which is oft-times very useful and this publication is for these reasons allow'd by the Civil Law and in most Nations vid. Marant de processus publicatione and in England in all cases and is even with us allow'd in some cases yet as in Falshood CLerks to the Signet are now called Writers to the Signet but their Fees specified by the next Act are innovated by the Regulations at first there was but one Clerk of Session who was called the Clerk of Council as is clear by the 53. Act of this Parliament and he was chosen per vices out of the Writers to the Signet but all the Writers to the Signet or Clerks of the Signet were at first admitted to be present at the decision of Causes whereof this Act is a Vestige Thereafter there were two Clerks of the Session and at last three but lest their number should increase by an unprinted Act of Parliament it was declar'd that they could not be moe than three notwithstanding whereof in Anno 1661. The Register appointed six whereupon the King by his Letter in Anno 1676. reduced them again to three and now again there are six Clerks as before the year 1675. IT is appointed by this Act that deliverance upon Bills presented to the Session be only Written by a Writer to the Council that it to say a Clerk of Session and not by a Writer to the Signet BY the last words of this Act it appears that an Advocat may be â—â—mpelled to plead for any man except he can alledge that he 〈…〉 employed for the other Party or the like c. which is 〈…〉 the Civil Law l. 7. C. de postulando 〈…〉 present practice Advocats and all remove at the advising 〈◊〉 the Cause though in England and France Causes are openly advised which discourages very much all arbitrariness THat Advocats should propone all their Dilators together the second time is still ordered but never observed for where the Dilators are of importance or intricat the Lords will allow them to be proponed separatly BY this Act such as misrepresent the Lords or accuse them unjustly either by a formal Process or to the King are to be punish'd Arbitrarly by way of Action for they are here appointed to be called before the King but such as dishonour or lightlie them are to be punished by the Lords themselves and the Lords are in use to send such as contemn them or their orders to the Castle or Tolbooth or to ordain them to crave pardon upon their knees c. suitable to the offence The Lords are to this day free of Taxations conform to this Act but of late if there be no exception of them in the Acts imposing Taxations they are in use to get a Letter from the King declaring them free though this may seem needless because of 23. Act Par. 1. Ch. 1. and the 23. Act Par. 1. Ch. 2. Though the Precedency due to the Wives of Lords of the Session or Advocats be continued with them after their Husbands death which we derive from the Civil Law l faemina 8. ff de Senatoribus yet immunity from Taxes is not extended to their Wives Stockman Decis 65. King JAMES the fifth Parliament 6. THough regularly Crimes die with the Committers and cannot be punish'd after their death yet by this Act it is ordain'd that Treason may be pursu'd after the committers death which holds only in Treason committed against the Kings person and Common-wealth that is to say in perduellion where there is a design against the Kingdom such as raising War bringing in Forreiners c. but holds not in simple Treason or laese Majestie such as are the keeping out of a Castle or in offering to detain the King's Person Prisoner upon any private account for the words against the King's Person or Common-weal are copulative neither does this Act hold in Statutory Treason which are meerly Treasons by vertue of a Statute such as Stealing in Landed men or Murder under trust c. In all cases where Treason is to be pursued after the death of the Committer it is necessary to call the appearand Heir because his right as appear and Heir is to be forefaulted by the sentence but though it is ordinarly believ'd that the bones of the Committer must be raised and brought to the Bar yet this is not necessary Nota That the Common or Civil Law is a sufficient warrand to sustain Actions in this Kingdom because of its great equity except where the same is over-ruled by a contrary Law or Custom The Civil Law to which this Act relates is l. ult ff ad l. Jul. maj Extinguitur crimen mortalitate nisi sorte quis Majestatis reus suerit It has been much doubted amongst Lawyers how far the Delict or Crime of the Predecessor should infer Action against their Heirs which may be resolv'd in these conclusions 1. That all corporal punishment expires with the Committer nam noxa caput sequitur instit lib. 4. tit de nox Act. 8. per tot § 5. 2. As to any Civil conclusion quoad interesse pecuniarium the Civil Law did only sustain restitution against the Heir in two cases viz. If either Litis-contestation had past in the Defuncts own time or if the Heir had got advantage by the Crime or Delict of his Predecessor as if for instance the stollen Goods or the Money conceal'd by his Predecessor had remain'd with him § Non autem omnes 1. Instit. de perpet temporal Action 3. By the Canon Law the Heir was lyable to refound the damnage done by the Predecessor though there was neither Litis contestation past in his time nor did any advantage remain with his Heir cap ult ext de sepult cap. in literis ext de rapt And though the opinion of the Canonists seem to the Lawyers of this age more equitable they thinking Litis-contestation but a subtilty yet I conceive that there was very much reason for the Civil Law to require Litis-contestation since if the Defunct himself had been pursu'd he might have alleadg'd many things which might have defended him that were unknown to the Heir as for instance he might have alleadg'd that the Sheep alledg'd to be stollen were intrometted with by the Owners warrand and might have cited Witnesses who were present which the Heir could not know and yet our practice follows the Canon Law as more conscionable I find that in the 5. Council at Constantinople it was after debate found that Origin and Theodorus might be Anathematiz'd after their death though Vigilius then Pope of Rome maintain'd neminem post mortem condemnandum and this occasion'd a great Schism There is interpos'd betwixt this and the next Act a distinct Act in the Black Impression whereby the King and Parliament ordain several Acts past in the last Parliament to be now pronounc'd and authoriz'd by his Grace and the three Estates which has been left out because the way
but now by the foresaid 5 Act 1 Par. Ch. 2. all sums to be rais'd for maintainance of Forts or Armies must be first concluded in Parliament or Convention of Estates And now the King has a considerable Revenue by the Excise for defraying those small necessities for which the Council then impos'd and it is certain in the general that all Countreys should supply the Monarch with Means to defray the expence of the Government Vid. Arnis de jur Majestatis in bona privatorum Vid Act 85 Par. 6 Ja. 4. BY this Act the making privie Conventions or Assemblies within Burghs to put on Armour or display Banners c. without Licence from the Soveraign are punishable by Death Observ. 1 o. It seems that meer Convocations or Assemblies are not per se punishable by Death without putting on Armour or displaying Banners Observ. 2 o. That Naked-assistance at such Tumults with a Batton was not found by the Justices to infer Death in anno 1665. and I conceive that though a previous design were prov'd yet the assistance with a Batton would not be sufficient since the Act requires putting on Armour or Cloathing themselves with Weapons which imports hostile VVeapons for neither of these can be verifi'd in a Batton and penal Statutes are not to be extended but yet the appearing with a Batton is sufficient to punish arbitrarly such as assist at Tumults THis Act Confiscating Ship and Coals wherein Coals are Transported is in Desuetude but is not expresly abrogated by any Law and though at first Licences for Transporting Coals were necessary yet now even these Licences are in Desuetude we having now discovered more Coals than serves our Nation THis Act Confiscating Beeff and Mutton that comes to Mercat without Skin and Birn is still in observance and was made for discovery of Theft for the Skin being upon the Beast that is kill'd does bear all marks whereby it may be known and for the same reason in the Southern Shires the meaner sort who kill any Beasts are oblig'd to keep their Ears and if the Flesh be found where the Ears cannot be produc'd it is commonly look'd upon in these Countreys as a point of Dittay not only must the beasts be brought to the Mercat with their Skins according to this Act but by Acts of Burrows the Skins that are brought to the Mercat must not be scor'd nor holl'd which Fleshers did before negligently nor must the Haslock be pull'd that being the best part of the VVool and by the Acts of the Convention of Burrows made at the desire of the Conservator the Skins of Beasts within this Kingdom did rise in value a third more than when they were carried beyond Sea Qeen MARY Parliament 10. BY the second Act 1 Par. Ja. 2. which is the Act here related to the Kings lawful age was declar'd to be twenty one Years but it seems that because it was left dubious by that Act whether the Year twenty one was to be inceptus or completus when begun or ended therefore by this Act it is declar'd to be twenty one Years compleat and the word compleat is twice repeated And it seems that before this Act even the year it self was debateable for in the 93 Act 7 Par. Ja. 5. It is said that the King after his perfect age of twenty five years Ratifies c. By an Edict of Charl. the fifth of France anno 1375. Their Kings are declar'd Majors hors de tutelle at their age of fourteen IN this Act all Confirmations of Kirk-lands not Confirmed by King or Pope before the Year 1558. at which time the Reformation begun were declar'd null and by this Act Confirmations from Rome after that Year are discharg'd and the Queens Confirmations are declar'd equivalent to the Popes and I find that by Act of Secret Council September 10. 