that God is to be obeyed by man 2. That man is a free creature having power to dispose of himself and of all things in so far as by his obedience to God he is not restrained 3. That this freedom of man is in his own power and may be restrained by his voluntar ingagements which he is bound to fulfil or take them up more Summarly The first principles of Right are Obedience Freedom and Ingagement There are also three prime Principles of the positive Law whose aim and terest is the profite and utility of man as the Natural Law is in equo so the positive Law is in bono or utili and upon those two legs doth Justice move in giving every man his Right If man had not fallen there had been no distinction betwixt bonum and equum nor had there been anything more profitable than the full following of the Natural Law but man being now depraved and wanting Justice or that willingness to give every man his Right and apt to fraud or force therefore in this estate it is profitable for him to quite something of that which by equity is his due for peace and quietness sake rather than to use compulsion and quarrelling in all things and to find out expedients and helps to make equity effectual And therefore to make up societies of men that they may mutually defend one another and procure to one another their Rights and also to set clear limits to every mans Property and to maintain Traffick and Commerce among themselves and with others so that the three Principles of Positive Law may be Society Property and Commerce The Principles of Equity are the efficient cause of Rights and Laws the Principles of Positive Law are the final causes or ends for which Laws are made and Rights constitute and ordered and all of them may aim at the maintenance flourishing and Peace of Society the security of Property and the freedom of Commerce and so the Narratives of Statutes do commonly bear the motives introductory towards some of these Heads 18. Obedience is that submission and sequacity of the mind and will of man to the Authority and Will of his Maker immediately oblieging without any tye upon him by himself intimate to him by the Law of Nature Light of Reason and the Conscience whereby man distinguisheth betwixt Right and Wrong betwixt what is Duty and what is not Duty hence do arise these Obligations upon man which are not by his own consent or ingagement nor by the Will of Man but by the Will of God and therefore these are fitly called Obediential Obligations The first and most general of these is To Love the Lord our God with all our heart and our Neighbour as our Selves upon which saith our Saviour hangeth all the Law and the Prophets Matth. 22. vers 40. which is a clear demonstration from his Mouth of the dependence of the Moral Law upon this Principle such are also the Obligations betwixt Husband and Wife Parents and Children and the Obligations of Restitution Reparation and Remuneration in all which we are ingaged not by our will and consent and such are the Obligations which the Civilians call Quasi ex contractu because they find them Obligatory and yet not by Contract and not adverting this their rise from Obedience reduce them to Contracts by a quast 19. Where Obedience ends there Freedom begins and man by Nature is Free in all things where this Obedience has not tyed him until he obliege himself It is a great mercy to man that God hath oblieged him only in a few necessar moral duties and has left him free in much more without any tye upon him as to the matter but with a liberty ad contradictoria that he may do or not do and ad contraria that he may do this or the contrair providing that whatsoever he do even where he is free be ordered and directed to the Glory of God It hath been the opinion of some both Learned and pious that there is nothing indifferent in actu exercito or as it is invested with the Circumstances but that then every thing is a duty or a sin and that because all things must be done to the Glory of God and to mutual edification from whence there is no exception and so are not free that we must make account of every idle word and that we are oblieged to try all things and to hold that which is best These Reasons indeed conclude that there is nothing free as to this contradiction either to be done to the Glory of God or not and to Edification and Use or not but do not conclude that there is duty or necessity in the matter of the Action it self of which either part of the contradiction may be chosen so that either part be useful and ordered to the Glory of God as saith the Apostle He that observeth a day observeth it to the Lord and he that observeth not doth so to the Lord. And likewife in that undenyable instance of Marriage wherein the Apostle debating of the conveniency to Marry or not to Marry doth conclude so that he that Marrieth doth well but he that Marrieth not doth better whereby both parts of the contradiction are approven and that which is less profitable is said to be well done Therefore there is a great difference betwixt duty which is necessar and wherein we are oblieged though we mistake or be wilfully ignorant by the very weight of the matter and absoluteness of the Command wherein the ordering of what is forbidden to Gods Glory will not justifie as we may not do evil that good may come of it as those who killed the Apostles were far from being justified