think some Resetters are only to be punish'd as severely as the principal Offenders who assist in the Crime and then reset for these contract a double guilt but that such as only reset them who are guilty should be more benignly punish'd and this answers d. l un C de crim paec in fine l ult § ult ff abâ—g The Civil Law excuses Parents who reset and punishes less Friends and Allies who reset than others l 2 ff h t and though this Act be general yet it seems that it ought to be restricted by the Common Law OBserve first That though Barons do not use to judge Murderers yet by our old Law such as are Infeft with Pit and Gallows may punish Slaughter Q attach c 77. and this Act allows them if they be Infeft with such freedom Observe secondly That by this Act Judges who are negligent to arrest Malefactors if they escape the being warned in both these cases pays 20 pounds IT is fit for understanding this Act to know that Magistrates within Burghs have not power to judge Murders except they be Sheriffs within themselves as Edinburgh Pearth Innerness and some other Towns are A Lord of Regality and his Deputs have as much power in judging Murder as the Justices have though some contravert whether they can judge Murder under Trust because that is Treason and the Justices are only Judges competent to Treason Nota There is a Case exprest in this Act where moe Witnesses than two are required to prove a Crime The Word Croy here signifies an Assyâ—hment which the Judge should pay to the nearest of Kin if he be negligent in Ministring Justice against the Murderer but this is in Desuetude THe sense of this Act is that if a man has found Law-burrows which was called Assurance by our old Law the Friends of him who has found the Law-burrows are punishable if they wrong him to whom Law-burrows are found He who assaults with Edge and Ure is to be imprison'd that is to say with an Edg'd-tool or any thing made of Metal for Ure in Scots signifies Metal King IAMES the first Parliament 7. THe
Banishing such as pay not Custom is in Desuetude and they now lose only their Goods so stold as by the l. 2. C. de Vectigal ALL Barons might come to Parliament before this Act but by this Act they are allow'd to choose Commissars who are now call'd Commissioners and by this Act their Expences are to be pay'd to them which is now done thus The Clerk Register gives them a Tâ—stâ—ficat declaring That according to the Sederunts of Parliament such Commissioners did Serve so long and by the late Act they get Letters of Horning for five pounds a-day vid. supra Act 52 Par. 3 Jac. 1. Nota That though this Act impowers these Commissioners to choose one to Re-present them as their Speaker yet there is no such Person now chosen and the Chancellor is now constant President of the whole Council by the Act 1. Parl. 1. Ch. 2 d. THis Act ordaining such as Interpret the Kings Laws wrongously to be punished arbitrarly stricks only against such as Interpret the Kings Laws so as to make them a meer Cloak for for doing un-justice but mistakes and probable Errors are not punishable nor are the Lords punishable for such mistakes because ipsorum sententiae pro veritate habentur Nota Laws like Oaths are to be taken according to the meaning of the Imposer else they be elusory and otherwise every man would be his own Law-giver and Judge The Earl of Argile was found guilty upon this Statute 1681. for Mis-interpreting so the Test by an quality adjected to his Swearing of it That he reserved still a power to himself to rise in Arms when ever he judg'd the same fit King IAMES the first Parliament 8. BY this Act all the Prelats Lords and Barons are to swear the same Alleagance to the Queen that they swore to the King and by the 136. Act Ja. 1 they promise Literas retinentia fidelitatis to the same Queen but the Queen being a Subject there is no Oath now made to Her and tho by this Act none were to be allow'd to enter to their Feu till they had given this Oath of Fidelity to the King and Queen which was conform to the Feudal Law yet no such Oath is required as to either King or Queen before the Vassals entry Princeps legibus solutus est Augusta autem licet legibus soluta non sit tamen eadem illi tribuunt privilegia quae ipsi habent l 31. ff de leg BY this Latine Act It is Statute that all such as flee from the King or His Lieutenent are to be punished as Nottor and Publict Rebels which Act stricks not only against such as were sworn to Colours for those are punishable only by Death according to the Military Law But all such as leave the Kings Host being obliged to attend and though it may be alleaged that this Act is to be extended only against such as flee in to the Enemie for else the punishment of Treason were too severe for simple deserters and by the Common Law there is ground for this distinction but by our Law there is no ground for this opinion because the going in to the Enemie is per se Treason Not. This is to be punished as Perduellion and Rebellion but it is not declar'd Perduellion or Rebellion and therefore it may be argu'd that the Fisk has not the same Priviledges as to the way of Procedore here that he has in other Species of High Treason or Perduellion such as that the Person himself may be Pursued and Condemn'd in absence upon Probation and that his Heir may be Pursued after his Death c. Not. It may be argu'd that this Act should only be extended against such as Flee from the Armie when the King or His Lieutenent are there in Person in the Fields because then there is great hazard but not against such as desert any under Officer King IAMES the first Parliament 9 THe Office of Maires was to Execut Summonds and the Kings Maires praeco Regis assisted in Criminal Courts there are yet some Maires of Fee or Heretable Maires in Scotland who have Right by their Charters to so many pairs of Shoes and so much Money c. out of every Pleugh which Fees are now very much regulated by Possession By this Act Maires of Fee are to present Persons to the Sheriff to serve under them and if there be no Mair of Fee id est Heretable Mair in that word or district the Shireff is to present an able Person who shall supplie his place by Summonding and this is the Origine of Sheriffs in that part to whom all our ordinar Summonds are direct by the 51 chap. stat David 2. The Serjeand or Maire for they are the same is ordained to give in his Execution in writ or by word if he cannot writ but he must prove all by Witnesses and there the Sheriff or Mair may make Executions or Records for so Executions were call'd of old THat Witnesses in Executions should dwell in different Baronies is in Desuetude That Witnesses should swear that they by-stood saw and heard is only required now in the Execution of Breives who must swear the verity of their Executions but the Witnesses even in that case needs not swear that they were Witnesses especially required to be Witnesses which is only required now in Seasines which bear that the Witnesses were ad hoc specialiter requisiti and yet by this Act all these qualifications are requir'd in all Executions Not. IT may be argu'd from this Law that the Dates are substantial not only in Breivs but in all other Papers Likeas the rubrick of this Act calls them substantialia and therefore if they be false the whole writ is false and it was so found as to Executions whereupon one Creditor is to be preferr'd to another such as are the Intimations of Assignations 29. March 1628. or the Executions of Arrestments for there to allow Witnesses to make up the Dates were in effect to allow Witnesses to prefer one Creditor to another and to establish considerable Sums by Witnesses but if the Date of any other Writ or Security be blotted the owner is allow'd to astruct it by Witnesses 10. Feb. 1636. And though the Moneth and Day be blank yet if the Year be exprest a Bond or such like Writ is sufficient being in re antiqua 15. January 1662 Grant contra Grant but in such cases the Law presums that the Bond was granted the last day of that Year Vid. Gem Consil. 79. Vid. R. M. l. 1.11 THere is no necessity now that he who propons ane EssonÈie or Excuse shall find Caution to prove it at the next Court for now ane EssonÈie being a Dilator of its own nature must like all Dilators be instantly proven Not. Sicknesse is only allow'd here to be proven by two Leil-men or the Parish-priest or Minister deponing upon it but with us Testificats upon Soul and Conscience
are allow'd in all Courts except the Justice Court where â—ssonzie must be proven by Witnesses present in Court And to allow Testificats is dangerous because they may be forg'd yet they were allow'd even in Treason in E. Laudons case 1 Apryl 1684. but the speciality there was that the Earl was in Holland for it was thought hard to bring Phisicians from thence and yet I think the Seal of the Town should be brought in that case Vid. stat Will. c. 26. num 2. Quon Attach c. 33. THe meaning of this Act is when any Defender finds Caution to answer as Law will which is called here a Borgh upon a Weir of Law he may either answer presently or may have a day to give in his Defences he finding Caution to answer of new this is explained R. M. l. 1. c. 11. num 4. But now with us there is no dyet allow'd in Criminal Courts for the dyets there are peremptor THis falsing of Dooms or Appeal was altered and in place of them are come our Suspensions and Reductions of Decreets for the Doom is a Decreet and in these Reductions and Suspensions it is lawful to insert only one Reason at first and the rest may be now eeked without protesting for a Liberty to eeke new Reasons as is required by this Act and a Borgh or Caution is yet necessary in Suspensions as it was in falsing of Dooms By the Civil Law Appeals were to be interpos'd within ten days after Sentence but by this Act the Appeal was to be us'd immediatly or at least before the Pursuer walkt 40 paces by the Act 99. Parl. 6. Ja. 4. and in place of the words here used viz. That Doom is false stink and and rotten in the self and thereto a Borgh the party leased was to say I am gratumly hurt and injured by the said Doom and therefore I Appeal and this was done because the words here us'd were Rude and Unmanerly THe meaning of this Act is That if the Pursuer be forc'd to find Caution to answer as Law will he may force the Defender to Recounter it That is to say to find Caution also and whosoever is absent after Caution is so found shall lose the cause and shall be unlaw'd also Vid. c. 18. vers 2. 3. l. 1. R. M. THis Act appoints That the Ships which break in this Kingdom shall be Confiscated amongst us if the Ship belongs to a Countrey which uses that Law against us For clearing this it is fit to know that by the Civil Law the Goods of Ship-wrackt Persons fell not to the Fisk. l. 1. C. de naufr si quando naufragio navis expulsa fuerit ad Litius vel si quando aliquam terram attigerit ad Dominos pertineat fiscus meus sese non interponat quidenim jus habet fiscus in aliena calamitate ut de re tam luctuosa compendium sectetur and by the Canon Law qui christianos naufragium sacientes damnata cupiditate râ—bus suis spoliant excommunicantur c. 3. Extr. de Rapt But yet France does Confiscat Ship-wrackt Goods le bris est confisque au segnieur Soveraigne â—odin de 〈◊〉 C. ult Where it is asserted that this was the Law of both Eastern and Western Seas which is false for it is not the custome of Holland nor Pole nor Denmark Vid. Curick ad tit 9. jur Hans with us if no Living Creature escape that was in the Ship the Goods are Wreck and belong to the Admiral by his Gift from the King but if any Living Creature escape neither Ship nor Goods are Wreck as was decided where only ane Ox escapt 12 December 1622. And yet by the present custome of the Admirality though no Living Creature escape the Admiral secures only the Goods and restors them if the true Owner claime them and prove his Propertie within year and day being repayed of his Salvage for which we have no positive Statute And it seems we have borrowed this from the Statute of Hen. 3. anno 1226. cited by Curick tit 9. Though Skeen de verb. sig verb. Wrack cites another Statute viz. Anno 3. Ed. 1. C. 4. So that though the Custome seems unjust yet this Law has seem'd just because of Lex talionis And the Title quod quisque juris in alium statuit ut ipse eodem jure utatur tit 2. lib. 2. ff And yet our present Custome has justly corrected this Law in manner above mentioned And I likewise believe that even after the Year is Elapsed the true Proprietar may recover his Goods if he prove the Propertie and if his Goods be extant for 1. That which is mine cannot be taken from me without my own fact and deed 2. There were as good reason for the King to seize upon Goods that were Robb'd by Land for the Proprietar quytes his Goods as unwillingly in the one case as in the other 3 ly Even in Goods that are thrown over Board for the securitie of the Vessel the Law presums no design in the Proprietar to quite them as de relicta § Fin. Inst. de rer divis And therefore much lesse ought this to be sustained in Goods forced from the Proprietar by a Tempest since there is some consent in the one but none in the other 4 to If any privat man seize on such Ship-wrackt Goods his seizing on them would be a Crime l. 1. l. ult de inâ—end ruin l. de submersis C. de naufrag And it is strange that private men should be punished because they seized on what was anothers and yet the same calamitie which aggrages the Crime in them should establish a Right in the Publick and it may be well argued that either the Propertie is lost by the Ship-wrack and if so why has the Proprietar action against the seizers or if it be not lost how has the Fisk acquyred the Propertie for duo non possunt esse domini ejusdem rei in solidum 5 o. There is lesse reason for a shorter prescription in such than in any other Moveables For in other Goods there may be a presumed design to quite the possession but here there can be none for it is palpably to be imputed to force 6 o. This is destructive to all Commerce and no Nation ought to sustain it because all Nations will loss equalie by it 7 o. The Owners may not know where to seek their Ship-wrackt Goods because lost in very remote Countries and oftentimes the Owners themselves being lost with them leave none to prosecute their Rights so that upon the whole matter it seems that the custome of other Nations can no more justifie ours in this than the eating of our men amongst the Cannibals would justifie our eating them and it seems rather that Letters of Mark ought to be granted in such cases if restitution be refus'd THough this Act appoints Advocats to give their Oath of Calumnie only in Temporal Courts yet this holds also in the Commissar
Court which is a Spiritual Court and curia christianitatis Obs. 2. It seems that Oaths of Calumnie can only be craved in initio litis in the beginning of the Pley or Cause but yet now an Oath of Calumnie may be asked at any time Obs. 3. That though this Act appoints Advocats to give their Oaths of Calumnie if their Client be absent yet that only holds in matters of Fact as to which the Advocat is not obliged to swear if his Client be present but as to alleageances in point of Law the Advocat is obliged to swear though his Client be present Thir Verses are taken out of Hostiensis tit de jur Calum Gloss. in § 1. just de paen tem litigant which shews amongst other arguments that the Acts of Parliaments as we have them now Printed are not the same as they past in Parliament I have heard it debated in the Process Keith contra Purves March 1684. That an Adocat was not obliged to give his Oath of Calumnie whether he thought the Right upon which he Debated was really to the behoove of the Earl of Marshal but only in general that the Advocats had good reason to Debate it was not to his behoove because their Client said so to them But if this be allow'd an Oath of Calumnie will signifie nothing for Advocats may alwayes find subterfuges to depone that they have good reason to urge such a thing for they may think their Clients Information sufficient warrand for them though they are convinced the same is palpably false whereas the true Design of the Act of Parliament was to debar Advocats from proponing Defences and insisting in Pleas which they thought unjust and Calumnious ARe in Desuetude But I am of Opinion that Brieves with us have not their Origine from the Civil Law as Skeen thinks because sententia erat de brevi recitanda or from the breve testatum of the Feudal Law for these are very different from our Brieves but from the Court of Rome for their Brieves are exactly the same With ours as breve de capienda possessione breve contra intrusum vide Amydenium de stilo datariae cap. 28. lib. 1. Rebuff praex Reg 34. THis Act is abrogated by the Union of both Kingdoms but from it may be observed that to go and live in a Countrey that is in War with the KING is Treason since the Enemy becomes thereby stronger and richer and the Kingdom weaker and poorer UPon this Act is founded the stile of Law-burrows which bears That the Raiser dreads Bodily Harm of him against whom he seeks Law-burrows and that he has given his Oath to that effect This is like that Oath of Calumny Quod tenetur ille prestare qui novum opus nunciat l. 5. § 14. ff de novo oper nunciat But it is the same exactly with the cautio de non offendendo us'd both in France and Flanders in which the Oath of the Party is sufficient ubi expectatio mali juramento ejus qui securitatem petit confirmari sufficiet Christien ad leg Mechlin art 1. tit 4. num 4. And with us such as break Law-burrows are pursu'd by an Action of Contravention Which Term is likewise us'd among them in the same sense art 8. num 16. Ibid. Observe That though the Letters of Law-burrows contain no such Warrand in the Body of them for taking the Chargers Oath that he dreads bodily harm and though the Messenger who executes the saids Letters does not exact the said Oath from him at whose Instance the Letters are to be Execute yet that neither annuls the Letters nor the Act of Caution though it would seem that Caution is only to be found because that Oath is given but yet the Party might have Suspended upon that ground and would not have been oblig'd to have found Caution till the Charger had given his Oath conform to this Act. FRee-holders or their Acturneys should compear at Head-Courts but though this Act sayes That if they be absent upon a necessary Cause they may send their Acturney yet de praxi though they can prove no reasonable Cause they cannot be Unlaw'd if they send any person with a Letter of Acturney which is rais'd out of the Chancellary and the sending of Seals is now in Desuetude for Services and Verdicts in Criminal Causes which are the only Papers that need now to be Seal'd may be Sealed with any borrowed Seal Obs. primo Several Regalities in Scotland have Chappel and Chancery of their own and grants Acturneys themselves Obs. secundo Regalities are still a part of the Shire and therefore the Sheriff may cite the Vassals of the Regality but the Lord of Regality cannot cite these who live within the Shire without Letters of Supplement obtain'd by deliverance of the Lords for that effect vide Act 10 Par 5 Ja. 2. Obs. tertio That the Unlaw warranted by this Act to be impos'd by Sheriffs for absence from Head-Courts cannot exceed 10 pounds February 7. 1624. December 6. 1628. And the same Unlaw of 10 pounds is allow'd for absence from Baron Coutrs March 16. 1622. It has been likewise found that though a Vassal having been in use to have his Servant received as his Acturney at those Courts without a formal Letter of Acturney out of Chancellary cannot be Fined quoad by gains because of the preceeding Custom Yet for the future they will be oblig'd to send formal Letters of Acturney or else they will be Fineable Intimation being made to them that the former Custom will be no more allow'd July 11. 1678. The Bailie of the Regality of Paisley against the Laird of Duntreath THe taking of Salmond at all times is allow'd on the Waters of Saloway and Tweed as long as Berwick and Roxburgh are in the English Mens Hands but it is Rescinded upon our Kings succeeding to the Crown of England by the 5 Act 18 Par. Ja. 6. King JAMES the first Parl. 10. THis Act discharging the selling Salmond abroad except the one half of the price be pai'd in Money is in Desuetude THis Act is Declaratory of the former Law else it could not have been drawn back to the prejudice of the private Right here mentioned and this was suitable to the Common Law for the Governour of the Kingdom is but a Tutor and a Tutor cannot alienat Lands belonging to the Crown King IAMES the first Parliament 11. THese who break the Kings Protections are ordained to be pâ—nish'd and the Protections here mention'd are these Letters which our Kings of old granted to Monastries Burghs c. taking them into his special Protection and discharging all his Subjects to injure them under pain of his highest Displeasure and it is observeable that Assizes were to sit upon these whether the Party accus'd was present or absent Those Protections are now in Desuetude nor can any Pannel be proceeded against now in his absence except in the case of
Parl. 2. THE only Act in this Parliament Warrands the Kings Lieutenent to force such as ly under violent presumptions of Spilling and Troubling the Countrey to find Caution that the Countrey and the Kings Subjects shall be unharm'd which shews clearly that the King may upon Presumptions of which He is sole Judge oblige any of His Subjects to give Bond to live Peaceably without which the Government could not Subsist This Act was occasion'd by the great Outrages committed by Archibald Earl of Dowglas in the South during the Kings Minority King IAMES the Second Parliament 3. VID Stat. Dav. 2 d cap. 42. Concerning the Liberties of the Haly-Kirk TWo Justice Courts were to be held Yearly by the Justices at Edinburgh and Peebles c. 79. Quon Attach and two Justice-airs are to be held yearly the one upon the North-side of Forth and the other upon the South-side of Forth c. 30. Stat. Rob. 3 d. And by The Scottis Sea is mean'd here The Water of Forth Secundo That part of this Act which appoints Lords of Regality to hold Justice Courts twice a year is now in Desuetude BY this Act after word is sent to the Council that there is any Rebellion Burning c. The King is to call the Sheriff and see it Re-drest and all the Barons oblige them to assist the King with their Persons and Goods as oft as it shall be seen needful by Advice of His Council From which it is observable That the King needs not call a Parliament to assist Him in a War but that the King and His Council may call for Men and Maintainance in case of War and this was very reasonable for Rebellion may be Invincible before a Parliament be assembled and Parliaments do often give little help in case of Combination if the occasions of it be popular as was too clearly discover'd in our late Rebellion The reason why in the former Act and this the Advice of the King's Council is still exprest as necessary was because the King was then Minor and His Person had been several times surpriz'd In all this Parliament there is no mention made of the Authority of the Regent as uses to be when the King is Minor but only the hail three Estates have Ordain'd which I think proceeded from the Hatred the Nobility had at that time to Alexander Livingstoun who was then Regent I find that in the Ratification of the Acts of Parliament called the black Acts Folio 149. The Duke of Chattelrault then Governour is plac'd before the Queen-Mother then Regent King IAMES the Second Parliament 4. OBserve that Excommunication takes away personam standi in judicio So that Excommunicate persons cannot pursue nor defend for the Act sayes That they shall not be heared nor answered in the Law of Judgement and though the Word answered would import only that they cannot pursue yet the Word Heared Imports both Pursuing and Defending and the Words Heared nor Answered had been superfluous if they had been to express only the Pursuing This Act and the 4 th Act 3 d Par. Ja. 2 d. Were made upon the Earl of Crawfords Cruelty to Kennedy Bishop of Aberdene King IAMES the Second Parliament 5. THis is the first time I find Art and Part mentioned in our Law Nota The time forbidden by Law for killing of Salmond is from the Feast of the Assumption viz. the 13 of August to St. Andrews which is the 30 of Nov. Act 34 Par. 2 Ja. 1. And though the third Fault was death by the 10 Act Par. 1 Ja. 1. Yet by this Act the third Fault is only punishable by loss of Office vid. Act 224 Par. 14 Ja. 6. THe form of causing restore Goods SpuilÈied now is That the Sheriff or any Judge discern and upon this Decreet Letters of Horning are rais'd and the Defenders Denunced We find by this Act that old Rule of the Canon Law Spoliatus ante omnia restituendus here Confirm'd and the meaning of it is That though the Spuilzier have a sufficient and valid Right to what he has SpuilÈied yet being pursu'd his Right will not defend him but he must first restore the Person SpuilÈied to his Possession for the Law will not allow any man to be his own Judge and to Intromet at his own hand Obs. secundo That of old all Decreets were under the Kings Wax that is to say His Seal and till of late and the last Institution of the Session all Decreets even of the Session were under the Quarter-Seal OBserve That all Scotland is divided in Royalty and Regality The Royalty is that which was Judged by the Kings immediat Judges as Sheriffs and they are here and else-where call'd the Lords of the Royal. THese who were Excommunicated were denunced Rebels and Letters of Caption raised against them and this Act as to this point is founded upon cap. 6 th Stat. Rob. 3 d. and is morefully explained Act 53. Parl. 3. Ja. 6. Where these Letters are appointed to be raised by the Authority of the Council after 40. days are expired from the date of the Excommunication Nota. This is the first Act that speaks of Appryzing of Lands and it was done then at the Mercat Cross in the same way that Moveables were then and are yet poyndable Nota. THe punishment of such as break the Peace is left Arbitrary by this Act and by this Act Justices of the Peace are ordained Irenarchae by the Civil Law of which there are whole Titles in that Law VId. Sup. Act 3 d. Parl. 1. Ja. 1. As also by this Act it is clear that Forfaultors for Rebellion were only to be led before the Parliament for it is here said that they shall be punished by the advice of the Three Estates but now open Rebels rysing in Armes may be Tryed and Forfaulted by the Justices by the Act. 11 th Parl. 2 d. Ch. 2 d. THis was Statuted before as to Murder C. 17. l. 3 d. R. M. by a Trespassour justified in this Act is mean't a Person condemned by Law or Justice and it is oft so mean't in all old Laws THere are now no Wardens in the Borders but these affaires are manadged by Commissions from the King cal'd Commissioners for the Borders ALL Officers offending wilfully are to lose their Offices for a Year by this Act but this Act is not the only punishment for if a Judge execut a man wilfully he will die for it and a Judge being partial or refusing to do Justice is to be punished Rigorously Ja. 1. Parl. 2 d. Act 45. and if he be Faulty or Negligent he loses his Office if it be Temporal for a Year or is to be Suspended from it if it be Heretable Ja. 2 d. Parl. 14. Act. 76. vid. Ja. 3 d. Par. 5. Act 27. Ja. 3 d. Parl. 14. Act. 105. And the punishment of Judges offending in their Offices is now Arbitrary suitable to the nature of
Tacks-man should retaine the Tack-dutie for Reparations was not sustained in so far as concerned the Reparations though the Reparations were necessary nor is there any tacite Hypothetick in our Law for Reparations as in the Civil Law but if the Singular Successor had known of such a Clause in the Tack the Lords inclined to think that the same had been obligator against him and yet a Singular Successor is not obliged to consider a prior Seasine except it be Registrated or a prior Disposition nor any Assigney a prior Assignation 5. February 1680. Rae contra Finlason By the Civil Law Tacks were not valid against Singular Successors l. 9. C. de locato but the Law of Holland agrees with this Statute Neolstad decis 30. THis Act was thought to have been in Desuetude till it revived by a Decision Feb. 1666. Lord Lee contra Mark Porthouse but it is yet so to be understood as that the Land set in Tack must be valued according to what it was worth when the Land was Wodset for if the Land be improved by the Wodsetter it were unjust that the Wodsetter should lose thereby and therefore a Wodsetter improving Land will not lose his Tack though the Land become worth more than twice the Tack-dutie and though it would seem that there is a contradiction in this Act because it sayes in the first Part That if any man has Wodset Lands and syne takes them for long time after the Land be quit out for half Mail or near thereby that these Tacks shall not be keeped but if they beset for the very Mail or near thereby yet the answer is that this Law was so worded to show that the Parliament designed that Tacks after Wodset should not be keeped after Wodsets are Redeemed except they be set for a Tack-dutie somewhat proportionable to the worth of Land and because this could not precisely be determined therefore by comparing these two expressions It is clear that such Tacks after Wodsets are to be sustained if they be set for more than the half of the Real-dutie though they be not for the full Dutie This Act is in effect but an exception from the former Act which having appointed all Tacks to be valid against singular Successors This Act begins But if Lands be Wodset and the Hereâ—or Granter of the Wodset be obliged to grant long Tacks for an unconsiderable Duty after the Lands are Redeemed these Tacks shall not be kept and therefore it may be argued that this Act should only defend against the Setter but not against singular Successors because the preceeding Act from which it is an exception was only conceiv'd to secure against singular Successors But to this it is answer'd that the former Act needed not secure against the Granters for they were ever and still are Sufficient against them and this Act runs not against singular Successors but in general declares such Tacks null as Exorbitant and Usurary and so should be null against all but if there be a valuable consideration to clear that they are not Forc'd and Exorbitant they will be sustain'd as in the case Polwart contra Hume January 21. 1662. where it was found that a Tack for a Dewty far within the worth to be granted after Redemption was valid because it was by one Brother to another who might have given it for a Patrimony and the Brother who got the Wodset was excluded by a Liferenter thirty six years Thir Tacks who are to begin after the Redemption of Lands Wodset are valid against singular Successors though they be not cloathed with Possession prior to the singular Successors Right because they are a part of the Reversion and not because they could not begin till the Lands were Redeem'd for if that were a good reason then a Tack whereof the Entry is deferr'd for several years should be valid against the singular Successor who had got a Disposition of the Lands long after the setting of the Tack though before the Tack was cloathed with Possession which is not true and if it were true since Tacks are not to be registrated no man should know with what Tacks Lands are burdened for this can be known no otherwise but by Possession These Tacks which are to follow Redemption are valid though they be not contained in the Wodset if they be of the same Date with the Wodset and Reversion as Hadingtoun Observes but in this case it may be doubted whether these Tacks ought not to be Registrated since all eeks to Reversion are to be Registrated or else how can a singular Successor know them and yet it is otherwise in Tacks which are to follow Redemption of Annualrents for as an Annualrent is different from the Land it being but a Servitude upon the Land so the Possession of the one cannot in Law be constructed to be the Possession of the other VId. Stat. 2 d Rob. 1. c. 12. But now SpuilÈies are pursu'd before the Lords or Sheriffs as other Civil Actions There are many severe Acts in this Kings Parliaments against SpuilÈies because there were many then committed by the Douglasses and others FEinÈied Fools and Bards and Sornars and such like Runners are by this Act to be Imprison'd and have their Ears nailed to the Trone for the first Fault and to be Hang'd for the next and such as feinÈie themselves to be Dumb are punishable by the general words of this Act or others such like Runners But it may be doubted if such punishments infer'd argumento legis can be extended beyond an arbitrary punishment and yet the feinzing ones self Dumb thereby to draw Money from the people is species falsi THe buying and keeping of Victual to a Dearth is a Crime in all Nations and is punish'd with us as Regrating by this Act it is punish'd as Usury and by Escheating the Victual and yet this punishment has never been practis'd but the ordinary course to prevent this Crime is that either the secret Council sets prices in cases of foreseen Dearth or else the Magistrates use in their respective Towns to cause break open the Doors where such Victual is kept and sell it at convenient prices which is Warranted by the 29 Act 4 Parl. Ja. 5. Vid. crim pract tit Forestallers THe escheating of old Corn-stacks that are kept longer than Èœuil was found to be in Desuetude at the Justice-air in Jedburgh 1669. and the first part of the Act ordaining all Victual bought by private persons more than will entertain their Families for that Cropt to be therefore Escheat is also in Desuetude this was punish'd in the Civil Law per. l. Jul. de annonâ and is punish'd tanquam crimen extraordinarium l. 6. ff de extraor crim and such as are guilty of it were called Dardanarij or revenditores Tholos cap 135. num 10. NOt only such as keep out their Houses upon publick accounts are punishable as Traitors but even these who keep out their Houses for
private Quarrels if they be Charged by Letters from the Council to render them as use is by Heraulds they are also punishable as Traitors in case of contempt but if these who keep out their Houses upon private Feids do thereafter yield them the keeping them out is only punishable arbitrarly and not as Treason not only are such as keep out their Houses immediatly against the King executed as Traitors as we see in Robert Steuart's case who was Executed January 5. 1615. But such as hound them out to keep their Houses are Executed as Traitors and thus the Earl of Orknay was Executed for hounding out his Son February 1. 1615. Though hounding out be not exprest in this Act for hounding out is still Art and Part But the Justices refused February 2. 1674. In Assints Case to sustain the Garisoning of Assints House to infer Treason except it was Garisoned after the Publication of the Letters of Fire and Sword and that the Garisoning of it before did only infer Deforcement it being commanded to yield by the Sheriff in the Kings Name By which it seems that Garisoning Houses to defend against Execution of the Law infers not Treason except it be done either upon a publick account or after raising and publishing Letters of Fire and Sword 2 do Some argue from Act that since the assailing of Houses where the Kings Person is shall be repute Treason if it be done without consent of the three Estates that therefore it is lawful to assault Houses or rise in Arms with consent of the three Estates But this is a great mistake for no opposition to or Invading of the King can be justified by a Warrand from the three Estates and the meaning of this Act is That though it be pretended that the King is Prisoner in any Castle it is not lawful for any private person upon that pretext to raise Armies and Invade that place without authority of Parliament For it is dangerous to make private persons Judges in such considerable Cases And the rysing in Arms or defending Castles on what pretext soever is declar'd Treason by the 5 Act 1 Par. Ch. 2. The occasion of this Act was because this King had been twice kept in Castles in His Minority once by the Chancellour Sir William Creighton and thereafter by Sir Alexander Livingston Governour and at both times endeavours were us'd to besiege the Castles of Edinburgh and Stirling where he then was Vid. obser on 5 Act 1 Par. Ch. 2. BY this Act Regalities returning to the King in Property viz either by Sale or Forefalture for the Kings property is never erected in a Regality but in a Stewartry shall be judg'd by the Sheriffs and the ordinary Judges and ordinarly when Regalities return to the King they are expresly supprest and Erected of new in Stewartries as Orknay Act 13 Par. 2 Ch. 2. Obser. That regulariter these who dwell in Regalities are not subject to the Sheriff vid. Act 43 Par. 11 Ja. 2. And Erections of Regalities do ordinarly bear a power to Repledge THe meaning of this Act is That the Justice Clerk shall not reveal who raises Summonds or obtains Warrands for apprehending Malefactors c. Least also the Malefactors or Defenders escape before they be cited or apprehended as also that when any man is Delated for one Cryme the Justice-Clerk change not the pursuit and raise it for another Cryme and whereas it is said That it shall not be lawful to him to translate such Actions except it be for the better to the King the meaning is that if the Informer ignorantly Inform in a great Cryme as if it were a small Cryme as if he should Inform only that to be a Ryot which is Treason the Justice-Clerk may raise the Pursuite as for Treason It is clear that since by this Act the name of the giver up of Ditty in the Porteous Roll is to be conceal'd which is done for encouraging Persons to delate that therefore Treason should not be given up in a Porteous Roll or else the paena talionis is lost nor do I remember that Treason was taken up of old so and if this were allow'd discontented Tennents or Servants knowing they were secure against talion might be induc'd easily to destroy their Masters THis Act appoints the Strickers of false Coyn to be punished as Law will and by the Act 124. Parl. 7 th Ja. 5. It is ordained That they who falsify Money or counterfits the Kings Irons shall be punished according to the old Law and yet I find no Law before that time specifying the punishment in general For the 41. Act Parl. 5. Ja. 3. punishes only with Death the Home-bringers of Black-money That is to say Copper-money and by the Act 70. Parl. 9. Q. M. The Home-bringers of the false Coyn should be delated and the Delaters is to have the half of all his Goods Moveable and immoveable but though the punishment of Treason be not specified in any express Act yet it appears that it infers Forfaulture for else the Revealer could not have the half of the Offenders Goods immoveable and I find one Drummond burnt for False Money forging the 27. November 1601. And his Brother Patrick Murray burnt also for Art and Part red counsel and concealing the Treasonable Forging Coyning and Out-putting of false Money and the Sentences upon False Coyn bear ordinarily Forfalture vid. supra Act 49. Parl. 3. Ja. 1. But it were expedient to make an express Act in this case THis Act is now in Desuetude and it was sounded upon the missio in possessionem per primum secundum decretum so much Treated ofâ— in the Civil Law but in place of all these are come our Compryzings and Adjudications whereby if the Debitor pay not the Creditor Compryses and is put in Possession and if he Redeem not within the Legal then the Land belongs absolutâ—ly to the Creditor without Redemption King IAMES the second Parliament 7. BY this Act The Home-bringing of Poyson is discharged under the Pain of Treason and yet I find none punished as Traitors upon this and John Dick in Anno 1649. For poysoning his Brother and Sister is only executed but not Forfaulted but I believe he has had no Lands to Forfault nor do I see how a Judge can proceed less severely in this case than the Law appoints especially seing the Act is so express that this shall remain as an aye lasting Statute And the reason why the Law is severer against Poisoning than Murder is because no man can defend himself against Poison and Poison uses never to be given but by persons who have some Trust and so is Murder under Trust which is likewise Treason by our Law and yet it was only punish'd Capitally by the Civil Law l. 1. § 1. ff ad L. Cornel de sicar Though this Act discharges the bringing home of any Poison for any manner of use Yet Apothecaries are allow'd to bring it home
for their Medecines and this is likewise allow'd by the Common Law and Doctors and there is a venenum bonum as well as malum and though buying and in-bringing of Poison be declared Treason by this Act though it be not given yet by the Opinion of the Doctors it is only punishable in that case paenâ extraordinariâ Gothofred § venenum num 21. THis Act against Strangers bringing home Poison has not been observ'd amongst us and it is hard to punish Strangers for a Law that they are not oblig'd to know and it appears they cannot be lyable except they be advertised by some Magistrate that there is such a Law and that therefore they should carry back these Commodities and yet if a Stranger should actually give Poison he would be punishable though no such Act as this had been made since every man is oblig'd to know that it is unlawful to give Poison King JAMES the second Parliament 8. EIther it is provided that Wodset Lands shall be Redeem'd for payment of ordinary Money of Scotland and then it must be pai'd according to the rate the Money gives at the time when the Redemption was us'd and not according to the rate it gave at the time when the Wodset was granted as for instance if Lands be Wodset for ten thousand pounds and thereafter the Money be cry'd up so that the Dollar that was fifty six shilling is to give a Crown or a Shilling is to give a Merk in that case the ten thousand Pounds is to be Consign'd according to the rate as the Money gave though the Wodsetter pay'd moe Dollars and Shillings than he is to get back This holds not only in Redemption by vertue of this Act but in all payments as is clear by Act 19 Par. 3. Ja. 3. and Act 68 Par. 8 Ja. 3. But if the Money to be Consign'd be tailÈied Money that is to say a specifick kind of Money from the Word Talis as for instance five thousand Merks in Rose-nobles or the like specifick kind of Money then if so much Money cannot be had of that kind in specie it may be pay'd in as much of the present current Coyn as will answer to that kind of Money being of the same value as the Gold and Silver specifi'd in the said Reversion conform to the Common Law which the Lords interpret to be payment according to the price and value that the said tailÈied Money was worth the time of granting the Obligation March 3. 1623. King IAMES the second Parliament 9 THis Act discharging the keeping of old Stacks of Corn and the next Act discharging the Girnaling of Corn seem to have been Temporary and the Justices have refus'd to sustain Dittay upon either THis Act discharging the keeping up of more Victual than will serve a mans Family for a Quarter of a Year and that they shall present the superplus to the Mercat within nine Dayes seems likewise to have been but Temporary because of the scarcity that then was and at any time of scarcity the Magistrates of any Burgh Royal are in use and may lawfully as some think break up the Doors of Victual-houses within Burgh and ordain the Victual to be sold at competent rates if the Merchants be either unwilling or absent but if the Privy Council be sitting it is safer to make application to them King JAMES the second Parliament 11. OBser 1 o. This is the first formal Act of Annexation and though it bear only That it shall not be lawful to the King to AnalÈie any part of His annexed Property in Fee Heretage or Frank-tenement without consent of Parliament yet this extends to long Tacks for it is not lawful to set even long Tacks of the annex'd Property and if it were then the design of Annexation might easily be eluded and the Crown impoverish'd Albeit this Act declares it lawful to the King to intromet with any of the annex'd Property without Process of Law and by the 203 Act Par. 14 Ja. 6. Such as had or should intromet for the future by the Kings Command with annex'd Property are secur'd Yet by our present Custom the King uses to Reduce such Rights and not to intromet with them brevi manu Obser. 2 o. That because this Act bears That the annex'd Property cannot be Dissolv'd except by Deliverance and Decreet of the whole Parliament and for great seand and reasonable Causes of the Realm Therefore a Dissolution contain'd in a Confirmation of the annex'd Property after it is Dispon'd is not sufficient but is Reduceable since Dissolutions should be specially Read and Considered Whereas Confirmations and Ratifications pass in course without Observation Likeas Disposition of the annex'd Property made before the Dissolution are declar'd null by the 236 Act 15 Par. Ja. 6. This was so decided February 25. 1669. The King's Advocat contra the Earl of Mortoun and by the 13 Act 2 Par. Ch. 2. That Decreet bearing this Interpretation of all former Annexations is Ratified and it is appointed That Orknay shall not be Dissolv'd without the Advice of the whole Parliament and for great and weighty Causes relating to the publick interest of the whole Kingdom to be considered before the Disposition least by a previous Disposition the Parliament should be pre-determined in their deliberation and therefore it would appear that where there is a Disposition granted before Dissolution not only is that Dissolution null as being filius ante patrem so that it could not make the preceeding Disposition to Convalesce even from the date of the Dissolution But that a posterior Disposition relating to that Dissolution would be null since by the first Disposition the Parliament is once pre-determined in the Deliberation and therefore it would be fit that such Dissolutions should expresly bear this difficulty and dispense therewith per expressum It is here also fit to observe that Dispositions of Rights made of annex'd Property in the Kings Minority though Ratified in Parliament and after the Kings Majority are null albeit any other Deed done by a Minor in his minority is valid if Ratifi'd in Majority For though it may be alleadg'd that the reason of this Speciality is because Ratifications pass in Course and the Grounds are not considered as ought to be in Annexations Yet the true Reason of the Speciality must be that it is easie to obtain Ratifications of such null Rights and therefore the Parliament to preclude all from seeking them has declar'd That they shall not be valid when obtain'd or else because a lawful Dissolution is pre-requisit and ought to preceed a lawful Disposition of annex'd Property And therefore though the Ratification might supply the defect of the prior Disposition yet it cannot supply the nullity arising from the want of the former Dissolution Obser. 3 o. That when any Dispositions are Reduc'd the person who took such unlawful Dispositions must restore the bygone Mails and Dewties from the very date of his
Intromission for his Right being contrary to an express Law he is not bonae fidei possessor nec facit fructus suos And this Act bears That the Takers shall refound all Profits for the time they had the Lands so that the Possessor has neither the benefit of a possessory Judgement though he has possest seven years nor should such Rights prescrive being null and contrary to an express Law quod non est alienabile non est praescriptibile nor doth the Possessor sacere fructus consumptos suos not being bonae fidei possessor and yet the Lords shunn'd to decern such as had intrometted with the Rents of Orknay lyable in repetition of the bygone Mails and Dewties when their Rights were Reduc'd upon this Act because it had not been in observance as some Lords affirm'd and there was a most probable ground of â—gnorance in that case AS the Wardens could not cognosce upon these Crimes which are call'd The Points of the Crown so neither can the Commissioners for the Borders who are now come in their place The meaning of the Exception made in this Act is That tho the Wardens cannot generally cognosce upon points of the Crown iâ— Treason Fire-raising c. Yet they may if such a Tryal be necessary for conservation of the Truce That is to say if these Crimes be committed by Common Robbers upon the Borders THough this Act discharge any Regalities to be granted otherwise than by Deliverance of Parliament yet they are ordinarly granted by Signatures under the Kings Hand and a Defence propon'd by the Vassals upon this Act was repell'd by the Exchequer 1664. at the passing of a Signature containing a new Erection But I see not how this could be Repell'd by the Lords of the Session the Act is so express and so reasonable for the Erection of a Regality makes a new Justiciar who has very great power and a Lord of Regality is Regulus a little King and takes off the People from an immediat dependence upon the King Likeas the Lord of Regality gets Right by the Erection to the single Escheats which prejudgeth both King and People and is expresly contrary to the Act 69. Par. 11 Ja. 6. Discharging the giving away the Kings Casualities in great and they prejudge much the prior and establisht Rights of Sheriffs subject the people to moe Jurisdictions and by multiplying Registers distract and render uncertain all Buyers and others who are oblig'd to know the condition of their Debitors and so much is the King concern'd in Erections of such Regalities that they are expresly Revock'd by all our Kings in their general Revocations Though by this Act it would appear that Regalities ought to be null if they be not originally granted in Parliament yet a posterior Confirmation in Parliament is by our Decisions found sufficient though it may be alleadg'd that Confirmations pass in course without exact consideration whereas such Regalities ought not to pass so slightly since they establish a summar Jurisdiction over the Lives of the Subjects and such previous Grants do pre-determine the Parliament in their free Voting and therefore should no more be regarded than they are in the case of annex'd Property vid not on Act 41. Supra and on Act 94. Par. 6 Ja. 1. NOtwithstanding of this Act several Sheriff-ships are granted in Fee since this Act and therefore are Reduceable but it is very observable that though these two Prohibitions fell under the Parliaments consideration at once yet the Parliament discharged only Regalities without consent of Parliament but they discharged Heretable Offices simply as tending for ever to fix the dependence of a whole Shire upon an Subject whereas Regalities are only over a mans own Lands or his Vassals But Sheriff-ships are over other men and were it not for this it may seem that the first Act concerning Regalities was unnecessary since this Act would have serv'd for both vid. observ on the Act 4 Parl. 18 Jac. 6. THe Rubrick and Body of this Act being compar'd makes Theft to be capital for the Rubrick bears That Sornars shall be punished by Death and the Act sayes That Sornars shall be punished as Thieves therefore Thieves should be punish'd Capitally but we have no positive and specifick Law for punishing Theft Capitally ORdinary Actions within Towns are not Judged now by the Counsel of the Burgh as this Act requires but by the Baillies THis Act as to the Habit of Members of Parliament is in Desuetude for the Dukes Earls and Lords wear all Scarlet Cloath with Bars of Ermine the Duke has five Bars the Earl four and the Lord three and the Burrows have no special Habit. The Fore-speakers for Cost here mention'd and who are to have Green-habits were the Advocats who were allow'd to Plead before the Parliament and this Habit for them is in Desuetude for they Plead before the Parliament without any Gown or special Habit. They are call'd Fore-speakers for Cost because they may speak for Money and Advocats in our old Journal-Books are still call'd Prolocutors or Fore-speakers But Friends are also in the Journal-Books call'd Prolocutors and therefore Advocats are here distinguish'd from them by the words Prolocutors for Cost King JAMES the second Parl. 12. THe meaning of this is that Bone-fires call'd here Bails be made at several places to forwarn the people of the approach of the Enemy this is here call'd Taikenings THough where Treason is committed the Committers are to be imprison'd and cannot be let out upon Caution because the Crime is not Bailable yet where there is only a presumption of Rebellion though it may be violent the party may be let out upon Security for else a person might be punish'd without probation for Imprisonment is a severe punishment Likeas by the lib. 4. R. M. cap. 1. num 3 8 9 11. It is there said That he who is accus'd of Treason may be let out upon Caution and if he want Caution he is to be imprison'd And yet by this Act it is appointed that persons slander'd or suspect of Treason shall remain in Firmance till they be try'd by an Assize and this last is now in use But there must still some previous Tryal be taken by Precognition and Examination before any man can be Imprison'd or his goods secur'd for Treason it being most unjust to use such severities without very good ground Because this Act of Parliament sayes That if persons be slandered for Treason they shall be tane and their persons warded therefore It was given as an Instruction by the Council to the Circuit Court 1683. That such as compear'd and desir'd to go to the knowledge of an Assize might be Bail'd and let out upon Caution because this Act struck only against such as would not appear but needed to be taken and yet this is not universally true for if there be good grounds from a previous Tryal by two Witnesses to suspect the person
guilty it is not just to admit Caution and the true speciality upon which the Council founded that Resolution was because above four thousand were delated in that Porteous Roll for Treason and it was almost impossible to Imprison all The Acts 50 51 52 53 are abrogated by the Union of England and so is the 56 but though they be abrogated yet the following Observations may be made from them Obser. 1 o. From the Act 52. that the supplying the Scottish Towns then under the Command of the English is declar'd Treason as is in general the assisting of all Enemies to the State vid. Ja. 1 Par. 13 cap. 141. Ja. 2 Par. 12 Act 50. For though we have no special Statute declaring the assisting of Enemies of the State to be Treason Our Acts running generally against such as assist declar'd Traitors or assure with English men in particular yet it is Treason by the Common Law l. 3. ff ad l. Jul. Maj. And such of our Nation as continued in the Dutch Service during the War with Holland in anno 1666. were forfaulted as Traitors By the second part of this Act it is declared Treason for any who ride with the Warden of the Marches or any other Chiftain to go away with any manner of Goods till they be thirded that is to say till they be divided for one third by the Law of the Borders belongs to the King a second third to the Warden or Chiftain and a third to the Apprehenders For understanding whereof it is fit to know that Lands when taken from Enemies become the Kings or the Common-wealths by the Laws of all Nations but Moveables by the Law of GOD Deut. chap. 20. vers 14. Josh. chap. 8. vers 1. when taken were divided equally amongst the Takers But sometimes there was a Division the one half falling to such as Fought the other to these that stayed with the Baggage and a fiftieth part of their part who Fought not was dedicated to the LORD whereas one of five hundred was only Consecrated out of their part who Fought Num. 31. verse 50. At present Grotius distinction lib. 3. de jur Bell. c. 6 11 12. Is generally observ'd whereby if Moveables be taken by a party led on by an Officer who only knew the design then the Souldiers get no share but all falls to the publick but if the Moveables be taken in Excursions or free Adventures they belong to the Takers And Voet. c. 5. n. 19. de jure milit Sets down the several proportions whereby Goods are divided amongst a Party and Officers in Holland where if the Party exceed 50. the Captain gets a tenth the Leiutenent a fifth the Ensign a third the Quarter-master a double portion the Serjeant one and an half and each Souldier a single share but still the Horse get double of what is due to the Foot BY this Act which is a continuation of the former it is declared Capital for any man to take from another Goods or Prisoners which they are in Possession of from which it is observable in War that Possession or Capture gives only right thus Inst. de rer div Par. 17. It is said Item quae ex hostibus capiuntur statim jure gentium capientium fiunt and therefore a Ship being pretended to belong to the King because one of the Kings Friggots had beat the Convoy that Guarded her and was in pursuit of another and had taken both her and this Ship here controverted if the Privateer had not interveen'd and it being answer'd that an actual Capture could only establish the Property and this Statute requir'd Possession The Lords before answer granted mutual Probation for trying whether this Ship could have escaped from the Friggot if the Privateer had not taken her IT is Treason to raise a Fray wilfully in the Kings Host for this wilfully done shews a Design to ruine the Army and I find that the Master of Forbes was Hang'd for raising a Fray in the Kings Host at Jedburgh July 14. 1537. The words without Cause are added here because if a man doing his duty was the occasion of raising a Fray he ought not to be punish'd as if an Officer punishing a Mutineer should by that occasion raise a Fray this would not be punishable By the Civil Law such as were Authors of Sedition in an Army for a Fray is properly Sedition were punish'd as Murderers l. 3. § 4. ff ad l. Cornel. de sicariis But if the Common-wealth was in danger they were punish'd as Traitors as in this Statute and in l. 1 ff ad l. Jul. Maj. and they are every where now punish'd by Death Sand. Decis 165. tit 9. des 12. vid. Voet. de jure milit c. 4. num 40. And if the Authors cannot be known all involv'd in the Guilt are forc'd to cast Lots Voet. ibidem Sometimes also if the Sedition was carried on sine gravi tumultu intra vociferationem the guilty were only Casheir'd l. 3. § 20. ff de re militi if the Tumult was rais'd upon privat picques or grounds but if it was rais'd upon prejudices against the Common-wealth or Prince it was punish'd even in that case and though no actual prejudice follow'd as Treason d. l. 1. ff ad l. Jul. Maj. King IAMES the second Parliament 13. THis putting the Kingdom in a posture of Defence was formerly ordain'd Stat. Will. cap. 23. Stat. 1. R. 1. cap. 27 But all these Acts are now in Desuetude and the Act concerning the Militia is regularly come in their place but yet the King may call for either vid. observ on 4 Act 1 Par. Ja. 1. By the Kings Letters by Bailis is mean't Letters to raise Fire or Takenings for advertising the Countrey By Out-hornes is mean'd these who follow'd the Sheriffs and whose Office it was to raise the Kings Horn for warning the Countrey to assist the Kings Officers THis Act contains what is fit to be done in time of Pestilence and because it was an Affair to be Govern'd by Christian Charity therefore the Regulation of it was referr'd to the Clergy and upon this account it is that the Act says The Clergy thinks without speaking of King or Parliament it being ordinary in our Acts of Parliament to set down the report without drawing it into the formality of an Act of Parliament and thus in the 91 and 92 Acts Parl. 13 Ja. 3. It is said The Lords thinks it expedient by which word Lords must be interpreted Lords of Articles THere was of old Distresses taken from such as came to Fairs that is to say some thing was taken to be a Surety for their good behaviour and was deliver'd back at the end of the Fair if the Owners committed no wrong during the Fair. THis Act is only to be interpreted of the Fees due to the great Constable of Scotland who is now the Earl of Errol for he only can exact during the time of Parliament but
yet that Exaction by him at Fairs in time of Parliament is in Desuetude and other Constables have Fees which they exact in time of Fairs by special Infestment as the Constable of Dundee and it is observable from this Act that a long Custom of exacting Fees and Customs from the people is not Warrantable except either that old Custom be founded upon an old and express Infestment or warranted by an Act of Parliament King JAMES the second Parliament 14. SPuilzies are here divided in SpuilÈies of Moveables and SpuilÈies of Fee or Heretage but that improper way of speaking is not now us'd for the Dispossessing a man out of Heretage is called Ejection and Ejections are now pursu'd before the Lords as ordinary Actions but not in the special way here prescribed That Maxim of Spoliatus ante omnia restituendus extends to SpuilÈies of both Moveables and Heretage ALL those Forms of Process are to be consider'd at the Institution of the Session by King James 5 th By this Act Appeals to King or Parliament are utterly discharged But the Question is whether only Appeals stopping execution be hereby discharg'd and it is alleadg'd that Appeals were only discharg'd here because the Session was then a Committee of Parliament and there lyes no Appeals from the Parliament but it seems there is likewise no Appeals from the Session as presently Constituted because they are invested in all the priviledges the former Session had and that the 99 Act Parl. 6 Ja. 4. allowing Appeals after this Act must only be interpreted of Appeals from inferiour Judicatures but even these are also in Desuetude Whether Protestations for remeid of Law be allowable notwithstanding of this Act was Debated in Anno 1674. and the King determined by his Letter in Anno 1674. That they were not to be allow'd to Advocats nor Parties after the Lords of Sessions Decisions albeit it was alleadg'd then that by an Act of Sederunt in Anno 1567. Protestations for remeid of Law were expresly excepted in the Act discharging Murmuration against the Lords and that Lethingtoun Balfour and Hope in their Practiques Tit. Lords of the Session do express these as allowable nor are they discharg'd expresly by these Acts and though neither Appeals to the Parliament nor Protestations for remeid of Law before them be not now to be practised by Parties or Advocats yet it is not yet decided how far the Parliament may Rescind the Decreets of the Lords and though they might yet it was urg'd that it is not fit they should since Parliaments may seem more subject to passion and factions then the Session great men have too much influence there and by these and such Appeals the sitting of Parliaments would be very much lengthen'd and because their sitting is uncertain the Sentences of the Lords could not be acquiesced in as a Security and all Pleas would be thereby both endless and expensive and there is as great reason for discharging Appeals to King and Parliament as there was at this time for the Lords then though a Committee of Parliament were not more Learn'd than the Session now and upon these considerations the Parliament 1661. Did by a Letter to the King in a case betwixt Sir Thomas Hamilton and Alrud declare that there could be no Appeal from the Lords of Session THis Act against Litsters buying and selling Cloath is extended so by the 12 Act Parl. 2 Ja. 3. That no Crafts-men may use Merchandise and the reason of this Law is because if they were allow'd to buy they would make none and so neither improve themselves nor the native Commodities of the Kingdom this Act is renewed by the 47 th Act 1 Sessi 1 Parl. Ch. 2 d. EVery Merchant must Sail with at least three Serplaiths of Goods and the Serplaith contains 80 Stone of weight but by the 13 Act Parl. 2 Ja. 3. It is appointed that no man Sail without half a Last of Goods which was introduced because pedling Merchants having very small Stocks were both a discredit to the Nation and were also forc'd to sell at any rate for they could not wait for a price but now all such Acts are in Desuetude Obs. That by this Act it is appointed that none Sail or Trade but free Burgesses which is restricted by the 11 Act Parl. 2 Ja. 3. In which it is declar'd lawful for Prelats Lords Barons and Clerks to send their own Servants and by the 5 Act Parl. 2 Ch. 2 Sess. 3. It is declared lawful for Indwellers in Burghs of Regalities or Baronies and others to send abroad Corn Cattel Neat Hydes and all the Native Commodities of the Kingdom IN all Acts for visiting Hospitals the Chancellor is still one and though by this Act where the foundation of Hospitals cannot be found the Remeid is refer'd to the King Yet by the Act 10 Parl. 1 Ja. 3. It is appointed that where the Foundation cannot be found the Rents shall be bestow'd upon the Poor By the Canon Law Hospitals are not Benefices and yet the care of them belong'd to the Bishop tit 10. quest 2. vid. not on Act 27 Parl. 2 Ja. 1. Supra THis Sumptuary Law is in Desuetude by Musling of Women here is mean'd being Masked FEues being free and gratuitous Donations bestow'd for Service it was just that the Vassal should not have liberty to sell without the consent of the Granter for else others might be obtruded upon him as Vassals and he might want the service of that Family which he particularly chus'd but yet the Feudal Law allow'd the Vassal to grant a Sub-feu which though it may seem a kind of Alienation yet was allow'd by that Law lib. 2. tit 3. § Sed etiam Because in Alienations the Superiour would have lost the Service of the first Family and would have had but one Vassal whereas in Sub-infeudations the first Vassal must still remain Vassal and be lyable to all the Casualities and Services and the Superiour gets likewise another Vassal viz. the Sub-vassal a Sub-feu being likewise but Emphiteusis the Sub-vassal is but in effect a Tennent and therefore by this Act of Parliament the King declares that for better cultivating and labouring of the Kingdom he will allow all his own Vassals to set their Lands which they hold immediatly of him in Sub-feu and it is declar'd that this Act shall be equivalent to a Confirmation And these Sub-feues are by this Act only call'd Assedations and are by the 9 Act Par 6 Ja. 4. ordain'd to be Set for the Policy of the Realm because as I conceive the Kings Vassals being thus freed from the Labouring of their own Lands they might be the abler to serve the King in his Wars and the Land likewise be the better Laboured by these Sub-feuars who could attend the Labouring thereof Upon which Words Our Soveraign Lord shall Ratifie and approve the said Assedation It was Debated whether a Sub-feu set by vertue of this Act
did fall under the Forefalture of the Vassal though it was not Confirm'd in the Person of the Sub-vassal and it was alleadg'd that the Sub-feu could not be quarrell'd because the King by this Act having invited men to take Sub-feus it was not just that the Invitation given by a publick Law should become a snare and having promis'd to ratifie and approve the Sub-feu that promise being insert in this publick Law was equivalent to a Confirmation and therefore should defend against a Forefalture as well as a Confirmation could have done and though these Words were alleadg'd only to import a promise to Ratifie which did imply that application should have been made for a Confirmation Yet to this it was answer'd that this was an Invitation and the Words subjoyn'd thereto must therefore be considered as a present Approbation especially seing there is no time prefixt for craving of a Confirmation nor any irritancy annex'd to the not craving thereof It was likewise urg'd that by the 91 Act Parl. 6. Ja. 4. This Sub-feuing should be no cause of Forefalture and that since this Act would defend against Ward and Recognition it should much more defend against Forefalture upon Treason for that being a most personal crime of which not only the Sub-vassal is innocent but oft-times concurs with the King against his own Supeâ—iour the poor Sub-vassal ought therefore to be less troubled upon it than upon Recognition to which the Sub-vaâ—sal himself is somewhat accessory because he receives the Right upon which the Recognition is infer'd And whereas it was urg'd that by the 37 Act Parl. 2 Ja. 6. The Sub-vassals of the Kings Vassals who were Forefalted at that time are secured if themselves were innocent which Act had been unnecessary if this Act had secured them and that Act is declar'd to have been only Temporary pro eâ vice by the 201 Act Parl. 14 Ja. 6. To this it was answer'd that by this Act such Sub-feus are only allow'd as are set for the just avail and all other Feus might have been quarrell'd and therefore that Act was made to secure the Sub-vassals of Forefalted Persons whose Rights might have been quarrell'd upon that head or else that Act has been made ad majorem cautelam and to prevent all debate which is most usual Upon this Debate the Lords found that this Sub-feu fell not under the Forefalture this general Law being equivalent to a Confirmation February 12. 1674. Marquess of Huntly contra Cairuburrow It has also been Debated whether Wodsets Feu'd out are secur'd against this Act as well as Lands irredeemably Dispon'd and I think they are since a Wodset Right is as properly a Feu as an irredeemable Right What is meant in this Act by the competent avail for which Ward Lands may be feu'd is dubious but the just avail for which the Kings proper Lands may be feu'd is by several Acts of Parliament declar'd to be the Retour-dewty or new extent and therefore I think that the competent avail here must also be interpreted to be the Retour-dewty and in January 1680. betwixt the same parties it was found that though the competent avail be the Retour-dewty exprest in his Service yet the Sub-vassal getting a part of the Lands feu'd to him he ought to pay no more for the competent avail but his proportion of his Superiours Retour-dewty and that if a Charter was given him blank by his Superiour which he fill'd up himself with a special Reddendo the Charter was not therefore null and he was only lyable in his just proportion of the said Retour'd-dewty and the Vassal if he pleases may by a Process against his Superiour get this competent avail to which his share should extend determin'd and that being specifi'd in his Service will thereafter become his Retour-dewty though ordinarly the Sub-vassal to prevent expence or by mistake uses to Retour the Dewty that was payable by his Superiour especially if the difference be not great THe punishment of such as abuse the power of their Jurisdiction of Regality is left arbitrary by this Act. vid. c. 14. Stat. Rob. 2. THis Act is Explain'd in the 96 Act 6 Parl. Ja. 4. BY this Act all Remissions are null except the Party injur'd be Assythed and he who produces the Remission must either find sufficient Caution to pay the Assythment within fourty days or to stay in Prison till the payment and by the 155 Act 12 Parl. Ja. 6. and 136 Act 8 Parl. Ja. 6. It is provided that if the Remiâ—sion contain not an Assythment expresly in the body of it the Remission shall be null but because these Acts were Temporary therefore by the 174 Act Parl 13 Ja. 6. If any Remission or Respit be granted before the Party injur'd be first satisfi'd the Remission is to be null and though by that last Act it would seem that an Assythment subsequent to the Remission would not make the Remission to convalesce because that Act requires that the Remission shall be null as said is yet the meaning of that Act seems only to be that without an Assythment the Remission shall be null From the same Act exception is made of Remissions granted for quieting the Highlands or Borders which may be valid without Assythment Gratiâ factâ a principâ— nocenti non valet nisi pax sit prius habita ab haeredibus offensi which we call a Letter of Slains vel nisi fiat reparatio damnorum Plot. concil 78. Clar. Quest. 58. num 40. ubi traditur posse Regem tamen gratiare nocentem sine pace privati quando damnandus elaborasset pro bono reipublicae vid. l. non omnes § fin ff de re milit The second part of this Act relates to Remissions for SpuilÈieâ— or Theft as to which the Lords of the Session may restore the Party and Assyth him notwithstanding of the Remission By this Act no Free-holder can be forc'd to come to Parliament except he hold a twenty pound Land of the King but none can be now compell'd and this was only in the time when all Free-holders were oblig'd to compear in Parliament as the Kings Head-Court nor can any now Vot in the election of the Commissioners except they hold a 40 shilling Land of the King immediatly or hold ten Chalders of Victual or a 1000 pound Feu-dewty all deducted off a Bishop or Abbot formerly and hold the same now of the King Act 35 Par. 1 Ch. 2. But now again since the restitution of Bishops the Bishops represent their own Land in particular and so their Vassals are not allow'd to sit in Parliament vid. Act 21 Par. 3 Ch. 2. THe negligence so severely punish'd in Judges by this Act must be negligentia dolosa supina and the distinction here observ'd betwixt the punishment of Heretable Officers and others is ordinary amongst the Doctors Bald. ad l. 1. ff de serv. fugitiv where he says that pro negligentia Judex
removetur ab officio sed hoc non tenet in judice perpetuo Farin Q. 3. num 423. says that Majores Officiales non removentur sed minores facile removentur by thâ— cap. 14. Stat. Rob. 2. A negligent Judge viz. a Baillie of Regality is to be punish'd by escheating his Moveables and their life is to be in the Kings will A faulty Judge is also punishable by this Act in the same way as a negligent Judge which must not be mean'd of the meanest fault seing the punishment is so great but whereas by this Act the punishment is the loss of Office for ever if it be not Heretable yet by the 26 Act Parl. 5. Ja. 3. The Heretable Officer loseâ— his Office for three years whereas this Act bears this being lawfully prov'd and notorly kend we must not conclude that a Judge may be convict upon this notoriety without probation for these two are only exegetick of one another and the sense is they being convict upon notor probation Vid. supra observ on Act 16 Parl. 6 Ja. 2. THe Form now to be follow'd in case any man should masterfully possess another mans Lands is that if violence was us'd at the entering then the Council upon a Complaint will restore the party dispossess'd but if the Intrant entred in vacuam possessionem though without any Right he behov'd to be pursu'd before the Session by an action of Intrusion K. JAMES III. Parliament I. BY this Act the third of the KING'S Rents of Assyse that is to say the third of His Lands and Customes belong to the Queen as her Dowrie or Terce allenarly which is conform to the Common Law of this Kingdom by which the Wife has right to a Third of all the Lands in which a man dies Infest and that though she be otherwise provided if she be not expresly secluded from it by her Contract of Marriage so that it seems the Queen would have had right to a Terce of proper Lands belonging to the King though this Act had not been made But now by the 10 Act Parl. 3 Ch. 2. If a Wife be provided to a particular Provision though never so small either in her Contract of Marriage or in any other Write she will be secluded from a Terce except her Terce be expresly reserv'd to her by and attour the particular Provision Nota The Rents of Assize comprehends the Kings Customes and Lands as was found Decemb. 9. 1466. and March 11. 1500. Ogilvie contra Gray It may be doubted whether this Act was Temporary relating only to this Queen or if any Queen of Great-britain will have right as Queen of Scotland to a third of the Property conform to this Act since the Act seems to be reasonable in it self and that the Queen is founded in this right by the Common Law and if this had been only a Temporary Right relating only to this Queen it would not have been inserted amongst the general Laws or at least it would not have been generally conceiv'd as this Act is in these Terms The Dowrie of the Queen for terminus indefinitus aequiâ—ollet universali I find that in the 191 Act Parl. 13 Ja. 6. Queen Ann is provided to the third of the Property but not to the third of the Customes but that being by express paction derogats not from this Law SOmetimes Benefices Ecclesiastick were bestow'd upon secular persons who were call'd Commendators because the Benefice was commended and intrusted to their oversight and they were Procuratores in râ—m sâ—am habebant tantum detentionem possâ—ssionem but were not Proprietars and so could not Dispone Roman Concil 350. And because Commendators were but Trusties or Tutors Therefore Rights made by them though with consent of the Chapter are no longer binding in our Law than during the Commendators own Right And by this Act these Commendams are discharg'd and yet the Deeds done by them are not annull'd and therefore many Rights made by Commendators since this Act are sustain'd as valid though they were not Proprietars By the Canon Law only the Pope could grant commendam perpetuam and the Bishops could only grant Commends for six Moneths c. Nemo Elect. l. 6. THe pain of Lawburrows here exprest is hightned by the Act 166. Par. 13 Ja. 6. by which every Earl or Lords Penalty is made two thousand pounds every great Baron a thousand pounds every Free-holder a thousand merks every Fewar five hundred merks the un-landed Gentleman two hundred merks and the Yeoman one hundred merks which last Act is now observ'd and though Penalties be exprest here against breakers of Lawburrows found to Church-men and that there be no mention made of them in the last Act yet an Arch-bishop or Bishop can pursue now for the same penalty that is due to an Earl and Bishops and their Wives are allow'd the same Solemnities at their Funerals that are allow'd to Noblemen and their Wives by the 14 Act 3 Par. Ch. 2. And though there be no mention made here of Dukes and Marquesses yet the priviledge granted to Earls is extended to them 2 o By this Act the Penalty is to be apply'd to the King and is due by and attour the Reparation due to the person les'd but by the last Act and the present Custom the Penalty is to be divided betwixt the King and the Party and though by this Act the Master is free if he present his Servant who breaks the Law-burrows Less than the Law-burrows that is to say he who found the Lawburrows bring the Trespassors to the King or Sheriff within fourty days Dominus noxali judicio servi sui nomine conventus servum actori noxae dedendo liberatur yet by our present Custom the Master finds Caution that the Raiser of Law-burrows shall be skaithless from him against whom it is rais'd and his Men-Tennents and Servants and therefore the Master seems now lyable though he should present his Servants Albeit these be the ordinary Penalties allow'd where there is no other proof of the Danger then the Oath of the Complainer yet if the Complainer prove Threatnings the Council or Criminal Court may ordain surety of Law-burrows to be found upon such sums as they think proportional to the danger Vid. Not. on Act 129 Par. 9 Ja. 1. Supra THough by this Act all Summons are to be on twenty one days Warning yet all Summons that are priviledg'd by their own Nature or the Lords Deliverance come in upon six days vid. Hope Form of Process and by an Act of Sederunt July 21. 1672. It is declar'd that no Actions can be priviledg'd except Removings recent SpuilÈies recent Ejections Intrusions succeeding in the Vice Exhibitions Causes alimentary Summons for making forthcoming Transferrings Poyndings of the Ground Walkennings special Declarators Suspensions Prevento's and Transumpts all which and all second Summons in all Actions are to come in upon six days warnings except recent SpuilÈies because by the 65 Act Par.