1561. the sending to Rome for such Confirmations is by Proclamation discharg'd under the pain of Barratry K. JAMES VI. Parliament I. QUeen Mary being Queen during her Life appoints the Earl of Murray to be Regent and his Election is Confirmed by this Act and it is Declared to last till the Kings age of seventeen at which time it is Declar'd that he shall enter to the exercise of the Government I find amongst the Un-printed Acts subjoyn'd to this Parliament a Resignation of the Crown made by her which it seems was necessary she being Soveraign during her Life as the King is during his Life Observ. She calls the Earl of Murray Brother though he was her natural brother which was conceal'd ob honorem but Ineptly and though the Earl of Murray is here call'd the Kings Cousine yet he should have been call'd his Uncle Nor are Uncles properly Cousines But I think this was because all Earls who are Counsellors are call'd Cousines and Counsellors but yet if he had been to have been call'd a Counseller for this cause he should have been call'd Cousin and Counseller I have also seen a Commission to one of the Kings Natural Sons in England wherein he was call'd our Cousin It is observable that sometimes the Acts of this Parliament bear to be by Our Soveraign Lord my Lord Regent and the three Estates as the 20 21 and 29. which is not well exprest for the Estates and Regent had no power to make Acts and therefore the rest bear better Our Soveraign Lord with the advice and consent of his clearest Regent and three Estates Nota The Parliaments saying my Lord Regent seems very ill Grammar for it should have been the Lord Regent THose Acts Confirm and relate to former Acts past in the Parliament holden by Queen Mary August 24. 1560. and yet we find no such Parliament but the true answer to this is as appears by Spotswoods History that the Lords of the Congregation having met in anno 1560. and having past those Acts abolishing the Popish Religion many of the Members of that pretended Parliament protested that this meeting was no Parliament because there was none there to re-present the Queen nor the King of France her Husband whereupon Sir James Sandilands was sent over to procure a Ratification of these Acts which being deny'd the same Acts are here Ratifi'd by the Earl of Murray when he came to be Regent as if they had been past in a lawful Parliament FOr understanding of this Act and the nature of Patronages it is fit to know that the Right of Patronage is a power of Nomination granted to him who either was Master of the ground whereupon a Kirk was built or who doted any thing to the Maintainance of it or who did build a Church to present one to serve the Cure thereat in all which cases he is accounted Patron and may present a person to be Minister or to any other Benefice and that only if he reserve such a power to himself in his Mortification for Hope in his Lesser Practiques is of opinion that
caducitatis comminatione legali certus terminus statui si â—â—tra eum instrumenta non edat This Commination is our Certifiâ—ation and this Terminus is our Term in Improbations Rosenthal cap. 8. concl 33. num 13. and 14. In these Actions the King needs produce nothing to prove that he is Superior for the King is presum'd to be general Superior and is Infeft Jure Coronae in all the Lands of Scotlaâ—d but though other Superiors must produce a Seasing of the Lands yet they need produce nothing to prove that the Dâ—fender is Vassal who is oblidg'd to produce upon his hazard or else to disclaim and yet if the Superior Libel only that he is Infeft in such an Earldom and that the Defenders Lands are part and pertinent of the Earldom without producing any thing to instruct that he stands expresly Infeft in these Lands as a part of his Earldom the Lords would not put the Defender in that case to produce Simpliciter but allowed the same day to the Pursuer to prove that they were Part and Pertinent of the Lands wherein the Pursuer stands Infeft and to the Defender to produce if that were proved for the Lords thought it hard to force Heretors to propale and lay open the secrets of their Coveyances where it was not certain if the Pursuer had any Interest albeit it was alleadged that this would occasion two Litiâ—-contestations in one Cause viz. One whither the Pursuer had Right and another whether the Defender had sufficient Interest to seclude the Pursuite for the Lords thought that this being an Act before answer did solve this difficulty and the ordinar Maxime that the Vassal must disclaim upon his hazard and the Argument that either the Pursuer was Superior and would be found to be so and then there was no wrong done or else he was not and in that case the Defender was in no danger by disclaiming were both found only to take place where the Pursuer produc'd a special Right to the Lands Libell'd but not where he pretended only that the Land possest by the Vassal was part and pertinent of his Land which any Pursuer might alledge The third and old way of forcing the Vassal to exhibit his Evidents was by a Feudal Tryal per pares curiae that is to say before an Inquest for of old the King summoned his Vassals to appear before an Inquest to bring with them any Right they pretended to such or such Lands and that way is exprest in this Act as well as the other and in Statut. 36. Rob. 3. num 3. but is now in Desuetude The Lords of Session being come in place of the Inquest The Earl of Rothes as Donator to the Ward of the Countess of Buâ—cleugh having pursued the Tutors for inspection of the Charter-Chist that he might know what Lands held Ward The Lords ordained one of their own number to take inspection and to shew to the Donator what Papers could prove the Ward-holding because it is presumed that all Lands hold Ward Decem. 20. 1661. FRom this and the subsequent Acts It s observable that the Parliament may without citing parties discharge priviledges contained in private mens Rights though they cannot without citation casâ—e and annul privat Rights FOR understanding this Act It is fit to know that the distance betwixt the Hecks of Cruivs should be 3. inches wide which is renew'd by the 74. Act Parl. 10. Jac. 3. and should not be 5. inches conform to the 15. Act. Parl. 2. Jac. 4. which the Lords found 29 July 1665. to be ane error in the Printing They there also found that the Mid-stream was in Desuetude notwithstanding that it was reviv'd in all these Statutes but that the Saturndays Slop was to be observ'd in all Cruivs which was to continue by pulling up all the Hecks to the breadth of an ell in every Cruive from Saturnday at six a clock till Sunday at Sun-rising THough Mines of Gold and Silver be by this Act declar'd to belong to the King yet by the 27 Act. Parl. 4. Sess. 2. Car. 1. they were declared to belong to the Heretor he paying to the King the tenth Penny which was the Canon Metallious that was only due out of Mines found in private Fields l. 2. C. de Metal But that Act is resâ—inded in the general Act Rescissory and this Act is conform to the Feudal Law Feud lib. 2. tit quae sunt Regalia 56. It has been doubted whether Lead Copper or Tin belong to the King or the Heretor but the King is in possession of disponing upon these also and when He dispones them in a novo damus even to the Heretor He reserves a tenth part to be payed in to His Exchequer and His Majesty has granted general Gifts of all Copper-Mines and Craig tells us lib. 1. dieg 14. that omnium gentium omniumque aetatum consensu â—odinâ—s omnes auri argenti stanni aris similium in patrimonio principis numerari but yet they are not enumerate in the foresaid Text of the Feudal Law otherwise than by being comprehended under the word argentaria frequens est in jure sub majoribus minora comprehendi and yet I think that if His Majesty dispon'd Land with all the Silver-Mines this would not comprehend Copper Tin c. So that this Rule holds not in all Cases nor doth it hold in any Case where things require special Dispositions as omnia regalia do Nota From this Act to the 23. the Acts are either in desuetude of no import or explained in the Observations upon other Acts. BY this Act it is ordain'd that our Coyn be of the weight and fynness of England which was formerly ordain'd by the Ch. 38. Stat. Dav. 2. and though by the 17. Act. Parl. 1. Ja. 6. It is declar'd that Our Soveraign Lord cause Print and ConÈie Gold and Silver of sick fynness as other Countries doe yet after King James succeeded to the Crown of England He past a Contract betwixt the Mints of both Nations wherein they oblige themselves to keep the same Standart and though the denominations be different now yet the Standart is now the same For the English Denomination is 11. vnces 2. deniers fine which is call'd Sterling fyne ours is 11. deniers and 2. graine and albeit upon a very subtile inquirie It is alleadg'd that the Denominations cannot be adjusted without some difference yet it is so small a fraction as is not to be regarded and there are four indented Pieces two of Gold and two of Silver made of the same fynness and out of the same Essay-pot two whereof are sent to Scotland the one of which is kept by the Thesaurer and the other in the Mint and two are retain'd in England the Denominations are Printed upon these Pieces and in the Lord Hattons case it was found that this common Standart was to be the Rule Vid. Observation on the 249. Act 15. Parl. Ja. 6.
