passes in the Exchequer King JAMES the first Parl 3. IS in Desuetude THis Act was made to exclude all pretentions of the Emperour or Pope and all Laws made or Priviledges granted by them but was not design'd to exclude the Civil and Canon Laws which by many of our Statutes are call'd the Common Law and are followed in this Kingdom and to exclude the Danish Laws in the Isles Jac. 4 Par. 6 c. 79. THis Act against Transporting of Money is after many Innovations severly renew'd and the Merchants ordained to swear thereupon allowing only sixty Pounds to Passengers for their Charges by the 11 Act Par 1. Sess 3 d Ch 2 d. But many think it more reasonable to allow Exportation as in Holland since the hindering Exportation prejudges much all manner of commerce THe first part of the Act discharging Officers in the Countrey wherein any man is Indyted to be upon his Assize seems to be founded upon the suspition that arises from an Interest they may have in having the Pannel Convict since a part of his Escheat belongs to them and therefore I think this should not be extended to exclude any such Officers within the Shire as may expect no share such as Commissars c. The second part of the Act which discharges those who Indyte a man to be upon his Assyze extends also against Informers and these who gave advice for raising the Libel but from this part of the Act it clearly appears that it is not generally true that when a penalty is adjected to an Act the deed is not null though the penalty be due for it is here forbidden that any Officiar or other who Indyts a man shall be on his Assyze under the penalty of ten pounds and yet certainly this Act would sett the informer from being on the Assyze and though to this it may be answered that this is unlawful by the Law of Nations prior to all Law and so this Law is only declaratory yet that cannot be alleadged as to discharging Officers within the Shire to be upon assyzes it may be also alleadg'd that this Penalty is only irrogated in case any should pass on such Assyzes without being known to be such But I do really believe that we in our Parliaments considered not the subtile distinction betwixt Acts which proceed paenam irrogando and these which proceed actum irritando vide Obs on the the 216 Act Par 14 Jac 6. It may be likewise concluded from this Act that the Kings Advocat is oblig'd to condescend who is his informer for else the Informer may be upon the Pannels Assyze and yet because that would discourage men from informing interest Reipublicae ne crimina maneant impunita Therefore the Council has several times found that the Advocat is not oblig'd to condescend upon his Informer further than that if it be referred to the Advocats oath of Calumny that some of the Assyzers or Witnesses were his Informers as to which he will be oblig'd to give his Oath of Calumny THe difference betwixt Forethought-fellony and Chaudmella is only observed as to Murder though this Act seems to extend it to all Transgressions and even as to murder the Murderer is to be imprison'd whether it be committed upon Forethought-fellony or Chaudmella for Chaudmella or homicidium in rixa commissum is Capital by our present Law THis Act appointing all Barons to appear in Parliament may seem abrogated by the 102 Act Par 7 Jac 1. Whereby the Barons of each Shire are allowed to choose two wise Men to Re-present them which is the Custom at this day But it is observable that though by that Act they may for their conveniency choose two yet they are by no expresse Law discharg'd to come in greater numbers Nota It seems by that Act that a Prelat or Earl may send their Procurator to Vote for them if they have themselves a lawful excuse but yet de praxi that is not allow'd but this Act is more fully Explain'd in the Observations on the 7 Act Par 22 Jac 6. OBserve that this Act proves the Books of Regiam Majestatem and Quoniam Attachiamenta to be our Law for they are called the Books of Law ARe Explain'd in the 96 th Act Par 6 Jac 4. THis Act appointing all Ferriers to have Bridges in places where Horses are to be Ferried is renewed by the 20 Act Par 4 Jac 3. Wherein all passages on each side of the Water are ordained to have Bridges whereupon Brunt-Island and Kinghorn rais'd a Process against Kirkaldy to have their Passage-Boats discharg'd as not being able to have such Bridges and for the good of the Kingdom since if all places were allow'd to have Boats Kinghorn and Brunt-Island which in the old Evidents is called Wester Kinghorn could not have sufficient Boats against Storms as now but this being thought by the Council matter of Property was remitted to the Session it being dangerous upon pretext of publict good to discharge Property for else many Innovations might be pretended BEfore this Act the Kings Council were the Supream Judges in civil Causes but by this Act some Commissioners of Parliament are to be chosen by turns who with the Chancellor are to be the Session and are to be pay'd out of the Unlaws so that the Session was then a Committee of Parliament their power is further settled and declared by the Acts 61 62 63 Parl 14 Jam 2 d. By which it is clear that they were to Sit but fourty days at a time and that the Session was then ambulatory and their sitting was Proclaim'd in each Shire where they were to Sit three Moneths before and they were by that 63 Act to bear their own Expenses after which the Sessions were by K James 4 Par. 6 Act 58. turn'd in a dayly Council which was to be chosen by the King and was to Sit at Edinburgh continually and wherever the King Resided they had the same power that the Session had and their Sitting was to be notified to the People by open Proclamation at the Kings pleasure In place of all which The Colledge of Justice and The Lords as they now are were Instituted by King James 5 th Parl. 5 th Act 36. Nota There is power granted by this Act to determine Causes finally which may import an excluding of Appeals but thereafter Appeals are discharged expresly Jac. 2 Par. 13 Act 62. THe Sheriff are not now oblig'd to publish the Acts of Parliament but they are to be published at the Mercat Cross of Edinburgh only and bind not the Leidges till fourty dayes after Publication K. James 6 Par. 7 Act 128. King JAMES the first Parliament 4. ARe Explained in the 96 th Act 6 Par Jac 4. BY this Act wilful Fire-raising is Treason 2. Fire-raising by Mis-governance is punishable in Servants 3. Reckless Fire-raising is punishable either in the Owner or the Mealer or Tennent
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
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
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
puniendi ratio si Dominum se pro Caesaris expeditione instruentem non suerit Comitatus feudum enim eo casu amittet dimidium fructuum illius anni ex feudo domino pendet non enim hic tantum contra dominum sed contra imperium Remp peccatur so that it seems in his time the Vassal who hâ—ld of another Superior then the King forfaulted his Feu for not going to the Host but the immediat Superior had Right to half a years Rent and the reason of this seems to have been because by all our old Laws the Vassal was obliged to attend his immediat Superior in going to the Kings Host and the Proclamation then commanded every man to come with his Vassals and therefore as the King had Right to the Forfaulture for not attending his Host so the immediat Superior had right to this half years Duty for his not attending him and sometimes by the Journal Books it appears that when Vassals were Fined and not Forfaulted the immediat Superior craved the half of the Fine THe punishment of such as ride with moe than their ordinary Houshold is Arbitrary and this Act must only be interpret against such as ride ordinarly with great Trains and which may look like an unpeaceable design nor is any man punished for riding at solemn Occasions with his Friends and Followers and I also think that this Act would only extend to such against whom there lies a presumption that they gather or keep men together upon some sinistrous design either against the Government or their Neighbours for if this were allowed great men might keep Troups together and for this same reason are Convocations discharg'd by other Acts and betwixt these Acts and this there is this difference that by these the Convocating for a time irregularly those in whom the Convocater pretends no interest is discharg'd but by this Act the conveening men upon pretext of a Retinue is discharged and though it may seem that every man may keep as great a Retinue as he pleases yet quilibet tantum in suo facere potâ—st illud quod fieri potest sine aemulatione vicini but multo majus sine aemulatione Reâ—publicae THough by this Law it is only appointed that there be Officers and Ministers of the Law made through all the Realm indefinitly without telling by whom they are to be made yet by the 2. Act Par. 1. Ch. 2. The power of choosing Judges is declar'd to be one of His Majesties Prerogatives It is observable from this Act that none can be Judges who have not sufficiently of their own where-through they may be punished if they transgress which is very just for a Judge who Decerns unjustly by palpable unjustice litem suam facit and therefore it may be well argu'd that when any who is a Judge or has an heretable Office becomes insolvent he may be forc'd to find a Depute who is solvent or else he may be discharged to sit Obs. Though it may seem That if any Heretable Officer be incapable to exerce the King should name Deputs jure devoluto yet by this Act it is ordained That if the Heretable Officer be incapable he shall ordain others for whom he shall be answerable The Design of this Act is to empower the Sheriff to arrest Oppressors and Vagabonds By these words to sojourn Horse is meant to quarter Horse from the French word sejour By Husbands of the Land is still meant Husband-men in our Acts of Parliament By taxing the Kings Skaith is meant to cause modifie what is due to the King and by Assything the King is meant the causing the Malefactors pay what is modified Obs. That the Legislative Words in our Statutes are very various for in this and many other Statutes of this King the formula is the Parliament Statutes and the King forbids which words shew that the Legislative Power is in the King for to forbid is the chief and most vigorous part of a Statute In the 17 th Act it is said It is Statute and the King forbids In the 14 th It is Statute by the whole Parliament and the King forbids In the 13 th It is Statute by the whole Parliament and by the King forbidden In the 30 Act 2 Par. Jac. 1. It is Decreeted by the whole Parliament In the Act 37 It is Decreeted and Statute In the Act 47 Par. 3 d. It is ordained by the King and Parliament Act 50. It is ordained and forbidden Act 60 Par. 3. Jac. 1 Our Soveraign Lord through the whole Ordinance of the Parliament Statutes Act 125 Par 9 Jac 1 Through the consent of the whole Parliament it is ordain'd Act 62 Par 3 Jac 1. It is seen speedful Act 76 Par 5 Jac 1. It is Statute and Ordain'd and Act 78 and 79 It is Ordain'd Act 83 Par 6 Jac 1. Rex per modum statuti ordinavit Act 85 Rex mandavit In the old Statutes of King Robert and King Alexander c. It is said Dominus Rex vult or statuit Rex or desinivit Rex or prohibet Rex or decrevit deliberavit Rex without speaking one word of the Parliament or Estates Act 105 Par 7 Jac 1. The King with the consent of the Council Act 104. The King with the consent of the Parliament and Council Act 108. The King of deliverance of Council But the formula now is Our Soveraign Lord with advice and consent or Our Soveraign Lord and Estates of Parliament which last is not so proper and though in most of the Acts of the 14 th Parliament K. Ja. 3 d It be said That it is Statute and Ordained by the whole three Estates yet it may be easily seen that these Acts were but in effect Overtures propos'd by the three Estates to be Ratified in Parliament and so in effect are conceiv'd rather as Overtures than Acts As also where any thing is to be put in execution by the King there the Act runs in name of the Parliament and not of the King as in the 23 d Act Par. 1 Jac 1. It is said that the Parliament has Determined and Ordain'd that Our Lord the King garâ—mend his Money and in the 6 Act Par 3 Jac 2. The three Estates has concluded that Our Soveraign Lord Ride throw all the Realm c. THere are many wayes whereby the Superior may crave Production of his Vassals Evidâ—nts for the King sometimes gets an Act of Parliament ordaining all the Vassals of such a Countrey to produce their Evidents as 262. Act. Parl. 15 Jac. 6. whereby all the Heritors in the Highlands are ordain'd to produce their Evidents with certification of losing their Rights The Superior may also crave exhibition of these Rights But the ordinaâ— way is by an Imprâ—bation wherein certification is granted against the Papers that are not produced which is deriv'd to us also from the Feudalists who affirm that Vassallus imperari potest sub poena
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
Perduellion allanerly What we now call Protections were called there Supercederes but not Protections By the Civil Law publica tutelae assertio principis solius eratl capital § ad statuas ff de pan nunc salvagardiae dicuntur vid. argentrate pag 190. King IAMES the first Parliament 13. IT was lately doubted whether Theft-boot which is the Transacting with Thieves by a Judge for freeing them from punishment be in Desuetude and it was found a Crime yet punishable There are two kinds of Theft-boot declared by this Act to be punishable the one is to sell a Thief which is to take a Ransom for liberating him 〈◊〉 other to Fine with a Thief that is to take a share of what he has stoln and so dismiss him both which are exprest Act 2 Par. 1 Ja. 5. by concording with the Thief and putting him from the Law The punishment by this Act seems to be the loss of the Right of Regaâ—â—â—y as to Lords of Regaliâ—y but to be death in Sheriffs Justices c. And if so it seems strange that the Lords of Regality shall be 〈◊〉 punished than others But I think the punishment as to both 〈◊〉 of Life and Office and the words of the Act are only ill plac'd And by the Civil Law whoever commits either of these are punish'd as the Thief himself l. 1. ff de Receptator where the two species of Theft boot exprest 〈◊〉 in this Act are also there exprest quia cum apprehendere latrones possint pecunia accepta vel subreptorum parte demiserunt and this Act punishes only Theft-boot in Judges but yet if a private person take a part of the stoln Goods he may be punished as a Resetter albeit the meer letting of a Thief go is not a Crime in him since he is not oblig'd to take him This Act was necessary because formerly Transacting with Thieves was discharg'd but no punishment exprest Quon Attach c. 42. 77. stat 1 Rob. 1. c. 3 stat Will. c. 15 By which last who Redeems a Thief est legem aquae subiturus which is now in Desuetude THis Oath is not now put to Assizers except the Party require that they be purg'd of Partiality for the ordinary Oath now us'd is That they shall Truth say and no Truth conceal in so far as they are to pass upon this Assize CRowners do not now arrest Male-factors for all arrestments are by Messengers or the Macers of the Criminal Court but yet some Heretable Crowners do assist at Justice-Airs to this Day and keep the Bar and secure Malefactors as they go and come from and to it THere is a double interest in all Crimes the Fisk or King has an interest because his Peace and Laws are broke and his Subjects wrong'd and this is call'd by the Civil Law vindicta publica The person wrong'd has another interest which is call'd vindicta privata That the King may pursue without the concourse of the person injur'd is clear by this Act but because this Act allow'd only Sheriffs to pursue without consent of the party therefore this is extended to all cases in â—â—vours of the King Act 76. Par. 11. Ja. 6. THis Act is abrogated by the Union of both Nations but argumento hujus legis the taking Protections from or assurance with any Enemie of the State is Treason and it may be alleadg'd that assuring Merchant Goods or Ships by Hollanders when we had War with them vvas Treason by this Act and by the Common Law for this is a corresponding vvith Enemies A Thief novv by the Regulations must be pursu'd upon 15. days only as all Malefactors VIde Act 50. Parl. 7. Ja. 3. Act 107. Parl. 7. Ja. 6. and such as failÈie to bring in Bullion are punished Act 51. Parl. 7. Ja. 3. Act 65. Parl. 8. And all is novv innovated by the Act 37. Parl. 1. Ch. 2 d. THe Bell rung in Edinbrugh at 9. at night conform to this Act till it was ordain'd to ring at 10. as it does which being altered at the desire of the Earl of Arrans Lady when he was Chancellour it is therefore call'd the Lady's Bell. From her also the Steps leading to St. Giles Church are call'd the Ladies Steps BY this Act the Law is to be holden where the Trespass is done which is most just because by punishing Crymes upon the Place the Scandal there given is taken off by a proportional terror 2. The Friends of the Party injur'd are thereby better repaâ—ed 3. Probation is more easy got and Assysers upon the Place are readier to do Justice as knowing better the matter of Fact Vid. Stat Will. Reg. c. 18. And is conform to the Civil Law l. 3. ff in prin de Re milit tot tit C. ubi de crimine agi oportet and that this was the old Law of Nations is clear by Quint. Câ—rt THe carriers of Gold and Silver except in so far as is necessary for Spending infers also the escheat of the Carriers other Moveables Act 69. Parl. 9. Q. M. But the falling of their Escheat was but 5. lib. after that Act and is now in Desuetude so that the words under the pain of Escheat is to be interpreted of Escheating the Money so carry'd allanerly K. JAMES II. Parliament I. THIS is not an Act but a Declaration concerning the Fidelity Sworn by the Parliament to their young King and I find no such Declraation or acknowledgement in an other Parliament of any other King So this is rather set down as a Narration than as an Act of Parliament For it mentions not Bishops and it expresses the consent of alâ— the Free-holders THis is the first Revocation that I find made by any of our Kings and here Dispositions made by the King of Moveables is Revocked and though no mention be made of Moveables in latter Revocations Since a King who is Minor Disponing Moveables without an onerous Cause may Revock them 2 ly It is observable that the King is as his Subjects Minor till 21 years compleat and that the Parliament is in place of Tutors to Him 3 ly This Inventar is conform to the Civil Law whereby the Tutor was oblig'd to make an Inventar of his Minors Estate and which is made our Law by the Act 2. Sess. 3. Parl. 2. Ch. 2. and to make an Inventar unto Dupois is to make it according to weight Dupois being a French word signifying Weight 4 ly That in this Act rather the Parliament than the King Revocks for the King was then minor but regularly the King's Revocation passes under His Privy Seal first and then is Confirmed and past by an Act of Parliament Vid. Act 9 th Parl. 1 Ch. 1. But sometimes it passes first by Proclamation and then by Act of Parliament Act 51 Par. 4 th Ja. 4 th And sometimes by way of Instrument Act 70. Par. 6 th Ja. 5 th King JAMES the Second