though they thought they did God good service thereby These things are bona honesta mala inhonesta but matters of expediency are but bona utilia or mala inutilia and not inhonesta and therefore our duty in these is that which we conceive most to be for the Glory of God and good of our selves and others but if we do mistake and choose that which is less expedient for these ends we are free God seemeth to do with men as Princes do with their Ambassadors to whom they give some express instructions wherein they have no latitude in their Negotiations and for the rest to do as they shall judge most fit upon the place wherein if acting bona fide they mistake and do not that which is most fit they are not culpable So man being sent into the World to behold the Works of God and to Glorifie him for doing whereof he hath some Rules written in his Heart by the Law of Nature and in the Word of God and for the rest is allowed to do as he conceiveth most conducible thereto that whether heeat or drink or whatsoever else he do he do all to the glory of God It were a sad Rack to the Consciences of men if their errors and mistakes in the matters of
Legacies or Fideicommisses may be general whereby a quantity is left or special whereby an individual Body is left as such a Horse c. so may they either be left purely or conditionally or to a day 21. This is common to all Legacies that if the Legatar die before the Testator the Legacy becomes void and is not transmitted to the Heirs and Successors of the Legatar Neither doth the Legacy belong to the Legatar ordinarly if the Testament wherein it is left be void for want of the requisit 〈◊〉 of which formerly unless it have the codicillar Clause or if the Heir do not enter or if the Codicills in which it is left or if the Testament having the codicillar Clause want the Solemnities requisit to Codicills 22. If the Legacy or Fideicommisses be conditional the Legatar dying before the existence of the Condition loseth the Legacy and doth not transmit it to his Heir if it be a casual Condition but if it be a potestative Condition depending upon the power of the Legatar and not upon accident without his power or if left to an uncertain day which is equivalent to a casual Condition if so the Condition be in the Legatar's power unless he did all diligence to satisfie the same he loseth the Legacy But if the Condition fail not through his fault as being offered and not accepted or being impeded by any third party the Legacy is thereby transmitted to the Legatar's Heirs who are only lyable for the interest of the Condition Legacies pure or to a certain day are transmitted by the Death of the Testator especially if the Heir be entered though the day be not come quia cessit dies sed non venit 23. In the several Cases by which Legacies are established and transmissible the property thereof is in the Person of the Legatar if it be a special Legacy but the possession thereof remains in the Heir against whom the Legatar hath not only a personal Action for payment or delivery of the Legacy but hath also a real Action of vendication against him and all other havers thereof for delivety of the same So fideicommisses which are not conditional are not alienable by the Heir but are recoverable from every singular Successor 24. Conditions adjected to Legacies or fideicommisses are of diverse kinds of which shortly observe 1. That when Conditions are copulative they must all be joyntly performed or when diverse Conditions are severally set down in several places of the Testament But if they be disjunctive the 〈◊〉 formance of any of them is sufficient 2. If the Condition be divisible and performable by more persons each performing his part hath access to his Legacy But if it be imposed upon one person the performance of a part thereof doth not give access to a proportionable part of the Legacy but the Condition must be wholly performed otherways there is no part of the Legacy due 3. Conditions impossible in facto as not being lawful regularly are void and as not adjected Amongst which that is accounted one if Marriage be absolutely prohibited which the Authenticks restricted only to Maids and found it lawful in the case of Widows to adject such a Condition si Titionubat and therefore if the Legater married not to that Person the Legacy was not due In Legacies and fideicommissis a false Narrative vitiats not as when the efficient Cause mentioned therein was not true for example if a Legacy be left bearing to have been for Services done generally or particularly albeit these were not done it is valid But the expression of the final Cause implys a condition and if it be not performed the Legacy ceaseth causâ non sequntâ As when Legacies are left for such Uses Services or Deeds to be done Legacies being gratuitous are of the nature of Donations and therefore are revocked by Ingratitude Ipso facto not only in reaching the Defunct as if Inimity rose betwixt him and the Legatar but even after his Death as if he curse him or endeavour to make him infamous Yea those things against the Heir will be sufficient to take away the Legacy So much may serve for a Summary of the Roman Law in the matter of Testaments As for the Succession of the Intestat it being one without distinction of heretable and moveable Rights we have spoken thereof before Title Succession We shall therefore