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
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
aestimatio rei creditae creverit aut decreverit yet in Money perpetua est aestimatio l. 1. ff de contra hend Empt. For clearing of which Question Vid. Vin. Quest. Select lib. 1. cap. 39. and so this Act is in Desuetude Vid. Act 19 Ja. 3 Par. 3. But though Debts upon privat Obligations were to be paid with Money at the same avail that the Money was at the time of the Contract and not the time of the payment Yet the Kings Taxations and publick Dues were by the Kings own Concession to be paid according to the value of the Money at the time of the payment and are not to be exacted in Money according as the Money was worth before it was cry'd up Vid. last Act Par. 3 Ja. 3. It has been much doubted whether it was true Policie to cry up Money for though this seems to be an encouragement to forraigners to Export our Commodity of which we have too much and to Import Money of which we have too little Yet it is urg'd on the other hand that in crying up Money we do but undervalue our own Commoditie and our own Land and raise the value of Money which is the Commodity of a forraign Countrey such as Spain and other places who have Mines as for instance if we have use for carrying our Money abroad Forraigners will only give us Commodities conform to the intrinsick value for they will not consider our raising of it and so he who got the Money which was so rais'â— is cheated in as much as the Money is rais'd above the intrinsick value 2 o. As to our own Commodities at home either they are rais'd to the same proportion with the Money and then forraign Merchants will not bring in Money for our Commoditie because they can gain nothing by bringing it in and so we lose the design of raising our Money or else the Commodities are not rais'd in value to the Money and so the forraign Merchant does only cheat us as for instance if our Money be rais'd a tenth part the forraign Merchant gives us only nine Pieces for ten 3 o. This raises the Exchange to our great loss for he who draws the Bills upon London or Paris considering that our ten Pieces are but nine there he will add the value of a tenth Piece to the Exchange 4 o. If forraign Princes find we have advantage by this raising of our Money they will either raise their own to the same proportion and then we shall have no gain or to a higher and then we shall have loss and at best diâ—ferent raisings of Money will occasion but great variation and uncertainty in Coyns COurts of Guerra here forbidden seem to have been Courts holden upon Neighbour-feid and Riots and Skeen founds them upon § ult tit 17. de pac tenend lib. 2. de feud Si ministeriales alicujus domini inter se Guerram habuerint comes sive judex in cujus regimine eam fecerint per leges judicia ex ratione prosequatur King IAMES the third Parliament 9. THis Act is Ratifi'd by the Act 30 Par. 11 Ja. 6. Vid. Observ. on that Act. King JAMES the third Parl. 10. THough all men be allow'd to bring in Victual from forraign Countries by this Act yet the Importation of Victual from Ireland is Prohibited by Act 3 Sess. 3 Par. 2. Ch. 2. THe Act concerning Cruives is explain'd in the Act 11 Par. 1 Ja. 1. Which is the Act here related to THis Act appointed the taking more than just â—raught to be a point of Dittay because it was oppression and irregular exaction and this is still taken up as dittay in Circuit Courts yet the Council does also punish it and I think the Master of the Ground where the Ferry is may punish such irregular Exactions THe unlaw of such as burn Muires is by this Act five pounds which is renew'd Act 71 Par. 6 Ja. 4. but by the 11 Act Par. 4 Ja. 5. The punishment is five pounds for the first time ten for the second and twenty for the third time and these penalties are Ratifi'd Act 84 Par. 6 Ja. 6. THe using other Barrels than the Hamburg Measure is made point of Dittay because other Barrels were lookt on as false Measure but our Barrel now is ten gallons for Salmond and eight and an half for Herring THe Act here related to is Act 7 Par. 1 Ja. 1. Where this Act is Explain'd PVrprusion is the usurping and appropriating our Superiours Lands or High-wayes and Purpresture is much now in Desuetude The ordinary Remedy now being actions of Molestation or Declarators of Property but Purprâ—sion is not absolutely in Desuetude For by the 5 Act 16 Par Ja. 6. It is ordain'd that such as Till the Kings Parks or Commonties shall be lyable in Purprusion and punish'd according to the old â—aws the same being Try'd either by way of Molestation or before the Lords of Session and the old Punishment was an arbitrary Punishment and the loss of his Lands which he held of the King and the reason why that Act did appoint the Tryal to be by Molestation before the Lords was because of old it was only Try'd by an Assize before the Justices Vid. lib. 1. cap. 5. num 4. lib. 2. cap. 74. R. M. It is doubted whether Vassals of Regalities Building upon the Streets of Burghs of Regalitie may be punish'd for Purpresture or whether the Building a Foot or two furder than formerly even in Burghs Royal would infer that punishment From these words of the Act That nae Vassal nor Sub-vassal or other Tennent under the Baron has Power or Jurisdiction to hold a Court. It is fit to observe that this holds not only in Purprusion though that be the case mention'd in this Act but generally Vassals nor Sub-vassals cannot hold Courts except they be Infest cum curiis and even then they have only power to hold Courts for payment of their own Rents or such other things as necessarly follow the labouring of Land except the Vassal be a Baron in which case he has power to jâ—dge ryots and unlaw for Bloodwits as Sheriffs do This Act is not â—o be found in the black Impression There is an Act omitted by Skeen which is the last in the black Impression whereby the Parliament delegats their full Parliamentary power to some of their Number for hearing some Ambaciâ—itors and deciding some Causes licet delegatus non potest delegare and such Delegations of the Supream Power may be dangerous King JAMES the third Parliament 11. THough this Act appoints Barons and Lords who led their own Men or Vassals at that time to the Host to be lyable for the skaith they do in coming to the KINGS Host Yet this Act is now upon the parity of Reason extended to all Officers who are now come in place of these It may be alleadg'd from this Act that it is not lawful for such
Riots pursu'd before them King JAMES the fifth Parl. 5. AFter many Alterations observ'd by me in the Annot. on Act 65 Par. 3 Ja. 1. and Act 62 Par. 14 Ja. 2. at last the Session was establish'd in the way it now is by King James the fifth in this his fifth Parliament and is ordain'd to consist of fourteen Lords seven whereof were to be of the Clergy or Spiritual and seven Temporal with the President who was to be of the Clergy but since the abolition of Popery they are all Seculars or Laicks though sometimes Bishops were extraordinary Lords and though this Act of Parliament appoints the half to be Spiritual and the half Temporal with a President yet by the 93 Aâ—t 6 Par. Ja. 6. It is declar'd it shall be lawful to the King to present any able Person whether he be of the Spiritual or Temporal State VId. observ on Act 7 Par. 3 Ch. 2. THe present Lords are ordain'd to have all the priviledges that the Lords of Session for so they were call'd in the Reign of King James the second had formerly and therefore it is alleaged that since Appeals could not be received from them that they cannot be received from the Lords of Council and Session as was formerly observed Act 62 Par. 14 Ja. 2. THe Chancellor when present is to preceed and because he preceeds therefore he gives his Vote last and because it was controverted whether he was to be President in the Parliament therefore by the 1 Act 1 Par. Ch. 2. He is declar'd to be President in all Courts and he did preceed by vertue of this Act in Exchequer till he was discharg'd by His Majesty by a Letter in anno 1663. These words And sicklike other Lords as shall please the King's Grace to subjoyn to them of his Great Council who shall have Vote to the number of 3 or 4. are all the warrand that there is for nominating the extraordinary Lords of Session who cannot exceed 4. They are still named by a Letter from the King as the ordinary Lords are but they are not examined like them and these extraordinary Lords are marked in the Books of Sederunt after all the ordinary Lords THese words And the Lords to subscrive all Deliverances and none other is all the warrand that was for the Lords subscriving all the Bills for raising Summonds before the Criminal Court but I think these general words should be restricted secundum subjectam materiam as all general words in Law ought to be for we see that notwithstanding of these general words the warrands for raising Summonds before the Privy Council are subscrived only by Privy Counsellors and now the Justices are only in use to subscrive their own Bills though the other Lords of Session are not excluded from that power THis Act is the warrand that the Lords have for making Acts of Sederunt which were so called because the Lords sitting are marked Sederunt such and such men but these Acts are to reach no further than the ordering of Forms of Process or the regulating their own House and therefore this Act sayes For advising and making of their Rules and Institutes for the order of Justice This same power is almost allow'd by all Nations to their Supream Judicatures Vin. Comment ad § 9. Inst. lib. 1. tit 2. Christin Vol. 2. Decis 51. num 8. THis division of the Kingdom in order to the calling Causes is now in Desuetude for all Causes are now Enrolled according to the order of the returns of the Process vid. Act. 16. Sess. 3. Par. 2. Ch. 2. Artic. 