for their Medecines and this is likewise allow'd by the Common Law and Doctors and there is a venenum bonum as well as malum and though buying and in-bringing of Poison be declared Treason by this Act though it be not given yet by the Opinion of the Doctors it is only punishable in that case paenâ extraordinariâ Gothofred § venenum num 21. THis Act against Strangers bringing home Poison has not been observ'd amongst us and it is hard to punish Strangers for a Law that they are not oblig'd to know and it appears they cannot be lyable except they be advertised by some Magistrate that there is such a Law and that therefore they should carry back these Commodities and yet if a Stranger should actually give Poison he would be punishable though no such Act as this had been made since every man is oblig'd to know that it is unlawful to give Poison King JAMES the second Parliament 8. EIther it is provided that Wodset Lands shall be Redeem'd for payment of ordinary Money of Scotland and then it must be pai'd according to the rate the Money gives at the time when the Redemption was us'd and not according to the rate it gave at the time when the Wodset was granted as for instance if Lands be Wodset for ten thousand pounds and thereafter the Money be cry'd up so that the Dollar that was fifty six shilling is to give a Crown or a Shilling is to give a Merk in that case the ten thousand Pounds is to be Consign'd according to the rate as the Money gave though the Wodsetter pay'd moe Dollars and Shillings than he is to get back This holds not only in Redemption by vertue of this Act but in all payments as is clear by Act 19 Par. 3. Ja. 3. and Act 68 Par. 8 Ja. 3. But if the Money to be Consign'd be tailÈied Money that is to say a specifick kind of Money from the Word Talis as for instance five thousand Merks in Rose-nobles or the like specifick kind of Money then if so much Money cannot be had of that kind in specie it may be pay'd in as much of the present current Coyn as will answer to that kind of Money being of the same value as the Gold and Silver specifi'd in the said Reversion conform to the Common Law which the Lords interpret to be payment according to the price and value that the said tailÈied Money was worth the time of granting the Obligation March 3. 1623. King IAMES the second Parliament 9 THis Act discharging the keeping of old Stacks of Corn and the next Act discharging the Girnaling of Corn seem to have been Temporary and the Justices have refus'd to sustain Dittay upon either THis Act discharging the keeping up of more Victual than will serve a mans Family for a Quarter of a Year and that they shall present the superplus to the Mercat within nine Dayes seems likewise to have been but Temporary because of the scarcity that then was and at any time of scarcity the Magistrates of any Burgh Royal are in use and may lawfully as some think break up the Doors of Victual-houses within Burgh and ordain the Victual to be sold at competent rates if the Merchants be either unwilling or absent but if the Privy Council be sitting it is safer to make application to them King JAMES the second Parliament 11. OBser 1 o. This is the first formal Act of Annexation and though it bear only That it shall not be lawful to the King to AnalÈie any part of His annexed Property in Fee Heretage or Frank-tenement without consent of Parliament yet this extends to long Tacks for it is not lawful to set even long Tacks of the annex'd Property and if it were then the design of Annexation might easily be eluded and the Crown impoverish'd Albeit this Act declares it lawful to the King to intromet with any of the annex'd Property without Process of Law and by the 203 Act Par. 14 Ja. 6. Such as had or should intromet for the future by the Kings Command with annex'd Property are secur'd Yet by our present Custom the King uses to Reduce such Rights and not to intromet with them brevi manu Obser. 2 o. That because this Act bears That the annex'd Property cannot be Dissolv'd except by Deliverance and Decreet of the whole Parliament and for great seand and reasonable Causes of the Realm Therefore a Dissolution contain'd in a Confirmation of the annex'd Property after it is Dispon'd is not sufficient but is Reduceable since Dissolutions should be specially Read and Considered Whereas Confirmations and Ratifications pass in course without Observation Likeas Disposition of the annex'd Property made before the Dissolution are declar'd null by the 236 Act 15 Par. Ja. 6. This was so decided February 25. 1669. The King's Advocat contra the Earl of Mortoun and by the 13 Act 2 Par. Ch. 2. That Decreet bearing this Interpretation of all former Annexations is Ratified and it is appointed That Orknay shall not be Dissolv'd without the Advice of the whole Parliament and for great and weighty Causes relating to the publick interest of the whole Kingdom to be considered before the Disposition least by a previous Disposition the Parliament should be pre-determined in their deliberation and therefore it would appear that where there is a Disposition granted before Dissolution not only is that Dissolution null as being filius ante patrem so that it could not make the preceeding Disposition to Convalesce even from the date of the Dissolution But that a posterior Disposition relating to that Dissolution would be null since by the first Disposition the Parliament is once pre-determined in the Deliberation and therefore it would be fit that such Dissolutions should expresly bear this difficulty and dispense therewith per expressum It is here also fit to observe that Dispositions of Rights made of annex'd Property in the Kings Minority though Ratified in Parliament and after the Kings Majority are null albeit any other Deed done by a Minor in his minority is valid if Ratifi'd in Majority For though it may be alleadg'd that the reason of this Speciality is because Ratifications pass in Course and the Grounds are not considered as ought to be in Annexations Yet the true Reason of the Speciality must be that it is easie to obtain Ratifications of such null Rights and therefore the Parliament to preclude all from seeking them has declar'd That they shall not be valid when obtain'd or else because a lawful Dissolution is pre-requisit and ought to preceed a lawful Disposition of annex'd Property And therefore though the Ratification might supply the defect of the prior Disposition yet it cannot supply the nullity arising from the want of the former Dissolution Obser. 3 o. That when any Dispositions are Reduc'd the person who took such unlawful Dispositions must restore the bygone Mails and Dewties from the very date of his
consultum in iis quae usu consumuntur § 3. just de usufruct l. 1. ff de usufructu earum rer quae usu consum But all this matter is learnedly Treated by Christin ad Consuetud Mechliâ— tit 14. where he determines that the lesser and temporary expences are to be bestow'd by the Liferenter but that she will get 〈◊〉 from the Heretor of these expences quae perpetuam rei utilita tem concernunt if she advertise the Heretor that they were necessary and first desir'd him to repair but that she cannot by her Reparation alter the form of the thing though for the better nor use it otherways than the Proprietar himself did By the former Act Ja. 4 Par. 3 cap. 25. to which this relates the Liferenters are to find Caution that they shall not destroy the Orch-yards Woods c. From which it may be observ'd that where Woods are upon Liferented Lands the Liferenter as well as the Conjunct-fiar may make use of as much of the Wood or Coal as is necessary for her own use since she is only restrain'd by this Act from wasting and by the custom of some Countreys she cannot pretend Right to Trees fallen by Winds or accidents if the Trees be such as are fit for sale in sylvâ caedua ita inâ—isionem facere potest ut ad fructum pertineat non vere ad destructionem vid. l. ex sylva 10. ff de usufruct which agrees with our Law by which the Liferentrix has only right to as much of the Coals or Trees as are necessary for her own use but even this Right is only due to her whilst the Land is the Fiars but does not hinder the Fiar to sell his own Land Craig pag. 189. FOrestallers are these who buy Goods before they come to an open Mercat and Regraters are properly only these who buy up all Goods that they may sell them again at dearer rates But our Law has us'd these two words promiscuously though by this Act such as buy any thing before it be presented to the Mercat or who buy it in the Mercat but before the Mercat be proclaim'd which is call'd here the time of day of the Mercat are punish'd as Forestallers yet there must be something of design proven as if they should stand in the way upon a Mercat day or should every day cause buy up what were going to such a Town to hinder the Traffick of that Town for it were hard to make generally all who buy things going to a Town or a Mercat Forstalling for that may be done either ignorantly or necessarly Though the punishment here be Imprisonment and escheating of the Defenders Moveables yet by the 148 Act Par. 12 Ja. 6. The punishment is ordain'd to be fourty pounds for the first fault a hundred for the second and escheating of Moveables for the third and though severals have been found guilty of Forstalling as particularly upon the 9. of June 1596. and the 6. of August that year yet I find no punishment follow'd The Chamberlain of old was the only Judge in his Chamberland-air cap. 35 Stat. Will. Reg. But now the Justices are only competent Judges to this Crime they were call'd Dardanarii by the Civil Law and were punish'd poenâ extraordinariâ l. 6. ff de extraor crim THis Act is innovated and enlarg'd by the Act i6 Sess. 3 Ch. 2 Par. 1. ALL Officers within Burgh are discharg'd to purchase Lordships out of Burgh least they give dreadure to their Neighbours by which they are as I conceive discharg'd to be Lords of Session or Lord Barons or at least they lose their Offices how soon they attain to these Each Burgh does to this day compt in Exchequer for their Feu-dewty yearly conform to this and other Acts. It was thought that a pursuit against the Magistrats of Edinburgh for compting for their Common good upon this Act was not competent at the Instance of a privat Burgess or of any save the Lord Thesaurer of the Kingdom who comes in place of the Chamberlain Air though it was said to be actio popularis and a species of suspectae tutelae but this would have given too great occasion to Faction and would have discourag'd Magistracy too much nor are such popular actions in matters of Government to be easily allow'd under Monarchy though they are necessary in privat Rights THough this Act appoint such as trouble Burrows in using their Liberties to be punish'd in Justice Courts as common oppressors yet this is in Desuetude except the oppression be very attrocious but the ordinary remedy is now either by actions of Molestation or declarator of Property before the Session or by actions of Ryot before the Privy Council COlonel Borthwick having gotten a Gift of this penal Statute pursu'd the Malt-men criminally thereupon which Pursuit was discharg'd by the Council 1672. upon a Bill and these Statutes found to be in Desuetude and impracticable in this age wherein Malt cannot be sold for two shilling more than the price of the Boll of Bear as this Act appoints BY our Law all single Escheats fall to the King for bona mobilia sunt allodialia and hold not of the ordinary Superior who has no Right jure proprio to the Escheats of such as dwell within his Territory and thus Lords of Regality have only right to such Escheats by their Erection from the King But the Liferent-escheats which fall either for civil or criminal Causes belong to immediat Superiors respective so that if a Vassal who is at the Horn have Lands holden of many Superiors each Superior will have right to the Land which holds of himself for Feus being given for service and the Vassal being nullus in jure by his Rebellion the Feu returns to the Superior except in the case of Treason in which it falls to the King Observe from this Act that the Lords of Articles are Judges to Processes in the first instance but the Debate must be resum'd to the Parliament BY this Act Justice-airs and Courts are peremptor at the second Diet but by the Act 79 Par. 11 Ja. 6. they are peremptor at the first Diet and parties not appearing now are unlaw'd if pursuers and are declar'd Fugitive if Defenders at the first Diet. Vid. observ on Act 39 Par. 5 Ja. 3. supra This Act relates to another Act of Parliament dated the 10. of July 1625. but there is no Parliament amongst our Printed Laws of that date THough by this Act Depredations Reiffs and SpuilÈies are ordain'd to be first civily pursu'd yet the Justices use to sustain Criminal Pursuits for these causes in the first instance except a defence be propon'd upon matter of Right as if the Defender alleadg'd he had a Disposition or other Right and in these cases the Justices superceed to give answer to the Criminal Pursuit till the Civil Right and Title be first discust and this the Privy Council uses to do in
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
did write such a hand and for proving of this must produce the Hand-writs of all these Servants at that time February 7. 1672. Kirk-hill contra Ketlestoun IT was Debated upon this Act whether the Lands of Duncow though here annexed by a publick Law were sufficiently annexed so as to exclude the Earl of Nithisdale who pretended that a year before this Act he had a valid Right under the Great-Seal from the King and so could not be prejudg'd by a posterior annexation which behov'd to be salvo jure quoad him To which it was Reply'd that this annexation being by a publick Law was not of the nature of Ratifications which were salvo jure and such Acts of annexation were in effect the Kings Charter and being granted by a publick Act of Parliament in favours both of King and People they could not be taken away but by another Act of Parliament sibi imputet he who had the prior Right and compeared not at the time of this publick Law and objected it but now after so many years the King had at least prescrived a Right by vertue of this Act this case was not decided but the Lords inclined to think that there was a great difference betwixt original annexations where special Lands were annexed as falling in the Kings Hands by a special Forefalture or other cause which they thought could not be quarrelled by the Session or other Inferiour Judicatory and general Acts where Lands formerly annext are only repeated such as this is in which Lands belonging to privat parties may be by mistake repeated Nota The Lands of Duncow annexed by this Act came to the King upon Forefalture of Robert Lord Boyd anno 1477. BEfore this Act Decreets pronunced by Magistrates within Towns could not be the ground of a Charge of Horning till a Decreet conform had been first obtained before the Lords but by this Act Letters of Horning are summarly appointed to be granted upon such Decreets It is observable that though this Act says That Letters of Horning shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts yet it would seem that Commissars had no such priviledge at the time of granting this Act for that priviledge is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered but that Commissars had that priviledge even at the time of this Act de praxi though de jure it was only granted them by that Act for their further Security VId. Act 155. 12 Par. Ja. 6. THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer is Explained in the Observations upon the 2 Act 4 Sess. Par. 2 Ch. 2. IT is observable that by this Act the Dean of Gild is founded in the power of judging all Cases betwixt Merchant and Merchant and is here declar'd to be the most competent Judge because the most knowing Judge in such cases and declar'd to have the same power that the like Judges have in France and Flanders and in France such Cases are Judg'd by these who are call'd les consuls des marchants The Lords have found that according to this Act the Dean of Gilds Court is a Soveraign Court in suo genere and not subordinat to the Towns Court July 21. 