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
Nâ—ta Reset in some cases and in this is more severly punished than the Malefactors The pain is augmented to a 100. lib. Act. 210. Parl. 14 Ja. 6. And at last shooting them with Guns is declared punishable by death Act. 9. Parl 4. and Act. 51. Parl. 6. Q. M. BY this Act These who wilfully Reset Maintain or do favours to open and manifest Rebells are punishable by Forfalture For understanding whereof it is fit to know that there are some manifest Rebells de jure and some de facto Such as are denunced and registrated are manifest Rebells de jure for though the Leidges know them not yet they ought to know them and it would seem that this requires a Denunciation within the Shire where the Resetter lives Act â—2 Parâ— 6 Ja. 6 And though that Act bear that the Denunciation at the head Burgh of the Shire be sufficient yet it seems that the Denunciation being only a transient Act is not sufficient to put the Leidges in mala fide except the Rebel be Registrated as Registration of other Letters is necessary to put buyers in mala fide Such likewise as are by positive Act of Parliament declared to have been Forfaulted as these exprest in the Act. 11. Paâ—l 2 d. Ch. 2 d Sess. 1. are likewise manifest Rebels de jure since all are oblig'd to know what is in Acts of Parliament but it has been doubted whether the resetting even of these after they have been allow'd for many years to appear publâ—ckly in Kirk and Mercat to the knowledge of the Kings Servants should infer paenam ordinariam or whether the said paena ordinaria can be inferr'd by resetting such as are mention'd in a Proclamation These are manifest Rebels de facto whom the Pannel knew to be Rebels or Traitors though they weâ—e not Denunced and thus Hamilton of Munkland was Forfaulted for resetting his own man whom he had seen in the Rebellion and if a man did see one kill the King or should assist Rebels in Armes before they were defeated it were ridiculous to alleadge that this were not punishable as reset because the Rebels were not denunced Rebels since they could not be denunced before Citation and the danger in resetting actual open Rebels is greater than in resetting poor lurking Vagabonds but this kind of accession must be inferr'd only from clear qualifications of knowledge such as these whereupon Lawrie of Blackwood was Forfaulted Winter Session 1682. In which Process it was likewise found that Letters of Intercommoning were not necessary to infer nottor Rebellion because Denunciations for Treason includs Intercommoning ex sua natura it being hard to leave so dangerous certifications to be arbitrarly inferr'd from conjectures and the Acts of Parliament require very wisely that the Rebellion be wilfull These who are here call'd Manifest and open Rebels are by the 4 th Act. Parl. 1 Ja. 1. call'd Notâ—or Rebels and notorium by the comâ—on Law is that which is committed Palam inspectante populo non egeâ— probatione Mattheus de prebat cap. 15. Clar. § Fin. Quest. 9. which is to be understood of that which is in se notorium but there may be notorium respectu noscentis without this as in Munklands case By the 97. Act. Parl. 7. Ja. 5. Such as reset any Rebels are punishable by Death and Confiscation of Moveables but it seems strange that resetting Rebels for a Civil Debt should infer Death or that resetting Traitors should infer no more and therefore the 144 Act. Parl. 12. Ja. 6. is more just ordaining the resetters of Rebels to be punished with the same pain that the Rebels ought to have been punished with By this Act also all men are bound to search take and apprehend them or to certifie the Kâ—ng and Council of their lurking in their bounds sub paena talionis By the 29 statut David 2 d. The Resetter is not to be punished till the principal Malefactor be convict but this was Repell'd in Blackwoods case because he had reset persons that were de facto nottor Rebels and certainly if a man should reset a company of nottor Rebels who could not be Convict because they could not be personally and distinctly known yet the Resetter might be Convict IS in Desâ—etude THough this Act appoints Deacons to be yet all Deacons are discharg'd Act 86 Par. 6 Jac 1. and Wardens â—re appointed in their place Act 103 Par 7 Jac 1. and thereafter Visitors are brought in Act 52 Par. 6 Q Mary But now Deacons are restored to all Incorporat Trades But Maltmen are discharged to have Deacons by Act 29 Parâ— 2 Jac 6. And yet if a Trade be not in Possession of a Deaconâ—ie they cannot begin to choose Deacons without first obtaining liberty from the Council for that effect by Petition so far still is the puâ—lict Peace of the Nation thought concern'd in all Deaconries and in a Process at the instance of the Trads-men of Brunt-Island against their Magistrates concluding that they ought to have Deacons because their Charter gave them as great Priviledges as Edinburgh had The Lords found that this Charter gave the Trades a Liberty to have Deacons but did not oblige them to have them and therefore they having liv'd so long without Deacons and the Trads men being so few they were not oblig'd to have Deacons In Spain