1. NO Session sits now on Munday and so this Act is in Desuetude Suspensions are called on Tuesday and Wednesday and ordinary Actions upon Thursday Friday and Saturnday The Friday was allotted for the Causes of the King and Queen and the Actions of Ministers and Strangers but by the Regulations the Kings Causes may be call'd on any day the Party Defender being advertis'd 14. dayes before of the particular day on which it is to be called It has been doubted before this Act whether the Queens Causes should enjoy the priviledge of the Kings Causes And the priviledge is by this Act extended to her ita Augusti privilegia ad Augustam sunt extendenda l. 31. ss de Legibus NOw the Lords sit from 9. to 12. and they sit down sometimes before 9. as occasion requires NOta By this Act Parties were allow'd to plead their own cause and they needed not have Advocats except they pleased but no other Party not contain'd in the Summonds can have liberty to speak But the Lords can now hinder Parties to Plead or force them to have Advocats to shun confusion and nonsence It seems also that though an Action be to a mans behove he cannot be allow'd to speak except his name be in the Summonds THe order of Tabulating Summonds is now much alter'd for no Summonds are Tabulated except Actions of Declarators Improbations Contraventions and other Actions at the King 's Advocats instance upon the back of which Summonds he Writes Tabuletur erga diem Veneris proximè sequentem and except this be written upon it the Action cannot be debated and some think that if the Action be called without this a Decreet thereupon pronounced would be null WItnesses are now examin'd by one of the ordinary Lords in the afternoon as here and that Lord who sat last Week in the Outer-house does the next Week Examine Witnesses THe Quorum of the Lords by this Act is ten either ordinary or extraordinary for either make up the Quorum but now eight Lords with the President make a Quorum which alteration proceeds from the 44. Act 11. Par. Ja. 6. Nota 1. By this Act that advising of Processes cannot be recommended to any particular Lord. Nota 2. That by this Act publication of Witnesses is allow'd else how is it ordain'd here that publication of Witnesses should be before the hail Auditor and Advocats were allow'd to see the Depositions and to debate against them till the year 1666. at which time this was discharg'd upon pretext that Advocats did spend too much time in debating against the Depositions and that Witnesses Depositions were more to be credited when no man was to see them or know them than when the persons interested were to see them because it was probable they would take pains to please them But we find great mistakes by not letting Advocats see the Depositions since they might clear many things that seem inconsistent and which depend upon other matters of Fact and it 's rather presumeable that Witnesses knowing that what they say is not to be seen will take liberty to Depone too liberally the not publication also of the Depositions tends much to make Judge Arbitrary since the warrands whereon they proceed is not known and publication of Testimonies iâ— a kind of confronting Witnesses with the Parties
the 5 Act Par. 18 Ja. 6. THis Act declaring the Provocker and Provocked in Duels to be punishable by Death is Explain'd Crim. pract tit Duels and since fighting Duels is only declared Death by this Act it appears that naked Provocation is not Capital but yet even the sending of Cartals may be arbitrarly punished by the Privy Council but Fighting is Capital though no killing follow and fighting by Rencounter may be punished as a Duel though there was no formal Cartal for by this Law all single Combats are declared punishable by Death vid. crim pract tit Duels This Act was renewed by a strict Act of Secret Council in anno 1674. THis Act is Explained in the Act 265. Par. 15 Ja. 6. BY this Act it is Declared that the negligence of the Kings Officers in Pursuing or Defending a Cause shall not prejudge the King and therefor competent and omitted is never received against the King though it be against private parties and by this Act it would appear that the King may propone a Nullity of a Decreet obtained against him even in foro before the Lords of Session by way of Exception or Suspension without a formal Reduction but yet Prescription runs against the King notwithstanding that it may be alleadged that by this Act he cannot be prejudged by the negligence of His Officers in not pursuing since Prescription is a general Remedy introduced for the final quiet both of King and People and as to Heretage it is introduced by an Act posteriour to this Act wherein there is no exception made in favours of the King but the Act introducing Prescription of Moveables is prior to this Act and so it may be the more doubted whether Prescription of Moveables runs against the King since by this posteriour Act it is Declared that the negligence of His Officers in not pursuing shall not prejudge him nor is there so great hazard to the Lieges in their Moveables as in their Heritage THe Transporting or In-bringing of forbidden or Un customed Goods that is to say Goods that should pay Custom without paying Custom is punishable not only by Forefaulture of the Goods but by Confiscation of the In-bringers whole Goods moveable albeit by the Civil Law ea res tantum in commissum cadit quam quis non est professus by which Law the naked Entry or sola possessio was sufficient to Defend against the Forefaulture imputandum est publicano qui non exegerit Perez tit C. de vect num 10. both by that Law and ours the Customers may recover the Goods un-entered even from singular Successors who have bought the same bona fide for a competent price and in that Law Error excus'd from Confiscation but in that case it exacted double Custom Perez ibid. I have not observed any mans Moveables Escheated upon this Act. THis Act fining such as will not Communicat once a Year when he is thereto desired by his Pastor is ill observed but not in Desuetude and therefore was renewed by Proclamation in January 1679. Observ. That the having Rancour against their Neighbour is Declar'd no relevant excuse and justly because it is a fault and so should be no Defence argumento hujus legis a Fanatick having prejudice at his Minister even though reasonable is no legal Defence for he should still hear Observ. 2. Though this Act say That no other excuse whatsoever shall Defend yet certainly inability to Travel madness c. will Defend and general words are still to be understood in subjecto capaci THis Act is Explain'd crim pract tit Heresie THis Act is Explained crim pract tit Beggars and Vagabonds THis Act is Explained crim pract tit Adultery THis Act is but a Temporary Commission THis Act against slaughter of Wild-fowl is renewed by an Act of Privy Council June 9. 1682. years whereby Masters of the Game are appointed for putting these Acts in Execution though by this Act the Sheriffs Stewarts and the Kings ordinary Magistrats have a particular Commission of Justiciary for this effect and it was questioned in the time how the Council could take away a Right establisht in them by the Parliament By this Act the killing of Mure Pouts is Discharg'd before the third of July and Partridge Pouts before the eight of September and by that Proclamation Mure Pouts are allow'd to be kill'd after the first of July and Heath Pouts after the first of August and Partridge and Quail after the first of September and whereas by the 109 Act Par. 7 Ja. 1. No Partridges Plovers Black-cocks c. are to be kill'd till August this Proclamation allows them to be killed from the first of July THis Act ordaining all English Cloath to be Seal'd by a Seal the Form whereof is here condescended on was thought to have been in Desuetude but now found not to be so in anno 1666. at which time it was found that the Customers might enter the Shops and Seal or Confiscat what was not so Seal'd This Sealing was formerly appointed by the 129 Act Par. 12 Ja. 6. THis Act appoints that no Letters of Horning shall be Direct against persons Dwelling on the other side of Dee upon shorter space than fifteen Dayes which Act was found only to be extended to Actions before the Privy Council but not to Charges before any other Court because the Narrative of this Act sayes That severals of the Lieges were drawn in inconveniencies by Charges before His Majesty and His Council though the Rubrick and Statutory part be General and though the reason whereupon this is inferred extends to all Charges as well as Charges before the Council SUch as Invade any of His Majesties Subjects within a Mile to the place of His Highness Residence or whoever resort thereto Armed with Jacks or Corslets under their Coats are to be Imprisoned for a Year and punishable by an arbitrary fine Observ. That the attrocity of the Crime is much hightned from the circumstance of place as well as time as is likewise clear by the 173 Act Par. 13 Ja. 6. It may be doubted whether this Act can be extended against such as Invade Strangers since the Act sayes only such as invade Subjects since the Invading of Strangers is more attrocious in it self than the Invading of Subjects the Crime being there aggredged by the breach of Hospitality It may be likewise doubted how long a time of Residence by the King makes the Invaders punishable and it would appear that if the Invasion be not within a mile of that which is known to be the place of the Kings ordinary Residence that then it must be proven that the Invader did reside there for the time BY this Act Sheriff-Courts should be kept in the middle of the Shire for the ease of the people but this is not observ'd OF old Pledges were taken in the Borders that is to say one man entered himself Prisoner for
that it shall be the fineness of 12 penny fine yet the meaning of that Act is because 12 penny fine is the finest imaginary value but there must be still a twelfth part allow'd of alley to make the Siver malleable and albeit the punishment in the Act against these who work not up to this fineness be arbitrary yet it is declar'd to be punishable by death by the 56 Act Par. 6 Q. M. Observ. 2 o. That the ordaining this Act to take effect after forty days Proclamation implys that regularly Acts may be put in execution sooner as by the 20 Act Par. 3 Ja. 3. King JAMES the third Parliament 14. THis Act is only a Temporary Statute ending with these who swore to observe it but the bringing Malefactors to the Bar in sober manner without assisters is commanded by many Acts and though by this Act it seems that the Justices cannot hinder some of the Pannels friends to stand with him upon the Pannel that is to say to stay at the Bar and that four friends are allow'd to the Pursuer and ten to the Defender by the 41 Act Par. 6 Q. M. Yet the Justices do suffer few or none to stand with the Pannel as they see occasion for it THe Crowner of old received the Porteous Rolls that is to say the names of such Malefactors as were to be pursu'd at Justice-airs but now the Justice Clerk keeps it himself and gives it to the Macers of the Criminal Courts or Messengers who cite the persons to be pursu'd THe Defenders in slaughter are by this to be cited upon six dayes to find Caution or else are to be denunc'd Rebels but now if the Criminals be not in prison they are to be cited to find Caution upon fifteen dayes but if they be in prison they may get an Indictment to answer upon twenty four hours BY this Statute it is clear that a person apprehended and incarcerated must first be maintain'd upon his own expences and if he be not able to aliment himself the Sheriff is to aliment him upon his Majesties allowance and by a late Act of the Justice Court The Keeper of the Tolbooth of Edinburgh is discharg'd to receive any Criminal Prisoner till he who enters him Prisoner find Caution to aliment for before that Act poor people were starv'd and ruin'd by their Imprisonment THis Act is in Desuetude for nothing is due now to Crowners because they do not attach as formerly and this was the price of their pains or