1631. and they use to Advocat Causes from the Admiral to the Dean of Gild's Court upon this Act it being declar'd that he is Judge to all actions betwixt Merchant and Mariner though it be alleadg'd by the Admiral that these general words should be restricted by the nature of the respective Jurisdictions and so the Dean of Gild should be only Judge competent betwixt Merchant and Mariner in cases which fall out at Land but not at Sea THe Act related to here is the 36 Act 3 Parl. Ja. 4. IT is observable from this Act that it is there declar'd in geneneral that Acts of Parliament should only in reason and equity extend ad futura for regulating future cases for though Declaratory Acts may oft-times extend ad praeterita yet Statutory Acts should only extend ad futura THis Act differs not one word from the 170 Act of this same Parliament and has been only repeated here by mistake BEfore this Act such as were at seid with one another us'd ordinarly to fight together upon the Street of Edinburgh and us'd to beat the Magistrates or their Officers when they came to red them and that truly gave rise to this Act though the Narrative here bears only that several persons used to Deforce the Magistrates in their Execution of their own or the Councils Decreets By the Act it is declar'd That whosoever disobeys or opposes the Command of the Provost and Baillies of Edinburgh when they are Executing the Kings Commands or Letters from the Secret Council or Session or the Ordinances of their own Burgh shall be punished as Committers of Deforcement as Seditious and Perturbers of the Common well It has been found that naked assistance at such Tumults without Arms is not punishable by Death though a person be killed in the Tumult December 1666. But Convocation at all such Tumults with Arms is punishable by Death if a person be Murdered as was found September 11. 1678. And the acting any thing either by word or deed was found to infer Death Observ. That the using Fire-weapons within Town is discharged by this Act and long weapons that is to say Halbards Picks c. are only allow'd lest innocent persons passing on the Street might be kill'd but yet if Souldiers shoot in defence of their Prisoners on the Streets they are not punishable and this Act was found not to militat against the Kings granting Commissions to the Magistrates of Edinburgh to raise a Company with Fire-locks within Town for the Act discharges only Fire-locks without the Kings consent and a Commission implys his consent THe Act here related to is the 159 Act 12 Par. Ja. 6. THis Act is Explain'd in the 7 Act 9 Par. Ja. 6. VId. Obs. on the 29 Act Par. 11 Ja. 6. THe Abbacy of Dumsermling was Dispon'd by Ja. 6. in a morning Gift to Queen Ann. This Lawyers call Morganeticum and King Charles the First was Infeft in these Lands as heir to His Mother Observ. That this Confirmation was under the Great Seal and under the Seals and Subscriptions of the States King IAMES the sixth Parl. 14. THis Act seems very ill conceived for it appears that wilful hearers of Mass shall be executed to the death how soon they shall be found guilty or declared Fugitive since no man by our Law dies upon his being Denunced Fugitive except in the case of Treason and wilful hearing of Mass is not Treason even by this Act. Observ. 2. That as this Act is conceiv'd the wilful hearing or concealing is punishable by death either by Conviction or being denunced Fugitive before
18 Act Par. 1 Ch. 1. But by a Letter in anno 1663. The Chancellour is Discharg'd to preside in Exchequer and this shâ—ws his innate power to dispense with Acts of Parliament which relate only to Government and His own Service Observ. 4. That though by vertue of this Act it may be pretended that the Chancellour may preside in the Justice or Admiral Court if he pleases to be present Yet I conceive he cannot come to any of these Courts without a special Nomination and even this Act says That the Chancellour and such as shall be nominat by His Majesty shall preside This Act likewise sets down the Oath of Allegiance wherein the King is acknowledg'd to be Supream over all Persons and in all Causes which is founded upon the 2 Act Par. 18 Ja. 6. and is the foundation of the Act of Supremacy which is the first Act of the 2 Par. Ch. 2. THe Parliament 1641. had taken from the King the Nomination of the Officers of State Counsellours and Judges and therefore by this Act the power of Nominating these Is declar'd to be a part of the Kings Royal Prerogative which is conform to the Law of all Nations l. unica ff ad l. Jul. de ambitu haec Lex hodie in urbe cessat quia ad curam Principis Magistratuum creatio pertinet non ad populi favorem By this Act also It is Declar'd that our Kings hold their Royal Power over this Kingdom from God which was exprest here to condemn that fundamental Treason of the last age which Taught That the King was subject to His People because He Deriv'd His Power from Them And from that they infer'd their power of Reforming and at last of Deposing the King But lest it might have been obtruded that though by this Act it be Declar'd That the King holds His Power from God alone Yet the holding it from God did not exclude the Interest of the People for all Men hold of God whatever they hold of others Therefore by the 5 Act of this Parliament It is Declar'd that our Kings hold their Crowns from God Almighty alone and lest it might still have been said That though the King holds His Power of God yet he Derives His Power from His People Therefore the Convention of Estates in their Letter to the King 1678. and the Estates of Parliament in the 2 Act 3 Par. Ch. 2. anno 1681. Acknowledge That He Derives His Power from God alone And though Conventions of Estates cannot make Laws yet it may be said that they may Declare and Acknowledge their Obedience as fully as Parliaments may Observ. That these words To hold the Crown from God is ill exprest For by our Law He that Holds from Me Holds not of Me for a me de me are Diametrically opposit in matters of Holdings THe former Rebellious Parliaments especially the Convention of Estates 1643. Did Sit without a special Warrand from His Majesty and therefore by this Act The Power of Calling Holding Proroging and Dissolving of Parliaments is Declar'd to be Inherent only in His Majestie as a part of His Royal Prerogative and therefore the 6 Act of this Parliament annulling in special Terms the said Convention 1643. was unnecessary I conceive that the word Proroguing here is us'd for Adjournment only though the Word in its property signifies only to Adjourn so as to make all the Overtures past in that Session to be null which distinction is unknown to and unnecessary with us The Impungers or Contraveeners of this Act are Declar'd by this Act guilty of Treason BY this the former Acts against Convocations and Leagues or Bonds are Ratifi'd and Discharg'd under the pain of Sedition and the keeping of all Assemblies and Meetings upon pretence of preserving the Kings Majesty or for the publick good are declar'd unlawful notwithstanding of these Glosses except in the ordinary Judicatures The Design of which Act was occasioned by and levelled against such Meetings as the Green Tables in anno 1637. Whereat the Nobility and Gentry did formally meet in great numbers though their Papers did alwise begin We the Noblemen Gentlemen and others occasionally met at Edinburgh THe former Rebellious Parliaments having rais'd Armies Fortifi'd Garisons and Treated with the French King without the Authority of their own King It is therefore declar'd by this Act That the Power of making Peace and War Resides solly in His Majesty and that to Rise or Continue in Arms or to make any Treaties or Leagues with Forraign Princes or amongst themselves shall be Treason Observ. 1. That by this Act the King is Declar'd to have the only power of Raising Armies and making Garrisons the Subjects alwayes being free of the Provision and Maintainance of these Forts and Armies and therefore it was asserted that free Quarter except in the Case of actual Rebellion was unlawful and that even then it behov'd to be warranted by a Parliament or Convention though it seems that Rebellions may be so sudden or Parliaments and Conventions so dangerous that free Quarter may be warranted by the Kings own Authority in cases of necessity and if any part of Scotland should rise in Rebellion it is not imaginable that they will either give Quarter for Pay or deserve to be pay'd and so to refuse the King the Power of free Quartering without Parliament or Convention in that case were to deny Him the Power of raising an Army without which it cannot be maintain'd But free Quarter is expresly Discharg'd by the 3 Act Par. 3 Ch. 2. Observ. 2. Some likewise think by this Clause that though the King may force Towns and adjacent Countreys to carry Baggage and Ammunition of His Souldiers the publick Good so requiring yet He must pay them for it since by this Act the King is to pay for the Provisions as well as Maintainance of the Army and to take away Countrey-mens-horses without pay is as great a Tax upon them as Free-quarter But yet our Kings have still been in use by immemorial Possession to exact such Carriage without payment and so the only Doubt remains Whether this Act Innovats the former Custom And whether the Subjects not seeking payment being merae facultatis prescrives against them jus non petendi Observ. 3. It has been controverted Whether though by this Act the King may Dispose upon all Forts Strengths and Garisons if He can thereby make any privat Mans House a Garison that was not so Originally it being pretended that if this were allow'd no man can be sure of his Dwelling-house which is the chief part of his Property but it cannot be deny'd but that all Houses with Battlements or turres pinnatae as Craig observes are inter regalia and of old could not be Built without the Kings special Licence and as to these the King may Garrison them for since He has the absolute power of making Peace and War it were absurd to deny Him the power of Garisoning convenient
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
guilty it is not just to admit Caution and the true speciality upon which the Council founded that Resolution was because above four thousand were delated in that Porteous Roll for Treason and it was almost impossible to Imprison all The Acts 50 51 52 53 are abrogated by the Union of England and so is the 56 but though they be abrogated yet the following Observations may be made from them Obser. 1 o. From the Act 52. that the supplying the Scottish Towns then under the Command of the English is declar'd Treason as is in general the assisting of all Enemies to the State vid. Ja. 1 Par. 13 cap. 141. Ja. 2 Par. 12 Act 50. For though we have no special Statute declaring the assisting of Enemies of the State to be Treason Our Acts running generally against such as assist declar'd Traitors or assure with English men in particular yet it is Treason by the Common Law l. 3. ff ad l. Jul. Maj. And such of our Nation as continued in the Dutch Service during the War with Holland in anno 1666. were forfaulted as Traitors By the second part of this Act it is declared Treason for any who ride with the Warden of the Marches or any other Chiftain to go away with any manner of Goods till they be thirded that is to say till they be divided for one third by the Law of the Borders belongs to the King a second third to the Warden or Chiftain and a third to the Apprehenders For understanding whereof it is fit to know that Lands when taken from Enemies become the Kings or the Common-wealths by the Laws of all Nations but Moveables by the Law of GOD Deut. chap. 20. vers 14. Josh. chap. 8. vers 1. when taken were divided equally amongst the Takers But sometimes there was a Division the one half falling to such as Fought the other to these that stayed with the Baggage and a fiftieth part of their part who Fought not was dedicated to the LORD whereas one of five hundred was only Consecrated out of their part who Fought Num. 31. verse 50. At present Grotius distinction lib. 3. de jur Bell. c. 6 11 12. Is generally observ'd whereby if Moveables be taken by a party led on by an Officer who only knew the design then the Souldiers get no share but all falls to the publick but if the Moveables be taken in Excursions or free Adventures they belong to the Takers And Voet. c. 5. n. 19. de jure milit Sets down the several proportions whereby Goods are divided amongst a Party and Officers in Holland where if the Party exceed 50. the Captain gets a tenth the Leiutenent a fifth the Ensign a third the Quarter-master a double portion the Serjeant one and an half and each Souldier a single share but still the Horse get double of what is due to the Foot BY this Act which is a continuation of the former it is declared Capital for any man to take from another Goods or Prisoners which they are in Possession of from which it is observable in War that Possession or Capture gives only right thus Inst. de rer div Par. 17. It is said Item quae ex hostibus capiuntur statim jure gentium capientium fiunt and therefore a Ship being pretended to belong to the King because one of the Kings Friggots had beat the Convoy that Guarded her and was in pursuit of another and had taken both her and this Ship here controverted if the Privateer had not interveen'd and it being answer'd that an actual Capture could only establish the Property and this Statute requir'd Possession The Lords before answer granted mutual Probation for trying whether this Ship could have escaped from the Friggot if the Privateer had not taken her IT is Treason to raise a Fray wilfully in the Kings Host for this wilfully done shews a Design to ruine the Army and I find that the Master of Forbes was Hang'd for raising a Fray in the Kings Host at Jedburgh July 14. 1537. The words without Cause are added here because if a man doing his duty was the occasion of raising a Fray he ought not to be punish'd as if an Officer punishing a Mutineer should by that occasion raise a Fray this would not be punishable By the Civil Law such as were Authors of Sedition in an Army for a Fray is properly Sedition were punish'd as Murderers l. 3. § 4. ff ad l. Cornel. de sicariis But if the Common-wealth was in danger they were punish'd as Traitors as in this Statute and in l. 1 ff ad l. Jul. Maj. and they are every where now punish'd by Death Sand. Decis 165. tit 9. des 12. vid. Voet. de jure milit c. 4. num 40. And if the Authors cannot be known all involv'd in the Guilt are forc'd to cast Lots Voet. ibidem Sometimes also if the Sedition was carried on sine gravi tumultu intra vociferationem the guilty were only Casheir'd l. 3. § 20. ff de re militi if the Tumult was rais'd upon privat picques or grounds but if it was rais'd upon prejudices against the Common-wealth or Prince it was punish'd even in that case and though no actual prejudice follow'd as Treason d. l. 1. ff ad l. Jul. Maj. King IAMES the second Parliament 13. THis putting the Kingdom in a posture of Defence was formerly ordain'd Stat. Will. cap. 23. Stat. 1. R. 1. cap. 27 But all these Acts are now in Desuetude and the Act concerning the Militia is regularly come in their place but yet the King may call for either vid. observ on 4 Act 1 Par. Ja. 1. By the Kings Letters by Bailis is mean't Letters to raise Fire or Takenings for advertising the Countrey By Out-hornes is mean'd these who follow'd the Sheriffs and whose Office it was to raise the Kings Horn for warning the Countrey to assist the Kings Officers THis Act contains what is fit to be done in time of Pestilence and because it was an Affair to be Govern'd by Christian Charity therefore the Regulation of it was referr'd to the Clergy and upon this account it is that the Act says The Clergy thinks without speaking of King or Parliament it being ordinary in our Acts of Parliament to set down the report without drawing it into the formality of an Act of Parliament and thus in the 91 and 92 Acts Parl. 13 Ja. 3. It is said The Lords thinks it expedient by which word Lords must be interpreted Lords of Articles THere was of old Distresses taken from such as came to Fairs that is to say some thing was taken to be a Surety for their good behaviour and was deliver'd back at the end of the Fair if the Owners committed no wrong during the Fair. THis Act is only to be interpreted of the Fees due to the great Constable of Scotland who is now the Earl of Errol for he only can exact during the time of Parliament but
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
