either Supream inferior or mixt These courts are properly called supream from whom there is no appeal to any higher Iudicatory such as the Parliament Privy Council Lords of Session the Criminal Court and Exchequer Inferior Judges are such whose decreets and sentences are lyable to the reviewes of the supream Courts as Sherriffs Stewards Lords of Regality Inferior Admirals and Commissars Magistrates of Burghs Royal Barrons and Iustices of Peace Mixt Iurisdiction participats of the nature both of the supream and inferior courts such a jurisdiction have the high Admiral and Commissars of Edinburgh Both which are in so far Supream that Maritim Affairs and confirmations of Testaments must come in and be tabled before the high Admiral and Commissars of Edinburgh in the first instance As also they both can reduce the Decreets of inferior Admirals and Commissars But seeing their Decreets are subject to the review of the Lords of Session they are in so far inferior Courts No inferior Iudge can judge in the causes of such as are Cusin-germans to him or of a nearer degree either of affinity or consanguinity But there is so much trust reposed in the Lords of Session that by a special Statute they can only be declined incases relating to their Fathers Brothers Sons Nephews or Uncles which by a late statute is likewise extended to the degrees of affinity and to the Lords of privy Council and Exchequer and the Commissioners of Iusticiary and to all other Iudges within the Kingdom The members of the Colledge of Iustice have this priviledge that they cannot be pursued before any inferior Iudge and if they be the Lords will Advocate the cause to themselves Tit. III. Of the Supream Iudges and Courts of SCOTLAND THE King is the Author and Fountain of all power and is an absolute Prince having as much power as any King or Potentate whatsoever deryving his power from GOD Almighty alone and so not from the people The special priviledges that he has are called His Prerogative Royal such as that he only can make Peace or Warr call Parliaments Conventions Convocations of the Clergy make Laws And generally all meetings called without his speciall command are punishable he only can remit crimes legittimate bastards name Iudges and Councilors give tutors Dative and naturalize strangers And is Supream over all persons and in all causes as well Ecclesiastick as Civil The Parliament of old was only the Kings Barron Court in which all free-holders were oblidged to give sute and presence in the same manner that men appear yet at other head courts And therefore since we had Kings before we had Parliaments it is rediculous to think that the Kings power flowed from them The Parliament is called by Proclamation now upon fourty dayes tho it may be Adjourned upon twenty but of old it was called by brieves out of the Chancellary It consists of three Estates viz. the Arch-Bishops and Bishops and before the Reformation all Abbots and Mitred-priors sat as Church men Secundo The Barrons in which estate are comprehended all Dukes Marquesses Earles Viscounts Lords and the Commissioners for the Shires for of old all Barrons who held of the King did come but the estates of lesser Barrons not being able to defray this charge they were allowed to send Commissioners for every Shire And generally every Shyre sends two who have their charges born by the Shyre Tertio The Commissioners for Burghs Royal each whereof is allowed one and the Town of Edinburgh two Though all the three Estates must be cited yet the Parliament may proceed albeit any one estate were absent or being present would disassent The legislative power is only in the King and the Estates of Parliament only consent and in Parliament the King has a negative voice whereby he may not only hinder any Act to pass but even any overture to be debated The Acts of Parliament must be proclaimed upon fourty days that the Lieges may know them To secure the Crown against factions and impertinent overturs in open Parliament Our Parliaments choose before they proceed to any bussiness four out of each State who with the Officers of State determine what Laws or Overturs are to be brought in to the Parliament and they are therefore called the Lords of Articles We have another meeting of the three Estates called the Convention of Estates which is now called upon twenty days and proceeds in the same way that the Parliament does diffreing only from it in that the Parliament can both impose Taxations and make Laws whereas the Convention of Estates can only impose or rather offer Taxations and make Statutes for uplifting those particular Taxations But can make no Laws And of old I find by the Registers of the Conventions the eldest whereof now extent is in Anno 1583. that the Conventions of Estates consisted of any number of the three Estates called off the Streets summarly by the King And yet they cryed down or up money and judged processes which now they do not The Privy Council is constituted by a special commission from the King and regularly their power extends to matters of publick Government in order to which they punish all Ryots for so we call breach of the peace They sequestrate Pupills gives aliments to them and to wives who are severely used by their husbands and many such things which require such summar procedour as cannot admit of the delays necessary before other courts And yet if any of these dipp upon matter of Law