Fee THis Act is in Desuetude for no Sheriff tholes now an Assize the last nor no day of a Justice-air except he be pursu'd for some particular Crime or for Malversation in his Office BY this Act if the Sheriff hear of any Convocations he should charge them to cease and if they refuse he should continue the Court and pursue them and the punishment is Imprisonment for a year from which Act it was argu'd justly in the Earl of Caithness case that though men refus'd to dissipat at the Sheriffs desire he could not summarly fall on them and kill them for that were too dangerous a power to be given to any Sheriff and all that he could do by this Act was to acquaint the King and then pursue them THis Act ordaining the Causes of Widows and Orphans Kirk-men c. only to belong to the Cognition of the Lords is in Desuetude and these Actions do properly belong to the Commissariot Court THe Burrows of Scotland have liberty to meet in time of Parliament and to propose as a Body and third Estate any overtures for Trade but no other state of Parliament can lawfully meet this being a singularity indulg'd to them for the good of Commerce and the subsequent Acts are propos'd by that Estate to the Parliament and by them turn'd into Acts as appears by the Rubrick it self VId. Act 12 Par 2 Ja. 3. Vid. observ on 47 Act Par. 1 Cha. 2. and on Act 66 Par. 14 Ja. 2. THe Act here ratifi'd though not exprest is Act 30 Par. 5 Ja. 3. THough this Act allows the Burrows to meet every year at Inner-â—eithing only yet thereafter they are allow'd to meet four times in the year at what place they shall think most expedient Act 64 Pa. 5 Ja. 6. and the burgh of Edinburgh with six of the rest may conveen them Act 119 Par. 7 Ja. 6. Now they meet in July at Edinburgh Pearth Dundee Aberdene Stirling and the Provost of the Town in which they meet being always President without Election and though the Fine of each absent Burgh be here five pounds yet it is made twenty pounds Act 119 Par. 7. Ja. 6. THis Act adds to the ordinary annexations that the King shall be bound by his oath at the Coronation that he shall not alienat the annext Property which oath is given by all the succeeding Kings It is observable also in this Act that the Kings great Seal and the Seals of all the Prelats Lords Barons and Commissioners for Burrows are appended which was usual in these days in all Concessions granted in Parliament and I have several Patents of honour granted by the King in Parliament wherein the Kings great Seal was appended as now it is to the Patent and the Seals of all the Ecclesiasticks were appended upon the right side and these of the Laicks on the left side each Seal hanging from a Label or Tag on which the owners Name was writ and in anno 1558. a Commission to the Lord Seton to be Ambassador in France was thus Seal'd by the King and Sign'd by the Nobility and by the 191 Act Par. 13 Ja. 6. The Morning-gift of the Abbacy of Dumfermling is said to have been under the Kings great Seal and the Seals and Subscriptions of the Estates in favours of Q Ann. THis priviledge was granted by Malcolm 2 leg M. c. 3 num 4. but both that priviledge and this Statute are now in Desuetude so that now the Crowner has none of the Malefactors Horses THis Act appointing that strangers be well us'd and that no new Customs Impositions or Exactions be put upon them seems to limit the Kings prerogative acknowledg'd by the 27 Act Sess. 3 Par. 1 Ch. 2. by which it is declar'd that the King may dispose and order Trade with Forraigners as he pleases a consequent of which Prerogative is that he may either discharge Trade with Forraigners or burden it as he pleases since by this Act no new Imposition can be laid on But the answer to this is that this Act relates to strangers and not to the Kings own Subjects so that though Strangers come they should be civily us'd by this Act yet they may be debar'd by that Act. THis Act granting a Commission to Examine the Laws and put them in one Book took effect in Skeens Edition of the Acts of Parliament and Regiam Majestatem in which
has spent more blood and money in the French service than all those priviledges were ever worth and it 's known that the last Concessions were granted to the Scots for giving Q. Mary in Marriage to the Dauphine of France whereby if he had had Children Scotland it self had been annexed to France and because the Scots did refuse her to K. Edward the 6 of England they were thereupon invaded by the English and their Nation was almost ruined 3. Though renumeratory Concessions might be quarrell'd as they cannot yet mutual Treaties and Contracts can never be abrogated nor taken away without the consent of both the Parties Contracters 4. The Scots being secured by Decisions of the Supream Courts of France as said is they have thereby the greatest security that the Law of any Nation can give As these reasons may convince any man that it were against the Justice of France to take away the priviledges of the Scottish Nation so the principles of prudence and policy seem very much to oppose the taking them away for 1. What can any other Strangers expect from Concessions Treaties or Contracts when so old and well deserved priviledges are questioned it being very well known to all Nations that Scotland has deserv'd extraordinarly of France and this Alliance has been famous beyond all the other Alliances now known in the World 2. The Scots and Scottish Nation have upon this account refused all other Alliances to their great loss and prejudice in so much that they have oft times suffered their Kingdom to be invaded harrass'd and ruin'd by the English because we preferr'd the French Alliance to theirs and as our Countrey-men have alwayes been ready to spend their lives for the French so within these 50 years we have lost 100000 men in their service who did not amongst them all bring home 20000 Livers to this Kingdome and it 's very well known how ready we are to own the French interest in all Courts and Countreys where we live abroad The Kingdoms of Scotland and England may come to divide by the failure of the Scottish Line in England and so it still seems prudent for the French King not to extinguish his interest in Scotland And whereas it may be pretended that we have forfeited our priviledges by declaring War against the French to this it is answer'd that 1. The denouncing of War by us was only the effect of a necessary obligation upon us as being a part of Great Britain and not a War enter'd into by Scotland upon any National account 2. By Treaties following upon the War all things are restor'd to the former condition they were in except in so far as former Treaties were innovated by express conditions but so it is there is nothing inserted in any of those Treaties to the prejudice of our former Leagues and Priviledges and therefore they must revive and return to the same force and vigour they were in before the War I find this Act Registrated and Recorded in the Books of Sederunt and generally it is observable that most of the publick Papers whereupon any legal Debates or Securities might depend were inserted in the Books of Sederunt which was somewhat like the French Custom of verifying in the Parliament of Paris that is the same with our Session the Kings Edicts and thus the pacification betwixt the Regent and the Hamiltons in anno 1572. and many such Papers are inserted there and of old even publick accidents were likewise insert such as Ecclipses c. Queen MARY Parl. 9. ORdinaâ—ly in Acts of Indemnity which follow Civil War as this is the King or State does only discharge all action that may be competent for all manner of Omissions or Commissions by vertue of any Power or Warrand of those in power for the time as is to be seen in the 10 Act 2 Sess. 1 Par. Ch. 2. But here in this Act all actions that may be competent for any Cause or occasion during the time for which the Troubles lasted are once discharg'd except there be a Warrand given by the persons named in the Act for intenting actions during that time but thereafter by the Act 44 11 Par. Ja. 6. the Lords of Session are made Judges to the Interpretation of that Act of Oblivion and all Decreets recovered during these times are declared irreduceable if they be not pursued within Year and Day and this short Prescription is declar'd to run against Minors which is likewise conform to the said 10 Act in which late Acts the nature oâ— Amnesties and Oblivion shall be more fully declar'd VId. obs ad Act 11 Par. 1 Ja. 1. VId. obs ad Act 49 Par. 13 Ja. 1. UPon this Act the Forgers or Bringers home of false Money use to be forefaulted as was found in the case of John Drummond November 27. 1621. and many other Cases and though it was alleadg'd in defence of Hamilton and Burn October 1677. that only Officers of the Mint-house used to be forefaulted because of their exâ—berant Trust and that it was easie for them to commit such Crimes yet Drummond was no Officer but a Sadler in Pearth the words of this Act that are ordinarly founded upon are that the Revealers of Forgers or home bringers of false Coyn shall have the one half of the Escheat of all their Lands and Goods moveable and immoveable and this punishment is peculiar to Treason and it seems that Forging or Coyning is an incroachment upon the Kings Prerogatives one of which is the Coyning of Money but I see not why bringing home of false Coyn could upon this account be declared Treason It is also observable from the former case 1677. that the meanness of the quantity or value Coyn'd excuses not from the punishment of this Act Vid. Crim. observ Tit. Falshood BY this Act it is appointed that no Parson Vicar or other Kirk-mans Manse or Gleib can be set in Feu or long Tack and therefore an Heretor to whom the Vicars Gleib was Feu'd though a year before this Act was refus'd relief when that Land was design'd to the Minister because the Feu set to him was contrary to this Act and though the Feu was set prior to this Act yet it was null because it was not confirm'd before this Act February 12. 1635. Vid. obs on 48 Act Par. 3 Ja. 6. ALL such as practise Witchcraft or consult with them are by this Act punishable by Death as are also all such as pretend to have any such Craft or Knowledge there-through abusing the people from which it is observable that such as pretend to fore-tell things to come or to tell where things are lost may by this Act be punish'd with Death though really they have no such skill By this Act also all Sheriffs Lords of Regalities and other Judges having power to execute the same are ordain'd to put the same in execution but it does not therefore follow that Stewarts and Bailliffs and Sheriffs are competent