and France such Colledges are discharg'd vide Perez ad tit 16 lib 11 num 19 Habere tamen possunt Decanum suum ibid vide infra Act 86. p 6 Jac 4. IS much innovated by the Book of Rates IS in Desuetude BEggars or Thigsters who are gentle Beggars should have a Token from the Sheriff or Magistrates of Burghs else they are to be burnt in the Cheek this Act Ratifies only the 25 th Act Par 1 Jac 1. and adds to it that the Chamberlain shall inquire in his Air concerning this but all this is Regulated by the 18 th Act Par. 2 d Sess 3 Ch. 2. THis Act is extended to Hearers of such Leasing-making Act 134. Par. 8. Jac. 6. by this Act Leasing makers lose Life and Goods and this Act is made to determine the uncertainty of the cap 21. stat Rob. 1. whereby the inventers of Rumours betwixt King and People were put in the Kings will I find an Act in England against â—he same Crime vid 3 Hen 8 câ—p 10 annot 1637. NOta That though the Legislative Power belongs properly to the King in the Parliament yet the Judicative Power belongs properly to other Courts and therefore by this Act private Causes are appointed to be discus't before inferiour Courts and the Parliament should not be Judges in the first instance But de facto many privat cases are intended before them THough by this Act it be ordained that honest men be appointed to modifie Assythments yet this modification now belongs to the Exchequer who modifie the Assythment when the Signature for the Re-in-mission
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-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
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
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
formerly observ'd that they were in use to regulate the Mint also VId. observ on Act 13 Par. 18 Ja. 6. THough by this Act the Clangrigor were abolish'd and they ordain'd to alter their sirname because of their bangstry yet because of their good Services done to His Majesty during the late Rebellion they were restor'd in anno 1661. It has been always believ'd that no Clan or Family can change its sirname in Scotland without express Act of Parliament or Act of Council for that might occasion great confusion and might be a ground of cheating the people in their Evidents and securities But any privat man may as we see daily in Tailies and it does not follow that because the Parliament only can force men to change their sirname that therefore they cannot do it voluntarly themselves BY this Act it is expresly declar'd that because particular Acts of Parliament and Acts of Ratification are made without hearing of Parties that therefore the Lords of Session shall Judge in these cases without respect to those Acts according to the privat interests of parties The immediat occasion of making this Act was the case betwixt John Stuart of Coldinghame and the Earl of Hume which was this The Earl of Bothwel having been Forefaulted the Priory of Coldinghame was Dispon'd by the King to the Earl of Hume which Earl of Hume set in Tack a-part of the Teinds of the said Priory to the Laird of Wedderburn but thereafter the Earl of Hume having entred in a Transaction with John Stuart Son to the Earl of Bothwel he suffers by Collusion a Decreet of Parliament to pass in anno 1621. whereby John Stuart was not only re-habilitat as to his Blood but the Forefaulture Rescinded in so far as concerned his Right to the Priory of Coldinghame upon a pretext that he had a commendam of it settled in his person before his Father was Forefaulted whereupon Dowglass of Evelaw pursuing the Laird of Wedderburn for a Spuilzie of Teinds in anno 1627. he obtains a Decreet notwithstanding of very unanswerable grounds then alleadg'd because the Lords of the Session would not call in question the Act of Parliament 1621. Notwithstanding of the Act salvo subjoyn'd to the Acts of that Parliament for the Lords found that the Session as an inferiour Judicature could not canvass special Acts of Parliament but because the Subjects might be extreamly prejudg'd in their privat Rights by such Acts of Parliament therefore the foresaid Clausâ— was inserted in this Act and that it might extend to this Case though anterior it is expresly declar'd in this Act that this was the meaning of all former Acts Salvo and accordingly the Lords of the Session did in February 1679. Repone the Laird of Wedderburn to Debate upon his just Rights notwithstanding of the Act of Parliament 1621. By this Act several privat Rights and Ratifications are excepted from this Act salvo But since the Act salvo proceeds upon the principal of natural Reason and Justice it seems that even these Exceptions are questionable for else the Act salvo should signifie nothing For these who had the interest to obtain privat Acts of Parliament would likewise have the interest to get them excepted from the Act salvo and upon this Reason it was doubted and not Decided whether Exceptions from the Act salvo made in privat Rights though not repeated in the Act salvo were sufficient to secure these Rights against the Act salvo for though it might be alleadg'd that in these there is a speciality from this case since the Act salvo being