only touch on those points which are common in all Successions by the Roman Law viz. of the Inventary Collation of Goods and Right of Accrescence 25. The Inventary of Heretage was a Repertory of every Particular contained therein and was contrary to the Rules of the ancient Roman Law l. si dotis nomine 33. ff soluto matrimonio by which there was neither a Duty nor Benefit to the Heir by an Inventary But the use thereof was introduced by Justinian in favour mainly of Heirs and in some cases of Creditors and Legatars Of Heirs that they might not be lyable for the Defunct's Debts in solidum but secundim vires inventarij according to the value of the Inheritance And this much in favour of the Creditors and Legatars that the Inheritance might not be imbesled And therefore the making of the Inventary was appointed to be with great Solemnity before a Judge upon Citation of the Creditors and Legatars so far as they were certain and publick Proclamation for the rest and before famous Witnesses And in place of the absent Legatars and Creditors three persons were to be present besides the Witnesses of good Fame and Means The Inventary behoved to be made within 30 dayes after the Heir knew and could enter to the Heretage and behoved to be compleat within 60. dayes after the beginning thereof The Inventary not being thus made the Heir was lyable to the Creditors for their whole Debts and to the Legatars for their Legacies without deduction of his Falcidia Neither could the Testator dispense with or prohibite the making of the Inventary in prejudice of the Creditors but he might in prejudice of the Legatars so as the Falcidia would be due in that case though the Inventary were not made 26. Collation is the Obligation of the nearest Heirs descending to communicate what the Defunct Parent bestowed upon them by Donation or Tocher unto the Inheritance that an equal Proportion or Division might be of the whole amongst the Co-heirs The reason of this Collation was the equality of interest and affection of Parents to their Children of the same Degree and thence their presumed Will that these should enjoy equal benefite by their Parents And therefore if it appeared not to have been the Parents Will Collation had no place As if the thing were bestowed with express exemption ot prohibition of Collation or if it were left as a Legacy or Donation mortis causa for thereby the Parents purpose appeared to prefer that Child to the rest even after the Parents Death Collation was competent amongst no other Heirs than Descendents in the
competent to a Cautioner who in a new Bond of Corroboration had ingaged for the Debt with the Principal and that against the Cautioners in the first Bond though he had no Assignation to the Clause of Relief granted to the first Cautioners Spots Cautioners Lubra contra david Vauns The same must hold in Con-tutors Co-curators and wherever more Debitors are lyable in solidum for the same Debt or deed TITLE IX Reparation where of Delinquences and Damnage thence arising 1. The Obligation of Reparation of Damnages by Delinquence a Natural Obligation 2. Delinquence infers the Obligation of Punishment and Reparation of the Injured 3. Damnage Described 4. Kinds of Delinquence 5. Concurrers in Delinquence how lyable 6. Special kinds of Delinquences by our Customes 7. Assythment 8. Extertion vi majori metus causa 9. Circumvention by Fraud dolo malo 10. The Edict de dolo malo 11. Circumvention rarely inferred by witnesses 12. Simulation 13. Collusion 14. The effect of Fraud as to the party Contracting 15. Deeds done in fraudem Creditorum contrair the Act of Parliament 1621. anent Bankrupts 16. The Nature of Spuilzie 17. The Title of Possession 18. Oath in litem in Spulzies 19. Spuilzie eleided by any colourable Title Warrand or bona sides 20. Spulzie eleided by voluntar Delivery 21. By lawful Poynding 22. Replyes against Poynding 23. Spuilzie eleided by Restitution within twenty four hours 24. Prescription of Spuilzies 25. Intrusion and Ejection described and distinguisbed 26. Ejection propper to the Natural Possessour 27. Exceptions against Ejections 28. Mollestation 29. Breach of Arrestment and Deforcement 30. Contravention AMONGST Obligations Obediential we have placed these which are by Delinquence because they arise without any Convention Consent or Contract either particularly or by vertue of any Positive Law and therefore they must needs have their Original from the Authority and Will of God and of our Obedience due thereto for though they do proceed from our Fact and from our Will whence that Fact is voluntarly committed yet it is not from our Contracting Will and therefore these Obligations do not receive their measure or extent by our will 1. That Obligations of Delinquence are introduced by the Law of Nature the Suffrage of all Men and all Nations will evince who do every where acknowledge the Reparation of Damnages and Punishment of Crimes and Injuries as having by Nature a clear Evidence and sharp Sense thereof and thereupon can without Reluctancy concur with the Magistrate in the Punishment of Citizens and of Enemies by the sword But it may be doubted how the Law of Nature which is perpetual and had place chiefly in Innocency can prescribe any thing in relation to Delinquency or Malifice which was not to be found in that condition This will be easily cleared if it be