Oath Observ. 3. It may be doubted whether this Act ordaining Merchant Accompts to prescrive in 3 years doth reach to Compts owing to Strangers for they seem not oblig'd to know our Law and this would ruin all Commerce locus contractus semper attendendus But it was found that this Act does extend to all Merchant Goods as well when sold in gross as by retail It may be doubted whether these two last Acts run against Minors since it is provided expresly that Prescriptions against Spuilzies and Ejections shall not run against them which shows that if this had been design'd in the other Prescriptions the same Clause had been renew'd since it was under consideration and so seems not to have been forgot only and there seems to be some reason for this since Minors are prejudg'd by SpuilÈies and Ejections and so Prescriptions in these should not run against them but in removings the hazard is only that a new Warning must be used and in other the like debts the only loss is that the debt cannot be prov'd by Witnesses after three years and so since these prescriptions did little hurt to Minors it was not necessary to stop their course It is also observable that though all these Prescriptions run in 3 years yet if actions be once intented they stop the prescriptions and thereafter SpuilÈies Removings or Aliments c. do not prescrive in less time than 40 years as all other debts do and till then violent profits are due or the like debts may be prov'd as if the action had been pursu'd within 3 years 26 January 1622. Herring contra Ramsay As also by our late Decisions if the Pursuer has continued to employ a Merchant the currency of that Compt and trust will preclude the prescription so that many former years preceeding the three last may be craved though this Act ordains all Merchant Compts to prescrive within that time but if a Bond be taken for these posterior years it is thought that cannot be called a current Compt and it may be debated whether in Law one or two Articles will make a current Compt and if it do there may be many wayes taken to elude this Act vid. 16 December 1675. Somerâ—el contra the Executors of Muirhead This currency extends to Brewers Compts of furnishing 13 November 1677. Wilson contra Ferguson Vid. Sand. lib 5. Decis Tit. 6. Though it was alleadg'd that albeit it should hold in Merchant Compts where there are Discharges taken and where a Compt Book adminiculats the recept yet it ought not to be consider'd in furnishing of Ale where neither of these are observ'd and yet this currency was not respected in Servants Feeâ— for these same reasons and because a Servants Fee is alter'd at the Masters discretion 12 February 1680. Ross contra Mr. Salton VId. Crim. Obs. Tit. Forestallers and Tit. 32. IT may be doubted whether this Act that gives power to the Sheriffs and other Judges to throw down Cruives and Yairs ought to be extended to Dykes built over waters or a part of the water for making a Dam to a Miln 2 o. VVhether Sheriffs or Lords of Regality c. may execute this Commission for their own advantage and where they themselves are the parties grieved since that were sibi jus dicâ—re and they would probably be partial whereas they may get others to execute the same THis Act Discharging exportation of Coals is now in Desuetude THis Act Fining such as propone unjust exceptions or lose the Pley within Burgh for the use of the poor is conform to that Title in the Civil Law instit de panis temere litigantium For there can be nothing so absurd and unjust as that men should not at least have their true expenses upon Oath whereas we use to modifie little or nothing even where there is not the least colour for a pursuit or defence and this I think a great iniquity in all Judges who are guilty of it Vid. instit de paen temere litigantium BY this Act the Lords of Session are ordain'd to distribute Justice without respect to any privat writing impetrat from His Majesty and by this His Majesty is freed from importunity and his people from unjustice This was formerly statuted by King David 2. cap. 18. cap. 41. and by the 2. cap. Statut. 1. Rob. 1. Judges are ordain'd to Judge secundum leges antiquas and in the Civil Law per l. 1. 6. C. si contr jus vel util publ per novel 82. cap. 13. and in the Canon Law cap. 5. de Rescript This same Law is also in France and is Learnedly Treated by Rebuff ad constitut Reg. tit de rescript and Plutarch commends Antiochus for having made a Law in these same terms but though the former Statute of King David warrands the Judge not to respect that Command but to indorse and send back the warrand and not execute the unjust Command which is by the 41. cap. of the same Statutes extended so that they are not oblig'd to delay Justice upon any such privat warrand Yet I find by § 10. cap. 20. of these same Statutes that the King may Discharge or Prohibite a Judge to proceed in the case of Perambulation for certain Causes for reconciling which Statutes it must be answered that the King cannot either simpliciter discharge a Perambulation nor any other Process but that he may discharge it for weighty Causes relating to the publick to which all privat interests must cede even as he may remit Crimes for such causes though these be of greater consequence or rather that the King may discharge Perambulations because the publick Peace is oftimes concerned in these since there used to be ordinarly great Convocations at such Perambulations and therefore the Justice General was of old only Judge competent to Perambulations Upon March 4. 1553. The Queen Regent appears in the Session and declares that the Lords should proceed to do Justice notwithstanding of any Letter or Order from her which is marked in the Books of Sederunt Observ. 2. That before this Act the Council us'd frequently to discharge the Lords of Session to proceed in judging privat Causes whereof many Examples are to be seen in Hopes larger Practiques and an instance of it is to be found in the 94 Act of this Parliament but that Custom is here discharg'd and as yet the Council uses frequently to discharge the Justices to proceed And notwithstanding of this Act I find in the Registers of Council 1581. King James Revocks in two several Cases Gifts granted by himself and Discharges the Lords of Session to sustain Action upon them Observ. 3 o. That the Lords are also allowed to proceed not only to decide but also to cause Execute their Sentences notwithstanding of such privat writings Charge or Command so that the Privy Council cannot Suspend the Lords Sentences neither by an Act of Council nor yet by Letters under the Signet But yet
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
payment of Annualrent due after Denunciation because the Act appoints him only to be lyable for the Debt contained in the Horning and this Annualrent is due only after the Horning March 15. 1631. Fletcher contra Kid But this Decision may be doubted since he being by the Act lyable for the Debt accessorium sequitur principale and if the Debitor had got the Escheat himself he had gotten payment of all Observ. 3. That this Act appoints Letters to be direct against the Donatar and Intrometters for payment upon six dayes BY this Act such as reset supply or intercommune with declared Traitors or Rebels are declared lyable in the same pains for the which they are Forefalted or put to the Horn and it is ordained that all the Subjects are lyable to search seek take or apprehend them till they be out of the Shire where they live and to intimat to the next Magistrat to whose bounds they have chased them Item If any Vagabounds or suspect persons come to the Shire every man is obliged to advertise some Magistrate Observ. 1. That here the Subjects are obliged without being desired by the Magistrate to search for and apprehend Rebels and so the Objection against the Bond appointed by the Council January 1678. Wherein it was asserted that no present Subject was bound to take or search for Rebels was a most illegal Objection expresly contrary not only to this Act but to the true interest of the Common-wealth which obliges every man to do his utmost endeavour to keep the Countrey quiet Nor can there be any thing more reasonable than that these who enter in a Society shall promote the good of the Society by all possible means and that these who have the protection of the Law should persecute all such as oppose it and this Duty to the King in taking such as are Rebels to him seems to be implyed in the very nature of our Allegiance But it may be argued that this should only be extended to such as are Traitors or at least to such as are Intercommuned which is contrary to the express words of this Act whereby all men are discharged to reset Traitors or Rebels contemnantly remaining at the Horn so that the resetting all who remain at the Horn is here punished and this Act being designed as the Act bears as a further addition to the former Law must be extended against all Rebels for the Common Law did formerly reach this far against the resetting of Traitors and Intercommuned persons vid. Act 97 Par. 7 Ja. 5. And whereas it may be pretended that this Act obliges only the Lieges to assist Magistrats in taking such persons It is answered that that was sufficiently secured by former Laws and this Act obliges all the Lieges simply BY this excellent Act it is provided that all Gifts of Escheat taken simulatly either by the Rebel himself or by others to the behove of the Rebel shall be null for else the falling of their Escheat would be no punishment to Rebels nor discouragement from Rebellion This simulation may be prov'd either directly by the Oath of the Donatar or may be inferred from presumptions as all other Frauds and Simulations are since the design of Fraud and Dissimulation being to palliâ—t and cover a Cheat if presumptions were not sustained to astruct the Simulation it could never be discovered The first Presumption is that the Gift is granted to the Children of the Rebel and if the Children be unforis familiat it is concluded to be a simulat Gift presumptione juris and yet if a Child in familia have a peculium of his own It may be alleadg'd that his Father as Administrator being Debitor to him he has taken his Escheat in his Sons Name for his security but though the Children be forisfamiliat yet by this Act of Parliament there lyes presumptio juris against them if this Rebel continue in Possession and therefore the Children must prove that they have it for an onerous Cause and thus is to be understood that Decision of Dury March 20. 1623. Lord Keith contra Denbolm Where it was found that no Contingency of Blood no not the being a Son was sufficient to infer Simulation but if this were sustained simply as ordinarly it is then Creditors may be easily cheated and the Donatar might still continue to have the advantage of the Escheat though not the possession of the Goods Likas by this Act of Parliament it is expresly provided that the Thesaurer may intromet with the Goods if they be in the possession of the Rebel his Wife or Bairns which shews that the Parliament lookt upon this as a presumption to infer Fraud The second Presumption is that the Gift was exped upon the Expence of the Rebel though the Donatar was Creditor except in so far as the Donatar made use of the Gift being Creditor for his own security March 11. 