posterior and simple Annuls and Derogats from the former Reservation yet even there it may be alleadg'd that it cannot derogat since in the former special Act the Parliament Declar'd their special Inclination that it should not Derogat Nota The Act salvo jure is never Voted in Parliament because it is but an Act in Course and for the same Reason Ratifications are not Voted now since no man can be concern'd in either albeit of old I find that Ratifications were past in Parliament in the form of decreets and so must have been voted but it seems strange why Acts for granting of Mercats and Imposing Customs for the maintaining of Bridges should not be Voted And in the Parliament 1681. The Reports of the Articles thereof as to these past the last Dâ—y without being Voted which was oppos'd by some as irregular because there the consent of some parts of the Nation was requisite But I conceive that this likewise proceeded from the numerousness of the things that were brought in and the general acquiescence of the Members and the time they were to sit being so short and it seems securer to settle these by a vote K. CHARLES II. Parliament I. Session first ALbeit KING CHARLES the Second did hold a Parliament at Saint-Iohnstoun in anno 1650. yet this Parliament being the first after His Majesties happy Restauration is by the Inscription Intituled The First Parliament of KING CHARLES the Second though that Parliament 1650. is not Rescinded by the general Act Rescissory which is the fifteenth Act of this Parliament Nor by any other special Act And so that Parliament stands still in force so that this Inscription seems unwarrantable THe Rebellious Parliaments in the former age did choose their own President though the Chancellour ought to have presided in all Courts as is insinuated by the 40 Act Par. 5 Ja. 5. but this they did to have the President of Parliament Depend upon Them and not upon the King and therefore by this Act it is Declar'd that the Chancellour is ratione officii to preside in all publick Judicatures where he is present Observ. 1. That this Act says That the Lord Chancellour and such as shall be nominated by His Majesty shall preside and therefore if the King please He may Nominat another President though the Chancellour be present And I find that His Majesty has Nominated others to preside where the Chancellour was present Obser. 2. That though when the Chancellour is absent His Majesty can only Nominat another President Yet this does not exclude His Majesties High Commissioner from the power of Nominating a President since he has mandatum cum libera and Middleton did Nominat the Earl of Crawfurd to preside in this Parliament when Glencairn then Chancellour went to London Observ. 3. That the Chancellour is to preside not only in the Parliament but in all other publick Judicatures and therefore though it was pretended by the Thesaurer that notwithstanding of this Act the Chancellour could not preside in Exchequer though he was named in the Commission Because the Exchequer was rather the Kings Chamberlains Court than a publick Judicature in which the Thesaurer was chiefly intrusted because he was chiefly to be answerable yet this pretence was groundless since the Exchequer is a Judicature which Hears and Discusses Causes relating to the Revenue and is Declar'd a Judicature by the
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
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
the same when His Majesties Authority is fully represented and His Nobility and Servants fully conveen'd a great instance whereof appear'd in the late Rebellion of Bothwel-bridge 2. The Summer Session was very well contriv'd for the administration of Justice because in the Moneths of June and July such as have affairs in dependence before the Session had then no Labouring at Home those two Moneths falling very conveniently in betwixt Seed-time and Harvest and we having formerly had the Moneth of March adjected to the Winter Session that Moneth was taken from it because it was a part of our Seed-time and consequently to have it now a part of our Session must be very inconvenient 2. In those two Moneths His Majesties Subjects in the Isles and remote Countreys can only come to get Justice administrated to them in the Summer there being no passage from these places to the Session in the Winter time or at least if they do come they must stay the whole Winter and in some years the storms are such that there is no Travelling even from nearer Countreys nor is the winter fit for old men Bishops Clergy-men and such as are infirm to travel in 3. The Season in these two Moneths being very moderat with us and the dayes long much more Bussiness is dispatched than in the Winter time and there is far more conveniency of Informing than in the cold and rigid Winter Nights which puts men to great expense and occasions many Diseases 4. Though his Majesties Subjects now procure Decreets or get Bonds yet the same being Suspended they cannot be discuss'd for nine or ten Moneths during which time also widows and Orphans starve Masters cannot remove Tennents because they Advocat the Cause and Debitors become Insolvent Creditors