considered that though Man was made in the state of Innocency yet had he a natural Instability for which God did warn and arm him and though the Principal and direct Law of Nature did teach Man to love his Neighbour as himself yet he could not but by consequence know though he had stood in Innocency as do the Angels that any who acted against that Royal Law of Love by doing evil to his Neighbour and taking away from him that which is his ought to Repair him and to be lyable to Divine Justice which is that Certification which God put upon his Natural Law as he did more expresly upon the forbidden Fruit morte morieris 2. An Obligation of Delinquence is then that whereunto Injury or Malifice doth obliege as the meritorious cause thereof as the Will of God thereupon is the efficient cause and it is twofold either that which relateth to God or that which relateth to Man the former is the Obligation of Punishment Pain or Penalty for unto God there can properly no Reparation be made by the Creature whose duty and service is due to him so that to him the Creature is oblieged to underly the Punishment In reference to Man is the Obligation of Reparing his Damnage putting him in as good condition as he was in before the Injury and this only is Mans part for himself for the inflicting of Punishment is for God in so far as it is Authorized or allowed by him but it is not for or from Man of himself Revenge is mine and I will repay saith the Lord For as hath been said before an Obligation in the Debitor hath a correspondent power of exaction in the Creditor which is the personal Right So in Delinquence the power of exaction of Reparation of his Damnage is Mans for himself but the power of exacting Punishment is in God and as for him or 〈◊〉 it is 〈◊〉 to Man it is but a Ministerial Power and not Dispensible at 〈◊〉 pleasure and hath an Obligation whereby Man 〈◊〉 bound to God for doing his duty therein Though Positive Law and 〈◊〉 of 〈◊〉 and in some things the Positive Law of God it self may 〈◊〉 a 〈◊〉 and imploy it for the proper use of the Injured yet it is not a proper punishment that hath its force by Paction or Positive Law and nor by the Law of Nature The Obligation to Punishment arising from 〈◊〉 and Mans Power and duty to inflict the same is a publick Right which though naturally did concern every man yet it is now with Divine approbation for most part devolved upon Publick Authority which is said Rom. 13. 〈◊〉 3 4. To be a terrour to evil doers and not to bear the sword in vain for be 〈◊〉 the Minister of God a Revenger to execute wrath upon him that 〈◊〉 〈◊〉 by which it is clear that the Magistrate as he Executeth Revenge doth 〈◊〉 not of or for himself nor for or from the people as their proper Right or power of exaction but therein as he is the Minister of God he doth 〈◊〉 for and from God even though his Authority and Commission were not immediatly from God but from Man yet he stands in the place of these Men to God to Execute that Revenge which they themselves are naturally oblieged unto But how far Mans Natural Duties or the Magistrats in the Punishment of Crimes reacheth the Lines of the Law of Nature are become dark in many Points It is manifest and agreed by all that though in all Damnages done to man there are also Punishments which may be inflicted by God yet where the matter is chiefly Mans Interest and so Repairable to him none will think that it is a duty in all of these cases to inflict vengeance on such neither doth any own a Power and necessity to inflict Punishments for Mans Spiritual Delinquence standing in his Mind and Affection as for want of Love and Confidence Hope c. In somethings also the power of Punishment is no less evident even when there can be no Reparation to man as in that general Precept of equal Crimes and Punishments Life for Life Eye for Eye Tooth for Tooth c. But
by their Warrand or Commission to seaze upon the Goods of all persons under the Dominion of such Princes or people who have refused to make just reparation for the wrongs and damages done by any of their Subjects which the Law of Nations doth justly and necessarly allow for the common good of mankind for if private persons be injured by these who are not under one common authority with them by Piracy Pillage or otherways oftimes they cannot know the injurer and all force being stated in publick Authority they cannot make use thereof to redress or revenge themselves and therefore they can only make application to the Soveraign Authority of that society of people whereof they are members and represent and instruct the injury and damage sustained by them by the Subjects of other Princes or States and thereupon desire that a redress may be demanded which is ordinarly done by Ambassadours or other Ministers of State and if redress be not so obtained the Soveraign authority of the persons injured may and ought to give Commissions for seazing upon the goods of any of the people of that Society whereof the injurers are members till just satisfaction and reparation be obtained and though there be that singularity in it that the goods of these who did not the injury are taken to satisfie the same yet therin there is not only necessity but moral justice allowed and approven by the Custom of all Nations by their common consent for without this Societies could not be preserved and therefore the