Criminal and such as were free should prove their innocence for else it should be impossible for the King to be able otherwise to prove the guilt which should hold much more now because the Assyzers had by the Regulations an easie remedie for preventing this sibi imputent who did not mark who assoilzied and who condemned and though these Regulations introduced that as a further remedie for clearing this matter yet that was not necessary for there were Assyzes of Error before Assyzers were ordained to be so marked 2 o. It was alleadged that this was not wilfull nor by partial means which partiality behoved necessarily to be proven by the words of the Act but this was repelled because the Error being clear the Error behoved necessarily to be wilfull and by partial means nor was it possible to prove these occult qualities otherwise than ab efâ—â—ctu 3 o. It was alleadged that there being fourscore upon the Pannel the difficultie of differencing the Probation might excuse from wilfull Error but this was repelled because the probation adduced was so clear 4 o. By this Act Assyzes of Error are only to be allowed where the Persons Indited are shown before the Assize in the assyze of Error but so it is the persons assoilÈed by the former assyze were Forfaulted in absence and were neither then nor now shown to the Assyze and the reason of this speciality is because if the Persons assoilÈed were present they might prove their own innocencie and so clear likewise these who assoilÈed them but this was repelled because by these words Shown before the Assyze is only meaned that their Designations and not their Persons should be shown to the Assyze of Error for else there could be no Assyze of Error in Forfaulters in absence and though the Persons were present they would not be admitted hoc ordine to clear their own innocence and the Assyzers should have assoilÈed or condemned according to the Probation then led FOr Explication of this Act vid Not one Act 143. Par. 13. Ja. 1. THis Act is explained in the Observ. on the 17. Act 1 Par. Ja. 6. BY this Act Deeds done and Rights made by Furious Persons or Idiots are reduceable not only from the date of the Brievs but from the time that these Persons were found to be Idiots or Furious for the Verdict of the Inquests upon such Brievs is declaratory and finds that these Persons were such from such a time Observ That albeit from the Stile of the Brieve of old a Furious or Idiots deed could only be reduced from the date of the Brieve and that by this Act such Deeds be only declared to be Reduceable from the time that the Inquest found that the granter was Furious or Idiot yet the granter himself being convalesced may reduce Deeds done by himself though there was neither Brievs nor Inquest finding him Furious the Furie being clearlâ— proven there being no reason that the negligence of Agâ—ats or Friends in not raising Brievs should prejudge the Furious Person 21. Feb. 1632. and which seems yet harder the Heir of the Furious Person will be allow'd to reduce though there was no Brieve nor Inquest in his own lifetime and it is very hard to know his condition after Death July 26. 1638. for sententia aut decretum judicis non facit furiosum sed declarat but there is this difference that if the furious person was declar'd by an Inquest that Verdict proves per se as to all deeds done after but if this Idiotry or Furiosity was not found by an Inquest it must be prov'n by Witnesses and when the furious person is re-convalesc'd deeds done by him after that are valid though there be no Declarator and if there be only lucid Intervals the deed is presum'd to have been done in the fury or lucid Interval according as the deed itself is reasonable or unreasonable and for clearing of this the Lords in a case Steuart contra Steuart ordain'd Witnesses to be led before answer to clear what condition the Granter was in at the subscriving of the deed contraverted and it would seem that the presumption lyes for its being done during the â—ury and not during the lucid Interval if the Granter was found furious by an Inquest bâ—bâ—cause this Act of Parliament sayes That frae it may be known by the Inquest that the persons are Fools or Furious all Alienations made by them shall be null Oâ—serv 2 o. This Act of Parliament stricks only against natural Fools and Idiots and therefore where men become Idiots by doting or old age though they cannot recover or by sickness where they may recover It was thought that they could not be found Idiots by an Inquest and indeed this were very dangerous for many who have been very famous and great men might have been thus affronted in their old age or sickness or at least the Exchequer will not grant Tutories Dative to the nearest Agnats until their condition be first try'd by an Inquest though the Cravers offer to prove the same by Witnesses beyond all Exception and thus it seems that though deeds done by Idiots or Furious Persons may be declar'd null by way of Action yet themselves cannot be declar'd Idiots otherwise than by an Inquest Observ. 3 o. That though all deeds done by furious Persons are here declar'd null yet sometimes they may oblige themselves validly is absents and Pupils may be oblig'd â— furiosus ff de act oblig l. si a furioso ff si cert Pet. vid. Act 18 Par. 10 Ja. 6. Observ. 4 o. From these words and though it be known by the Inquest that the Inquest may find a person Idiot or furious upon their proper knowledge for they are both Judges and Witnesses by our Law Vid. observ on the 18 Act 10 Par. Ja. 6. BY the Act 68 Money and Gold being cry'd up that is to say the value of Coyns being rais'd by the Parliament here which is now usually done by the Council both as to forraign Coyns and our own the Parliament did by the 69 Act ordain that all Debts should be paid with sick Money and of the same price as the money had course before this Proclamation and Act which was only to take place where the Terms of payment were by-past before the Act which makes me think that the reason of the Act was because the Parliament thought it just that no mans Breach of Obligation mora should be advantageous to him and if the Creditor had got his Money in specie he might have made other use of it by carrying it abroad c. But yet now all Debts may be paid according to the course that Money has the time of the payment for as the Money may be cry'd up so it may be cry'd down and to bring both to an equality the Debitor and Creditor run an equal hazard for whatever difference may be as to the taxing the price of other things si
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
of authorizing Acts now is only by His Majesties touching them with the Scepter and if they be Voted in a former Session they may be touch'd without any new Vote or Act but if they were past in a former Parliament they must have a Vote else they cannot be call'd the Acts of the present Parliament THe King here Revock'd when he was in France and his Revocation is subscribed by a Notar which was at that time sufficient but his supplying the Solemnities by His Kingly power was unnecessary for the King cannot supply the want of Solemnities either in his own or other mens Acts or Deeds there is little in this Revocation different from what was in former Revocations save that 1 o. The King Revocks all Tacks and Assedations made for longer space than five years which Article is also repeated in the 31 Act Par. 11 Ja. 6. and the reason of it is because there is too great a restraint laid upon the King by these long Tacks hindering Him thereby to improve His Property or Casualty for which Reason likewise long Tacks set by Tutors are not allow'd and though this may seem only to extend to Tacks sett by Kings in their Minority Yet by the same Reason and upon the same Act a Tack of the Customs set by the King in His Majority to Fleming and Peebles was Reduced before the Exchequer November 17. 1634. because the Tack was sett for seven years 2 o. The King here Revocks all Rights made by Him by evil or false Suggestion or by expreeming of a false Cause though ordinarly false Narratives do not Reduce Deeds betwixt Majors this Lawyers terms ex suppressione veri expressione falsi and this article of Revocation agrees with the Civil Law Vid. tit C. de precib offerend tit C. si contra jus vel utilit public His Majesty here Revocks all Tacks and Assedations made in his minority for longer space than five years which is likwise a Clause repeated in all the posterior Revocations and though it may seem that no Deed done by a Minor in his Minority is Revockable except Lesion could be alleadg'd yet Craig is of opinion that the very setting of a Tack is a Lesion though it be not set under the true value Minorem enim laedi puto quod rei suae liberâ administratione prohibentur lib. 2. dieg 10. THe three Head-Courts to be held by Sheriffs c. conform to this Act are as follows the first is upon the first Tuesday after the fourteenth of January which is the first Tuesday after the twelfth day of Yule The second Court is upon the first Tuesday after Law-sunday The third is upon the first Tuesday after the twenty ninth of September which is Michaelmas day but now they need not writ any excuse to the King or Council if they be not personally present This Act makes a difference betwixt such as owe sute and presence and these who owe sute only all such Barons and Free-holders as owe sute and presence ought to be present in these head Courts but this Act determines not who owe sute and presence and though the 2 cap. 2 Stat. Rob 1. Statutes that none owe sute and presence but these who are expresly lyable thereto by theâ—r Infeftments yet by our present practice Vassals of Ward Lands and consequently of taxt Ward Lands are also lyable to compear in the Superiours head Courts without any Citation though they be not Câ—ted and though this be not exprest in their Infeftment for hoc mest in the nature of their holding but Vassâ—ls who hold bleâ—sh or â—eu are not oblig'd to compear without Citation except they be thereto ty'd by their Infeftment March 12. 1630. Bishop of Aberdeen contra his Vassals And by this Act also the Infeftment is made the rule of compearance these who owe sute only are only oblig'd to send an able man to attend and serve upon Inquests and ordinarly Charters bear tres sectas curiae THis Act appointing Sheriff-deputs and all other Deputs to be sworn yearly is in Desuetude THis Act appointing all Executions even of Letters by warrand of inferiour Courts to be stamped was running in Desuetude till it was revived by a Decision in January 1681. where an Execution proceeding upon a warrand before an inferiour Court was found not sufficient because not stamped and Horning and other Executions before the Lords were always null by way of action if not stamped July 2. 1630. This Act appoints that all Mayors and Officers shall have a Signet bearing the first Letters of their Name or some other Mark that shall be universally known and therefore though the Executions bear that they were stamped yet if they do not appear to be stamped the Executions may be quarrell'd as null especially if they be recent even as Testaments were null by the Civil Law if they did not appear to have formam insculptamque signi imaginem l. 22. § 6. qui testament fac but on the contrary if the Executions bear not that they were stamped they will not be valid though they appear to be stamped because another than the Messenger might have affix'd that stamp Vid. observ on 33 Act Par. 5 Ja. 3. ALbeit this Act appoints all such as execute Sheriffs or Barons Precepts c. to leave Copies yet it has been found that the execution of a Barons verbal Precept needs no Writ but mâ—y be prov'd by Witnesses But this was betwixt a Baron and his Tennents where there needed no written Precepts whereas this Act requiring written Executions is only to be interpreted ' where there are written Precepts because it says they shall indorse their Executions and there can be no Indorsation where there is no written Precept It is requir'd by this Act that the Executor should show the Letters which are his Warrand and that he should offer a Copy to the Servants and yet both these are in Desuetude This Act requires six knocks and the affixing of a Copy upon the most patent Door of the Defenders Dwelling house which the Lords found was only in the case where there could be no entry but found that there was no necessity of knocking when the Door 〈◊〉 patent and Servants found therein December 11. 1679. Counte◠〈◊〉 Cassils contra the Earl of Roxburgh but it may be doubted still whether six knocks be necessary where the Door is patent but no Servants within and the Act says only that if they get no entress they shall knock though a man may be cited in an ordinary action by a Copy left at the Inn where he stayed fourty days yet a man cannot be Denunc'd upon a Copy left at his Inn which is so determined in odium of his Escheat November 20. 1672. It has been doubted whether a Messengers Execution bearing that he came to the Defenders House and was by force keeped out so that he could not give a personal Citation if in that case the Defender should be
Grant contra Grant Nor was for the same cause the breaking up the Tennents House and taking some Goods out of his Chest found a Contravention February 9. 1633. Lindsay contra Denniston But since it was not a Contravention because the Master was not concerned in the Injury as these Decisions bear I see not how the Tennents concourse could have altered the case quoad the Contravention though in both cases the Tennent may pursue damnage and interest All Lawyers are clear that there must be clear grounds of Injury alleadg'd and therefore feeding bestial upon controverted Lands is not sufficient December 20. 1592. But in mutual Contraventions upon that head The Lords allow'd both parties to turn their Libel in a Molestation and granted Commission to Examine Witnesses hinc inde January 24. 1663. Rouchlay contra Wood. Nor would the Lords find that pasturing upon waste High-land-ground should infer contravention except it had been done by the Masters Command or frequent herding to his knowledge July 8. 1664. Earl of Airly contra M cintosh But yet if Deeds of Violence be done even upon debateable Lands that will infer Contravention such as the hoching of Oxen. This animus injuriandi is so necessary that Deeds done by drunken-men are by many Lawyers thought not to infer a Contravention Christin Tit. 4. Art 8. and the adulterating the pursuers Wife will not infer a Contravention because this is not done animo injuriandi but animo libidinoso Christin Art 7. He likewise thinks that threatning real injuries is sufficient and threatning is a great breach of the Peace especially when it is by a man who uses minas prosequi but verbal injuries per se are not thought sufficient by Lawyers nor have we any Decision sustaining a Contravention on that head Since by this Act the King and the Party have different interests therefore Imprisonment or paying of a Fine to the King by prior Sentence will not exclude a pursuit of Contravention at the parties instance March 20. 1623. Futhie contra Carmichael and January penult 1622. Johnston contra Laird of Westnisbit And certainly that Decision related by Hope tit contravention Forrest contra Turnbul Where it was found that the Kings Advocat could not insist alone in a Contravention if the party injur'd discharged the Deed though after the intenting of the Cause is an illegal Decision for seing the King is injur'd crimine fractae pacis and that by this Act the King has right to the half of the penalty and had formerly right to all by the 5 Act Par. 1 Ja. 3. The party cannot Discharge the Kings part Contravention is a penal action even at the privat parties instance and therefore titulus coloratus will defend against it and thus a Contravention being libelled as infer'd from the casting of a Ditch whereby the pursuers Land was overflow'd The Lords found that a consent from the pursuers Father though he was but Liferenter did defend against that action January last 1633. L. Weyms contra L. Gairntilly Without prejudice to pursue an Action of Damnage and Interest to which the Lords turned this Libel without necessity of a new Process And this action is likewise elided for the same reason by subsequent Dissimulation and therefore a pursuit of Contravention founded upon cutting of Trees in the pursuers Wood was elided by the same pursuers granting Licence thereafter to the same Defenders to cut in the same Wood which posterior Licence the Lords found did infer a presumptive Remission January 11. 1633. Denniston contra Lindsay Nor is this Contravention infer'd by Injuries done upon provocation or self-defence but though provocation seems to be good against the provocker yet it seems not to be good against the King and it may be doubted whether the penalties of the Acts of Parliament may be sought by and attour the damnage and interest or if the damnage is to be a part of the penalty HOpe observes from the Narrative of this Act that as only Landed men can be Judges in Perambulations so Landed men ought only to be received Witnesses in Heretable Debates but this Observation holds not in our Practique which allows any habile Witnesses in perambulations and all other Heretable Debates BY this Act all Heretable Obligations or Writs of importance are to be subscriv'd and seal'd before two famous Witnesses if the parties can Write or by two famous Notars before four famous Witnesses if they cannot write Observ. 1 o. That Sealing is not necessary but Subscription is sufficient in parties and is not necessary in witnesses by this Act though it be requisit by the 5 Act 3 Par. Ch. 2. even in Witnesses also and though the Sealing be only remitted in Papers to be Registrated by the 4 Act 9 Par. Ja. 6. Yet it is not necessary in any Writ by our present Custom Observ. 2 o. That in our practice all Writs exceeding an hundred pounds are Interpreted to be Writs of importance and so to need Witnesses January ult 1623. But if any sum be to be annually pay'd that Writ whereby it is to be pay'd requires Witnesses though never so small because yearly Prestations may arise to a considerable sum July 4. 1632. and though sums above 100 pounds require Writ Yet Intromission with Victual or any thing else probable by witnesses as all other things consisting in facto are as also intromission with uncoyn'd Money or Silver in mass is probable by Witnesses though exceeding 100 pounds But promises nuda emissio verborum though for less sums than 100 pounds are only probable by Writ because By standers may mistake the position and force of Words January 19. 1672. Douchar con Brown Observ. 3 o. This Act is only to be extended to such things as require Writ ex sua natura and to which Writ uses to be adhibit for Merchant-bargains made in Mercats do not require Wâ—â—t and so are probable by Witnesses for men use not nor cannot adhibit Writ in such cases nor are Witnesses requisit in Discharges granted to Tennents by the Masters because of their Rusticity and the smalness of the sums Nor are Witnesses requisit in Contracts of Marriage upon which marriage has followed nam notorietas facti habetur pro testibus July 1. 1662. Breidie contra Breidie But it may be doubted whether this holds in Strangers such as are third parties and I think they are not oblig'd to pay the Tocher though it certainly holds in the Man and Wife themselves who Contract and though it hold not in third parties who are meer Strangers yet it should hold in the Father when he obligeth himself to pay the Tocher where there is a tripartite Contract subscriv'd by many parties they are in place of Witnesses to one another all parties having subscriv'd July 19. 1676. Forret contra Veitch And a Writ having the Substantials filled up with the Granters own hand is equivalent to its being Subscriv'd by Witnesses January 23. 1675. Vans contra Malloch Observ. 4