1624. And if yet the Creditor was only Creditor by buying of Land from the Rebel and knew that there was a prior Right granted to another person The Lords Declared that his Gift should not prejudge that prior Right June 22 1669. And if the Rebel did once take the Gift blank though he thereafter filled up a lawful Creditors Name therein the Rebel procuring the Gift so upon his own expence this will infer it to be simulat and extinguish the Right though the Donatar was truely a lawful Creditor December 17. 1670. Lantoun contra Scot. By which it may be concluded that though originally the Rebel may exped a Gift upon his own expences for the behove of a lawful Creditor where the Rebel takes the Gift himself and thereafter fills up a lawful Creditors Name that will not make it reconvalesce nam quod ab initio vitiosum est tractu temporis non potest convalescere That the Gift was past upon the Rebels expence is probable per membra Curiae viz. The Servants of Exchequer and Keepers of the Seals except the Donatar has made Faith at the passing of the Gift that it was truely to his own behove the simulation having been then suspected because he who sought the Gift was the Rebels Son December 4. 1669. And generally if the Donatar in fortification of his Gift and Debt offer to make Faith that the Gift is truly to his own behove this would be sustained to purge any Presumptions of Simulation December 12. 1673. The third Presumption is the Rebels retaining Possession but how long Possession would be sufficient to infer this Simulation is in arbitrio judicis for the suffering the Rebel to remain some time in possession is no presumption even against a Son since the Donatar must have some time to pursue and recover Decreets but if the Donatar suffer him to continue very long this is presumptio juris de jure for though there were no Simulation in the the case yet the negligence of the first Donatar would make place for a second and even the Donators
publicum vid. Act 6 Par. 1 Sess. 3 Ch. 2. It may be argu'd from this Act That if the Town of Edinburgh could have made such Acts by their own authority this Act had been needless THis Act is Explain'd in the 106 Act Par. 7 Ja. 5. THis Act is Explain'd crim pract tit Usury THis Act discharges any man to Hunt or Hauk at any time who hath not a Plough of Land in Heretage under the pain of an hundred pounds but it is now in Desuetude K. CHARLES I. Parliament I. KING CHARLES the First having come to Scotland to be Crown'd in anno 1633. The Parliament does by this Act grant Him not only a Subsidie upon the Land-rent bu◠likewise the sixteen penny of all Annualrents the Annualrent being then at ten in the hundred but because the Annualrent was thereafter brought down from ten to six Therefore by the 49 Act Par 1 Ch. 2. It is Declar'd that the said six of the hundred shall be free of all Retention and other publick Burdens whatsoever There is no Immunity allow'd by this Act to any from this Taxation save the ordinary Lords of the Session and Mortifications to Universities Colledges and Hospitals and this was the first time the Lords were separated from the Advocats and other Members of the Colledge of Justice and yet by the 23 Act of this Parliament all the Immunities and Priviledges that ever were granted to the Colledge of Justice are Ratifi'd and though it may seem that this Act being posterior derogats from the former yet specialia semper derogant a generalibus By this Act likewise the Lords of Erection are to be Taxed in the same way that they were before the Erection THis Act is but a continuation of the first Act and shews the way of uplifting the Taxation thereby given THe Parliament having granted by the 8 Act Par 20 Ja. 6. Power to the King to appoint Apparel for Judges and others because that Act was but Temporary they by this Act continue the same to Our Soveraign Lord and His Successors who now is which certainly is wrong Printed and Reads ill for the words should run Our Soveraign Lord that now is and His Successors Observ. 1. That Acts referring any thing to the Kings Majesty and not mentioning His Successors are but Temporary else this Act had been needless Obs. 2. That these erre who think the Parliament cannot delegat their Power for in the former Act and this it is clear that the Parliament did delegat this Power and it is Declar'd that the Kings Letter Regulating this affair shall be equivalent to an Act of Parliament and this same Parliament 1633. did grant a Commission to Revise the Laws and did Declare that what they did should have the force of Laws without Reporting to the Parliament and the Lords of Articles anno 1681. Did grant a Commission with a Parliamentary Power to some to Revise the Earl of Argiles Rights and the Commission of Teinds is of the same Nature THere having been great Debates in anno 1633. concerning the securing the Protestant Religion it was at last agreed that the old Acts made by King James were in themselves sufficient and the best that could be fallen on as being made when there were greatest fears of Popery and by the help of which the Protestant Religion grew to the consistency it is now at and therefore the Parliament acquiesced in this short Act Ratifying in general the former Acts made for securing the Religion Vid. Act 1 Par. 3 Ch. 2. THe former Parliaments which had determined Ministers Stipends forgot to provide School-masters and therefore the Privy Council did provide them by an Act of Council and though it may seem strange that the Privy Council could impose a burden though for a just Cause yet that their Act is here approv'd and the Secret Council are made Judges to all Processes concerning School-masters dues though now the Lords of the Session are the only Judges nor are there any such Processes intented before the Privy Council Since by this Act the Planting of Schools is refer'd to the Bishop with the consent of the Heretors and most part of the Paroch it would appear that they and not the Kirk-session where they live should have the placing of them and albeit it be alleadg'd that the School-master of the Paroch is by the 17 Act Par. 3 Sess. 5 Ch. 〈◊〉 To be Clerk to the Kirk-session and therefore they should have the chief interest Yet this consequence is not sufficient and the Act whereupon it is founded is likewise abrogated This is conform to the Reform'd Church of Saxonie wherein cura scolarum pastoribus ac superintendenti commissa est Carpz lib. 1. tit def 77. BY this Act all Mortifications by Gift Legacy or otherwise are declar'd not to be alterable to any other use than the special use to which they were Destinated by the Mortifier but yet if that use become unlawful ex post facto so that the persons in whose favours they were Mortifi'd be dissabled to Possess I think they should fall to the King as Caduciary if the Property has been once Transfer'd and the person upon whom it was Transfer'd became thereafter uncapable for quae sunt nullius sunt Domini Regis and thus the Mortifications made to Monastries fell not back to the first Proprietars or their Heirs but to the King But if the Property was never Transfer'd but before the first acquisition the person to whom the same was left was incapable to receive the Right Mortifi'd as if a Man should leave a Legacy to his Brother who were a Capushian whose Monastry and not himself are only capable of Legacies it seems that if the Mortifier knew that his Brother was uncapable and that it would fall to the Monastry that in that case also the Mortification should belong to the King and should not be retained by his Heirs as a due punishment of his Fault But if the Mortifier knew not the same it were more reasonable to determine that the Mortifiers Heirs should retain the Right Vid. Tit. Cod. de caduc tollend Thomas Mudie having left a sum to be employ'd on the building a Church in the Grass-Mercat of Edinburgh The Magistrats thereof were upon their Supplication allow'd to build a Steeple and buy a Pale of Bells with the Money because a Church was useless wanting a Stipend though this Act against inverting Pious Donations was objected for the Parliament thought that if a Mortification be left which cannot take place either because it is against Law or is useless the Parliament may allow the same to be fulfilled by an equipollency that being more suitable to the design of the Mortifier and better for the Common-wealth than if the Mortification should become extinct which is consonant to the Civil Law George Heriot having appointed by one of the Statutes of his Hospital that nothing should be altered though for the
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
Act is Explain'd in the 6 Act Sess. 2. of this Parliament THis Act is Explain'd in the 17 Act Par. 1 Sess. 1 Ch. 2. THis Act is Explain'd Act 4 Par. 3. Q. Mary IN all Retoures it is usually exprest whether or how the Lands are in his Majesties Hands as if they be in his Majesties Hands by vertue of Ward the Retour bears it but since the Retour did not use to bear the Taxt of the Marriage or of the Feu cum maritagio Therefore this Act appoints these to be exprest and the reason why I think these were not exprest formerly was because Taxt-Ward was a very late invention and Lands holding feu cum maritagio is a very extraordinary thing and so the inquest took no notice of either THis Commission for Plantation of Kirks differs nothing from the Commissions given by the other Parliaments but only in that the Power whereby Titulars were forced to sell to each Heretor his respective Teinds is only to last for three years after this Act so that all that great design ends here except it be reviv'd by the next Commission but if the impediment during that time flow from the Titular by reason of his Minority or other inability in that case the Heretor who offered to buy his own Teind is to have place to buy his Teind as soon as the impediment is remov'd but the Act does not express within what time and therefore it would seem that except the Heretor offer to buy during the Minority and did really renew the offer to buy immediatly after the Minority or inability was over he cannot have place to buy It is also declared that if the Heretor be Minor and his Tutors neglect to buy his Teinds the Minor shall have action for 2 years after his minority to compel the Titular to sell them but the Act is ill conceived not mentioning Curators but the giving power to buy after minority includes both but it may be doubted whether this should extend to Idiots and fatuous persons or where there is tutor bonis datus ob non existentiam haeredis and it seems the liberty to buy should be extended to their Heirs for two years after they succeed or two years after furious persons Reconvalesce THe King in anno 1669. by a Commission under the Great-Seal did impower Noblemen and others to Regulat the Judicatures and these Regulations set down by them are here Ratifi'd But it was objected that this