for they are only Iudges in facto they remit the cognition of it to the Session and stop till they hear their report The Council delay Criminal executions and sometime change one punishment into another but they cannot remit Capital punishments They may also Adjourn the Session or any other court It has its own President who preceeds in the Chancellours absence and it has its own Signet and Seal All who are cited to compeat there must be personally present because ordinarly the pursuer concluds that they ought to be personally punished All dyets there are peremptor all debat is in writ no Advocat being allowed to plead because the Council only Iudges in matters of fact The Lords of Council and Session are Iudges in all matters of civil Rights of old they were chosen by the Parliament and were a committy of Parliament But the present modell was fixt and established by King Iames the fifth after the modell of the Parliament of Paris Of old it consisted of seven Ecclesiasticks and seven Laicks and the President was a Church man But now all the fifteen are Laicks And there sits with them four Noble men who are called extraordinarie Lords and were allowed to sit to learn rather then decide But now they vote after the ordinary Lords All the Lords are admitted by the King and by Statute cannot be admitted till they be twenty five years of Age and excepâ— they have a
Church men it was called The Cannon Law And though it has here no positive Authoritie as being compiled by private Persons at the desire of the Popes especially since the Reformation yet our Ecclesiastick Rights were settled thereby before the Reformation And because many things in that Law were founded upon material justice and exactlie calculated for all Church men Therefore that Law is yet much respected among us Especially in what relates to conscience and Ecclesiastick Rights Our Municipal Law of Scotland is made up partly of our written and partly of our unwritten Law Our written Law comprehends first our Statutory Law which consists of our Statutes or Acts of Parliament Secundo The Acts of Sederunt which are Statutes made by the Lords of Session by vertue of a particular Act of Parliament impowering them to make such constitutions as they shall think fit for ordering the â—rocedur and forms of Adminiâ—trating justice and these are called Acts of Sederunt because they are made by the Lords sitting in judgement But are not properly Laws the legislative power being the Kings Prerogative Tertio The books of Regiam Majestatem which are generally looked upon as a part of Our Law and they and the leges burgorum and the other tractates joyned by Skeen to them are called the old books of Our Law by many express Acts of Parliament Tho the books of Regiam Majestatem were originally but the works of one private Lawyer writing by way of Institution and are now very much abrogated by Custome Our unwritten Law comprehends the constant tract of decisions past by the Lords of Session which is considered as Law the Lords respecting very much their own decisions And though they may yet they use not to reced from them except upon grave considerations Secundo Our Ancient customes make up a part of our unwritten Law which have been universally received among us The tacite consent of the people operating as much in these as their express consent does in making Laws And such is the force of custome or consuetude that if a Statute after long standing has never been in observance or having been has run in desuetuâ—e consuetude prevails over the stâ—â—â—â—e till it be renewed either by a succeeding Parliament or by a Proclamation from the Council For though the Council cannot make Laws yet they may revive them Generally all Laws should look foreward though declaratory Laws regulat what is past since their design is to declare what was Law prior to the statute and to direct Iudges how to decide in cases that needed the decision of a Parliament Laws should command not perswade and though the rubrick or title and narrative of the statute may direct a doubting Iudge yet if the statutory words be clear they should be followed in all cases All Laws should be so interpreted as to evite absurdities and as may best agree with the mind of the legislator and Analogie or general design of the common Law Correctory Laws so we call these which abrogate or restrict former Laws are to be strictly interpreted for we should reced as little as can be from received Laws Honourable Laws are to be extended and the Paritie of Reason often prevails with our Judges to extend Laws to Cases that are founded on the same reason with what is expresly determined by the Statute Tit. II. Of Iurisdiction and Iudges in General HAving resolved to follow Iustinians method to the end there may be as little difference found betwixt the Civil Law and Ours as is possible And that the Reader may not be distracted by different methods I do resolve first to lay down what concerns the Persons of whom the Law treats â—at â—do what concerns the things themselves treated of such as rights obligations c. Tertio The actions whereby these rights are pursued which answers to the Civilians objecta juris viz. Personae res Actiones The Persons treated of in Law are either Civil or Ecclesiastick the chief of both which are Iudges with whom we shall begin And for the better understanding of their Office it is fit to know that Iurisdiction