a great difference in our Law betwixt these persons being free to Trade and so not lyable to the pains of un-free Traders and their being free from paying of Customs and the first two Acts cited do certainly Militate only in the first case by granting them a freedom to Trade but not a freedom from paying of Customs And as to the 251 Act 15 Pâ—r. Ja. 6. It does not grant an exemption from Customs And albeit it may be urg'd that the first part of that Act having imposed Customs on all and this being an exception it must be an exception from the Rule yet consequential Arguments should not take away express Laws nor is this an exception but rather a Cautionary Reservation and these use to be insert ad majorem Cautelam and should never be extended beyond the Terms of the Reservation But so it is that the Reservation is not conceiv'd absolutely but only conform to the Laws and Liberties granted to them before And therefore since it cannot be subsumed that there are any former Laws granting this exemption from Customs it must be restricted to the priviledge of their bâ—ing free from the pains of un-free Trading only 2 o. It is to be consider'd that the former Laws allows them only the liberty from being punish'd as un-free Traders as to what they import by their own Servants for their own privat use and as the return of Commodities of their own product exported by them Nor does the 143. Chap. Leg. Burg. extend further than to exeem Barons from in-land Customs due to Subjects 3 o. The time of that Act the Customs were justly impos'd upon exported Goods But thereafter His Majesty was graciously pleas'd to lay the greatest part of the Customs upon the imported Commodities and so having very much freed the Barons of a Duty that burdened their product it was not reasonable that their product and imported Goods should be both free Likeas so convincing was this Argument that albeit some shadow of an exemption was subjoyn'd when the Customs were imposed upon their product by the first Constitution in that Act 251. yet when this burden was transferred by the Act 1670. from the export to the import the Barons did require no such exemption nor does the Act bear any And so this Act is innovated by the said posterior Act. As to the Excise there can be no pretence for any exemption from it since there being no such Duty extant the time of the Act 251. That Act cannot be extended to the Excise And whereas it is pretended that by the Act 3 Sess. 2 Pa. Ch. 2. This exemption is renewed after the imposing of Excise It is answered that the said Act Ch. 2. does not express any such priviledge but only says that the Regulation of the differences betwixt the Burghs Royal and Burghs of Barony introduced by that Act shall be but prejudice to the Noblemen Prelats and others of their priviledge of importing any of the Goods allowed to be then imported for their own and families use allenarly Which can only be interpreted to relate to their freedom of Trading that being the only design of the whole Acts in which there is no design of Restricting or innovating any thing with relation to Custom or Excise And thereafter since at all times the King is founded quoad the payment of Customs much less ought we to Debate this with him at this time when His Majesty is content to lessen his uncontroverted Right in the Customes for the enriching these who controvert this his Right by consenting at their desire to discharge more imported Goods than would pay him more Customes then he can expect from these not exeemed Notwithstanding of these Reasons yet by the present Tacks Noblemen and Gentlemen are exeem'd from paying Customs for what they bring for their own use but they are not exeem'd from Excise nor the additional Duties because these were granted to the King in contemplation of what the King lost by the want of the Custom due to him upon Goods now prohibited vid. Gimnas de vectig p. 76. Where it is told us that by the Laws of Germany Illustres generosi sunt immunes pro his quae sunt pro victu cultu suo vid. l. omnium C. de Vectigal VId. Annot. Act 66 Par. 14. Ja. 2. VId. Annot. Act 67 Par. 14. Ja. 2. OBser 1 o. This Act appoints all Ships to have Chartor Parties and because there was no penalty against these who had no Chartor Party therefore by the 109 Act Par. 14 Ja. 3. The penalty of twenty pounds is adjected and yet both these Acts are in Desuetude for within the Kingdom no Chartor Parties are used nor are they found necessary even for these who Sail abroad Observ. 2 o. That though it be said in this Act that when any Debate happens betwixt Master and Merchant that they shall underly the Jurisdiction and Ordinance of the Burgh to which the Ship is fraughted without any exception yet by the Custom now observ'd such Pursuites may be intented against the Defender wherever he dwells or before the Lords even in the first instance Observ. 3 o. That though by this Act it be ordain'd that no Merchant Goods be riven or Spilt with unreasonable stowing or the Masters fault under pain of tinsel of the Fraught and amending of the Skaith yet the Skipper is lyaâ—le if the Goods be spilt though without his fault ex casu fâ—rtuito as by Water from a Pomp though the Pomp had a Stellage about it and was proven to have been a sufficient Pomp before the Ship set forth so that this danger could not have been foreseen quamvis locator non tenetur ex casu fortuito and the words in a Bill of Loadning obliging the Skipper to restore the Goods well conditioned can only bind ad exactissimam diligentiam Vid. Peckium pag. 34. Yet the Lords thought that if such Defences were allow'd Merchants could have no Security for they were neither oblig'd to know nor could they prove the secret frailties of Ships November 7. 1677. Lowrie contra Angus This Act in so far as it appoints a Seek-Fraught to be paid to the Chaplain of the Nation is in Dâ—suetude And by the Chaplain of the Nation here is mean'd the Kings Almoner which was to be given to him for the use of the poor for in the next line it appoints a Tunn Fraught to be paid to the Kirk-work of the Town to which they are Fraughted but I know there are some who say that Capellanus noster mentioned among the Witnesses to the Kings Deeds is mean'd the Director of the Chancellary the Chancellary being call'd in all our old Writs Capella Regia BRuges was the first Staple of this Nation but it 's discharg'd by this Act to be the Staple for the future and our Ships are allow'd to go to the French Ports by the following Act because of the Alliances we had with France
Inventions in Anno 1469 and Reversions were only personal and did not oblige singular Successors before that Act but by this Act they affect singular Successors providing they be Registrated And though this Act speak only of Reversions yet elks to Reversions and obligations to grant Reversions are also real Rights if Registrated 2 o. A Reversion though not Registrated is by our Law valid against singular Sucâ—â—ssors if it be Incorporated and contain'd in the body of the Wodset it self for then the singular Successor must know the same since it is Incorporated in his own Right BY this Act personal Rights are ordain'd to prescryve if no Diligence was us'd thereupon within fourty years as Heretable Rights do prescrive by the Act 12 Par. 22 Ja. 6. And though this Act appoints only Obligations to prescryve and that the word Obligation does properly signifie only Bonds and Câ—ntracts yet this Act extends to Testaments and Decreets July 26. 1637. and this prescription is also extended to all personal Actions for Moveable Goods and so it did defend against an action for a Kirk-Bell December 7. 1633. For in effect all these are Obligations Whereas the Act says except document be taken thereupon the meaning is that Diligence upon the Writ that is to prescryve interrupts Prescription and thus Horning upon a Bond or Citation upon an Action interrupts July 6. 1671. M crae contra M cdonald and payment made by the principal Debitor interrupâ—s as to the Cautioners It is observable that Prescription upon this Act runs not against Minors contra non valentes agere though neither of these are excepted in this Act because these Exceptions are warranted by the Common Law and it may be alleadg'd that it runs not against furious Persons since they are in all things compar'd to Minors albeit there is this difference that a man may feign himself to be fuâ—ious to the end Prescription may not run against him But yet Prescription runs against things left ad pios usus nor is the time of War and Pestilence when there is no Judicature nor Session to be defalked June 30. 1671. Prescriptions runs only against personal Bonds from the Term of payment and not from the Date of the Bond because till then the Creditor cannot pursue Feâ—ruary 19. 1680. Lutefoot contra Glencorse IT is pretended that this Act is in Desuetude and that Magistrats may be continued for many years or at least that this Act must be so Interpreted as to infer only a necessity of a new Election yearly but not of yearly changing the persons elected for sometimes there are few to be choosed as in small Burghs and in great Burghs a forc'd alteration might prejudge the Towns Interest because there are few worthy to be Elected in these little Towns and the Lords inclin'd to this Gloss in the Town of Edinburghs Process against Sir Andrew Ramsay The Burrow Law here related to is cap. 77. leg burg it appears by this and many other Acts and old Evidents that Alderman was the same of old with our Provost and they are still plac'd above Baillies it comes from the Saxon Word Ealdor Senior thus we say for age or for eeld NOtars are now only chosen by the Kings Authority and are Examined by three Lords of the Session and get their Protocals marked at their admission by the Clerk to the Notars who is one of the Registers Deput Clerks Nor are the Notars to be admitted by the King to be Examined by the Bishops as this Act appoints and yet our Style retains to this day so much of the old Form that the Notars express still in all the Instruments and other Papers sign'd by them that they are Notars of such a Diocie BY this Act all Woolen Cloath is to be met by the Rig and not by the Selvedge but by the 43 Act 1 Par. Ch. 2. Linen Cloath is ordain'd to be taken up by the Selvedge and not by the Rig because Woolen Cloath stretches when measur'd by the Selvedge but the Selvedge of Linen hinders it to stretch THough this Act appoints only Heretable Sheriffs or Sheriffs in that part that is to say any ordinary person who executes the Kings Letters to put their Stamp to the Execution yet by the 74 Act 6 Par. Ja. 5. The execution of all Letters must be stamped and though here the not Stamping makes the Executions to be only null yet by that Act such as omit to stamp are punish'd by Deprivation Vid. Observ. on that Act. Oppression of the Kings Leiges in Fairs by taking more Custom from them than is due is by this Act punish'd only arbitrarly as to the offenders Persons and by a years Suspension from their Offices and what Custom is allow'd in such cases is exprest Act 60. Par. 13 Ja. 2. How far arbitrary punishments may be extended is doubted These who have Fairs had not power to exact Toll gl in l. un C. de nundinis because Fairs enrich the place and Toll wrongs Commerce THough removing of Tennents and poinding their Goods be appointed by this Act to be three days after Whitsunday or Martinmass yet by the 39 Act 6 Par. Q. Mary All warnings against Tennents are to be used fourty dayes before Whitsunday only the old Form of Removing was That the Master did only intimate to the Tennent that he was to remove and broke a Lance before the Tennents Door as the Symbol of breaking their Tack and within 3. days ejected the Tennent as Craig observes but now the Tennent must be warned 40 days before the Term and a Decreet of Removing must be had whereupon he must be Charged and Denunced before he can be Ejected and after that Letters of Ejection are directed to the Sheriff ALL Murders committed by Fore-thought Fellony that is to say upon design or per insidias called Assassinium are denyed the Protection of a Sanctuary or Girth by this Act but it appears that the Crime of Assassination was here excepted expresly because it not being exprest in the very Text of the Canon Law there were several debates about it vid. Covar Variar Resolut cap. 20. For though it be ordinarily proved per cap. 1. de homicidio si quis per industriam occederit proximum suum per iâ—sidias ab altari meo avellet cum ut moriatur which Text seems to be mean't by these words in this Act For the which the Law grants not the Immunitie of the Kirk and in which our Law has followed the common opinion that Assassinators are denyed the priviledge yet cap. inter alia gives Immunitie to all except publicus latro depopulator agrorum and that cap. de homicid Excepts only Church-men who have Assassinated proditorie and who indeed should have less Immunitie than others but now the Churches being a Sanctuary or Girth is in Desuetude since Poperie was abolished though the Kings Palaces are still Sanctuaries in all Nations if Princes be
favours of commerce and of poor Debitors but to ballance this speciality the Superiour is allow'd to retain the Land comprised to himself upon payment of the sums comprised for because he is also proprietar of the Lands having dominium directum as the Vassal who is Debitor has Dominium utile vid. 5. March 1634. Black contra Pitmedine But it was lately found that the Superiour could not redeem after seven or ten years no more than the Vassal for though the legal as to the Superiour be not limited yet he comes but in place of the Vassal and so ought to have no more priviledge and this general must be restricted by the other parts of the Act. 5 o. Though the Superiour be bound to receive the Comprisers and that without producing their Authors Right because it is not presumable that their Debitors from whom they comprised will produce their Rights to them yet where Adjudications are led for compleating Dispositions or other Rights the Superiour is not oblig'd to receive such Adjudgers until they instruct the last Vassals Right for such Adjudgers as these are not ordain'd by the Act of Parliament to be received June 24. 1663. M cneil contra M cdougal But it may be doubted what an Adjudger who has done ultiâ—at Diligence to recover his Debitors Writs shall do if he cannot obtain them it being very hard that he should ly out of his Right because of the contumacy of the person who is oblig'd to compleat the Right Vid. obs on the 19 Act Par. 2 Sess. 2 Ch. 2. THough it is said here that Justice-airs need not be continu'd yet Justice-courts are declar'd peremptor so that if Actions before them be not call'd the day to which the citation is given the citation is null perit instantiâ Act 79. Par. 11. Ja. 6. Vid. Observ. on that Act. BY this Act it is declar'd that the Rolls and Registers be put in Books and have the same strength that the Rolls had for understanding which it 's fit to know that both in Parliament and Exchequer there were no Registers but Rolls And by this Act the Rolls are ordain'd to be turn'd into Books and these Books are declar'd to be as authentick as their Originals and the Clerk is yet design'd Clerk of the Council Register and Rolls THis is the only Act by which counterfeiters of Money are punish'd by death and yet this Act properly stricks against the counterfeiters and coyners of Copper-money only which in our Law is call'd black Money It has been doubted whether the Officers of the Mint could coyn Copper-Money without express permission but it was lately found they could not because coyning is ex sua natura inter regalia 2 o. There have been several warrands expresly granted to the saids Officers themselves for coyning Copper-money and determining the quantity to be coyn'd and the rates to be follow'd which had been needless if this could have been done without a Warrand 3 o. There is so great profit to the Coyners and so great loss to the people by coyning Copper and black Money that it was necessary the coyning should have been determin'd 4 o. It had been unnecessary and absurd to have discharg'd the counterfiting and currency of Black-money by this Act if it had been lawful to have coin'd without a Warrand and whereas it was alleadg'd that black money was Coin'd in England without warrand To this it was answer'd that such farthings c. past only in the place where they were coin'd in England but what passes in one place of Scotland passes through all Vid. Annot. on Act 28 Par. 6 Ja. 2. Supra King JAMES the third Parliament 6. THe design of this Act is to shew that in Reductions of Decreets of inferiour Courts before the Parliament the Defender is not allow'd to propone Defences that were competent and omitted in the first instance and yet in Reductions of Decreets of inferiour Courts before the Session alleadgances though competent and omitted at the time of the first Decreet are receivable by the Lords especially if the Decreets be in absence Nota That Dilators might have been then propon'd separatim but now after a Dilator is repell'd all the other Dilators must be propon'd together Nota 2 o. It is clear by this Act that Decreets of inferiour Courts were reduc'd before the Parliament but these Lords were then not what our Session is now the Session being then a Committee of Parliament as is also clear by this Act. Nota 3 o. That Brieves of mort-ancestrie which are now call'd Brieves for Serving of Heirs were then led and expede in Justice-airs though it was still by an Inquest as this Act bears and if then Difficulties did occur in serving of Heirs it is clear that superiour Courts might give their opinion upon these though they cannot serve an Heir and thus two several persons having rais'd Brieves for serving themselves Heirs to Captain Ross they were Advocated from the Macers and it was Debated before the Lords what Probation was sufficient to exclude the King as ultimus Hares albeit it was alleadg'd that this was only proper to be Debated before the Inquest and yet though the Lords may determine how a thing may be proven ipsum modum probandi as in that case where the Debate did run whether the being habit and repute Cousins was sufficient in agnatione antiquâ yet the Lords in the case Forrester contra the Heirs of the Laird of Wrights-houses refused to consider the Probation it self and the Objections against the Writs produc'd but remitted the same to the Inquest though it was alleadg'd that it being objected here that the Writs produc'd for Probation were vitiated the Lords could only judge this as being species falsi but withal the Lords declared that if the Inquest desired to know whether the Papers were vitiated they would give them their opinion therein The Lords of the Session themselves have been sometimes the Inquest as in Serving King CHARLES the First Heir to Queen Ann his Mother and King CHARLES the Second to the Duke of Lenox though it was alleadg'd that this was inconvenient because no other Judge could reduce their Verdict but certainly either the Parliament might have reduc'd it and found them guilty of Error or the Lords of the Session might have reduc'd their own Verdict upon new Probation for in this case they proceeded not as Supream Judges but as Members of Inquest The Parliament have been sometimes the Inquest as in Serving the Earl of Mar Heir to his Mother BY this Act the Party put to the Horn for Slaughter is to find Caution before he be Relax'd not only to compear to underly the Law but to pay twenty pounds for his Escheat Goods and this is to this day exprest in all Relaxations VId. observ on Act 38 Par. 4 Ja. 4. BY this and by the first Act of this Parliament it is clear that that Parliament did
Delegat some of their number not only in some particular cases but with a general power to represent them in all things which seems hard for that were to make and create a new Parliament but here their power was Delegated only as to Debatable cases for these Lords were then in place of the Session and I have heard it Debated if the Council could Delegat their Power to any of their number as to all things for that were to make a new Council and since the King impower'd only nine to be a Quorum they might not impower a fewer number nor were it fit for the People to have the Supream Power committed to so few nec potest delegatus delegare Nor can the Justices nor Commissioners for Teinds make such Committees though they are as Supream as the Council vid. Observ. on the last Act 10 Par. Ja. 3. BY this Act it seems that the Council may reduce the Verdicts of Inquests and Sentences of the Justices though the regular way of questioning Assizers who assoilÈe be by a Summons of Error before the Justices and a new Inquest of fourty five persons and de facto the Council do cancel such Verdicts and Sentences before themselves as they did in George Grahames Case and ordinarly they mitigat the Sentences of the Justices Nota The Books of Regiam Majestatem are by this Act called His Majesties Laws and the place here related to is lib. 1. R.M. cap. 14. BEcause the Riches of this Realm consists chiefly in our Fishing therefore Bushes are ordain'd to be made since these are able to ride out in Storms which lesser Vessels cannot do and it is best fishing when the Waters are troubled this is renew'd by the 49 Act Parliament 4 Ja. 4. THough by this Act he who tines his Action is to pay fourty shilling of expences yet the modification is left arbitrary to the respective Judges conform to the Civil Law which appoints condemnationem in expensas litium damna contra temere litigantes Inst. hic depen temerè litigantium § 1. And by the 43 Act Par. 11 Ja. 6. The Defender pays twelve pennies out of every pound to the Lords and the Defenders expences at the Lords modification King IAMES the third Parliament 7. BY the Civil Law he who is to succeed as Heir is still to be Tutor of Law but because this could not well be where the immediat Heir was himself under twenty five yeaâ—s and therefore by this it is appointed that the age of a Tutor of Law or Tutor legitimus shall be the age of twenty five years though the age of majority be twenty one because it requires greater experience to Govern other mens Affairs than our own and if the immediat Heir be not of that age the next Heir who has attain'd to that age is to be Tutor And by the Civil Law no man could be a Tutor even by a Testament till he attain'd to that age Inst. qui testament tutor § 2. By this Act also the nearest Agnat that is to say the nearest of the Fathers side is to be Tutor which was conform to the old Civil Law but Justinian by the Nov. 118. did take away this difference betwixt Agnats and Cognats both as to Succession and Tutories and we in both follow the old Law and not this Novel BY this Act the Laws called leges burgorum bound in with Reg. Maj. are declard a part of our Law and the Chapter particularly related to is cap. 125. Though this Act appoints only the Heirs of Barons Gentlemen and Free-holders to have Heirship-moveables Yet by our Law all Prelats Barons and Burgesses may have Heirs and these Heirs have right to the best of every thing that belong'd to their Predecessor as their heirship-moveable conform to a Roll expressing what is heirship-moveable a copy of which Roll may be had from the Clerk of Edinburgh the reason why moveable-heirship was allowed only to Prelats Barons and Burgesses seems to be either because these being the only three States of Parliament they only ought to be allow'd such considerable Plenishing as heirship-moveables or else because in those dayes none but persons of these qualities could have such moveables under the word Prelats are comprehended all benefic'd persons By Burgesses are understood all Trades-men and others Traffecking or working within Burghs but not honorary Burgesses By Barons are understood all who are Infest in Lands though not erected in a Barony and that maxime semel baro semper baro is to be interpreted presumptive so that he who is Infest in Lands is presum'd to die Infest But if he was devested before his death either by Comprysing Resignation or otherwise he cannot be counted a Baron and have an heir January 27. 1636. Straton contra Chirnside These words of the best of ilk thing must be interpreted de corporibus but not de quantitatibus rebus â—ungibilibus quae pondere numero vel mensurâ constant as Money Cloath c. and so the Stool of a Salt-pan which was out of use was accounted but Iron and fell not under moveable-heirship Had. 1497. Reid contra Thomson Item where there are a dozen of Spoons or moe the Heir shall have a dozen if they be fewer he gets but one Spoon Dict. cap. 125. l. burg which Custom hath extended not only to other things that go by dozens but likewise so as these things that go by pairs and are of one use must belong to the Heir and thus the heirship of Oxen was found to be a yoke July 20. 1610. Black contra Kincaid Dubitatur 1 o. If the appearand heir of a man who has only a Disposition but is not Infest may have moveable heirship Dubitatur 2 o. If the appearand heir of him who has an Assignation to a reversion of Lands may have moveable heirship since Assignations to Reversions are real Rights BY this Act it is declar'd that the Act ordaining personal Obligations to prescrive in fourty years was to be interpreted so as to extend to all Obligations prior to that Act which seems hard for these who had these Obligations were in bona fide not to do diligence and therefore some time should have been allow'd to do Diligence as thirteen years were allow'd in the Act of Prescription 1617. and therefore it would seem that the Act 29 Par. 5 Ja. 3. Ordaining personal Obligations to expire in fourty years rather declares what was Law before and that such Prescriptions have been formerly allow'd hereupon the common Law or some old Act for this Statute likewise says the time of the making of the said Acts so that it appears there have been other Acts besides that one to which this relates REtours to this day express the old and new extent by the old extent is meant that to which the whole Lands of Scotland were valu'd by the first general Valuation And by the new extent is understood the second Valuation which was long
after the former The old extent is said in all Retours to be tempore pacis and the new tempore guerrae or belli the reason of which some think to be that the new extent being made in time of War there was a necessity to highten the Valuation for maintaining the War These Casualties being the greatest part of the Kings Revenue whereas the old extent is very inconsiderable being in time of Peace when there was no necessity for any addition to the Revenue and when the value of the Money was very mean BY this Act four of the old Council are to sit with the new Council but this Act is now innovated by the posterior different Constitutions of privat Burghs Edinburgh and many other Burghs having far more whilst others have but the numbers here prescrived or fewer And as to Edinburgh the manner of choosing the Magistrates and Councâ—l thereof is regulated by â—KING IAMES the sixth his Decreet arbitral commonly call'd the Sett Vid. Ja. 3. Par. 5 Act 30. THe Superiour not entering to his Superiority to the effect he may enter his Vassal tines his Superiority for his lifetime and though this Act determines not for whose lifetime the Superiority is to be lost yet by an Act of Sederunt Anno 1634. It is ordain'd That the Superior tines his Superiority for his own lifetime and not for the Vassals lifetime and declares this to be the meaning of the Act. BY this Act it is clear that stealing of Dogs Hauks and the like is not to be punish'd as Theft but only by a fine or Penalty of ten pounds and in effect this is not contrectatio rei alienae lucri faciendi causa these Beasts being rather useful for sport than gain but it may be doubted if a Fowler who makes it his Trade ita lucrum sacit may not be punish'd as a Thief for stealing another poor Fowlers Dog who lives by that Trade and whose Dog is his Pleugh and especially since such Dogs are now bought and Sold. THis Act containing the pains of such as break Dovecots Cunninghares c. is alter'd and the Penalty hightned by subsequent Acts of Parliament viz. by the 84 Act 6 Par. Ja. 6. and by the 3 Act Par. 19 Ja. 6. but these Acts are without prejudice of putting all former Acts to Execution made against the foresaid Crimes THis penal Statute against Ferriers not making Bridges is in Desuetude as are the Prices here exprest Vid. Act 39. Par. 3 Ja. 1. Supra and Act 20 Par. 4 Ja. 3. King JAMES the third Parliament 8. IT would seem by this Act that all ordinary Actions must be first pursu'd before inferiour Courts which is likewise appointed by the 105. Act 14 Par. Ja. 3. But now any Action may be pursu'd before the Session or Parliament in the first instance But there can no action be rais'd before the Parliament without special warrand first past in the Articles for bringing the same before the Parliament Vid. not on Act 16 Pa. 6 Ja. 2. Act 76 Pa. 19 Ja. 2. and 27 Act 5 Pa. Ja. 3. supra BY this Act which is in present observance such Assyzers as assoilÈie a Pannel unjustly are to be pursu'd for Error but such as condemn him unjustly are not the reason whereof seems to be that the Law-givers presum'd that no Assyzer would condemn unjustly but that probably they might shew favour in absolving and if Assyzers were punish'd for condemning they would never Condemn and since they get no Sallaries they should not be severely us'd but though we have no Law allowing assyzes of error against such as condemn yet it may be alleadg'd that Assyzers may be pursu'd if they condemn a man without any shadow of probation 2 o. This Act appoints that the Assyzers who are to judge of the Error be noble persons for these that are to judge of the Error of others ought to be more judicious than they but by a Statut Sess. 1591. c. 117. It is declar'd that by noble persons is meant only Landed-gentlemen 3 o. The error must be infer'd upon Principles and Grounds which were represented to the Assyze at the time of the Verdict though the Retour may be reduc'd upon other grounds than such as was than represented as is clear by the Act 13 Par. 22 Ja. 6. It is also appointed by this Act that though the Verdict be reduc'd yet the person assoilÈed unjustly cannot thereafter be punish'd there being jus quaesitum to him by the Verdict and upon the same principle by the 91 Act Par. 11 Ja. 6. If any speak to the Assize after they are inclos'd the Verdict is declar'd null but the Pannel being thereby acquit cannot thereafter be accus'd 4 o. The place of Reg. Maj. cited but not exprest in this Act is lib. 1. c. 14. where an assize of error is said to consist of twenty four leil and lawful men though they are call'd here twenty five noble persons 5 o. It may be doubted from this Act whether though the Pannel be not assoilÈed yet it any or moe assizers who voted to assoilÈe notwithstanding of the clear Evidences to the contrary may not be pursu'd as temere jurantes super assisam since he is guilty of Perjury and Perjury is infer'd from an unjust Oath and not from the Effect and though it may be pretended that he follow'd his privat knowledge yet that cannot defend since this may be urg'd for all of them if all should assoilÈe nor could any thing deter each particular Assyzer more than that each may be found guilty whereas if they thought that they would not be lyable except the major part assoilÈed they would adventure upon assoilÈing as an uncertain Event But yet the Justices inclin'd not to this Opinion since no Error was ever pursu'd except where a person guilty was freed this being the vindicta publica allow'd in that case It is likewise observable from this Act That the Assyzers committing wilful error shall first be called before the King and His Council who shall give them a great Assyze and therefore His Majesties Advocat having pursued an assyze of Error in July 1681. He first called the Persons who had committed the Error before the Privy Council and asked at every man Judicially whether he owned his Verdict or not and these that owned not the Verdict were not insisted against Criminally but when this Cause came to be called before the Justices It was alleadged for them 1 o. That the Verdict bearing only that the major part had assoilÈed non constabat who had assoilÈed and who condemned which should hold much more after the Act of Regulations in Anno 1672 by which it is appointed that the assyzers should mark in their Verdict who assoilÈed or condemned to the end it might be known who should be pursued for Error but this was repelled because the King being prejudged by the Verdict their giving in the Verdict made all
Criminal and such as were free should prove their innocence for else it should be impossible for the King to be able otherwise to prove the guilt which should hold much more now because the Assyzers had by the Regulations an easie remedie for preventing this sibi imputent who did not mark who assoilzied and who condemned and though these Regulations introduced that as a further remedie for clearing this matter yet that was not necessary for there were Assyzes of Error before Assyzers were ordained to be so marked 2 o. It was alleadged that this was not wilfull nor by partial means which partiality behoved necessarily to be proven by the words of the Act but this was repelled because the Error being clear the Error behoved necessarily to be wilfull and by partial means nor was it possible to prove these occult qualities otherwise than ab efâ—â—ctu 3 o. It was alleadged that there being fourscore upon the Pannel the difficultie of differencing the Probation might excuse from wilfull Error but this was repelled because the probation adduced was so clear 4 o. By this Act Assyzes of Error are only to be allowed where the Persons Indited are shown before the Assize in the assyze of Error but so it is the persons assoilÈed by the former assyze were Forfaulted in absence and were neither then nor now shown to the Assyze and the reason of this speciality is because if the Persons assoilÈed were present they might prove their own innocencie and so clear likewise these who assoilÈed them but this was repelled because by these words Shown before the Assyze is only meaned that their Designations and not their Persons should be shown to the Assyze of Error for else there could be no Assyze of Error in Forfaulters in absence and though the Persons were present they would not be admitted hoc ordine to clear their own innocence and the Assyzers should have assoilÈed or condemned according to the Probation then led FOr Explication of this Act vid Not one Act 143. Par. 13. Ja. 1. THis Act is explained in the Observ. on the 17. Act 1 Par. Ja. 6. BY this Act Deeds done and Rights made by Furious Persons or Idiots are reduceable not only from the date of the Brievs but from the time that these Persons were found to be Idiots or Furious for the Verdict of the Inquests upon such Brievs is declaratory and finds that these Persons were such from such a time Observ That albeit from the Stile of the Brieve of old a Furious or Idiots deed could only be reduced from the date of the Brieve and that by this Act such Deeds be only declared to be Reduceable from the time that the Inquest found that the granter was Furious or Idiot yet the granter himself being convalesced may reduce Deeds done by himself though there was neither Brievs nor Inquest finding him Furious the Furie being clearlâ— proven there being no reason that the negligence of Agâ—ats or Friends in not raising Brievs should prejudge the Furious Person 21. Feb. 1632. and which seems yet harder the Heir of the Furious Person will be allow'd to reduce though there was no Brieve nor Inquest in his own lifetime and it is very hard to know his condition after Death July 26. 1638. for sententia aut decretum judicis non facit furiosum sed declarat but there is this difference that if the furious person was declar'd by an Inquest that Verdict proves per se as to all deeds done after but if this Idiotry or Furiosity was not found by an Inquest it must be prov'n by Witnesses and when the furious person is re-convalesc'd deeds done by him after that are valid though there be no Declarator and if there be only lucid Intervals the deed is presum'd to have been done in the fury or lucid Interval according as the deed itself is reasonable or unreasonable and for clearing of this the Lords in a case Steuart contra Steuart ordain'd Witnesses to be led before answer to clear what condition the Granter was in at the subscriving of the deed contraverted and it would seem that the presumption lyes for its being done during the â—ury and not during the lucid Interval if the Granter was found furious by an Inquest bâ—cause this Act of Parliament sayes That frae it may be known by the Inquest that the persons are Fools or Furious all Alienations made by them shall be null Oâ—serv 2 o. This Act of Parliament stricks only against natural Fools and Idiots and therefore where men become Idiots by doting or old age though they cannot recover or by sickness where they may recover It was thought that they could not be found Idiots by an Inquest and indeed this were very dangerous for many who have been very famous and great men might have been thus affronted in their old age or sickness or at least the Exchequer will not grant Tutories Dative to the nearest Agnats until their condition be first try'd by an Inquest though the Cravers offer to prove the same by Witnesses beyond all Exception and thus it seems that though deeds done by Idiots or Furious Persons may be declar'd null by way of Action yet themselves cannot be declar'd Idiots otherwise than by an Inquest Observ. 3 o. That though all deeds done by furious Persons are here declar'd null yet sometimes they may oblige themselves validly is absents and Pupils may be oblig'd â— furiosus ff de act oblig l. si a furioso ff si cert Pet. vid. Act 18 Par. 10 Ja. 6. Observ. 4 o. From these words and though it be known by the Inquest that the Inquest may find a person Idiot or furious upon their proper knowledge for they are both Judges and Witnesses by our Law Vid. observ on the 18 Act 10 Par. Ja. 6. BY the Act 68 Money and Gold being cry'd up that is to say the value of Coyns being rais'd by the Parliament here which is now usually done by the Council both as to forraign Coyns and our own the Parliament did by the 69 Act ordain that all Debts should be paid with sick Money and of the same price as the money had course before this Proclamation and Act which was only to take place where the Terms of payment were by-past before the Act which makes me think that the reason of the Act was because the Parliament thought it just that no mans Breach of Obligation mora should be advantageous to him and if the Creditor had got his Money in specie he might have made other use of it by carrying it abroad c. But yet now all Debts may be paid according to the course that Money has the time of the payment for as the Money may be cry'd up so it may be cry'd down and to bring both to an equality the Debitor and Creditor run an equal hazard for whatever difference may be as to the taxing the price of other things si
understood Common Bills for Law-burrows upon Common Bills are only raised in course before the Session and there is a particular Servant in the Bill Chamber whose Office it is only to write upon these Bills and take the Bonds and see that the Cautioner be sufficient but the Council and the Criminal Court only exact Caution of Law-burrows when there are Processes intented before them and the Judges there do see that either Party has reason to fear bodily harm because of what has preceeded BY this Act Dismembration is made equal to Slaughter and it is to be try'd within three Suns and seems by this Act to infer death if it be upon Forethought-fellony but I have not observ'd it punish'd by Death but only as mutilation by an arbitrary punishment or Confiscation of Moveable and Assythment to the party Vid. 118 Act Par. 7 Ja. 5. BY this Act the Kings Leiges are to assist at Justice-airs under pain of being punish'd as favourers of the Trespassers and that Dittay is to be taken up against them for that effect but by our present practice though the Heretors of every Shire be by a Proclamation ordain'd to attend the Justices whilst they remain in their Shire yet their absence is never made point of Dittay I find by the Registers of Council that all the Southern Shires were cited to attend the Justice-airs in Q. M. Reign and to bring with them provision for twenty days ALl these Acts are in Desuetude but it 's observable that Park of Foulfoordlies being charg'd to wait upon Hume of Wedderburn his Superior at the Host conform to his Charter and being thereafter pursu'd for not attending him The Lords found the Vassall fineable though he pretended that by this Act 31. he was to attend the Sheriff for he ought to have waited upon his Superior to the Sheriff or the Kings Captain and these obligations were different and very consistent July 1680. Vid. observ on Act 16 Par. 6. and Act 76 Par. 14 Ja. 2. supra for clearing the 30 Act. COnvocations in the Countrey are punish'd only by pecuniary Mulcts or Imprisonment before the Secret Council but Convocations within Towns are more dangerous and therefore punish'd in this Act by Confiscating the Moveables of the Offenders and their Lives are to be in the Kings will so that their lives may be taken but by this Act the rising at the Command of their Magistrats is declar'd no Crime and therefore it may be doubted whether if the Magistrats should raise their Burgesses to invade their Neighbours or to oppose His Majesties Forces if in these cases they can be pursu'd for Convocation since they are by this Act warranted to rise at command of their Magistrats which certainly might defend them in dubious but not in clear cases Observe that by this Act all Burgesses are ordain'd to obey their Magistrats when and in what ways they shall be charg'd either for the defence of the Kingdom or common Good of the Burgh under the pains foresaids but the Magistrats use only to fine such as refuse to Ride with them and I have heard the Lords demure whether Burgesses were oblig'd to attend Prisoners without the priviledge of the Town at the desire of the Magistrats since Sheriffs were bound to receive prisoners there and Burgesses are only bound to Watch and Ward within their own Town and Territory THe Rule laid down in this Act Viz. That wherever the Defender may be punish'd by Infamy he must compear personally holds not still true but wherever he is to be punish'd personally he must compear personally and therefore it is that Defenders before the Criminal Court and Council must compear personally THe Common-Good of Burrows ought not to be Sett without consent of the Deacons of Crafts which is observ'd to this day nam quod omnes tangit ab omnibus debet approbari and by the Act 181 Par. 13 Ja. 6. It is ordain'd that the Common-good shall be Rouped yearly which is also observ'd and though that Act appoints it to be Set by the advice of the Magistrats and Council without speaking of Deacons of Crafts yet that does not exclude them By the Civil Law Bona civitatum non possunt vendi sine permissu principum propositis sacro-sanctis Evangeliis insinuato decreto apud praesidem provinciae l. ult C. de reb Civit. Vendend By this Act also the Rents of Burrows cannot be Set for longer time than three years allanerly but it may be doubted if they may be set from three years to three years for many three years in one Paper or if such Obligations will force Magistrats to renew the Tacks for if this were sustain'd the Act might be easily eluded but the 10 of February 1631. The Earl of Galloway contra Burgesses of Wigtoun The Lords found that this nullity was not receivable ope exceptionis especially not being propon'd by the Town These Tacks seem likewise to be valid if restricted to three years Vide Annot. ad Act 200 Par. 14 Ja. 6. VIde Act 17 Par. 2 Ja. 4. Act 97 Par. 6 Ja. 4. By all which crack'd Gold is commanded to be taken if it be of fineness all which renew'd Acts shew that the people were unwilling to receive such Gold King JAMES the fourth Parl. 4 VIde Annot. ad Act 85 Par. 11 Ja. 3. But for further clearing this Act it is fit to know that the Pope was in use and pretended Right to confer by prevention Benefices which were elective and some whereof the Patronages belong'd to the King and Subjects Vid. Coras specimen Jur. Eccles. lib. 1 cap. 2. as appears by this Act and by the 53 Act Par. 5. Ja. 4. and therefore by this Act the impetration of these in such cases is discharged under the pain of Proscription and Banishment but by the 44 Act 6 Par Ja. 3. and the 4 Act 1 Par. Ja. 4. It is also punisht as Treason IT is against the interest of the Church to unite Benefices because every Union extinguishes some Benefices and lessens the care of the Souls and yet Union is allow'd when the Benefâ—ces to be united are impair'd by Poverty Hostility or by Destruction of the People to be car'd for and least the interest of persons should be more consider'd than that of the Church It is by the Canon Law appointed that all Unions of Benefices must be perpetual but the Pope having reserv'd to himself the power of uniting any Benefices propter plenitudinem potestatis cap. 6. de prebend in 6. Clem. 1. ut lit pend nihil innov Therefore the Subjects of this Kingdom went to Rome and got Benefices united and to prevent this all unions of Benefices are discharg'd by the 44 Act Par. 6 Ja. 3. and the obtaining such Unions and Annexations is declar'd Treason and since our Bishopricks and Abbacies were founded by our Kings it was unjust that they could have been united without his consent
because even by the Canon Law Benefices cannot be united without consent of the Laick Patron Bengeus de Benefic cap. 3. § 3. num 7. Unions are now made by the Commission of the Kirk and the ordinary reasons upon which Churches are united with us are the meanness of the provision the meanness of the two Parochs and the paucity of the hearers To the granting of which Unions the Patrons must still be call'd because of the above-cited Constitution of the Canon Law but they may be united though the Patron consent not if he shew no good reason for his dissent The Popes also us'd to value Benefices upon new informations whereby the value was much hightned and therefore by that Act it is ordain'd that no Benefices be higher than they were in Bagimonts Roll which Bagimont was a Cardinal who had made a Rental of all the Benefices in this Kings time as Skeen de verb sig observes Verb Bagimont and this Taxation of Benefices is founded on Extravag suscepti Regiminis lib. 6. It is therefore appointed that none supply with Money those who are to go to Rome to make such purchases Act 86 Par. 11 Ja. 3. But that Act seems unnecessary for the Purchasers being declar'd Traitors it was certainly Treason to assist them with Money so that the said Act was made to certifie and clear ignorant people which the Law calls ad majorem evidentiam THis Act is formerly Explain'd and that part of it which appoints the Hosts with whom strangers lodge to be comptable for their uncustomed Goods is in Desuetude except they were conscious to the guilt Vid. observ on Act 3 Par. 1 Ja. 4. supra CRafts men who exact from these of their Craft are to be punish'd as oppressors but I doubt what is the meaning of these words and shall buy their life as common oppressors and the most probable meaning is that they shall be bound to take Remissions for so doing as for a capital Crime Nota Common oppression is capital by this Act and such Statutes or Impositions laid on by Crafts-men for extortioning the Leiges are reprobated by the Laws of all Nations as a species of Monopoly Vid. Tritz de monopoliis cap 12 Vid. observ on Act 21 Par. 2 Ja. 4. Supra CRafts-men leaving off mens work if others refuse to compleat it because of Statutes among themselves forbidding them to undertake any such work such are punishable as oppressors but if they refuse upon any other account they are not punishable for this Act punishes only such as make use of such unlawful Statutes and if Crafts-men should come in to cheat this Act by a general resolution not to suffer any to compleat what another had begun I believe that the Magistrat might punish this as a cheating contravention of this Law Nota That Trades-men who make Statutes against the Common-well of the Leiges are punishable as Oppressors for otherwise Crafts-men might extortion the people at their pleasure This is also discharg'd l. un C. tit 59. lib. 4. de monopoliis nov 122. cap. 1. Aedificiorum quoque artifices vel Aergolabi aliorumque operum professores penitus arceantur pacta inter se componere ut ne quis quod alteri commissum sit opus impleat vid Trith cap. 12. and observ on Act 80 Par. 5 Ja. 1. supra IT is free to sell Victual in all Burrows any day of the Week though it be no Mercat day by this Act yet now every Burgh has its own Mercat days for Corn as well as for other things THough by this Act the users of false Measures and Weights be only punish'd as Falsaries yet the Justices found that the havers of false Measures should be also punish'd as Falsaries though using could not be proven since these who had them are presum'd to have had them only for use except the presumption were taken off as by proving that the Weights were only borrow'd or laid aside upon Tryal May 1671. In the case of Porteous at a Justice-Court in Jedburgh but by the 14 cap. Stat. Dav. 2. The users of false weights were only to pay 8 Cows to the King IT is clear from this that the Masters commanding his Servants or Cottars to break Laws such as Muir-burning specifi'd in this Act does not free the Servants but makes both lyable albeit Ignorance and Command when joyn'd might seem to excuse the breach of a penal Statute at least a poenâ ordinaria but the Masters Command should not excuse from the punishment where the Transgression is either against the Law of God of Nature Nations or the Crime is atrocious in it self SOme of the Nobility having most Rebelliously fought against King James the third upon a false pretext that he was bringing in the English upon the Kingdom they advanc'd his Son King James the fourth to be Leader and having prevail'd they secur'd themselves by several Acts yet extant in the black Impression but which are omitted in this Impression except this one THe King Revocks all TailÈies made to Heirs-male in prejudice of heirs general because as Craig observes this is against Conscience and is defrauding of the Righteous Heir and I have seen old Licences granted by the Pope to make such TailÈies and Alienations for reasons exprest in the Bull and upon Consideration whereof the Pope dispences with the matter of Conscience and in the Act 50 the Estates without the King revock all such Rights quod notandum Nota The King here Revocks all change of holdings from Ward to blench and not from Ward to Feu because it was lawful at that time to change from Ward to Feu by the Act 71 Par. 14. Ja. 2. Nota Union of Lands in Barony is revocked by this and all the posterior Revocations of our Kings because one Seasine serves after the Union and the Proprietar is only oblig'd to answer at one Court so that the King loses several Casualties Vid. Act 93 Par. 6. Ja. 4. King JAMES the fourth Parl. 5. BY this Act Barons are to cause their Sons learn Latin jure that is to say Law because the Act sayes that they may have knowledge of Law to prevent needlesse coming before the King 's Principal Auditor for which reason also Advocations are much discourag'd by many subsequent Acts Auditor was not a proper term for the Session for Andientia is properly allow'd only to such as have not Jurisdiction as is clear by Gothesr ad Rubr. C. de Episcopali Audientia BY this Act all Actions of Error against Brieves or inordinate Process are to be pursued within three years else they prescrive And by the Act 13. Par. 22. Ja. 6. It is declared that the prescription secures only the Assyzers against wilful Error but that the Retour may be quarrelled within 20 years as to the right of Blood prejudg'd by the said wrongous Retour And it is observable that the Law favours still revenge less than
reparation Obs. 1. Notwithstanding of this Act a Retour or the execution of a Brieve or any other piece of the Process may be improven at any time within fourty years and the Process it self may be reduc'd in consequentiam by Reduction of any Writ whereupon it followed Hope tit Reductions of Decreets Obs 2. That this short Prescription of three years runs not against such as are Minors or out of the Realm in imitation of the Civil Law which allow'd immobilia praescribi inter praesentes decennio inter absentes viginti annis Obs. 3. That these words be rais'd and pursu'd imply not that the Process must be ended but that it must be begun within three years and the Process is said to be pursu'd when the Summonds is executed Vid. Observ. on Act 64. Par. 8. Ja. 3. King JAMES the fourth Parliament 6. IT is observable that though this Parliament is exprest in the Printed Acts as held upon the 11 th of March and all these Acts are exprest as past upon that day yet I find by the Records themselves that they were all past upon the 15 th of March which is also called quinta dies Parliamenti Item It is observable that all the Acts of this Parliament are only set down in way of breviat and thus the 62 Act is thus exprest in the Original Record Item It is Statute and ordain'd that where any person happens to get a Remission in time to come that the said Remission shall not extend nor save the taker for greater Crimes be any general clause nor is contain'd especially and that the greatest action shall be specified or else it shall not be comprehended and that the general clause shall not include greater nor the special clause THis Act is formerly explained In the Observ. on Act 65. Par. 3. Ja. 1. and Act 62. Par. 14. Ja. 2. THese Acts are useless for all these Jurisdictions are now otherwayes divided and established THe Shires of Inverness and Ross having been again after this Act united they were and are now disjoyned and whereas this Act makes the Town of Thane and Dingwall to be the head Burghs of the Shire of Ross the Town of â—orteross is added as another head Burgh to the other two by an Act of Parliament 1661. IT is appointed that general Clauses in Remissions remitting all Crimes shall not be extended to greater Crimes than the Crimes specially condescended upon in the Remission but to evite this Remissions do now express specially all the great Crimes and then a general is subjoyned and upon this Law it was controverted in Glenkindies case whether a Remission for slaughter should be extended to Murder since Murder was pretended to be a greater Crime as proceeding upon forethought Fellony to which it was answer'd that Slaughter was a general term comprehending both Slaughter and Murder It may be argued from this Law by a parity of Reason that Discharges granted for a special Sum and thereafter discharging generally all debts shall not be extended to other Sums greater than that which is specially discharged but yet the 24 th February 1636. It was found that such general Clauses did cut off all Sums even though greater than the Sum discharged in special THis Act ordains all Remissions for Slaughter to be null if the Slaughter was premeditated and upon forethought Fellony nor is this Act temporary being to last in all time coming till the King revock the same specially but yet this excellent Law is not de praxi now observed though it be most reasonable Vid. Act 169. Par. 13. Ja. 6. And the same reason given here for it viz. because many in trust to get Remissions did commit slaughter is set down to the same purpose Canon injusta Quaest. 4. Nonne etiam cum uni indulget indigno ad prolapsionis contagium provocat universos facilitas enim veniae incentivum tribuit delinquendi By the cap. 50. Stat. Dav. 2. It is ordain'd that no Remission for Murder upon forethought Fellony shall be given except in Parliament and for a publick good Observe here the discreet stile wherein Kings are limited in the exercise of their Royal Power for here the King declares it is his pleasure that such an Act be past and desires the Estates to pass it and since this Act is to last till it be revocked by the King it may be doubted if the King alone may revock it without Authority of Parliament The like Act discharging Remissions for burning Corns Ja. 5. Par. 7. Act 118. THough Bishops are by this Act to appoint and deprive Notars yet they are now both tryed and deprived only by the Lords of Session Though this Act appoints Bishops and their Ordinars to take inquisition who uses false Writs yet none but the Lords of Session are now Judges to improbation which is the only Process competent for trying falshood of Writs in the first instance and the Commissar who is the Bishops Depute can never Judge of falshood now except where the falshood falls in only incidenter and by way of exception as if I were pursuing any Action before the Commissars and it were alleadged that the Execution of the Summonds were false there the Commissar would be Judge competent to try the falshood of the Executions for else his Jurisdiction were useless and all Sheriffs Lords of Regalities Stewards and the like have the same priviledges BY this Act Summonds for recent SpuilÈies must be executed upon 15. days whereas all Summonds were to be executed upon 21. days by the 6 Act Par. 1. Ja. 3. which is the Act here related to though not cited and by an Act of Sederunt 21 July 1672. this priviledge is extended to recent Intrusions which is a kind of SpuilÈie in immoveables Observ. 1. That since the Parliament thought that the former Act of Parliament could not be derogated from without an express Statute it may seem strange why the Lords do priviledge any Summonds by their own power or if they had power why they did not make actions of recent SpuilÈie and Intrusions to come in upon 6 days as well as Exhibitions Poynding of the Ground and other less favourable Causes to which nothing can be answered but that there was an old custome for the one but not for the other Observ. 2. That the last words of the said Act viz That there shall be no exception dilator admitted against that Summonds it being lawfully indorsed seem to imply that the Judge should grant no continuation though that properly cannot be called an exception dilator or else that the Judge should restore spoliatum ante omnia and admit no exception upon property nor compensation c. but these are not properly dilator defences or that the not continuation of the Summonds upon 21 days warning should not be objected but that is likewise unnecessary since the first part of the Act did that sufficiently and so these words with that sense had been
superfluous and therefore I rather incline to think that these words were only designed to show the Parliaments great desire to have recent SpuilÈies dispatch'd though ill exprest it may be doubted whether recent SpuilÈies being only such as are raised within 15 days after the SpuilÈie is committed Sabbath or Feriot days should be counted amongst the 15. Observ. 3. That it may be argued that SpuilÈies regularly cannot be pursued before the Sheriff or else why is it allowed here as a priviledge to recent SpuilÈies that they may be pursued before the Sheriff and it seems the reason why SpuilÈies regularly should not be pursued before Sheriffs is because the dammages in SpuilÈies must be taxed by an Oath in litem and that is nobilis officii and consequently cannot be administrated by any inferior Judge nor can these inferior Judges modifie what is sworn by an Oath in litem that being yet nobilioris officii BY this Act the Sheriff is to have 12 pennies of every pound as Sentence-money which was called Sportulae by the Civil Law and this Sentence-money is still in use THis Act appoints every Lord and Laird to have a Cuningare but it may seem strange why none are allow'd to have Dove-coats except they have ten Chalder of Victual in Rent and yet men are commanded to make Cuningars since Cunins may prejudge Neighbours as Doves do which makes Craig as I conceive doubt whether the Vassals may have a Cunigare except the same be granted to him But though the Superior grant Cunigars with the clause cum Cuniculis Cuniculariis the former doubt remains for the Superior cannot prejudge third Parties To which these answers may satisfie 1 o. That it was necessary by this Act once to invite men to plant Cunigars whereas Dove-coats were frequent before the Act 1617. that restricts them 2 o. This command is only to Lords and Lairds which implyes men of Estates but is not given to all the Lieges and I doubt not but if an Heretor of ten Chalders of Victual or thereby should plant a Cuningar but his Neighbours might by common Law and an Argument drawn from the Act 19. Par. 22. Ja. 6. force them either to inclose their Cuningar or to give it over BEfore this Act the Heir could not have been pursued for any debt till the Executor was first discust but by this Act the Heir is made lyable to the Creditor after his annus deliberandi expires both as to Heretable and Moveable debts which was very just because quoad the Creditor they all represent the Defunct but yet he will get his relief of all Moveable debts from the Executor as far as the Inventar extends and if he be served Heir within the year the Creditor will get action against him for heretable debts even within the year for by entering Heir he renounces his benefit of deliberating and if he possess the Estate he ought to pay the Heretable debt but though he enter Heir within the year he should not be lyable for Moveable debts by this Act till the year expire since as to these he has no benefit by entering and though he renounce the benefit of deliberating yet he does not renounce the benefit of this Act Hading Tit. Heirs Nota Heirs are call'd in this Act Heretors from the French word Heretiers But Quaeritur if the Executor be discust and found insolvent may not the Heir eo casu be pursued within year and day and the affirmative seems strongly founded upon the reason and decision of this Act And yet by the present practice the Heir enter'd is lyable even for moveable debts tho pursu'd within the year Item Though by this Act the Executor is bound to find Caution to relieve the Heir of all moveable debts yet there is no Law obliging the Heir to relieve the Executor of Heretable debts but de practica the Lords sustain ex paritate rationis actions against the Heir for relieving the Executor of all Heretable debts 7. March 1627. Faulconer contra Blair vid. Spotswood tit Executor Carnoussie contra Laird Meldrum which seems to be contrary to the words of this Act whereby it is more than insinuated that the Fathers Moveable Goods should pay his debts and by the Narrative of 106 Act Par. 7. Ja. 5. is yet more clear By the Civil Law the Children that were in potestate patris were forced to enter Heir but thereafter this was thought too severe and therefore the Roman Praetor allowed even to these Heirs a liberty to abstain and a year to deliberate whether they would be Heirs which we have borrowed from thence but jure novissimo the Heir was to be only lyable according to the Inventar if he made one non ultra vires Inventarii which holds only with us in Executors who are Heirs in Moveables for Heirs in Heretable Rights are lyable in solidum if they once enter IF the Marriage was not quarreled by a Process in the Husbands time as unlawful the Wife will have right to her Terce without necessity of proving a lawful Marriage and will possess her Terce till the Marriage be found to have been unlawful for in the common Law and ours an unquarrel'd cohabitation is a valid probation of the Marriage l. in libera 24 ff de rit nupt Yet it cedes to a contrary probation as all praesumptiones juris do vid. Pacian tract de prob lib. 2. cap. 3. And in our Law Bastardy is not inferr'd because the Marriage cannot be proven but it must be prov'd positive that the Defunct was reputed Bastard Feb. 19. 1669 K. Advocat contra Craw June 15. 1670. Livingston contra Burn And if that be prov'd he who pretends to be Heir must prove also that the Defuncts Father and Mother were lawfully Married By the same parity of reason the Husband will have right to the courtesie of Scotland till the Marriage be found null and the allegiance of Bastardy is not receivable summarly against the service of an Heir vid. infra observ on Act 94. Par. 6. Ja. 4. ALL who did hold of the King were of old oblig'd to come to Parliament till by this Act these whose Lands are within 100 Merks of new extent are indulg'd not to come except they be specially called by the King This Act seems obsolet for none are specially called now whether the King may yet call any Barons he pleases is dubious both because they were once bound as well as impowerâ—d to come and this faculty was only remitted for their own advantage and after that this Act allows the King to call them And it seems reasonable that if there be any wise Baronin the Kingdom the King who calls Parliaments for consulting the great affairs of the Kingdome should have liberty to call him albeit the Shire choose him not and the King may make any man a Lord of Parliament Nota These who were then Members of Parliament could have sent their Procurators but now
no Procurators are admitted for absents further than to excuse their absence which is done by a Letter to the Commissioner or Chancellor or by a Member Vid. obs Act 52 Par. 3 Act 101 Par. 7 Ja. 1. Act 75 Par. 14 Ja. 2. supra and Act 21 Par. 3 Char. 2. infra THis Statute is explained Act 48. Par. 3. Ja. 1. But the reason why it is here added that the Isles especially shall be govern'd by the Kings Laws was because the Kings of Denmark pretended that the Isles of Orkney and Shetland should be govern'd by their Laws for the King of Denmark renounced all right to these Isles in favours of K. James the third his Son in Law in Anno 1461. Vid. Skeen de verb. sig verb. Annuel THat all Officers should be chang'd yearly is formerly gloss'd in the observ on Act 30 Par. 5. and Act 5 Par. 7 Ja 3. That none have Jurisdiction within Burgh but such as use Merchandise is by some interpreted to be sufficiently satisfied in those who once used Merchandise even as semel Baro is semper Baro and few present Provosts are actual Traders and therefore it was doubted whether one who has been a Merchant but was thereafter a Senator of the Colledge of Justice might not be a Provost Vid. infra observ on Act 26 Par. 4 Ja. 5. IT is fit to know that the Dukes of Burgundy gave the Scots the first priviledge of Staples which was transferr'd to Camphire at the Christening of Prince Henry The Conservator is by a right under the Great Seal constituted Judge there betwixt Merchants and he must have by this Act six Assessors or at least four which is still observ'd and the Decreets run in his name with the consent of his Assessors and of late by articles with the Prince of Orange The Conservator has the sole Criminal Jurisdiction when Crimes are committed by Scots Merchants he is likewise by his Patent Constituted Agent for all affairs relating to Scotland as well as for Trade By an Act of the Burrows at Air 1602. It is declar'd that all Goods that pay Custom either when they are carri'd out from or in to the Kingdom shall be accounted Staple Goods and so being under the Protection of the Conservator he claims to have Fees for them but in anno 1612. There is a List of Staple Goods made by the Burrows and in 1647. they made a new List declaring and ratifying the former THis Act is still observ'd for the Conservator uses to come or send in July But by twenty pounds great here exprest are mean'd twenty pounds Fleems THis Act forbidding Mercats to be holden on holy days is in observance but this part which forbids Mercats in Kirk-yards under pain of escheating the Goods is not observ'd though renew'd Act 70 Par. 6. Ja. 6. and Mercats are discharg'd in Churches decret pars 1. distinct 42. But I find them not discharg'd expresly in Church-yards though Church-yards had in other things the same immunity with Churches and thus they were Sanctuaries as Churches were Can. sicut antiquitus Canon definivit 17. Quest 4. and their extent was to be fourty paces in greater Churches thirty in lesser Vid. observ on Act 36 Par. 5 Ja. 3. THis Act is useless for no Taxation can be laid on except either in Parliaments or Conventions of Estates and to these all the three Estates must be call'd but it shews that of old Taxations were laid on in Conventions which consisted of any the King call'd summarly off the Street nor were the Burrows oft-times call'd Therefore this Act was made declaring that no Taxation or Contribution should be given without warning the Burrows as one of the three Estates Taxations are properly Burdens laid on by Parliaments and Contributions are our voluntar offers made by Conventions but we use now the word Taxation for both what burdens are laid on by Parliaments and Conventions though this Act requires indefinitly the Burrows to be call'd yet by the 82 Act 9 Par. Q. M. It is only requir'd that six of the Burrows be call'd The Burrows Royal pay a sixth part of the Taxation of Scotland and they divide their proportion amongst themselves according to 100 pounds scots which is their As or imaginary total according to which every Town pays their proportion and though any Burgh resign their priviledge in Parliament they must pay till they Dispone their Common Good to the rest and then their proportion is divided amongst the rest THis Act appointing no Burgesse or Gild-brother to be made without consent of the great Council of the Town is in Desuetude VId. leg burg cap. 122. The pain now is arbitrary and punishable either before the Council or Criminal Court vid. Act 27 Par. 4. Ja. 5. THis Act is useless because of the Act 1617. ordaining all Seasines to be registrated and this Act is thereby in Desuetude THese Acts are but Temporary and yet they serve to clear the Act 71 Par. 14 Ja. 2. And the Lords found that by Forfalture in the Act 91. is mean'd not only Recognition which is sometimes call'd a Forfalture but Forfalture for Treason c. and by this we may see that abrogated Laws and Laws that are in Desuetude should be read and consider'd and may be of great use in Decisions and arguings THe reason of making this Act was because Lands united are fictione juris one and the same and so should properly answer to the Court to which the principal messwage answers and therefore this Act was made to secure the interest of the ordinary Judge which declares that notwithstanding Lands are united in a Barony yet they shall answer as formerly to their own Jurisdictions but the Baron whose Lands are united needs only compear by this Act in that Jurisdiction where the principal messwage by the Union is and yet de praxi they are still call'd in all the Suterols of the other Shires where any of their Lands ly and are forced to send Acturneys which seems contrary to this Act. THere are two kinds of Brieves one call'd a â—rieve of pley which is our ordinary Summons another call'd a Brieve of Inquest which is yet in use as in Services of Heirs Tutors c. vid. For clearing this Act lib. 3. R. M. cap. 28 29. Stat. Rob. 3. cap. 1. And because the Service of Heirs is no Brieve of Pley therefore no exception is to be admitted against it except it be instantly verified This Act appoints all Brieves to be executed upon fifteen days and the Lords have found that all such Acts as these appointing Citations upon such a number of days do not require that both the day of Citation and Compearance be free but it is sufficient that either of them be free July 27. 1626. Meculloch con Meculloch If the Brieve be not proclaiâ—'d upon a Mercat day then it must be proclaim'd before the Town Officers and six honest
nine Stone three pound and eight ounces The Barrel being full fourteen Stone nineteen pound twelve ounces The Gallon should weigh one stone eleven pound eight ounces The Quart full six pound fourteen ounces The Pint three pound seven ounces The Chopin one pound eleven ounces and an half The Mutchkin full thirteen ounces twelve drops By our Custom there is a Plouck in every Jugg or Stoup and the Wine is only measured to the Mark or Plouck but Ale and strong Waters are measur'd to the top By the 14. cap. Statut. Dav. 2. The pound of Caithness is ordain'd to be the common measure but that weight is not so much as known now but it is clear by the cap. 22. Stat. Robert 3. The pound then contain'd fifteen ounces but now it is sixteen ounces The Foundation of the Dry-metts THe Furlot of Linlithgow which is the Standart for the whole Countrey for metting of Wheat Ry Beans Pease Meal and white Salt contains twenty one Pints and a Mutchkin of Water which Furlot is divided in four Pecks and the Peck is divided in two half Pecks or four forparts The Furlot for metting of Bear Malt or Oats which were call'd heaped Corns contains thirty one Pints of Water Four Firlots make the Boll Sixteen Bolls is a Chalder Eighteen Bolls and an half is counted for a Last of Ry. The half Boll Mett of the Water measure of Leith contains nine Pecks of the ordinary measure The English Quarter of Corn contains near by two Bolls of Scottish Measure The Boll of Wheat will weigh fourteen Stone and three pound The Furlot of Dry-wheat three stone eight pound twelve ounces The Peck will weigh fourteen pound three ounce The half Peck seven pound one ounce and an half The measure for Coals is declar'd to be the Culross Chalder by the 17 Act 3 Sess. Par. 1. Ch. 2. The Foundation of measures for length breadth and thickness THree Barley Corns fair and round lying in length without the tails make an Inch. Twelve Inches maketh a Foot Three Foot is an English yard Three Foot and an Inch or thirty seven Inches makes the Ell of Edinburgh which Ell is parted in four quarters and every quarter in four nails which measure of a foot having fallen in Desuetude is renew'd by the 18 Act 3 Sess. 1 Par. Ch. 2. Fourty five Inches is the English Ell. Twenty seven Inches is the Fleemish Ell. In France every Town hath a divers Measure The Foot wherewith the Glassen-wrights measure their work is sometimes of nine Inches and sometimes of eight Inches Of the Rood of vvork A Rood of Land contains 240 Ells of measure but a Rood of work wrought by Masons or Sklaiters contains but thirty six Ells that is if any piece of work be found to be eighteen Ells in length and two Ells in breadth it makes a Rood Twelve Ells in length and three Ells in breadth is a Rood Nine Ells in length and four in breadth is a Rood Eight Ells in length and four Ells and an half in breadth is a Rood Six Ells in length and six Ells in breadth is a Rood A Rood of Land within Burgh is esteemed of old to be twenty foot that is five foot in length and four in breadth The Foundation of an Aiker of Land SIx Ells of the Standart of Edinburgh makes a lineal-fall wherewith Land is measur'd Six ells long and six ells breadth make a superficial or square-fall wherewith Land is reckon'd Fourty lineal Falls makes a Rood Ten Falls in length and four in breadth makes a Rood Eight Falls in length and five in breadth makes a Rood Four Roods is an Aiker So an Aiker contains 160 lineal Falls or 960 Ells. Eighty Falls in length and two Falls in breadth makes an Aiker Fourty Falls in length and four in breadth makes an Aiker Thirty two Falls in length and five in breadth is an Aiker Twenty Falls in length and eight in breadth is an Aiker Sixteen Falls in length and ten in breadth is an Aiker Four Aikers are counted for a Ministers Gleib Six Aikers arable Land for a Husband Land Thirteen Aikers is counted an Oxen-gate Four Oxen-gate is esteem'd a pound Land of old extent VId. observ on Act 17 Par. 2 Ja. 4. supra THis Act is only conceiv'd in prohibitive terms without any penal sanction and though this be forbidden yet it is not declar'd a Crime and yet it was found a Crime to poynd Labouring Oxen in time of Labouring and punishable by a pecunial mulct January 1666. Lord Rentoun contra the Sheriff-Depute of the Merss The Time of Labouring is not determin'd by this Act and therefore the Lords have special regard in this to the Custom and Season of each respective Country as was decided November 15. 1627. So that tho they were labouring yet if it was not the season of labouring they have not the priviledge But if the Debitors Labouring be ended though the Season of Labouring be not generally ended in the Country yet his Labouring Goods may be poynded November 22. 1628. Spootswood h. t. tells us that a paritate rationis this priviledge was extended to a going Salt-pan sed leges in privilegiis non sunt extendendae If the Debitor have no other moveable Goods the Creditor may poynd even Labouring Goods by the words of this Act for it seems the Parliament thought it not just that a man should lose his Debt altogether and though the priviledge here granted may seem only a delay yet by abstracting the Goods during that Suspension he may be totally frustrated The Common Law to which this Statute relates is l. 8. C. Quae res pigr obl possunt authent agricultores ibid. but by that Law the persons of the Labourers could not be apprehended nor made that Law any distinction whether there were other Goods poyndable Vid. Tract Crim. tit 31. where this Act is more fully explain'd THis Act is Explain'd Act 117 Par. 9 Ja. 1. THe former Acts of Revocation revock not expresly all things done in hurt and prejudice of the Kirk but this was imply'd under the general of what was done in hurt of the King's Soul and Conscience but in this Latin Revocation which appears has been ordain'd to be in Latin that a Church-man might draw it The King Revocks all that has been in detrimentum seu laesionem Ecclesiae Catholicae and to shew the King and Parliament enixa voluntas all such Deeds are ordain'd to be raz'd out of the Books of Parliament The word Kirk comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for so the House of God was nam'd amongst the Christians who were Greeks as the Latins nam'd it Domus Dei vid. Mons Fleurii des mocurs des Christiens who gives this Origination for the word Kirk King JAMES the fourth Parliament 7. BY the Act 73 Par. 6. Ja. 4. Some places were ordain'd to answer at Justice-airs in other places than the head Burghs
holden pro confesso as personally apprehended it being offered to be proven that he was really within and some of the Lords were of opinion that he should be holden as confest the Messenger proving that he was within or if the Execution had born that he and the Witnesses had given a particular evidence of their knowledge of his being within Otheâ—s thought that he should be holden as confest unless he could instruct that he was alibi in regard of the Contumacy But most resolv'd that holding as confest being a solemn and important Certification peculiar to Scotland that the assertion of the Messenger and his execution should not be sufficient nor put the Defender to alleadge alibi but that warrand should be granted to cite at the Mercat Cross with Certification to be holden as confest July 5. 1670. Lindsay and Swinton contra Inglis This order of citing first pâ—rsonally and failÈing thereof at the Dwelling-house was allow'd by the Civil Law l. 1. § 1. ff de lib. adgno And all theâ—e practical questions are much cleared by Christ. ad leges Mechlin lib. primo tit 1. articulo 14. in fine where it will be found that the being holden pro confesso is not a Certification peculiar to our Nation for other places use it as Brabant THis Act appointing all Notars to be examined by the Sheriff and that the Sheriff keep a Book containing their Subscriptions is in Desuetude THis Act appointing all Seasins upon Precepts out of the Chancellary to be given by Sheriff Clerks and their Deputs is declared by the 15 Act 18 Par. Ja. 6. to extend only to Precepts past upon Retours and not to Seasins past upon other Precepts and it is very observable that though that last Act Narrats that this Act appoints such Seasins to be taken by Sheriffs and their Clerks yet there is no mention here of Sheriffs but only of Sheriff Clerks and yet the Lords of Session do now find Seasines null ope exceptionis except they be given both by Sheriffs as Baillies and Sheriff Clerks as Notars The Reason why Seasins upon Retours must be given by the Sheriffs is because he is to answer for the Retour'd Dewty for which he ordinarly takes surety when he gives Seasines and at the delivery of the Precept there is a Note made by the Director of the Chancellary in the Responde Book bearing the sums for which the Sheriff is to take Surety and he is to be Charg'd and compts therefore yearly in Exchequer by the 99 Act 7 Par. Ja. 5. and 64 Act 11 Par. and 124 Act 12 Par. Ja. 6. THis Act is in Desuetude since the Registers were introduced in anno 1617. FAlsifying the Kings Charter or the Counterfeiting of it was of old Treason but the falsifying the Charter of a privat person was only to be punish'd by Mutilation R. M. lib. 4. cap. 13. and thereafter by the losse of the Right Hand Statut. Alex. cap. 19. By this Act all Falshood is punishable conform to the old Statutes which are these I related and conform to the Civil and Canon Laws and that was deportatio cum publicatione bonorum l. 1. § ult ff ad l. Cornel. de falsis but because this Act relates only to false Instruments therefore by the 22 Act Par. 5. Q. M. It is extended to all Evidents but because both these Acts struck only against false Notars therefore by the 22 Act Par. 23. Ja. 6. All Forgers of any Writs and all who are in accession thereto are to be punish'd and Death is the ordinary punishment with us though sometimes if the matter be small the punishment is lessened As to false Witnesses Vid. tract Crim. tit Falshood BY this Act there must be still Instruments taken in the hands of the Clerk of Court if any be taken at all but if the party be jealous of the Clerk of Court he may take another Notar with him and take also Instruments in his hands after the form and manner prescribed by this Act. NOtwithstanding that by this Act no Commission can be granted to apprize Lands or serve Brieves to any but to the Sheriff if Heretable yet it is ordinary now for the Lords to grant Commissions to their Macers in both these cases who are thereby made Sheriffs in that part and this Act of Parliament being objected against Struans Service 26 Feb. 1681. It was found to be in Desuetude LEasing-making betwixt the King and his People is punish'd by tinsel or loss of Life and Goods by the 43 Act 2 Par. Ja. 1. And by this Act it is ordain'd that such as make Leasings of His Majesty to his Barons and great Men shall be punished in the same way as they who make Leasings to His Majesty of His Barons and Lieges and though there seem'd a clear parity of Reason for this before the Act and that eadem est natura idem est affectus correlativorum Yet our Predecessors would not extend Crimes by consequence and by the 205 Act 14 Par. Ja. 6. The hearing and not revealing and apprehending such Leasing-makers is punish'd as Leasing-making BY this Act there is an Indemnity granted under the name of a general Remission but though in general Remissions and Indemnities there needs no extract be taken of the general pardon yet here every man is to take an Extract of the Pardon Nota That though such as keep correspondence with Rebels after their guilt be punishable as Traitors yet here such only as kept intelligence with the Dowglasses and with Kilspindie their â—am which is an old word signifying Cousine after the doom of Forfaultor against them are declared punishable and this seems just where the Crimes were not clearly understood by the people to be such King JAMES the fifth Parliament 7. BY this Act there ought to be a constant Vice-President in the Session but this is in Desuetude for Vice-Presidents are chosen by the Lords in absence of the President and thus the Lord Stairs was chosen Vice-President in Sir John Gilmor's absence 1663. Likeas though by this Act the eldest Lord is to be President in absence of the Vice-President yet now in absence of the President the Vote of the Lords elects him who is to Preside in his place It is also observable that our Kings have been so jealous of suffering any Act of the Pope to have authority without being ratified by them as Kings that the Popes Ratification of the Colledge of Justice being thought convenient because of the assignation of some Ecclesiastick Benefices for its better support the King does in this Act ratifie and confirm the Popes Ratification of the King 's first Act. SHeriffs Stewards c. compear yet yearly in Exchequer and make their Aeque and the time of their compearance is in July vid. supra obs on Act 77. Par. 6. Ja. 5. BRibing is expresly discharged by the 25 Cap Stat. K. Will. and by the 22 Cap Stat 1.