likewise being forc'd to use Adjudiâ—â—â—ions within year and day of one another are altogether by the said long Vacation excluded 5. Not only Business before the Session by this means but even before inferiour Courts are stopt for such as are conscious to the injustice of their own cause stop procedure there likewise by Advocations which cannot be discuss'd for nine or ten Moneths 6. Not only in these particulars but in general the course of Justice is stopt here far contrary not only to our conveniency but to the Custom of all Nations who allow in place of one four or five Sessions There being no Vacation in the world longer than two Moneths except in Scotland who now allow seven during which time honest men are Defrauded Bankrupt and violent Possessors are Indulg'd Probation by Witnesses and otherwise perish and to be short there is no face of Justice during that time 7. As the Vacation is too long for the conveniency of the People so is the Winter Session too long for the conveniency of the Judges Advocats and other Members of the Colledge of Justice who must either destroy themselves by toiling too much or the Peoples Business by their languid and negligent mannadgement thereof it being undenyable that before the four Moneths used to expire formerly all persons concerned did languish weary and wish for a Vacation 8. The shortness of the time now allow'd forces the Judges to give shorter audience and to frequent the Side-Bars more than is fit 3. The want of the Summer Session destroys Trade and Commerce Because 1. Merchants cannot get in their Money with which they should Trade wanting the Execution of Law for so long a time 2. There is now no Whitsunday Term so that the Course of Money is stopt and it is undenyable that there are no payments now at Whitsunday whereas we having had two Terms formerly Whitsunday and Martinmas there were very wisely two Sessions appointed one in the Summer for those who did not pay at Whitsunday and another in the Winter for those who did not pay at Martinmass 3. There being no concourse and meetings of the People for seven Moneths there can be little Commerce For all Traffique arises and Bargains are made upon such occasions 4. It is undenyable that twice more Merchants have broke in those two years that we wanted a Summer Session than in any six formerly from which decay of Trade also arises a great loss to His Majesty in His Customs and Revenue 4. This want of the Summer Session is very prejudicial to the private Estates and Interests of almost all sorts of People For 1. There is alwise greatest consumption of Corn Cattle and all Products of the Nation in more frequent and numerous concourse of People and the greater the Consumption be the prices rises so much the higher 2. The Victual of the Northern Shires not being Transportable till April because of the Storms it was only vented during the Summer Session and now the price of the Victual there is much faln and His Majesties 〈◊〉 in those Shires much prejudg'd 3. The Heritors of Store-rooms in the South and West are very much prejudg'd since a great part of their Cattle especially of the younger was only vented in the Summer Session 4. The Heretors in the Shires about Edinburgh are prejudg'd in every thing that is pay'd to them 5. The half of the Town of Edinburgh it self is almost laid waste Landlords having almost lost half their Rent and the best Trades-men running away to other Nations because they are idle for seven Moneths here By which also His Majesty is a great loser in His Revenue that Town paying him more alone than a sixth part of what is pay'd by all the Burghs-Royal in the Kingdom and Trade by this extraordinary Poverty decaying in Edinburgh which is the Fountain of Commerce and the Staple Port of the Nation it must proportionally decay in all the other Towns since their Trade and Commerce depends upon it 6. His Majesties ordinary and additional Excise in Edinburgh has very much decreased and the Brewers are almost all broken within these two years as the Tacks-men and Customers too well know The Ministers Stipends likewise being pay'd out of the Annuities on House-Meals they must likewise decrease as the House-meals do Nor is the Town able to keep up the Company nor to furnish His Majesty such assistance as formerly it gave in the Rebellions at Pentland and Bothwel As to the contrary Arguments it was answered that as to the first Business did increase daily in all Nations with the improvement of Land and of Trade and the multiplying of Diligences so that Processes could not be sooner ended than formerly without deciding them more carefully To the second no man now needed to come till his Cause was call'd because all Causes were decided in their course by a Roll and so it was no matter whether he came Summer or Winter To the third it was answer'd there was more Planting and improvement in the Moneth of March which is now lost than in both the Moneths of June and July It may be doubted if the King can recal the Summer Session without an express Act of Parliament and it
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
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