suffering the Rebel to possess three years has been found to be presumptio juris for inferring Simulation June 1666. Oliphant contra Oliphant There is a Title in the Civil Law de collusione detegenda which though it run there only against Collusion inter dominos servos yet the whole matter of Collusion is there Treated by the Doctors and it is defin'd to be sub specie litis lusus Vide Barthol Caâ—oll de simulationibus where this Subject is fully Treated By the last Clause in this Act it is provided that the Thesaurer or his Deputs may cause secure the Houses of the Committers of the Crimes upon the expences of the readiest of the Escheat Goods that is like that annotatio bonorum allow'd by the Civil Law in Criminals against absents and though the Act of Parliament specifies only that this may be done in Crimes yet I conceive that all Rebellion is comprehended under the word Crimes for in all cases even for civil Rebellion not only may the Thesaurer Seal till Caution be found but even the Lords of Session will upon a Bill allow the Sealing of the Rebels Goods at the Donatars instance till Caution be found WIlful setting of Fire in Coal-heâ—ghs is Treason vid. crim pract Tit. Fire-raising THis Act is Explain'd crim pract Tit. Beggars and Vagabonds THis Act against Forestalling is fully Explain'd crim pract tit Forestallers TAis Act punishing the Carriers of Wool Nolt and Sheep into England by Escheating the Transgressors Moveables is not abrogated by the Union of the Crowns the Nations being still distinct THis Act against Deforcers is Explain'd crim pract tit Deforcement THis Act is Explain'd crim pract tit Art and Part num 2. THis Act declaring that none but actual Burgesses shall Traffick is fully Explain'd 5 Act 3 Sess. 2 Par. Ch. 2. BY this Act all manner of persons Inhabitants of Burghs exercing any manner of Traffick or having Change therin shall bear Stent Which Act was found not to extend to Indwellers though they have the benefit of the Mercats and had never any other Residence but within Burgh and have the benefit of Seats in the Kirks and so should at least pay Contribution for the Ministers Stipend January 11. 1678. Town of Alerdene contra Lesk And by the 275 Act 15 Par. Ja. 6. All such as have an hundred pounds of yearly Rent may be Stented but by 276 Act of that Parliament they are only to be Stented according to the value of what Rent they have within that Burgh and not according to what they are worth else-where but it may seem that by the 275 Act all who have an hundred pound to spend ought to be Stented that therefore Indwellers are to be Stented though they have not an hundred pound of Rent in House-mail or Trade for the Act sayes if they may spend and not if they have and therefore that the persons who come in accidentally to live in Town should not pay yet if they have no other constant Dwelling save in Burgh that in that case they ought to pay because it is just all Subjects should bear some burden and they bear none else-where to which nothing can be answered but that the Act ordains only such to be Stented as have Rents and Livings copulative Observ. That by this Act one of every Craft is to be exeemed as His Majesties Servant from all Taxation Watching and Warding such as the Kings TailÈour His Smith c. And yet this Act does not exeem them actually but only allows His Majesty to exeem if He pleases so that except these be actually exeemed by their Gift this Act will not exeem them This priviledge is renew'd Act 275 Par. 15 Ja. 6. And His Majesty by His Gifts to His Work-men declares them to be exeem'd conform to these Acts whereupon the Council in anno 1680. did find they should not be stented and all these priviledges are again Ratifi'd in the Parliament 1681. But there being a Declarator rais'd of these priviledges before the Lords of Session in anno 1684. It was objected first That because these Acts being made in favours of the Kings Servants whilst our Kings liv'd in Scotland and they actually ty'd to Service the saids Acts should not now take place but should cease with the Service whereupon they are sounded 2. Though Wrights Masons c. Who are actually at present ty'd to serve may plead this priviledge yet the same cannot be crav'd by the Kings Barbers Shoe-makers c. who never serve 3. The said Exemption could extend no further than to the value of the imployment they had from the King but if the Kings Smith c. have from the people the imployment that other poor Smiths should have it were not just that he should be exeem'd which were to make them pay the value of the Impositions that should be put upon him 4. That these Laws could not exeem from paying for their other Trades So that if the Kings Mason be likewise a Vintner he should pay for his gain in that Trade 5. These Acts of Parliament could only free from Watching and Warding which are inconsistent with personal attendence but should not be extended to Stents and Impositions which were not usual before these Acts since the general words of Laws are ordinarly restricted to what ordinarly happens in the time 6. Though these Exemptions could secure against Impositions laid on by the Town yet they cannot secure against Impositions laid on in Parliament by voluntar offers made by the Subjects themselves in which those Trads-men must be considered as voluntary Offerers as well as others since they are re-presented in Parliament as well as others And in which Act Colledges and Hospitals are only exeem'd and not they this Debate is as yet come to no Decision BY this Act the Crafts-men living in Suburbs of Free and Royal burrows are discharg'd to work and their work declared conâ—â—â—â—able but this Act is not extended to Suburbs that are erected in a Burgh of Barony for these are priviledged by their erection and are not meer Suburbs but distinct Jurisdictions July 21. 1629. and there is a Decreet arbitral betwixt Edinburgh and the Suburbs wherein there is a Liberty allow'd to these who live in their Suburbs to work to Strangers but not to Towns-men This Act of Parliament has likewise been extended not only to Suburbs but to all who were within the Liberties and Priviledges of Burrows Royal though the saids places be not properly Suburbs and that the Act of Parliament discharges only the exercise of such Crafts in Suburbs adjacent to the saids Burrows July 7. 1671. Town of Stirling contra Polmais whose Tennents and Trads-men in Saint Ninians lived a mile from the Town of Stirling vid. etiam Durie March 21. 1628. and the reason of this Decision was because such Un-free men as live within the Priviledges do as well abstract the Trade of the Inhabitants as
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
said to be no more when they make but a part of the Parliament of Great-Britain for Scotland cannot be called Britain nor a part of a Parliament cannot be called a Parliament no more than the Commissioners for the North of Scotland can be called the Parliament of Scotland but how our Commissioners could sit in the Parliament of Great-Britain by vertue of their former Commissions I see not and therefore it seems to be both fit and just that the Commissioners of Shires and Burrows should be sent home to their respective Constituents to crave their advice and consent in so weighty and comprehensive an Affair nam quod omnes tangit ab omnibus debet approbari It may be likewise contended that this Great Determination of Uniting both Parliaments requires at least the full assent of the Members of both Parliaments and that though the Parliament had power to alter its own Fundamentals yet if any one dissent the Union of both Parliaments must stop for both in Law and Reason the power of making Laws and the Right to retain or resign Priviledges are two different things the one is a Legislative Power which is regulated by plurality of Voices the other is founded upon Dominion or Property and is not subject to Suffrage no more than other Properties are for as every Member has Right so his Right cannot be taken away from him without his own consent though all these who are in the Society with him should renounce what is theirs in re pari melior est conditio prohibentis in re communi nemo dominorum jure quicquam sacere potest invito altero L. Sabinus ait 28. ff com divid thus if the Members of a Society were by Law free from Impositions though all the Society save one should submit to pay yet plurality would not in that case oblige the Refuser and if all who had interest in a Commonty should condescend to Resign their Right therein in favours of another yet if one were refractory that one would not be prejudged by the consent of all the remanent partners whence it seems consequential that as the Parliament cannot Debar any Member from sitting in Parliament so that if one Member by advice from his Constituents oppose the Union of Parliaments it could not be carry'd by plurality for what ever Reason militats why plurality should not oversway in the one does likewise militat in the other and if the right of every Member is given as the cause why he cannot be debar'd from sitting Why should not the same Right empower him much more to stop the total alteration of the Parliament even as a man cannot be Debar'd from using a Commonty It will likewise operat that the Commonty cannot be altered in its Nature without his consent and the Right of these who sit in Parliament is as much prejudg'd by extinguishing the being of a Parliament as by debarring them from sitting or Voicing in it Our Shires and Burghs have Right to be Represented in no Parliament save that of Scotland and therefore if the Commissioners had power to overturn the being of the Parliament of Scotland they could have debar'd our Shires and Burghs from being Re-presented in the Parliament of Great-Britain seing they could pretend no Right to sit there so that it seems either plurality of Voices may exclude any particular Member and may retrinch that Member Or else by the same Reason no plurality can establish an Vnion of both Parliaments and if our Parliament could by plurality of Voices overturn the Fundamentals and destroy the very being of our Parliament How shall it be possible to secure our Parliament when it is joyn'd in with the Parliament of England into one Parliament of Great-Britain so as that the Parliament of Great-Britain may not by the plurality of Voices likewise overturn any Fundamentals that shall be condescended on but that the Fundamental Constitution and priviledges of Parliament are not subject to Suffrage and cannot be abrogated nor innovated without the universal consent of all its Members and Commissioners may be clear likewise from many Instances for it is most certain that the Parliament as now Constitute could not by any Statute Ordain that there should be no more Parliaments or resign over their Parliamentary power in the hands of the Council nor could they Transmit the Power they possess in favours of their own Heirs or exclude any of the Three Estates and sure if Fundamentals be not subject to plurality of Voices the power of Uniting of Parliaments and suppressing of Monarchies is not for these comprehend all other Priviledges and Fundamentals and if the priviledges of one of the Three Estates cannot be altered by plurality I see not how the priviledges of all the Three can be and we have seen Parliaments in the last age do such irregular things that the succeeding Parliaments have been forc'd not only to abrogat their Laws but even to find that they had exceeded their power which implyes that it was not arbitrary King IAMES the sixth Parl. 18. THis Act Declares His Majesties Royal Prerogative by way of acknowledgement without any new Concession in these words They all in a voluntar humble faithful and united heart acknowledge His Majesties Soveraign Authority Princely Power Royal Prerogative and priviledge of His Crown over all Estates Persons and Causes and Confirms to His Majesty His Imperial Power and whatever Soveraign Authority any of His Predecessors had and Casses annuls and abrogates all any way done to the prejudice of His Authority any manner oâ— way so that it seems that all former Acts of Parliament lessening any way the Royal Power are hereby abrogated By this Act likewise the Estates of Parliament promise to maintain defend and advance the Life Honour Soveraign Authority Prerogative Royal and priviledge of His Crown with their Lives Lands and Goods to the outmost of their power But because this Act was too general therefore by the 2 3 4 and 5. Acts of the first Parliament Charles the Second His Majesties Royal Prerogatives in the choice of the Officers of State Counsellours and Judges in Calling and Dissolving of Parliaments and making of Laws in making of Peace and War and ordering the Militia c. are expresly acknowledged and Ratified and by the second Act of the second Session of the first Parliament All endeavours to restrain His Royal Person to Depose or Suspend Him and all endeavours tending thereto are Declared Treasonable and all stirring up of the People to the hatred or disâ—ike of His Royal Prerogative are punishable in manner therein mentioned and by the 27 Act of the 3 Sess. of the 1 Par. Ch. 2. His Majesty is Declared by His Prerogative Royal To have the only Power of Ordering all Trade with Forraigners Nota This is the first Act that mentions the word Prerogative which was formerly call'd the Priviledge of the Crown and therefore this Act mentions both the Old and the New Words by asserting
His Majesties Prerogative and Priviledge of the Crown BY this Act Bishops are not so much restored to their Offices as it is Declar'd that it was never mean'd by His Majesty that the Estate of Bishops was to be suppressed Their sitting in Parliament being by this Act Declar'd to be one of the Fundamentals of the Nation But by this Act their Benefices are only Restored to them which were much impaired And though by the 114 Act Par. 12 Ja. 6. General and Synodal Assemblies and Presbytries are thereby Ratifi'd yet Episcopacy is not thereby abrogated expresly By this Act the King is Declar'd to be Soveraign Monarch absolute Prince Judge and Governour over all Persons Estates and Causes both Spiritual and Temporal within this Realm And by the 1 Act Par. 2 Ch. 2. It is asserted and Declared That His Majesty hath the Supream Authority and Supremacy over all Persons and in all Causes Ecclesiastical within this His Kingdom and that by vertue thereof the Ordering and Disposal of the External Government and Policy of the Church doth properly belong to His Majesty and His Successors as an inherent Right to the Crown and that His Majesty and His Successors may Settle Enact and Emit such Constitutions Acts and Orders concerning the Administration of the external Government of the Church and the persons employed in the same and concerning all Ecclesiastical Meetings therein as they in their Royal Wisdom shall think fit There having been great Debates about the wording this part of the Act some Members of Parliament pressing to have it without any Restriction and others though very Loyal pressing it might be Restricted to the Calling and Dissolving of Ecclesiastick Meetings and External Government only Lightoun Bishop of Dumblane was at last trusted by the Commissioner who has drawn it very Cautiously for the Church though our blinded Fanaticks think otherwise For First It is Founded upon the former Old Statute and after repeating that Statute it is said It is therefore Enacted to shew that it was not Design'd that this Act should exceed the former and old Supremacy 2. The Prerogative is restricted to Government and not only so but to the External Government and even as to this External Government the King has only the Ordering and Dâ—sposal of it and the Administration of it by the next Clause so that the Doctrine of the Church nor the internal part of the Government falls not at all under the Kings power by vertue of his Supremacy that is to say He can neither Admit nor Depose nor Administrat Sacraments though He may Discharge a Bishop or Minister to Preach and this is that which was allow'd by the Primitive Church to their Emperours Thus Constantine that Great and first Christian Emperour is approv'd by all the Fathers for setling thus the Marches betwixt the Ecclesiastick and Civil Jurisdiction Euseb. lib. 4. de vit Constant. vos quidem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eorum quae intus in ecclesia sunt agenda ego vero 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eorum quae extra sunt episcopus sum a Deo constitutus and that the Administration of the Sacraments and these other things quae intus sunt belong not to the Civil Magistrat is acknowledg'd by the 69 Act Par. 6 Ja. 6. Wherein it is acknowledg'd that the Jurisdiction of the Kirk consists in the Preaching of the Word the Correction of Manners and the Administration of the Sacraments In which Act three things are observable 1. That the Act tells they derive their Jurisdiction from the King which is as to the external part for no man can think they Derive their power of Administrating the Sacraments from the King though from Him they Derive the Faculty of having the External Face of a Church without which that could not be enjoy'd 2. Though the Church has the Correction of Manners yet the King may regulat these as we see in the very next Act for keeping the Sabbath and which seems to have been made the next Act to this for to clear the meaning of that part of this Act. 3. Though the Preaching of the Word is Declar'd to be a part of the Ecclesiastick Jurisdiction yet that relates only to the Matters of Faith to be Preach'd as to which Ministers are to be judg'd by Church Judicatures but if they Preach what encroaches on the Secular power they are to be judg'd by the King and those Deriving Power from Him conform to the 129 Act Par. 8 Ja. 6. This Supremacy in cases Ecclesiastick seems to have been ever the proper Right of Secular Princes and Haedeus the Great Canonist repet in cap. novit de jud num 145. Though a Roman Catholick does acknowledge That nemini dubium est quin in primitiva Ecclesia de rebus personis ecclesiasticis jus dixerint which will very clearly appear to any who will Read the first thirteen Titles of the first Book of Justinians Codex in which he ordains amongst other things vim legum obtinere Ecclesiasticos canones a quatuor synodis Nicena Constantinopolitana prima Ephesina prima Chalcedonensi expositos confirmatos and I find that the Supremacy is in England thus Established under the Reign of Henry the eighth That the King and His Heirs and Successors should be taken and accepted as the only Supream Head on Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of that Realm as well the Title and Stile thereof as all Honours Dignities Preheminencies Jurisdictions c. to the said Dignity of Supream Head belonging In this Act the Bishops are not restored to Benefices that are not of Cure but to these which have a particular Cure and therefore His Majesty Confirms all Dispositions or other Rights made of Abbacies Priories or other Benefices not being Bishopricks made or Confiâ—med at or before July 1587. they paying the Greslum appointed by that Act to the Bishop within Year and Day There is likewise reserved by this Act all Feus lawfully set and Confirmed before the Act of Annexation which was in the year foresaid and all Patronages of Kirks pertaining formerly to them Disponed by the lawful Titular and the Kings Majesty and Ratifi'd in Parliament which extends as well to the Patronages of Mensal Kirks as of Kirks which are of the Bishops presentation March 25. 1631. and albeit regulariter confirmatio nihil novi juris tribuit yet hoc casu supplet omnes alios desectus for by the former Practique it is found that alienations of Patronages even of Mensal Kirks are valide if made as said is by the lawful Titular though not made by him with the consent of the most part of the Chapter for this Act requires that it be made by the lawful Titular but there is no mention therein of the consent of the Chapter By the Act of Annexation in anno 1587. the whole Superiorities of all Kirk-lands being annexed to the Crown it was therefore necessary that by