Rob. 1. They who take Lands to Champart are to be in the Kings will and lose their employment for all their life-time Champart is a â—rench word signifying a part of the Land controverted so that whosoever takes part of the thing controverted per pactum de quotâ litis falls under that Law By this Act whoever takes Rewards or Buds are punishable by tinsel of Honour Fame and Dignity and by the 93 Act 6 Par. Ja. 6. the taking by their Wives and Servants which was here omitted is punishable by Infamy Deprivation and Confiscation of all the Defenders Moveables By this Act giving of partial counsel that is to say consulting is declared a species of Bribing though nothing be taken at least it is punishable as bribing so that it seems a Judge may not consult albeit he abstain from judging in that cause These words That he shall take no further Rewards nor Buds than is permitted of the Law are set down to shew that Judges may lawfully take the Quota allowed by Law to Judges which we call Sentence-money and the Civil Law Sportulae The taking Bribes was in the Civil Law punish'd per l. Jul. repetundarum l. 1 3 6. d. t. And the punishment was death if Money was taken to pronounce a Capital Sentence or Confiscation of Goods and Banishment in other cases l. 7. § 3. eod tit but by the Doctors and in our Law this Crime is called Barratrie Such as defame Judges as Bribers are punished here as Bribers but besides the poena talionis which is inflicted upon all such as murmure against Judges there is likewise an Arbitrary punishment adjected and either the King or his Council are Judges competent to the cognition of this Crime by this Act. Nota That if a Spiritual Man murmure against any Judge he has the priviledge to be called before his own Judge ordinar by this Act but this revocatio sori is not now in use since the Reformation BAse Infeftments are these which are given to be holden of the Disponer which are valid Rights in themselves though they never attain possession for else they could not give good Interest to reduce the Rights that may hinder them to attain possession These base Infeftments are introduced with us contrary to the principles of the Feudal Law which allows no Feudal conveyance without the Superiors consent and were introduc'd rather by accident than upon design This Act upon which they are founded being introduc'd rather to suppress simulate Infeftments than to strengthen base Infeftments and the great priviledges arising to them now did insensibly grow from the favour which our Law shewed alwayes to lawful Creditors even as the priviledge of necessitating Superiors to receive Comprizers did Base Infeftments though yet wanting possession are preferable to posterior Arrestments but they are not preferred to posterior Life-rent Escheats except they attained possession in cursu rebellionis Feb 21. 1667. Miln contra Clerkson and before this Act of Parliament 1540. they were still preferr'd to posterior publick Infeftments But by this Act it is statuted that publick Infeftments cloathed with Possession for year and day shall be preferr'd to base Infeftments not cloathed with possession though prior which praesumptione juris de jure are by this declared to be simulate Rights But though this Act requires that the publick posterior Infeftment be granted for onerous Causes yet a publick posterior Infeftment though gratuitous will be preferr'd 3 March 1626. Law con Balgownie But this may be doubted because of this Act and in that Decision the publick Infeftment was preferr'd because Inhibition had follow'd thereupon for any Act that can take off the presumption of simulation and which will make the Infeftment any way to be known doth fortifie the Infeftment as well as if possession had follow'd and so an Inhibition following upon the debt for which the base Infeftment was granted will prefer that Infeftment to a posterior publick Infeftment without necessity to reduce ex capite Inhibitionis and an Infeftment following upon an Appryzing was without reduction ex capite Inhibitionis preferr'd to a prior base Infeftment though clad with possession because the Appryzing follow'd upon a debt whereupon Inhibition was serv'd before that base Infeftment the said 3 of March 1626. And likewise if other diligence was done or the time was so short that a years possession could not be attain'd then a Terms possession was sustain'd or though there followed no possession at all the base Infeftment will be preferr'd to a posterior publick Infeftment interveening before the possession could be acquir'd 13 Feb. 1624. Possession likewise of a part of the Land sustains the Infeftment for all but this should hold only in Lands erected in a Barony or such wherein one Seasing may serve 5 Feb. 1668. Ker contra Ker. Hope in his lesser Practiques is of opinion that in the concourse of two base Infeftments the prior will be preferr'd in petitorio though no possession follow'd thereupon which seems to be reasonable because before this Act of Parliament jus illud obtinebat and by this Act Nihil quoad hoc est innovatum yet de practicâ a base Infeftment is as null till it be cloathed with possession as an Infeftment à me is before it be confirmed If neither of the two base Infeftments be cloathed with possession prior in tempore est prior in jure The Husbands possession was alledg'd to be the Wifes possession as to her principal but not quoad her additional Joynture 7 Decemb. 1664. Lady Craig contra Lord Loure and in our Law the Husbands possession is accounted the Wifes possession whether the Husband possest by himself or by Wod-setters or Comprizers deriving right from him though it was alledg'd that this was not the Husbands possession they having possest proprio jure which priviledge is not only introduc'd ob savorem detis but because she could not possess for which reason likewise a base Infeftment for relief is preferr'd to a posterior publick Infeftment upon a Comprizing albeit the Cautioner was only charged to make payment which was found a sufficient distress 28 July 1625. As also after a solemn dispute the Lords did prefer a prior base Infeftment for warrandice though not cloathed with natural possession to a posterior publick Infeftment 9 January 1666. Brown contra Scot. But here the Infeftment of warrandice was given simul semel with the Infeftment of the principal Lands so that there remains still a doubt as to Infeftments of warrandice given ex intervallo but Infeftments for relief were not found sufficiently cloath'd with possession by payment of the Sums for which they were granted as Infeftments of warrandice are by possession of the principal Lands because it was alledg'd that it was more natural that the possession of one Land should cloath the Infeftment of another than that possession of Annualrents should cloath an Infeftment of Land and that there might be greater collusion in payment
of Sums than in possessing of Lands because Creditors might alter their Sums and take new Assignations or retire old Rights whereas no man could quite his principal Lands 26 June 1677. Cramond contra the Tennents of East-barns But a Fathers possession as Life-renter was not sufficient to prefer a base Infeftment given to the Son to a posterior publick Infeftment granted to a second Wife or to any Creditor the like in a base Infeftment granted by a Good-sir to his Oye by the Daughter which was not found sufficient being cloathed with the foresaid Civil possession of the Good-sirs reservation of Life-rent to exclude a posterior publick Infeftment 17 of July 1635. And this possession by the Husband or Father or Disponer is called possessio per constitutum and is not favourable in a competition with other Creditors and therefore a Factory granted by the Father to the Son to uplift the Mails and Duties of Lands dispon'd to be holden base by the Son of the Father was not found sufficient to cloath the Sons Infeftment though there were several Processes intented upon the Factory 10 July 1669. This Act requires natural possession by labouring the Land or Civil by uplifting the Mails and Duties and before Registers were invented that kind of possession was only able to put their Creditors in mala fide but though Civil possession hath been found sufficient such as obtaining of Decreets and payment of Annualrents albeit the same had no relation to the Infeftment of Annualrent but was only relative to the Bond whereupon the Infeftment followed yet the setting of a Back-Tack by the accepter of a Wodset hath not been found sufficient to maintain a base Infeftment except payment of the Back-Tack-Duty had likewise followed so that it appears that possessio Naturalis vel Civilis sufficit sed non illa quae a doctoribus dicitur civilissima as is a Back-Tack By this Act also such as make double Dispositions to defraud their Creditors shall be declared infamous and shall be punished in their persons and Goods at the Kings pleasure and this punishment is extended against such as make double Assignations and the 140 Act Par. 12 Ja. 6. bears That no Dewty shall be Dispon'd to two sundry persons which is Crimen stellionatus by the Law and though this Act does not make double Dispositions to be crimen Stellionatus yet it is so in effect but the Civil Law distinguisheth thus l. Quin. duobus ff ad l. Corn. de falso Qui rem unant duobus vendidit dicens rem esse suam tenetur falsi at si non dicat esse suam tenetur Stellionatus Though by this Act Superiours receiving double Resignations are guilty and punishable as said is and seing to receive such Resignations is a great prejudice because it puts the Parties to great expences and that the Superior is presum'd to get and may get advantage by accepting such double Resignations or contributing to the making of such double Rights therefore they ought likewise to be lyable in Damnage and Interest to the Party injured BY this Act it is Statuted that a Charge to enter Heir may be directed against the Successors of the Defuncts they being of perfect age to enter to their Lands within fourty days Year and Day being first past after the Decease of the Predecessor and a Comprizing being led upon their failÈing to enter the same shall be as valid as if they were Infeft Nota Though this Act bears the being of perfect age yet Minors may be validly charged to enter Heir de practica but seing this Act is only made against such as may enter but wilfully ly out It might have been doubted whether Minors in Ward-Lands may be Charged to enter Heir for these cannot enter till they be twenty one years compleat but by our constant Practique they may be Charged since this is necessary for compleating the Creditors Diligence Nota That this Act does not appoint that generally such Execution should pass against the appearand Heir as if he were entred but only that his Land may be apprized and therefore quaeritur what execution may be gotten against his moveable Heirship and it may be urg'd that the same may be affected as the Defuncts other moveables for though they be Heirship respectu haeredis yet they are but moveables respectu Creditoris for they become only Heirship after they are drawn and yet it hath been found that the moveable-heirship may be adjudg'd and by that Decision it would appear that they can only be affected by apprising but there is a Warrand wanting in this Act for apprising them there is an Act of Sederunt anno 1613. allowing Charges to enter Heir to be rais'd within the Year and Day but the Summons thereupon must be execute after the Year and Day expire but not till the fourty days expire after the execution of the Charge but this annus deliberandi being introduced in favours of the appearand Heir he may omit the same and Renunce within the year if he pleaseth Neither can an Adjudication following within the Year be challeng'd ex eo capite July 14. 1631. albeit that the said Act appoints that a Charge to enter Heir may be rais'd after Year and Day expire after the Defuncts Death Yet the Year and Day must only be computed from the appearand Heirs birth if he was posthume Spots tit Heirs Livingstoun contra Houlerton de jure civili posthumus non habetur pro nato cum de incommodo ejus agitur l. etiam § Ille ff de minor THough the meaning of this Act seems to be that where Tradesmen who are Free-men either desert their work or delays the same the Owner of the Work may choose other Free-men or complain to the Deacon Yet it was found in July 1675. by the Council in the case of Borlands against the Masons of Edinburgh that where a Free man either deserted or delay'd the Owner of the work might imploy any even Unfree-men though it was alleadg'd it was not just to punish all the Free-men for the fault of one Nor was it convenient for the Common-wealth that Unfree-men should be admitted for whose work none can be answerable THis Act is Verbatim formerly set down Act 90 Par. 6. Ja. 4. BY the Civil Law Testaments and all Writs of importance were to be Seal'd and with us the appending of the Seal without the Subscription of the Party was sufficient R. M. lib. 3. cap. 8. num 3 4. and Papers were then Tri'd by comparison of Seals as now by comparison of Subscriptions but by this Act the Subscription of the Party and Witnesses is likewise to be added with the Seal and thereafter K. Ja. 6 Par. 6. Act 80. all Papers of importance are to be both Seal'd and Subscrived but now they need only be Subscrived without being Seal'd and though by this Act the Subscription of the Notar is sufficient Yet by that Act two Notars
and four Witnesses are requisit where the Party cannot Write By the 4 Act Par. 9. Ja. 6. Writs that are to be Registrated need not be Sealed but there is no express Law dispensing with Sealing as to other Papers which need no Registration so that the not Sealing is in these warranted only by uncontroverted Custom FIre-rising and ravishing of Women are to be put under surety as Mutilation and Slaughter by this Act From which some concluded that Mutilation was punishable as these Crimes were but the Act appoint not the punishment to be the same but the way of finding Caution to be the same and by the old Law Stat. Rob. 2 Cap. 11. Mutilation is to be proceeded against as Murder but yet licet redimere vitam and it is not declar'd there punishable by Death and in all the Journal Books no man was ever punish'd with Death for Mutilation the punishment being ordinarly confiscation of Moveables and Assythment to the party nor see I any warrand for Confiscation of Moveables since the Crime is not punishable by death nor any express Statute to warrand Confiscation I find that Mutilation is infer'd upon the cutting of a Thumb or Finger though digitus was alleadg'd not to be membrum but pars membri June 27. 1677. and it was formerly found July 15. 1642. Châ—in contra Mowat but though this may infer Mutilation Yet I conceive it would not infer Dis-membration Vid. observ on 28 Act 3 Par. Ja. 4. BY this Act all the Lieges may sell Fleshes on Sunday Munday and Thursday but thereafter all Mercats being discharg'd on Holy-days there is an Act of Town Council ordaining these Landward Fleshers to bring in their Fleshes only on Tuesday Thursday and Saturnday and not to sell in pieces but in Quarters which is confirm'd by a Decreet of the Session July 7. 1595. and ratifi'd in the Parliament 1681. FRom this Act it is clear that the Acts of Parliament cannot be Re-printed without the Kings special approbation even though the Lord Register consent for else why needed the Register get a Warrand by this Act and the Custom alwise is that the Register gets a special Warrand for that effect and the Council the 17 of November 1681. found that the Kings Printer having Re-printed the Acts of Parliament without such a special Warrand the Copies were Confiscable and should be burnt and the reason of this is because of the great danger that may arise from the wrong Printing of Acts of Parliament the difference of a word altering the sense to a contrariety but yet it seems the Register should have liberty to Re-print them since he is answerable for all the Errors and therefore we see that the Register used still to subjoin his Subscription to the Acts he Re-prints as is to be seen at the end of the 15 Par. Ja. 6. where Sir John Skeen's ordinary Subscription is set down at the end of the Acts which he Reprinted and Sir John Hay's at the end of the first Parliament Ch. 1. Q. MARY Parliament III. ALL the Acts of this Parliament except the first are Temporary for encouraging of such as were to hazard their Lives in that Army and are renewed fully by three equipollent Acts viz. Acts 41 42 43 Par. 2 Ja. 6. BY this Act Church-men are to have Right to the Fruits on the Ground the year they die and to the Annat thereafter and from this it is to be observ'd that the Annat was a Casualty that befel by and attour the Fruits that were on the Ground which belonged to the Church-men jure proprio and formerly the Church-men had right to all the Fruits of the year if he surviv'd the first of January for in beneficiis annus inceptus habetur pro completo but if he survived Michaelmas he had right to that whole year jure proprio and the half of the subsequent year jure annatae But now by the 13 Act 3 Sess. Par. 2 Ch. 2. If the Incumbents survive Whitsunday they have right to the preceeding half year by their own right and to the next half year by their Ann but if they survive Michaelmas they have right to the whole year viz. from January to January by their own Right and to the half of the other year as Ann and though it may seem incongruous that a Minister living till the last day before Michaelmas gets no more than he who lives till the day after Whitsunday Yet this is regulated in this case as it is in all Liferents and this is allow'd them for the support of their poor Families for that Act declares that the same shall belong to their Executors without necessity of a Confirmation and though this Act declares that the Ann is to belong to their Executors yet in effect that is not well exprest for it belongs to their nearest of Kin and Wife though they be not nominated nor Confirmed Executors If there be Bairns the Ann is equally divided betwixt them and the Wife but if there be no Bairns it is divided equally betwixt the Wife and nearest of Kin she having right in that case to a half and not to the whole because the Ann was of old introduc'd in favours of the nearest of Kin as appears by this Act for Church-men had no Wives under Popery when this Ann was introduced June 24. 1663. Elizabeth Scremgeor con the Executors of her Husband Though this Ann falls to Bishops and Ministers who die Incumbents yet it belongs not to such as renunce voluntarly their Benefices as was found in Bishop Lightoun's case and neither Manse nor Gleib fall under the Ann for the last Incumbents Executors have no right to the Gleib except the same was Sown before his Decease July 6. 1665. Colvil contra the Lord Balmerino The reason why Michaelmas and not Martinmas is made the Term in this case is because Ministers Stipends are payable out of the Teinds or by somewhat which is come in place of them and therefore Michaelmas should have been the ordinary Term and generally in payment of all Stipends the Terms of Whitsunday because the Sowing is then ended and Michaelmas because the Corns are then separated from the Ground are the legal Terms for payment of Stipends The foresaid Act allows an Ann to Bishops though the Act of the General Assembly and the Kings Letter in anno by which Anns were first establish'd as they now are did not mention them and under the Bishops Ann falls only the Quots of such Testaments as were actually Confirm'd in his Lifetime or during his Ann July 6. 1676. Captain Wisheart contra the Bishop of Edinburgh By the Canon Law the Annat was a quota payable to the Pope and Colledge of Cardinals by every Intrant out of his Benefice Vid. Tush concl 329. But a Casualty like ours is payable in the Protestant Churches of Germany Vide Carpzov jus consistoriale tit de decimis It may be doubted whether that Maxim annus inceptus
King may discharge any man to Print without his Licence vide Fritch de Typographiae abusu where he makes the regulation of the Press to depend upon every Magistrat by the Law of Nations and Printing may do as much mischief to the Government as Arms and so the Magistrate should have the command of the one as well as of the other though I know it is most unjustly pretended by some Republicans that Printing being a Trade no man can be debarr'd from the free use of it except by Parliament in which their own consent is imply'd We see also that the King allows his own Printer only to Print Bibles and other School Books c. vide Act 25 Par. 11 Ja. 6. against the Sellers of erroneous Books Queen MARY Parliament 6. IT is observable that this Revocation of Q. M. was under the Privy Seal whereas other Revocations are only under the King's Hand it differs in nothing else from the other Revocations IN the first part of this Act Reversions which were formerly as all other Writs sufficient if sealed by the granters Seal are declared null if they be not Sealed and Subscrived and though it is here declared that if the Party cannot Subscrive a Notar may Subscrive for him yet by the 80 Act Par. 6 Ja. 6. it is requisite that there be two Notars and four Witnesses in matters of importance or Heretage where the Party cannot write By the second part it is declared that all Reversions are null if they be not Registrated except Reversions of Land within Burgh which need no Registration and this is again enacted Act 16. Par. 22. Ja. 6. By this Act Reversions taken by way of Instrument in the hands of the Notar that gave the Seasine are as valid as Reversions subscrived by the Party himself and Registrat for according to the Law then standing Reversions were sufficient if subscrived by one Notar though the Party did not subscrive and Instruments taken in the hand of the Notar that gave the Seasine were as sufficient as a Reversion under a Notars hand but since that Act all Reversions both without and within Burgh should be Signed by the Party himself or by two Notars and no Reversion within Burgh needs to be Registrated 11 Feb. 1681. Irwine contra Corsen which being found inconvenient was thereafter first corrected by an Act of Sederunt Feb. 22 1681. and now by the 11 Act 3 Par Ch. 2. By which they are ordain'd to be Registrated in the Town Clerks Books within 60 dayes after the date thereof except they be incorporated in the Body of Rights THough this Act runs only against Committers of Slaughter yet it holds in all Criminal Causes IF any man be out of the Countrey he must be cited upon 60 days but if he was in the Countrey the time of the first citation it is sufficient by this Act that he be cited upon 15 days and though this Act says that if he was eight days cited before his departure he may be cited upon 15 days to the second dyet yet it holds if he was in the Countrey at the first Citation though he went immediatly out of the same VId. Crim. obs Tit. 21. of Libels Part 2. VId. Notes upon Act 77. Par. 6. Ja. 5. THe form of citing the nearest of Kin is now introduced in the choosing of Tutors Dative by the Exchequer and is establish'd most iustly by the 2 Act Sess. 3. Par. 2. Ch. 2. though formerly the King might have granted Tutories Dative without any citation of the nearest Kins-men Nota By this Act it is clear that a Curator cannot by a privat Renunciation of his Office free himself but he can only be freed by the Judge for though by the Civil Law Tutors and Curators were forced to accept yet by our Law they are not but if they once accept or administrat though without a formal acceptance they are still lyable from the date of their administration and not from the date of their nomination and that which was at first voluntary becomes necessary THough this Statute anent Lentron be renewed Act 221. Par. 14. Ja. 6. and that the Council used lately to grant Dispensations yet these Penal Statutes concerning Lentron are now in Desuetude VId. observ on Act 36 Par. 8. Ja. 2. and on Acts 68 and 69. Par. 8. Ja. 3. THese Instruments of Resignations are not only to be Sealed by this Act but to be Registrated by the 3. Act Sess. 1. Par. 2. Ch. 2. ALL Warnings are by this Act to be made only upon 40 days which holds though the Party be out of the Countrey because the Act is general though in other cases a Party out of the Countrey must be cited on 60 days 20 Feb. 1666. M cbrair contra Crighton and yet though this Act be general there needs no formal Warning conform to this Act from a Tower or Fortalice turris pinnata even though the Possessor had a Tack Nor in Lands Liferented for in these the Heretor will get upon a Bill Letters from the Lords charging the present Possessor to remove upon 6 days because Towers and such Houses belong not to Labouring nor are useful for it and this Act was made in favours of Labourers and it were unreasonable that the Heretor after a Life-rentrix is dead should be put to all these delays for removing those who possess by a right that is ipso jure expired These words of this Act appointing Warnings to be made either Personally or at their dwelling Houses and at the Ground of the Lands are so to be interpreted as that there must be still a Copy left upon the Ground of the Land or at his dwelling House and upon the Ground of the Land which citation upon the Ground of the Land was as it seems made necessary because in all real Executions quae praedia tangunt Copies must still be left upon the Ground and to the end that all who pretend to have real Rights and even Sub-tennents may be thereby certiorated 25 Feb. 1680. Craw contra Craw. Because this Act ordains all Warnings to be made 40 days before Whitsunday and speaks not of another Term therefore the Warning must be made before Whitsunday though the person warned be not oblig'd to remove by his Tack till the Martinmass but Execution must be superceeded till then vid. 8 July 1626. and 16 December 1628. Fowles contra Tennents and Inglis contra Tennents 15 June 1631. Ramsay centra Weir Though this Act appoints these Warnings to be made at the Kirk doors of the Paroch within which the Land lyes yet the Lords have sustain'd Warnings to be made at that Kirk which was reputed the Paroch and where Warnings were used to be made though it was not truly the Paroch Kirk 24 January 1667. Earl of Argyle contra Campbel and though by this Act such Warnings should be read in time of Divine Service that is to say
thereto and de facto the Justices only or such as have Commissions from the Council use to judge this Crime Vide. crim observ Tit. Witch-craft NOtour Adultery is by this Act declar'd punishable by Death and by the 105 Act 7 Par. Ja. 6. That is only declar'd to be notour Adultery Where 1 o. There are Bairns one or more procreated betwixt the Adulterers 2 o. When they keep company or bed together notoriously known 3 o. When they are suspected of Adultery and thereby gives Slander to the Kirk whereupon being admonish'd to satisfie the Kirk they contemptuously refuse and for their refusal they are Excommunicate if either of which three degrees be prov'd before the Justices the Committers are punishable by death From which Act it is to be observed 1 o. That by the first Act premonition to abstain was still to be made in all cases yet in neither of the two first cases here related it is declar'd necessary but since it is not lawful to kill him who was premonished and thereafter conversed except they conversed in suspect places Gribald de Homicid num 11. It seems that in neither of these Statutes Conversation should be Criminal even after prohibition except it be in suspect places 2 o. The Justices are only declared to be Judges to the notoriety of Adultery and therefore it may be controverted if Lords of Regalitie be Judges competent to the Cognition of it and this seems to be restricted to the Justices because it is an arbitrary Inquiry in a capital case 3. This Act does not exclude capital punishments in other cases of Adultery but only ordains that these three degrees shall be punish'd by Death and since there are other cases more grievous to the party injur'd and more scandalous to the Common-wealth It may be argued that the punishment of Death should likewise be extended to them as for instance to commit frequent Adulteries THis Act declaring that the raising of Bonds of Men of War and the rising in that manner is punishable by Death is formerly explain'd Act 2 Par. 1. Ja. 1 Vid. crim observ pag. 44 45. and this Act is ratified by the 12 Act 10 Par. Ja. 6. BY this Act the building of Kirk-Yard-Dikes is refer'd to the Lords of Secret Council who are to take such course therein as they shall think fit but by the 232 Act 15 Par. Ja. 6. The Parochioners are ordain'd to build them to the hight of two Ells. And the Lords of Session are ordain'd to grant Letters of Horning for that effect which they use now to do THis is fully Explain'd at the 7 Act 9 Par. Ja. 6. and the first part of it was enacted formerly by Act of Secret Council December 21 1561. and that begins It is Statute and ordained by the Queen which seems strange seing to Statute is only proper to Parliaments but Acts of Council do oft-times bear Statute and ordain Vid. Costal de Imperator Quest. 73. num 25. This Act mentions three kinds of Bishops the Bishop Elect the Bishop Postulat and the Bishop Consecrat a Bishop Elect is he who is Elected by the Chapter upon a congé d'ésâ—ire from the King but is not yet Consecrat A Bishop Postulat is he who was only call'd but not Elected and cannot be Elected as a Minor a Bastard c. Vid. cap. innotuit § habile de elect and it is observable from this Act that both these us'd to Dispone Kirk-lands or set the same in Tacks else they needed not to have been Discharg'd by this Act But though we have now Bishops Elect yet we have no Bishops Postulat and these Elects exercent solum ea quae sunt jurisdictionis sed non ea quae sunt ordinis BY this Act Notars are to be admitted only by the Lords of Council that is to say the Lords of Session as de facto they now are and by the Act of Sederunt 1595. The Lords ordain'd that yearly in November one of their Number should be Named by them to receive Notars who shall only receive such as are past twenty five can write an Evident in Latin or English and be Prentice five years to a Notar though now they are admitted before twenty five and without having been Prentice at all By this Act such as exerce the Office without being admitted by the Lords or after they are Dischaâ—g'd by them may be punish'd arbitrarly and even to Death But it has been found that Evidents subscribed by Notars once admitted though thereafter discharg'd are valid they having still been habite and repute to be Notars THough this Act appoints that all Notars shall be admitted by the King yet now they need no Letters from the King but do depend upon the Clerk of Register and his Depute the Clerk to the Notars The Clerks of Session are by their admission as such Notars though they be not admitted in manner mention'd in this Act and Instruments under their hands in judicial Acts makes as much Faith as the Instrument of any Notar. THe Act here dispensed with is the 46 Act Par. 6 Q. Mary and it is observable by this Act that when former Laws have not been universally observed no advantage is taken upon them and this is one of these Cases in quibus communis error sacit jus THe observation in the former Act holds also in this and the Act here dispensed 〈◊〉 is the 38 Act Par. 6 Queen Mary BY this Act it is declar'd that five or six of the principal Burrows shall be call'd to the concluding Peace and War and to the laying on Taxations It may be doubted whether by the Council to which they are to be call'd be mean'd here the Parliament or Privy Council and though ordinarly the Parliament be call'd the Kings Council and that it may seem they only should impose Taxations yet it mâ—y be urg'd that by Council is here mean'd the Privy Council because all the Burrows must be cited to Parliaments and the King and his Council us'd before to lay on such general Taxations and de facto His Majesty did so in many cases without either Parliament or General Convention of Estates as in laying on the Taxation for defraying the expence of the Baptism of King James the 6. December 6. 1562. which Taxation was laid on by eight Earls five Bishops and four Burrows not mentioning Barons because it seems the Earls were accounted Barons the Taxation was 12000. pounds whereof 6000. pounds by the Spiritual Estate four thousand pounds by the Barons and Free-holders and two thousand pounds by the Burrows and another Taxation for defraying King James the sixth's expence in his Journey to Denmark and many other such Taxations and this was then necessary because Taxations behov'd to be impos'd His Majesties Revenue being then very mean and to have call'd a Parliament or Convention would have put the people to more expence than these necessary Taxations were worth
but now by the foresaid 5 Act 1 Par. Ch. 2. all sums to be rais'd for maintainance of Forts or Armies must be first concluded in Parliament or Convention of Estates And now the King has a considerable Revenue by the Excise for defraying those small necessities for which the Council then impos'd and it is certain in the general that all Countreys should supply the Monarch with Means to defray the expence of the Government Vid. Arnis de jur Majestatis in bona privatorum Vid Act 85 Par. 6 Ja. 4. BY this Act the making privie Conventions or Assemblies within Burghs to put on Armour or display Banners c. without Licence from the Soveraign are punishable by Death Observ. 1 o. It seems that meer Convocations or Assemblies are not per se punishable by Death without putting on Armour or displaying Banners Observ. 2 o. That Naked-assistance at such Tumults with a Batton was not found by the Justices to infer Death in anno 1665. and I conceive that though a previous design were prov'd yet the assistance with a Batton would not be sufficient since the Act requires putting on Armour or Cloathing themselves with Weapons which imports hostile VVeapons for neither of these can be verifi'd in a Batton and penal Statutes are not to be extended but yet the appearing with a Batton is sufficient to punish arbitrarly such as assist at Tumults THis Act Confiscating Ship and Coals wherein Coals are Transported is in Desuetude but is not expresly abrogated by any Law and though at first Licences for Transporting Coals were necessary yet now even these Licences are in Desuetude we having now discovered more Coals than serves our Nation THis Act Confiscating Beeff and Mutton that comes to Mercat without Skin and Birn is still in observance and was made for discovery of Theft for the Skin being upon the Beast that is kill'd does bear all marks whereby it may be known and for the same reason in the Southern Shires the meaner sort who kill any Beasts are oblig'd to keep their Ears and if the Flesh be found where the Ears cannot be produc'd it is commonly look'd upon in these Countreys as a point of Dittay not only must the beasts be brought to the Mercat with their Skins according to this Act but by Acts of Burrows the Skins that are brought to the Mercat must not be scor'd nor holl'd which Fleshers did before negligently nor must the Haslock be pull'd that being the best part of the VVool and by the Acts of the Convention of Burrows made at the desire of the Conservator the Skins of Beasts within this Kingdom did rise in value a third more than when they were carried beyond Sea Qeen MARY Parliament 10. BY the second Act 1 Par. Ja. 2. which is the Act here related to the Kings lawful age was declar'd to be twenty one Years but it seems that because it was left dubious by that Act whether the Year twenty one was to be inceptus or completus when begun or ended therefore by this Act it is declar'd to be twenty one Years compleat and the word compleat is twice repeated And it seems that before this Act even the year it self was debateable for in the 93 Act 7 Par. Ja. 5. It is said that the King after his perfect age of twenty five years Ratifies c. By an Edict of Charl. the fifth of France anno 1375. Their Kings are declar'd Majors hors de tutelle at their age of fourteen IN this Act all Confirmations of Kirk-lands not Confirmed by King or Pope before the Year 1558. at which time the Reformation begun were declar'd null and by this Act Confirmations from Rome after that Year are discharg'd and the Queens Confirmations are declar'd equivalent to the Popes and I find that by Act of Secret Council September 10. 1561. the sending to Rome for such Confirmations is by Proclamation discharg'd under the pain of Barratry K. JAMES VI. Parliament I. QUeen Mary being Queen during her Life appoints the Earl of Murray to be Regent and his Election is Confirmed by this Act and it is Declared to last till the Kings age of seventeen at which time it is Declar'd that he shall enter to the exercise of the Government I find amongst the Un-printed Acts subjoyn'd to this Parliament a Resignation of the Crown made by her which it seems was necessary she being Soveraign during her Life as the King is during his Life Observ. She calls the Earl of Murray Brother though he was her natural brother which was conceal'd ob honorem but Ineptly and though the Earl of Murray is here call'd the Kings Cousine yet he should have been call'd his Uncle Nor are Uncles properly Cousines But I think this was because all Earls who are Counsellors are call'd Cousines and Counsellors but yet if he had been to have been call'd a Counseller for this cause he should have been call'd Cousin and Counseller I have also seen a Commission to one of the Kings Natural Sons in England wherein he was call'd our Cousin It is observable that sometimes the Acts of this Parliament bear to be by Our Soveraign Lord my Lord Regent and the three Estates as the 20 21 and 29. which is not well exprest for the Estates and Regent had no power to make Acts and therefore the rest bear better Our Soveraign Lord with the advice and consent of his clearest Regent and three Estates Nota The Parliaments saying my Lord Regent seems very ill Grammar for it should have been the Lord Regent THose Acts Confirm and relate to former Acts past in the Parliament holden by Queen Mary August 24. 1560. and yet we find no such Parliament but the true answer to this is as appears by Spotswoods History that the Lords of the Congregation having met in anno 1560. and having past those Acts abolishing the Popish Religion many of the Members of that pretended Parliament protested that this meeting was no Parliament because there was none there to re-present the Queen nor the King of France her Husband whereupon Sir James Sandilands was sent over to procure a Ratification of these Acts which being deny'd the same Acts are here Ratifi'd by the Earl of Murray when he came to be Regent as if they had been past in a lawful Parliament FOr understanding of this Act and the nature of Patronages it is fit to know that the Right of Patronage is a power of Nomination granted to him who either was Master of the ground whereupon a Kirk was built or who doted any thing to the Maintainance of it or who did build a Church to present one to serve the Cure thereat in all which cases he is accounted Patron and may present a person to be Minister or to any other Benefice and that only if he reserve such a power to himself in his Mortification for Hope in his Lesser Practiques is of opinion that
exegetick only of the Coronation and by them is meant the recept of his Authority in the Coronation This Act is Ratified by the 99 Act 7 Par. Ja. 6. vid. Act 2. Par. 3. Ch. 2. IT is fit to know that whatsoever of the thirds was not assign'd to Ministers did appertain to the King and it was called Superplus whereof there was yearly a Book made which altered and was more or less according to the Assignation to the Ministers and according to the Superplus-Books the Kings Collector did charge for the Superplus for the King's use and with it also the omitted Benefices which the Prelats and Beneficed persons omitted in the up-giving of their Rentals and also for common Kirk and Friers Lands which also with the thirds were appointed for the uses aforesaid The Rent of the thirds for the King's use is altogether extinguished partly by restitution of Bishops who have right to their own thirds and partly by erection of Abbacies and Priories in which the thirds are discharg'd in favours of the Lords of Erection they planting the Kirks Likewise in Parliament 1617. and 1621. And in our late Parliaments there was Commission granted by the Parliament for planting of Kirks which has made the old Book of the Assignations of Ministers Stipends and yearly Plat thereof to be out of use Many of these Books of Assumption are still preserv'd and they are very useful for clearing what the old Rentals of Benefices were so that it may be known whether Benefices be set with diâ—â—â—nution of the Rental FOr the better understanding this Act it is fit to know that a Provost with us is that which praepositus is in the Canon Law praepositura est dignitas quando est Collegiata alias non Fed. de sen. Consil. 80. Alia ergo est Jur. Can. praepositura Collegiata alia non Collegiata But with us where there was a Colledge Kirk it was govern'd by a Provost and Prebends and generally it was institute for Divine Service but there are Colledges institute for instructing of Youth as the old Colledge of St. Andrews which is governed by a Provost A Provost is in our Law no Prelat and therefore Tacks set by him are null without consent of the Patron 12 July 1616. Hope tit Kirk but è contra the Patron may gift Prebendaries without consent of the Provost or Prebends except it be otherwayes provided by the Foundation The Collegiat Kirks Provostries Prebendaries having been founded by Noblemen for their own ease and advantage they retain still a greater power over them than over any other Benefices and therefore by this Act the Patrons of these may provide them to Bursers or others notwithstanding of the Foundation which is ratified by the 158 Act. Par. 12 Ja. 6. and by the 54 Act Sess. 1 Par. 1 Ch. 2 vid. observ on that Act. FOrnication is now punish'd only by the Kirk Session and this Act is not exactly observed for the offenders now only pay an Arbitrary Fine and stand upon the Stool of Repentance THis Act and the next are explained in my Criminal Treatise Tit. Incest THe melting down of any Money already Coined within the Kingdom under the pains here exprest is punish'd with us because our Coyn being as fine as our Plate it would be thus melted down and so the Stock of the Money would be impoverished and as the 66 Act Par. 8. Ja. 3. observes it would waste and minish by translation in the fire but the Question being agitated whether forreign Coyn may be melted for Bullion it was urg'd that by this Act no Gold nor Money already Coyn'd within this Realm was to be melted for by the said 66 Act no Gold nor Money that bears Form and is Printed should be melted but to reconcile these the answer is that if Money be once allow'd to be current here by direct allowance as by Proclamation it is not thereafter to be melted down and so it was decided in the Lord Hattons case Feb. 1683. THough the Lords of Session are not Judges competent to reduce Sentences past in Parliament as the more Soveraign Judicature yet they are Judges competent to reduce Rights confirmed in Parliaments whereby the Confirmation falls in consequence quia confirmatio nihil novi juris tribuit vid. 25 March 1631. Bishop of Dunkell contra the Lord Balmerinoch This Act against forbidden Weapons is explained by me in my Criminal Treatise Tit. 32. VId. the Criminal Treatise tit Falshood THis Act was to supply the nullities which could have been objected against such Rights by the Court of Rome who pretended to the only right of bestowing Church-benefices so that our separation from the Church of Rome was first authorized by the Parliament in the year 1560. VId. Crim. tit Theft But it is now fit to observe that when any-man cryes for help against Thieves all who are desired are obliged to concur with the Owners of the Goods under the pain to be holden partakers of the Theft which Huy and Cry with us was called Quiritatio by the Romans by the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vid l. 1. 2. Cod. de his qui lat l. 1. ff de serv. fugitiv ALthough by our Law Pactions for Gifts or Rights to accresce to private men though not actually as yet fallen to them are valid and thus it has been found that a man may renounce or sâ—ll haereditatem futuram yet by this Act a gift of Escheat when a Party shall be denounced is declared not to be valid because this may occasion the person whose Escheat is so gifted to be denounced viis modis and this proceeds upon the same reason that the Civil Law discharges such deeds quae praebent votum captandae mortis alienae and by the Canon Law a Benefice cannot be promised or bestowed when the same shall happen to vaik nec confirmatur sequenti vacatione colâ—atio C. proposuit de con preb Ca. 2. de preb in 6. argumento hujus legis it seems that the survivances of Offices should be null by the same parity of reason for these preclude the King from his free Gift and are the occasion of snares Likeas such Gifts by our Law and Style should express modum vacandi which cannot be done where there is no vacation and though we have no express Statute yetâ—by our Practice which observes Styles as Statutes if a Gift express not modum vacandi it will be null so a Gift of Escheat not mentioning the Horning whereupon it proceeded was not sustained though a Horning year and day before the date of the Gift was Libell'd on in the Declarator and though the Gift was past the King 's own Hand at Court where Hornings could not be got 20 November 1628. Welston contra Stuart For if this had been sustain'd no Horning had ever been exprest thereafter but the Donatar had still choos'd out one of the meanest Debts since he is
this Act by the Arch-bishop Bishop Super-intendent or Commissioner who shall give their Testimonial how he and two of the Parochioners have design'd such four Aikers presently possest by such a man upon which Designation with a Supplication from the Minister the Lords of Session are ordain'd to grant Letters of Horning upon ten days which is renew'd by the 21 Act 3 Sess. 1 Par. Ch. 2. By which it is also appointed that such Designations of Manses shall be by such Ministers as the Bishop shall appoint and two or three of the discreetest Heretors BY this Act benefic'd persons being year and day at the Horn lose their Benefices which fall under their Liferent-Escheat but it may be doubted whether these Benefices should fall to the Patrons of the Benefices as other Lands fall to Superiors to compense their want of a Vassal especialy seing where Kirks vaik through the Ordinars not accepting of a presentation the vacand Stipends are declar'd to remain with the Patron or whether these Benefices ought to belong to Universities and such as have Right to vacand Stipends Or whether they ought to belong to His Majesty and to be Transmissable immediatly by Gifts in Exchequer as other Liferenters are And this last is most conform to our Law THough it appears by this and other Acts and by our progresses of Writs that the Pope us'd to Confirm Rights made of Church Lands yet that was never necessary by any positive Law with us and Feus even of Kirk-lands prior to the Reformation were and are valid without any such Confirmation but because about the time of the Reformation which was the 8. of March 1558. Benefic'd persons did dilapidat their Benefices Therefore by the 7 Act Par. 1584. It was declar'd that all Feus not Confirmed by the King or Pope before that time were null AT this time there were two opposit Parliaments sitting one for the King at Striviling or Stirling by the Earl of â—ennox as Regent and another for the Queen at Edinburgh and therefore this Act ratifies all that was done by the Parliament for the King and annuls all that was done by the other vide Melvils Memoirs pag. 113. vid. observ on 100 Act 7 Par. Ja. 6. BY this Act Excommunicat persons should be Denunc'd Rebels at the Instance of the Kings Advocat or Procurators for the Kirk but now the Kings Advocat is Procurator for the Kirk after this Denunciation their Liferent-Escheat falls to the King and all simulat Gifts of them are null Act 197 Par. 14 Ja. 6. and the Excommunicat persons and their Tennents are lyable for the Rents in solidum but the payment of the one frees the other Nor will the Defence of fructus percepti consumpti for the maintaining of their lives defend the excommunicat person as to bygones the reason whereof is not because if this could defend quoad bygones it should defend quoad the future and so the Act of Parliament would be evacuat as is alleadg'd in Dury June 26. 1629. But the true reason is because the excommunicat person cannot be bonâ fide possessor since he is so frequently cited BY this Act the Arch-Bishop or Bishop may appoint persons for Taxing the Parochioners for repairing of Churches if the Parochioners Elected to Tax refuse upon which Act the Lords are ordain'd to grant Letters of Horning which is extended to the Repairing of Kirk-yard-dykes by the 232 Act 15 Par. Ja. 6. But it may seem reasonable that the Patron should repair the Church since the care of the Edifice belongs to him ejus est incommodum cujus est commodum yet our Law burdens not the Patron But the Parochioners because they get the advantage in it of the Word and Sacraments for which reason also the Canon Law burdened them in the last place if there were not a fund for that effect or if fructus residui ex beneficio were not sufficient vid. Paul de citad de jur patr art 5. But for this reason all who are Parochioners should be lyable to repair and yet the Heretors are only lyable and it would seem that these Heretors should be first lyable who have bought in their own Teinds since they have most advantage by the Benefice the Rents of which Benefice were by the Canon Law burdened with these reparations By this Act also if any intromet with the Stones or Timber of a demolish'd Church the Bishops Decreet is equivalent to a Decreet of the Lords of Session but this is in Desuetude By this Act also the parsons of the paroch should furnish Bread and Wine to the Communion how oft the same shall be administrated and it seems that by the word Parson should be mean'd either Rector Ecclesiae for he is called the Parson or all the persons who are Parochioners and which seems reasonable because they partake of the Sacraments and yet Heretors are only lyable 2. It is clear from these word That what is due for Communion Elements should only be due when the Communion is given but yet Heretors are lyable yearly though the Communion be not given but it should be then given to the poor in that case and not to the Minister King James the sixth Parliament 4. FRom the Narrative of this Act it is observable that the Reformation from Popery first authorized in Parliament in August 1560 which observation may conduce to clear many things both in relation to dates and others which depend upon the Reformation By the Canon Law there could be no Divorce upon Separation because Marriage is a Sacrament and so could not be dissolved but by death but all Protestants allow a Divorce in case of wilful diversion and therefore by this Act if persons absent themselves and will not cohabite for four years they may be cited to adhere and if Divorce follow the Wife loses her Tocher donationes propter nuptias and if the Husband be the person who diverts the Wife will by the same parity of reason get her Conjunct-see and every thing else to which she could have had right â—f her Husband had died 21 March 1637. Lady Manderstoun contra Rentoun and by our Law the party injured has liberty to marry after such Divorces The Canon Law requires ten years diversion though this Act requires only four years c. 8. extrav qui filii vid. Ritors de disser Jur. Civ Canon l. 2. c. 14. but even in that case they grant no Divorcement but only separationem quoad thorum mensam As to the four years prescrived by this Act it may be doubted whether they should run from the date of the citation only or from the time of the withdrawing or desertion and it would appear that since the Act of Parliament sayes That if they remain in their malicious obstinacy for the space of four years therefore the four years should run only from the date of the refusal either by citation or at least by being required
and yet the Commissars ordinarly make them run from the date of the withdrawing and desertion simply though neither cited nor required and though it would seem by this Act that four years should interveen before the Decreet of Adherence yet the Commissars will grant a Decreet of Adherence upon a years desertion or less if it can be proven to be malicious or design'd for they think it is enough that four years run before the Decreet of Divorce Since the Act of Parliament requires malicious desertion to preceed the Divorce it may be doubted whether Citations at the Peer and Shore of Leith to those that are out of the Countrey or at the dwelling house to these that are within the Countrey be sufficient since they may be so cited without being malicious deserters and it were hard that a man being taken with Pirats or Robbers or necessarily absent without knowing of any such Citation should for 4 years absence lose his Wife and though in the Romish Church where there is no dissolution of the Marriage this might be sufficient since upon his return he might recover his own Wife yet it is most dangerous with us and though these Citations be sufficient in other cases yet there is no parity of reason for their being sufficient here where malice is required and where the loss is irreparable It may be also doubted if a Wife remaining in her Husbands House but refusing him all access to her may be said to have diverted and I conceive she may for all the reasons in the one case conclude against the other The form of Process here set down seems to be borrowed from the Saxon Law related by Sâ—edvin ad tit Instit. de nupt Par. 4. de divert Harprech ad part 11. de nupt num 131. seq and lest this Process may proceed from Collusion by the Husbands being desirous to divert upon design to obtain a Divorce therefore by our Law the Pursuer is obliged to swear that there is no such Collusion In place of Letters in the four Forms mentioned in this Act Letters of Horning are now summarly granted on all Commissars Decreets Act 7. Par. 21. Ja. 6. as also on the Decreets of Sheriffs Stewards Aâ—ts Bailies c. Act 177.13 Par. and Act 10 Par. 18 Ja. 6. for of old Horning being under the Sessions Signet 〈◊〉 only granted on Decreets of the Lords THis Act is in Desuetude for Salt may now be lawfully transported but then we had not enough to serve the Countrey BY this Act every Cowper is to put his own mark upon his own Barrel but by the 141 Act 8 Par. Ja. 6. there are Staples appointed for Salmond where a Gadge and mark is to be kept THis Act relates to the time wherein Grange kept the Castle of Edinburgh for the Queen King IAMES sixth Parliament 5. BY this Act Ministers Gleibs are not to pay Teind which is extended by the 162 Act Par. 13. Ja. 6. so far that Ministers Gleibs are thereby to be free from all Impositions whatsoever and it was found the 9 of June 1676. Burnet contra Gib that not only Gleâ—bs of Kirks establish'd by Law were to be free but even Gleibs of Chappels where there was Divine Service ordinarily and this priviledge of being free from Teinds was to be extended not only to Ministers Gleibs whilst they were possess'd by the Ministers themselves but that even the Gleibs of Vicars were to be free from Teinds when come in the hands of Laicks except it could be alleadg'd that within these 40 years bypast these Laicks had payed Teinds for these Gleibs albeit this Act of Parliament be only conceived personally in favours of Ministers but not really in favours of Parsons or Vicars Manses 16 July 1678. Earl of Queensberry contra Dowglass This Act is conform to the reform'd Churches abroad vid. Carpz jus consist BY this Act the Lords are ordain'd to direct Letters of Horning at the Chancellors and Bishops instances for charging the havers of Writs belonging to Hospitals summarly to produce them and the Clerk of the Bills having refused to pass a Bill upon this Act as being in Desuetude and as having been at first but temporary because it ordains a report to be made betwixt and Pasch next yet the Lords ordain'd such Letters to be granted and found the Act neither temporary nor in Desuetude January 1667. Hospital of Northberwick VId. observ on the 111 Act 14 Par. Ja. 3. and on the 119 Act Par. 7 Jam. 6. THis Act is explain'd in the 36 and 39 Acts 2 Par. Ja. 6. THough by this Act it is declared only that in the competition betwixt such as have obtained Confirmations from the King the last Right first Confirmed shall be preferr'd yet this holds also in Rights holden of other Superiors because if the Right be given to be holden of the Superior a me it is no compleat Right till it be confirmed and the first compleat right is to be preferr'd Nota From this Act that the Lords of Exchequer ought not to refuse to grant Confirmations de praxi if they refuse the Kings Vassals protest that their refusal shall not prejudge his right But I find that where many Creditors were confirmed in one day the Lords preferr'd them according to their diligence and there having taken Seasine and not according to the date of presenting the Signatures since neither were negligent nor had used precipitation for they shun'd to determine that the Exchequer had not preferr'd or brought in all justly for that were to make the two Courts interfeer 6 December 1678. Mill contra Pasoules But in the competition betwixt two Confirmations the Lords found that the first who had past the Seals was to be preferr'd and that the preference of the Confirmation was to be judged by the passing the Seals and not by the date of the Signature since it is not the Signature but the Charter that preferrs because a Charter first past the Seals though upon a posterior Signature will be preferr'd as the more compleat diligence the Seal being in place of the King's Subscription and consequently the date of the Charter is not still to be looked to since the Charter bears still the date of the Signature and the date of the passing of the Seals is proven in our Law by an attestation under the hand of the Keeper of the Seal for though that attestation may seem to be the testimony of only one Witness yet it is actus officii and the Minut-Book is a sufficient check upon his attestation 26 February 1680 Clackmannan contra Earl Wigtoun It is also observable from this Act that albeit the Keepers of the Seals are discharged to pass double Confirmations of Rights of the same Lands yet de praxi the Exchequer and Seals pass very frequently such double Rights periculo petentis and though where the obtainer of the first Right cannot instantly exclude the second as