could not have been done in Law because by the Institution of the Colledge of Justice and particularly by the 93 Act Par. 7 Ja. 5. The Session has power to make sick Acts Statutes and Ordinances as they shall think expedient for ordering of Processes and hasty expedition of Justice And it was thought strange how Noblemen and Gentlemen who understood not Forms of Process could Regulat incident Diligences and the ordinary Terms in Reductions and Improbation which with many other things specified in these Regulations were so much matter of Form and were so little to be known by the strongest Reason that the greatest Lawyers did oft-times understand less of them than the ordinary Leaders of Processes The first thing in these Regulations is the Roll in which all Causes are to be taken up and are Ordain'd to be Discuss'd according to the Dates of the Returning of Processes which Roll was formerly in use though by the 12 Article it was here added That if any Cause should be call'd by anticipation out of its due place the Pursuers Advocat might refuse to insist or the Defenders Advocat to answer and upon this Article it was that the Lord Almond appeal'd to the Parliament because in the Action at Dumsermlings Instance against him there having been a Debate in the Outter-house Reported to the Lords they had ordain'd the Cause to be summarly heard before themselves in praesentia Whereas by the 5 Article where the Lords upon intricacy Ordains a Cause to be heard in praesentia the Process should have been insert in the Roll of the Inner-house according to the Date of that Deliverance which Article being controverted It was alleadg'd that by this Article Almonds Procurators were not oblig'd to Debate To which it was answered that though where a Cause is Ordain'd to be Inroll'd it must be heard according to that Date yet that did not hinder the Lords to call in any Cause for clearing the Terms of a Debate in the Outter-house Reported to them before they give their Interlocutor therein which as needing no Inrolment falls not under this Article and this Course of Calling in Advocats summarly for clearing some Points is ordinarly us'd without Inrolling Causes in the Inner-house Roll but after a Cause is once Inrol'd in the Inner-house Roll it must be heard according to its Date The Council sometimes likewise when they sustain themselves Judges Competent to Ryots do if any Defence be propon'd before them in point of Right remit the matter of Right to the Lords of Session but ordain it to be discussed summarly without attending this Enrolment to the end that when the matter of Right is Discuss'd they may know how to Judge the Ryot As to the 16 and 17 Articles Vide Observations upon the 9 Act Sess. 3 Par. 1 Ch. 2. By the 22 Article it is appointed That the Advocat who Returns the Process shall give out all the Papers whereupon he resolves to found his Defences which was done to prevent the Pursuers being forc'd to take a time to see those Papers upon which the Defence was founded but this was found unpracticable because the Defenders Advocats knew not what would be found Relevant or not and therefore the Defenders Advocat does now propone his Defence and if it be found Relevant he takes a Day to prove it as formerly The Difference betwixt Outter-house and Inner-house Advocats which was appointed by the Regulations is omitted in this Act which Confirms the Regulations without that distinction Before this Act in Incident Diligences four Terms were allowed for producing the Writs which were accidentally crav'd to be produc'd The first was Letters with Certification that if the Havers produc'd not other Letters would be direct against them Charging them thereto simpliciter 2. That Letters of Horning would be direct The third was Horning The fourth was Caption But by this Act the first Diligence is appointed to be Horning The second Caption which may seem too short for it is hard that third Parties should without any previous advertisement be Charged with Horning for though no Escheat will fall on this Denunciation yet the Rebel will upon this Denunciation be debarr'd ab agendo beside other inconveniencies As to the Regulations concerning the Justice-Court it has been doubted whether they extended to Justice-airs or Circuit-Courts and therefore it was doubted whether a Citation given to a Pannal who is in Prison might be given upon fewer than fifteen dayes in a Justice-air and the
or Son in Law to him which is most just since these may have an equal influence upon him and sometimes greater then those formerly Discharged It may be doubted whether this Act should extend to Cases caryed on in the Names of Confidents and Trusties for the behove of the Persons Comprehended in this Act and it seems rational to extend it for a Cause cannot so much be said to be his in whose name it is pursued as the persons to whose behove it is pursued and if this were otherwise the design of this excellent Act might be altogether evacuated But yet I remember that the Earl of Rothes in Exchequer gave by his vote the gift of Non-entry of the Estate of Levin to Sir William Bruce though it was alleaged that it being to his own behove he could not jus sibi dicere To which it was answered that he did not Vote for himself but that he was necessitat to sit to make up a quorum because there behoved still to be such a number of Commissioners of the Thesaury present in Exchequer as sine quibus non AS Laws do ordinarly show the Genius of the Nation so do they likewise show the Genius of the Time wherein they are made and this Law was occasion'd by a dreadful Principle whereby the Fanaticks had declar'd That it was lawful to Kill all who Serv'd the King and though none were punish'd in Scotland for meer principles of Religion Yet it is very lawful to punish those who maintain Principles which tend necessarly and naturally to the raising of Rebellion or committing of Crimes Whereof this and the 2 Act 2 Sess. Par. 1 Ch. 2. are just Instances It may be doubted whether Judges may be declined where their Relation is equal to the Pursuer and Defender or in Cases of Affinity where the Affinity has ceased by the Dissolution of the Mariage Item It may be doubted if a Judge can be declined where he is related only to one who is a Member of a Society which is Pursuer or Defender as for instance if the Process be against a Colledge and the Judge be Brother to one of the Masters of the Colledge Observ. From these words The Exchequer and other Judicatures That the Exchequer is a Judicature in our Law BY this Act It is declared That the high Court of Admirality is a Soveraign Judicature in it self and imports summar Execution by which last words is meant only that execution of Horning may pass upon their Decreets immediatly without seeking a Decreet conform before the Lords as of old conform to the 15 Act Par. 20. Ja. 6. which is here wrong cited and call'd the 12 Par. But this summar execution is no mark of its being a Soveraign Court for Sheriff and Bailiff Courts have the same priviledge But that which makes this Court a Soveraign Court is that by this Act it is declar'd that they may not only review the Decreets of inferiour Admirals but their own and the reason why they are allow'd to review their own is because it is their custom to grant oft-times Decreets summarly for not finding Caution and it were hard not to allow the persons concern'd to be heard upon an offer to find Caution as also It is declar'd by this Act that no Advocations shall be granted from them to the Session but even this is not observ'd tho it was the great design of this Act for this Act restricting this Priviledge to maritim and Sea-affairs the Lords Advocat Causes from that Court as not maritim it not being determin'd what Cases are maritim and so can be comprehended under that Term. The Lords are still allow'd to Suspend the Decreets of the Admiral in praesentia or by three Lords in the Vacance which is hardly to be reconciled with its being a Soveraign Court And yet in some Cases the Lords Suspend the Decreets of the Justice-Court and of the Commission of the Kirk which are certainly Soveraign Courts The Admiral Court has got also power by this Act to apply the Fines and Amerciaments of their own Courts to their own use which formerly belong'd to the King and they have also the sole power to grant Passes and safe Conducts to Ships which by a special priviledge was granted immediatly before this Act very irregularly to Magistrats of Burghs Royal and in the time of the late Dutch War it was granted to a particular person named by His Majesty who was called Surveyer-general and was bound by his Instructions not to grant a Pass to any Ship till he was aboard and Surveyed all that was in it only he had power to make a Deput for Aâ—erdeen and beyond it BY this Act because common things are neglected and Creditors are disappointed of all the Rents where the same are controverted amongst them therefore they are allow'd to roup the Lands of the common Creditors when become Bankrupts which is now done by Summons Narrating this Statute in which all the real Creditors are Cited and thereupon the Lords grant a Commission for trying the value of the Estate and then they determine what shall be the least price and they name a Lord before whom the Roup is to be made and Letters are raised Charging Creditors to appear on twenty one dayes at such an hour at the New-Session-House to offer before such a Lord at which Day he comes to the Outter-House and the Clerk Reads the Acts and Commission to that Lord and the Macer offers the Lands at the price put on them by the Lords three several times and if none offer more he who raised the Summons gets them at that price After all this the Creditors go on in their multiple poinding and being rank'd according to their due preference the price is distributed amongst them accordingly tho it may be Debated that this preference should be first determined since till then Creditors will not willingly offer It seems more reasonable that Roups should be in the Shires where the Lands to be sold do ly for there will be more buyers found there than at Edinburgh I could likewise wish that where any of the Lords of the Session are Pursuers they would name Commissioners in the Countrey to make the Roup for Societies should shun sibi jus dicere where the same can be supply'd by others I think also that it were fit that Roups were made three several dayes and not all at one time as is required by the Doctors for this would give all persons concerned time and opportunity to appear and consider what is fit to be offered for men may be surprised or be sick or busie at one hour or time I conceive also that the Lord who makes the Roup should stay all the two hours allow'd not only to the last moment but from the first as we see the Judges do in Roups abroad and before our Admirals where the Roups are therefore appointed to be made ad candelam or clepsidram and in Orders of Redemption we