publick association of people implyeth this in it that the Society is lyable for reparation of the injuries and damages of any of their Society when reparation is refused Reprysals ought to be limited to a just satisfaction and therefore what is thereby seazed ought to be adjndged in Courts of Admirality wherein it ought to be proven that the goods seazed belonged to persons of that Society of which the injurer is a member and to be valued according to the rate they are worth where they are brought in and to be adjudged in satisfaction to the injured of their damage and interest in whole or in part So that the excress should be forthco ming to the owner thereof and so soon as satisfaction is obtained the reprysals ought to ceass Neither doth the use-making of reprysals in this just order and measure import the breach of Treaties or common Peace or infer publick War though they may become the occasion thereof 43. But where the injury is publick and attrocious the Law of Nations hath necessarly and justly allowed publick War not only to reach the moveables of publick enemies but their Territories Jurisdictions and Estates wherein the proportion of satisfaction cannot be so measured nor is it so considered as in reprysals That which accreweth to privat persons in War is only the giving of quarter or getting of spoil in so far as the same is allowed or permitted by the Commanders in chief warranted by publick Authority as is ordinar to the Souldiers upon defates of their enemies to seaze upon and appropriat such moveables as are upon their enemies persons or in their baggage And sometimes for the encouraging of Souldiers besieging and for the obstinacy of the besieged the plunder of places gained by force is for some time permitted and ceasseth so soon as countermanded In other cases what belongs to enemies is confiscated for publick use and Souldiers ought to be contented with their wages 44. The main privat interest in publick War is that which accreweth by Commissions granted by the Admiral for seazing and appropriating of the Ships and Goods of publick enemies and of these who become partakers of the War and who carry not themselves as friends or newters to the Princes or States ingaged in the War For by our Custom albeit such Ships and Goods be confiscat as publick belonging to the King or States yet private persons who undertake these Commissions have the expenses and profit of these seazures paying a fifteenth part thereof to the King and a tenth part to the Admiral There have been many questions as to the Rights and Interests of Allies and Newters very fully and accuratly debated and decided in the Session upon occasion of the late Wars betwixt the King and the States of the United Provinces which because they are of great use for clearing the important points that occur in these controversies and for vindicating of the publick justice of the Kingdom we shall in the clearest and shortest method we can give account of what hath been determined in all the Pryzes which came before the Lords of Session in these Wars The Lord Admiral of Scotland is the Judge ordinar and the sole Judge in the first instance of all Prizes taken at Sea but in the second instance the Lords of Session who are the supream Judges in all civil Causes in Scotland which are not determined by or depending before the Parliament or their Commissioners do upon complaint of iniquity committed by the Admiral before final sentence Advocat such Causes wherein they find probable ground of iniquity alledged and instructed or in the second instance after sentence do grant Letters of suspension or reduction of the Admirals Decreets whereupon all intricat and difficile questions in matters of Pryzes come to be debated and determined by the Lords there is no question when the Goods and Ships seazed on belong to enemies but only when they do belong or are pretended to belong to Allies or Newters The Lords upon complaint of iniquity committed by the Admiral it being alledged that the Lords were not Judges in the matters of Pryzes in the first instance yet they found both by the amplitude of the power of their Jurisdiction and by the custom in former times that it was competent to the Lords to Advocat Causes from the Admiral upon iniquity albeit the process cannot begin before them in the first instance for as they are the Kings ordinar Council all matters not belonging to the Jurisdiction of another Court belongeth to them and therefore they may and oft have Advocat Causes from the Justice General and other Judges in Criminal Causes albeit the Lords cannot decide these Causes as being only Judges in Causes Civil yet they may Advocat the same that in case the reasons of Advocation be relevant and proven they may remit the Cause to the proper and competent Judge if the reason of Advocation be upon incompetency or to other unsuspect Judges if the reason be upon the suspicion of the Judge as being concerned in the Cause or nearly related to the parties or having enmity against any of them and therefore the Lords in the Advocation raised by the owners of the Ship called the Bounder against Captain Gilleis it being alledged that the Admiral had committed iniquity in granting a conjunct probation for proving the property of the Ship and loadning the Lords found this no relevant ground of Advocation of the Cause it being