Oath Observ. 3. It may be doubted whether this Act ordaining Merchant Accompts to prescrive in 3 years doth reach to Compts owing to Strangers for they seem not oblig'd to know our Law and this would ruin all Commerce locus contractus semper attendendus But it was found that this Act does extend to all Merchant Goods as well when sold in gross as by retail It may be doubted whether these two last Acts run against Minors since it is provided expresly that Prescriptions against Spuilzies and Ejections shall not run against them which shows that if this had been design'd in the other Prescriptions the same Clause had been renew'd since it was under consideration and so seems not to have been forgot only and there seems to be some reason for this since Minors are prejudg'd by SpuilÈies and Ejections and so Prescriptions in these should not run against them but in removings the hazard is only that a new Warning must be used and in other the like debts the only loss is that the debt cannot be prov'd by Witnesses after three years and so since these prescriptions did little hurt to Minors it was not necessary to stop their course It is also observable that though all these Prescriptions run in 3 years yet if actions be once intented they stop the prescriptions and thereafter SpuilÈies Removings or Aliments c. do not prescrive in less time than 40 years as all other debts do and till then violent profits are due or the like debts may be prov'd as if the action had been pursu'd within 3 years 26 January 1622. Herring contra Ramsay As also by our late Decisions if the Pursuer has continued to employ a Merchant the currency of that Compt and trust will preclude the prescription so that many former years preceeding the three last may be craved though this Act ordains all Merchant Compts to prescrive within that time but if a Bond be taken for these posterior years it is thought that cannot be called a current Compt and it may be debated whether in Law one or two Articles will make a current Compt and if it do there may be many wayes taken to elude this Act vid. 16 December 1675. Somerâ—el contra the Executors of Muirhead This currency extends to Brewers Compts of furnishing 13 November 1677. Wilson contra Ferguson Vid. Sand. lib 5. Decis Tit. 6. Though it was alleadg'd that albeit it should hold in Merchant Compts where there are Discharges taken and where a Compt Book adminiculats the recept yet it ought not to be consider'd in furnishing of Ale where neither of these are observ'd and yet this currency was not respected in Servants Feeâ— for these same reasons and because a Servants Fee is alter'd at the Masters discretion 12 February 1680. Ross contra Mr. Salton VId. Crim. Obs. Tit. Forestallers and Tit. 32. IT may be doubted whether this Act that gives power to the Sheriffs and other Judges to throw down Cruives and Yairs ought to be extended to Dykes built over waters or a part of the water for making a Dam to a Miln 2 o. VVhether Sheriffs or Lords of Regality c. may execute this Commission for their own advantage and where they themselves are the parties grieved since that were sibi jus dicâ—re and they would probably be partial whereas they may get others to execute the same THis Act Discharging exportation of Coals is now in Desuetude THis Act Fining such as propone unjust exceptions or lose the Pley within Burgh for the use of the poor is conform to that Title in the Civil Law instit de panis temere litigantium For there can be nothing so absurd and unjust as that men should not at least have their true expenses upon Oath whereas we use to modifie little or nothing even where there is not the least colour for a pursuit or defence and this I think a great iniquity in all Judges who are guilty of it Vid. instit de paen temere litigantium BY this Act the Lords of Session are ordain'd to distribute Justice without respect to any privat writing impetrat from His Majesty and by this His Majesty is freed from importunity and his people from unjustice This was formerly statuted by King David 2. cap. 18. cap. 41. and by the 2. cap. Statut. 1. Rob. 1. Judges are ordain'd to Judge secundum leges antiquas and in the Civil Law per l. 1. 6. C. si contr jus vel util publ per novel 82. cap. 13. and in the Canon Law cap. 5. de Rescript This same Law is also in France and is Learnedly Treated by Rebuff ad constitut Reg. tit de rescript and Plutarch commends Antiochus for having made a Law in these same terms but though the former Statute of King David warrands the Judge not to respect that Command but to indorse and send back the warrand and not execute the unjust Command which is by the 41. cap. of the same Statutes extended so that they are not oblig'd to delay Justice upon any such privat warrand Yet I find by § 10. cap. 20. of these same Statutes that the King may Discharge or Prohibite a Judge to proceed in the case of Perambulation for certain Causes for reconciling which Statutes it must be answered that the King cannot either simpliciter discharge a Perambulation nor any other Process but that he may discharge it for weighty Causes relating to the publick to which all privat interests must cede even as he may remit Crimes for such causes though these be of greater consequence or rather that the King may discharge Perambulations because the publick Peace is oftimes concerned in these since there used to be ordinarly great Convocations at such Perambulations and therefore the Justice General was of old only Judge competent to Perambulations Upon March 4. 1553. The Queen Regent appears in the Session and declares that the Lords should proceed to do Justice notwithstanding of any Letter or Order from her which is marked in the Books of Sederunt Observ. 2. That before this Act the Council us'd frequently to discharge the Lords of Session to proceed in judging privat Causes whereof many Examples are to be seen in Hopes larger Practiques and an instance of it is to be found in the 94 Act of this Parliament but that Custom is here discharg'd and as yet the Council uses frequently to discharge the Justices to proceed And notwithstanding of this Act I find in the Registers of Council 1581. King James Revocks in two several Cases Gifts granted by himself and Discharges the Lords of Session to sustain Action upon them Observ. 3 o. That the Lords are also allowed to proceed not only to decide but also to cause Execute their Sentences notwithstanding of such privat writings Charge or Command so that the Privy Council cannot Suspend the Lords Sentences neither by an Act of Council nor yet by Letters under the Signet But yet
the Privy Council by vertue of their late Commissions are allowed and do usually grant Protections whereby the Executions of the Lords Sentences are oftimes stopt IN so far as this Act Discharges the Lords of Session to take Buds or Bribes I have Explain'd the same crim pract pag. 248. Observ. 1 o. That the Lords are allow'd to reject any person whom the King presents to them to be a Lord if he be not qualifi'd and of good fame and therefore the Lords usâ—d when the King presented any person to be a Lord which was by a Letter direct to the Session wherein the King did nominat him a Lord to name some of their number to Examine him But now the Form of Tryal is more severe and is set down in his Letter direct by His Majesty in anno 1674. whereby they are immediatly after Pleading to resume the Debate and to give their Opinion first in a Cause Debated in praesentia and to sit with the Ordinary in the Outter-house and to report some Causes there Debated and to give their own Opinion with the Reasons thereof Observ. 2 o. That by the first Institution of the Session the President was still an Ecclesiastick person and of the Dignity of a Prelat as this Act says and yet I see no such Article in the first Institution but however that is here dispensed with for the future For by the 96 Act 5 Parl. Ja. 5. It is only said that the Session shall consist of fourteen persons the one half Spiritual and the other Temporal with a President BY this Act the Tenor of Letters of Horning and of the Executions thereof cannot be proven by witnesses The reason whereof I conceive to be not only because upon such Letters mens Escheat and Liferent may fall and that were of too great Importance to be proven by witnesses since our Law does not allow any Debt above an hundred pounds to be proven by witnesses But because witnesses can neither know nor remember the exact Tenor of all the formalities of Executions and Stampings thereof and so strict are the Lords in the Observation of this Act that after the Horning and Executions were Registrat they would not allow the Messenger to add the word Three Oyesses in his Executions though he offered to prove that there were truly three Oyesses and was content to bide by the Execution so amended and that the Executions did bear the words Thee Oyesses which wanted but the Letter R to make the Oyesses three Oyesses Vid. July 28. 1671. Sir John Keith contra Sir George Johnston and July 11. 1676. Stevâ—â—son contra Innes It may be 〈◊〉 whether the Tenor of such Letterâ— may be proven if there 〈…〉 other Adminicles in writ since even Papers of the greatest â—mportance may be thus proven by witnesses and there is no Paper whereof the Tenor may not be proven nor is the proving of a Tenor here discharged and if the Letters of Horning and Executions be Registrat the Registration takes both off the Suspicion of Falshood and makes the witnesses who are to Depone know what Solemnities were used but yet it will never appear by the Registrat Extract whether the Executions were stamped and yet this point being sacti may likewise seem to be probable by witnesses who saw the same stamped In the case betwixt Boyd and Malloch December 19. 1677. The Lords inclined to think that even Executions of Hornings being once perfected by writ and thereafter lost might have their Tenor proven though by this Act it would not be originally proven that Letters of Horning were execute but they were all clear that this Act was siricti juris and did not extend to Executions of Comprizings and therefore they found that the Tenor of such Executions might be proven Nota That a Registrat Extract will not stop a Certification when a Horning and its Executions are call'd for but the principal must be produc'd The Parliament having ordain'd that the witnesses to be used for proving the Tenor of the Executions should be led in the Lords own presence It may be urg'd argumento â—ujus legis that witnesses for proving of all Tenors should be led in praesentia and which is very reasonable because proving of Tenors is nobilis officij altissimae in daginis It is likewise observable in this Case that though the Parliament made an Act for regulating that point for the future yet they left the Decision of the Case depending to the Common Law IT is fit to know that there being a Staple appointed where all Staple Goods to be brought from Scotland are declared free of all Custome laid upon Imported Goods which was a very great favour It was therefore very just that no Merchant should have liberty to enjoy the priviledges of the said Staple except he would give his Oath of obedience to the King and pay his entry in that Incorporation This and the subsequent Act are still in observance and the Conservator uses to raise general Letters against such as break the same by warrand from the Council who are the ordinary Judges in these cases except where matter of privat right falls in King JAMES the sixth Parliament 7. BY the old Canons all ordinations were null wherein the persons ordain'd was not intitled to a certain Church Can-Sanctorum distinct 70. and thence it was that all Ministeria vaga wherein a man was ordain'd a Minister without respect to any particular Church or charge were discharg'd by our Church though in the Lateran Council thereafter the ordination was allow'd but the Bishop who ordain'd was oblig'd to Aliment the Church-man ordain'd without a suitable living By this Act Paroches are to be design'd and circumscrib'd and every Paroch to have its own Stipend and Pastor but this quota was not determin'd till the Commission of surrender of Teinds in anno 1627. determin'd that the lowest proportion of a Ministers Stipend should be 8 Chalders of Victual or 800 Merks which Act is thereafter Ratified by the 8 Act of the Par. 1633. It is also provided by this Act that all Kirks annext to Bishopricks be provided to Ministers and when the Title of any Prelacy is conferr'd on any that the said Stipend be reserv'd the reason whereof was that the Pope us'd to unite Parochs and Benefices to Bishopricks upon pretext of the meanness of Bishopricks and therefore in the beginning of the Reformation when Titular Bishops were made it was thought just that these Parochs should be again provided with special Ministers We call him a Titular who has the Title of a Benefice qui est in Titulo and thus the Seculars who had right to the Teinds due formerly to the Church are call'd the Titulars of the Teinds and by the old Canons it is clear that quaedam beneficia a titulo pendent quaedam a reditu and these Tithes are in the Ecclesiastick History said to have had their Origine either ab intitulatione in Codicem
matriculam cujuslibet Ecclesiae un de intitulari dicebantur in Canon Sanctorum distinct 70. or from the old custome of fixing upon the Altars or Churches the Titles of these who were presented to it some also think that most Offices in the Church had their denominations from the Offices in the State and Army there being an Analogy inter militiam armatam Coelestem and that there were Titulars allow'd in the one as in the other vid. Bengaeum de titulis beneficiorum cap. 1. It is clear by the said Canon Sanctorum distinct 70. that singula beneficia certo loco Ministerio circumscripta erant as in this Act of Parliament BY this Act it is not lawful for any who are provided to Benefices under Prelacies to dilapidat their Benefices That is to say to set them with diminution of the Rental which they payed at their entry and if the Minister contraveen he is to be deprived and the right to be null But by the 11 Act Par. 10 Ja. 6. All Rights made by Prelats with diminution of the Rental are null and the conversion of Victual payable to them into Money below the worth is by that Act declared a diminution they are also thereby ordained to find Caution not to dilapidat the Benefices Likeas by the Act 3 Par. 18 Ja. 6. the dismembering any part of the Benefice is declared a species of diminution and so null It has been justly doubted whether a Bishop obtaining certification in an improbation whereby the Land returned to the Bishoprick might thereafter dispone these Lands by a new right and it has been decided that this was no dilapidation if given for the same Rental or Feu Duty they payed before the Act 1606. for such certifications being frâ—quent and the design of these certifications being only to force the Feuers to produce it were hard to extend them especially since the design of these Acts is only to hinder the Beneficed Persons to diminish the Rental and value of them the time of their entry 27 January 1676. Bishop of Caithness contra his Vassals It seems that there is eadem ratio for sustaining Rights by the Successor of that Beneficed Person who obtained the certification though it may be alledg'd against him that he is oblidg'd to leave the Benefice in as good a condition as he found it It may be alledg'd that the same reason should sustain Rights made by Beneficed Persons who have obtained Reduction ob non solutum Canonem These Acts are so comprehensive that the Act 5 Par. 22 Ja. 6 seems unnecessary BY this Act if any man was rob'd by any of a Clan he may kill or arrest any of that Clan if it be found by a legal Tryal that the Clan'd man who did the injury was harbour'd amongst the Clan after the Injury was committed But though this seems as just as Letters of Reprysal are yet it is now in Desuetude justly for crimina suos tenent authores THese two Sumptuary Laws are in Desuetude But in the Act 113 a case is observable wherein even the Kings Licence for Transporting wool is not to be respected but is to be esteemed surreptitious THis Act seems strangely insert here since Popery was abolisht long before this Act. VId. observ on Act 77 Par. 6 Ja. 6. BY this Act all actions of Deforcement and breaking of Arrestment are ordain'd to be summarly discust by the Lords without delay and therefore they might have been excepted from the order of the Roll set down in the late Act of Regulations but yet they are not for they must abide the Order of the Roll as other actions and all the priviledge that they have quoad this is that they come in upon six days warning and need not be continued that is to say they have but one Diet. It is fit to know that these Actions may be pursu'd Civily or Criminally and the punishment is Confiscation of Moveables and an arbitrary punishment of their person Observ. 1. That the Creditors injur'd by the breaking of the arrestment are to be prefer'd to the Fisk the Reasons whereof was that it seem'd unjust that a Creditor doing Diligence for his own Debt should be disappointed by his own Diligence as he would certainly be if when he had pursu'd and prevail'd in his Action for breaking of Arrestment that the parties Escheat falling by this Diligence the King should be prefer'd to the User of the Diligence and we see likewise in all such cases the party offended is still prefer'd to the Fisk and thus where parties are at the Horn for a Civil Debt the Donatar of the Escheat is still lyable for the Debt And in Theft by Act of Parliament the party injured is prefer'd to the Fisk but it seems strange why by this Act the Gift of Escheat is declar'd null if it be not expresly burdened with the Creditors Debt It might seem more convenient that the Gift should rather have been burdened with it as in other cases Observ. 2. Though by this Act it be declar'd that the Debt shall be pay'd out of the Offenders Moveables yet that does not hinder the party offended to do Diligence against the offenders real Estate for what sums the Lords shall modifie Observ. 3. That Arrestments may be made not only in the hands of these who owe any thing to the Debitor But Arrestments may be even made in the Debitors own hands which though it may seem strange yet it is done to the effect that if the Debitor shall be found to have alienated any of his Moveables so arrested after the arrestment is laid on he may be pursu'd for breaking of Arrestment and punished conform to this Act. These Arrestments are used in the same sence and are execute in the same way that we use them and all this Subject is very well treated by Christin Tit. 3. ad leges Mechlin Argent Tit. des arrest 8. BY the Civil Law prodigals under which Name were comprehended all such as manag'd not well their affairs got Curators only by a Judge But with us they are Interdicted and their Interdicters are their Curators and that either judicially or by consent but though it may seem that if a man Interdict himself he cannot Reduce that Interdiction because he has consented Nor yet should Obligations granted by him be sustained though he be thereafter found by the Lords to have been provident since the publication did put all in mala fide to Contract with him yet Papers granted by him will be sustain'd on that head and even the Interdiction it self will be Reduc'd as contrary to natural liberty the Granter being mentis compos rei suae satis providus And there having no precognition preceeded December 4. 1623. Gerhan contra Hay February 1â— 1633. Forbes contra Forbes which leaves the people in great uncertainty and it seems much better that voluntar Interdictions were absolutely taken away Though I believe voluntar
the Process or Sentence of the Forfaulter yet the Assize must retour what the Rebel did possess the very time of the Process or Sentence and the King or his Donatar is to be entered thereto summarly and cannot be removed for the space of 5 years that in the mean time he may search and seek after the Rebels Rights for he cannot be presum'd to know quo jure the Rebel possest and albeit it may seem both by reason and by this Act that this should only hold where â—acks or previous possession though somewhat shorter than 5 years by vertue of a right could be proven yet the Lords found that this part of the Act holds even where no right could be shown if the forfaulted person was in possession though for never so short a time and it being alledged that these 5 years in this last part of the Act should be counted from the time of the forfaulter and not from the time that the Donatar enters to possession for else he might by lying out prejudge the Creditors The Lords found that if the Rents were extant he had right thereto from the date of the forfaulture though prior to his possession 24 January 1667. Home contra the Tennents of Kello But that case being a competition betwixt the Donatar and an Appryzer from the Rebel the Lords found the Donatar might summarly redeem the Appryzer and enter in possession ibidem THe reason upon which this Act is founded is that when any person raises a multiple poynding the party who is troubled by many who pretend Right ought to be secur'd when he pays to that person who prevails nam res judicata pro veritate habetur and he payes authore praetore and though Minors have by the Civil Law and ours a double remedy if their Tutors and Curators suffer a Decreet to pass against them for not compearance viz. That he may either reduce the Sentence or pursue the Curators for damnage and interest in suffering the Decreet for no compearance to go against them yet in this Act it is declar'd that if a Major who compeats with a Minor in a multiple poynding be prefer'd to the minor because of the Minors not compearance in that case the minor has only action against his Tutors and Curators but cannot Reduce the Decreet of preference but if the Minor have no Curators it is declar'd he shall be restor'd as accords of the Law that is to say he may reduce the Decreet since in this case he has no other remedy but if the Decreet of preference be quarrellable for any error in the execution or if the party absent can show a necessary reason for his absence then the Decreet is quarrellable either by Majors or Minors yet the Lords found that payment bona fide conform to this Act does secure the Payer not only against the principal Competers but against their Assigneys November 24. 1676 Weir contra the Earl of Callender but it has been debated whether the party who has been prejudg'd by the Decreet of multiple poynding may be Repon'd against the same by way of Suspension or if a Reduction be necessary and it has been found February 1 1670. Watson contra Sympson that a Decreet of multiple poynding obtain'd against the party could not be taken away without Reduction at the parties Instance nor was a Suspension at the Tennents Instance sufficient because the Narrative of this Act bears expresly That the parties used to crave to be reponed by intenting Reduction and that the party who obtains the Decreet is by the Statutory part only oblig'd to answer in the second Instance which the Lords found to be by way of Reduction and from that Decision it is very clear that these words The second Instance in all Statutes are only Interpret by the Lords to be mean'd of Reduction and not of Suspension Observ. 1 o. That the party absent will not be prejudg'd if he have a necessary cause of his absence for it were unjust to punish a man for what was not in his power and yet by this Reservation he who gets payment is still unsecure but he who pays by vertue of the Decreet before Reduction be intented can never be call'd in question Observ. 2 o. That the party prefer'd in the multiple poynding is only thereby secure as to the bygone profits which are paid and so in effect facit tantum fructus consumptos suos and if the sums be extant unpaid to the party so prefer'd he who had the best Right before the Decreet of multiple poinding will still be prefer'd and it seems by the words of the Act that if the profits themselves be extant the best Right will be prefer'd for the words are Nor yet shall have any Right to the bygone profits intrometted with This is by the 19 Act Par. 10 Ja. 6. Declared only to be extended to such actions of multiple poinding as were intented after this Act was made THe first part of this Act dispensing with the not Sealing of such Papers as are to be Registrat is explain'd in the 117 Act Par. 7 Ja. 5. and whereas this Act declares that a Seasine is sufficient if Subscriv'd before one Notar and a reasonable number of Witnesses that reasonable number is understood to be two though by a vulgar error it is believed that a Seasine requires four Witnesses and now by constant custom four Witnesses are always adhibit in Seasines and by the 5 Act 3 Par. Ch. 2. their Subscriptions are necessary BY this Act it is appointed that all Kirk-lands set in Feu-ferm should be confirmed by the King else they are null by way of exception Observ. 1 o. That though the Narrative of this Act bears That all Feus and long Tacks set since the Year 1558. should have been Confirmed yet the body of the Act does not declare that long Tacks need to be Confirm'd Vid. manticam de ambig convent lib. 5. Tit. 10. And Balfour relates Decisions bearing That Tacks for three nineteen years are esteem'd as alienations and so should be Confirm'd Observ. 2 o. This Act Declares that of old all Kirk-lands should have been Confirmed by King or Pope Yet the 187 Act Par. 13 Ja. 6. seems to insinuat that neither Confirmation of Pope or King was necessary but that the Kings consent was sufficient and that therefore the Act does Statute That no right can be quarrelled for want of Confirmation where the King has consented under the Privy Seal but that the Kings Confirmation was necessary of old is clear R. M. lib. 2. c. 23. and the reason there given is quia corum terrae sunt de eleemosyna Domini Regis and being presum'd to have been given by the Kings for praying for them they should not be appropriat to another use without their consent Observ. 3 o. That only Feus of Kirk-lands are ordain'd to be Confirm'd and therefore the Lords inclin'd to think that Feus of Salmond Fishings set by Church-men
Act relates though it be not expresly cited THis Act appointing Licences to be null except they be subscrived by the Comptroller is so far innovated that they must now be subscrived by the Thesaurer and Thesaurer-Depute who are come in place of the Comptroller BY this Act Sheriffs Stewards Magistrats of Burghs and others are ordain'd to apprehend notorious Thieves and if they refuse they may be pursued Criminally as partakers of their guilt or Civilly for the payment of their Debt and generally all these are lyable if they refuse to apprehend any Rebel for Civil Debts But it may be doubted 1. If any Judge be oblig'd to apprehend a man at the desire of any person who cannot instruct the person whom he takes to be a Rebel by producing Letters of Caption as he must do in Civil casâ—s and what makes a Thief a notorious Thief to this effect 2. If meer negligence in not apprehending these notorious Thieves be sufficient to found a Criminal pursuit against the refuser as partaker nor have I seen this sustain'd but if any person shall contribute actively to a Thiefs escape he is punishable as Art and Part but with a lesser punishment vid. Clar. Quaest. 9. num 7. Bart· ad l. furti ff de furto ait spem datam ad evadendum dici auxilium ad committendum Nota By this Act all who are present and able to apprehend are oblig'd to assist in taking Thieves or if they refuse they are to be repute partakers with them and though they may be punish'd with some small Mulct yet the certification here set down is in Desuetude as to them vid. tit Duels Crim. Observ. num 8. Idem est facere non prohibere cum possis and as the Law presumes every man guilty who wil not concur to punish what all men hate so much and that they would concur if they favour'd not the guilt so this assistance is so profitable for the Common-wealth that such as deny it are Criminal but that which is considerable in this Act is that if any Clann'd man rob any peaceable Subject and if the Sheriff or Steward c. refuse to assist him not only is the Sheriff c. lyable but further it is declared lawful to them who have their goods stollen and rest to apprehend and intromet with the Goods of the Offender or any other of the said Clann and retain them till compt and reckoning and though it would seem that this taking or retaining by privat authority is not allowable till the Sheriff be required to give satisfaction and refuse yet in the case Moor contra Mefadrick 29 Novemb 1678. It was found that these were separate Clauses and that a person pursued for a SpuilÈie might propone relevantly that the Pursuer being a notorious Robber or holden and repute so had rob'd him of as much and so he might justly have seiz'd upon the like quantity of the Pursuers Goods though he had not first required the Sheriff to repair him nor was this Act found to be innovat by the 100 Act Par. 11. Ja. 6. which appoints a new method for Goods taken away by Clann'd Men. HEre is a Revocation of the King's Property in general but I find in the Registers of Council that upon the 22 of March 1684. The King revocks all Rights made by him of the Abbacie of Dumfermling which Revocation is made with the consent of the Privy Council though ordinarly Revocations are made by the consent of the Parliament BY this Act the nearest Agnat that is to say the nearest of the Fathers side should be Curator to Fools Idiots and Furious Persons Observ. 1. That this Act is extended to Deaf and Dumb Persons to whom likewise the nearest Agnat is to be Tutor and though their Tutors and Curators are to be served by this Act yet if the nearest Agnat omit or is uncapable to serve there is place for a Dative nor doth this Act exclude the Father from leaving Tutors in his Testament to such Idiots and Furious Persons as are within the years of Tutory as he may do to other Children and Craig observes that if the Furious Person or Idiot have Lands the Superior will be preferr'd to the nearest Agnat but in this I differ from Craig for the Agnat will be preferr'd to the Tutory of these as he will be to the Tutory of Minors and Superiors have by this Act dispens'd with their Feudal interest if they had any Observ. 2. This Act relates to the Common Law by which the Curators are called Curatores Legitimi but by that Law as by ours if there be no Agnats extant the Judge gives a Dative who is preferr'd to all other nearest of Kin Vid. Tit. ff de curat Furios And the Agnats by that Law as by ours are preferr'd according to the same degree as they would succeed which is most just since the Law does prefer them to the custody of the Estate because of their hope of Succession and therefore it may be doubted where there are three Brothers whereof one is furious if his Estate be conquest whether the elder Brother will be preferr'd to be his Tutor because Conquest ascends but I incline to think that the Heir of Line is still to be Tutor of Law Observ. 3. That this Law appointing the nearest Agnat to be Tutor holds only where there is not a Legal Administrator and therefore if a Wife who is an Heretrix become Furious the Husband and not the nearest Agnat will be her Tutor and though Papinian thought the Husband should not be Tutor l. 14. ff de Curat Furios Yet the customs of other Nations agree with ours Perez num 10. h. t. vid. Act 67. Par. 8. Jam. 3. Observ. 4. Though this Act equiparats the Tutors of Fools Idiots and Furious persons to other Tutors of Law allow'd to Minors yet there seems this difference betwixt them that Tutors of Law to Minors must serve within year and day from the time they are in capacity to serve but the nearest Agnat may serve himself Tutor of Law to an Idiot or Furious Person at any time and when he is so serv'd he will be preferr'd to a Tutor Dative though the Lords will authorize that Tutor Dative to exerce till a Tutor of Law be served the Exchequer being in use in the interim to grant Datives as the Lords of Session are to grant Curators ad lites 21 January 1663. Stuart contra Spreul and though in that case the Pupil was not then declared Idiot or Furious by an Inquest and so there could not be a Tutor of Law yet it seems that albeit there had been a previous Declarator and so the Tutor of Law had been negligent the Decision had been the same and the reason is because this Act prefers the Agnats and yet it decides not quid juris if they enter not and what if the next Agnat require the nearest Agnat to enter and he refuse
Fruits of every Benefice were due to the Pope and are call'd by the Canonists Annata against which several Councils have made large but ineffectual Representations and the fifth penny was payable to the King and though this Act discharges only the exaction of these in Benefices under Prelacies yet now even Prelacies are free from these exactions in Scotland though in England the first Fruits belong still to the King Though the Priests were free from Subsidies amongst the Aegyptians Genes 47. vers 22. and that l. placet C. de Sacr. Eccles. nihil extraordinarium abhinc superinductumve ab Ecclesia slagitetur Yet this was only as to Tiths and things meerly Spiritual but the Lands of the Church were lyable to Impositions laid on for the common Defence of the Countrey and therefore the Canonists ad c. 1. de immun Eccles. give as a Rule that in bonis Ecclesiasticis ut Cleriâ—â—s in patrimonialibus ut laicos tractandos and such was this fifth penny here mentioned and with us Ministers stipends but not Bishops Lands are now ordinarly freed from Impositions OBserv. 1. That though such as invade Ministers for the Causes therein exprimed viz. for seeking their Stipend or because the Minister inflicted Church-censures upon them or any other forged quarrel are to be punished with all rigour yet if they invade them upon any account that is not Ecclesiastick or premeditat as in an accidental scufle they are only in these cases punishable as for wrongs done to other Subjects Observ. 2. Since the Act appoints that they may be punished with all rigour and the tinsel of their Moveables It is clear that such Invaders may be punish'd likewise personally besides the Confiscation of their Moveables yet the words with all rigour should not be extended to death but by the 4 Act Sess. 2 Par. 2 Ch. 2. The assaulting the lives of Ministers or the robbing of their Houses is declar'd punishable by death and by the 5 Act 1 Sess. of the said 2 Par. The Parochioners are made lyable for the Outrages done to Ministers if the Actors cannot be got Observ. 3. From these words That they may be punished at the Instance of the Minister or any other that will pursue This Crime is made so far crimen publicum that it may be pursu'd per quemlibet ex populo though he be not otherways interested Observ. 4. That this Act being only against Invaders of Ministers it is extended to Invaders of Bishops and all such as have power to administer the Sacraments 7 Act Par. 1 Char. 1. In which Act there are many other Extensions of this Law THe Popish Clergy had right to Lands that were mortifi'd to or bought by them and to Teinds which belonged to them as Church-men The Teinds were call'd the Spirituality of their Benefices because they belonged to them as Church-men and the rest was all comprehended under the Designation of the Temporality of their Benefices and upon the abrogation of Popery the King did begin to erect some of the Temporality of their Benefices in Lordships which He Dispon'd to several Noblemen who were most active in the Reformation Or to these whom He resolv'd to oblige by their Interest to be active in it and these were called â—ords of Erection but thereafter the Parliament resolving to fix a constant Rent to our Kings thereby to preclude the necessity of Taxes and to ingage future Kings not to return to Popery they annext the Temporality of all the Church-lands and Benefices to the Crown by this Act. Observ. 1. The reason whereupon this Act is founded is that the former Kings having mortifi'd a great part of their Revenue to Church-men and having thereby impoverish'd themselves and their people it was therefore just that the ends for which these Mortifications were made being declar'd unlawful the Benefices should return by this reason such Mortifications as were made by privat Families should have returned to them whereas here all returns to the King But in Law these Religious Houses being demolish'd all ought to have fallen in to the King for qua nullius sunt ea sunt domini Regis and these were such for they belonged not to the old Proprietars since they were once Dispon'd nor to these Houses since they were extinguished and that being found a false Religion what belong'd to it did by the Law fall under Confiscation Observ. 2. Though all Benefices belonging to Arch-bishops or Bishops are by this Act annexed yet they are restored by the 2 Act Par. 18 Ja. 6. And though all Benefices belonging to Chapters are annexed yet these are restored by the 2 Act Par. 22 Ja. 6. Observ. 3. From these words in the Clause of Annexation viz. All and sundry Common-lands bruiked by Chapters of Cathedral Kirks or whereof they have been in possession as Commonty That Possession in Church-lands is very often repute a sufficient Right and to be loco tituli For understanding whereof it is fit to know that both before and after the Reformation a Churh-man being in possession by the space of seven years though without a Title has the benefit of a possessory Judgement so that his Right cannot be quarrelled without Reduction nor needs he produce a Title as Laicks are oblig'd to do in possessory judgements July 18. 1671. Earl of Hume contra the Laird of Rislaw And if he be thirteen years in possession that possession is to him in place of a Title for by a rule of the Chancery as we believe docennalis triennalis possessio habetur protitulo though I find no such Rule in the Roman Chancery but yet these thirteen years induce only a presumptive Title which does not exclude the true Proprietar if he can instruct that the Benefic'd person possessed either by a redeemable Right and produce the Reversion as was found in the case of Francis Kinloch contra the Bishop of Dumblane July 11 1676. Or by a precarious Right as was found in the case of a Minister who had casten Peits for thirteen years by tolerance from the Heretor and though there be no difficulty where the Right mortifi'd does expresly bear that it is Redeemable or Precarious yet in absolute Rights there is greater doubt whether after thirteen years they can be qualifi'd by correspective Obligations The reason of this priviledge given to Church men is that they being imploy'd in Divine Matters are ignorant and careless of their Right especially since their Rights are not to descend to their own Heirs It is fit here to take notice that by a vulgar error triennalis possessio was thought to give the benefit of a possessory judgement 12 March 1629. Marshal contra the Laird of Drumkilbo and decennalis of a petitory and thus did they interpret the former rule At the Reformation also the Popish Clergy did either send their foundations to Rome or did by collusion with the Laicks interested or in hatred of the Reformed Clergy destroy their Rights and therefore by
an Act of Sederunt 16 December 1612. It is declared that ten years possession before the Reformation or 30 after the Reformation should be a sufficient right either to Church-men or to the King 's coming in their place by vertue of this Act and conform thereto the Lords decided July 5 1626. Laird of Kerss against Reid Observ. 4. That because the Romish Clergy were put from their Benefices therefore they are by this Act freed from any warrandice they had given for Church Lands dispon'd by them and by the 110 Act of the same Parliament what is here Statuted as to the warrandice of Lands is there extended to Tacks Pensions and Assignations and so these two Acts are not absolutely co-incident and the last unnecessary as they would seem to be and though this was done in majorem cautelam yet by the common Law they would not have been liable in warrandice since no man is liable in warrandice where the eviction proceeded upon a supervenient Statute for no man can warrand against a supervenient Law Observ. 5. That notwithstanding that the Church-Lands are annexed yet there is a dissolution in the same Act warranding his Majesty to Feu any of the saids Church-Lands during his own time Observ. 6. That though by this Act all prior Dispositions made of Church-Lands by his Majesty to Lords of Erection are excepted from the Annexation yet the Superiority of all the Erections both before and after that Act are annexed to the Crown by the 10 Act Par. Ch. 1. Observ. 7. That the Spirituality of Benefices viz. their right to the Teinds is expresly declared not to be annexed but to remain with Church-men as formerly for though by the 149 Act Par. 13 Ja. 6. it be said that the Teinds of Dumfermiâ—â—g are annexed to the Crown after the form of the Act of Annexation 1587. by which all the Teinds of the remanent Kirk-Lands and Prelacies of the Kingdome are annexed yet that Clause is only insert by mistake in my judgement for that is not the design of the Act. Where Stock and Teind are promiscuously Feued it is declared by this Act that his Majesty remains Superior both as to Stock and Teind the Church-men having only right to the tenth penny of the Feu-duty the other nine belonging to his Majesty for the temporality being only annex'd to the Crown and the Teinds being reserv'd to the Church it was very just that where a duty was payable out of Church-Lands cum decimis inclusis the King should only have right to a ninth part of that duty and the tenth should belong to the Church-man or Titular in contemplation of the Teinds but still decimae inclusae are so fully exempted from all Ecclesiastick payments that though there be not sufficiency of Teinds in the Paroch yet decimae inclusae are never burden'd with the payment of Ministers Stipends though Ministers Stipends be the constant burden of all Teinds and for the same reason it was found 21 January 1633. that no Valuation could be led of Land Feued cum decimis inclusis and not confirmed before this Act and that Laicks might prescrive a right to them but not to other Teinds which shews that decimae inclusae are never lookt upon as Teinds For understanding the origine and nature of decimae inclusae with us it is fit to know that by the Canon Law the Parson or Incumbent and the Paroch Church were founded in the right of all the greater Tithes called decimae praediales and that it was not lawful for any man to abstract their Teinds from it cap. de decimis 16. Quest. 1. And albeit the Popes did pretend that since the Bishops had the management of the Teinds they as universal Bishops might by their supereminent transcendent right appropriat them to the use of Monastries Monks being the best of the poor and Teinds being naturally burden'd with the maintainance of the poor yet our King's who in all the tract of our Parliaments own'd their own Regalia and the Episcopal Order against the invasions of the Popes did by the 7 Act Par. 2. Ja. 4. declare it a point of Dittay that is to say Criminal for any man to take a right of Teinds from any save the Parson Vicar or their farmers so far they acknowledg'd the Parochial Churches to be founded in their right to the Predial Teinds Notwithstanding whereof the Popes to get the Monks to depend immediatly upon them did grant to those Monks exemptions from payment of Tiths for they as well as others paid to the Parson or Incumbent till Pope Paschal the 2 d granted those exemptions but these exemptions did thereafter so far diminish the provision of the Parson very many Lands being either mortifi'd to them or bought in by them that Theodosius and other Emperours were forc'd to make Laws against exorbitant Mortifications and Pope Adrian was forc'd to limit the exemptions to four Religious Orders Cistertians Hospitalers Templars and Knights of St. John still allowing all of them Exemptions for their Novalia or Lands first cultivated by themselves But Pope Innocent the third in the Lateran Council thereafter ordain'd that even these four Orders should pay Tiths for what Lands they should acquire after that time which I the rather observe because it has been decided by our Session July 15. 1664 Thomas Crawford contra Prestoun Grange that Lords of Erection succeeding in place of the Cistertian Monks should be free from Tiths as the Monks were without adverting whether these Lands for which exemption was pleaded were bestow'd on their Monastries after the year 1120. and it seems that this Exemption should not be allow'd to these Monastries since they were not allow'd to the Temple-lands with us and that such priviledges are due to neither because this was a personal priviledge given to the Monks as the Poor and so should not descend to the Lords of Erection The Monks being thus Masters of many Tiths feu'd out their Lands and Tiths promiscuously for the encouragement of the Labourers who have alwayes thought it a loss and a slavery to wait till their Tiths be drawn Laicks also enjoy'd Tiths and alienated them as their own Heretage for many ages together it being generally believ'd as Selden contends that the Tiths were not due to Church-men they having Right only to a Maintainance jure divino though others ascrive these Laical Infeudations to a corruption begun by Charles Martel King of France who to gratifie and pay such as were to assist him in the Holy War Dispon'd to them the Tiths consentientibus Episcopis who knew that if the Saracens prevail'd Religion would be destroy'd and he promising to restore them But after this time it is undenyable that de facto Teinds were Dispon'd to and by Laicks till the Lateran Council 1169. in which the Canon was made prohibemus ne laici decimas cum animarum suarum periculo detinentes in alios laicos possint aliquo modo transferre Si quis vero
perceperit Ecclesiae non reddiderit Christiana Sepultura privetur But yet before that time Laical Infeudations were Discharg'd per Concilium Turon 1096. Though we in this Nation consider only the Discharge in the Lateran Council It remains clear from these Informations that our decimae inclusae are in effect the same with the decimae infeudatae in the Canon Law and these are call'd decimae inclusae where the Stock and Teinds were never separated but were feu'd joyntly before the Lateran Council but yet it seems that all decimae infeudatae are not esteem'd inclusae with us for in a Case betwixt Monimusk and Pitfoddels Teinds were found not to have the priviledge of decimae inclusae though Transmitted by Infestments and call'd decimae inclusae because there was separat a Reddendo paid for the Teind and Stock and so it could be known to be different from the Stock albeit it was contended that decimae inclusae and infeudatae were pares termini and a different Reddendo did not evince that the Teinds had ever been separated from the Stock but only that there was a different Duty as is in Lands of the same holding oftimes and it may in general seem strange why we should add since the Lateran Council for that Council did find that Laicks before that time were incapable of any Right to Teinds and therefore all Feus of Teinds whether before the Lateran Council or after should be null and this Error it seems has been occasion'd by our concluding that because Laicks were declar'd uncapable of them by that Act therefore they were capable of them before it and yet with us a Laick cannot prescrive Teinds because he is not capable of them and Balsour tells us a Decision wherein not only alienations of Teinds but even Tacks of Teinds for three nineteen years were accounted alienations and so null for else Discharging alienations might have been eluded by setting long Tacks But now Teinds pass by Infestments as the Stocks does since the Surrender and His Majesties Decreet thereupon wherein every man may buy his own Teinds and so may set as long Tacks of them as he pleases or Feu them out cum decimis inclusis But it may be alledg'd this tenth part payable to the Ecclesiastick person for Teinds may be made liable to Ministers Stipends since this tenth part must be constructed as Teinds and so should be lyable to all the burdens of Teinds but to this it is answer'd that these decimae inclusae are consider'd as a part of the Stock and so no more liable to Ministers Stipends than the Stock is this division of the Feu-Duty doth not alter the nature of the decimae inclusae but is only insert to regulate the way of payment of the Feu-Duty even as if after a Feu granted of Stock and Teind promiscuously for a Feu-Duty the Church-man should dispone nine parts of the Feu-Duty and reserve only the tenth to himself that tenth part could not be liable to Ministers Stipends 2. Since this Act by the death of the Titular both Temporality and Spirituality came in his Majesties hands and so were dispon'd to the Lords of Erection and return'd to them without this distinction of nine or tenth parts Though by this Act Teinds are declared the Spirituality of Benefices yet they may be sold and are appointed now to be sold by the Parliament 1633. and the Heretors are to be infest in them as in their other Lands which seems inconsistent with their being the Spirituality of Benefices and the Patrimony of the Church but it may be answer'd that they are even in that case burden'd with payment of Ministers Stipends till they be competently provided Observ. 8. By this Act all Lands and others mortified to Colledges are excepted from the Annexation and the reason is because Kirk-Lands remain still to be such albeit they be mortifi'd to Colledges 12 Feb. 2635. Tock contra the Parochiners of Achtergoven and therefore it was necessary to except them Maisons Dieu or Hospitals are also excepted and Maisons Dieu are Hospitals dedicated to the honour of GOD it is a French word signifying the House of God the Canon Law calls them Domus Dei and makes them Hospitals Observ. 9. Pensions likewise out of Church-Benefices are excepted if they be authorized either by Decreets or Possession but possession of a part is repute possession of the whole and by the 137 Act 12 Par. Ja. 6. this Act is ratified and it is declared that all Pensions out of the Spirituality or Temporality neither clad with Decreet nor Possession in the Prelats lifetime who dispon'd the same before this Act of Annnexation shall be null but if they be clad with possession in manner foresaid they are valid against singular Successors though Pensions granted by Laicks are not valid albeit they be clad with possession prior to the singular Successors right as was found the 11 of December 1662. Clappertoun con the Lady Ednem but by the Act 140 Par. 12 Ja. 6. Pensions granted by Church-men should contain the particular names of Tennents and Duties vid. observ on the 62 Act of this Parl. Observ. 10. By this Act it is declared that the Bailie or Steward of the Regality shall have the same power he had before to repledge from the Sheriff or Justice-general in case he hath prevented the Justice-general by apprehending or citing the person before he be apprehended or cited by the Justices but if the Justices have prevented as said is then the Bailie of the Regality or Steward shall not have power to repledge but he may sit with the Justice-general if he pleases so that in effect by this Act there is this difference betwixt the Ecclesiastick and Laick Regalities that there is a right of repledging competent to the Laick Regalities whereas Ecclesiastick Regalities have not this priviledge except they prevent the Justices but otherwise the Bailie of Regality may only sit with them the reason of which difference is that the Regalities having been only granted in favours of the Religious Houses which were supprest the Regalities became extinguish'd with them and his Majesty having ex gratia only reserved their Offices to the Lords of Erection he thought that they were abundantly gratified by this new Concession without allowing them the power to exclude his own Justices in case of prevention and this was also a favour to the Lieges in not troubling them with two Courts nor were the Lords of Regality much prejudg'd for by this same Act they retain the whole right to the Escheats and Fines even of these who are condemned by the Justices Observ. 11. That the Parliament has been so careful of the Vassals and Feuers of Kirk-Lands that because the King who is declared Superior by this Act of all these Lands was a more powerful opposite Therefore by a Clause in this Act it is provided that the King shall not quarrel their Rights to these Kirk-lands save by Improbation or by
to these His Laws and the 9 Act Par 3 Ch. 2. Ordains all such Licences Protections c. to be sign'd and the Signers to be lyable c. It may be likewise doubted whether the Commission of the Kirk can grant Protections since there is only allowance by this Act granted to the Privy Council Session Exchequer and Justice Court but since the 61 Act 1 Par. Ch. 2 Declares that the Acts Decreets and Ordinances of that Commission shall have the strength of the Acts and Decreets of Parliament they are really a Commission of Parliament And therefore as the Parliament can grant Protections so can they especially since without this they cannot exerce well the Jurisdiction intrusted to them by the Parliament and it seems inherent in all Courts that they should be able to protect all whom they Cite and it is clear by this Act that the Supream Courts of Scotland have power before this Act of Parliament to grant Protections for this Act reserves only their former power but grants them no new power These Protections are thought the same with the induciae moratoriae granted by the Civil Law l. 4. C. de precibus Imperator c. which are not valid by that Law nisi idonea fideijussio super debiti solutione praebeatur But I think these to be rather Suspensions and that Cautioners in Suspensions with us arose from this THis Act anent Teinding of Corns is Explain'd fully in Act 73 Par. 6 Ja. 6. BY this Act he who accuses another for Treason and proves not commits Treason Observ. This is only in case of malicious accusation for the Act says That malicious accusers c. and therefore if the pursuer had probable grounds for his accusation he seems not to incur the hazard of this Act. Observ. 2. That though the Act says Whoever accuses yet the Kings Advocat runs no such hazard for he accuses ratione officii but to prevent this he gets alwayes in Treason a warrand from the King or Council upon Reading the Depositions of the Witnesses taken by way of Precognition or else he has an Informer who finds Caution to insist sub poena talionis Observ. 3. That the pursuer is only lyable if the party calumniat be call'd accus'd and acquit therefore the Accuser repenting and not insisting it seems that he will not be lyable in this pain but for not insisting he will be only lyable in the sum under which he has found Caution and possibly in poenam arbitrariam if malice appear and yet it may be urg'd that he should be lyable to the pain of Treason since not insisting was the pursuers fault and no man ought to have advantage by his own fault nam qui dolo desiit pâ—ssidere pro possessore habetur Dubâ—â—atur If this Act extends to such as pursue only Statutory Treason and sure it does not if they pursue not the same as Treason though upon the event it may prove so It may also be doubted if a Witness who has Deponed against a man in a previous Tryal as guilty of Treason and thereafter Depons he knows nothing of it commits Treason for this wrongs the party as much as an accusation yet if this Deposition was not emitted ultroneously but on a Citation it cannot be call'd an accusation nor punisht as such but it seems punishable by Death by l 1. in prin ff ad L. Cor. de fals LAnded men Convict of Theft Reiff or Reset commit Treason It may be doubted if an appearand Heir be punishable in that case as a Landed man or if a person once a Landed man but denuded be lyable Though Landed men may be thus punished as Traitors yet they are ordinarly pursu'd for single Theft and the Kings Advocat does restrict his Libel to ordinary Theft But because it may be punishable as Treason therefore the Lords Advocate Thefts against Landed men though the Libel bear only single Theft THe murthering any person who is under the trust power or assurance of the slayer commits Treason Assurance is extended to such as we have invited to our house or such as we are under trysting and capitulation with This Act is likewayes extended to Husbands killing Wives Bairns Servants e contra THis Act determining what is Usury is explained in my Criminal Pract. Tit. Usury THis Act declares that such as exact other Customs from the people than what is warranted by express Law or express warrand or immemorial possession shall be punished as oppressors It is thought that possession for 40 years is equivalent to immemorial possession and warrands such exactions by prescriptions SHips transporting Victual are confiscated and the Masters and Clerks imprisonable during pleasure This is now abrogated for it is lawful to transport Corn even without a warrand from the Exchequer except where the same is discharged by special Proclamation because of Dearth THis Act discharging the eating of Flesh in Lentron is in Desuetude tho till of late eating of Flesh was discharged without a previous warrand under the hand of the Clerks of the Privy Council THis Act appointing the slayers of Deer Cunnings to be punished as Thieves is explained crim pract Tit. Theft num 15. BEcause the people were oft times mistaken in executing their Brieves Legally through the difference arising from several Jurisdictions therefore some places are here appointed to prevent mistake and a General is subjoined appointing Brieves to be executed either at the head Burghs of Shires or Stewartries or where Brieves were most usually served From which last words it may be observed that Executions are sufficient though they be not at the real head Burghs if they be at the place where they used to be executed and thus Executions at Dunce were sustained for the Shire of Berwick though Greenlaw was really the head Burgh by the Erection and Executions of a Warning were sustained though not at the right Paroch Church within which the Lands lay since it was executed at the place at which Warnings used to be executed 24 January 1667. The Earl of Argile contra George Campbel so far the presumption of habite and repute prevails even over truth BY this Act the granter of a Woodset is declared not to be prejudged by his negligence though he suffer an Ecclesiastick quietly to intrude and to continue long yea even 100 years in the possession of Laick Patronages to which he has right because during the none-redemption the Woodsetter did not look upon himself as Heretor The reason of this Act has certainly been because Church-men possessing per decennalen triennalem possessâ—onem prescrived a right and the Act seems to imply that because the granter of the Woodset was not valens agere whilst the Woodset stood therefore his negligence should not prejudge him but I conceive that Church-men now prescriving a right by 40 years peaceable possession will exclude all the rights of Laick Heretors as well when the Lands
had not been secur'd by this Act. THough this Act Discharges all continuation of Justice-Courts and Ordains the Justices to proceed notwithstanding of such precepts yet both King and Council use to Command the Justices to continue their Diets though this Act was objected in the Process for William Halyburton's Murder June 1676. But it is necessary that in such Cases the King should be inform'd by the Justices what is to be said on both sides before they continue such Diets in Process at the instance of privat parties for the King and the party having different Interests and it being declar'd by Act of Parliament that the party may pursue without the King It seems very reasonable that the parties Process should not be stopt upon surreptitious Warrands without acquainting the King I find in the Council Register July 1582 That because His Majesty had been troubled by the importunity of such as desir'd not to be Try'd before the Justice-airs but at particular Diets whereby they eschewed ordinarly all punishment that therefore His Majesty does in Council Statute and Ordain this is oftimes the Stile in Acts of Council as well as in Acts of Parliament That the Justices shall proceed without respect to such Warrands and it seems that that Act of Council has given occasion to this Act of Parliament and generally many Acts of Parliament have been at first Acts of Council which shews likewise what power the King has in His Council of this Nation THis Act appointing that Sheriffs should yearly give in the Names of their Deputs and Clerks to the Lords of Session and find Caution in the Books of Council is in Desuetude as to both the parts for they neither find Caution nor give in the Names of their Deputs But de jure I think Letters of Horning may be direct upon this Act for both effects it being most reasonable that the Lords of Session should know whether the Deputs be able and this Caution would keep them in awe and secure the people if they do injustice The Caution requir'd by this Act is Burgesses Indwellers in Edinburgh Caution Burgeoise as the French call the best Caution BY this Act the form of holding Justice-airs is set down but it is to be found more fully in the Iter justiciarii and upon the word Justice-air de verb. signif and so needs not be repeated but there are some things fit to be observ'd because innovated Observ. 1. That Commissions of Justiciary are to be under the Testimonial of the Great-Seal by this Act but now they are always under the Great-Seal when granted by the King but seldom or never under the Quarter-Seal which is call'd the Testimonial of the Great-Seat and when they are granted by the Council they are only Sign'd by a Quorum but under no Seal Observ. 2. That albeit the Steuartries or Bailliries be here appointed to come to the head Burrows of the Shire where Dittay is to be taken up yet it has been found that the Council may ordain them to come to other places for the publick conveniency when the Diets are so short that the Justice Clerk cannot stay at every Shire and thus the Constabulary of Hadingtoun was ordain'd to give up Dittay at Edinburgh Obserâ— 3. That albeit by the old Form Pannels were to be Cited to Justice-airs upon fourty dayes Iter. Just. num 6. Yet now they use to Cite upon fifteen or more dayes and then as now they are not Cited peremptorly to one day as in ordinary Justice-Courts but to any one of the days in which the Court is to sit in that place to which they are cited and all the Pannels are called every day at that place and if they compear at any one of the dayes they are not declar'd Fugitives At the first day of Justice-airs all who are call'd must find Caution to appear at all the Diets of the Justice-airs which some complain of Albeit by the form of our old Briâ—ve and the constant Practique only Millers Brewers Smiths and Officers of Courts were cited to give up Dittay upon Oath because it was presum'd that the best intelligence is to be had from such publick persons yet the Couâ—cil did lately ordain that Noblemen and Gentlemen should likewise be oblig'd to give up Dittay because the Crime being Treason and art and part thereof It was presum'd that they should understand the same better than mean people and for detecting of so great a Crime persons of all qualities should concur and the former Custom was not exclusive of calling persons of quality Likeas by the 94. Act Par. 13 Ja. 3. The King is to call the Lords and Head-men of the parts of His Realm and to take Dittay of them id est by them of notour Trespassers BY this Act Hoghers or Slayers of Horse destroyers of Plough-Graith Growing Corns c. are punish'd as Thieves to the Death Vid. crim pract Tit. Theft Observ. 1. That this Act proves Theft to be Capital by our Law though we have no express Law for making Theft Capital generally Observ. 2. That it may well be doubted whether cutting of Corn c. in Landed-men is Treason since it would seem to be so for by this Act it is declar'd punishable as Theft and Theft in Landed-men is by the 50 Act of this Parliament declar'd to be Treason but yet I conceive that these Statutory Thefts are not punishable as Treason since that were but fictio fictionis duae fictiones non cadunt in idem subjectum Likeas the punishment is dedetermin'd here to be the punishment of simple Theft viz. Death whereas if the Law had design'd Forfalture it would have nam'd Forfalture here as in the former Act. It has been doubted upon this Act whether the cutting of Corns Sowen by a Strangâ—â— who had no right was a Crime in the Heretor who may pretend that satum cedit solo and it is thought that if the Heretor suffer'd a Stranger to possess for any considerable time he could not have cut them down summarly no more than he could have removed that Stranger summarly from his Possession though unjust THese Acts are Explain'd crim pract Tit. Deforcement Vid. Act 150 Par. 12 Ja. 6. and Statut. Will. cap. 4. v. 5. IT appears by this Act that Letters of Lawburrows were of old granted by several Clerks and by this all Caution for Law-burrows is ordain'd to be found to the Justice-Clerk which was indeed most reasonable because bodily harm is there dreaded and the preventing of that should belong to the Justice-Court but now the Council Session and Criminal Court have the power of causing parties find Caution for Lawburrows but the Act in so far as it discharges Lawburrows to be granted against Complices in the general is yet in observance and very justly for it was not fit to leave it arbitrary to the parties to charge any they pleased THough this Act appoints all Courts to be Fenc'd