this Act they should have been Restored but they are not Restored expresly to these but it is alleadged that they have Right to them by the 14 Act Par. 1 Ch. 1. But yet in that Act it is only said that what is Statute anent the Kings being Superior to Vassals of Erections shall be but prejudice to Bishops and their Chapters of their Rights to their Superiorities which is only a Reservation but is no express Restitution of them to these Superiorities THis Act anent the Dilapidation of Bishopricks is formerly Explained in the general nature of Dilapidations in the Act 101 Par. 7 Ja. 6. and Act 11 Par. 10 Ja. 6. and as to what concerns Chapters it shall be Explained in the Act 2 Parliament 22 Ja. 6. WHen a person is Forefaulted he may be in Law Restored two wayes viz. either by way of Justice when the Sentence of Forefaulture is found to be unjust or by way of Grace when the Sentence is just but the person Forefaulted or his posterity is restored which distinction we have from the Civil Law that allows a distinction inter restitutionem per modum justitiae per modum gratiae The difference betwixt these Restitutions by this Act of Parliament is that the person that is restored by way of Grace has not by his Restitution Right to any part of the Forefaulted Lands and others Disponed in favours of third parties but such as are Restored by way of Justice will thereby have Right to their own Lands though Dispon'd to third parties for onerous Causes as was found in the Disposition of the Lands of Mugdock formerly belonging to the Marquess of Montrose and Disponed by the Parliament for onerous Causes to Argile as also these who are restored by way of Justice will have Right even to repeat the sums of Money which formerly belonged to them though assigned to third parties for onerous Causes and albeit those sums were first ordained to be pay'd in to the Thesaurie and precepts only drawn upon the Thesaurie in favours of these third parties as was found in the Earl of Branfords case against the Earl of Callender and others though this Restitution of Money seems much harder than that of Lands since Money is res sungibilis and singular Successors are not oblig'd to know to whom the same belonged A Process having also been intented against the Earl of Argile in the Parliament 1681. for reducing his Heretable Offices as granted since the 44 Act Par. 11 Ja. 2. It was answered that these Heretable Offices were Dispon'd to the Family before that Act and it being Reply'd that the first Right was extinguished by the Forefaulture and the Restitution being only by way of Grace was to take effect only from the date nor was it more sufficient against the King than if the King had granted them originally at that time in which case they would have been quarrallable on that Act and yet de praxi the King restores to Titles of Honour as of the first date By the 2 Act Par. 9. Ja. 6. The King succeeding to Lands by Forefaulture has right to whatever the Forefaulted person was five years in possession of before the Forefaulture because it is presumed that the Forefaulted person will abstract the Evidents and therefore upon the same presumption it is likewise appointed by this Act that the production of Extracts out of the Register shall satisfie the production in Improbations against the King in Forefaulted Lands Whereas other singular Successors Rights will be improven if the Originals be not produced vide notata upon the said Act 2. The excellent Narrative of this Act is Copied out of l. 1. § 1. ff de justitia jure THis Act is Explained in the 11 Act Par. 16 Ja. 6. Which is that Act that is here Rescinded though it be not here cited BY this Act it is appointed that where there is no arrable Ground in the Paroch the Minister shall have sixteen Soums Grass in place of the four Aikers which are allow'd to him for his Gleib and by the 21 Act Par. 1 Sess. 3 Ch. 2. It is ordain'd That the Minister shall have Grass for one Horse and two Kine over and above his Gleib and therefore it was doubted if where the former Gleib did extend to more than would be Grass for two Kine and an Horse above the four Aikers the Ministers might seek that Grass and the Lords found they might albeit it seems that if this were just the Minister might also seek Grass for a Horse and two Kine even where he had sixteen soums Grass by this Act February 16. 1675. Parochioners of Banchry contra their Minister THis Act is but Temporary THis Act appointing Letters of Horning to pass upon Sheriff Stewart and Baillies Decreet without a Decreet conform before the Lords is Explain'd in the 177 Act. Par. 13 Ja. 6. and because these Acts gave only warrand for Raising Letters of Horning upon such Decreets Therefore warrand is likewise given for raising Letters of poynding upon all such Decreets by the 29 Act Par. 1 Ch. 2. which shews that express Acts are us'd even where there is paritas rationis and they are useful ob majorem evidentiam BY this Act all persons are Discharg'd from receiving any Colziars Salters or Coal-bearers without sufficient Testimonials from their Masters but though this Act appoints the CoalÈiars Coal-bearers and Salters to be punished as Thieves yet none ever Died upon this Act but the ordinary Action both against them and their Resetters is before the Privy Council and the Act only says They shall be repute as Thieves and punished in their bodies This Act is extended to Drawers of Water in Coal-heughs and the Fees of CoalÈiars are Discharged to exceed twenty Merks by the 56 Act 1 Sess. Par. 1 Ch. 2. though this Act only Discharges all persons within the Kingdom to hire other mens CoalÈiars c. yet it was justly thought that the prohibition of it extended to all such as had Right to Coal or Salt here by Tack or otherwise though themselves dwell not within the Kingdom and it seems that the Council might hinder Forraigners to carry away our CoalÈiars and Salters though they cannot punish them for so doing By this Act likewise a Power and Commission is given to all Masters and Owners of Coal-heughs and Panns to apprehend all Vagabonds and sturdie Beggars and put them to Labour and it has been resolved that Tacks-men of Coal-heughs and Pans has the same priviledge though they cannot properly be call'd Masters and Owners except the words be allow'd to be extended to Temporary Rights but since this priviledge is chiefly real and not personal in rem scriptum therefore it seemâ— reasonable that whoever have the power of the Coal-heughs should likewise have this priviledge which is granted upon their account The Council thought argumento hujus legis that Masters of one Manufactory could not have
allowance is only specifickly given to Dukes Marquesses Earls Viscounts Lords or Prelats and yet I see no reason for the Distinction but on the contrary it seems more reasonable that to the end a whole Shire may be represented that therefore they may be allow'd to deput some to Vote in case others be absent for though it may be answer'd that the power of Proxies is unnecessary in Shires because if their members be necessarly absent they may choose others For to this it may be reply'd that they cannot choose new Commissioners except in case of Deâ—th whereas the Shire may be much concern'd to have their Proxies at any one Dyet Likeas by the 52 Act Par. 3 Ja. 1. All Free-holders are allow'd to have Proxies in case of lawful absence from Parliaments It is ordinary also for the chief Burrows to choose and send an Assistant to attend their Commissioner Observ. 2. By the said 52 Act Par. 3 Ja. 1. absents seem only to be allow'd to send their Procurators for excusing their absence but by this Act they are allow'd to Reason and Vote and therefore it may be doubted whether a Brother who cannot Vote in his own Brothers Cause may notwithstanding be admitted to Vote for his Brother as Proxie for another to whom his Brother is a stranger since here sustinent personam extranei but seing the affection is the same I think they would not be allow'd nor does the Parliament now allow Proxies in any case It may be liâ—ewise doubted if this Act may be extended to Conventions since the Act speaks only of Parliaments and does not add or other General Councils as the Act 113 Par. 11 Ja. 6. and other Acts do but yet the Act 52 Par. 3 Ja. 1. allowing Proxies in absence speaks of Parliaments and General Councils Obs. 3. It is the Kings advantage and interest that Proxies should be allow'd for they are only to be allow'd by this Act where the reason of absence is warranted by the King His Commissionâ—r or Council and so the King may allow Proxies or not as He pleases and needs never allow any to those whom He suspects which is also the present Custom of England as to the Peers Observ. 4. That though Letters of Actourney out of the Chancery be sufficient for absence in other Courts yet by this Act the absents must give a written warrand under their own hand THis Act gives instructions to Justices of Peace and Constables which iâ— renew'd and somewhat altered by the 38 Act Par. 1 Ch. 2. But by this Act their Decreets are ordain'd to receive Execution by Letters of Horning and Poynding and that no Suspension shall be granted but on Consignation which Consignation is neither appointed by the foresaid Act 38. nor is it now in viridi observantia and though by both the Acts they are ordain'd to proceed against Cutters of green Wood Slayers of red and black Fish c. yet they are not in use to proceed in such cases because the Act appoints that Commissions shall be granted to them for that effect but these Commissions have never as yet been granted Though by our Customes no person can be holden as confest except they be personally cited because else men might be drawn in snares by Citations at Dwelling-houses yet here they are allow'd to be holden as confest upon the second Citation at their Dwelling-houses because the subject is small in Justice of Peace Courts This Act is likewise Explain'd crim pract tit Justices of Peace and is Ratifi'd by the 38 Act Par. 1 Ch. 2. Where the Council is allow'd to grant them what further instructions they shall think fit The Council uses to name Justices of Peace in place of such as dy and it being alleadg'd that all Commissions for Justices of Peace should slow from the King immediatly this was refused by the King as being contrary to the constant Custome of Council whom the King allows to name Justices of Peace BY this excellent Act such as have peaceably possessed their Lands for fourty years are secured by Prescription As to this Act it is observable First That Prescription is only competent to such as have bruiked by vertue of Heretable Infeftments and therefore he who alleadges Prescription must alleadge an Heretable Title but though the Possessor be not expresly Infest yet if he has possessed the subject as part and pertinent it will be sufficient and therefore a Salmond-fishing was found to be prescriv'd though it was alleadg'd to be inter regalia since the Prescriver was Infest cum piscationibus in general February 7. 1672. But if the Prescriver be Infest upon a bounded Evident it will not furnish him a valid Title for prescriving as part and Pertinent any Land that is without the bounding November 14. 1671. This Act is also extended to Heretable Offices as to Patronages Pensions and all Servitudes though not expresly mention'd and though Heretors and Wodsetters are enumerated sometimes as different from one another Act 6 Sess. 2 Par. 1 Ch. 2. yet Heretage in this Act comprehends Wodsets and it is even extended to long Tacks so that it was found that after fourty years they could not be quarrel'd as granted without consent of the Patron July 7. 1677. This want of a Title likewise and of bona fides hinders a Vassal to prescrive against his Superiour since the reddendo of that same Charter whereupon he founds his prescription obliges him still to know his Superiours Right and by this Act for the same cause a Wodset cannot prescrive where the Reversion was incorporat in the body of his own Infeftment Since this Act appoints that His Majesties Lieges bruiking for 40. years shall have Right by prescription it may be doubted whether prescription can run in favours of strangers who have not been Naturalized Observ. 2. That these fourty years are only to run from the date of their Infestments by this Act and yet in warrandice it is only to run from the date of the Distress but from both it is clear that the reason is because till then they who have such Rights non valent agere and therefore the exception allow'd by the Civil Law of non valens agere is allowable in ours though it be not expressed in this Act as minority is whereby it seems that exceptio firmat regulam in non exceptis Likeas it was found in the Earl of Lauderdail's case against the Earl of Tweddel that Lauderdail being Forefaulted by the Usurpers prescription could not run against him during that Forefaulture but where there is a Title prescription may run albeit the Defender was absens reipublicae causa at the least durst not come home in the Usurpers time for alleadg'd Crimes committed against them as was found in White-foords case the 24 of July 1678. He having kill'd in Holland Dorislaus one of the Kings Murderers for the Lords thought that he might have Transferr'd his Title to another and if this reason hold it seems that
formerly observ'd that they were in use to regulate the Mint also VId. observ on Act 13 Par. 18 Ja. 6. THough by this Act the Clangrigor were abolish'd and they ordain'd to alter their sirname because of their bangstry yet because of their good Services done to His Majesty during the late Rebellion they were restor'd in anno 1661. It has been always believ'd that no Clan or Family can change its sirname in Scotland without express Act of Parliament or Act of Council for that might occasion great confusion and might be a ground of cheating the people in their Evidents and securities But any privat man may as we see daily in Tailies and it does not follow that because the Parliament only can force men to change their sirname that therefore they cannot do it voluntarly themselves BY this Act it is expresly declar'd that because particular Acts of Parliament and Acts of Ratification are made without hearing of Parties that therefore the Lords of Session shall Judge in these cases without respect to those Acts according to the privat interests of parties The immediat occasion of making this Act was the case betwixt John Stuart of Coldinghame and the Earl of Hume which was this The Earl of Bothwel having been Forefaulted the Priory of Coldinghame was Dispon'd by the King to the Earl of Hume which Earl of Hume set in Tack a-part of the Teinds of the said Priory to the Laird of Wedderburn but thereafter the Earl of Hume having entred in a Transaction with John Stuart Son to the Earl of Bothwel he suffers by Collusion a Decreet of Parliament to pass in anno 1621. whereby John Stuart was not only re-habilitat as to his Blood but the Forefaulture Rescinded in so far as concerned his Right to the Priory of Coldinghame upon a pretext that he had a commendam of it settled in his person before his Father was Forefaulted whereupon Dowglass of Evelaw pursuing the Laird of Wedderburn for a Spuilzie of Teinds in anno 1627. he obtains a Decreet notwithstanding of very unanswerable grounds then alleadg'd because the Lords of the Session would not call in question the Act of Parliament 1621. Notwithstanding of the Act salvo subjoyn'd to the Acts of that Parliament for the Lords found that the Session as an inferiour Judicature could not canvass special Acts of Parliament but because the Subjects might be extreamly prejudg'd in their privat Rights by such Acts of Parliament therefore the foresaid Clausâ— was inserted in this Act and that it might extend to this Case though anterior it is expresly declar'd in this Act that this was the meaning of all former Acts Salvo and accordingly the Lords of the Session did in February 1679. Repone the Laird of Wedderburn to Debate upon his just Rights notwithstanding of the Act of Parliament 1621. By this Act several privat Rights and Ratifications are excepted from this Act salvo But since the Act salvo proceeds upon the principal of natural Reason and Justice it seems that even these Exceptions are questionable for else the Act salvo should signifie nothing For these who had the interest to obtain privat Acts of Parliament would likewise have the interest to get them excepted from the Act salvo and upon this Reason it was doubted and not Decided whether Exceptions from the Act salvo made in privat Rights though not repeated in the Act salvo were sufficient to secure these Rights against the Act salvo for though it might be alleadg'd that in these there is a speciality from this case since the Act salvo being posterior and simple Annuls and Derogats from the former Reservation yet even there it may be alleadg'd that it cannot derogat since in the former special Act the Parliament Declar'd their special Inclination that it should not Derogat Nota The Act salvo jure is never Voted in Parliament because it is but an Act in Course and for the same Reason Ratifications are not Voted now since no man can be concern'd in either albeit of old I find that Ratifications were past in Parliament in the form of decreets and so must have been voted but it seems strange why Acts for granting of Mercats and Imposing Customs for the maintaining of Bridges should not be Voted And in the Parliament 1681. The Reports of the Articles thereof as to these past the last Dâ—y without being Voted which was oppos'd by some as irregular because there the consent of some parts of the Nation was requisite But I conceive that this likewise proceeded from the numerousness of the things that were brought in and the general acquiescence of the Members and the time they were to sit being so short and it seems securer to settle these by a vote K. CHARLES II. Parliament I. Session first ALbeit KING CHARLES the Second did hold a Parliament at Saint-Iohnstoun in anno 1650. yet this Parliament being the first after His Majesties happy Restauration is by the Inscription Intituled The First Parliament of KING CHARLES the Second though that Parliament 1650. is not Rescinded by the general Act Rescissory which is the fifteenth Act of this Parliament Nor by any other special Act And so that Parliament stands still in force so that this Inscription seems unwarrantable THe Rebellious Parliaments in the former age did choose their own President though the Chancellour ought to have presided in all Courts as is insinuated by the 40 Act Par. 5 Ja. 5. but this they did to have the President of Parliament Depend upon Them and not upon the King and therefore by this Act it is Declar'd that the Chancellour is ratione officii to preside in all publick Judicatures where he is present Observ. 