is a power granted to a Magistrate to cognosce upon and determine in causes and to put the sentence or decreet to execution in such maner as either his commission law or practice does allow All Iurisdiction flows originally from the King so that none have power to make Deputs except it be containd in their commission And if a Depute appoint any under him that sub-depute is called properly a substitute and every Iudge is answerable for the Malversation of his depute Iurisdiction is either Cumulative or Privative Cumulative jurisdiction is when two Judges have power to judge the same thing And generally it is to be remembred that the King is never so denuded but that he retains an Inherent power to make other Judges with the same power that he gave in former commissions And thus he may erect lands in a regality within the bounds of an heritable Sheriff-ship and burghs Royal within the bounds of a regality And these bounds within which a Judge may exerce his commission is called his Territory so that if any Judge exercise Iurisdiction without his Territory his sentence is null and among those who have a Cumulative Iurisdiction he who first cites can only Judge and this is called jus Praeventionis Privative Iurisdiction is when one Judge has the sole power of judging exclusive of all others such power have the Lords of Session in judging of all Competitions amongst heritable rights and here there can be no prevention Iurisdiction is founded to any Judge either because the defender dwels within his territory which is called Sortiri forum ratione domicilij or Secundâ— Because the crime was committed within his territory which is called ratione delicti or Tertio If the Person pursued have any immovable estate within his territory though he live not within the same he may be pursued by any action to affect that estate which is called sortiri forum ratione rei sitae A Iurisdiction is said to be prorogate when a person not other wayes subject submits himself to it as when he compears before an incompetent Judge and propons defences All Judges with us must take the Oath of Allegiance and the Test whereby they swear to maintain the Government of Church and State as it is now established and an oath de fideli administratione before they exerce their Office And no excommunicate person nor rebell against the Government can Judge by Our Law If a person be pursued before a Judge who is not competent he may complain to the Lords of Session and they will grant Letters of Advocation whereby they Advocat that is to say call that cause from the incompetent Judge to themselves And if after the letters of Advocation are intimat to that Judge he yet proceed his Decreet will be null as given Spreto mandato Iurisdiction is
and is a base Right the effect of this Charter being to secure against forfaulture or recognition of the Superiour all which are voluntar Rights but if they be granted in obedience to a Charge upon Apprising or Adjudication they are necessar If the Charter contains a Clause de novo damus then it has the Effect of an Original Right and secures against all Casualities due to the Superiour in which the first thing expressed is for what Cause it was granted and if it was granted for Love and Favour Our Law calls that a lucrative cause or for a Price and good Deeds this we call an Onerous Cause The second thing considerable in a Charter is the dispositive Clause which contains the Lands that are disponed and regulariter with us the Charter will give right to no Lands but what are contained in this Clause though they be enumerated in other places of the Charter The third Clause is that wherein is exprest the way how the Lands are to be holden of the Superiour and this is called the Tenendas from the first word of the Clause The fourth Clause is that which expresses what the Vassal is to pay to the Superiour and this duty is called the Reddendo because the Clause whereby it is payable begins Reddendo inde annuatim The fifth Clause is the Clause of warrandice which is either Personal or Real Personal warrandice is when the Author or disponer is bound personally and is either simple warrandice which is only from subsequent and future deeds of the Granter and this warrandice is implyed in pure donationes or secundo warrandice from Fact and Deed which is that the Granter hath not done or shall not doe any deed prejudicial to the right warranded Or Tertio Warrandicè is absolute and that is to warrand against all mortals And in absolute warrandice this is a rule that an Adaequate Onerouse cause presums still absolute warrandice But absolute warrandice in Assignations imports only that the debt is truly due and not that the Debitor is solvent All Rights Granted by the King are presumed to be Donations and import no warrandice Real warrandice is when Infeftment of one Tenement is given in security of one another The Effect of warrandice is that if the thing warranded be taken away there is competent to the partie to whom the warrandice is granted an action of eviction for relief Because Tradition is requisite to the compleating of all Rights therefore the Charter contains a Command by the Superiour to his Bailly to give actual state and Seasin to the Vassal or to his Atturney by Tradition of earth and stone and this is called the precept of Seasin and upon it the Vassal or some other person having a Procuratory from him gets from the Bailly