at eleven of of the Clock in the forenoon yet it does not irritat and annul all Courts holden at any other hour and Courts are ordinarly held at other hours but it may be doubted whether a party cited to a peremptory Diet and staying till twelve of the Clock and taking Instruments thereon could be unlawed in the afternoon for absence but if the Court once sit parties are obliged to attend THough this Act appoints the Expences of parties accus'd and acquitted to be modifi'd by the Justice-Clerk and his Deputs yet they are now only modifiable in full Court by the Justices but it is doubted whether the Justices can modifie Expences where the Defenders are absent since the only Certification against absents is that they shall be Denunc'd Rebels But yet the modifying Expences seems to be the necessary result of all Processes and that inest officio judicis It is also doubted whether the Justices can ex intervallo modifie Expences none having been sought the time that the Letters were brought back and the party declar'd Fugitive and the Justices are in use to do both but the case has not been yet fully Debated BY this Act the Roll of Assizers was to be given by the party accuser or a Notar in his name but now by the third Article of the Regulations for the Justice-court the Assizers are nam'd and the List subscriv'd by the Justices for it was thought too severe that the Kings Advocat or the party accuser should have the naming of the Assizers BY this Act Customers passing Customable Goods for Gratitude are to be Try'd Criminally and their Moveables to be Escheated in case they be convicted Observ. 2. That the Kings Servants are only to be punish'd in case they transgress for Money so that negligence is not punishable except it be gross but yet if Customers should wittingly and willingly pass Goods for Friends or Relations I think it would be punishable by a Fine And since the stealing of Customs is Theft this connivance in strict Law seems a Theft-bute or accession to theft Observ. 2. Though this Act declares this accession punishable in a Justice-air yet the Exchequer and Council do also punish the same by arbitrary punishments THis Act is Explain'd fully crim pract tit Assizes but it is fit to add that His Majesty having written a Letter in anno 1683. desiring the Justices to Examine Witnesses in Treason when the Council requir'd them at any time before insisting in the Process to the end His Majesties Advocat might know how to Libel and to prevent the absolving of Rebels who were truly guilty by the mistake of citing the wrong Witnesses it was alleadg'd that the desire of that Letter was contrary to this Act ordaining all probation to be receiv'd only in presence of the Pannel 2. That this would ingage Witnesses to adhere to the Depositions that might be Elicited from them by the too great zeal of His Majesties Servants or the influence of others To which it was answer'd that as to the first the Depositions to be taken in that previous Tryal were not to be made use of to the Assize which was all that was discharg'd by this Statute As to the second It was not to be imagin'd that the Judges to whom only this was to be intrusted would prejudge any Pannel or be corrupted by any influence and before the Witnesses Depon'd these Depositions should be destroy'd so that the Witnesses could be under no apprehensions upon that account and the people were in a better condition by this Letter than formerly for it was securer to trust previous examinations to the Judges than to the Kings Advocat who did alwayes Examine alone formerly and this would prevent unjust trouble when there were no Witnesses who could Depone against the persons accus'd through error or malice THis Act is also Explain'd in the Title Assizes But it is fit to add that Blair and others being Convict of Error for assoilÈying some Traitors wrongously and their Escheats being gifted they rais'd a Reduction of the Gift as founded upon a Verdict that was null by this Act in so far as the Kings Advocat had spoke with the Assyzers after they were inclos'd which reason was repell'd because the Justices had declar'd that the Advocat had only spoke to the Assyzers in their presence when the Assyzers were desiring to be solv'd of some doubts which was ordinary and allowable December 21. 1682. It may be also doubted whether such Verdicts can be reduceable for though the Act declare that the Assizers may assoilÈe if any speak to them yet if they and the Justices proceed it seems not quarrellable or at least before the Session for I remember that the Justices having declar'd a Bond of Glenkindies forefaulted for not producing some Witnesses against himself the Lords declar'd that the Justice-court being a Supream Court their Acts and Sentences were not quarrellable before the Session Queritur if both these may not be quarrell'd before the Parliament and I think they can not except the Decreets of the Session can THis and the following Acts to the end of this Parliament were made for quieting the Borders and Highlands as to which the same courses are to be taken though now the Borders are Governed by a Commission of both Kingdoms so they are not put to find Caution as they were by these Acts but the Acts here set down are generally observ'd as to the Highlands still except in so far as I shall here observe upon the respective Acts. Observ. 1. Though this Act appoints that the first day of every Moneth shall be appointed for hearing Complaints concerning the Borders and Highlands yet that is in Desuetude as to both Observ. 2. That that part of the Act ordaining a special Register to be made for Borders and Highlands is in observance quoad the Highlands by a late Act of His Majesties Privy Council BY this Act all the Lands-lords contain'd in this Roll are ordain'd to find Caution which Roll is subjoin'd to the Acts of this Parliament but that Roll is now very much alter'd for many others are now ordain'd to find Caution who are not therein specifi'd but are now in the Proclamations of Council March 17. 1681. c. because the Heretors mention'd in the Acts of Parliament are often extinct and the Lands for which they were to be bound are dispon'd to others And whereas by these Acts these Landlords and Chiefs of Clans were ordain'd to produce their Delinquents before the Justice or his Deputs they are now to produce them before the Council or else to pay the Debt which are great arguments to prove that in matters of Government de facto we consider more the Reason than the Letter of the Law Though this and the 103 Act of this Parliament which is coincident with this may seem severe because the innocent is bound for the guilty yet necessity and publick interest has introduc'd
alter the Taxation of any particular Burgh according as the number of Burghs increaseth or according as any particular Burgh grows unable and they divide this sixth part amongst themselves according to the total of 100 pound Scots which is the imaginary Standard or Assis and each Burgh pay accordingly some being valu'd at 6 ss some at 12 ss c. And if any Burgh resign its priviledges they must also resign in favours of the Burghs Royal their common Good after which Resignation and not otherwayes their proportion is divided amongst the rest for it were unjust that they should retain their common Good which was to pay the proportion of publick burden and yet be free from the burden it self BY this Act a Burgh selling any part of their freedom without consent of his Highness and his three Estates loses their whole freedome Observ. 1. That the reason given by this Act is because they as Vassals cannot sell without consent of the King their Superiour and so this seems to be a kind of recognition and it would have appeared reasonable that therefore the King's consent might have seem'd sufficient because he is only Superior but the reason why by this Act the Parliaments consent is declared necessary seems to be because Burghs-Royal bears a part of the Taxation of the Kingdom and so alienating any part of their freedom they seem to lessen the subject-matter out of which the Taxation is payed Obseev 2. It may be doubted whether a posterior Confirmation or Ratification by the Parliament will be a sufficient consent Obsrrv. 3. That Magistrats and Council cannot alienat the priviledges of a Burgh and therefore Alienations made by them would not infer this forfaulture or recognition and therefore all the Inhabitants behoved to be cited by Touck of Drum to such Alienations as they were per sonitum Campanae in the Civil Law tit Cod. de venditione Bon. Civit. BY this Act the Parliament having referred to the King to determine who should represent the Barons which shews what great deference our Predecessors had to their King His Majesty determines that none but such free Barons as are Free-holders holding of the King and residing within the Shire shall represent the Shire but by an Act of Parliamant 1669. It was declared that such as are free Barons might elect or be elected though they were not actual Residenters and that notwithstanding of this Act which is thereby abrogated as to that point and most reasonably for their interest in the Shire ceases not by their not residence and conform to this Act the Convention decided in all Elections June 1678. Nota All Elections are to be subscrived by six Barons at least and though in controverted Elections these who have six will be preferr'd to these who have five and if neither of the Competitions have six a new Election will be order'd because both are unlawful yet if all the Barons were cited and fewer than five were only present a Commission by these five may seem sufficient because the absence of Barons should not prejudge the Shire yet in the Convention 1678. many inclin'd to think that a new Election should be order'd in that case because of this Act and that that Shire ought not to have a Vote who would not send legal Commissions Though by this Act the Missives for calling Parliaments or Conventions which are here called General Councils should be directed to such as were the last Commissioners in place of the Sheriffs yet now they are ordinarly directed to the Sheriffs and sometimes to any the King pleases as in the Parliament 1661. By this Act the Commissioners are to be choos'd at Michaelmass Head Court and failing thereof at any other time the Free-holders meet or when his Majesty requires them and therefore it may be doubted if every Shire are obliged to choose at Michaelmass since that seems to be ordered here and the other dyets are only ordered to be failing of that Head Court But yet many Shires in Scotland use not to choose at Michaelmass but delay Elections till they be required Though by this Act the names of such as are elected are ordained to be notified in Writ to the Director of the Chancery by the Commissioners of the last year yet that is not now in observance since his Majesty uses no more to call Parliaments and Conventions by Precepts out of the Chancery but by general Proclamations It is to be remembred that where there are Elections at Michaelmass the Shire cannot choose of new as was found in the Convention 1678. in the case of the Shire of Perth and ordinarly the Proclamations bear as it did there that the Shire should choose where they had not formerly chosen at Michaelmass and so these Elections were made without warrand but it may be doubted whether such Elections would be invalid if the Proclamations mention'd nothing as to this point it was there alledged that the Shire might make a new Election because the Commissioners then chosen were denuded and were become no Barons to which it was answered that this should have been represented to the Council who would have ordered a new Election but the Shire could not proceed to elect by their own Authority contrary to the Proclamation THough this Act has adjusted the Weights and Measures of the whole Nation and ordain'd the Linlithgow Furlot to be the Standart as to that measure yet it is expresly provided by this Act that if any persons be founded by Infestment Tack or Contract in a different Measure that Measure contain'd in their private Right should stand but should be proportioned to the Linlithgow Measure without prejudice to either Party that is to say they should have right to the old Measure fully but it should be payed according to the new Measures as for instance the Boll of Galloway being six Furlots the Master should have six Furlots payed in to him which exception was most just because of the intrinsâ—ck value of the Lands to which the old Tacks c. were proportion'd but yet the Lords sustain'd in Milns a Moulter though much greater than the ordinary fourth part of a Peek because of constant possession and found that this Act did not extend to Milns since therein different Measures are used according to the proportion of the service nor was this Act ever observ'd in any part of Scotland as to Milns In Conjunct-fees and Life-rents also the Husband being oblig'd to provide the Wife to particular Lands which he obliges himself to make worth so many Chalders of Victual it has been found that he is oblig'd to make them worth so many Chalders according to the measure of the Countrey where the Land lyes because his own Rent is so payed and Ministers in Galloway and other places where great Measures are used will get their Stipends according to these Measures the reason of all which I conceive to be that these measures were made greater at first because of
the insufficiency of the Victual of these Countreys and so the greatness of the Measure does only equal the intrinsick value This Act having fallen in Desuetude as to the Linlithgow Measure is again renewed by the 16 Act Par. 23 Ja. 6. And many wish that Corn were now sold by the weight and not by measure weight being the only sure rule of the intrinsick worth of Corn but this being propon'd in the Par. 1681. the overture was rejected by a Vote Vide observ on Act 96 Par. 6. K. Ja. 4. supra King James the sixth Parliament 12. FOr understanding this Act it is fit to know that upon the 22 of May 1592. The Presbyterian party taking advantage of the Kings being engag'd against Bothwel and in other difficulties they held a General Assembly at Edinburgh wherein they drew up several Articles to be presented to the King and Parliament whereof Spotswood names only four 1. That the Acts 1584. against the Discipline of the Church should be abrogated and the present Discipline establish'd 2. That the Act of Annexation should be abrogated and the Patrimony of the Church restor'd 3. That Abbots and Priors c. nor none having Commission from them should Vote in Parliament as Representing the Church 4. That the Land should be purg'd of Blood The King rejected the second and third but in complyance with the first Article he did because of his present difficulties as Spotswood observes allow the present Church Discipline by General Assemblies Synods and Presbyteries but yet he does not here expresly abrogat Episcopacy only the Presentations are not ordain'd to be directed to them but to Presbyteries which Presentations are again restor'd to Arch-bishops and Bishops by the 1 Act Par. 21 Ja. 6. And Spotswood tells us that severals of the Bishops possest even then by their Titulars Episcopacy war again restor'd so that the Bishops did sit in Parliament by the 231 Act Par. 15 Ja. 6. but they were not fully restor'd to their Spiritual Jurisdiction till the 2 Act 18 Par. Ja. 6. but in that Act this Act is not abrogated as it would certainly have been if this Act had abrogated Episcopacy but this Act is abrogated by the Act 1 Par. 21 Ja. 6. By this Act the Collation and Deprivation of Ministers is declared to belong to the Church jure divino but these words or any siklike essential Censures having warrand from the Word of God are too general and may be abused This Act is now abrogated totally in all its Heads Clauses and Articles by the 1 Act 2 Sess. Par. 1 Ch. 2. which seems too general for though this Act establishes Presbytery yet there are many Clauses in it in favours of the Protestant Religion and to which no answer can be made but that what this Act has establish'd in favours of the Protestant Religion was formerly establish'd by other Acts but the truth is these Acts are not so full as this PEttie in his History tells us that by the seventh Article of the foresaid Assembly it was desired that Tacks set by the Depos'd Ministers should not stand But by this Act it is only declar'd that when Ministers are depriv'd their deprivation excludes them tam ab officio quam beneficio which has been doubted because Suspensions are only ab officio By this Act though the persons be depriv'd yet it is declar'd that their deprivation shall not be prejudicial to Tacks lawfully set by them before their deprivation and the Lords do expone the word lawfully so as to extend to the Setter himself so that his Successors can only quarrel these Rights upon such reasons as the Setter himself could have quarrelled them Vid. Hopes Major Pract. Tit. Kirk THis Act is explain'd by the 48 Act 3 Par. Ja. 6. BY this Act the Woman Divorc'd for the Crime of Adultery committed by her cannot Dispone her Estate to her Adulterer if she Marry him or to the Children procreat of that pretended Marriage which has been introduc'd not only as a punishment of the Adultery when committed but to discourage any from committing Adultery upon hopes that their Children might succeed to their Estates with whom they committed Adultery which is conform to the Canon Law by which non licet eam ducere in uxorem quam quis polluit adulterio and by the Civil Law that woman could not Institute that Servant her Heir with whom she had committed Adultery Inst. de haered instit in princip These Marriages are likewise declar'd null by the 20. Act 16 Par. Ja. 6. Vid. crim pract Tit. Adultery pag. 1â—2 THough regularly Liferent-Escheats do not fall while after year and day yet such as commit Slaughter within Kirks or Kirk-yards and the Resetters of them lose their Liferent-escheat immediatly after Declarator and this Liferent falls to the King though in other cases Liferents fall to the Superiour of whom the respective Lands hold IT was usual to mortifie to Abbacies formal and established Patronages of Kirks which were formally erected in Parsonages and to these the Monks presented Parsons and were only in place of Patrons at other times Tiends were Mortified and given to them and after the Reformation though Tiends were declared the Patrimony of the Church by the Act of Annexation yet thereafter the Lords of Erection did prevail by their importunity with the King to erect these Tiends in Rectories or Parsonages whereof the Patronage was given to the Lord of Erection but there can be nothing so unjust or illegal as these Patronages were and therefore by this Act the Parliament finding this abuse was growing did declare that all Erections of Kirk-lands and Teinds in Temporal Lordships and Livings to the prejudice of the Kirk and hurt of His Majesties Estate and priviledge of his Crown were null which is founded upon excellent Reason for such Erections of Tiends were extreamly to the prejudice of the Church Tiends being clearly by former Laws declared to be the Spirituality and so the Patrimony of the Church 2. Laicks having power to present whom they pleased such Erections did much hurt the Church since it gave to Laicks the power of presenting 3. It is too well known that such as are presented by these Patrons do ordinarly grant Tacks in favours of the Patron and to his behove which has been always lookt upon as not only Simony but as most prejudicial to the interest of the Church making the Ministry despicable and tempting them to ill shifts and discouraging worthy and honest men from seeking such slavish Benefices and therefore the Church has been always an enemy to such Impropriations even when made in favours of Religious Monasteries for Pope Alexander anno 1170 cap. Avaritiae extra de Praebendis says Intelleximus quod in Ecclesiis vestris pensiones percipere consuevistis antiquos reditus Minorastis ideo mandamus ut antiquos reditus cum consensu Archiepiscopi ad integritatem pristinam revocetis and therefore the same
Pope Alexander in the Lateran Council made a Canon against this abuse which was seconded by Pope Clement the 2. cap. sicut extra de suplen neglig Praelat and by Clement the fourth in anno 1240 cap. Suscepti dâ— Praebend in 6. but this was perfected by Clement the fifth cap. constitut de jure patronatus in Clementin where it is appointed that si certa portio called constantly in the Canon Law congrua portio non fueâ—â—t â—ssignata per presentantem tune in paenam praesentantium ad Diocesâ—â—â—â— ipsos potestas hujusmoâ—â— assignationis devolvatur And since there was so great hazard in putting these Presentations in the hands of Monastries what may be expected from Laicks These Erections likewise of new Patronages are extreamly disadvantagious to the people because one Gentleman has thereby right to force a Minister upon all the other ancient and great Heretors of the Paroch Likeas by being Patron he comes to have interest in all their Teinds and since the great design of the submission and surrender was that every man might have right to his own Teinds this could never have been fully done except the Patronages had been surrendered for the Patron still would be in effect Titular by getting Tacks Likeas by the submission as in the beginning of it they submit as having or pretending right to the Parsonage Vicarage or Patronage of Kirks pertaining to the Erections so in the words of the Submission they submit how they may be Denuded in His Majesties favours omni halili modo of all and sundry Tiends which they have of any other mens Lands by whatsoever Right or Title they possess the same and because His Majesty will take into His Princely Consideration what satisfaction they shall have for their Tacks Rights and Patronages according as His Majesty shall find the validity thereof Therefore they submit and His Majesty considers in the Decreet-arbitral all the Patronages as submitted and the reason why he determines nothing especially for the Patronages is because considering all the Erection together he determines satisfaction for that which is the true pecuniary interest nor needed the Act of Parliament express Patronages because it only expresses these things for which a pecuniary interest was to be given or these Rights which were to be salved but Patronages was neither of these But the Act having annexed all the Superiorities of Kirk-lands and Pertinents thereof pertaining to whatsoever Abbacy c. according to the Tenor of His Majesties general determination and the conditions therein exprest it has thereby annexed all the Patronages and it is observable that though reservations are made yet there is no reservation of Patronages Nota That the Kings Advocat in his Summonds of Reduction calls for all Rights of Patronages per expressum and then sayes and true it is that the said Kirk-lands and others Libelled were annext to the Crown by the Act of Parliament THis Act is Explain'd Crim. pract Tit. Heresie num 4. THis Act regulating the Thirds of Benefices is now in Desuetude OBserv. 1. That Mercats are by this Act only discharged on Sunday in the Countrey and not in Burghs Royal for this Act is declar'd to be without prejudice of the Liberties of Burghs Royal but this Discharge is extended to all Act 159 Par. 13 Ja. 6. Observ. 2. From the words not being the Mercat day of the next Burgh that even the Parliament would grant no Liberty to hold Fairs in prejudice of Fairs granted formerly to other Burghs and upon this principle of common equity ne quid siat in aemulationem vicini The Lords Reduced a Fair granted to Glenbervie by the King because it was upon the same day that His Majesty had granted a Fair formerly to Glensarquhar and within a mile of the other and another granted to the Earl of Aboyn because upon the same day and within a mile of an old Fair at Birse though it was alleadged that the River of Dee was here interjected which by its great Torrents about Michaelmass stopt all the North from coming to the Fair and Frits de nundinis Treating this question confesses that a Fair cannot be said to be in aemulationem vicini where the reason why it was granted could be attributed to any publick Good or Utility It was also urg'd that the granting Fairs being a meer gratuitous concession the King could not be bound up from granting a new Fair and thus we see that the King erects new Burghs Royal within a mile of other Burghs and erects the Suburbs of Towns to be Burghs of Barony albeit these may be said to be in aemulationem alterius and really they are very prejudicial nor can that maxime hold any where save in privat Deeds done by one Neighbour to another principally in prejudice of another but yet that Burghs cannot be erected in prejudice of other Burghs and what may be said to be granted in prejudice of other Burghs and how far this general may extend is to be seen in Fritsius de nundinis Observ. 3. It has been urg'd that as by this Act these who had Mercats upon Sunday may hold them upon a Week Day so if any person indite a Court and cite to a day then lawful though that day be thereafter declared a Holy-day yet the persons thereto cited are bound to appear the next lawful day even where the Diets are peremptory BY this excellent Act Sheriffs and other Judges ordinar are commanded to search Rebels not only within their own Jurisdiction but to advertise the Sheriffs of the four halfs about and that under the same pains that the Traitors or Rebels themselves incur and the recovering Decreets is not sufficient but they must seek follow pursue and present them to Justice This Act is but ill observed though most necessary and reasonable and by the 15 Act Sess. 3 Par. 1 Ch. 2. It is declared that not only by Law but by 〈…〉 and duty of their Office Sheriffs Stuarts and 〈◊〉 of Regalities are obliged to put the Laws in execution against the contemners of His Majesties Authority as his proper Officers BY this Act the Lyon and his Brethren Heraulds are ordain'd to 〈◊〉 the whole Arms and as to this part I have Explain'd it in my Book of Herauldy By this Act also Letters of Treason are ordain'd to be executed by Heraulds or Pursevants bearing their Coats of Arms or Macers which Solemnities were found only necessary in execution of Letters that is to say Summonds of Treason but not in the execution of Inditements of Treason December 5. 1666. And the reason of the difference seems to be because â—cts of Parliament are stricti juris nor can an Inditement be câ—ll'd Letters of Treason Likeas the reason of these Solemnities in executing of Letters of Treason is that the people may take notice who are cited for Treason as the weightin ss thereof requires which are the words of the Act but Inditemâ—nts being only given to
to prevent the Temptation of Bribing and that parties injur'd by them may have somewhat out of which they may expect Reparation si judex litem suam secerit THe antedating of Warrands of Signatures is here punished by the punishment of Falshood and Treason three parts to the King and the fourth to the party griev'd from which it may be argued that where no party is grieved the punishment cannot be infer'd especially seing in that case it is presumeable there was no dolus or Fraud vid. cap. 9. Statut. Robert 3. THough Reversions be strictissimi iuris which was the ratio dubitandi in this Act and albeit the Contract bear That there shall be no Redemption without payment of more than ten for every hundred as annualrent Yet it is here declared That ten for the hundred shall be sufficient and now six of the hundred will be sufficient though this Act does not generally say that the Consignation of the ordinary Annualrent shall be sufficient THis Act is Explained in the 62 Act Par. 11 Ja. 6. BY this Act generally all unlawful and impossible Conditions in Contracts or Obligations amongst privat parties are discharg'd in general which is conform to the Civil Law by which impossible Conditions adjected in Testaments are held as not adjected or mentioned but annul not that part of the Testament to which they are adjected § 10. Insâ—â—t de haerâ—d Insâ—it But in Contracts the adjecting of an impossible Clause doâ—s annul the Obligation it self l. 7. de verb. obliga l. 31. de oblig Act. And the reason of this difference is because the Law presumes that where men adject impossible conditions in Contracts they are not serious and they resolve not to oblige themselves but it is to be presumed that all men being serious in their Testaments the adjecting of such conditions did proceed from a mistake Conditio turpis and unlawful conditions are judg'd in Law as impossible l. 15. de cond inst and yet in this Act the Obligation subsists in Contracts and the impossible or unlawful Conditions thereto adjected and not the Contract it self are irritated and declared null but the particular that gave occasion to this general part of the Statute was that some persons did declare by a Clause in the Bonds which they took that it should be lawful to them to Charge their Debitor at the Mercat Cross of Edinburgh and not personally and that too upon so short a time as the party Charged could not know so that their Escheat fell and they lost personam standi in judicio without knowing or bâ—ing able to know their danger which Clause is declared unlawful and impossible and yet it may be alleadged this is not unjust for when a man lends his Money to one living in Zeatland or the remote Isles and the Debitor suffers the day of payment to elapse it seems unreasonable that for Debts which may be very small he should be oblig'd to send to these remote and dangerous parts to Charge the Debitor personally and the Debitor may constitute a Procurator at Edinburgh to pay sibi imputet that he did not pay and it is presumed that at Edinburgh which is communis patria every man hath a Procurator else Citations at the Peer and Shore of Lieth upon sixty dayes where the man is in the Indies were as unlawful as this is and the performance as impossible Notwithstanding of this Act I find that a Charge of Horning upon six days by a consent in the Clause of Registration was sustained though the person Denunced offered to prove that he could not obey the Charge he living in so remote a place January 1675. Meldrum contra Tolquhon and though by this Act it be appointed that the Denunciations upon such unlawful Obligations shall be null and that the users shall be oblig'd to Denunce and Charge of new according to the custom of the Realm yet I see not how this can be for the Clause of Registration insert being upon six dayes or a shorter time cannot be a sufficient warrand to Charge upon more dayes and so that new Charge would want a warrand except this Act of Parliament shall be said to be the warrand thereof NOtwithstanding of this Act appointing all Executions to be subscribed yet in inferiour Courts verbal Executions are oft sustained Though the word Executions is not derived from pure Latin or Roman Custom yet it seems founded on l. 2. ff de re Jud. and is derived to us from the French who have and do always use it in the sense we do Vid. Argent Tit. des Executions VId. Act 29 Par. 11 Ja. 6. BY this Act it is justly ordain'd that Compensation be received if instantly verified by Writ or Oath of party before Sentence but that it be not at all received after Sentence by way of Suspension or Reduction so that the only Remedy in that case is to pursue the Debt as accords Which Act is extended to Decreets of the Session as well where the Decreets are in absence as where they are in foro July 25. 1676. Wright contra Sheil such respect is given to the Decreet of the Lords but yet if Contumacy be purg'd it is thought that Compensation may be received by way of Reduction Had December 20. and generally Compensation is received against Decreets in absence before inferiour Courts June 18. 1662. Earl Marischal contra Bray Though by the Civil Law compensatio tollit debitum ipso jure and so that it may seem that this exception is still receivable any way even as the exception of payment which is receivable against Decreets of the Session in absence yet even by the Civil Law compensatio debet opponi because it is facti and so sibi imputet the Debitor that compeared not to propone it I find this Act is in terminis observed in Holland vid. Neostad decis 95. THe intrometters with escheat Goods as well as the Donatar are oblig'd to pay the Debt contained in the Horning whereupon the Gift proceeds Observ. 1. That though generally the Donatar is only thought lyable in this case yet all intrometters with any part though never so small are lyable and this is a kind of vitious Intromission which makes the intrometter lyable in solidum and not in quantum lucratur Observ. 2. That the Donatar will not be found lyable till after general Declarator because it is only general Declarator that puts the Donatar in the Rebels place as Spotswood observes March 20 1626. But if the Donatar delay to pursue a Declarator I think his negligence should not prejudge a Creditor for the same reason also a Donatar is not lyable if the Horning be null except he has intrometted but if he has intrometted res non est integra and so his offering to Renunce the Gift will not be sufficient March 15 1631. Fletcher contra Kid. It hath likewise been found that the Donatar will not be subject in
payment of Annualrent due after Denunciation because the Act appoints him only to be lyable for the Debt contained in the Horning and this Annualrent is due only after the Horning March 15. 1631. Fletcher contra Kid But this Decision may be doubted since he being by the Act lyable for the Debt accessorium sequitur principale and if the Debitor had got the Escheat himself he had gotten payment of all Observ. 3. That this Act appoints Letters to be direct against the Donatar and Intrometters for payment upon six dayes BY this Act such as reset supply or intercommune with declared Traitors or Rebels are declared lyable in the same pains for the which they are Forefalted or put to the Horn and it is ordained that all the Subjects are lyable to search seek take or apprehend them till they be out of the Shire where they live and to intimat to the next Magistrat to whose bounds they have chased them Item If any Vagabounds or suspect persons come to the Shire every man is obliged to advertise some Magistrate Observ. 1. That here the Subjects are obliged without being desired by the Magistrate to search for and apprehend Rebels and so the Objection against the Bond appointed by the Council January 1678. Wherein it was asserted that no present Subject was bound to take or search for Rebels was a most illegal Objection expresly contrary not only to this Act but to the true interest of the Common-wealth which obliges every man to do his utmost endeavour to keep the Countrey quiet Nor can there be any thing more reasonable than that these who enter in a Society shall promote the good of the Society by all possible means and that these who have the protection of the Law should persecute all such as oppose it and this Duty to the King in taking such as are Rebels to him seems to be implyed in the very nature of our Allegiance But it may be argued that this should only be extended to such as are Traitors or at least to such as are Intercommuned which is contrary to the express words of this Act whereby all men are discharged to reset Traitors or Rebels contemnantly remaining at the Horn so that the resetting all who remain at the Horn is here punished and this Act being designed as the Act bears as a further addition to the former Law must be extended against all Rebels for the Common Law did formerly reach this far against the resetting of Traitors and Intercommuned persons vid. Act 97 Par. 7 Ja. 5. And whereas it may be pretended that this Act obliges only the Lieges to assist Magistrats in taking such persons It is answered that that was sufficiently secured by former Laws and this Act obliges all the Lieges simply BY this excellent Act it is provided that all Gifts of Escheat taken simulatly either by the Rebel himself or by others to the behove of the Rebel shall be null for else the falling of their Escheat would be no punishment to Rebels nor discouragement from Rebellion This simulation may be prov'd either directly by the Oath of the Donatar or may be inferred from presumptions as all other Frauds and Simulations are since the design of Fraud and Dissimulation being to palliâ—t and cover a Cheat if presumptions were not sustained to astruct the Simulation it could never be discovered The first Presumption is that the Gift is granted to the Children of the Rebel and if the Children be unforis familiat it is concluded to be a simulat Gift presumptione juris and yet if a Child in familia have a peculium of his own It may be alleadg'd that his Father as Administrator being Debitor to him he has taken his Escheat in his Sons Name for his security but though the Children be forisfamiliat yet by this Act of Parliament there lyes presumptio juris against them if this Rebel continue in Possession and therefore the Children must prove that they have it for an onerous Cause and thus is to be understood that Decision of Dury March 20. 1623. Lord Keith contra Denbolm Where it was found that no Contingency of Blood no not the being a Son was sufficient to infer Simulation but if this were sustained simply as ordinarly it is then Creditors may be easily cheated and the Donatar might still continue to have the advantage of the Escheat though not the possession of the Goods Likas by this Act of Parliament it is expresly provided that the Thesaurer may intromet with the Goods if they be in the possession of the Rebel his Wife or Bairns which shews that the Parliament lookt upon this as a presumption to infer Fraud The second Presumption is that the Gift was exped upon the Expence of the Rebel though the Donatar was Creditor except in so far as the Donatar made use of the Gift being Creditor for his own security March 11. 1624. And if yet the Creditor was only Creditor by buying of Land from the Rebel and knew that there was a prior Right granted to another person The Lords Declared that his Gift should not prejudge that prior Right June 22 1669. And if the Rebel did once take the Gift blank though he thereafter filled up a lawful Creditors Name therein the Rebel procuring the Gift so upon his own expence this will infer it to be simulat and extinguish the Right though the Donatar was truely a lawful Creditor December 17. 1670. Lantoun contra Scot. By which it may be concluded that though originally the Rebel may exped a Gift upon his own expences for the behove of a lawful Creditor where the Rebel takes the Gift himself and thereafter fills up a lawful Creditors Name that will not make it reconvalesce nam quod ab initio vitiosum est tractu temporis non potest convalescere That the Gift was past upon the Rebels expence is probable per membra Curiae viz. The Servants of Exchequer and Keepers of the Seals except the Donatar has made Faith at the passing of the Gift that it was truely to his own behove the simulation having been then suspected because he who sought the Gift was the Rebels Son December 4. 1669. And generally if the Donatar in fortification of his Gift and Debt offer to make Faith that the Gift is truly to his own behove this would be sustained to purge any Presumptions of Simulation December 12. 1673. The third Presumption is the Rebels retaining Possession but how long Possession would be sufficient to infer this Simulation is in arbitrio judicis for the suffering the Rebel to remain some time in possession is no presumption even against a Son since the Donatar must have some time to pursue and recover Decreets but if the Donatar suffer him to continue very long this is presumptio juris de jure for though there were no Simulation in the the case yet the negligence of the first Donatar would make place for a second and even the Donators
the Justice-General or the Lords of Privy Council Observ. 3. That wilful hearers are only punishable and the word wilful was added because many go to the Mass out of curiosity or may be present by accident and in all things that concern Religion special Heresie owning and continuing makes the Crime ubi haerent dogmatibus suis and therefore the Defender may purge himself by his Oath as to his intention which cannot be otherwayes proven and a fortiori I think this should hold with these that are present at Conventicles either in Fields or Houses since these are less Crimes for they being men of known good Principles may go to get intelligence or from curiosity but it is safer to intimat this previously to some of the Kings Servants Observ. 4. It is generally observ'd that all these Acts concerning the Mass were of Design ill conceiv'd by Chancellors Setons influence as is reported and that by them this Crime can never be prov'd since it can only be prov'd per socios criminis and these cannot be admitted Witnesses but this is a mistake for there may be many present out of curiosity or the apprehenders may be Witnesses and even such as were present upon design in criminibus occultis may be received since when Law allows any thing it must allow the means by which it can be prov'd and in Heresie less probation is sufficient than in other Crimes Clarus § Heresie num 20. BY this Act the Liferent-escheats of Papists being denunced are declar'd to belong to the King though ordinarly the Liferents fall to the respective Superiours this is again renew'd to the King Act 197 the same Parliament ALL Erections of annexed Property of the Temporalities of Benefices are here declared null except as to the Lands excepted in the Act of Annexation 1587. which it seems must be understood even though Dissolution proceeded for otherwayes there needed not an Act of Parliament since all Dispositions of annexed Property without Dissolution are ipso jure null but thereafter all such Erections are for quieting the minds of His Majesties good Subjects secured and confirm'd at the Restauration of Bishops Act 2 Par. 18 Ja. 6. COmmon Kirks are such as belong in Common to all the Dignities of a Chapter and whereof each of them had a part of the Stipend to which common Kirks the Chapter did not present as Patron but did nominat and collate upon the first suppression of Popery they were to be conferr'd to Ministers as ordinary Benefices and the King or such as had Right from him became Patron as coming in place of the Popish Clergy and by this Act they are ordain'd to be presented by the ordinary Patrons to Ministers who shall serve the Cure and the reason is because there was not then Chapters But by the 2 Act 22 Par. Ja. 6. the saids Chapters are likewise restor'd to whatsoever Teinds c. which pertain'd of old to the Chapters in common THis Act ordaining the Escheats and Liferents of Excommunicated persons to be null if granted to their near relations seems supersâ—uous because the same was formerly Statuted in general by the 145 Act 12 Par. Ja. 6. Nor find I any difference betwixt the two Acts save that the Escheats of other Rebels are by that Act declared null if purchas'd by their Friends or well-willers and this Act declares only the Escheats of Excommunicated persons null if granted to their Bairns or conjunct persons so that it seems the Escheat of an Excommunicated person could not be declared null though Gifted to a confident person since a confident person and a conjunct are different for Blood only makes conjunct persons but trust makes confident persons VId. observ on 83 Act 6 Par. Ja. 4. THough by this Act when Manses and Gleibs are design'd out of Church-Lands only the rest of the Heretors of Kirk-lands are to contribute for the relief of him out of whose Lands the Designation is made yet this was extended in anno 1644. by Act of Parliament for the relief of these out of whose Temporal Lands Designations were made who were therein to be reliev'd by the Heretors of other Temporal Lands I find that Lands mortifi'd to Colledges cease not thereby to be Kirk-lands and therefore were found lyable to relief as other Kirk-lands by this Act February 12. 1635. But Dury observes there as the reason of the Decision that these Kirk-lands were Feu'd by the Colledge for a small Feu-Duty and therefore it was more just that they should have been lyable to relief as other Kirk-lands and so it may be yet doubted it Kirk lands mortifi'd to Colledges and remaining with them would be lyable to this relief BY this Act no â—enesie'd person under a Prelat may set longer Tacks than for 3 years and a Bishop is allow'd to set Tacks of his Tiends for 19 years and an inferiour Prelat for his Life-time and 5 years thereafter Act 4 Par. 22 Ja. 6. But because some thought that that Act did abrogat this Act as if Prelats needed not the consent of the Patron to such Tacks for nineteen years or five years respective therefore it is expresly declar'd by 15 Act 23 Par. Ja. 6. and even these and all other Tacks shall be null if they be set for longer than three years without consent of the Patron and that the 4 Act Par. 22. did still presuppose the consent of the Patron though it was not there exprest which was most just for since it is the Patrons interest that the Cure be well administrat and that he may get an able man after the Incumbents Death it was just that nothing should have been done without his consent and for that reason Clericus nee resignare nec permutare nec pensione onerare potest invito patrono as is by the Canon Law for by that Law the administration belongs to the Patron nec ab ejus dispositione anferri possunt Can. rationis 16. q. 7. and by that Law he was to be alimented out of the Rents of the Benefice if he fell poor and the person presented was to give his Oath to the Patron for preservation of the Temporals This consent may be adhibite by the Patron either before or after the setting of the Tacks c. 20. de jur patron dubitatur whether a Patron may lawfully authorise a Tack set in his own favours since his accepting is equivalent to a consent and he cannot be author in rem suam Though Tacks set for longer space than three years be null by this Act yet if they be set for longer time they will be sustained if the Tacks-men restrict them to three years allanerly July 18. 1668. Johnstoun contrà Howdoun even as though a Bond wanting Witnesses be null if the same exceed an hundred pounds yet it will be valid if restricted to an hundred pounds and this seems to be received with us as a general principle in the interpretation of all Statutes
Property It was more proper for the Session to have made such Acts than for the Exchequer who raise the Kings Rents conform to Law but declare not what is so THis Act declares that all alienations of the annext Property are null if they be set otherwise than in Feu-ferm and therefore if any part of the annext Property be Dispon'd to be holden Blench or Ward the alienation is null and I conceive the true reason to be because originally the annext Property was allow'd to be Dispon'd for improving His Majesties Rent which cannot be except where there is a yearly Rent pay'd and albeit sometimes the King and Parliament may dissolve the annext Property in order to a Disposition to be made to a person who has deserv'd well of the King and Estates in which the improving His Majesties Revenue is not design'd yet the general nature of Annexations ought not to be altered upon such accidental accompts THis Act annulling all Rights of the Kings Castles Parks Coal-heughs c. being annext was formerly Statuted 204 Act 14 Par. Ja. 6. THis Act is fully Explain'd in the 41 Act 11 Parliament Ja. 2. THis Act declares that the Assize Herring is a part of the annext Property and so cannot be set in Tack nor Dispon'd Assize Herring is a certain measure of Herring due to the King out of every Boat and the meaning of this Act is that it cannot be set in Tack without a competent Duty for it is set in Tack for a just avail and could not be well otherways Collected but this being a Casuality it is jactus retis and so except the Duty be almost elusory it is hard to quarrel it ex hoc capite they were formerly annext by the 176 Act 13 Par. Ja. 6. THis Act Discharges all Offices of Heretable Chamberlainries and all free Gifts and Discharges of the Kings Property but to cheat this Act the Feuars suffer the bygones to ly unpay'd and then obtain Discharges or else they obtain Tacks of their own Feu-duties for payment of a small and simulat Tack-duty call'd by the Romans as Cassianus BEcause the annext Property could not be Dispon'd without Dissolution therefore some to cheat these excellent Laws obtain'd Dispositions of the Feu-ferms payable to the King for payment of a Feu-duty and therefore these feudisirmae feudisirmarum are here discharg'd and annull'd THese Acts are formerly Explain'd in the Act concerning the thirds of Benefices viz. Ja. 6 Par. 1 Act 10. which are now obsolet Ministers being otherways provided OBserv. That Acts of Parliament are to be observ'd by the Lords of the Session except they be particularly abrogated in express terms vid. Gen. obs THis Act is now useless Ministers being otherways provided ALL Vassals are oblig'd to Exhibit their Evidents to their Superiour not only by Improbations but in Exhibitions though in Law nemo tenetur edere instrumenta contra se and the reason of this Speciality is because the Superiour is dominus directus and so has a true interest in the Land and if the Vassal pretend any interest he is oblig'd docere de titulo to shew his interest and to instruct the Superiour in what is due to him and the King in our Law is presum'd to be Universal Superiour of all Lands and therefore may by a Proclamation or by way of Action or by a Statute as here ordain all Evidents to be produc'd betwixt and such a day but nothing save a Statute or Improbation can declare the Evidents to be null if not produc'd as here and since an Improbation could not be universal this Statute was necessary in these times when His Majesties Revenue was not established nor known FEus are declar'd null for not payment of the Feu-duty either by the Clause irritant contain'd in the Infestments declaring that if two Terms run the Feu shall be null or by this Statute declaring that if the Feu-duty be unpay'd for two years together the Feu shall be null But there is this difference betwixt Irritancies upon this Act and these contained in the Infestment that the Irritancy upon this Act may be purg'd at the Bar but Irritancies upon Clauses in Infestments cannot be purg'd at the Bar because they are incurr'd by paction betwixt parties which the Lords cannot alter for the Superiour having given out the Feu upon that express condition it is not just to alter what was expresly Treated amongst parties December 1. 1664. Laird of Pourie contra Hunter But yet I see no reason for this distinction since this Act appoints expresly that they shall be null in the same manner as if there were a Clause irritant contained in the Infestment nor do I see how the Lords can alter what is so expresly introduced by a clear Statute If offer was made of the Feu-duty but refus'd yet this will not be sustain'd when Reduction is pursu'd ex hoc capite except it be instantly offered of new at the Bar nor will a Term be allowed for purging as was found in the former case in which the Lords also inclin'd to think that compensation will not be sustain'd to take off this irritancy for though Compensation tollit debitum yet there is a reverence due by the Vassal and which is considered more than the value of the Feu-duty it self but yet if the Vassal come and offer humbly to his Superiour before the Term of payment Compensation of as much as is due to him in payment of the Feu-duty Quaeritur if this will not be sufficient it may be doubted whether a minor will be restored against the not payment of his Feu-duty since it is not just that the Superiour should be prejudged by the minority of his Vassal or that the nature of the Feu should be thereby inverted and it may be also doubted whether this irritancy will be incurr'd by him who was hindred vi majori from payment as by being taken and detained Prisoner or carryed to remote Countreys since by the Feudal Law in other cases this does excuse a mora and from all the inconâ—eniencies that follow upon it 4. It may be doubted if this legal irritancy will be incurr'd where the Charter bears another special penalty and Certification in case of the Vassals failÈie in payment of his Feu-duty without substituting the same in the room of the Legal one or expresly renuncing it 5. Quid juris Where there are more Heirs-portioners if the failÈie of one of them will prejudge the rest seing quoad the Superiority he is oblig'd to own none but the eldest Daughter 6. If an offer made of the Feu-duty not by the Vassal but by a third party will stop this caducity seing the Feudal Obligation on the Vassals part is a personal Recognizance and ought to be perform'd personally and on the other hand these irritancies are unfavourable and ought not to be extended 7. Quaeritur If the Vassals offering Feu-duties for years yet to
run if that offer will hinder the incurring the irritancy for these years seing a Debitor may in Law pay before his day come and what if it be such a Prestation as must be performed yearly 8. If the Vassal will amit his Feu for not offering where he had a pretext to doubt who was his true Superiour and what he is to do in that case So much use the Lords to favour the Vassal against such severe irritancies that a Retour bearing in the first part of it an irritancy for not payment of the Feu-duty si petatur tantum they allowed the Vassal to purge though in the posterior part of the Retour these words were omitted in the Clause irritant it self February 18. 1680. Earl of Mar contra his Vassals Like to this irritancy was that of the Civil Law whereby non solutio pensionis per biennium in civill Emphiteusi per triennium in Emphiteusi Ecclesiastica efficiebat ut Emphiteuta a jure suo caderet by the Civil Law the irritancy mora in not payment was not purgeable but by the Canon Law it was In Tacks also with us the not payment of a Tack-duty for two years or terms infers an irritancy November 23. 1609. Murray contra Nisbit March 9. 1611. Seton of Baro contra Seton of Pitmedden which is also conform to the Civil Law l. 56. ff locati THis Act is Explain'd crim pract tit Usury BY the 18 Act 1 Par. Ja. 6. The bearing and shooting with Culverings or Daggs without the Kings Licence is forbidden under the pain of losing the Right Hand and that Act is here Ratifi'd and thereto is added Confiscation of Moveables and by the Act 6 Par. 16 Ja. 6. It is appointed that the Contraveeners of these Acts may be pursu'd either before the Council or the Criminal Court and when they are pursu'd before the Council it is provided that they shall not lose the Right Hand It may be argu'd from this Act that where there are two punishments appointed by two different Laws the last is not added to the first but either it antiquats the first or else either of the two can be only regularly inflicted for else this Act needed not say sâ—â—a that the ane pain shall not stop nor stay the other From that 6 Act 16 Par. It may likewise be observ'd that the Secret Council are not Judges competent to Life and Limb such as the amputation of the Right Hand By the Lex Julia It was lawful to carry Arms without Rome but not in the Town but they were every where thereafter Discharg'd Tit. 46. lib. 11. C. ut armorum usus inscio principe interdictus sit BY this Act is Ratifi'd an Act made at Dundee by the King His Nobility Council and Estates which was an Act of the Convention of Estates for the Convention of Estates ordinarly considered the matter of Coinage nor needed that a Parliament because Coinage is a part of the Prerogative and by the Estates there were mean'd some of every Estate taken by the King for advice From this Act it was urg'd in the Lord Hattons case That 1. By this Act it is clear that we had a different Standard from England which is to be eleven pennie fine 2. That it was lawful to melt down current forraign Coyn because this Act allows it to be us'd as Bullion Nota This is the first Act that mentions the General of the Mints Office as different from the rest BY this Act it is clear that the Convention of Estates made Acts also discharging the Transportation of Wool and the like and this Act as to Wool is again Ratifi'd but a power is allow'd to the Exchequer to Transport Wool contrary to this Act Act 40 Par. 1 Sess. 1 Ch. 2. But even this Act discharges only bypast Licences but not Licence for the future for these are allow'd even for Wool by the 254 Act of this same Parliament BY this Act Customs are declar'd to be due to His Majesty of all that is brought in from forraign Nations and by the 27 Act Sess. 3 Par. 1 Ch. 2. The ordering and disposal of Trade with forraigners is declared to be His Majesties sole Prerogative and therefore some think His Majesty may impose upon forraign Commodities what he thinks convenient for since he may discharge the Trade if He pleases it seems to follow that He may burden it as He pleases By this Act an a b c. of the Customs is to be put upon all Commodities that is to say a particular index of the several Customs imposed upon every several Commodity is ordain'd to be made according to the Letters of the Alphabet and this has varied in several ages the present a b c. being made by order of the Parliament 1661. vid. statut David 2. cap. 12. num 3. where this priviledge as to paying of Customs is formerly declar'd and by the Canon Law this was likewise declar'd lawful to Princes vid. perez ad lib. 10. C. tit 18. num 13. l 5. C. de jure fisci where it is said officialibus vâ—lentibus ea capere debet acquiescere From these words of this Act Albeit it cannot be deny'd that His Majesty is a free Prince of a Soveraign power havand al 's great Liberties and Prerogatives be the Laws of this Realm and priviledge of His Crown and Diadem as any other King Prince or Potentat whatsoever It is observable that our Kings are here acknowledged to be absolute and Soveraign Monarchs as is likewise more fully declar'd by the 1 Act Par. 18 Ja. 6. In which it is said Whom the hail Estates of their bounden duty with maist hearty and faithful affection humbly and truly acknowledges to be Soveraign Monarch absolute Prince Judge and Governor over all Persons Estates and Causes both Spiritual and Temporal within His said Realm By neither of which Acts I conceive our Kings are so absolute as that they have a Tyrrannick or Despotick power but that they are so absolute as that they have power to do every thing that is just and reasonable though they be not thereto empowered by particular Acts of Parliament and therefore they are ill Subjects and worse Lawyers who allow the King to do nothing but that for which he can shew an Act of Parliament since his being an absolute Monarch implyes this innate Power and therefore it follows by a better consequence when any thing is contraverted that the King may do the thing in controversie being reasonable if his power be not as to that point restrained by a particular Act of Parliament It is likwise very observable that this power of absolute Monarchy does not flow from the people but is his own Right for no Act of Parliament grants the King any Prerogative but only declares by way of humble acknowledgement what his Prerogatives were principibus says Tacitus summum rerum judicium dii dederunt subditis obsequii gloria relicta est lib.