1. That this Act says That the Lord Chancellour and such as shall be nominated by His Majesty shall preside and therefore if the King please He may Nominat another President though the Chancellour be present And I find that His Majesty has Nominated others to preside where the Chancellour was present Obser. 2. That though when the Chancellour is absent His Majesty can only Nominat another President Yet this does not exclude His Majesties High Commissioner from the power of Nominating a President since he has mandatum cum libera and Middleton did Nominat the Earl of Crawfurd to preside in this Parliament when Glencairn then Chancellour went to London Observ. 3. That the Chancellour is to preside not only in the Parliament but in all other publick Judicatures and therefore though it was pretended by the Thesaurer that notwithstanding of this Act the Chancellour could not preside in Exchequer though he was named in the Commission Because the Exchequer was rather the Kings Chamberlains Court than a publick Judicature in which the Thesaurer was chiefly intrusted because he was chiefly to be answerable yet this pretence was groundless since the Exchequer is a Judicature which Hears and Discusses Causes relating to the Revenue and is Declar'd a Judicature by the
Parliament was Adjourned by Proclamation was elapsed a new Parliament behoved to be called Or if the current Parliament ought to be Adjourned by a new Proclamation notwithstanding the Day was elaps'd and it was found that it might be Adjourned since the power of Calling and Dissolving Parliaments is the Kings Prerogative and a Letter to this purpose from the King is Registrated in the Council Books in July 1683. King CHARLES 2. Parliament 1. Session 2. EPiscopacy having been Restor'd in anno 1606. Bishops were by the Rebellious Parliaments abolish'd and therefore are by this Act Restor'd to their undoubted Priviledge in Parliament that is to say to be a third Estate their Function Dignities and Estates but before this Act of Parliament the Secret Council by their Act in June 1662. Discharg'd any Person to meddle with their Estates or Revenues in Obedience to a Letter directed by His Majesty which gave the first rise both to that Act of Council and this Act of Parliament By the first Act Par. 12. Ja. 6. King James had permitted the Church to be Govern'd by General-assemblies Synods and Presbytries Which Act was not expresly abrogated by the 2 Act Par. 18. Ja. 6. and therefore it is by this Act expresly abrogated They are also Restor'd to their Commissariots and Quots of Testaments but the present Commissars Rights are reserv'd and albeit they be Restored to the Superiorities Yet Vassals having Entered by or having pay'd to the Superiors for the Interval are secur'd BY this Act taking up Arms though in Defence of Religion is Declar'd Treason and conform to this Clause all going to Field-conventicles in Arms was Declar'd Treasonable though it was alleadg'd that this was not a Rising in Arms since every man went without knowing of his Neighbour for the Council and Justices thought that at this rate a multitude of Arm'd men might easily assemble and the Levying War or taking up Arms being impersonally Discharg'd it reaches every single man and though there were only one single man in Arms yet he would be guilty of Treason especially after that Proclamation for he knew not but others might be there versabatur in illicito By this Act also all accession to the Suspending His Majesty or His Successors or to the Restraining their Persons or inviting Forraigners to Invade their Dominions is declar'd Treason There is one Branch of this Clause which may seem hard but was necessary viz. Or put limitations upon their due Obedience for the former age and this having invented new Treasons in asserting they would own the King in as far as He would keep the Covenant or own Jesus Christ But reserving still to themselves to judge how far the King did so they did by a necessary consequence conclude that they were no further oblig'd than they pleas'd and so made themselves in effect Judges above the King than both which nothing can be more Treasonable And I remember that Sir Francis Bacon in his History of King Henry 7. Tells us That the Judges of England found Sir Robert Clifford guilty of Treason because he said that if he knew Perkin Werbeck were King Edward 's Son he would never bear Arms against him though the Words were alleadg'd to be only conditional for they thought it a dangerous thing to admit ands and ifs to qualifie words of Treason whereby any man might express his malice and blanch his danger The denying His Majesties Supremacy as it was then Established is declar'd punishable by in-capacity and such other punishment as is thereto due by Law But it had been fitter to Determine that punishment and from the words as it is now Establisht It may be doubted whether the Impugning the Supremacy absolutely be punishable by this Act since the Supremacy is extended by a posterior Act viz. The 1 Act 2 Par. Ch. 2. But that Act being only an Explication of this all such as Impugn the Kings Supremacy absolutely are punishable From these words also That they shall be punishable by such other pains as are due by Law in such cases It may be doubted what punishment is due to such as Impugn the Kings Supremacy besides incapacity and it seems they may be pannal'd upon the 129 and 130 Acts 8 Par. Ja. 6. It has been urg'd That all speaking against the Kings Prerogative is only punishable by incapacity and arbitrary punishments because this Clause sayes That if they Speak Print c. against the Kings Supremacy in Causes Ecclesiastick or to justifie any of the actings or practices abovementioned they shall be so punished But so it is that all rising in Arms to Depose the King c. are above-mentioned Ergo say they The speaking or Preaching in Defence of these is only to be so punished and they urge this from the Principles of Reason and the practice of other Nations and that excellent Law si quis imperatori maledixerit lib 9. tit 7. C. but this were a most absur'd Gloss For certainly if this Objection prov'd any thing it would prove that no words could infer Treason which is expresly contrary to the very Act whereby all these Positions are Declar'd Treason and consequently all words whatsoever which express these Positions are punishable as â—reason and it is fit to know that it is not that very formula or words which are condemn'd but these Positions are condemn'd for else it were easie to make the Act elusory and to evade it by using other words than the words here set down and the Analysis of that part of the Act is that first the Positions are Declar'd Treasonable 2. The speaking against the Kings Supremacy and the Ecclesiastical Government as now Establish'd c. is forbidden 3. The Plotting or Contriving any thing against the King consequentially to these Positions is Declar'd punishable by Forefaulture 4. That the speaking c. against the Supremacy and the Establish'd Government of the Church is to be punish'd arbitrarly and the words Or to justifie any of the Deeds declar'd againstly this present Act are to be restricted to words relative to the Supremacy c. mention'd in that Clause only It is also observable That the Impugning the Government by Bishops or the Kings Supremacy are only punishable if they be pursu'd within eight Moneths and Sentenc'd within four Moneths thereafter and are only punishable by this Act if it was done by malicious and advis'd Speaking and therefore it appears that such as were Drunk when they spoke these words are not punishable by this Act nor such as are reputed fatuus and Fools though they be not declared Idiots or Furious and yet it seems that all Writing Preaching and Prayers and such malicious Expressions to stir up the people to a dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastick are punishable indefinitly and that because either the Law presumes they are premeditated or because of the great danger arising therefrom and therefore it will have them punish'd as such
in Fee and reserve the whole Liferent to himself or a person of quality may Marry one who Liferents the whole Paroch and so this Remedy becomes ineffectual because the Act mentions not Liferenters and in such cases Liferenters are found not to be comprehended November 14. 1679. Minister of Morum contra the Lady Beanstoun By this Act such as Kill Slay Hurt or Mutilat the away-takers or their associats in prosecution of their Goods are Indemnified Observ. That all who kill in such pursuits are not Indemnifi'd but such only whose Goods are taken or who are oblig'd to rise for else such as had privat Grudge might upon that Grudge follow and kill but yet it seems just that if men were desir'd though not oblig'd or if Gentle-men being in the House when Robbed should pursue and kill that they should also be indemnifi'd This Act is generally so well conceiv'd that if it were well prosecuted as that it alone might settle the Highlands THis Revocation seems to be very ill conceiv'd for it had forgot the Lands of the Principality which are still comprehended under all other Revocations and therefore the Parliament thought fit to add this to the Revocation and if this be valid there needs no Revocation under the Kings Hand but an Act of Parliament shall be sufficient without a Revocation It is likewise observable from this Act that the Parliament qualifies the Kings Revocation in sua far at His Majestie Revocks all Deeds done by His Father by Declaring that such only are Revocked as were made against the Laws standing in force before the Year 1637. For otherwise all Deeds done by the late King might have been challeng'd upon that Head of vis metus exprest in this Revocation but however Acts extorted vi majori either from King or Subject are null ipso jure by the Common Law without any special Revocation but Revocations are naturally only extended to Deeds done in Minority but not to Deeds extorted vi majore though this Revocation comprehends both WHen the Clergy submitted their Rights to the King both the Submission and Decreet Arbitral provides that the Bishops and others of the Clergie should enjoy the Fruits and Rents of their Benefices as they were Possessed by them the time of the Submission and therefore by this Act it is Ordain'd That any Valuations of â—einds whereof the Bishops and other Benefic'd Persons were in Possession either by Leading Drawing or Rental-bolls since the year 1637. should be null and yet this Priviledge is meerly personal in favours of Church-men for by a Missive Letter from King Charles the First the 9 of May 1634. It is Declar'd that this Favour shall not be extended to the Tacks-men of Bishops and other Church-men they being Laicks but that during these Tacks the Heretor may lead he finding Caution and accordingly a Valuation was sustain'd to James Hamilton of the Lands of Hetherwick against the Earl of Roxburgh the Bishops Tacks-man of the Tiends of these Lands though it was alleadg'd there that the Submission and Decreet Arbitral having no such quality but the Tiends whereof they were in possession being absolutely reserv'd no posterior Letter could have prejudg'd them and it was a great prejudice to them to have their Tiends valu'd during the Tacks for this could not but lessen the Tack-duty and the Grassoums In this Cause it was likewise doubted what way these Tiends should be valued during the Tack GOvernment belongs to the King and Property to the People Yet since the publick Interest must over-rule the privat all being still preferable to any one Therefore Government does so far Influence Property that all Lawyers are of opinion that the Prince may for a just Cause invert or take away Property res privatorum auferre jus alteri quaesitum tollere and thus we see that the King may make a Cittadale upon any mans Ground paying the just price c. And sometimes he may throw down the Houses of Suburbs when there is either actual War or fear of War in which Towns may be besieg'd so that He is the sole Judge of this justa causa by which Property may be inverted and amongst other just Causes one is the procuring of Peace amongst the Subjects for procuring whereof the Prince may remit both the Civil and Criminal Reparations due to Subjects that are wrong'd during the time of the War Gail lib. 2. observ 56 57. But with us general Indemnities are ordinarly granted in Parliaments wherein certainly all privat interests may be Discharg'd because every privat man is presum'd therein to be represented and this Act of Indemnity is one of the most full and formal that ever we had and in it all such are Indemnifi'd as acted by vertue of the publick pretended authority of these times and though an order be necessary to be produc'd in cases where Orders use to be given yet the benefit of this Indemnity was extended to such as were in Arms though they could prove no Orders since Souldiers use to get no written Orders except it were offered to be proven by their Oaths that they had no Order or that they converted the Goods pursu'd for to their own privat use February 15. 1666. Murask contra Gordon and that any promises made to restore such Goods did not bind after the Act of Indemnity though it was alleadg'd that the promise did Innovat the Debt from a military to an ordinary Debt because the Lords thought that that promise might have been given and emitted upon the Supposition that the Souldier thought himself lyable before the Indemnity and therefore the Lords found him not lyable notwithstanding of the promise except it could have been prov'n that he apply'd the Goods to his own use or that he wanted a warrant Sometimes also the King does by His Proclamation grant general Indemnities as He did in 1666 and 1679. to the Western Rebels but in this case it was controverted whether such as had Robbed privat mens Horses were lyable in Restitution notwithstanding of that Indemnity and it was urg'd that they were Because 1. What ever might be alleadg'd where the King had once acknowledg'd Rebellion to be a pretended Authority speâ—iem belli by exchanging of Prisoners and making of Truces with them c. Yet here there was not even those pretexts and so they were only to be considered as a Company of privat Robbers 2. Even this Act Indemnifies only such as acted by vertue of pretended authority Therefore since even the Parliament did not Indemnifie such privat Robbers much less should they be secur'd by Proclamations 3. Whatever an Act of Parliament might do because all persons injur'd were therein represented Yet those Proclamations were but general Remissions and no Remission could prejudge the Party injur'd of his Reparation and Assythment 4. This would incourage all Rogues to be Rebels that they might robb and thereafter be enriched by an Indemnity Whereas on the other hand it