earth and stone delivered in presence of a Notar and two witnesses which Notar writes out an Instrument upon all this which Instrument is called the Seasin And if the Superiour gives Seasin himself it is called a Seasin propriis manibus so that a Formal Seasin is the Instrument of a Notar bearing the delivery of earth and stone or some other Symbols by the Superiour or his Bailie to the Vassal or his Atturney the Tenor whereof is known and fixt and now by a late Statute the witnesses must subscrive the Instrument and thus the Vassal stands Infest in the Land by Charter and Seasin This Seasin being but the assertion of the Notar proves not except the warrand of it that is to say the precept or disposition whereon it proceeded be produced But a Seasin given by a Husband to his Wife or by a Superiour to his Vassal propriis manibus that is to say by the Granters own hands without a Precept is sufficient when the Competition is with the Granters own Heirs or with no more solenin Rights and is not exorbitant and after fourty years there is no necessity to produce either precept of seasin or Procuratorie of Resignation by a special statute This Seasin must be registrated within 60. dayes either in the general Register at Edinburgh or in the particular Registers of the Shire Stewartry or Regality where the land lyes els the right will not be Valid against a singular Successor that is to say if any other person buy the Land he will not be obliged to take notice of that Seasin but the Right will still be good against the Granter and his Heirs If Lands lye Discontigue every Tenement must have a special Seasin except they be unite in one Tenement and then one Seasin serves for all if there be a special place exprest where Seasin should be taken but if there be no place exprest then a Seasin upon any part will be sufficient for the while Contiguous Tenements these being naturally unite but will not be sufficient for Lands lying discontigue And one Seasin will serve for all Tenements of one kind but where they are of several kinds as Lands Milnes c. they will require several Seasins The symbols of Possession being different for Lands pass by the Tradition of earth and stone and milnes by the clap and happour Sometimes Lands are erected into a Barronie the nature of which is explained before Tit. Inferiour Iudges and whensoever this is granted Union is imployed as the lesser degree Erection in a Barrony can only be by the King and is not Communicable by any Subaltern rights albeit the whole Barrony be disponed tho the Union may be thereby Communicate This union can only be granted by the King which he may grant either Originally or by Confirmation and being so granted it may be Transmitted by the Receiver to a Sub-Vassal but if a part of the lands united be disponed the whole union is not dissolved but the Part disponed onely and this Union and all other priviledges and provisions can onely be granted in the Charter but not in the Seasin Tit. IV. Of the Several Kinds of Holding THe first division of Feus from the several kinds of holding is that some lands hold ward some Feu some Blench and some Burgage For understanding ward-holdings it is fit to know that at first all Feus were Rights granted by the Longo-Bards and the other Northern Nations when they conquest Italy to their own Souldiers for service to be done in the Warrs and therefore Ward-holding which is the properest holding is called servitium militare and all Lands are therefore presumed to hold ward except another holding be exprest and servitium debitum consuetum is interpret to be ward-holding The advantages arising to the Superiour by the speciality of this holding are that the Superiour has thereby the full meals and duties of the ward-Lands during the years that his Male-Vassal is Minor for the Feu being given originally to the Vassal for Military service it returns to the Superiour during Minority because the Law presumes that the Minor is not able to serve his Superiour in the Warrs but in Female-Vassals
bring with him the said Suspension the blank day of blank prevento termino to hear and see the same called reasoned and discussed with Certification that if he sail the Lords will cause call the Suspension upon a coppie and admit Protestation therein and ordain the letters to be put to furder execution If an Advocation be raised to too long a day of compearance there may be likewise a Summonds of Prevento raised thereof In a Summonds of Contravention of Laborrows the pursuer lybells that A. B. became surty and Laborrows for C. D. that the Complainers Wife Baâ—rns Men Tennents and Servants should be harmelesse and skaithlesse in their Bodies and lands c. And then subsumes upon the prejudice done notwithstanding of the said caution And therefore concludes that both the Principal and Cautioner should be decerned to have contraveened the said Act of Caution in manner foresaid and therethrow that they conjunctly and severally have incurred the foresaid pain the one half to the King and his Thesaurer and the other half to the Complainer as Party grieved In a Declarator of property the Complainer narrates his right to the lands and how long and after what manner he and his Authors have been by themselves their Tennents and others having Right from them in the peaceable possession of the saids lands untill of late that he is molested and troubled by the Defender and therefore