4. Armal vid. observations on the 15 Act Par. 1 Ch. 2. where our Parliament acknowledges that our Kings hold their Crowns from God immediatly Vid. Act 31. Par. 5 Ja. 3. I know some pretend that the Kings power is here declar'd to be absolute only in opposition to the Pope and implyes no more but that he did not depend upon the Pope but this is very groundless for he is here declared absolute in relation to his laying on of Customs in which the Pope is no way concern'd and generally the Kings power in relation to Ecclesiastick Rights is said to be supream not absolute and in Civil Rights is said to be absolute and not supream BY this Act English Cloath and all other English Commodities made of Wool are forbidden for the incouragement of our own Manufactures but since the Union this prohibition is taken off and a great Custom is only impos'd by the 13 Act Par. 1. Sess. 3 Ch. 2. but are thereafter upon the erecting of our Manufactures absolutely discharg'd by the 12 Act Par. 3 Ch. 2. THese Acts ordaining all Ships to have special Cocquets containing an Inventar of the Goods which they bear and the names of the Merchants and Owners are yet in observance but the Merchants do not still make Faith upon these points as is appointed by this 257 Act and if the Keepers of the Cocquet absent themselves to the prejudice of the Merchant or take more for the Cocquet than the sum of fourty shilling they are to lose their place and repair the Merchants damnage by the 50 Act Par. 1. Ch. 2. THis Act and the seven following Acts till the 61. are very clear and need no Observation only by lossing of Goods in these Acts is meant breaking of Bulk THis Act is but a Branch of the 245 Act. THis Act appointing three Burghs-Royal to be made one in Kintire one in Lochaber and one in the Lews is not only not in observance but the Erection of a Burgh-Royal in the Lews was unjustly oppos'd by the Burrows in anno 1636. upon pretext that it would communicat their priviledges to Forraigners and Strangers viz. Hollanders who offer'd to come and settle there whereas it would only have dilated and improv'd our Trade and these Forraigners had presently become Scottishmen BY the 119 Act Par. 7 Ja. 6. Inhibitions and Interdictions are to be Registrated in the Sheriff-Clerks Registers but by this Act all Letters of Horning Inhibitions Interdictions and their Executions are to be Registrated in the Registers of the respective Bailliaries Stewartries or Regalities within which the persons dwell against whom these Executions are but if these persons be out of the Countrey they must be Denunc'd at the Mercat Cross of Edinburgh and Peer and Shore of Lieth and not at the Head Burgh of the Stewartry Bailliary or Regality July 4. 1666. Cunninghame contra Cunninghame and that because this Act of Parliament speaks only of persons dwelland within the Kingdom but it may be yet doubted whether the single Escheats of persons out of the Countrey may fall upon Denunciations at the Mercat Crosâ— of Edinburgh and Peer and Shore of Lieth or whether Liferent-Escheats will fall except the Rebel be Denunced at the Head Burgh of the Shire Regality or Stewartry wherein his Lands lyes since if he had been within the Countrey he ought to have been Denunced in the Respective Jurisdictions within which the Lands ly Albeit this Act appoints all Letters to be executed within Regalities and Stewartries yet if these Jurisdictions have no known Head Burgh the Escheat will be sustained upon a Denunciation at the Head Burgh of the Shire January 7. 1677. Scot contra Dalmahoy BY this Act all Hornings Relaxations Inhibitions and Interdictions that were to be Registrated in inferiour Registers are ordain'd to be presented Judicially before a Notar and four Witnesses which formality is thereafter found not to be necessary and is abrogated by the 13 Act Par. 16 Ja. 6. VId. crim pract tit Theft BEcause the Money had risen at this time to a great value so that the same piece of Money which passed formerly for one penny was worth ten the time of this Act therefore it is justly appointed by this Act that all the Unlaws shall be raised so that the same Delict which was Fined only in twelve pennies before the first of March 1542. that is to say before the first Parliament of Queen Mary should be Fineable in ten shilling of the Money current the time of this Act Gel. lib 20. c. 1. tells us that the Romans were in this same manner forc'd to augment the penalties of the twelve Tables because Lucius Veracius took pleasure to beat all that past him because he was only to pay twenty five Asses for every blow according to that Law THis Act is Explain'd crim pract tit Beggars FRom this Act it is observable that he that is charg'd with Lawborrows shall be as lyable in the Contravention as if he had found Caution though he has not found Caution it being unjust that by his contempt he should put himself in a better condition and it is by the same reason that an appearand Heirs Liferent escheat falls to his Superiour in the same way as if he had entred since it is unjust that the Superiour should be prejudg'd by thâ— appearand Heirs lying out Observ. 2. That by this Act when any man finds Caution being charged with Law-borrows he who raises Lawborrows has action against either principal or Cautioner at his option as in other pecunial Obligations which words viz. as in all other pecunial Obligations are added because by our Law he who is a Cautioneâ— ad factum praestandum such as they are who become Cautioners for Executors Messengers or Tutors c. is only lyable after the Principal is discuss'd because they being only Cautioners for the Principals performance It must be first known whether the Principal has performed and thus the beneficium discussionis that was of old competent by the Civil Law to all Cautioners is only competent by our Law to such Cautioners only as become Cautionerâ— ad factum praestandum THis Act appointing that the pains of the general Bond shall be divided betwixt the King and the party is to be understood of the general Bond of Lawborrows which is appointed by the 3 Act Par. 2. and 12 Act Par. 6 Ja. 2. even as the pain of special Lawborrows is to be divided betwixt the King and the party by the 77 Act Par. 6. Ja. 6. for that Act 77 related only to privat Lawborrows at the instance of privat parties and therefore this Act was necessary in the case of general Lawborrows exacted at the Kings instance for the security of all His Subjects from such as he thinks lyable to suspition It was and is ordinary for the King and Council to Charge Heretors who are at feid to give Bonds of assurance
to one another and that upon six hours advertisement under the pain of Rebellion vid. the Council Registers July 26 1582. and which is a great instance of the Kings power allow'd him by Law against those whom he has reason to suspect THe Rubrick of this Act is wrong for Sheriff Clerk bring not their Books to the Exchequer but to the Lord Register BY this Act it is appointed that all such as are Commissioners for Parliament shall be authoriz'd by the Subscription of a great number of the Barons then present and the Subscription of the Clerk of the Convention else to be null which Act was found not to be in Desuetude by a Decision in the Convention July 1678. where it was found likwise that this Act extended to Commissions for Conventions as well as to Parliaments for though this Act speaks only of Parliaments yet Parliaments and Conventions being called the same way the Commissions should have the same Solemnities and the reason why the Sheriff-Clerks Subscription is requisit is because he is the publick Servant of the Shire and so it is presumable that he will mark exactly all that was done and will not suffer counterfited Subscriptions to be put to Commissions being to be lyable himself whereas otherwise Commissions may be obtruded upon the Convention with false Subscriptions as was done in that same Meeting and which dangerous falshood cannot otherwise be well fastened upon any other since the Commissioner may justly alleadge that the Commission was so granted to him and one may be chosen a Commissioner who is absent in which case he cannot know who sign'd BUrrows having great Freedoms and Priviledges from the King are therefore oblig'd to have sufficient Prisons for receiving such as are attached for Crimes and Debts which Act was found to oblige Baillies of Burghs of Regality as well as Burghs Royal July 7. 1668. and Stewarts of Stewartries June 18. 1670. and these words of this Act By the Sheriffs to Stewarts and Baillies of Regality are wrong Printed for the word to should be or But this Act was not found to oblige Baillies of a Burgh of Barony March 13. 1623. Nor Bishops Baillies March 21. 1627. But the Baillies of the Head Burghs of Stewartries were thought to be oblig'd by this Act of Parliament to receive Prisoners albeit the Act of Parliament appoints them to be presented only to Stewarts and Baillies of Regality but speaks not of Baillies of the Head Burgh of the Stewartry June 18. 1670. Cheap contra the Baillies of Falkland Where it vvas likevvise found that the Baillies keeping a Rebel eight or ten dayes in a privat House and thereafter Imprisoning him vvere not lyable super hoc medio except he escaped by their negligence or the insufficiency of the Prison and it seems by the Act of Parliament that these Burghs are only oblig'd to have Prisons vvhich have Provosts and Baillies for the Act appoints the Prison to be upholden by the Provost Baillies c. though the Rubrick sayes that Prisons should be Bigged within all Burghs and it may be doubted from the vvords of the Act vvhether Burghs vvhich have no Common-good should be lyable especially seing Magistrats are oblig'd to keep Prisons for the Kings use because they have a Common-good from Him If the Magistrats do not receive Rebels or have not sufficient Prisons they are lyable for the Debt and that vvithout calling the principal Debitor since the Magistrats are lyable ex suo delicto and these Jails are found not to be sufficient vvhich vvant Cat-bands and outward Chains because the Prisoner cannot force those from vvithin but the Prison being sufficient and sufficiently Guarded vis major is a sufficient Defence and though this Act says only That they shall secure persons presented to them yet they are found to be oblig'd to search any House vvhere the Rebel is said to be July 2. 1669. Farquhar contra Magistrates of Elgin and though this Act bears That they shall detain all such Prisoners upon their own Expence yet this is only extended to Prisoners taken ob vindictam publicam but it is indulg'd to the Tolbooth of Edinburgh That they shall not be oblig'd to receive any who are offered to Prison by privat parties till the presenters find Caution to aliment them This Act appoints those Prisons to be made for sure Imprisoning Keeping and detaining of such Prisoners as are presented and therefore the Magistrats cannot let them out either to Church or to go about any of their Affairs hovv important soever though vvith a Keeper since squalor carceris is thus eluded and therefore in such cases the Magistrats must be authorized by a Warrand from the Secret Council or Lords of the Session and that by an Act of Sederunt in anno 1671. and if the Rebel be suffered to escape or go abroad the Magistrats vvill not only be lyable but they vvill get no relief from the Cautioner though they take Assignation to the Debt since tenentur ex proprio delicto and the Cautioner is prejudg'd of his relief by that their Delict January 24. 1668. THis Act is formerly Explain'd in the 1 Act Par. 9 Ja. 6. THis Act is formerly Explain'd in the 153 Act Par. 12 Ja. 6. SInce by this Act all Burgesses are to be Stented according to their Rents and holding within Burgh it may be doubted if a Burges have no actual Trade but only Money owing him by persons without the Burgh if he may be Stented according to that Estate since it is no Rent nor holding in Burgh but the answer is that mobilia semper sequuntur personam and therefore he may be Stented according to that Money it may be doubted if Gentlemen who never had any Trade but dwell in the Town very long may be Stented though they be honorary Burgesses only Item If they can Stent for Ministers Stipends Strangers within Burgh who are not at all Burgesses and this Act seems to imply that Inhabitants as well as Burgesses may be Stented according to their Estates within Burgh and that all who have advantage by the Ministry should pay Ministers THere are two ways of Levying Subsidies in Scotland the one is by Taxation which was the old way and which Taxation was uplifted according to the Retour The other is by way of Cess in which the Subsidie is uplifted according to the late Valuations wherein every mans Land Rent was given up as presently possess'd The Subsidie granted by this Act is by way of Taxation and the old way of uplifting Subsidies by Taxations may be fully herein seen and which is very fit to be Read upon that accompt and in which it is evident that the Clergy pay'd the one half including the Erections but in anno 1666. a proposal being made that the Subsidie then offered should be uplifted by way of Cess and not by way of Taxation These ensuing Reasons were represented against that proposal and which I
Gentlemen within the said Western Shires be above all exception and be more eminent that there are so few of sound Principles there yet to speak modestly the generality of the Inhabitants of these Shires has not been so forward to desire or promote His Majesties Restitution and Interest that now after His Majesties happy Re-establishment they should obtain what they could never effectuate in any time and should be gratifi'd to the prejudice of other Shires of undoubted and constant Loyalty and the overturning the ancient Law and Way of the Kingdom 8. As to the pretence of inequality in the old Way it is to be considered that though an Arithmetical proportion and exactness is not to be expected in any Way Yet there is more reason to presume for the justice and equity of a legal way venerable for antiquity warranted by express Laws and immemorial Custom which for any thing known had its beginning in the time of Freedom and has been continued in the best most peaceable and pureest times notwithstanding any endeavours to the contrary than for a way contriv'd and hatch'd in the Heart and fury of Trouble and Distempers and brought forth and obtruded upon the Countrey with so much partiality and factiousness that it is well known that the Shires and persons who were in opposition to His Majesty had so great and prevalent interest for the time that the valuations both as to the Quota of Shires and proportions and Rents of private persons were carry'd on by the instruments and Commissioners most inequally to the advantage of their party and the evident prejudice and pressure of whole Shires and all persons who were sincere or had the least Affection for the Royal Interest 9. By the Common and Feudal Law and Law of the Kingdom where the Heir of the Vassal Dieth not Entered the Superiour during the None-entry has right to the Duties of the Land holden of him and when the Heir of Ward-lands doth Enter the Superiour hath Right to the Duties for a year under the notion of Relief which in both these Cases of Relief and Non-entry are payable according to Retoures and the New Extent if the old way of Retoures should be altered in relation to the payment of Taxations why not in order to None-entries and Relief so that they should be payed not according to Retour but Valuations there being no reason that the saids Casualities are not exacted in rigour but the ancient Law and Custom for Retoures How dangerous the preparative may be if the way of Retoures should be altered even to those who are for Novations and what Combustion and Disorder it may occasion in the contrary it is so apparent that it needs not to be represented 10. Whereas it is pretended that the Lords and others of the Clergy will have prejudice by the Old Way both as to their own proportion and the proportion of the Vassals and that they are in another condition than formerly by reason that their Rents are impaired by Valuations and Ministers Stipends it is humbly conceived with all tenderness and respect to the reverend Clergy that whatever others for their own interest do suggest under pretence of theirs The Lords of the Clergy and others will not decline to contribute and be Taxt for His Majesties Service as the other Estates and as to the pretended way of paying Taxation according to the Valuations in these late times they cannot be Taxed in that way because the Rents of the Bishops being for the most part in these times of Usurpation mortified to Universities and other pious uses they were not valued nor lyable to Cess and such like burdens it must then follow that either they must be Taxed in the old Way or else not at all as to the proportion of the Clergie it is designed by all the Laws concerning Taxations and it is not higher than it was at any time since Taxations were granted to His Majesties Predecessors and it is to be observ'd in all Acts of Parliament concerning Taxations The Lords of the Clergie do in the first place before the rest of the Estates make a chearful offer of the same proportion without any grudging and though there needs no reason to be given for clear Law and Practice yet that the said proportion is Defin'd and settled upon good Reason it is obvious seing the same is impos'd in order both to their Spirituality consisting in Tiths and their Temporality consisting in Lands and others and it is known that the Tiths are more than the fourth part of the Rent of Scotland and Temporalities and Church-lands will extend to a considerable part of Scotland at least to a fourth part The Clergie having their Benefices and Living not in Property as the other Estates but of His Majesties immediat favour and grant and for their lifetime so that it is not strange that upon the considerations foresaid they pay'd such a proportion of the Taxation the case is not altered upon the account of Valuations and Ministers Stipends that course for Valuation of Tiends and augmentation of Stipends being procured and taken at the earnest desire of the Reverend Bishops and Clergy so that it ought not to be represented as being to their prejudice and de facto the Reverend Bishops and Mâ—nisters have no prejudice by that course by reason the Bishops and Ministers and Benefic'd persons who ought only to be looked upon as Clergie are secur'd by divers provisions contained in the Acts of Parliament anent the Valuation of Tiths and in special that what they were in possession of actually and really the time of the Submission made by them should remain with them in quantitate qualitate unprâ—judged by any Valuation so that the Valuation and augmentation of Stipends being only in Relation to and affecting the Spirituality and Tiends the case neither is nor can be altered as to the Clergie they being secured by the saids Provisions and the burden of augmentation of Stipends and prejudice by Valuations doth only ly upon the Lords and Titulars of Erection and Tacks-men of Tiths as the case is not altered in relation to Benefic'd persons so Stipendiary Ministers cannot be prejudg'd by the good old Way seing by an Act of Parliament 162 Ja. 6 Par. 13. They are freed and exempted of all Taxations and Impositions the burden of the proportion of the Clergie doth not ly upon them but for the most part upon the Vassals and Tacks-men against which they have by the Law a present and summar way of Relief as to the Lands and Temporality of the Clergie they are the same and in the same case as in time of former Taxations and that the Vassals of Erection or of Church-men should be in better case than formerly as to the payment of Taxation It is contrary to Law and Reason seing res transit cum onere causa and that Lay-men acquiring Lands from Church-men should have more case of Taxation as to such Lands than
the 5 Act Par. 18 Ja. 6. THis Act declaring the Provocker and Provocked in Duels to be punishable by Death is Explain'd Crim. pract tit Duels and since fighting Duels is only declared Death by this Act it appears that naked Provocation is not Capital but yet even the sending of Cartals may be arbitrarly punished by the Privy Council but Fighting is Capital though no killing follow and fighting by Rencounter may be punished as a Duel though there was no formal Cartal for by this Law all single Combats are declared punishable by Death vid. crim pract tit Duels This Act was renewed by a strict Act of Secret Council in anno 1674. THis Act is Explained in the Act 265. Par. 15 Ja. 6. BY this Act it is Declared that the negligence of the Kings Officers in Pursuing or Defending a Cause shall not prejudge the King and therefor competent and omitted is never received against the King though it be against private parties and by this Act it would appear that the King may propone a Nullity of a Decreet obtained against him even in foro before the Lords of Session by way of Exception or Suspension without a formal Reduction but yet Prescription runs against the King notwithstanding that it may be alleadged that by this Act he cannot be prejudged by the negligence of His Officers in not pursuing since Prescription is a general Remedy introduced for the final quiet both of King and People and as to Heretage it is introduced by an Act posteriour to this Act wherein there is no exception made in favours of the King but the Act introducing Prescription of Moveables is prior to this Act and so it may be the more doubted whether Prescription of Moveables runs against the King since by this posteriour Act it is Declared that the negligence of His Officers in not pursuing shall not prejudge him nor is there so great hazard to the Lieges in their Moveables as in their Heritage THe Transporting or In-bringing of forbidden or Un customed Goods that is to say Goods that should pay Custom without paying Custom is punishable not only by Forefaulture of the Goods but by Confiscation of the In-bringers whole Goods moveable albeit by the Civil Law ea res tantum in commissum cadit quam quis non est professus by which Law the naked Entry or sola possessio was sufficient to Defend against the Forefaulture imputandum est publicano qui non exegerit Perez tit C. de vect num 10. both by that Law and ours the Customers may recover the Goods un-entered even from singular Successors who have bought the same bona fide for a competent price and in that Law Error excus'd from Confiscation but in that case it exacted double Custom Perez ibid. I have not observed any mans Moveables Escheated upon this Act. THis Act fining such as will not Communicat once a Year when he is thereto desired by his Pastor is ill observed but not in Desuetude and therefore was renewed by Proclamation in January 1679. Observ. That the having Rancour against their Neighbour is Declar'd no relevant excuse and justly because it is a fault and so should be no Defence argumento hujus legis a Fanatick having prejudice at his Minister even though reasonable is no legal Defence for he should still hear Observ. 2. Though this Act say That no other excuse whatsoever shall Defend yet certainly inability to Travel madness c. will Defend and general words are still to be understood in subjecto capaci THis Act is Explain'd crim pract tit Heresie THis Act is Explained crim pract tit Beggars and Vagabonds THis Act is Explained crim pract tit Adultery THis Act is but a Temporary Commission THis Act against slaughter of Wild-fowl is renewed by an Act of Privy Council June 9. 1682. years whereby Masters of the Game are appointed for putting these Acts in Execution though by this Act the Sheriffs Stewarts and the Kings ordinary Magistrats have a particular Commission of Justiciary for this effect and it was questioned in the time how the Council could take away a Right establisht in them by the Parliament By this Act the killing of Mure Pouts is Discharg'd before the third of July and Partridge Pouts before the eight of September and by that Proclamation Mure Pouts are allow'd to be kill'd after the first of July and Heath Pouts after the first of August and Partridge and Quail after the first of September and whereas by the 109 Act Par. 7 Ja. 1. No Partridges Plovers Black-cocks c. are to be kill'd till August this Proclamation allows them to be killed from the first of July THis Act ordaining all English Cloath to be Seal'd by a Seal the Form whereof is here condescended on was thought to have been in Desuetude but now found not to be so in anno 1666. at which time it was found that the Customers might enter the Shops and Seal or Confiscat what was not so Seal'd This Sealing was formerly appointed by the 129 Act Par. 12 Ja. 6. THis Act appoints that no Letters of Horning shall be Direct against persons Dwelling on the other side of Dee upon shorter space than fifteen Dayes which Act was found only to be extended to Actions before the Privy Council but not to Charges before any other Court because the Narrative of this Act sayes That severals of the Lieges were drawn in inconveniencies by Charges before His Majesty and His Council though the Rubrick and Statutory part be General and though the reason whereupon this is inferred extends to all Charges as well as Charges before the Council SUch as Invade any of His Majesties Subjects within a Mile to the place of His Highness Residence or whoever resort thereto Armed with Jacks or Corslets under their Coats are to be Imprisoned for a Year and punishable by an arbitrary fine Observ. That the attrocity of the Crime is much hightned from the circumstance of place as well as time as is likewise clear by the 173 Act Par. 13 Ja. 6. It may be doubted whether this Act can be extended against such as Invade Strangers since the Act sayes only such as invade Subjects since the Invading of Strangers is more attrocious in it self than the Invading of Subjects the Crime being there aggredged by the breach of Hospitality It may be likewise doubted how long a time of Residence by the King makes the Invaders punishable and it would appear that if the Invasion be not within a mile of that which is known to be the place of the Kings ordinary Residence that then it must be proven that the Invader did reside there for the time BY this Act Sheriff-Courts should be kept in the middle of the Shire for the ease of the people but this is not observ'd OF old Pledges were taken in the Borders that is to say one man entered himself Prisoner for
another and bound himself for his appearance person for person but now the Peace is secured by Sureties or Cautioners who if they present not the person for whom they are bound that very hour they Forefault their Bonds nor is the presenting the Prisoner afterwards sufficient which speciality has been found necessary in Border Sureties These Pledges were Distributed of old amongst the Nobility and Gentry who were to be answerable for them because we wanted then many and sure Prisons and because they were unwilling to receive these Pledges therefore this Act obliges them to receive and keep such Pledges under the pain of two thousand merks It may be doubted if Pledges may not be taken in other Crimes as well as these relating to the Borders and Highlands argumento hujus legis since this may tend much to the quieting of the Countrey and if the Nobility may not be forc'd to keep these for Prisons may be often so full that Prisoners cannot otherwayes be kept and by many Acts of Secret Council the Nobility was before this Statute oblig'd to keep Pledges By the Common Law Obsides or Pledges could only be granted ex causa publica sed non ex privata Bald. in l. ob aes C. de obl act But it seems that Pledges though for Criminal Causes could not bind themselves to corporal punishment quia nemo est dominus suorum membrorum licet aliter obtineat de consuetudine ob bonum publicum Bald. in tit de pace Constant. § damna in finè King JAMES the sixth Parliament 17. THere have been two Commissions granted for considering of an Union betwixt this Kingdom and England one in this year 1604. and another in anno 1670. Betwixt which there are only these two differences that in this Act the Names of the Commissioners are set down and they had no other Commission but the Act of Parliament but in the other Commission 1670. the persons were nominated by his Majesty under His Great Seal the nomination being refer'd to the King by that Act of Parliament The second difference is that in this Commission 1604. their power is limited with this provision viz. not derogating any wayes from any Fundamental Laws ancient Priviledges Offices Rights Dignities and Liberties of this Kingdom but the other has no such exception and yet it may be doubted whether by vertue of the last Commission those who were Commissionated could have derogated by their Treaty from any of our Fundamental Laws ancient Priviledges Offices and Dignities That the Parliament of Scotland could not consent to an Union of Parliaments though all its Members were admitted without at least Consulting the Shires and Burghs which the respective Members of Parliament represent may be thus urg'd all Nations considering the frailty of their Representatives and that some ages and generations do too easily quite what is fit and necessary for securing their Liberty have therefore thought fit to declare some Fundamentals to be above the reach of their power and that Parliaments cannot overturn Fundamentals seems clear not only because these were not Fundamentals if they could be overturn'd that being the true difference betwixt Fundamental and other Laws But if a Parliament should enslave their Kingdom to a Forraigner the people might by a subsequent Election disown the Perfidie or if two of three Estates should by plurality exclude the third surely their Exclusion would be null and that the Constitution of a Parliament is a Fundamental appears not only from the Nature and Weight of that Priviledge but likewise from this Commission anno 1604. wherein it is call'd Fundamental and looked upon as unalterable nor is it imaginable how the Parliament cannot invert the Constitution of one Estate and yet can invert and alter the Constitution of the whole and by our Statutes it is Declared Treason to endeavour to lessen the power of the three Estates of Parliament and it cannot be said that their power is not lessened when they cannot make one Act or Statute by their own authority or when others have more interest in and influence upon their Determinations than they themselves have and when from being absolute they become subject to another and a Parliament has but some such power over the people as the Magistrats and Council have over a Burgh for the Parliament is but the great Council of the people and Kingdom and it is most certain that the Magistrats and Council of a City or Town could not consent to Incorporat with another Town and consent to the eversion of their own without the full consent of their people whom they Govern Commissioners for Shires and Burghs are the same with us that procuratores universitatis are in the Civil Law and Procurators etiam cum libera could not alienat the Rights of their Constituents without a special Mandat for that effect l. procuratori ff de procurat nor can they exchange nor transact upon what belongs to their Constituents which is our case exactly l. mandato generali ff de procurat and if we consider the Commission whereby they sit in Parliament we will find it does only empower them to Represent in Parliament their Constituents in every thing which shall be advantagious for them From which Commissions I argue first That this is but mandatum generale for it empowers them only in general Terms and bears no Warrand to Treat with England of an Union of Mâ—onarchies or Parliaments generali mandato etiam cum libera ea veniunt quae sunt de consuetudine l. quod sâ—no l. § qui assidua ff de aedidit edict non comprehendit ea quae sunt usui regionis repugnantia it empowers not such as have it to do things extraordinary and which it is probable the Constituents would not allow l. ut si filius ff de donationibus l. indebitum ff decondict indebit cap. generali de reg jur in sexto but in such cases as Lawyers observe and Reason Teaches the Constituent is to be Consulted and a special Mandat is required as is clear by the Laws above-cited Our Commissioners for Shires and Burghs sit by vertue of Commissions and as they need a Warrand to sit so cannot they exceed it when they sit and are not arbitrary Nor could the Parliament of Scotland as now Constituted resign their Parliamentary power over to the Council Nor does their Commission empower them to ordain that there shall be no future Parliaments and when they exceed their Commissions they are no more Members of Parliament and therefore what they do is null 3. By these Commissions the Commissioners for Shires and Burghs are only empowered to Represent them in the Parliament of Scotland which presupposeth that there must be a Parliament and consequently that they cannot exstinguish or innovat the Constitution of the Parliament of Scotland for how can they Represent the Shires and Burghs in a Parliament which is not and certainly the Parliament of Scotland can be
this Act they should have been Restored but they are not Restored expresly to these but it is alleadged that they have Right to them by the 14 Act Par. 1 Ch. 1. But yet in that Act it is only said that what is Statute anent the Kings being Superior to Vassals of Erections shall be but prejudice to Bishops and their Chapters of their Rights to their Superiorities which is only a Reservation but is no express Restitution of them to these Superiorities THis Act anent the Dilapidation of Bishopricks is formerly Explained in the general nature of Dilapidations in the Act 101 Par. 7 Ja. 6. and Act 11 Par. 10 Ja. 6. and as to what concerns Chapters it shall be Explained in the Act 2 Parliament 22 Ja. 6. WHen a person is Forefaulted he may be in Law Restored two wayes viz. either by way of Justice when the Sentence of Forefaulture is found to be unjust or by way of Grace when the Sentence is just but the person Forefaulted or his posterity is restored which distinction we have from the Civil Law that allows a distinction inter restitutionem per modum justitiae per modum gratiae The difference betwixt these Restitutions by this Act of Parliament is that the person that is restored by way of Grace has not by his Restitution Right to any part of the Forefaulted Lands and others Disponed in favours of third parties but such as are Restored by way of Justice will thereby have Right to their own Lands though Dispon'd to third parties for onerous Causes as was found in the Disposition of the Lands of Mugdock formerly belonging to the Marquess of Montrose and Disponed by the Parliament for onerous Causes to Argile as also these who are restored by way of Justice will have Right even to repeat the sums of Money which formerly belonged to them though assigned to third parties for onerous Causes and albeit those sums were first ordained to be pay'd in to the Thesaurie and precepts only drawn upon the Thesaurie in favours of these third parties as was found in the Earl of Branfords case against the Earl of Callender and others though this Restitution of Money seems much harder than that of Lands since Money is res sungibilis and singular Successors are not oblig'd to know to whom the same belonged A Process having also been intented against the Earl of Argile in the Parliament 1681. for reducing his Heretable Offices as granted since the 44 Act Par. 11 Ja. 2. It was answered that these Heretable Offices were Dispon'd to the Family before that Act and it being Reply'd that the first Right was extinguished by the Forefaulture and the Restitution being only by way of Grace was to take effect only from the date nor was it more sufficient against the King than if the King had granted them originally at that time in which case they would have been quarrallable on that Act and yet de praxi the King restores to Titles of Honour as of the first date By the 2 Act Par. 9. Ja. 6. The King succeeding to Lands by Forefaulture has right to whatever the Forefaulted person was five years in possession of before the Forefaulture because it is presumed that the Forefaulted person will abstract the Evidents and therefore upon the same presumption it is likewise appointed by this Act that the production of Extracts out of the Register shall satisfie the production in Improbations against the King in Forefaulted Lands Whereas other singular Successors Rights will be improven if the Originals be not produced vide notata upon the said Act 2. The excellent Narrative of this Act is Copied out of l. 1. § 1. ff de justitia jure THis Act is Explained in the 11 Act Par. 16 Ja. 6. Which is that Act that is here Rescinded though it be not here cited BY this Act it is appointed that where there is no arrable Ground in the Paroch the Minister shall have sixteen Soums Grass in place of the four Aikers which are allow'd to him for his Gleib and by the 21 Act Par. 1 Sess. 3 Ch. 2. It is ordain'd That the Minister shall have Grass for one Horse and two Kine over and above his Gleib and therefore it was doubted if where the former Gleib did extend to more than would be Grass for two Kine and an Horse above the four Aikers the Ministers might seek that Grass and the Lords found they might albeit it seems that if this were just the Minister might also seek Grass for a Horse and two Kine even where he had sixteen soums Grass by this Act February 16. 1675. Parochioners of Banchry contra their Minister THis Act is but Temporary THis Act appointing Letters of Horning to pass upon Sheriff Stewart and Baillies Decreet without a Decreet conform before the Lords is Explain'd in the 177 Act. Par. 13 Ja. 6. and because these Acts gave only warrand for Raising Letters of Horning upon such Decreets Therefore warrand is likewise given for raising Letters of poynding upon all such Decreets by the 29 Act Par. 1 Ch. 2. which shews that express Acts are us'd even where there is paritas rationis and they are useful ob majorem evidentiam BY this Act all persons are Discharg'd from receiving any Colziars Salters or Coal-bearers without sufficient Testimonials from their Masters but though this Act appoints the CoalÈiars Coal-bearers and Salters to be punished as Thieves yet none ever Died upon this Act but the ordinary Action both against them and their Resetters is before the Privy Council and the Act only says They shall be repute as Thieves and punished in their bodies This Act is extended to Drawers of Water in Coal-heughs and the Fees of CoalÈiars are Discharged to exceed twenty Merks by the 56 Act 1 Sess. Par. 1 Ch. 2. though this Act only Discharges all persons within the Kingdom to hire other mens CoalÈiars c. yet it was justly thought that the prohibition of it extended to all such as had Right to Coal or Salt here by Tack or otherwise though themselves dwell not within the Kingdom and it seems that the Council might hinder Forraigners to carry away our CoalÈiars and Salters though they cannot punish them for so doing By this Act likewise a Power and Commission is given to all Masters and Owners of Coal-heughs and Panns to apprehend all Vagabonds and sturdie Beggars and put them to Labour and it has been resolved that Tacks-men of Coal-heughs and Pans has the same priviledge though they cannot properly be call'd Masters and Owners except the words be allow'd to be extended to Temporary Rights but since this priviledge is chiefly real and not personal in rem scriptum therefore it seemâ— reasonable that whoever have the power of the Coal-heughs should likewise have this priviledge which is granted upon their account The Council thought argumento hujus legis that Masters of one Manufactory could not have
this Act is in Desuetude but I believe neither for where the Council names jure dâ—voluto because Magistrates accept not they come only in place of the old Magistrates and Council and therefore they can only do what these could have done ex regula surrogatorum and this Act having been made in favours of the King and Monarchy it cannot run in Desuetude without their consent and it is thought that by vertue of it none who are Lords of the Session can be Provosts these being incompatible Employments and inconsistent with the design of this Act which bears to be made to hinder the dissipation of their Common Good and perverting of their Priviledges which is much more easie for Lords of the Session and persons in publck Employment than for others beside that publick Traffique and Merchandising is inconsistent with that exact distribution of Justice which is necessary in His Majesties Judges vide Lampridium in vita Severi as to the distinction of Habits amongst Magistrates THis Act is Explain'd crim pract tit Injuries To which I shall only now add that not only what is destructive to the Government but what may tend to the prejudice of the Government is here punished and this I have thought fit to observe because tending has been oftimes Debated not to be Relevant It may be also doubted whether speaking against the House of Commons or their Resolutions is punishable by this Act since it punishes all reproachful Speeches of the People or Countrey of England and they are the Representatives of the People and since these are punishable who speak against a Councellour of England much more ought they to be punish'd who speak against the House of Commons But in my opinion this Act reaches only such as speak reproachfully of their Nation Countrey and Counsellours but the whole Act ought to be abrogated by our Parliament as being past by us in expectation that England would make such an Act in their Parliament which they never did and upon which account it was never in observance with us It is likewise observable that though in our Law Concealing and not Revealing is only punishable in Treason yet by this Statute the hearing any thing spoke against the people of England or any Privy Counsellour in that Nation and the not Revealing is declared to be equally punishable with inventing such Calumnies THis Act is Temporary as to many things but it is observable from it that the using false Testimonials is punishable by death as Falshood And the power given to the Commissioners of the Borders to apprehend Fugitives and to send them or their marks and tokens to the Kings Commissioner is founded on l 4. ff de Fugitivis Where Limenarcha which is our Commissioners of the Borders debent inquirere in fugitivos and to send them with their notae which is our Tokens to the next Magistrats THe Customs being annex'd to the Crown by the 8 Act Par. 1 Ja. 1. They are by this Act dissolved from the Crown in so far as concerns 10000 pounds yearly to be pay'd to the Lords of Session in place of Quots of Testaments and therefore the Lords of the Session do conform to this Act Decern summarly the Tacks-men and Collectors to pay this 10000. pounds and ordains them to be Charged with Horning BY the 4 Act Par. 18 Ja. 6. It is Declar'd That Restitutions by way of Grace shall not prejudge those who acquired the Forefaulted persons Lands either by a Lucrative or an onerous Cause but because both by an inference from that and by the Principles of the Common Law these who are restored by way of Justice might pretend to quarrel those who during their Forefaulture were presented to Benefices to which they were Patrons upon pretext that they were to be restor'd intirely Therefore it seems that this Act has been made whereby it is declar'd that such as are presented to Benefices which were at the Presentation of Forefaulted persons shall not be prejudg'd by their Restitution and which was very just since Patrons are not prejudg'd because it is presum'd that the Ordinary would not Collate persons that were insufficient nor were Patrons allow'd to make any advantage by the Presentations and upon the same principle it seems reasonable to conclude that a Minor cannot Revock a presentation granted by him with the consent of his Curators during his Minority THis Act Ratifies an Act of Privy Council whereby Aegyptians were commanded to depart the Kingdom betwixt and the first of August thereafter under the pain of Death but it may be justly doubted how the Council had power to make Acts inferring the pain of Death Since it is a received Principle in our Law as is clear by Craig and others that the Secret Council can make no Act which may infer forefaulture of Life or Estate and though by the Acts 124 and 147. Par. 12 Ja. 6. Judges be ordain'd to punish Aegyptians and that by the 268 Act Par. 15 Ja. 6. Vagabonds and Aegyptians are to be employ'd in Common Works yet by neither of these Acts is the pain of Death to be inflicted and therefore it was lately Debated that this Act was but at best a Temporary Act and so Aegyptians could not be impannelled for their Life but yet this Act has been still repute a sufficient Warrand for punishing by Death such as were known holden and repute to be Aegyptians And I find that upon the last of July 1611. Moses Schaw and others were Hang'd as Aegyptians and it is notour that immediatly after this Act Sheriffs and others did Hang very many by warrand thereof and the Act is not Temporary for it appoints them to be Executed in time coming after the first of August and the Act has ordain'd Aegyptians to be proceeded against as Sorners and common Thieves who are by our Law to be punish'd with Death as is clear by the Narrative of this Act which bears that the Council had Commanded That the Sorners and common Thieves commonly call'd Aegyptians c should depart forth of the Kingdom So that the Council has not inflicted the pain of Death upon a new Crime but has only declared That Aegyptians fell under the old Crime that was punishable by Death Nor can it be deny'd but that from this and many other Acts it is clear that the Council has a power to extend and interpret Statutes even relating to Life and Forefaulture since the Act appoints only such to be punishable by Death as are known holden and repute to be Aegyptians It may be doubted what can prove that the Aegyptians pannell'd are known holden and repute to be such For which beside the common Inferences of notoriety adduc'd by Mascardus and others in probatione notorij Our Law allows that such as call themselves Aegyptians or go up and down the Countrey bleaking their Faces telling Fortunes and speaking the Gebrish peculiar to those people shall be punished as Aegyptians and
ordinarly His Majesties Advocat chooses such Assizers as know the persons impannelled to be commonly repute to be Aegyptians These who are call'd Aegyptians in Scotland are call'd Zigeni Tartari Bohemij all which are remarked as idle Beggars going about oppressing the people and cheating them by vain Superstitions and Fortune tellings of which sort of people Fritschius has written a Treatise call'd de origine Zygenorum eorum coercitione where are to be found upon what pretext they were first suffered in several Nations which was because they did assist several Princes in their great difficulties having from being Vagabonds gathered themselves under Captains for that effect but continuing after Peace made to grow insolent they were ordain'd to be banish'd in Germany by an Imperial Constitution anno 1500. and in France by the Act of Orleance anno 1561. and thereafter anno 1612. which is about the time of this Act and in Spain 1492. THe time of this Act the Secret Council had a Commission from the King to receive Resignations and all the Procuratories of Resignations then did still bear a Power to Resign in the Hands of the Secret Council But now Resignations can only be made in His Majesties own Hands or in the hands of His Exchequer THis Act extends to the Decreets of the Admiral and his Deputs the priviledge of having Letters of Horning granted upon them without the necessity of a Decreet conform as was the old Custom and in this it equals the Decreets of that Court with the Decreets of Sheriffs and Baillies of Burghs But by the 29 Act Par. 1 Ch. 2. Whereby poinding is ordain'd to be granted upon their Decreets the Parliament has forgot to extend that priviledge to the Decreets of the Admiral Observ. 1. That this Act declares the Admiral to be a Supream Judge and therefore it has been decided that he may reduce the Decreets of inferiour or Admiral-deputs and that he may reduce his own Decreets upon just Reasons such as noviter provenientes ad notitiam c. And which kind of Jurisdiction is competent to no Inferiour Judge and yet the Lords of Session do suspend and reduce his Decreets also and Advocat Causes from that Court Observ. 2. That by this Act the Admiral is declar'd to have power of summar Execution because Strangers and Sea-faring men cannot attend as others may and therefore it is that such as obtain Decreets before that Court may use Execution thereupon within three Tides Vid. Observ. on the 16 Act Par. 3. Ch. 2. King JAMES the sixth Parliament 21. HIs Majesty held a General Assembly at Glasgow and in anno 1610. drew up some Articles to be presented to the Parliament which are set down by Spoteswood and many whereof are here confirm'd By this Act His Majesties Power to call Assemblies is declar'd a part of His Royal Prerogative Vid. 114 Act Par. 12 Ja. 6. The Bishop is to be Moderator and in his absence any whom he shall Name The Bishop only can Excommunicat and with such Ministers as he associats to himself He only can Depose In this Act likewise is set down a formula of the Oath of Supremacy As to the manner of presenting Ministers it is formerly fully Treated in the Observations upon the 7 Act of the 1 Par. Ja. 6. AFter King James the sixth came to the Crown of England it was necessary that the Laws concerning the Borders should have been alter'd by both Kingdoms and by this Act there is a power granted to His Majesties Officers in England to remand from the Courts of Scotland that is to say to require His Majesties Officers in Scotland to deliver up English Malefactors who had fled into Scotland and another Act of the same Tenor verbatim was past in England about the same time In place of the old Wardens of the Borders there is now a Commission granted under the Great Seals of both Kingdoms to an equal number of Scots and English who have in effect a Commission of Justiciary and it was found by the Council of Scotland that they could not quarrel the Decreets of the Borders because they proceeded by a Warrand under the Seal of both Kingdoms but the Laird of Haining having Charged Elliot for payment of a sum for not presenting of a Thief to the Commissioners of the Borders conform to a Decreet of the Commissioners finding that he had Forefaulted the Bond there was a Bill given in to the Council craving that this case might be remitted to the Commissioners of the Borders and not Suspended by the Session because First These Decreets being pronounced by the English as well as the Scots Commissioners the Session could not be Judges to what was done by vertue of an English Commission and because they could not cite the English Commissioners therefore they could not Reduce their Sentences 2. The Commission of the Border is a Criminal Court and the Lords of the Session are only Supream Judges in Civils 3. The Border is judg'd by a Law unknown to us and therefore since the Lords of the Session behov'd to Consult them though they were Judges it but multiplies Processes and Expences to allow the Lords to be Judges in prima instantia 4. If the Lords were Judges all Thieves or their Cautioners would offer to Suspend or Reduce which would much hinder that expeditness of Tryal which is requisit to stop Thieving in the Borders 5. If the Lords here review'd such Decreets the Judges at Westminster would do the like which would be very troublesome and expensive to us The Council upon this Debate recommended to the Lords to remit the Tryal in so far as it was Criminal to the saids Commissioners By this Act Remanding is only to be granted after full probation of the offences of the persons Remanded in open Courtâ— but this is now antiquated and in Desuetude because it was found by the Commissioners of both Kingdoms to be unpracticable if either the Names or proofs were published in open Court the persons to be Remanded would flee and the Witnesses might be corrupted Therefore it was ordered by common consent that the Commissioners of either Kingdom might Remand privatly from the Commissioners of the other Kingdom and that the person so delated might be immediatly seiz'd upon THis Act is fully Explain'd crim pract tit Rapt THis Act is Explain'd in the Observations upon the 73 Act Par. 6. Ja. 6. THis Act Discharging all Actions of SpuilÈie committed upon the Borders prior to His Majesties coming to the Crown of England is but Temporary But from it it may be observed First That the King and Parliament may dispense with the privat interest of parties upon a publick account nor does the Act salvo jure subjoyn'd to the several Parliaments prejudge or derogat from this Act upon pretext that the parties whose interest was remitted and discharg'd were not call'd 2. In all such Discharges of privat interest and Acts of Grace
Prelats that is to say their Council of which the Dean or Decanus was the Head under the Bishop By the Civil Law decanus erat ille qui defunctorum lectos seu feretrum gestabant vid. Tit. de Decanis lib. 12. Cod. tit 17. But by the Canon Law Decanus comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the Dean proceeded over ten Canons or Prebends and their decani especially in the Cathedral Churches succeeded in place of the Archipresbyter and therefore these two are taken in the same sense cap. ad haec 7. de off Archid vide Bengeum de beneficiis pag. 29. And with us Deans are Created by the King He being only Patron of that Benefice The Chapter is call'd Capitulum by the Canon Law because it is the little or inferiour Head of the Diocy and is defined to be Clericorum congregatio sub uno Decano in Ecclesia Cathedrali A Bishop in our Law nor no other Dignifi'd Person who hath a Convent can alienat without the consent of their Convent or the greatest part of them beside himself who is the Disponer in which number Minors nor absents are not counted March 14. 1622. If one of the Chapter have two Benefices he will have two Votes and albeit the Law Ordains them to be capitulariter congregati yet now sufficiunt eorum suffragia licet emendicata vel sevaratim impetrata which is not only by meer custom as Craig observes but by Law likewise Act 3 Par. 18. Ja. 6. and thus an Instrument of Resignation of a Benefice was found sufficient though some of the Convent subscriv'd not before the Date of the Instrument November 16. 1624. Providing alwise that none of their subscriptions be obtained after the Death of the Granter for then they cannot be said to consent seing they are not all alive together from which it follows likewise that the alienation is not valid if any of the Convent or Subscrivers be Dead before the rest subscrive where many subscrive separatly the consent of the last is drawn back to the consent of the first Craig pag. 91. and albeit Craig be clear that the consent of the Chapter is requisite tam in renovatione quam in alienatione feudi yet by this Act it is for the Vassals case ordain'd that the Bishops or Chapters consent is not necessary to the receiving of Vassals upon Composition or otherwise but that the direct Superiour may receive them by himself Nota By that part of the Act it seems that though regulariter Superiours are not bound to receive singular Successours yet Kirk-men being Superiours are If there be no Chapter or Convent the appending of the Seal of the Convent with the Kings Confirmation is sufficient Craig Ibid. The Arch-bishop of Saint-andrews had of old the Conventual Brethren of the Priory of Saint-andrews to be his Chapter but by the 8 Act Par. 19 Ja. 6. power is given him that Priory being supprest to choose seven to be his Convent and ordains that the appending of the common Seal of the Convent shall be sufficient to declare their consent without their Subscription which Act is innovat by this 2 Act Wherein a Convent is particularly set down to him but nothing spoke of the Seal and therefore the appending of the Seal is yet sufficient for this Chapter comes only in place of the seven prescrived by the first Act and the Subscriptions of these seven were not necessary ergo neither is the subscription of this Chapter As the consent of the Chapter or most part thereof is requisite to an alienation made by the Titular as the Bishop Abbot c. so reciprocally the consent of the Titular and most part of the Chapter is requisite to the perfiting of all Rights made by any Member of the said Chapter of his particular Benefices or of any Benefice belonging to them in communi which rule holds in all Conventual Benefices except that of the Arch-bishop of Saint-andrews for it has been decided that by this Act any Member of that Chapter therein Entered may set Tacks c. without consent of the Arch-bishop of Saint-andrews Novemb. 19. 1624. where these Conventual Benefices have Patrons the consent of the Patron is likewise required Craig Nota That the Bishop of Edinburgh is by the Erection of that See in anno 1633. made Chancellour and Vicar to the Arch-bishop of Saint-andrews and so is the first Ordinary or single Bishop which priviledges belong'd to the See of Dunkeld and so the Bishop of Caithness has not now any suffrage in that Election because they must be but eight in this Act. AFter the Arch-bishops and Bishops were restor'd the thirds of Benefices out of which Ministers were provided formerly came to be an unfit and unproportional Stock for providing the whole Ministry of the Kingdom and therefore by this Act there is a Commission granted for planting and providing of Churches and this is the first of the many Commissions which were granted by Parliaments afterwards to this effect and their Decreets are to this day call'd Decreets of Plaâ— in our practice Observ. 1. The lowest Stipend allow'd by the Parliament here is five Chalders of Victual or five hundred merks but by the 19 Act Par. 1 Ch. 1. The lowest Stipend is appointed to be eight hundred merks or eight Chalders of Victual and the Decreet whereby this is appointed is call'd The Decreet of Modification Whereas if the Stipend be divided and proportioned as well as modifi'd the Decreet is call'd a Decreet of Locality and this proportion is so far observ'd that the Victual so modifi'd was found by the Lords to be payable according to the measure of the Shire where the Paroch was and not according to the measure of Linlithgow where the modifi'd Stipend would not have come the length of the quantity allow'd by the Act of Parliament according to the measure of Linlithgow June 27. 1667. Minister of Dalrymple contra the Earl of Cassils Observ. 2. By this Act power is granted by the Parliament to the Commissioners to unite or dis-unite Kirks which Union was likewise allow'd by the Canon Law and is defin'd to be duorum vel plurium benefiâ—iorum cum causae cognitione a superiore ordinarâ—o in perpetuum Canonice sacta connexio cap. exposuisti de Praeb So that of old the Ordinary only could unite Benefices but now the King as having come in place of the Pope grants this Commission to unite with the consent of Parliament but the Bishop who is Ordinary and the Patrons if any be interested must be likewise call'd and the 5 Act Par. 23 Ja. 6. Ordains that all persons interested in the Union be consenting By which I understand the Ordinary the Patron the Incumbent and the Parochioners and this Act appoints that if there be moe Patrons they shall present alternis vicibus and because it may be doubted who should be the first Presenter in that case it is fit to know that the lesser
allowance is only specifickly given to Dukes Marquesses Earls Viscounts Lords or Prelats and yet I see no reason for the Distinction but on the contrary it seems more reasonable that to the end a whole Shire may be represented that therefore they may be allow'd to deput some to Vote in case others be absent for though it may be answer'd that the power of Proxies is unnecessary in Shires because if their members be necessarly absent they may choose others For to this it may be reply'd that they cannot choose new Commissioners except in case of Deâ—th whereas the Shire may be much concern'd to have their Proxies at any one Dyet Likeas by the 52 Act Par. 3 Ja. 1. All Free-holders are allow'd to have Proxies in case of lawful absence from Parliaments It is ordinary also for the chief Burrows to choose and send an Assistant to attend their Commissioner Observ. 2. By the said 52 Act Par. 3 Ja. 1. absents seem only to be allow'd to send their Procurators for excusing their absence but by this Act they are allow'd to Reason and Vote and therefore it may be doubted whether a Brother who cannot Vote in his own Brothers Cause may notwithstanding be admitted to Vote for his Brother as Proxie for another to whom his Brother is a stranger since here sustinent personam extranei but seing the affection is the same I think they would not be allow'd nor does the Parliament now allow Proxies in any case It may be liâ—ewise doubted if this Act may be extended to Conventions since the Act speaks only of Parliaments and does not add or other General Councils as the Act 113 Par. 11 Ja. 6. and other Acts do but yet the Act 52 Par. 3 Ja. 1. allowing Proxies in absence speaks of Parliaments and General Councils Obs. 3. It is the Kings advantage and interest that Proxies should be allow'd for they are only to be allow'd by this Act where the reason of absence is warranted by the King His Commissionâ—r or Council and so the King may allow Proxies or not as He pleases and needs never allow any to those whom He suspects which is also the present Custom of England as to the Peers Observ. 4. That though Letters of Actourney out of the Chancery be sufficient for absence in other Courts yet by this Act the absents must give a written warrand under their own hand THis Act gives instructions to Justices of Peace and Constables which iâ— renew'd and somewhat altered by the 38 Act Par. 1 Ch. 2. But by this Act their Decreets are ordain'd to receive Execution by Letters of Horning and Poynding and that no Suspension shall be granted but on Consignation which Consignation is neither appointed by the foresaid Act 38. nor is it now in viridi observantia and though by both the Acts they are ordain'd to proceed against Cutters of green Wood Slayers of red and black Fish c. yet they are not in use to proceed in such cases because the Act appoints that Commissions shall be granted to them for that effect but these Commissions have never as yet been granted Though by our Customes no person can be holden as confest except they be personally cited because else men might be drawn in snares by Citations at Dwelling-houses yet here they are allow'd to be holden as confest upon the second Citation at their Dwelling-houses because the subject is small in Justice of Peace Courts This Act is likewise Explain'd crim pract tit Justices of Peace and is Ratifi'd by the 38 Act Par. 1 Ch. 2. Where the Council is allow'd to grant them what further instructions they shall think fit The Council uses to name Justices of Peace in place of such as dy and it being alleadg'd that all Commissions for Justices of Peace should slow from the King immediatly this was refused by the King as being contrary to the constant Custome of Council whom the King allows to name Justices of Peace BY this excellent Act such as have peaceably possessed their Lands for fourty years are secured by Prescription As to this Act it is observable First That Prescription is only competent to such as have bruiked by vertue of Heretable Infeftments and therefore he who alleadges Prescription must alleadge an Heretable Title but though the Possessor be not expresly Infest yet if he has possessed the subject as part and pertinent it will be sufficient and therefore a Salmond-fishing was found to be prescriv'd though it was alleadg'd to be inter regalia since the Prescriver was Infest cum piscationibus in general February 7. 1672. But if the Prescriver be Infest upon a bounded Evident it will not furnish him a valid Title for prescriving as part and Pertinent any Land that is without the bounding November 14. 1671. This Act is also extended to Heretable Offices as to Patronages Pensions and all Servitudes though not expresly mention'd and though Heretors and Wodsetters are enumerated sometimes as different from one another Act 6 Sess. 2 Par. 1 Ch. 2. yet Heretage in this Act comprehends Wodsets and it is even extended to long Tacks so that it was found that after fourty years they could not be quarrel'd as granted without consent of the Patron July 7. 1677. This want of a Title likewise and of bona fides hinders a Vassal to prescrive against his Superiour since the reddendo of that same Charter whereupon he founds his prescription obliges him still to know his Superiours Right and by this Act for the same cause a Wodset cannot prescrive where the Reversion was incorporat in the body of his own Infeftment Since this Act appoints that His Majesties Lieges bruiking for 40. years shall have Right by prescription it may be doubted whether prescription can run in favours of strangers who have not been Naturalized Observ. 2. That these fourty years are only to run from the date of their Infestments by this Act and yet in warrandice it is only to run from the date of the Distress but from both it is clear that the reason is because till then they who have such Rights non valent agere and therefore the exception allow'd by the Civil Law of non valens agere is allowable in ours though it be not expressed in this Act as minority is whereby it seems that exceptio firmat regulam in non exceptis Likeas it was found in the Earl of Lauderdail's case against the Earl of Tweddel that Lauderdail being Forefaulted by the Usurpers prescription could not run against him during that Forefaulture but where there is a Title prescription may run albeit the Defender was absens reipublicae causa at the least durst not come home in the Usurpers time for alleadg'd Crimes committed against them as was found in White-foords case the 24 of July 1678. He having kill'd in Holland Dorislaus one of the Kings Murderers for the Lords thought that he might have Transferr'd his Title to another and if this reason hold it seems that
absens reipublicae causa in general is not sustainable as Minority is since these who are absent may leave Procuratories to pursue their Rights It may be likewise debated that such as are vi majore hindred from coming to pursue as being taken by Robbers or Pirats should have the priviledge of non valentes agere though no exception be made of them here for though the chief design of the Act be to establish Heretable Rights in the persons of singular Successors who cannot know such accidents and are secure if they find a fourty years progress Yet prescription was at first introduced for punishing the slouth of the Proprietars amongst other Reasons and therefore non valens agere was allow'd by the Civil Law and ours It may be also doubted whether prescription should run against a furious or mad Man since they are minors in the construction of Law and so are to have Curators and are less judicious oftimes than Minors are but yet since they are not exprest here when the Law secur'd priviledg'd Minors it is presum'd they were designedly omitted and it were hard to know who are Furious and Furiosity might continue eighty or ninety years or a man might feign himself mad c. Observ. 3. That this Act makes a difference betwixt such as are singular Successors who must produce for the Title of their Prescription not only a Seasine but a Charter and Heirs who need produce no Chaâ—ter but Seasines one or moe proceeding upon Retoures or Precepts of clare constat But because the Act sayes That they shall produce Seasines one or moe continued or standing together for the space of fourty years therefore the Lords found that Seasines must be produc'd by the Heir by vertue whâ—reof he and his Predecessours have bruiked for fourty years during their being Infest and so where the Father was Infest and lived thirty nine years yet the Son not having been Infest though he and his Grand-child possessed for above 100. years This Seasine was not found a sufficient Title for prescription February 15 1671. Earl of Argile contra Menauchtan and the reason is because a Seasine is but assertio notarii and therefore it was too lax a foundation for an Heretable Right and one Seasine may be easilier forg'd than moe Seasines can and one Seasine being forg'd may be laid up in the Charter-Chist so that the true Proprietar could not before the Registration of Seasines know how to improve the same and since this Act requir'd no Charter from Heirs it was just that it should require more Seasines to secure against Falshood But since the Act appointing Seasines to be Registrated the argument of easie Forging is much taken off Because the Act of Parliament sayes That it is necessary to produce a Charter granted to them by their Superiours and Authors It may be doubted whether the Superiour is oblig'd to receive a Vassal though fourty years in Possession except he or his Predecessors can shew a Charter from him and that because not only does the Act of Parliament say Copulative Superiours and Authors but without this there is no Title against the Superiour and some rather think the Superiour would bâ— excluded by this fourty years Possession from his Right of Supeâ—iority Observ. 4. Though the Act require Charter and Seasins yet a Disposiâ—ion or Precept of Seasin would be sufficient for many compleat Rights have no Charter Observ. 5. These fourty years run de momento in momentum and therefore the Prescription wanting a day was not sustain'd July 6. 1671. Though it was alleadg'd that de minimis non â—â—rat prâ—tor and it would be severe to take away the old Heretage of a Family for want of one day or hour These fourty years are tempus continuum and not utile and therefore the Law subduces not from the Compt those years in which Judicatures were not patent or in which War and Pestilence hindered the Proprietar to pursue the 30 of June 1671. but it may be here doubted quid juris if Judicatures were not open through War or Pestilence for the greatest part of the whole fourty years Observ. 6. This Prescription runs against His Majesty as well as Subjects for the Act sayes expresly that these who have possessed fourty years shall not be troubled by His Majesty or any other which was exprest least 〈◊〉 it might have been alleadg'd that the negligence of His Majesties Officers should not prejudge him in not pursuing c. Which are the express words of the 14 Act 16 Par. Ja. 6. Observ. 7. That by this Act the Prescription was drawn back in favours of these who had possessed fourty years prior to the Act for drawing back whereof nothing can be answered but that this Remedy was previously allow'd by the Civil Law but least the Subjects might have been hereby prejudg'd thirteen years are allow'd to run from the date of this Act so that though they had possessed fourty years before the Act they could not prescrive except they had likewise possessed 13 years after this Act and though in this Clause the priviledge of Minority be not repeated and that it seems that the Parliament design'd not to deduce minority out of so short a time as 13. years since having had it under consideration in the Act they excepted it not in this Clause yet it was found that Minority was to be discounted even in this case July 5 1666. Observ. 8. That by this Act it is declar'd that except the Summons be Call'd and Continu'd it shall not interrupt Prescription and it is declar'd That the Raisers of Summons shall not be oblig'd to insist except where the Summons is called and continued and the Defenders of new Summoned thereby and yet the 3 of July 1647. Elleâ—s contra Scot. It was found that upon a single Summons one may be forc'd to insist which I cannot reconcile with this Clause except by restricâ—ing this Clause meerly to the Course of thirteen years here specifi'd and generally a first Summons Executed interrupts Prescription January 26. 1622. And of old the Execution of a first Summons did interrupt though they bare no express relation to the Summons upon which the Interruption was founded but because there were several Summons at the same parties instance so that the Execution of one Summons might be obtruded for the Execution of another It is appointed that the Execution of Summons shall bear express relation to the Names of the Pursuers and Defenders and it shall not be sufficient that the Execution does generally relate to the Summons by the 6 Act Sess. 3 Par. 2 Ch. 2. and it had been fit that the Act had added that the Execution should bear the nature of the Action deduced in the Summons for else where the Pursuers and Defenders are the same one Execution may be still obtruded for another Observ. 9. Albeit this Act appoints all Rights to prescrive yet it was found that Heretors cannot prescrive a Right of their Tâ—â—nds
against Titulars except the Lands were Feued cum decimis inclusis but that they might prescrive Liberation for bygones preceeding fourty years as in Customs and Feu-duties which prescrive not quoad the Right though neglected fourty years February 7. 1666. Earl Panmuire contra the Parochioners of Inverness Vid. Observations upon Act 57 Par. 5 Ja. 4. Observ. 10. That Falshood never prescrives by our Law but whether this be in our Law peculiar to that Crime I have Debated crim pract tit Prescription Observe also from the Narrative of this Act that the Registration of a Paper in the publick Register is a great Adminicle of Approbation for the Paper must be left there Though Falshood prescrives not when the Paper is produced and the Pursuer offers to improve the same yet it may be doubted whether when Papers are only call'd for in an Improbation in order to a Certification and for trying of the Defenders Rights Prescription may not be receiv'd against that presumptive Falshood wherein the Writs are only Declar'd to be false fictione juris and the true intent of such Improbations is in effect but to try the Rights civily and so it resolves properly but in a Reduction though that dangerous Certification of presumptive Falshood is adjected ob terrorem BY the 57 Act Par. 5 Ja. 4. Summons of Error prescrive within three years in so far as concerns the punishment against these who have committed the Error who cannot be punished after three years But yet by this Act the Retour it self may be Reduced at any time within twenty years which Prescription of twenty years militats only in cases of Competition betwixt the several kinds of Heirs amongst themselves as whether the Heir of Line should be prefer'd to the Heir of TailÈie But it does not exclude the clear interest of Blood for jura sanguinis nullo jure civili dirimi pâ—ssunt l. 8. ss de Reg. Jur. and therefore an â—lder Brother was found to have good interest to Reduce a second Brothers Retour January 11. 1673. By this Act though such Retâ—ures may be Reduced in prejudice of persons so served yet if the person so served have Dispon'd their Right to singular Successors having bona fide acquired Rights as said is they cannot be prejudg'd And in our Law this is still introduced for the good of Commerce in favours of singular Successors for how should they know that the Retour was Reduceable Vid Act 18 Par. 23 Ja. 6. Where the like priviledge is granted to singular Successors of Bankrupts BY this Act we find that Executors Nominat had formerly by vertue of their Office the whole Dâ—functs part of the Executry that is to say the whole Executry if there was no Wife or Bairns the half where there was only a Wife and no Bairns Or only Bairns and no Wife and the third where there was a Wife and Bairns But by this just Act they are only ordain'd to have a third of the Defuncts part and there was good reason for abrogating the former Custom whereby the Executor was in effect universal Legatar where there was no other Legatars Albeit in reason the Executor should only have had some small acknowledgement for Executing the Defuncts Will. Observ. 1. That albeit the Narrative of this Act mention only the case of strangers who are Executors nominat yet where a Wife is nominat she has the same Interest viz. a third of Deâ—ds part to which she will have Right beside her own half or third of the Moveables as Relict so that all are understood to be strangers in this Act except the nearest of Kin who would fall to be Executors by Law But if one of moe nearest of Kin were nominat it might be doubted what share of the Moveables such an Executor would have whether he might claim a third of Deads part as Executors nominat and a separat Interest as one of the nearest of Kin It seems probable that if there were only two nearest of Kin whereby the Benefite as nearest of Kin would be greater than as Executors he would only have the half and nothing as Executor because by this Act if the Executors have a third of Deads part by any other Title he is not allow'd another third by vertue of the Act and albeit a Wife have both a half or third as Relict and a separat third as Executor yet the Relicts part is not by Succession but is her own proper Interest arising upon the Dissolution of the Marriage Whereas the question is here only as to Deads part But if there were moe in the same Degree to the Defunct than three Persons whereby the Executors Interest as nearest of Kin would be less than a third In that case he might claim the benefit of this Act Because though the main and ordinary Case considered is of Executor Strangers Yet the Statutory part of the Act is general and it were against Reason that the nearest of Kin should be in a worse condition than a Stranger Observ. 2. That this Act relates only to Executors nominat and therefore Executors Dative have no more for Executing the Office than their Expences which is very reasonable for otherwayes Sâ—â—angers would frequently ingire themselves to the prejudice of the nearest of Kin November 28. 1676. â— Ker contra Ker. Observ. 3. That notwithstanding of this Act where there is an universal Legatar the Executor gets no part of the Defuncts part January 15. 1674. Patoun contra Leishman November 29 1626. Forsyth contra Forsyth Observ. 4. That by the Confirmation of the Defuncts Testament the interest of the nearest of Kin is ipso jure Established so that albeit the nearest of Kin should immediatly Decease before Executing of the Testament the interest that was competent to him is Traâ—smitted to his Children or nearest of Kin as was found February 12. 1662. Bells contra Wilkie Where the three Sisters of Patrick â—ell being Confirm'd as Executors whereof one Deceasing before Executing the Testament her Son did 〈◊〉 in his Mothers Testament the third part that belonged to his Deceased Mother for which the two surviving Executors were found countable to him but where the nearest of Kin Died before the Testament of the Defunct was Confirm'd It was found that the Interest which would have been competent to that nearest of Kin Confirming was not Transmitted to his Executor but that there was place for the nearest of Kin of the first Defunct February 17. 1663. Forsyths contra Paton Where it was also found that a Child having survived his Mother did not Transmit her third to his Father as a legittim But that the Father was lyable for the third of his Moveables to his Wifes Brother who was her Executor and nearest of Kin. THere are two cases provided for in this Act First That Liferent Tacks of Lands and Tiends shall not fall under single Escheat but under the Liferent Escheat and yet if the Superiour to whom that Life-rent-escheat falls
go to the Horn that same Liferent-escheat of the Vassal will fall under the Superiours single Escheat for it is no Liferent in the Superiours person for he has only Right to it during his Vassals Lifetime but not during his own as also for the same reason if the King Giâ—t the Liferent Escheat to a Donatar it will fall under the Donatars single Escheat and if the Donatar assign the same it will fall under the Assigneys single Escheat not because Assignations makes that moveable which was Heretable for Assignations alter not the Nature of the thing assign'd but because the Assigney has not these Rights for his Lifetime The second part of this Statute provides that in case any Tacks of Lands or Tiends contain more Lifereâ—ts The First Liferent only shall fall under the Liferent Escheat by the first Liferenters Rebellon But the remnant Liferenters or Heirs shall not be prejudged It is fit here to observe that if a Tack be set for fifty or sixty years yet it falls under the single Escheat for all that falls not under Liferent-escheat falls under single-escheat and this nor no such number of years is a Liferent but quid juris if a Tack be set for a hundred years which is a Lifetime by express Law And since Tacks were the only habile way of Transmitting Tiends of old and are yet the ordinary way it is hard that all our Rights to Tiends shall fall under single-escheat BY this Act all Reversions Regresses or Bonds for making Reversions or Regresses or Assignations thereto and all Seasines are to be Registrated within sixty dayes after the date of the same and I find that Sand. decis Fris. lib. 3. tit 12. def 15. shews that they have the same Registration of Hypotheques in immobilibus Observ. 1. This necessity of Registration is only introduc'd in favours of singular Successors acquiring posterior Rights and therefore the nullity of not Registration was not sustain'd at the Instance of one who had no standing Right in his Person March 25. 1633. Nor is this Nullity sustain'd in favours of the Disponer or his Heirs for quoad them these Rights are valid without Registration nor was it sustained at the instance of the Son who got the Estate Dispon'd to him by his Father with power to the Father to burden it with a Sum since this Son was found to be no third party February 27. 1667. And for the same reason it was found that the Superiours Seasine was not quarrellable by the Vassal This necessity of Registration being only introduc'd in favours of such as have posteriour Heretable Rights June 12. 1673. Observ. 2. It is thought that the sixty dayes within which Seasins are to be Registrated are so to be counted only that either the day upon which the Writs are dated or the day on which they are Registrated must be free Observ. 3. That since the Act sayes That these Seasins and others shall be Registrated in the places designed in this Act That therefore it may be doubted whether when Lands ly within different Shires but are united if in that case they are to be Registrated in the Shire where the place lyes at which Seasine is to be taken by the Charter of Union or at all the places where the Lands ly Observ. 4. Though this Act appoints Renunciations and grants of Redemption to be Registrated Yet the Lords found that Orders of Redemption fall not under this Act and need not be Registrated July 29. 1623. But yet they found that an Infestment of Annualrent could not be taken away by Discharges granted by the Debitor nor by Compensation of his Debts in prejudice of a singular Successor who had Right to the said Annualrent and that because First The design of this Act appears by the Narrative to be made for security of Buyers and buyers could not be secured if such latent wayes of extinction were allowed 2. An Infeftment of Annualrent is Constituted by a Seasine which must be Registrated and therefore it cannot be taken away but by a Renunciation or some Paper which must be Registrated 3. By the 3 Act Par. 2. Ch. 2. Instruments of Resignation ad remanentiam whereby Rights are taken away are by the same Argument ordained to be Registrated in the same way that Seasins are 4. Though by this Act there be not express mention of Rights of Annualrents yet they are comprehended under the word Wodsets for an Infeftment of Annualrent is but in effect a Wodset of the Rents and though this Act is only urg'd against such as annalÈie their Lands and that it was urg'd that an Infeftment of Annualrent was not an alienation of Lands but rather a Servitude upon them yet this is a mistake for an Infeftment of Annualrent is an alienation else it could not infer Recognition as without doubt it does As also they found that Renunciations of Annualrents which were holden of the Disponer are sufficient without any Resignation ad remanentiam though it was alleadg'd that as a Charter without a Seasine cannot Constitute an Annualrent so neither can a personal Renunciation without an Instrument of Resignation extinguish it But because this Act ordains these Renunciations to be Registrated therefore they are valid against singular Successâ—rs else why should they be Registrated January 7. 1680. Mcclelland contra Mushat Since this Act of Parliament requires that all Seasines Renunciation of Wodsets c. shall be Registrated I think the Booking of them is necessary nor is it sufficient as some pretend that they are produâ—'d and maâ—ked by the Clerk because as they say the Lieges can do no more and they ought not to be punish'd for the Clerks negligence for if this were sufficient no singular Successor could be secure and the producer may pursue the Clerk if he book them not since the Act of Parliament requires actual Registration By this Act all grants of Redemption are to be Registrated for securing singular Successors but seing the using an Order of Redemption with a Declarator thereupon will evacuat the Wodset even as to a singular Successor and yet he cannot know whether there be such an Order used and Declarator obtain'd it not being requisite that either of these should be Registrated it seems that singular Successors are yet unsecure As also since if a person obtain a Decreet against him to whom he sold his Land decerning him to grant him a Reversion conform to his promise this will be valid against a singular Successor though the promise was not and yet the singular Successor cannot know this Decreet nor needs it be Registrated and therefore this Register seems yet no sufficient and adequat Remedy in Wodsets Observ. 5. That by this Act it is provided that Seasins and Reversions therein contained given by Provost and Baillies of Burgage Lands needs not be Registrated neither in Burgh nor Shire as was decided July 21. 1666. And that Seasins of Lands in Leith need not be Registrated though it
be lyable thereafter to do exact Diligence Observ. 3. By this Act it is Declar'd that upon payment of the principal Sum and Annualrent and the Expence bestow'd by the Compriser in passing and obtaining Infestment together with the Annualrent of the said sums and the necessary Expences bestow'd in leading the Comprising that then the Comprising shall expire ipso facto that is to say by way of exception without Declarator though ordinarly an order of Redemption be us'd and not only does payment or intromission with the Mails extinguish the Comprising and prove against singular Successors but even any acknowledgement of payment by the Leader of the Comprising will extinguish the Comprising against those singular Successors July 23 1662. Observ. 4. That the Comprizer is to get allowance of a years Duty as due to the Superiour by this Act and though he get himself entered for less by the Superiour than the years Duty yet he will get allowance of the full years Duty that was due to the Superiour whose gratuity will be of no advantage to the Debitor July 2. 1625. Observ. 5. That by this Act what is pay'd to the Superiour bears Annualrent as do the necessary Expences but it may be doubted if Annualrent be due for Sheriff-fees Observ. 6. That Comprisings are not to run against Minors but that it is lawful for the Minor at any time within the age of twenty five years to Redeem which priviledge was found not only to be due to Minors when the Comprising is led against themselves but even when a Minor has right to the legal Reversion he being himself a second Compriser for even in that case a Minor having led a Comprising may be prejudged as well as the Minor against whom the Comprising is led there being the same parity of reason in both and though this be not clear by the first words of the Exception Yet it is clear by these words And that notwithstanding of the preceeding Laws and Practiques of this Kingdom by the which the Legal Reversion of the Comprised Lands expired within seven years after the leading of the Comprising from the which His Majestie and Estates hath by this present Act and Statute excepted Minors in all time coming declaring the same no wayes to run against them Observ. 7. That because this Act appointed only the superplus of the Mails and Duties which exceeded the annualrent to be imputed in the payment of the principal sum during the seven years of the Legal but did not expresly extend this to the case of Minority Therefore it was found that Minors not Redeeming within the seven years the Compriser had from the expiring of the seven years the whole Rent of the Land for payment of his Annualrent without imputing the superplus in payment of the principal sum because the Act Corrected only that Custom quoad the Legal leges correctiâ—â—â— non extendi debent ultra verba directa expressa February 22 1639. and therefore by the 10 Act Par. 1 Sess. 3 Ch. 2. This Decision was Corrected and it was by that Act ordain'd that Comprisers should impute the superplus of the Rent beyond the Annualrent for payment of the Principal sum not only during the Legal but during the whole course of the Minority THis Act extends all the priviledges granted to Minors in Comprisings to Minors against whom Adjudications are led And from this it would seem to follow argumento hujus legis that whatsoever is competent in Adjudications is not Competent in Comprisings for else this Act had been needless and the Lords would not extend the priviledges of the one to the other in many other cases and so would not allow the Superiour to get a years Duty because the immediat preceeding Act did allow Comprisd Lands to be Redeemable upon the payment of the sums Compris'd for and a years Rent for their Entry But in this Act of Adjudication there is no mention of a years Duty and which therefore was thought to be of purpose omited and so needed a new Law notwithstanding of the parity of Reason whereupon a new Law was made viz. the Act 18 Par. 2 Ch. 2. Whereby not only the Superiour is ordain'd to have a years Duty but it s expresly Declar'd That in all Cases relating to Superiours Adjudications shall be in the same condition with Comprisings and consequentially to this last Act it was found that the Superiour might at his option either Enter the Adjudger or pay the Sums for which the Adjudication was led since the Act of Par. Ja. 3 Par. 5 and Act 37. Appoints this in Comprisings June 10. 1671. Scot of Thirlestoun contra the Lord Drumlanrig As also upon the same Reason the Lords found that the Superiour was bound to receive the Adjudger though he could not produce his Authors Rights Debitors abstracting their Writs because Comprisers are not bound to produce February 9. 1667. Ramsay contra Ker. Nota That Comprisers intrometting are lyable for their intromissions with the Victual according to the Sheriffs Fiars and not according to the Commissars not only because the Commissars Fiars are made only to Regulat Prices betwixt Tutors and Pupils and in other Consistorial Cases but because this Act sayes as the samine were commonly Sold between Yuil and Candlmas in the Sheriffdom where the Lands ly THough regularly Infeftments upon Comprisings and Adjudications ought to be perfected by appending the Great-Seal yet an Extract of the Debitors Infeftment under the Privy-seal is here Declar'd equivalent in so far as concerns the Debitors Heirs because it is presumable that the Debitor has destroy'd or Abstracted the Writs of the Lands Compris'd from him Quaritur Whether this Act should be extended to Adjudications since they are not mention'd here in the very next Act to the Act anent Adjudications THis Act allowing Bishops to Feu out their Ward-Lands is but Temporary for three years and so is expir'd because not renew'd and consequently Bishops have not leave to Feu out their Ward-lands now AS Ministers Gleibs were to be Tiend-free so ought the Soums Grass that is allow'd to Ministers in place of Gleibs be Tiend-free The Reason given by this Act is because the same is dedicated and appointed ad pios usus which is no adequat and sufficient Reason since Lands mortifi'd to Hospitals are destinat ad pios usus and yet are not Tiend-free that being a special priviledge only granted by the Pope to the Coelestines or Cistertians and some few other Orders but ordinarly Hospitals and others are free from Taxations as Act 1 and Act 15 Par. 1 Ch. 1. BY the 2 Act Par. 22 Ja. 6. Deans and Chapters were Restored but by this Act all the Offices and Dignities of the Chapter are likewise Restor'd and it is declar'd That all Deeds done since the date of that Act or to be done thereafter whereby any Member of a Cathedral Kirk being an Office or Dignitie hath or shall be supprest or any
Land Parsonage Vicarage or other Living belonging to the said Dignity dissolved from the same without express Warrand from His Majesty and Parliament shall be null For understanding this Act it is fit to know that in every Bishoprick there are several Dignities allow'd by the Canon Law by which Law the Word Dignity is either taken largely so as to comprehend all Ecclesiastical Dignities as in cap. denique dist 4. But properly it imports administrationem Ecclesiasticam cum honore vel jurisdictione conjunctam Glâ—ss in cap. 1. de consuetud in 6. and generally all such to whom the Cognition of Causes could be delegated were accounted Ecclesiastick Dignities cap. cum olim de offic legat There are in every Chapter and Bishoprick with us some of those Dignities but of a different Rank and Jurisdiction not only from those in the Canon Law but the Dignities in our own Bishopricks differ from one another though all of them agree in this that those Dignities which were appointed at the foundation of the Bishopricks continue to this day and the foundations are the Rule and are very different The ordinary Dignities common to all are the Dean the Arch-dean the Chanter the Chancellour and the Thesaurer The Office of the Dean has been fully Explain'd in the Act 2 Par. 22 Ja. 6. The Arch-deacon call'd improperly by us Arch-dean is the Archidiaconus of the Canon Law who though they be inferiour to Deans yet they are in effect the Bishops Vicar and have the Chief Jurisdiction next to him being in the Canon Law oculus Episcopi their Office in that Law was to examine such as were presented to the Bishop and to put them in possession of their Benefice after their admission as also to visit the Diocy every three year if the Bishop be not present and to oversee the Manners and Living of the Clergy The Chanter is in the Canon Law called Primicerius because he is first of the Order of the Singers and by the Greek Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his employment was to oversee such as sung and read in the Church and with us the Sub-chanter is a dignity called Succentor in the Canon Law and that likewise he was allow'd a dignity by the Canon Law is clear Innocent cap. 3. inter dilectos de excess prael The Chancellor was so called because he kept the Seal of the Church Cujac ad tit ut Eccles. bon sine diminut conserv he was likewise Superviser of the Bibliotheck of Schools and of these who taught the Clergy cap. penult ult de translat Epis. cap. veniens de reg trans ad monast In England the Chancellor is in effect a Church-Lawyer who judges for the Bishop through the whole Diocy and is universal Commissary whereas these only are called Commissars by that Law to whom the judging in particular Places or Cases is committed But with us the Chancellor is still a Church-man and the Province of Saint Andrews has its Chancellor as well as the special Bishopricks the Bishop of Edinburgh being the Chancellor of the Province of Saint Andrews The Thesaurer is he who did oversee the Thesaury and all things else belonging to the Church who in the forecited cap. cum olim is accounted to have Ecclesiastick Dignity It is observ'd by Bengeus de beneficiis Ecclesiasticis Renat Chopin and other Canonists that both the Jurisdiction and Precedency amongst those Dignities is now consuetudinary and alter'd much according to the custom of the several Places and it is so with us where they are regulated according to the special Foundations or Custom if these be wanting or lost THis Act is Explain'd in many other Acts concerning the priviledge of Burghs Royal. THis Act is formerly Explain'd in Act 47. Parl. 11. Ja. 6. BY this Act all playing at Cards or Dice in any Inn or Ale-house is discharg'd under the pain of fourty Pounds and all playing at Cards or Dice even in privat Houses is forbidden except where the Masters of the Families play and all playing at Cards and Dice even though the Master play and all Horse-Races are so far restrain'd that the Gainer cannot have Action for any thing he wins above an hundred Merks But yet it was found that the Loser is still lyable in payment and therefore the Kings Advocat was found to have interest to compear and crave the Money to be consign'd November 12. 1668. Park contra Somervel Where it was debated if this was vitium reale and might be taken from an Assigney though he knew not how the Money was dew for else this Act might be eluded by filling up the name of an Assigney By the Civil Law Tit. 43. lib. 3. l. 1. Cod. de aleatoribus he that is overcome at such Games is not oblig'd to pay and though he pay he or his heirs have repetition and by the Canon Law Church-men who use such Games cannot be promoted to Benefices cap. 11. de excess prelat but yet wagering seu sponsio was by that Law allowed l. 17. § ult ff de prescript verb. and so our Horse-races were not condemn'd by that Law though they are by ours for that Law did think that nullam turpitudinem continet in se spoâ— sio nam inde rixae oriri non solent but our Law did condemn Horse-Races because they occasion'd great Idleness and Expence This Act is still exactly observ'd but is not extended to other Wagers such as that Ships will arrive at such a day or in such a place which was not found to fall under this Act which speaks only of Cards Dice and Horse-Races it seems that this Act would not be extended to any other Game ex paritate rationis but yet I find that by the late Decisions of most Nations these are not sustain'd tanquam otiosi aleatorii contractus qui nihil in se continent praeter inanem animorum concertationem Stockman decis 134. Molin tract de usur quest 3. num 97. By the Civil Law likewise though wagering was allow'd yet where either of the Parties did certainly know the thing whereupon he wagered but conceal'd his knowledge as for instance if a man should wager that such a man should be dead before a year elapsed and that he knew him to be already dead the Law would not allow Action upon that Wager because in effect that were to cheat and accordingly our Courts in Scotland have most justly decided Wagers likewise upon the deaths of Princes are discharg'd as giving occasion of jealousie as also Wagers concerning the event of Publick Undertakings for the good of the Countrey such as the success of Arms c. and that lest men should be tempted either to wish the Armies of their native Country not to prosper or to reveal their Secrets to the end they may not prosper vid. Zipeum in not juris belli lib. 3. in fin there is such an Act as ours made by Lewis 13. of France amongst his Statutes cap. 138.
seq THis Act is fully Explain'd in Act 200. Parl. 14. Ja. 6. THis Act is fully Explain'd in the 114 Act Par. 11 Ja. 6. THis Act Discharging that a Peck should be taken to the Boll though with consent of Parties was made to prevent extortion upon the same Ground that Usury is Discharg'd but yet it not having been observ'd for a long time the Council stopt a Gift that was granted thereof as to bygones till His Majesty should be acquainted THis Act concerning Dispositions made by Bankrupts is fully Explained by me in a Treatise a-part already Printed upon this single Act. THis Act Regulating the Prices of all Writs and Seals is for the most part either in Desuetude or is innovated by the 16 Act Sess. 3 Par. 2 Ch. 2. Wherein new Regulations are set down and from this Act it is observable that the Secret Council may make prices in all such Cases for this Act Ratifies only their Act and though the Act Ratifi'd bear this Act to have been made by the Secret Council and Session yet the Act of Parliament which does Ratifie that Act Ratifies it only as an Act of Privy Council and so insinuats that the Privy Council hath power to Regulate both the price of Session and Exchequer These Regulations of Prices in our Law are like to the notitiâ—â— mentioned Cod. de ann cap. lib. 1. Tit. 52. quae singulis offiâ—iis delegabantur quibus continebatur quantum singuli pro dignitate â—fficio pro libellis mandatis codicillis accipiendis vel insinuandis pendere quantum pro annona capite accipere deberent FOr understanding this Act it is fit to know that Annualrents are only due by our Law either by Statute or Paction so that regularly they are not due otherwise They are due by Statute either by the Act of Sederunt 1613. appointing That where Cautioners are distressed and forced to pay they shall have Annualrent from the Term that they pay though the Bond wherein they are Cautioners bear none yet this is in effect ex pacto because it arises from the Clause of Relief this being a Damnage incur'd by them or by this Act of Parliament by which Annualrents are due after the Party is Denunc'd though the Bond whereupon he is Denunc'd bear no Annualrent upon the same ground that in the Civil Law usurae debentur ex mora in bonae fidei contractibus l. 32. § 2. ss de usuris So that as by the Civil Law they were due ex pacto vel ex mora they are due only with us ex pacto vel ex lege which is the same thing almost since lex in hoc casu apud nos sundatur in mora for though there may be mora sine usuris yet by this Act there are never usurae sine mora But this Denunciation must be at the Head Burgh of the Shire where the Debitor lives Denunciations at the Mercat Cross of Edinburgh being a Warrand only for Caption but not inferring Annualrent which may seem strange since Annualrents are by this Act infer'd after Denunciation because of the Debitors negligence but the reason of the Decision is that the Lords thought the Debitors did not know exactly when they were Denunc'd at Edinburgh but it has been found that the Debitor is lyable in Annualrent after he is Denunced at the Head Burgh of the Shire though the Horning be not Registrated since the Act only appointed Denunciation and yet there can be no Caption till the Horning and Executions be Registrated and thus it is clear that Caption and Payment of Annualrents are very different effects of a Horning since sometimes Caption will follow where Annualrent cannot and sometimes Annualrent will follow where Caption cannot February 11. 1673. Smith contra Wauch Annualrents are sometimes due without either express Law or Paction because of the tacite and presumable consent of the Party as if a Party pay Annualrent for one Term or if he promise to pay bygone Annualrents though he promise not for the future yet January 13. 1669. Hume contra Seaton The Lords found that he ought to pay constantly Annualrent for the future though the obligation did bear no Annualrent or from the Principles of Natural Equity as in the price of Lands which pay Annualrent though none be pactioned because the Buyer has the Rents of the Lands Or in Tochers because they are given ad sustinenda onera matrimonii and the Husband intertains the Wife Or where the sum is ordain'd to bear Annualrent after her Marriage to whom it is left quo casu before Marriage the Lords found that Annualrent was due since matrimonia debent esse libera but yet regulariter annualrent is not due in cases alimentary And a Father providing his Daughter to a Sum for her Portion without mentioning any thing of annualrent the Lords would not decern annualrent though annualrent was only said to be omitted there through the ignorance of the Notar but because of the presum'd will of the Father they modifi'd the aliment equal to the annualrent But so unfavourable are usurae usurarum call'd usurae judaicae by the Doctors of the Civil Law that an obligation to pay annualrent for annualrent if it were not pay'd at the Term was not sustain'd though it was alleadg'd that here pactum mora were joyn'd with Equity the Woman to whom they were due being a poor Widow who behov'd to borrow Money to live upon if her annualrent were not pay'd and to pay annualrent for that Money which she so borrow'd January 26. 1669. Lady Braid contra the Earl of Kinghorn It is fit to know that the Statute 2. Robert 3. appointing annualrents not to run against Minors is now in Desuetude though it would seem reasonable that their mora should not prejudge them but Minors Money do still bear annualrent by our Law The King uses to pay Annualrents for the ballance of his accounts de facto but is not oblig'd thereto by Law THis Act is Explain'd Crim. pract tit Falshood NOta That Usury is excepted from this Commission to uplift Money due by penal Statutes c. Ergo Acts against Usury seem penal Statutes It is observable that though by this Act it be Declar'd That Commissions for penal Statutes be not put to Execution till they be authoriz'd by the Lords of Secret Council yet this is too much in Desuetude but the Lords of Secret Council do use to Discharge them till they acquaint the King THe Laws of the twelve Tables contain'd several Sumptuary Laws though there was then little Luxury and particularly at Burials and Saint Chrisostom condemns feign'd Mourners whom we call Saulies because they pray for the Souls of the Dead Vid. 14 Act Par. 3 Ch. 2. THis Act appointing Houses in Edinburgh to be Sklated and Letters of Horning to be direct to that effect shews that the Parliament may Dispose upon privat Estates ob bonum
to any Church-lands and all Infestments of Erections of Abbacies Prelacies c. Spirituality or Temporality and a Reduction of these Rights was thereupon rais'd Notwithstanding that by the 2 Act Par. 18 Ja. 6. His Majesty to remove all mistrust does for Him and His Successors perpetually Confirm all Erections Confirmations Patronages of the saids whole Benefices and promises in verbo principis never to quarrel the same But what was done afterwards being voluntar and upon the submission of all parties concern'd did not at all impinge upon the former Statute It is likewise declar'd in the end of this Act that the possession of any thing hereby Revocked shall not prejudge His Majesty and therefore it may be urg'd that fourty years possession of any Lands or others falling under this Revocation would not debar the King by Prescription and yet it was found That if the King be Denuded in favours of a Donatar This Revocation does not interrupt Prescription without a Reduction THis Act is wrong plac'd for it should be after the 14 Act for the Superiorities of Kirk-lands being by the said 14 Act Declared to belong to the King The saids Superiorities are by this Act annex'd to the Crown but they could not have been annex'd to the Crown till they were first declar'd to belong to it THere is here a Dissolution of the Annexation made in the former Act in which it is Declared That this Dissolution shall not warrand the Alienation of His Majesties Castles Woods Parks Meadows and Offices which is conform to the 235 Act Par. 15 Ja. 6. Whereby all Dispositions of these are declar'd null and though the Lomonts of Falkland be Dissolv'd particularly by the 19 Act Par. 18 Ja. 6. Yet it is Declar'd particularly in this Act that they shall remain inseparably with the Crown BEcause by the Act of Prescription 1617. It is appointed that such as might be prejudg'd by that Prescription of fourty years run before that Act 1617. might intent Actions within thirteen years after the Date of that Act and because the King could not intent particular Summons against every person whose Rights he might challenge Therefore it is allow'd by this Act that His Majesty might interrupt the said Prescription by open Proclamation at the Mercat Cross of Edinburgh and other particular Mercat Crosses where the Lands lye and at the Mercat Cross of Edinburgh Peer and Shore of Leith against such as are out of the Kingdom But least this interruption might have too much alarm'd the Subjects It is upon the Kings own Concession declar'd that the said interruption should be Restricâ—'d to the annulling of Rights of the annext Property of the Crown and the un-annex'd whereof account hath been made in the Exchequer and of the principality unlawfully Dispon'd by His Majesties Predecessors against the Laws and Acts then standing and to the annulling of Erections and other Dispositions of whatsoever Lands Tiends Patronages and Benefices formerly belonging to the Kirk and since annex'd to the Crown and of any other Lands or Patronages which should any way justly belong to the Kirk or Crown and of whatsoever Lands and Benefices mortifi'd and devouted to pious Uses and of Regalities and Heretable Offices and of the change of holdings from the ancient holding of Ward and Relief to blench and Taxt Ward since the year of God 1540. years The Earl of Southesk having Right to the Muire of Montromant as Heretable Forrester intented a Declarator against the adjacent Heretors concluding that they should be debar'd from Pasturing therein Against which it being alleadg'd 1. That they had prescriv'd the right of Pasturage It was Reply'd that the Prescription was interrupted by this Act. To which it being Duply'd that this edictal Interruption was introduc'd without a Warrant the Act 1617. having allow'd thirteen years for the Subjects to interrupt without any Reservation in favours of the King 2. This is neither His Majesties annext Property nor is it a part of that un-annext Property whereof the Ferms or Feu-duties have been counted for in Exchequer since the year 1455. and so the interruption which is restricted to these reaches not to this case 3. This Pasturage is but a Servitude and this Interruption extends only to Alienations but not to Servitudes or things of so small moment To which it was Triply'd that as to the first there was no necessity that there should have been a Reservation in favours of the King by the Act 1617. since the King not being mention'd in the Act which was the Rule There was no necessity to reserve His Right by way of exception but this Act of Parliament has supply'd that want though there had been an omission in that Act. To the second it was Triply'd That the interruption 1633. being to secure His Majesty against Prescriptions upon the Act 1617. It was just that it should extend as far as the Act 1617. And these words Whereof the Ferms have been Compted for in Exchequer are only Demonstrative and not Taxative the compting in Exchequer being only a publick Evidence of His Majesties Right and therefore where there were other publick Evidences of His Majesties Right as strong as this His Majesties interruption by this Act behov'd to take place else it should not extend to secure His Majesty as to any thing for which there were blench or Ward-holdings This Act mentioning only Feu-ferms it should not extend to His Majesties Castles or other things for which he gets no advantage 3. This has been compted for in so far as the Sheriff compts for the Blench-duties and Southesk payes Blench-duties for his Forrest 4. By an Act of Parliament in King Davids time 1357. and another 1367. All the Kings Forrestries are ordain'd not to be Dispon'd without consent of Parliament and so are to be lookt upon as a part of the annext Property To the third it was Duply'd That this Act as the Act 1617. was to be extended to Prescriptions and there were things of less consequence than Servitudes secur'd against by this Act such as change of holdings Patronages c. This case is not decided The reason why this Act restricts it self in this Clause to the year 1455. is because in that year was the first Act for annexing any Property to the Crown viz. The 41 Act Par. 11 Ja. 2. It being alleadg'd upon this Act that the King behov'd to produce the Letters of Publication at the several Mercat Crosses and the Executions thereof else His Majesty could not have the benefite of the Interruption It was answered That the Act of Sederunt of the Session did indeed appoint Letters of Publication but two years after that Act this Act of Parliament was made allowing the King this Interruption wherein the Parliament did certainly consider the Publication as having preceeded statuit lex hoc casu super praesumpto and so the Letters of Publication and Extentions need not now be produc'd Which Answer the Lords found Relevant
November 1682. Sir William Ker contra Grubet and others Interruption being thus made by the King does last for fourty years so that no Prescription can run against the King till fourty years after the date of this Act and that though the Executions and publication required by this Act of Parliament cannot be found for every particular Shire It may be likewise doubted whether Prescription should run against the King whilst he was out of the Countrey For which vid. observ on the Act of Prescription 1617. BY this Act the Parliament Rescinds all Rights of Regality made by King Charles King James or Queen Mary belonging to Abbots Priors or any Benefic'd person reserving alwise to the Heretable Baillies and Stewarts of the saids Regalities and Stewartries their Rights granted to them prior to the saids Erections for ordinarly even when these Regalities were in Benefic'd persons own hands they made Heretable Baillies but I confess I understand not what is mean'd by the Stewart of a Regality for Stewartries and Regalities are distinct and inconsistent Jurisdictions a Stewart being a Judge in the Kings Property only having the same power that a Lord of Regality has of the Lands Erected in the Regality holding of himself and the Lands holding of him But this Act has in this follow'd the words of the Act of Annexation 1587. By the Act of Annexation 1587. Act 29. All Regalities belonging to Arch-bishops and Bishops were thereby Annex'd because their whole Lands and Temporalities were then Annex'd but being restor'd in anno 1606. their Regalities are hereby reserv'd to them UPon the Submission and Surrender made by the Lords of Erection and other Titulars it is condescended to by this Act That His Majesty shall remain not only Superiour to the Lords of Erection but even to all the Vassals who held formerly of any Abbacy Priory or other Benefice Erected and therefore by vertue of this Act they may hold of the King if they please but according to an express condition in the surrender it self there is by this Act reserv'd to the Lords and Titulars of Erection who subscrived this Surrender the Feu-mails and Feu-ferms due by their Vassals ay and till the King pay to the saids Lords and Titulars of Erection a thousand merks for ilk Chalder or an hundreth merks of Feu-duty payable to them for there is nothing allow'd to them for the Service of Tennents Though the Lords of Erection did not expresly reserve to themselves the Casualities that might fall to them by their Vassals during the not Redemption for they reserv'd only their Feu-mails and Feu-ferms since inclusio unâ—us seems to be exclusio alterius and the Superiority being by this Act declar'd to belong to the King the Casuality should follow the Superiority yet by a Decision the 24 of July 1632. The Lords found that the Lords and Titulars of Erection had Right to the Casualities of these Superiorities ay and till they be Redeem'd but by the 30 Act Par. 1 Ch. 2. It is declared That the Feuars shall be bound to make payment of their Feu-ferms and Duties contained in their Infestments to the Lords of Erection ay and till they be Redeemed but it is not clear whether Escheat and Non-entry will belong to the King or Feuars except it be comprehended under the general word Duties Though the Feu-mails and Feu-ferms be reserv'd to such Lords and Titulars of Erection as subscriv'd the Surrender so that it may seem necessary to prove that these who seek Feu-duties did subscrive or else that these should belong to the King yet because the Surrender cannot be found the Lords found it sufficient that the Titular acknowledg'd the Kings Right conform to this Act But they found that they had not Right to the Arrages and Carrages of these Kirk-lands because by this Act all the Rents and Duties are Declar'd to belong to the King and the Reservation in favours of the Superiour is only of Feu-duties if they found no abatement of the Feu-duty in respect of Vastations since the Feu-duties were small and the Feuar might have gain'd by prior and subsequent years June 27. 1662. Watson contra Elleis Because the Superiorities of these Kirk-lands is by Act declar'd to belong to the King therefore the Lords of Erection cannot pursue a Reduction of these Feus nor is the concourse of His Majesties Advocat sufficient except there be an express Warrand under the Kings Hand for that effect Albeit it be uncontroverted by this Act that the King has no right to the Feu-mails and Feu-ferms due by the Vassals of Erection until he redeem the same as said is yet it may be doubted whether the King has Right to the Feu-mails and Feu-ferms of the Lands which pertain'd in property to the Lords of Erection before the said Surrender and which were mentioned in the old Infestments before the date of the Erection and that without paying for the saids Feu-ferms and redeeming them as said is as he is oblig'd to do in the case of the Feu-ferms due by the Vassals of Erection and it may be urg'd for the Lords of Erection that the King has not right to the Feu-ferms of their proper Lands except he Redeem them And that because 1. The Act of Parliament is relative to the Submission made by the Lords of Erection whereupon the Act proceeds but so it is that by the Submission they resign the Superiorities reserving only to themselves the Feu-duties till they receive satisfaction but it is expresly provided that under this Resignation their proper Lands should not be comprehended but that they should hold the same of His Majesty as the same was holden before the date of the Erection and so the meaning is that though they should hold the same in Feu yet they should not be oblig'd to pay the Feu-duties till they receive satisfaction 2. It were absurd that the Lords of Erection should not quite the Feu-duties of their Vassals till they receiv'd satisfaction and yet they should be oblig'd to quite the Feu-duties of their own proportion in which they had far more interest than in the Lands of their Vassals without any satisfaction 3. Custom is the best Interpreter of Law and by the general Custom of the Nation the Lords of Erection have never counted for the Feu-duties of their proper Lands 4. There being a Reservation made in the first part of the Act of the Feu-duties only in case of payment The Reservation in the second part of the Act must in Annalogie of Law be constructed to be burden'd with the same quality except the contrary were expresly declar'd in the Act. but on the other side it may be more strongly urg'd for the King that he has Right to the Feu-ferms of these their proper Lands immediatly without any satisfaction and that for these reasons 1. Because by the Act of Parliament they are expresly to hold their proper Lands of the King and to pay him the Feu-duties mentioned in
the old Infestments without any Clause obliging the King to make satisfaction Ergo The King is not oblig'd 2. The Parliament having had that Reservation of making satisfaction under their view in the case of the Vassals they had certainly renew'd it in the immediat subsequent case of the property if they had not expresly design'd the contrary 3. By the Charters granted under the Great Seal to the saids Lords of Erection since the Surrender and this Act of Parliament they are expresly by different reddendo's made lyable both to the general blench Duty due for the whole Lands of the Erection both Property and Superiority and for the Feu-dutie of their own proper Lands Ergo This Feu-duty of their proper Lands is due by their Charter which is a Feudal Contract and that without any Reservation of payment 4. The blench-duty of the Erection and this Feu-duty is due upon different accounts Ergo The payment of the Blench-duty is not sufficient for the Blench-duty is due by the Lords of Erection for the interest that they have in the Vassals Lands and for the Tiends and for the property that was Feu'd the time of the Erection Whereas this Feu-duty is due only for their own proper Lands Feu'd out before the Erection And to the contrary Objections it may be answered That Acts of Parliament are not to be extended de casu in casum especially in such favourable Cases as this which tends most ungrately to take from the King a part of that which himself gave freely 2. There was very good Reason why they should be lyable to pay the Feu-duties of their proper Lands without any satisfaction because the King having rais'd a Reduction of all the saids Erections The Lords of Erection did Redeem themselves from the hazard of this Plea by this surrender and the reason why the quality of satisfaction was adjected as to the Vassals and not as to the property was because the Lords of Erection had no interest in their Vassals Lands but the Feu-duties and so it was fit they should get a satisfaction for these though the satisfaction was made easie for the King But as to their proper Lands it was just because of the great advantage they had by them and that they were by this Act secur'd in the property of them It was just that the King should get the Feu-duties without any acknowledgement and without this the King had got nothing for securing them when he might have with Success quarrell'd their Rights And the pretence of the Vassals not having pay'd these Feu-duties for their proper Lands formerly is of no import since the negligence of the Kings Officers cannot prejudge him and the Times were Rebellious since the year 1633. Nor is this true though it were Relevant for the Earls of Roxburgh and others have pay'd Because these Arguments and Difficulties gave some Colour to the Lords of Erection to think that they were not lyable therefore they us'd to get ease as to bygones but they are made lyable still for the future in the payment of these Feu-duties The Superiorities belonging to Bishops and their Chapters is reserv'd to secure them against the Annexation 1597. and their Superiorities are likewise reserv'd from the Annexation mention'd in the tenth Act of this Parliament Some think it fit for His Majesties Interest that these Superiorities should be Redeem'd for he might thereby have a great and sure Revenue and a great dependence of Vassals and it seems also fit for the interest of the poor Vassals HIs Majesty having oblig'd so far the Heretors as to get them the leading of their own Teinds It was thought fit by this Act to give him some small interest in the Teinds viz. Out of every Teind-boll of the best Wheat ten shilling of the best Tiend-bear eight shilling of the Teind-meal Oats Pease and Ry six shilling and where the Oats will not render half Meal three shilling Where the Victual was of inferiour goodness power is granted to the Commissioners to modifie accordingly and in order thereto they did proportion the price on the several Shires which stands as a rule in the payment of Annuity to this day Though it be said in this Act that the Annuities shall be pay'd out of all Teinds except the Teinds pay'd to Bishops Ministers Colledges Hospitals and other pious uses yet it was thought January 3 1632. Renton contra Ker. Though there was no formal Decision that decimae inclusae are lyable in payment of no Annuity for they did not belong to the Titular nor needed the Heretor buy them in contemplation of which Liberty this Annuity is granted and in effect they are likewise lookt upon as incorporat with the Stock and participating of its Nature This Annuity was found to be made debitum fundi by this Act of Parliament and so to oblige all singular Successors because the Act says generally that the King shall have Right to all the Annuity bypast and to come though it be not expresly declared that singular Successors shall be obliged as our Law ordinarly uses to do when it resolves to make any thing debitum fundi It is Declar'd by this Act That Annuity shall not be annex'd to the Crown whereby the Crown got a great prejudice since thereby the King would have oblig'd every man to a Dependance upon him whereas Commissions having been granted to sell to every man his own Annuity the King made no advantage thereby THis Act is formerly Explain'd in Act 71 Par. 14 Ja. 2. BY this Act it is Declar'd That every man shall have the leading of his own Teind the Teinds being first valued and all Teinds in Scotland may be valu'd except 1. Where the Lands are Feu'd cumdecimis inclusis and Confirm'd before the year 1589. as was found January 21. 1631 2. Teinds belonging to Ecclesiastick Persons and whereof they were in possession the time of the Submission as is clear by the foresaid Determination upon their Submission conform to which by the 9 Act 2 Sess. 1 Par. Ch. 2. All Valuations led against the Bishops or Benefic'd Persons being Ministers since the year 1637. of any Teinds Parsonage and Viccarage wherein they were in possession by Leading or drawing of Rental-bolls are declar'd null but by a Letter the 13. of May 1634. It is declar'd that where such Teinds are set by Bishops or Benefic'd persons to Tacks-men that eo casu the Heretors shall have the buying of their own Teinds but prejudice to the Bishop c. to enjoy the same after expiration of the Tacks as they were accustomed the benefic'd persons always having the prerogative of buying if he pleas'd and this to be extended to the Heretors and Tacks-man of the Teinds of Laick-patrons And conform to this the Lords of the Commission decided February 1679. Hamilton contra Earl of Roxburgh though it was there alleadg'd that this would prejudge Church-men since it would discourage Laicks to take Tacks from them
THis Act Discharges the Custom of two and a half per cent and all raising of His Majesties Customs directly or indirectly without consent of Parliament and so though by the 27 Act of the 3 Sess. of this Parliament asserting His Majesties Royal Prerogative in the Ordering of Trade with Forraigners It seems that His Majesty may lay what Restraints and Impositions He pleases upon Forraign Imported Commodities and as He pleases yet it seems the Customs by this Act cannot be rais'd for though that Act be posteriour yet this is special and is not particularly abrogated albeit by that Act all Acts and Statutes contrary to that Act are abrogated By this Act likewise His Majesty Discharges the taking Masters Merchants and Mariners Oaths in the matters of Customs but since their Oaths are taken in the matters of Excise this priviledge signifies nothing Vide Observations on the Act 12 Par. 2. Ch. 2. THis Act is Explain'd in the Observations upon the 18 Act Par. 1. Ch. 1. THis Act allows any of His Majesties ordinary Officers to whose Charge the same belongs to Docquet signatures and by ordinary Officers I think are only mean'd Officers of State and this was formerly Established by the 20 Act Par. 10. Ja. 6. But by this Act is added That these who do Docquet shall send a double of the Docquet to the Secretary to be Registrated But yet the Deed is not annull'd though this be omitted and therefore the Deed I think would subsist but the Omitters would be punish'd The Reason why a double is to be Registrated is because by this His Majesty may know what is formerly granted which will prevent double Gifts of the same thing THis Act is formerly Explain'd in the former Commissions for Plantation of Kirks viz. Ja. 6 P. 22 Act 3 Ch. 1 P. 1 Acts 8 19. THis Act for the most part is but Temporary and was made to give some ease to the poor Debitor whose Lands had been so wasted and burdened in the late Rebellion that he could neither pay Annualrent nor Redeem Comprisings or Wodsets as formerly being founded upon the same Reason by which the novae tabula were Introduced in Rome by Julius Caesar after the Civil Wars betwixt Pompey and him But the chief things observable in it are first That the Legal Reversion of all Comprisings to be led or that were led since January 1652. whereof the Legals are Expired and all Comprisings whereof the Legals were not expired before that Moneth shall endure for ten years and though it might have been pretended that this Act does not prorogat the Reversion but only makes the Lands to be Redeemable and so the Rents of the last three years above the seven which was the ordinary Legal was not to be Restored but that the Compriser had Right to them as fructus bona fide percepti consumpti Yet the Lords found that the Compriser was countable for his Intromission even for these three years since in effect these three years are added to the Reversion and so the Compryser is lyable for these three years as he would have been for the other seven January 20. 1666. Clapperton contra Torsonce Albeit by our former Law the Compriser could have possess'd the whole â—ents of the Comprised Lands during the Legal Yet in respect the Rents do often exceed very far the Annualrents Therefore by this Law allowance is given to the Lords of Session to Restrict the Compriser to such part of the Land as will pay him the annualrent of his Sum and Expense The Debitor from whom the Lands were Comprised Ratifying the Apprysers Possession of the rest but it is still to be remembred that after the Legal is expired the Compryser has undoubted Right and cannot be limited Upon this Clause of the Act the Lords upon the 27 of June 1662. Restricted Wilson who had Comprised Sir William Murays Estate to medle with any part of the Estate Comprys'd that he pleas'd esseâ—ring to eight per cent he counting for the superplus above this annualrent and for the publick burdens but thereafter in February 1684. in a case betwixt Wilson and Sir Alexander Hume It was contended that this Clause was a part of the Temporary Regulation past in favours only of such Debitors as had taken the benefit of this Act by payment of their annualrents and was only ill plac'd here amongst the Clauses relating in general to Comprysings for it was against the whole current of our Laws that during the Legal the Creditor who was forc'd to want his Money should be forc'd during the long legal of ten years to accept of naked annualrent especially seing oft-times they got Land at last that they could not nor car'd not for the Possession of it Nor would this ever spur and excite Creditors to pay the sums Comprys'd for and this was a very universal prejudice most part of Rights being now founded on Comprysings and the Practique being single and not upon Debate was not to be respected To which it was answered That the Clause was oppon'd and it was dangerous to alleadge that Clauses were Transplac'd by mistake nor could any thing Gloss a Law better than a Decision past so Recently after the Act made at the making of which Decision many eminent persons were present who had been the very Penners of the Act and the Restriction was most reasonable for since great Estates were to be carry'd away by Comprisings for small sums it wast just that till the Comprising expir'd the poor Debitor should be favour'd Nor was the Creditor a loser since a Comprysing being a legal Pledge only for his Money he got the Annualrent duly pay'd him and a Ratification of his Possession even during the Legal and if his Money was not pay'd cum omni causa with annualrent for his very Expense he got the whole Land though the sum were never so small upon which Debate the Lordâ— adher'd to the former Decision though it seems very strange to the best Lawyers The Lords likewise found upon the 28 of July 1671. That this Power granted to them was only in favours of the Debitor from whom the Lands were Comprysed and could not be extended in favours of posteriour Comprysers who could not upon this Clause crave that the first Compryser should be restricted to his Annualrent for the priviledge is granted to the first Compryser in contemplation of his being oblig'd to Ratifie Nor are the second Comprysers prejudged by the first Comprysers Possession since it will extinguish his Comprysing pro tanto and make way for them By this Act also all Comprysings led since the first of January 1652. before the first effectual Compryser or after but within year and day of the same shall come in pari passu as if one Comprysing had been led for all the Sums Upon which Clause it is observable 1. That Comprysings led since 1652. come not in with Comprysings led before that year though
compleating Dispositions and Rights made by the Party where the Granter refuses to compleat the Right himself in that case such Adjudications come not in pari passu upon this Clause July 16 1675. Campbel of Riddoch contra Stuart December 2. 1676. Lady Frazer contra Creditors of the Lord Frazer BY this Act also it is Declared That if the appearand Heir or any person to his behove shall buy in any expyred Comprysings the said Comprysings shall be Redeemable by posterior Comprisers from the appearand Heir or his Confident for payment of the true sums pay'd out by them and that within ten years after the said Right was acquired Observ. 1. That though this be a correctory Law and so ought not to be extended Yet it is so favourable that the Lords extended the same to Rights bought in by Eldest Sons whilst their Father lives though the eldest Son cannot be properly call'd in that case an appearand Heir since an appearand Heir is only he who can succeed in haereditatem jacenâ—em but the Lords would not extend it to the Right of an Apprising bought by the Husband where his Wife was appearand Heir For though the Lords found this reasonable yet they found the Act to be stricti juris and so would not extend it to this Case except it could be alleadged that the sums were truly pay'd for the Wifes behove and the Lands provided to her Heirs and some doubt whether Comprisings bought in by the Tutors and Curators of appearand Heirs be Redeemable upon this Act and since their Pupils may oblige them to Dispone the saids Rights to them though the Comprisings were bought in in the Tutors and Curators own name if they had as much of the Pupils means in their hands It seems that by the same Reason the Pupils Creditors who Comprise omne jus that was standing in their person should have the same priviledge Observ. 2. Though this Clause runs only in favours of Apprysers from which it may seem that they are only allow'd to Redeem Yet the Lords Decided January 9. 1677. Hay contra Gregory That a Creditor having an Infeftment of Annualrent might Redeem from a Compryser who excluded him and it seems by that Decision that any Creditor may have this Benefit as well as Comprisers since they may Comprise Nor are the strict words of the Act to be considered for else Adjudgers could not Redeem since they are not nam'd in the Act. By this Act also not only the Apprising is Redeemable but even Bonds granted for the Sum thereafter Comprised for are null if the Apprising be satisfi'd as said is so that appearand Heirs cannot make use of the Bond or Inhibition upon it and though a Disposition was bought in by the appearand Heir before the Act of Parliament yet if the Infeftment was taken after the Act the Comprising was found Redeemable by the Act for it is the Infestment and not the Disposition which gives the Right because if a third party had been first Infest he had been preferr'd to the appearand Heir notwithstanding of this Disposition July 21. 1671. Maxwel contra Maxwel In which case it was also found that thogh the Act bears that expired Comprisings bought in by the appearand Heir should be redeemable Yet if the appearand Heir buy in a Comprising in cursu the same will be Redeemable if it expire whilst he had Right to it so that upon the whole matter it is observable that even Correctory Laws with us are to be extended in favourable cases so far as to make them answer the Design of the Legislator which is to help the ill that was to be Corrected Observ. 3. That this Priviledge is allowed to the second Compriser not only by way of Order of Redemption but even by raising an ordinary Action so that if he raise that Action within ten years the Lords will find the same sufficient providing he has rais'd a Declarator concluding Compt and Reckoning within the ten years which the Lords will sustain by way of Reply being propon'd upon incidenter in the ordinary action for payment June 26. 1677. Kincaid contra Laird Abergeldie Observ. 4. That these ten years run from the Infeftment taken by the appearand Heir or some other publick Deed as Decreets c. Done upon the Right so bought in else the appearand Heir might keep his Rights latent for ten years and consequently the Creditors could not Redeem because they could not know them It is fit to know that by our Law Wodsets are either proper or improper A proper Wodset is where Lands being impignorated for a sum the Rents of the Land are accepted in satisfaction of the Annualrents of the Money and that without any Restriction upon either side and as to these Wodsets it is by this Act ordain'd that the Wodsetter shall be oblig'd upon offer of sufficient surety by the Lender either to quite his Possession or Restrict himself in his Possession to his Annualrent counting for the superplus But this Act innovating the privat Paction of Parties was found only to oblige the Wodsetter to be countable from the Date of the Offer of Surety and not from the Date of the Act of Parliament February 21. 1666 Lord Borthwick contra his Wodsetters But in this Computation the Wodsetter is to get Defalcation of what he hath depursed upon Reparations or hath lost by Quarterings or any other manner of way Improper Wodsets are these whereby it is expresly Declar'd That the Wodsetter shall not be lyable to any hazard of the Fruits Tennents Wars or Troubles so that the Wodsetter is to have Re-payment of these by and attour the Rents of the Lands which are Declared to be Usurary in time coming and the Wodsetter in all such Wodsets taken since the year 1649. is obliged to count for the superplus more than pays his Annualrent and to impute the same pro tanto in payment of his principal Sum. NOta This Act of Adjournment is the first that I find in all the present Impression of the Acts of Parliament For Parliaments were of old Dissolv'd but now they are ordinarly Adjourned and the Act of Adjournment is neither touched with the Scepter because it is an Act of the Kings and He needs not touch His own Acts nor is it Read in Parliament because by the very Adjournment the Parliament is dissolv'd and it being no more a Judicature nothing can be Read in it But by the 12 Par. Ja. 1. By the black Acts I find that de mandato domini Regis Parliamentum suit continuatum usque ad sestum beati Joannis Babtistae sub praemonitione 15. dierum Whereas though our Adjournments bear now no dayes upon which Premonition is to be made yet when the King Adjourns Parliaments by Proclamations beyond the days to which it was Adjourned by Act of Parliament He uses to Adjourn them upon the Premonition of fourty dayes and fifteen was too short It was doubted whether if the Day to which the
Parliament was Adjourned by Proclamation was elapsed a new Parliament behoved to be called Or if the current Parliament ought to be Adjourned by a new Proclamation notwithstanding the Day was elaps'd and it was found that it might be Adjourned since the power of Calling and Dissolving Parliaments is the Kings Prerogative and a Letter to this purpose from the King is Registrated in the Council Books in July 1683. King CHARLES 2. Parliament 1. Session 2. EPiscopacy having been Restor'd in anno 1606. Bishops were by the Rebellious Parliaments abolish'd and therefore are by this Act Restor'd to their undoubted Priviledge in Parliament that is to say to be a third Estate their Function Dignities and Estates but before this Act of Parliament the Secret Council by their Act in June 1662. Discharg'd any Person to meddle with their Estates or Revenues in Obedience to a Letter directed by His Majesty which gave the first rise both to that Act of Council and this Act of Parliament By the first Act Par. 12. Ja. 6. King James had permitted the Church to be Govern'd by General-assemblies Synods and Presbytries Which Act was not expresly abrogated by the 2 Act Par. 18. Ja. 6. and therefore it is by this Act expresly abrogated They are also Restor'd to their Commissariots and Quots of Testaments but the present Commissars Rights are reserv'd and albeit they be Restored to the Superiorities Yet Vassals having Entered by or having pay'd to the Superiors for the Interval are secur'd BY this Act taking up Arms though in Defence of Religion is Declar'd Treason and conform to this Clause all going to Field-conventicles in Arms was Declar'd Treasonable though it was alleadg'd that this was not a Rising in Arms since every man went without knowing of his Neighbour for the Council and Justices thought that at this rate a multitude of Arm'd men might easily assemble and the Levying War or taking up Arms being impersonally Discharg'd it reaches every single man and though there were only one single man in Arms yet he would be guilty of Treason especially after that Proclamation for he knew not but others might be there versabatur in illicito By this Act also all accession to the Suspending His Majesty or His Successors or to the Restraining their Persons or inviting Forraigners to Invade their Dominions is declar'd Treason There is one Branch of this Clause which may seem hard but was necessary viz. Or put limitations upon their due Obedience for the former age and this having invented new Treasons in asserting they would own the King in as far as He would keep the Covenant or own Jesus Christ But reserving still to themselves to judge how far the King did so they did by a necessary consequence conclude that they were no further oblig'd than they pleas'd and so made themselves in effect Judges above the King than both which nothing can be more Treasonable And I remember that Sir Francis Bacon in his History of King Henry 7. Tells us That the Judges of England found Sir Robert Clifford guilty of Treason because he said that if he knew Perkin Werbeck were King Edward 's Son he would never bear Arms against him though the Words were alleadg'd to be only conditional for they thought it a dangerous thing to admit ands and ifs to qualifie words of Treason whereby any man might express his malice and blanch his danger The denying His Majesties Supremacy as it was then Established is declar'd punishable by in-capacity and such other punishment as is thereto due by Law But it had been fitter to Determine that punishment and from the words as it is now Establisht It may be doubted whether the Impugning the Supremacy absolutely be punishable by this Act since the Supremacy is extended by a posterior Act viz. The 1 Act 2 Par. Ch. 2. But that Act being only an Explication of this all such as Impugn the Kings Supremacy absolutely are punishable From these words also That they shall be punishable by such other pains as are due by Law in such cases It may be doubted what punishment is due to such as Impugn the Kings Supremacy besides incapacity and it seems they may be pannal'd upon the 129 and 130 Acts 8 Par. Ja. 6. It has been urg'd That all speaking against the Kings Prerogative is only punishable by incapacity and arbitrary punishments because this Clause sayes That if they Speak Print c. against the Kings Supremacy in Causes Ecclesiastick or to justifie any of the actings or practices abovementioned they shall be so punished But so it is that all rising in Arms to Depose the King c. are above-mentioned Ergo say they The speaking or Preaching in Defence of these is only to be so punished and they urge this from the Principles of Reason and the practice of other Nations and that excellent Law si quis imperatori maledixerit lib 9. tit 7. C. but this were a most absur'd Gloss For certainly if this Objection prov'd any thing it would prove that no words could infer Treason which is expresly contrary to the very Act whereby all these Positions are Declar'd Treason and consequently all words whatsoever which express these Positions are punishable as â—reason and it is fit to know that it is not that very formula or words which are condemn'd but these Positions are condemn'd for else it were easie to make the Act elusory and to evade it by using other words than the words here set down and the Analysis of that part of the Act is that first the Positions are Declar'd Treasonable 2. The speaking against the Kings Supremacy and the Ecclesiastical Government as now Establish'd c. is forbidden 3. The Plotting or Contriving any thing against the King consequentially to these Positions is Declar'd punishable by Forefaulture 4. That the speaking c. against the Supremacy and the Establish'd Government of the Church is to be punish'd arbitrarly and the words Or to justifie any of the Deeds declar'd againstly this present Act are to be restricted to words relative to the Supremacy c. mention'd in that Clause only It is also observable That the Impugning the Government by Bishops or the Kings Supremacy are only punishable if they be pursu'd within eight Moneths and Sentenc'd within four Moneths thereafter and are only punishable by this Act if it was done by malicious and advis'd Speaking and therefore it appears that such as were Drunk when they spoke these words are not punishable by this Act nor such as are reputed fatuus and Fools though they be not declared Idiots or Furious and yet it seems that all Writing Preaching and Prayers and such malicious Expressions to stir up the people to a dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastick are punishable indefinitly and that because either the Law presumes they are premeditated or because of the great danger arising therefrom and therefore it will have them punish'd as such
for the Act runs disjunctively Writing Preaching Praying or advis'd and malicious Speaking THis is the first Act whereby Conventicles are Discharg'd and in it they are call'd Nurseries of Sedition But yet there is no penal Sanction against them in this Act but by the 2 Act of the 3 Sess. of this Parliament they are Declar'd to be fineable in a fourth part of the yearly Rent every Burgess being to lose the priviledge of his Burges-ship and Merchandizing beside the payment of a fourth part of his Moveables Observ. 1. I see by this Act no Fine impos'd upon such as live within Burgh and are not Burgesses Observ. 2. By this Act it is requir'd That before with-drawers from publick Ordinances be punish'd they must be first admonisht by the Minister before two Witnesses which is not observ'd Observ. 3. The Council are empower'd by this Act to impose such arbitrary punishment as they please upon With-drawers But it is thought that such general powers cannot extend to Life nor Limb. Observ. 4. That these Acts are only to last for three years and are by the 5 Act of the 2 Sess. of the next Parliament continu'd for other three years and further if His Majesty pleases so that it is in His Majesties Power to Discharge these Acts when He pleases By the Laws of the twelve Tables privat and clandestine Meetings under pretext of Religion were Discharg'd and the word Conventiculâ— is oft mention'd in the Civil Law l. 1. 3. ff de collegiis illicitis Plin. lib. 10. Complains of them as the Pest of the Empire In these Words Haec tempora serio docent magna monstra talibus parentibus alii nec quicquam in tota re-publica magis esse perniâ—iosum vid. de crimine conventicula Farin quaest 113. inspect 4. There is a Proclamation extant in the Registers of Council in King James the sixths Reign Declaring all privat Convocations without the King's consent and particularly Conventicles which is the first time I see them nam'd in our Law to be punishable as Treason For collegia conventicula permittere valde quidem est regale Argen art 56. num 37. THis Act appoints the Declaration thereto subjoyn'd acknowledging the League and Covenant to have been unlawfully impos'd and not to have been Obligator c. To be taken by all persons in publick Trust or Office under His Majesty and which seems to be very strange all Members of the Colledge of Justice are declar'd to fall under this general and such as offer to exerce before they take the Declaration are Declared to be punishable as Vsurpers of His Majesties Authority and this punishment is de facto arbitrary and is impos'd by the Privy Council This Act is extended to Baillies of Regality by the second Act of the 3 Sess. of this Parliament and by a Decision of the Council both these Acts are extended to Baillies in Burghs of Barony though they be exprest in neither of these Acts and that because of these words in this Act and all who enjoy any other publick Charge Office or Trust within the Kingdom which is as all general Clauses ought to be extended to particulars that are of the same nature with these to which the general Clause is subjoyn'd and there was as great reason to extend this to Baillies of Burghs of Barony as to Baillies of Burghs of Regality By that Act also such as refuse to accept Offices within Burgh are punishable by losing their Burgesship and they may be also compell'd to accept though the Act mentions not this expresly for by the Common Law cives cogi possunt ad suscipiendum munera reipublicae l. ss de decurio But with us they cannot be oblig'd to continue longer than a year January 2. 1668. Wilson contra Magistrats of Queensferry Though this Act of Parliament obliges all who are Privy Counsellors c. to take the Oath of Allegiance and this Declaration Yet His Majesty by a Letter to the Council in November 1679. Declares that the lawful Sons and Brothers of the present King are oblig'd to take no Oathes because of their presumed Fidelity and that Loyalty is their Interest as well as Duty and upon this Ground it seems to be that His Royal Higâ—ness had not formerly taken these Oaths as Admiral We see likewise that both the Sons and Brothers of Kings are Serv'd not as Subjects but as the King Himself and though they be Dukes or Earls yet they take not place as other Subjects but as the Sons and Brothers of the Royal Family and thus the Sons of Kings were call'd adminicula augusti subsidia dominationis and in St. Matthew St. Peter affirms that the Sons of Kings are exempt from Tribâ—t nor are they in France ever Subjected to any corporal punishment or put to Death vid. Le Bret. Tit. des enfans freres du Roy leur Praerogatives And they are exempted by the Parliament 1681. from taking the Test. THis excellent Act does appoint all Sheriffs and Justices of Peace to assist such as are Robbed or Opprest in taking back their Goods immediatly upon intimation and to restore them within fifteen days or otherwise to be lyable but the word immediatly does restrict the Act so as that Sheriffs are not thereby empowered after a long interval to bring back Goods or make such Intimations or raise the people for concurrence and therefore the Gentlemen of Caithness were found lyable in a Spuilzie for Robbing and away taking an Heirship out of Strathnaver though they alleadg'd that they were Convocated and Commanded by the Earl Caithness so to do he being Sheriff and Justice General and they conceiv'd that they might have been punishable if they had disobey'd which Defence was Repell'd because though that Convocation was since this Act yet so long a time having interveen'd the Sheriff could only have proceeded via ordinaria It may be doubted from this Act whether when any man complains of Oppression as that a Robber or Neighbour sits violently down upon his Land The Sheriff and Countrey are not oblig'd to concur by this Act since the Act seems to be restricted to the way of taking of Goods though it speaks generally of oppression and I think they are lyable in the one case as well as in the other and this case being a permanent Act is more easily redress'd By this Act likewise the Heretors Wodsetters and Feuars within the Paroch where the Goods are found to have been Disposed or sparpelled are declar'd lyable for the value of the Goods but from the context of the Act it is clear that they are only lyable subsidiarly in case the Goods cannot be otherwise recover'd The words Wodsetters and Feuars needed not to have been subjoyn'd to Heretors for both these are Heretors But it seems to have been more necessary to have added Liferenters since it was just that men who are Liferenters should be lyable for a Father may put his Son who is minor
Act that the Militia is come in place of the old Weapon-showings and that there being 20000 Foot and 2000 Horse granted as a Militia by the 26 Act 3 Session of the first Parliament which does specifie the particular proportion of Horse and Foot to be given by every Shire It might have been thought that these proportions could not have been altered but by the Parliament and yet the King and Council having Converted the Foot of some Shires unto Horse seems to be founded upon the last Clause of the former Act whereby His Majesty is intreated to give Directions to His Privy Council for mannaging of that whole affair as His Majesty shall think fit which Acts of Council and the said alteration of the proportions are hereby Ratifi'd as having been Legal and in the last Clause of this Act His Majesties Subjects are Commanded to obey whatever Orders and Directions they shall receive from the Privy Council relating to the Militia and upon these Clauses was founded the overtures of the late Conversion of the said 22000 to 5000 augmenting the number of the days wherein the said 5000 are to serve according to what might have been exacted from the whole 22000 so that the 5000 are to meet the number of 176 dayes because the 22000 were oblig'd to meet fourty dayes though this last model was by some objected to be a standing Force and all Laws are stricti juris and to be fulfill'd in forma specisica but especially Taxations which are a Gratuity founded upon the free Offer of the people as this is to allow Conversions in such Cases would discourage the Subjects from future offers This Act likewise did Ratifie the Acts of Council which appointed the Shires to provide at their own Charge Colours Standarts Drums and Trumpets though that might seem an Imposition but these being necessars and the natural Consequents of the first Grant and the Parliament having granted to the Council the former power as said is these Acts of Council are therefore hereby approven as Legal Both this and the former Act doe ordain the Militia to be furnished with fourty Dayes Provision which was the old provision that was ordinarly to be made by such as came to the Host albeit sometimes twenty dayes provision be only appointed as in the 90 Act 13 Par. Ja. 3. And of late the Council has ordain'd this provision to be made in Money though it was contended that the Parliament having appointed only provision to be made it was in the power of the persons obliged to furnish their own men according to their conveniency But Money being thought fitter for expedite Marches the Council thought they were authorized by the former Clauses to make this Conversion and some have thought that by the same power the Council could ordain the Shires from whom no proportions of Militia was sought to advance free Quarter to such of the Militia as could not furnish themselves or at least might force them to be the first advancers in Cases of necessity This Act concerning the Militia is further clear'd by the first Act of the third Session of this Parliament appointing such as 〈…〉 serve either as Officers or Souldiers in the Militia to accept and to take the Oath of alleadgeance and that those who are set a-part for the Militia be not altered c. NOtwithstanding of all our former excellent Acts for securing singular Successors yet they were still un-secure because they could not know if the Vassal had Resigned his Feu ad remanentiam in his own Superiours hand for in that case there was no Seasin requisite which is the only Register whereby singular Successors know if Lands were formerly Dispon'd and therefore by this Act it is appointed that these Instruments of Resignation ad remanentiam which are equivalent to Seasins be Registrated in the Register of Seasins within sixty dayes which is the time appointed for Registrating of Seasins by the 16 Act Par. 22 Ja. 6. By this Act likewise as in that Act Instruments of Resignation of Lands holding Burgage are excepted but it seems that they must be Registrated within the Town-Court-Books within the same sixty dayes for the Act sayes only That such Instruments being Registrated there shall not fall within the Certification BY this Act it is Declared unlawful to poind Moveables upon Registrat Bonds or Decreets for personal debts till the parties be first Charged and the dayes of the Charge expire The reason of which Act was because Noblemen and persons of quality were oft-times poinded and so affronted and Merchants surprized and thereby Ruined before they knew that a Decreet was recovered against them or their Bond was Registrated But this Act was found not to extend to other Diligences ex paritate rationis this being an Act restrictive of former Laws and Customs From this Act are expresly excepted poindings used against Vassals for their Feu-duties But this Exception was very unnecessary and unproper for such poindings did not at all fall under the prohibition of the Statutory part of the Act which only prohibits the poinding Moveables for personal Debts Exception is likewise made of Decreets obtained by Heretors against their own Tennents in their own Courts only and therefore it has been doubted whether Tennents may be Remov'd and Ejected without a previous Charge and though upon Decreets before the Lords previous Charges are necessary Yet upon Decreets of Removing before inferiour Courts it is the Custom to eject immediatly and though this may seem hard yet it is necessary because the intrant Tennent must Remove immediatly and so must have a place to which he may remove sibi imputet the Tennent who being warned did not provide himself timeously IT is fit to observe from the Narrative of this Act that the Parliament thought the King and Council had power to emit Proclamations Commanding the Parochs to Protect and Defend their Ministers and to be lyable to such Fines as the Council should think fit besides the Ministers Reparation if the Offenders were not brought to condign punishment which shows what great power the King has in the like Cases and the Council are hereby authorized to proceed in taking such courses for the future which general power may go very far especially where these courses are otherwise satisfied by necessity This Act is more fully Explain'd in the observations upon the 27 Act Par. 11 Ja. 6. FRom this Act Discharging Suspensions against Bishops Ministers and other Benefic'd persons without Consignation It is observable from comparing the Narrative and Statutory part of the Act that Vniversities and Colledges are still accounted a part of the Clergy and have still the same priviledges with them SInce we find that the Parliament grants Acts for Naturalization of Strangers as is clear by this and by the 65 Act Par. 8 Q Mary It may be doubted if the King can Naturalize Strangers by a Deed of His for else those Acts were unnecessary and in
England though the King can grant a Charter of Denization which lasts only for Life and though it enables a man to Transact his Heritage to his Children Yet His Majesty cannot there Naturalize without Act of Parliament and it may be urg'd that since third parties who would otherwise succeed are prejudg'd by the Naturalization that therefore this cannot be done without an Act of Parliament especially if there be once jus quaesitum to any party But by the Civil Law the Prince could Naturalize l. 1 ff de jur aur annul Of old Strangers acquired only usum toga and at last were received inter cives l. 31. 32. ff de jur Fisci And with us Craig observes that bona immobilia nemini ablata memini ex eo quod extraneus esset And I find it decided that Strangers may succeed with us January 13. 1675. And that Strangers doing Diligence for their Debts may enjoy and affect Lands in Scotland seems more favourable for else there could be no Commerce for without this none would trust our Merchants or Countrey-men The Design of proving Trade by Naturalizing Strangers has been very ordinary for as Plinius Remarks nunc factum est ut gens altera alterius suppleret inopiam ut quodam modo quod genitum esset uspiam apud omnes natum esse videretur in France Lewis the 11. Did upon the same Design Naturalize those who Traded in the Hanseatick Towns TO encourage the Exportation of Commmodities the Bullion which was formerly payable by the Exporters by the 37 Act 1 Par. Ch. 2. Is by this Act imposed upon the Importers BY this Act all Arrestments on Registrated Bonds or Contracts or Decreets not pursu'd and insisted on within five years after the Date and all Arrestments upon Dependences shall prescrive if not insisted on within five years after Sentence so that there is here a new visible difference betwixt Arrestments on Dependences and Arrestments upon Decreets but upon the matter that comes to be the same For all Arrestments upon Dependences are likewise by this Act to prescrive within five years from the Sentence that is to say from the Decreet so that utrobique the prescription begins from the Decreet By this Act likewise Ministers Stipends Multures Bargains concerning Moveables and Sums of Money that are probable by Witnesses are after this Act declared only probable by Writ or Oath of party after five years and all actions upon Warnings SpuilÈies Ejections Arrestments or Ministers Stipends are to prescrive within ten years except they be Wakened every five years but prejudice alwise of any of the saids actions which by former Acts of Parliament are appointed to prescrive in a shorter time Which Exception is here added because of the Acts 81 82 and 83. Par. 6 Ja. 6. By which SpuilÈies Ejections and Removings did prescrive within three years Yet if any action was intented upon them it did not prescrive otherwise than in fourty years Therefore by this Act these Actions are Ordained to prescrive in ten years except the action be Wakened that is to say a new Summonds raised and executed for the raising of a Summonds is not sufficient in any case to stop Prescription vide Observations upon these Acts. It was sound Hamilton contra Herreis March 20. 1683. That this Act was not to be extended to the Teind-duties due to Bishops or other Titulars being only a Correctory Law and in the Case pursued by Sir William Purves contra It was Debated that a part of what was due to the Minister could not prescrive because it was Mortified Money and Mortifications are not appointed to prescrive by this Act But the Lords found that if a Mortification became a part of a Stipend they did prescrive by this Act though of their own nature they do not prescrive Holograph missive Letters and Holograph Bonds and Subscriptions in Compt Books without Witnesses not pursu'd on within twenty years are only to be proven by the Oath of the Subscriver so that if the Subscriver die these Debts die with him I remember the Parliament expresly refused to limit Bills of Exchange to this time though these be Holograph Papers because these beng the Vehicles and Supports of Trade betwixt us and Forraigners â—hat were to limit them by too narrow Statutes These Prescriptions are ordain'd not to run against minors and from this and the next Act it may be argu'd that Prescriptions regularly run against Minors except they be secured by a positive Statute BEcause Citations do interrupt the current of a Prescription therefore this Act does appoint that only Executions by Messengers shall interrupt which was done to Exclude Sheriffs In that part Messengers being persons of publick Trust and who find Caution But though this Act mentions only Messengers and that it is correctorie of a former Custom and consequently ought to be strictly Interpreted Yet Citations by Heraulds or Pursevants will Interrupt nam majori inest minus It was alleadged that this Act should extend to all Interruptions so that if an Interruption had been made in anno 1660. It should be renew'd after this Act for the Act says That all Interrupions shall be Renewed evrey seven years But it was found February 5 1680. Colstoun contra Barefoot That only such Interruptions should be renewed as were made since the Act of Parliament for the first part of the Act bears That all Interruptions as to Rights of Lands shall in all time hereafter be Executed by Messengers and the last part of the Act must be Interpreted according to the first and agrees with the general Nature of Laws quae futuris tantum dant formam negotiis Since this Act is only to extend to Interruptions concerning the Rights of Lands some have doubted whether it should extend to Heretable Bonds and Servitudes BY our former Law Explain'd in my crim prac tit Treason It appears clearly that no man could be forefaulted in absence except before the Parliament But this being thought a great incouragement to Rebellion the Justices did upon an advice from the Lords of the Session alter the Conclusion of Criminal Libels for Treason making the Certification to be that probation should be led against them and they should be Forefaulted as if they were present and therefore by this Act these Decreets of the Justices are Ratified and for the future It is Ordained that such as rise in Arms in open and manifest Rebellion against the King may be Forefaulted before the Justice Court So that this method can only be taken against such as are guilty of Perduellion but not in Statutory or other Treasons such as the raising a fray in the Kings Host drawing Treasonable Papers c. For these can yet only be forefaulted before the Parliament though they may be declared Rebels before the Justices and it has been doubted whether the hounding out to open Rebellions or the Resetting those who were at them be punishable by the Justices in absence