concludes that it should be found and declared that he has the sole good and undoubted Right and interest in and to the saids Lands and that therefore the said Defender and his Tennents and Servants and others of their causing and commanding should be decerned not to trouble nor molest them for the future in their peaceable possessioon bruiking and joysing thereof If the Complainer designs only to maintain his possession without bringing his propertie in contraversie he raises a Summonds of Molestation In which he only concludes that they should desist and cease from troubling and molesting him in the peaceable possession of his lands In a summonds for poinding the ground the Pursuer narrates that he stands infest and seased in an annualrent of to be uplifted out of the lands of and therefore concludes against the Tennents of these lands and the Heritor for his interest to hear and see Letters directed to Messengers at Armes Sherriff in that part to Fence Arrest Apprise Compel Poind aud Distrinzie the readiest Goods and Geer that are presently upon the lands and yearly and termly in time coming during the not redemption of the annualrent In a summons of Spulzie the King commands Messengers c. which is the stile of all Summonses which begin with Our Will is to Summond Warne and Charge the Defender to compear and answer at the instance of the Pursuer against whom the spulzie after specified was committed that is to say the Defenders for their Wrongous Violent and Masterful coming by themselves and their servants complices and others in their name of their causing sending bounding out command reset assistance and ratiabition to the lands of upon the day of and for their Wrongous Violent and Masterful spoilziation of the Goods to be condescended on And then concludes that they should pay the prices extending to and the profits that the Complainer might have made of the said Goods daily since the said spulziâ—tion extending to c In a Summons of wakning the Complainer after narrating that he had raised such â— Summonds which he had suffered to lye over and sleep for a year for there needâ— no wakning if there was any Iudicial Act or Minute upon the Summonds within thâ— year and therefore concludes against all the Personâ— cited in the first Summonds to hear and see the foresaiâ— action called wakned and begun where it last left insisted into and Iustice Administrate therein till the final decision of the cause A Furthcoming is that Action wherein the Arrester lybels that he having raised â—etters of Arrestment he caused Messenger lawfully Fence and Arrest all debts owing by â—he Defender to the Debitor â—o remain under Arrestment and to be made furthcoming to him and therefore concludes â—hat the Defender should be decerned to make furthcoming payment and delivery to the said Complainer of the sum of adebted restand owâ—nd be him to the said Debiâ—or If notwithstanding of the Arrestment the Debitor pay his own Creditor there is an summons for breaking of Arrestment wherein after the Arrestment and payment is narrated the Pursurer concludes that the Defender should be decerned to have broken the Arrestment then standing anâ— not lawfully and duely loosed anâ— therefore to be punished in his person and goods conform to thâ— Laws of the Realm in example â—â— others Though the Accumulatiâ—â— of several actions into one lybell was not allowed by the Ciâ—â—â— Law yet it is allowed by Ours in which we may noâ— only pursue several persons for several debts in one lybelâ— which we call by a general name an actions against debitors but we may likewise accumulate several conclusions againsâ— one and the same person though they be of different nâ—tures as Reductions Improbations and a declarator of propertie and actions of general and special Declarator in all which it is a general rule quot articulâ—â— tot libelli But when many actions are â—ompetent for one and the same thing as if a Messenger be deforced we may pursue â—he Deforcer Criminally which will infer confiscation of moveables or civilly for payment of our debt and the pursuing of â—he one does not extinguish or consume the other and either the Criminal or Civil action may be first pursued and â—n the concourse of all actions â—f the actions which concurr â—ave different conclusions as â—n the foresaid instance where the Criminal action of Deforcement concludes Confiscation and the Civil action only payment Though the Defender be assolzied in the Criminal Proâ—â—ss yet he may be pursued Civillie and the deforcement referred to his oath Title II. Of PROBATION FOR understanding the matter of Probation it iâ— fit to know that alâ— Probation is either by Write by Oath or by Witnesses Probation by Write has been formerly explained in the Title concerning Obligations by write Probation by Oath is when either the Partie or Judge referres any thing to the oath of the contrare partie but regularly no mans Right can be taken away by oath except he who has the Right referr the same to the adversaries oath but when there is a former probation already adduced the Iudge sometimes gives an oath of supplement which is so called because it is given to supplie the Probation already â—ed An Oath of Calumnie is that whereby either the Pursuer or Defender is obliged to swear that the pursute defence reply c. are not groundless and unjust and this may be craved by either Party at any time during the