Proclamation in the years 1677. and 1680. By this Act Malt-men are likewise discharged to have a Deacon and least this Act should be eluded it is appointed That no Malt-man shall keep Correspondence nor meet upon any pretext whatsoever and therefore I conceive that such Towns as appoint that none shall brew except Gild-brothers and in meettings of the Gildry Treat of and settle the Prices of Malt Seed and Bear do thereby contraveen this Statute vid. Act 29 Par. 1 Ja. 6. THis Act having appointed That Sheriffs and others may conveen all Tennents and Cottars c. for Repairing High-ways and Bridges at any time betwixt Seed-time and Harvest and that being found too short a time It is therefore appointed by the 9 Act of the second Session of this Parliament that they may be called the same number of dayes in any Season of the Year Seed-time and Harvest excepted THis Act is Explain'd in the Observations upon the 41 Act Par. 1 Ch. 2. THis Act is Explain'd in the Observations upon the 7 Act Par. 23 Ja. 6. THis Act is Explain'd in the Observations upon the 6 Act Par. 20 Ja. 6. BY this Act the Shires of Ross Sutherland Caithness Argile and Inverness are Declared to be lyable in the double of the Excize and of the Taxation then current laid on by the Convention in case of their being Deficient against which Act it was alleadged at the passing thereof that this seem'd very unjust since as to both these one Shire could not be put in a different Condition from the rest in a common concern but that the legal way was to use stricter Execution against them and whatever might be done at the first laying on of an Imposition yet after it is laid on this seems hard for probably these Shires would not have Consented if they had foreseen any singularity nor did they consent to the Excize but upon equal Terms with other Shires and this was yet much harder because both these Taxations were voluntar Offers and consequently should not be otherwise exacted than in the Terms in which they were offered Likeas this would discourage any Shire for the Future to offer or consent to Taxations because they could not know but a prevailing party or the passion of some leading men might raise to the double what they consented to which Reasons were so convincing that this Act was never put in Execution nor do I think it could without a previous Declarator finding that these Shires had incurâ—ed the Duplication by failing to pay their Shares for otherwise His Majesties Collectors and Cash-keeper might exact the double when it was not incurred and we see that all other Irritancies even Imposed by the Parliament such as ob non solutum canonem require a previous Declarator and are purgeable at the Bar. King CHARLES 2. Parliament 2. Sess. 2. THis Act is Explained in the Observations upon the only Act of the Par. 17 Ja. 6. SOme Phanaticks having against the Laws and Customs of Nations Refused to Depone when they are call'd as Witnesses against those of their own Opinion It is Declared by this Act That such as refuse shall be banished and fined Qui testimonium dicere recusant paenalibus mandatis compelli possunt l. si quando auth seq C. de Testibus Vid. Ruland de Commiss part 2. lib. 2. c. 7. mortaliter peccant c. quisquis 11 quaest 3. cap. 1. X de Test cogend It may be Doubted whether such as refuse to Depone in matters of Treason may not be punished as concealers of Treason for this is in effect the worst kind of concealing for others may conceal because they fear want of Probation or upon other Designs without any malice but this still proceeds from Design and it seems that in all other Crimes he who refuses to Depone against a Delinquent is as guilty as he who Rescues him by force from the hand of Justice for the contempt of Authority is equally great in both and the prejudice arising to the Common-wealth is the same It is Declared by this Act That nothing that any man Depones against another shall operat against himself as to the loss of Life or member or Banishment which seems to be ill conceiv'd for nothing that a man Depons as a witness can operat against himself de jure as to any effect but it seems the Design of the Parliament has been that parties should be obliged to Depone upon Conventicles and Resetting off and Intercommuning with Rebels not only as Witnesses but as Parties and in the words immediatly before it is said that they should be forced to Depone in those things for the more speedy Execution of Justice But to take off all scruple in this the King by His Letter in anno 1674 allowed His Advocat to Declare that He did insist only ad paenam pâ—cuniariam arbitrariam and that thereupon they might be forced to Depone in these Cases but it being alleadged that this Declaration was not sufficient to force people to Depone Because 1. Resetting of Rebels imported Infamy because it was Treason nemo tenetur jurare in suam turpitudinem 2. No Declaration without a Remission past the Great Seal can secure a man in such Cases yet both these Defences were Repelled by the Privy Council in the case Kings Advocat contra Laird of Duntreath June 30. 1681. For as to the first It was answered That some Crimes did defame omni jure as Incest Adultery c. and in these a man could not be oblig'd to Depone against himself because the Kings Declaration could not take away the Stigma impressed by the Laws of God and Nature But in Crimes Introduc'd only by the Municipal Laws in favours of the King and His Government the Infamy may be taken away by the Declaration and where the Kings Advocat Declares he insists not in it as a Crime but as an irregular Transgression The Confession does not Defame because no Crime is acknowledged To the Second it was answered That there needed no Remission where the irregularity was not pursued by way of Crime Remissions being only of Crimes and there was nothing more ordinary than for His Majesties Advocat in all Courts to restrict his pursuits to arbitrary punishments as in the Cases of Mutilations Hamsucken c. SUch as assault the Lives of Ministers or Rob their Houses or actually attempt the same are to be punished with Death and Confiscation of Goods By actually attempting I understand not nudum conatum but what the Law calls actum proximum as the shooting a Pistol which misgave and this further Justifies the procedure against Mr. James Mitchel who shot actually at the Bishop of St. Andrews for though this Act was posterior to that Deed though not to the Process yet it shews what was the Thoughts of of our Parliament as to attempts and so was sufficient to inform Judges how to Explain the dubious word Invade or Pursue
us'd in the 4 Act Par. 16 Ja. 6. BY this Act the Fines appointed for House-Conventicles are for every Man and Woman having Land and Heretage Liferent or proper Wodset a fourth part of their valued yearly Rent each Tennent twenty five Pounds each Cottar twelve Pounds each Serving-man a fourth part of their Fee each Merchant or chief Trades-man to be Fin'd as a Tennent and each inferiour Trades-man as a Cottar if their Wives or Children be present at House-Conventicles they are to pay the half of the respective Fines and if themselves be present at Field-Conventicles they are to be Fin'd in the double of these Respective Fines so that though the Act do not specifie Wives and Children yet they are to be comprehended under the word others Field Conventicles are by this Act Declared to be Meetings where any shall without Licence or Authority Preach Expone Scripture or Pray in the Fields or in any House where there are more persons than the House contains so that some of them are without Doors which last alternative was added because some to shun the double avail Preached within a little House many thousands being without It has been doubted whether those who were within and knew not that any were without can be punished as a Field-Conventicle for though versabantur in re illicita yet it was such a res illicita as had a determined and different punishment and it were hard that where the punishment is Death as it is for the Minister Preaching at a Field-Conventicle that he could be overtaken where he could not know his Guilt It seems by this Act that if the House could hold more though some were known to be without Doors yet that Meeting could not be call'd a Field-Conventicle since the Act sayes or in any House where there be more persons than the House contains and the Reason inductive of the Act ceases in this case By this Act Magistrats of Burghs-Royal are Fineable at the Councils Pleasure for each Conventicle keeped within their Burgh but that which was thought somewhat severe by the Burrows was that they should have been Fin'd where they discovered the Conventicles themselves since in Law Diligence can only be requir'd in Magistrats and in Policy it seems that this would discourage Magistrats from doing Diligence to discover Nor is it sufficient that by this Act they have Relief from those who were present at the Conventicle since these oft-times are neither known nor able to Relieve The Master and Mistres of the House likewise where the Conventicle was kept are lyable to relieve the Magistrats upon which ground an Act of Council was made making the Heretor lyable for the Fines against which it was objected that the Parliament 〈◊〉 not the Heretor lyable but the Master which is the Lands-lord who because he is present may hinder the Keeping of Conventicles in his House which the innocent Heretor who may be very remotely absent cannot By this Act the Minister who Preaches at Field-Conventicles is punishable by Death but the Minister who keeps House-Conventicles cannot be so much as Fin'd for he is only ordain'd to find Caution not to do the like thereafter under the pain of five thousand Merks or to enact himself to go out of the Kingdom and not to return By this Act the half of the fines are declared to belong to Sheriffs Stewarts Lords of Regality and therefore by the 17 Act of the 3 Sess. Par. 2. They are ordained yearly to give an account of their Proceedings to His Majesties Privy Council under the pain of five hundred merks In which Act this Act is Explained as to some other points BY this Act such as offer their Children to be baptized by any but their own Ministers or by such as are authorized by the Council in absence of their own Minister upon a Certificat from their own Minister or in his absence from one of the Neighbouâ—ing Ministers are to be fin'd iâ— an Heretor in a fourth part of His valued Rent Every person above the degree of a Tennent having only a personal Estate in an hundred pounds Scots Every inferiour Merchant considerable Trades-man and every Tennent labouring Land in fifty pounds Scots Every meaner Burges Trades-man and Inhabitant within Burgh and every Cottar in twenty pounds Scots and every Servant in half a years Fee But because upon this Act these who would not conform did to shun these fines delay to Baptize their Children Therefore by the 11 Act Sess. 3 of this Parliament the same fines are Impos'd upon such as keep their Children unbaptized for thirty dayes THis Act is formerly Explain'd in the 1 Act Sess. 3 of the 1 Par. Ch. 2. But for further clearing thereof it may be observ'd that since by this Act Husbands are not made lyable for their fines as by the 5 Act of this Parliament It was urg'd that therefore they could not be fin'd for them since it was presumeable they were designedly left out here because tho a man may hinder his Wife to go to a Conventicle and therefore was justly punished by that for her going whereas no man can force his Wife to go to Church and therefore he was not to be punish'd for her in this Act it was also urg'd that Laws should not be extended de casu in casum where it was probable that the ommission was design'd and so tho Adjudications and Comprisings were equipollent Diligences by our Law yet it was found that an Adjudger was not lyable to pay a years Rent for his Entry as a Compryzer was because the Statute appointing the one had not exprest the other and therefore an express Statute was made for extending this to adjudications which is the 18 Act Par. 2. Ch. 2. and this extension was less favourable because it was a penal Statute and it was against the principles of Law that one person should be punished for another To which it was answered That the Parliament had refer'd the Regulation of Conventicles to the Council and had invested them for this end with their own full power to prevent the Cheats that might be invented and the dangers that might ensue 2. This being a matter of Government must be interpreted so as to preserve the Government and if Wives who were the half and the more humorous half of Scotland were allow'd to abstract all the other Remedies would be ridiculous and they would debauch their Children Tennents and Servants as well as influence their Husbands 3. In all other Cases they were lyable for their Wives for Conventicles by the said 5 Act for Popish withdrawing and Superstitions by the 104 Act 7 Pa. Ja. 6. For their VVives swearing and cursing by the 3 Act Pa. 1 Sess. 1 Ch. 2. In all which Acts the Parliament considered more the good of the Kingdom than the advantage of private parties and extensions are allow'd in favourable Cases and there is none more favourable than this especially since the VVomen
began the last Rebellion and since the Council has ordained Men to be lyable the Countrey was become much quieter 4. There being a communion of Goods betwixt Man and VVife it was just that the Husband should be lyable for his VVife and so he should pay her Debts whereof this withdrawing was one and if he offer her to the Magistrats and do not converse with her he is to be free and so he can only blame himself The Council having Transmitted thâ—se Reasons to the King His Majesty found that Husbands should be lyable for their Wives but Declared that Husbands who were loyal and would take the Oaths of Allegiance and Test should be favoured in the exacting of such Fines THis Act is Explain'd in the 23 Act Par. 1 Ch. 1. and 23 Act Par. 1 Ch. 2. And the exemption from Taxes here granted to the Senators of the Colledge of Justice is also allow'd to the Counsellours of the Empire Bocer de Regal c. 2. and to the Counsellours of France Papon l. 2. c. 11. and is extended in both these Kingdoms to their Widows arg l. 29. C. ad l. â—ul de adult vid. Jac. Benium privil Juriscon part 3. nâ—m 1. THis Act is Explain'd in the 16 Act Par. 2. Ch. 2. King CHARLES 2. Par. 2. Sess. 3. THis Act is Explain'd in Observations upon the 2 Act Par 2 Ch. 2. THis Act ordains that no Tutors or Curators to be named or designed to any Pupil Minor Idiot or furious person shall exercise their Office till they first make Inventar of the Pupils Writes Evidents Means or Estate with the consent of the nearest of Kin of the Fathers side and of the Mothers side in manner specifi'd in the Act and if the nearest of Kin refuse to concur for making Inventars they are to be summoned by the Tutor for that effect with certification that if they be absent the Tutor is to make an Inventar before the Judge ordinary to the end it might be known what the Tutor or Curator might be Charged with Observ. 1. That since the Act only says That no Tutor or Curator of any Pupil Minor Idiot or Furious-person shall Exercise It may be doubted whether a Curator bonis datus should be comprehended under this Act because he may fall under none of these Denominations though the Reason of the Law extend to him as for instance if a man should TailÈie his Estate to A. and failing of him to the second Son of B. which failing to the second Son of C. If A. died B. being alive but having no second Son the King might nominat a Tutor to mannage the Estate till it were known whether B. would have a second Son and therefore it had been clearer to have said in the Act That no Tutor nor Curator should Exercise c. Observ. 2. That the words no Tutor or Curator nam'd or design'd might have been better expressed by suppressing these words nam'd or design'd for that is not the proper words of Stile Observ. 3. That since the Act requires only the consent of the nearest of Kin of the Father and the Mothers side indefinitly This is found by Decisions to be so Interpreted as that two of the Fathers side and two of the Mothers side are only requisite conform to the 35 Act Par. 6 Queen M. And though Tutor Datives were formerly granted summarly by the King in Exchequer yet by this Act it is appointed That the Craver of such Gifts shall cite the nearest of Kin upon both sides that is to say two of each as has been also decided THis Act is formerly Explain'd in the 14 Act Par. 1 Sess. 3 Ch. 2. ALL Law having thought fit to use more Citations than one in matters of Importance By our Forms before this Act he who Raised a Summons caused Execute the same by any person he pleased who is call'd a Sheriff in that part after which he did get an Act of continuation from one of the Clerks and a second Summons both which were called Act and Letters and were Sign'd by the Clerk but because that was expensive and troublesome Therefore by this Act these Act and Letters are taken away and two citations upon the first Summons are declared to be sufficient as also because of old the Execution of Summons did only bear That the Messenger cited the parties within exprest without mentioning the particular parties therefore sometimes the Execution of another Summons at the same parties Instance was cast on upon a Summons which it may be was never Execute as for Instance if I had rais'd a summons of Reduction against B. and another against C. the Executions against B. would have been sufficient against C. though C. had never been Cited and so would have Interrupted a Prescription or would have produced any other effect against him which being alleadged in a Case of Rowallans It is by this Act appointed in times coming That all Executions of Summons shall bear expresly The Names and Designations of the parties pursuers and defenders and that it shall not be sufficient that the same do relate generally to the Summons otherwise the Execution shall not be sustained And though it was alleadg'd that this was only to hold in Cases of Prescription but in no other Case yet it was found to extend to all Citations indefinitly and therefore a Citation against Mr. James Alexander having no Designation but Husband to such a Woman and bearing only relation to the Letters within-written was not sustain'd but yet the Lords thereafter upon the helping the Execution allow'd the same the Messenger having abidden by the Execution IT is fit to know that there are three Seals in Scotland the Great-Seal Privy-Seal and Quarter-seal The Great-Seal is properly design'd to be appended to Heretable Rights and the Privy-Seal for Moveables and the Quarter-Seal is but the Testimonial of the Great-Seal and generally it is appended to Papers that are subservient to Heretable Rights such as Precepts of Seasin Presentations to Forefaultries c. The Chancellour keeps the Great-Seal The Lord Privy-Seal keeps the Privy-Seal and the Director of the Chancery keeps the Quarter-Seal for as the Quarter-Seal is but a Seal subservient to the Great-Seal so the Director of the Chancery is an Officeâ— depending upon the Chancellour The Servants of the Chancery and Privy-seal Office having been in use to give out the Papers that were to pass their Registers before they put them in a Minut-book so that such as desired to know what passed those Seals could not know the same therefore they are by this Act ordain'd to Registrat all Writs that pass their Office before they give them out and to make a Minut-Book Nota That in the Chancery-Chamber there are two kinds of Registers one of Parchment for Charters and such Heretable Rights and other two in Paper one for Temporary Rights such as Gifts Pensions c. In which likewise Adjudications and Comprisings are included
Judges inclined to think that these Regulations extend to Justice-airs as well as Justice-Courts as to all the Articles here exprest since Orders are given by the Parliament for regulating Justice in these Regulations which shew the Parliament design'd to extend them to both From these words in the ninth Article That the Chancellour of the Assize mark how every individual Assizer shall Vote whether he Condemns or AsseilÈies it clearly follows that no Assyzer in Criminals may be non liquet and if this were allow'd in one it might be in all because this was not necessary formerly Therefore by the 63 Act Par. 8. Ja. 3. It was ordain'd that when a Summons of Error was rais'd each Assizer was to set down who assoilÈed and who Condemned but because they might forget or for fear of punishment might be unfaithful in this Therefore this Act appoints That in the first Verdict it shall be marked who Condemned and who assoilÈed Albeit this Act appoints that the Chancellor shall mark whether every man assoilÈes or Condemns Yet it is thought the omission of this would not annul a Verdict in favours of the King that being only introduc'd in favours of the King to the end that His Majesties Advocat may be instructed whom to pursue in a Summons of Error when a party is wrongously assoilÈed By the 11 Article it is appointed That when any Summons of Exculpation is Executed against any party that at the same time the Names of the Witnesses and Inquest should be given to the end the party may know what to object against the Witnesses Upon which Article it was alleadged that when an Exculpation was rais'd against the King the Witnesses Names should be given to his Advocat likewise and which the Justices found to be necessary in March 1680. For the Act being general as to all and there being as great reason that the King should know those who are to be led against Him as any privat party He ought to have the same measure and whereas it was objected that it were a very severe thing that a poor Pannal might not lead any Witness even during the Debate though his Name had not been given in List yet this has no weight since the Act is so clear in general Terms as to all and it may seem as unreasonable that the King should not be allow'd to lead any Witness to prove a Crime if he find him in the Court the time of the Debate for the Pannal may much better know who can prove his Defence since he behov'd to know them if they were present than the Kings Advocat can know who were present when the Crime was committed and though there may be some inconvenience in this for one particular Pannal yet in the general there is great advantage in this to Pannals the King being thereby forc'd to give in the Names of his Witnesses so that the Pannal may not only know how to object against them but even how to practise them and whereas it may be objected that by this procedure there behov'd to be progressus in infinitum since the King might Cite Witnesses to cast the Pannals Witnesses and the Pannal behov'd therefore to be allow'd to cast the Kings Witnesses and to have Citation for that effect It is answered that this might as well be urg'd against all Reprobators nor does this hold here for the Judge should not allow such Citations save one to each party Because Messengers in Executing Criminal Letters gave sometimes only copies of the Libel it self and yet returned Executions to His Majesties Advocat that they had likwise given Lists of Assizers and Witnesses Therefore the Justices declar'd in February 1681. by an Act of their Sederunt that if the Pannal should produce a Copy under the Messengers hand of the Libel except the List of the Assizers and Witnesses Names were upon the same Paper with it they would not sustain the Execution though bearing That Lists of Witnesses and Assizers were given THis Act is Explain'd in the 1 Act 1 Par. Sess. 3. and 7 Act Sess. 2 Par. 2 Ch. 2. COmprisings were at first Invented to pay Debt with a suitable proportion of Land and the Sheriff was to adjust the sums due with the Lands Comprised but thereafter great Estates being Comprised for small Debts the Parliament thought fit by this Act to Ordain that for the future not a Messenger who was Judge in Comprisings but the Lords of Session should by a Process before them Adjudge as much of the Debitors Lands to the Creditor as would satisfie his principal Sum and Annualrent with a fifth part more because the Creditor was forc'd to take Land for Money whereas by the Common Law aliud pro alio invito creditore solvi nequit And albeit this Act expresses only that this fifth part shall be beside the Composition to the Superiour and Expenses of Infeftment yet certainly the Creditor must likewise have all the Expenses bestow'd upon the Process for as this is reasonable in it self so that expenses tends to the procuring of the Infeftment Observ. 1. This Act came in to the Parliament simply in these Terms and the equity of it was prest from the Custom of other Nations and particularly the Common Law where the Praetor did adjudge the Debitors Land proportionally to the Debt but it being strongly urg'd by the Lawyers Burgesses and other Members who were Moneyed Men that it was most unreasonable to force the Creditor to take Land except the Debitor should produce to him a good Progress and Security for both to be forced to take Land and yet to want a sufficient Right thereto was altogether unreasonable Therefore the Parliament ordain'd that if the Debitor did not compear and produce a sufficient progress and Renunce the Possession the Debitor might Adjudge the whole Estate as formerly he Comprised it and this has almost Evacuated the whole Act for the most of Debitors are unwilling to produce a Progresâ— and renunce Possession and therefore most Lands are now adjudg'd as they were formerly apprised and in December 6. 1681. It was found that an Adjudication led for a fifth part more in absence of the Debitor was null since the fifth part more was only to be given where the Creditor compeared produced a Progress and Renunced albeit it seems that this alternative being introduced in favours of the Creditor it ought to be optional to him to choose either Observ. 2. That the Legal in these Adjudications is only five years whereas it was seven in Comprisings for the danger being less because of the said Commensuration it was just that the time for Redemption should be shorter and though it be not exprest that the foresaid five year shall not run against Minors and that it may seem it should not run against them in respect of the short commensuration and that it seems unreasonable that a Creditor being forc'd to take so little Land and should yet be forced to be
Clause is here added to this Act and is not in the 4 Act 1 Par. Ch. 1. THis Act is Explained in the Observation on the 8 Act 1 Par. Ja. 6. but more fully in my Jus Regium Cap. The Right of Succession Defended and it is remarkable that it was past without a contrary Vote or the least Objection only most thought it so just that it was unnecessary and really it had been so if some in England had not controverted it THis Act Discharges â—ree-quarter and Localities but because some pretended that by this Act they were free from all necessity of carying Corn or Strae or Grass whereas if this were true the Souldiers Horses had been made unfit for Service by such Carriages and the Troopers and Dragoons might have been easily Murther'd whilest they went out singly to bring it in therefore by Act of Council this is fully regulated THere having been a full Debate before His Majesty how far Masters were answerable for their Tennents the Parliament to prevent the like for the future made this Act being fully convinc'd that Masters in Scotland could command their Tennents and Servants suitable whereto there are many old Statutes Commanding Masters to present them and finding that without this the Peace could not be secured and upon the event it is found that this has secur'd the Peace for Tennents and Servants knowing that their Masters would find out their Crimes which Sheriffs and others could not know and that they could not get Service or Land any where If they were disorderly they have conformed and this hath Restor'd Masters to the just Influence which our Predecessors had over their Tennents and Servants and which they lost by their Fanaticism by which they came to depend only on their Ministers and minding more Conventicles than their Work and in which extravagancy they were so far advanc'd that they would not see themselves till they were secur'd that they should be allow'd to go to these nor is the Master ty'd by this Act to any hard thing since by presenting them to Justice or by putting them out of his Land or out of his service he is free from all danger and this is in his power as also to secure him yet further it is Declar'd that he may break their Tacks and that if any Master take them who are put away he shall be lyable unto three years Duty It having been also Debated before the King that there could be no Deputs nam'd for putting the Laws against Ecclesiastick Disorders to execution within the bounds of Heretable Judges therefore His Majesties Power is Declar'd as to this Point by the Clause of this Act but this is now unnecessary because by the 18 Act of this Parliament His Majesties cumulative Power is Declar'd as to all points IT is very observable that the longer the World lasts Probation by Witnesses-lessens alwise in esteem because men grow alwise more Wicked In our Saviours time out of the mouth of two or three Witnesses every word was to be established Thereafter by our Law and by the Laws of other Nations nothing above an hundred pounds could be proven by Witnesses And albeit of old the affixing of a Seal was probative without a Subscription or Witnesses but as by former Acts the Subscriptions of Parties is Declar'd requisit So though formerly the Designing the Witnesses was sufficient although they did not Subscrive Yet by this Act no Writ is Declar'd Probative except the Witnesses Subscrive and without their Subscriving the Writ is Declared null But the Act of Parliament does not condescend whether this nullity shall be receivable by way of exception Or if it must require a Reduction But I conceive it must be null by way of exception since the Law hath Declar'd such Papers null and the want of Witnesses appears by production of the Paper it self The second thing Established by this Act is that no Witnesse shall sign as a Witness to any Parties Subscription except he know the Party and saw him subscrive or saw or heard him give warrand to the Nottar or touch the Pen The occasion of which part of the Act was among other remarkable Cases that a Gentlewoman pretending that she could not Write before so many Company desir'd to sign the Paper in her own Chamber whereupon she got the Paper with her and at her return brought it back subscriv'd and she thereafter rais'd a Reduction of the same Paper as not truly sign'd by her and though this should hardly have been sustainable at her own instance because she was heard to own it by the subscriving witnesses and the whole company yet this exception of dole could not have secluded her Heirs or Executors from reducing it as said is If witnesses without seeing a party subscrive or giving warrand to subscrive shal subscrive as witnesses they are declared to be punishable as accessory to Forgery which quality some think was added to seclude the punishment of Death it being as may be pretended too severe to punish by Death that which is the effect of meer negligence and unto which very many fall through negligence yet our Law knows no difference betwixt accessories and principals further than ex gratia accessories may sometimes find a mitigation of the punishment I conceive also that a party signing as Witness without seeing the Paper subscriv'd should be lyable to a third party who got assignation to that Paper in Damnage and Interest if it be Reduced ex eo capite since he was a loser by his negligence But quid juris 1. If the party himself to whom the Paper was granted were pursuing such an action for Damnage and Interest since he should have considered his own security and the Witnesses might have trusted to his exactness 2. Quid juris if the Witness heard Command given to one of the Nottars since the Act says That unless they heard him give Warrand to a Notar or Notars and touch the Notars Pen and yet even in that case the Paper may be null because there was not a Command given to both the Notars and a third party may thereby lose his Right 3. It may be doubted if upon a Notars asking if the party will warrand him to subscrive the party do give a Nod whether that Nod will be equivalent to a Warrand and free the Witness who thereupon subscrived as Witness And it seems it should for the Act says except he saw or heard him give Command and a man cannot see a Warrand otherways than by a Nod and nutus was sufficient by the Civil Law to infer a Mandat The third point in the Act is that albeit in all Forraign Nations the Subscription of a Notar proves in all Obligations for there the Notar keeps the Paper sign'd by the Party and gives only a Duplicat sign'd by him and albeit in our Law a Notars Subscription did prove in all Instruments such as Seasins Intimations c. If the Witnesses were
insert and design'd though they did not at all subscrive yet by this Act the Witnesses must likewise subscrive which is another argument to prove how much the Faith to be given to men is now lessen'd But it is fit to observe that other Instruments taken by Notars continue in the former condition and need no subscriving Witnesses though for cautiousness all Witnesses in any Instrument do now Subscrive Nota That the Civil Law call'd all Obligations Instruments but we call only Acts of Notars Instruments The fourth Point in this Act is That all Executions of Messengers upon Inhibitions Interdictions Hornings or Arrestments shall be null if they be not subscriv'd by Witnesses and these were exprest because they are Executions of great Importance and yet it seems that Executions of Comprisings and Adjudications are of as great Importance as any of these and yet it is not requir'd by this Act that Executions of Comprisings and Adjudications should have subscriving Witnesses and a Reduction being raised of the Execution of a Comprising because there being but two Witnesses exprest in the Execution one whereof did expresly deny that ever he was witness in such an Execution and so the same became null as wanting two Witnesses To this it was answered that the Deposition of a Witness denying that he was present upon the Land the time of the Execution was not sufficient to destroy an Heretable Right of so great importance as this Comprising was for this Deposition after so long a time could amount to no more than a non memini and the reason whereupon this Statute is founded appears by the Narrative to be because the Witnesses may by their forgetfulness easily disown their being Witnesses and many men are apt to forget such Circumstances and to deny that ever they have been in such a Place or House until the same be brought back to their memory by other very remarkable Circumstances which could not be done here because the Messenger and the other Witnesses were both Dead 2. The Deposition of one Witness denying his being present should not infer a nullity of the Comprissing since the loss of the whole Executions would not infer the same after so long a time as has been frequently decided 3. If this were allow'd it should be in the power of every single Witness in an Execution of a Comprising or Adjudication which are now the Foundations of the most of our Rights to destroy and overturn the same for Money or Prejudice 4. No singular Successor buying a Comprising could be secur'd and if these Executions had been thought of such importance this Statute had required subscriving Witnesses For a Comprising is of far more consequence than an Arrestment The one relating to an Heretablâ— the other to an Moveable and very Temporary Right 5. No man could with a sufficient causa scientiae Depone that he was not upon the Ground of the Lands of such a Barony except he knew every bit of the March of the Barony for that Execution might have been used upon the very remotest corner of it The last Branch of this Act is that no Execution whatsoever shall be sufficient to interrupt the Prescription of Heretable Rights unless the same have subscriving Witnesses and by this we see what Care our Law has taken to preserve Prescriptions and for the same reason it is appointed by the 10 Act 2 Par. Ch. 2. That all Citations that shall be made use of for Interruptions shall be renew'd every seven year and because of this Clause in the Act it is advisable that all Executions in Adjudications Comprisings Molestations and generally in all Actions relating to real Rights have Subscriving Witnesses though these be not Exprest because they may be made use of as interruptions in other cases vid. observ on the said Act. THis Act concerning the Test is so exactly and universally known and all objections against it have been so fully clear'd that it is unnecessary to Write any Observation upon it BY the 2 Act of the 1 Par. Ch. 2. It is Declar'd that the nomination of the Senators of the Colledge of Justice did ever belong to the King And His Majesty and His Predecessors have ever been in use of appointing the times in which they should sit and Judge for him and therefore His Majesties Royal Brother finding that many Members of Parliament inclin'd to want the Summer Session he allow'd the Overture to be brought into the Articles It was likewise propos'd That there might be one Moneth allow'd for the Summer and four only for the Winter for which it was urg'd that this would save all the inconveniencies that could be adduc'd against the Summer Session since therein Causes that could not well admit of delay such as Suspensions Removings Actions upon Bills of Exchange c. might be discuss'd but this was Rejected by Vote of both Articles and Parliament as tending to as much Trouble and Expense as the Summer Session it self without any considerable advantage For the Leiges behov'd to attend from the remotest parts of the Nation and yet the whole time would be spent in useless preparations for Business the first fourthnight and in a dangerous hurry the last fourthnight by this Act then there is only one Session to be in the whole year which is to last from the first of November to the last of March inclusive The Arguments adduc'd for this Model were first That two meetings of the Session did encourage our Countrey-men too much to litigiousness who were naturally too much addicted thereto whereas one Session might well enough end all our Affairs and it was indeed observable that to recommend this Overture all possible dispatch had been made in the former Session 2. That these two Sessions occasioned great Expense since people behov'd to come twice a year from the remotest parts of the Nation most unnecessarly for the Summer Session was spent in Preparation or Hurry as said is 3. The Summer being the only time wherein Scots-men could have any pleasure or could make any improvement by Building Imparking c. The Summer Session did without making us any Recompense destroy both our own Pleasure and the adorning of our Countrey The Arguments for continuing the Summer Session as formerly were 1. The Session not sitting for seven Moneths His Majesties Authority during all that time wants the support and assistance which otherwise it uses to have from the frequent attendance of the Nobility the Kings Officers and others do meet frequently during the Session because of the conveniency they have in attending their private Business Whereas in this long Vacation of seven Moneths they can hardly be brought together and so want that Correspondence Intelligence and mutual assistance which they have in time of the Session and our Rebellions being ordinarly in the Summer time because of the conveniency which Rebels have of lying in the open Fields and of getting provision for their Horses it would be much easier to suppress
may be urg'd that He may since the Session is his own Court wherein He does Justice to His People by His Judges and therefore as any of His Majesties Vassals may hold their Courts when they please much more may His Majesty hold His. Likeas His Majesty has oft-times by His Council order'd the Session to sit when and where He pleas'd And whereas it is pretended that if this were true Acts of Parliament in â—his case were unnecessary and that such alterations have never been made without the Parliament To this it is answered That at first the Session was a Committee of Parliament and so the Diets of Session behov'd to be appointed by Parliament and now likewise it is fit that the Inclinations of the Subjects be gratifi'd by such Acts taking along their consent in a Case of so general a concern but it does not necessarly follow that all things that have been Establâ—shed by an Act of Parliament at some times can at no other time be order'd by His Majesty alone for we see that there are several Acts of Parliament Regulating Trade and Coynage and yet it cannot be deny'd but that Trade and Coynage are inter Regalia ALbeit by the fourteenth Act 1 Par. Ch. 2. The Excise is to be taken up by the Commissioners of the Excise or Collectors appointed by them and for whom the Commissioners are answerabâ—â— and may be quartered upon for their Deficiency By this Act the grant of the Excise which is to Commense from the Kings Death gives His Royal Successors only a Right to what the Drink Exciseable it self can yield and so the Shires will not be oblig'd to burden their Land with Cess for Deficiency of the Excise as now they do THis Act is formerly Explain'd in the Observations on the 47 Act Par. 11 Ja. 6. BY our former Law it was generally believ'd that all Widows had Right to a third of their Husbands Estates call'd with us a Terce except the Wife had been expresly secluded by her Contract of Marriage and that she had Right to her Joynture and to a third of the superplus of any Land wherein her Husband died Infeft But in a Case betwixt Prestongrange and the Lady Craigleith Debated in the Session immediatly before this Parliament It was alleadg'd that the said Lady being competently provided by her Contract of Marriage to a great Joynture she could not likewise have Right to a Terce because primo provisio hominis tollit provisionem legis and therefore where a Wife is provided by express agreement and the Provision acquiesced in by the Wife and her Friends it is in the construction of Law reputed to be in full satisfaction of all she can crave if the same amount to a third of all the Lands which the Defunct had at his Decease 2. This is Declar'd to be our Law by the 16. cap. lib. 2. Reg. Maj. N. 6 10. And by Balfour in his Title of the Wises Dowry and Terce And by Craig lib. 2. Cap. 22. 3. By the Laws of other Nations it is clear that where a Wife is secured by a Conventional Provision she can have no Right to any legal Provision This the French expresly determine when they say that a Wife having dotarium praesixum cannot claim dotarium ex lege consuetudinarium 4. This Terce is the same in the Analogy of Law that a Legiâ—tim or an Aliment is to Children but so it is that neither of these are due when the Children are provided and therefore the most that can be due in either Case is supplementum legittimae the Law having only designed the rationabilis tertia And there is no more due to our Queens by the 2 Act 1 Par. Ja. 3. Albeit these Reasons were thought very pungent and tending much to the support of old Families and to secure Men against the importunity of their Wives yet because some positive Decisions had run in favours of the Wives though abundantly provided therefore the case was referr'd by the Session to the Parliament and they by this Act ordain'd that in time coming if the Wife be provided tho her Provision were never so small she shall be excluded from a Terce unless her Right to a Terce be secur'd to her by and attour her particular Provision But because this Act was not thought a Declaratory Statute but a Regulation therefore the Case depending was remitted back to the Session THis is fully Explain'd in the Observ. upon the 16 Act 22 Par. Ja. 6. HIs Majesty having by vertue of His Prerogative Royal Declar'd by the 27 Act 3 Sess. Par. 1 Ch. 2. The Sole ordering and disposing of Trade with Forraigners He did by Act of Council Anno 1681. Regulate the matter of Trade and Manufactories which Proclamations are here Ratifi'd for a security to such as shall undertake Manufactories and therefore it may be doubted if His Majesty can dispense with any thing relating to Manufactory since in this third Parties have followed the Faith of his Majesties Acts and Proclamations so that His Majesty seems to be bound to them ex quasi contractu It is declared by the last Clause of this Act That no persons contraveening this Act shall be lyable to the Penalties unless they be found guilty within three Moneths after the delation Upon which Clause it was found that the Offenders were free though they had confess'd their Contravention by their Oath within the three Moneths because there was not a formal Sentence against them albeit it was alleadg'd that in confitentem nullae sunt partes judicis and the King had done sufficient diligence and the reason of the Act did only militat in favours of those who where not oblig'd to Depone after so long a time and the King could not be prejudg'd where his Officers had done sufficient Diligence for this in effect was a Prescription which runs only against the negligent Likeas in this Case the want of a Decreet could not be oppon'd since it was occasioned by a Petition given by the Defenders craving a delay with which the King gratifi'd them But yet the Council thought the words of the Act so positive that they would not go over them especially since the Clause did resolve in an Indemnity to People who might have and did ordinarly contraveen by mistake or through necessity and all such Indemnifying Clauses should be favourably Interpreted BY the 212 Act 14 Par. Ja. 6. The Lords of Session can only be declined to Vote or Judge in Causes belonging to their Fathers Brothers or Sons But because the prohibition of that Act was too narrow and that the reason thereof did equally militat against all Judges Therefore by this Act the Prohibition of the former Act is extended to degrees of Affinity as well as Consanguinity As also to Uncles and Nephews so that now no Lord of Session or other Judge whatsomever is Capable to Vote where either the Pursuer or Defender is Father Brother
or Son in Law to him which is most just since these may have an equal influence upon him and sometimes greater then those formerly Discharged It may be doubted whether this Act should extend to Cases caryed on in the Names of Confidents and Trusties for the behove of the Persons Comprehended in this Act and it seems rational to extend it for a Cause cannot so much be said to be his in whose name it is pursued as the persons to whose behove it is pursued and if this were otherwise the design of this excellent Act might be altogether evacuated But yet I remember that the Earl of Rothes in Exchequer gave by his vote the gift of Non-entry of the Estate of Levin to Sir William Bruce though it was alleaged that it being to his own behove he could not jus sibi dicere To which it was answered that he did not Vote for himself but that he was necessitat to sit to make up a quorum because there behoved still to be such a number of Commissioners of the Thesaury present in Exchequer as sine quibus non AS Laws do ordinarly show the Genius of the Nation so do they likewise show the Genius of the Time wherein they are made and this Law was occasion'd by a dreadful Principle whereby the Fanaticks had declar'd That it was lawful to Kill all who Serv'd the King and though none were punish'd in Scotland for meer principles of Religion Yet it is very lawful to punish those who maintain Principles which tend necessarly and naturally to the raising of Rebellion or committing of Crimes Whereof this and the 2 Act 2 Sess. Par. 1 Ch. 2. are just Instances It may be doubted whether Judges may be declined where their Relation is equal to the Pursuer and Defender or in Cases of Affinity where the Affinity has ceased by the Dissolution of the Mariage Item It may be doubted if a Judge can be declined where he is related only to one who is a Member of a Society which is Pursuer or Defender as for instance if the Process be against a Colledge and the Judge be Brother to one of the Masters of the Colledge Observ. From these words The Exchequer and other Judicatures That the Exchequer is a Judicature in our Law BY this Act It is declared That the high Court of Admirality is a Soveraign Judicature in it self and imports summar Execution by which last words is meant only that execution of Horning may pass upon their Decreets immediatly without seeking a Decreet conform before the Lords as of old conform to the 15 Act Par. 20. Ja. 6. which is here wrong cited and call'd the 12 Par. But this summar execution is no mark of its being a Soveraign Court for Sheriff and Bailiff Courts have the same priviledge But that which makes this Court a Soveraign Court is that by this Act it is declar'd that they may not only review the Decreets of inferiour Admirals but their own and the reason why they are allow'd to review their own is because it is their custom to grant oft-times Decreets summarly for not finding Caution and it were hard not to allow the persons concern'd to be heard upon an offer to find Caution as also It is declar'd by this Act that no Advocations shall be granted from them to the Session but even this is not observ'd tho it was the great design of this Act for this Act restricting this Priviledge to maritim and Sea-affairs the Lords Advocat Causes from that Court as not maritim it not being determin'd what Cases are maritim and so can be comprehended under that Term. The Lords are still allow'd to Suspend the Decreets of the Admiral in praesentia or by three Lords in the Vacance which is hardly to be reconciled with its being a Soveraign Court And yet in some Cases the Lords Suspend the Decreets of the Justice-Court and of the Commission of the Kirk which are certainly Soveraign Courts The Admiral Court has got also power by this Act to apply the Fines and Amerciaments of their own Courts to their own use which formerly belong'd to the King and they have also the sole power to grant Passes and safe Conducts to Ships which by a special priviledge was granted immediatly before this Act very irregularly to Magistrats of Burghs Royal and in the time of the late Dutch War it was granted to a particular person named by His Majesty who was called Surveyer-general and was bound by his Instructions not to grant a Pass to any Ship till he was aboard and Surveyed all that was in it only he had power to make a Deput for Aâ—erdeen and beyond it BY this Act because common things are neglected and Creditors are disappointed of all the Rents where the same are controverted amongst them therefore they are allow'd to roup the Lands of the common Creditors when become Bankrupts which is now done by Summons Narrating this Statute in which all the real Creditors are Cited and thereupon the Lords grant a Commission for trying the value of the Estate and then they determine what shall be the least price and they name a Lord before whom the Roup is to be made and Letters are raised Charging Creditors to appear on twenty one dayes at such an hour at the New-Session-House to offer before such a Lord at which Day he comes to the Outter-House and the Clerk Reads the Acts and Commission to that Lord and the Macer offers the Lands at the price put on them by the Lords three several times and if none offer more he who raised the Summons gets them at that price After all this the Creditors go on in their multiple poinding and being rank'd according to their due preference the price is distributed amongst them accordingly tho it may be Debated that this preference should be first determined since till then Creditors will not willingly offer It seems more reasonable that Roups should be in the Shires where the Lands to be sold do ly for there will be more buyers found there than at Edinburgh I could likewise wish that where any of the Lords of the Session are Pursuers they would name Commissioners in the Countrey to make the Roup for Societies should shun sibi jus dicere where the same can be supply'd by others I think also that it were fit that Roups were made three several dayes and not all at one time as is required by the Doctors for this would give all persons concerned time and opportunity to appear and consider what is fit to be offered for men may be surprised or be sick or busie at one hour or time I conceive also that the Lord who makes the Roup should stay all the two hours allow'd not only to the last moment but from the first as we see the Judges do in Roups abroad and before our Admirals where the Roups are therefore appointed to be made ad candelam or clepsidram and in Orders of Redemption we
might scruple to pursue a Reduction of a Writ that they themselves had granted upon Oath and albeit this Act Declares only such Contracts to be null yet it will certainly extend to Bands Dispositions and other Writs for as the Reason is the same so both the Narrative and the last words of the Act has the word Writs which comprehends all these and I conceive the Remedy of this Act will extend likewise to promises though these be not comprehended under the word Writs for if it were otherwise the Act might be eluded by taking of Promises upon Oath from Minors As also albeit the Narrative Relates only to Writs of Importance by which are only mean'd in our Law such wherein the sum exceeds an hundred pounds Scots yet since the Statutory part is general and that an hundred pounds may ruine poor people nor should men of Substance Lasâ—le an Oath by interposing it to mean matters therefore I think that this Remedy should be extended to all cases whatsoever BY this Act for facilitating the course of Trade Bills of Exchange are ordain'd to be Registrated within six moneths after they are due and tho the Bill bear no consent to the Registration as Bands do yet they are registrated by vertue of this Act which is Narrated in the beginning of the Paper that is Registrated but this is of no great use and therefore Merchants choose rather to pursue summarly before the Dean of Gilds Court who is with us le consul des Merchans and even these Pursuits are disappointed by Advocations nor have they so much as the priviledge of being Discust summarly without attending the course of the Roll as was crav'd by the draught of the Act that was first under consideration It was also crav'd that Compensation should not be receiv'd against Bills of Exchange as is Customary abroad and a Bill is in effect in the construction of Law a bagg of Money trusted by the Drawer and to be redelivered in another place and Compensation is not even by the Common Law received against Depositations The reason why this Act was only extended to Bills drawn from abroad or in favours of persons abroad and not to Bills drawn from one place within the Kingdom to another was because if that had been allow'd all Debts had still been constituted by Bills and not by Bands and so had been priviledged by too summar execution BEfore Parliaments can proceed to publick Affairs all the controverted Elections must first be cleared and determined which being the occasion of great delayes in the dispatch of business gave the rise to this Act whereby it is ordain'd that none shall have vote in the Elections of Commissioners for Shires or Stewartries except those who are publickly Infeft in Property or Superiority Life-rent or proper Wodset and in possession of a 40 shilling Land of old Extent holden of the King or Prince or in Lands of 400 Pounds Valuation whether Kirk-lands or other Blench Few or Ward-lands and that appearand Heirs being in possession by vertue of their Predecessors Rights and Husbands for the free-holds of their Wives or as Life-renters by the courtesie of Scotland of the Extent and Valuation foresaid have right to Vote The Shire of Berwick having made cross Elections of Commissioners to the late Parliament the Committee for controverted Elections decided these points for clearing this Act which report was approven in Parliament 1. That a Charter confirmed by the King of a 40 shilling Land does not give a party right to vote except his Seasin thereupon be produced and that the Confirmation be of the Seasin since the Confirmation of a Charter imports no more but the Confirmation of a personal obligment 2. Vassals of Kirk-lands of the Extent and Valuation foresaid have no vote unless they hold their Lands of the King as their immediat Superiour for since it is optional to them either to hold of the King or Lord of Erection by the 53 Act 1 Parl. Ch. 2. it is presumed they still hold of the Lord of Erection unless they instruct that they hold of His Majesty 3. Where Vassals produce Rights to a part of a Barony that will give them no right to vote except they can instruct that their Lands are Retour'd to such a proportion as put them in the terms of the Act of Parliament 4. Life-rents not constitute by Infeftments but by personal obligments give not the Life-renters right to vote 5. Persons Interdicted seem to be debarr'd from voting since they who were not fit for managing their own affairs ought not to be trusted to vote for Commissioners to Parliaments but this I think should only hold in Interdictions causa cognita very judicious men consenting to voluntar Interdictions 6. If the King be only Superiour supplendo vices of the immediat Superior by his not entering to the Superiority this will not give the Vassal a vote since the immediat Superior retains all the casualities and consequently remains still Superiour albeit pro hac vice the King supplies the defect of the Immediat Superiours lying out by infefting the Vassal 7. Appearand Heirs albeit in the terms of this Act have no right to vote if they have renounced or if their Predecessors were denuded albeit they were in possession the famine being only by a tollerance from the Party in whose favours the Predecessor was denuded 8. Appearand Heirs by the Mothers side gives not a Title to vote except they be actually entered Heirs since it is presumed there are Heirs Male except the contrair be proven by a Service 9. Vassals who have expired Apprisings or Adjudications have liberty to vote albeit by an Act of the Lords of Session the Lands are declared to be redeemable for the Sums truly due since by this Act Apprisings Adjudications and proper Wodsetts are not to be questioned upon pretence of any order of redemption payment or satisfaction unless a Decreet of Declarator voluntar Redemption Resignation or Renunciation be produced 10. It was found in the Election of the Commissioners of East Lothian that no votes are sustained but these who voted and signed before the Meeting was dissolved and the votes of those who came immediatly after were not sustain'd tho the Preses return'd with some of the number But in the Elections for the Mers it was found that a person was capable to vote albeit he was detained Prisoner by a mis-information from one of the Competitors he having given an account of the way and manner of his Imprisonment to the Meeting and declared his vote to them and after his enlargement did immediatly take the Test and sign the Commission FINIS Several Additions and Supplements to the Observations on the Acts of Parliament BY this Act the Wardens are discharged to judge which is here called very odly to intromet with any thing that pertains to the Dittay of the Justice-Air saving the points that are needful for conservation of the Trews or Truce that is to say
the Jurisdiction of the Wardens by this Act is prorogated to the cognition of all Crimes which were necessary to be judged by them for preservation of the peace betwixt the Kingdoms and so the first part of the Act specifying Treason was unnecessary for it was comprehended under the general but now the Commissioners of the Borders who are come in place of the Wardens have power directly and so not only incidenter to judge Thefts and many other points of Dittay TO add after these words The King may make any man a Lord of Parliament yet by the constant course of posterior Acts of Parliament concerning elections and representatives of Shires in Parliament and by the constant custome acknowledg'd both by King and Parliament none can represent Shires in Parliament but such as are actually chosen by the Shires whom they represent AFter these words That a Registrat Extract will not stop a Certification when a Horning and its Executions are called for but the Principal must be produced It is fit to add That though this hold against the User of the Horning yet the Kings Donator is not oblig'd to produce the Principal Horning for else by collusion betwixt the Debitor and the Creditor the Kings Donator might be easily prejudg'd WHereas it is said that decimae inclusae are to be burdened with no part of the Ministers Stipend for clearing whereof it may be added that this was so decided before the Commission in January 26. 1675. Heretors of Tulliallan contra Colvill but afterwards in March 1684. the same Case being heard in Praesentia before the Lords by a reference from the High Commission it was found that conform to this Clause in the Act of Annexation reserving the tenth penny to the Ecclesiastick person that therefore the Heretor having right to his Lands cum decimis inclusis should be lyable to the Minister for the tenth part of his Feu-duty with relief to him against the Titular pro tanto AFter these words The Earl Marshal contra Brae add this Decreet was in foro And Stairs asserts that competent and omitted before Baron-Courts is not considered THe answer to this doubt is that the Act of the Convention Anno 1665. doth not make either Stipendiary Ministers or Ministers having modified Stipends lyable to Impositions but only ordains Beneficed Persons to be Taxt And the Convention 1667. having ordained the Impositions then laid on to be Levied according to the Valuation led in Anno 1660. and not according to the retoured Duty which was the old way did ordain that Benefices should be valued and pay in so far as these Benefices exceeded the modified Stipend and so they are burdened in both these Acts as Beneficed persons and not as Stipendiary Ministers of whom this Act only speaks IN the second Observation upon the said Act it is said that the Lords will allow the user of a Writ to condescend who was the Writer albeit his name be not insert nor condescended on in the Writ But now by the 5 th Act Parl. 3. Ch. 2. all Writs not condescending upon the Writers in the Body are absolutely null and not suppliable by a condescendence ex post facto THis Observation should be thus worded The Act here related to is the 34. Act Par. 6. Q. Mary and the Acts dispensed with both in this and the said 34. Act is the 77. Act Par. 6. Ja. 5. WE have this custome of Morning-gift from the Germans which is called in their Language Morgengab and is learnedly treated by Milerus in his Gamologia personarum illustrium cap. 6. Where he defines Morgennatica to be donum matutinale quod olim apud Germanos Francos una cum doâ—e proprium patrimonium erat uxoris vid. pag. 160. WHereas it is said there that a Band wanting Witnesses is null if the same exceed an hundred pounds and is valid if restricted to 100 pounds It is fit to add that this seems to be somewhat dubious in respect of the 175 Act Par. 13. K. Ja. 6. and 5. Act Par. 3. Ch. 2. which declare all Writts without exception null that are not subscribed before Witnesses IT being asserted in the Observations upon this Act that the reservation of the Act extends as well to the Patronage of Mensal Kirks as those that are of the Bishops representation this Caution should be subjoyned that notwithstanding of the Decision there mentioned March 25. 1631. It may be contended that Mensal Kirks are not contained in the said exception and that because that exception mentions only Patronage of Kirks pertaining to Bishopricks whereas a Mensal Kirk is not Patronate being a part of the Benefice and the disponing a Mensal Kirk is a formal Dilapidation of the Benefice and so contrary to other Acts of Parliament NOtwithstanding of the decision I have there cited it seeâ—s that this Act of Parliament is designed to make all Retours even at the instance of the nearest of Kin irreduceable after 20 years and that even where competition is betwixt Heirs of the same kind as if a second Brother had served himself Heir to his Father during the life of the elder Brother or his Descendents in lineà recta and it seems this has been the opinion of the Lords in the case Younger contra Johnstoun 22. Novemb. 1665. Likeas the Act of Parliament makes no distinction but on the contrary having extended the Prescription of Retours from 3. yearâ— to 20. and that only in favours of the righteous Heir and nearest of Kin it declares generally that after the said 20 years no party shall be heard but yet it seems very hard that if a second Brother himself who knew he had an elder Brother or yet more if he were keeping daily correspondence with him whilst he wâ—re abroad should serve himself Heir to their Father that thereafter this Service might not be reduced notwithstanding of this Prescription of 20 years but it would likewise seem that there might be a speciality in this case because the Dole or it may be the knowledge of the second Brother without any Dole in some cases might hinder Prescription which requires in Law bona fides as one of its essential requisits and yet if a third party bought or comprised that Estate the Prescription might be valid because the impediment being personal could not prejudge him and it is fit to observe that what I said in general in my Observations upon that Act concerning singular Successors was only meanâ— of singular Successors acquiring Rights before that Act for they having bought bona fide before that Act a supervenient Law could not prejudge them FOr clearing the 4. Observation upon the said Act it is fit to take notice that albeit it be there insinuated that Lords of Erection pay only a Blench Duty for the Lands Feued out to them the time of the Erection yet it appears both by the Surrender and Decreet Arbitral following therâ—on
in other cases where there is no Statute it would seem that Rights granted to a man should regularly extend to his Heirs arg hujus legis Observ. 1. Though this Act mention only Rentals set by the King yet the Rentals set by Subjects are not extended to Heirs except Heirs be therein-mentioned and though a Rental mention Heirs indefinitly yet it will only extend to the first Heir and will neither be accounted null for want of an Ish nor be extended to all Heirs for then it would be equivalent to an Heretable Right THis Act Discharges the Disponing of the Kings Casualties in great as the Casualties of a whole Countrey which is most reasonable and therefore all Gifts of Regalities may be quarrell'd as null because in them all the Escheats are Dispon'd and though this Act Discharges the giving away of Casualties arising from any one Crime yet this Objection was Repelled against the Gift of Usury in which were given away all the profits arising to the King by Usury ALL pecunial pains are ordain'd to be taken up according to the rate the Money gave when the Fine was impos'd or else the Fine is to be augmented according to the augmentation of the Money and this Act was reasonable because it was not just that Delinquents should get advantage by not payment and it was necessary because without this Act Fines as all other Debts might be pay'd according to the current Money at the time the same fell due THe pain of negligent Sheriff-Clerks is tinsel of their Moveables and the principal Sheriffs are to pay 100 pounds for them besides the damnages of parties Observ. 1. That in the time of this Act Sheriffs had the nomination of their own Clerks but now since the Sheriff-Clerks are nominated by and depend upon the Secretary it is not just that the Sheriff should be Fineable for the fault of the Clerk Observ. 2. That though by this Act the Sheriff-Clerk is oblig'd to send an Inventar of all the Registrat Hornings yearly to the Thesaurer yet this is in Desuetude THis Act is in Desuetude as to the price to be taken by Messengers but they still find Caution to the Lyon at their admission de fideli administratione RElief is a Duty due by the Vassal to the Superiour at his Entry for relieving his Fee out of the Superiours hands By this Act it is appointed that when this Casualty arises to the King it may not be compounded for but that all that is due be taken and the true avail is a years Retour-duty in Ward-lands and the double of the Feu-duty in Feu-lands Hope tells us that though a Gift of Non-entry contain the Relief yet the Donatar will not have Right thereto because such is the Custom of Exchequer as he says But I think that the true reason is because this Act Discharges this Casualty to be gifted When ere the Vassal takes out a Precept from the Exchequer for Infesting himself he is lyable for the Relief and the Sheriff may be Charg'd therefore conform to the Responde Book or the party may be Summarly Charg'd for it by this Act and the ground may be also poynded for it as deâ—itum fundi when a party gets a Precept the Servants of the Chancery write down respondebit Vicecomes de c or Respondebit any Judge to whom the Precept is direct and that is call'd the Responde here mention'd by which Responde-book the Sheriffs and their Deputes are Charg'd yearly in Exchequer BY this Act the Sheriff did count for all Escheats yearly for then he might have intrometted summarly and had Letters of Introâ—ission but now he is not countable nor oblig'd to intromet but the Escheats are gifted to Donatars BY this Act all Commissions for judging Crimes are ordain'd to pass the Quarter-Seal but now Commissions are granted by the Council without any Seal and though this Act Discharges justly the granting Commissions for judging Slaughter ordaining that Crime to be Judg'd only by the Justices yet now the Council uses to grant Commissions even for Judging Slaughter Murder Witchcraft and all such Crimes But though the Council may grant such Commissions for Judging these Crimes when they fall in under general Commissions that are granted by the Council yet I see not how they can grant Commissions contrary to this Act for Judging Slaughter in special Observ. 2. That all Commissions of the Justiciary should be under the Quarter-seal to the end as this Act of Parliament observes there may be a Responde made thereupon and yet the Council now uses to grant Commissions which have no other warrand but a Paper subscriv'd by themselves and not by way of Signature as is here ordain'd and the great fault that is committed in granting these Commissions is that the Process is never ordain'd to be returned to the Justice-Clerk to the end that both it may be known whether the Processes be legal and that it may be known what is due to the King for which the Responde mentioned in this Act was to be made vid. observ on 126 Act Par. 12 Ja. 6. Observ. 3. From these words of the Act That no Commission be granted to proceed in Slaughter but that the Justice-general and his Deputs proceed thereupon It uses to be urged that a Council of War cannot be a sufficient Warrand for Souldiers to Judge Murders and other Crimes committed by any of their Number against Countrey-men these not being Military Crimes but being Crimes that should be tryed by our fundamental Law in the Justice-Court where the people have a double security both by Learn'd Judges and an Inquest of Neighbours and a Kings Advocat to be careful of the probation and it may as well be pretended that they may Judge their own Souldiers in civil Cases and that they may judge a Countrey man when he kills a Souldier Vid. Crim. pract Tit. Jurisdiction of Justices over Souldiers and the Council ordain'd Burr a Drummer to be delivered up to the Justice Court for killing a Woman though he had suffered two Councils of War November 3. 1681. But to clear this the King by His Letter to the Council has declar'd that Souldiers are only to be be Try'd for Military Crimes by a Counsel of War and that for ordinary Crimes they shall be judg'd by the Justices c. AS parties may pursue Crimes without concourse of the Kings Advocat so by this Act the King may pursue without an Informer ad vindictam publicam THis Act ordains that no Rests be allow'd to the Thesaurer exceeding 20000 pounds a year but that he shall compt for what is above this sum so that he may do Diligence therefore as accords but this is not observ'd The second part of this Act ordains that the King be not prejudg'd by general Ratifications in Parliament for though Ratifications cannot prejudge third parties yet they might have prejudg'd the King who past them if His Majesties Interest