would discourage them both from Rebellion and Robbery if they knew they behov'd to be still lyable in Restitution and though the King did remit vindictam publicam privatam by this Proclamation yet that vindicta privata was not to be interpret damnage and interest but that Revenge and Criminal Action which any privat party might pursue without the King and vindicta is still contra-distinguished from damnum interesse 5. When the Law allows to the Prince a power to remit and discharge the Damnage done to privat parties in contemplation of a publick Peace Lawyers acknowledge that this can only be done if Peace cannot otherwise be procur'd for otherwise publick Peace is none of these just Causes for which Property can be inverted and therefore any such Indemnity after the Peace is Established cannot prejudge privat Subjects as to their Restitution as Gail expresly Declares observ 56. num 6. King CHARLES 2. Parliament 1. Sess. 3. BIshops being restored in the former Session of Parliament the King does in this Act Declare That He will maintain and preserve that Government in the Church and not give any Connivance to the prejudice thereof in the least and so all Indulgences are from this still urg'd to be contrary to the Royal Promise and the publick Faith By this Act Ministers absenting themselves without a lawful excuse from the Diocesian meeting or not concurring in the Church-discipline when required by the Arch-bishop are to be Suspended till the next Diocesian meeting and if they conform not then to be Depos'd and though this be design'd chiefly against the Non-conforming Ministers Yet it has been repin'd at by some of the Episcopal Clergy because the Bishops have by it a power to Suspend by themselves and by the present Discipline of the Church the Bishop may Depose by himself without the concourse of the Clergy even in the Diocesian meetings though he usually takes alongs with him the advice of the Ministry In this Act with-drawing from publick Worship as well as keeping of Conventicles is Declared to be Seditious and therefore each Heretor with-drawing loses the fourth part of his years Rent each Yeoman or Tennent may be fin'd not exceeding a fourth of his free Moveables every Burges is to lose his Freedom and may be fin'd in a fourth part of his Moveables and the Council have by this Act a very full and undetermin'd power to inflict Corporal beside the former punishments But it seems that 〈…〉 those Punishments can be inflicted upon With-drawers except where they have first been admonished by their Minister in presence of two Witnesses But since the Minister of the Paroch is not here specifi'd it was thought that persons might be fin'd after an Admonition given by any Minister appointed by the Privy Council or Presbytry This part of the Act is not expresly abrogated but the Fines are altered by the 7 Act of the 2 Sess. Par. 2 Ch. 2. By which every Protestant With-drawer whereas this Act extends both to Papists and Protestants is to be Fin'd thus viz. an Heritor in the eight part of his valu'd Rent a Tennent in six Pounds Scots a Cottar in fourty shilling Scots every person above the Degree of a Tennent but having no real Estate in twelve Pounds Every considerable Merchant in twelve Pounds Every inferiour Merchant and considerable Trades-man in six pounds and the other Inhabitants within Burgh in fourty shilling and His Majesties Privy Council is by this last Act allow'd to force all who shall with-draw from their Paroch Churches for a year together to give bond that they shall not rise against the King nor His Authority and to banish or secure them in case of refusal Whereas by this first Act there is a general power given to the Council by the Parliament to do every thing that they shall find necessary for procuring obedience to this Act and putting the same to punctual Execution upon which Clause was founded the Councils putting Heretors to give Bond for their Wives Tennents and Servants keeping the Church for since the Parliament might have exacted such a Bond for that effect it was thought the Council might since they have by this Clause a Parliamentary power By the other Act also it is appointed That the same shall continue for three years except His Majesty shall think fit it continue longer and it was thought that this power of Fining might be continued by the Council without any new express Order from the King since His Majesty did not Command the contrary as also upon this Clause was founded the Indulgence 1679. The Parliament having put it in His Majesties power to punish With-drawers or not as he thought fit after three years were elapsed THis Act is Explained in the 5 Act of the former Session THis Act against Protections is Explained fully in the Act 47 Par. 11 Ja. 6. THis Act declares the King to have the only Power of Calling or Dissolving Synods and that His Majesty has not only a Negative Voice in stopping Acts to be made in such Synods but even a Negative in not suffering any thing to be Treated or Debated there except what is contained in his Proclamation or Instructions This meeting of the Church is with us call'd a Convocation though it be here only call'd a Synod Nor can it be deny'd but that the Emperors did of old call the Synods and the formula was Visum est mihi jussi Thus Euzeb Speaking of Constantine sayes Cum per varia loca exorirentur inter Episcopos dissentiones ipse seu communis Episcopus a Deo constitutus Synodos ministrorum Dei indicebat And thus Leo writing to the Emperor Theodosius si pietas vestra suggestioni ac supplicationi dignaâ—ur annuere ut intra Italiam haberi jubeatis Episcopale Concilium cito poterunt omnia scandala quae in perturbationem totius Ecclesia sunt commota resecari THis Act is Explain'd in the 10 Act Par. 4 Queen Mary and and in the Observations upon the 226 Act Par. 14 Ja. 6. BY this Act all Strong-waters are Discharg'd to be imported under the pain of Escheating thereof because it prejudged the Sale of Barley which is the great Native Commodity of this Kingdom But yet by the second Act of the 4 Session of the 2 Par. Ch. 2. All these Acts against strong-waters are Rescinded and an Imposition thereon is imposed but yet it was thought by the Council that notwithstanding of that last Act His Majesty might by His Prâ—rogative in the Ordering and Disposal of Trade with Forraigners asserted by the 27 Act of this Session of Parliament Discharge again the Importation of Brandy and other strong-waters and accordingly a Proclamation was issued out Discharging them in March 1680. and it was urg'd that the Parliament thought that the King might Dispose upon these against an express Act of Parliament for though by this Act the Importation of them be absolutely Discharged Yet the King had
Par. Ch. 2. THis Act is Explain'd in the 62 Act Par. 1 Sess. 1 Ch. 2. THis Act is Explain'd in the 25 Act of the 1 Sess. Par. 1 Ch. 2. THe Bishops having consented by this Act to the Imposition upon themselves in favourâ— of Universities it is Declar'd That this Act shall be no preparative for laying on any burden upon the Clergy hereafter without their own consent From which it may be argu'd that though all the rest of the Parliament should consent to an Imposition upon the Clergy yet that would not be valid except they themselves consented to it though the Imposition were carry'd by plurality of Votes but this Inference is not concluding for the Parliament is a Collective Body Compos'd of the King and three Estates in which the major part determines the rest and if this were granted to the Clergy they being but a third Estate every one of the other two Estates might pretend the like and so each Estate should have a Negative as well as the King Whereas not only Craig has Determined that the Parliament may make an Act without the consent of any one of the States having stated this question expresly But we see that the Burrows having unanimously dissented from the 5 Act of the 3 Session of the second Parliament concerning the Priviledges of Burghs-Royal the same was notwithstanding past in Parliament and we all remember the memorable story of the Burrows rising and leaving the Rebellious Parliaments 1649. before the Parliament passed the Act for allowing the value of Annualrents whereupon a worthy Peer said that since they had sitten so long without the Head they might well enough sit without the Tail BY the 14 Act of the 1 Sess. of this Parl. the Annuity of 40000 pounds Sterling being granted to His Majesty to be uplifted out of the Excise in manner mentioned in the said Act by this Act the proportion of the said Excise is Regulated and laid on upon the several Shires and Burghs accordingly Nota. This is the only Act wherein I find the word Grievances BY this Act the Militia of 20000 Foot and 2000 Horse is Establish'd which was found not to take off the Obligation of rising betwixt 60 and 16 according to the ancient Laws for attending the Kings Host when called for This Act Declares That if His Majesty have further use for their service they will be ready every man betwixt sixty and sixteen to joyn and hazard their Lives and Fortunes as they shall be call'd for by His Majesty and though it be pretended that at least they cannot be called betwixt sixty and sixteen by this Act without an express Order from the King The words running When call'd for by His Majesty without adding or the Council in this Clause as it did in the former immediat Clause of this same Act and which shews that this was designedly omited in this Clause yet we see that the Council does call to the Host all betwixt sixty and sixteen without express Warrand from the King and that the Justices fine such as are absent upon these Proclamations and which is very just because the King is still presumed to be in the Council sictione juris they Re-presenting by their Commission His Royal Person and we see by many Instances that Rebellions may rise before any such Warrand can come from the King By this Act it is Declar'd That these Forces shall be in readiness as they sâ—all be call'd fâ—r by His Majesty to march to any part of His Dominions of Scotland England or Ireland for suppressing of any Forraign Invasion Intestine Trouble or Insurrection or for any other service wherein His Majesties Honour Authority or Greâ—tness may be concerned Which Clause was much excepted against by some in the Parliament of England as if Scotland had thereby design'd to Authorize the Invading of them but it cannot be properly said to be an Invading of them if we be call'd by the King and the Calling of Subjects etiam extra territorium is inter reservata principi and a just Right of all Kings as is clear by Castal de Imperatore quaest 57. num 57 And the Subjects of this Kingdom have been oft-times fined and Foâ—efaulted for not attending the Kings Host when they were called to Invade England nor could any War be mannaged or Rebellion supprest even in the justest Cases without this BY this Act the Ordering and Disposing of Trade with Forraign Countâ—â—â—s is Declared to be His Majesties Prerogative and though it be alleadged that this Act was only Design'd as a power to His Majesty for the better Debarring English Commodities whereby to bring both the Nations to an equal ballance of Trade which Design was said to have been then represented to the Parliament as the only Motive for making this Act and that if this were allowed in its full extent our Kings might by Debarring us from Iron Copper Timber Spices and other necessars force us to any Condescendencies or might by this Prerogative grant Monopolies at their pleasure Yet I see not how this Gloss is consistent with the general words of the Act or with our Declaring that this by the Law of Nations belongs to all free Princes Or with subsequent Parliaments allowing the priviledges granted to the Fishing Company the prohibiting of Brandy and other strong Waters and several other things which are founded solely upon this Act. It may be Debated whether under the word Forraigners the English may be comprehended since we are not Treated by them as Forraigners in the point of Succession it being frequently decided amongst them that the Scots may succeed to Heretage in England notwithstanding of their Statute debarring alibi natos and why then should they be repute as Forraigners to us in the matter of Trade and this were indeed solid Reason for both Nations but since the English debar us from their Plantations and look upon us as Forraigners in the point of Trade it is just that we should give them the same measure King CHARLES 2. Parliament 2. Session 1. IT is observable that in all the Sessions of this Parliament the particular day of the Month whereupon the respective Acts were past is set down and yet since the Acts are to take effect not from the passing but from the publication as is clear by the 3 Act of this Parliament it would have seem'd more rational to have set down the day of the Publication To which nothing can be answered but that the Laws are presum'd to be publish'd the day they were past in In no former Parliament the day is set down but the whole Parliament is said to be held upon such a day and the old use was that the Articles prepar'd all the Acts and they were all past in one day THis Act Declaring the Kings Supremacy in Ecclesiastick Causes is formerly explain'd in the Observations upon the 2 Act Par. 18. Ja. 6. IT is observable from this
insert and design'd though they did not at all subscrive yet by this Act the Witnesses must likewise subscrive which is another argument to prove how much the Faith to be given to men is now lessen'd But it is fit to observe that other Instruments taken by Notars continue in the former condition and need no subscriving Witnesses though for cautiousness all Witnesses in any Instrument do now Subscrive Nota That the Civil Law call'd all Obligations Instruments but we call only Acts of Notars Instruments The fourth Point in this Act is That all Executions of Messengers upon Inhibitions Interdictions Hornings or Arrestments shall be null if they be not subscriv'd by Witnesses and these were exprest because they are Executions of great Importance and yet it seems that Executions of Comprisings and Adjudications are of as great Importance as any of these and yet it is not requir'd by this Act that Executions of Comprisings and Adjudications should have subscriving Witnesses and a Reduction being raised of the Execution of a Comprising because there being but two Witnesses exprest in the Execution one whereof did expresly deny that ever he was witness in such an Execution and so the same became null as wanting two Witnesses To this it was answered that the Deposition of a Witness denying that he was present upon the Land the time of the Execution was not sufficient to destroy an Heretable Right of so great importance as this Comprising was for this Deposition after so long a time could amount to no more than a non memini and the reason whereupon this Statute is founded appears by the Narrative to be because the Witnesses may by their forgetfulness easily disown their being Witnesses and many men are apt to forget such Circumstances and to deny that ever they have been in such a Place or House until the same be brought back to their memory by other very remarkable Circumstances which could not be done here because the Messenger and the other Witnesses were both Dead 2. The Deposition of one Witness denying his being present should not infer a nullity of the Comprissing since the loss of the whole Executions would not infer the same after so long a time as has been frequently decided 3. If this were allow'd it should be in the power of every single Witness in an Execution of a Comprising or Adjudication which are now the Foundations of the most of our Rights to destroy and overturn the same for Money or Prejudice 4. No singular Successor buying a Comprising could be secur'd and if these Executions had been thought of such importance this Statute had required subscriving Witnesses For a Comprising is of far more consequence than an Arrestment The one relating to an Heretablâ— the other to an Moveable and very Temporary Right 5. No man could with a sufficient causa scientiae Depone that he was not upon the Ground of the Lands of such a Barony except he knew every bit of the March of the Barony for that Execution might have been used upon the very remotest corner of it The last Branch of this Act is that no Execution whatsoever shall be sufficient to interrupt the Prescription of Heretable Rights unless the same have subscriving Witnesses and by this we see what Care our Law has taken to preserve Prescriptions and for the same reason it is appointed by the 10 Act 2 Par. Ch. 2. That all Citations that shall be made use of for Interruptions shall be renew'd every seven year and because of this Clause in the Act it is advisable that all Executions in Adjudications Comprisings Molestations and generally in all Actions relating to real Rights have Subscriving Witnesses though these be not Exprest because they may be made use of as interruptions in other cases vid. observ on the said Act. THis Act concerning the Test is so exactly and universally known and all objections against it have been so fully clear'd that it is unnecessary to Write any Observation upon it BY the 2 Act of the 1 Par. Ch. 2. It is Declar'd that the nomination of the Senators of the Colledge of Justice did ever belong to the King And His Majesty and His Predecessors have ever been in use of appointing the times in which they should sit and Judge for him and therefore His Majesties Royal Brother finding that many Members of Parliament inclin'd to want the Summer Session he allow'd the Overture to be brought into the Articles It was likewise propos'd That there might be one Moneth allow'd for the Summer and four only for the Winter for which it was urg'd that this would save all the inconveniencies that could be adduc'd against the Summer Session since therein Causes that could not well admit of delay such as Suspensions Removings Actions upon Bills of Exchange c. might be discuss'd but this was Rejected by Vote of both Articles and Parliament as tending to as much Trouble and Expense as the Summer Session it self without any considerable advantage For the Leiges behov'd to attend from the remotest parts of the Nation and yet the whole time would be spent in useless preparations for Business the first fourthnight and in a dangerous hurry the last fourthnight by this Act then there is only one Session to be in the whole year which is to last from the first of November to the last of March inclusive The Arguments adduc'd for this Model were first That two meetings of the Session did encourage our Countrey-men too much to litigiousness who were naturally too much addicted thereto whereas one Session might well enough end all our Affairs and it was indeed observable that to recommend this Overture all possible dispatch had been made in the former Session 2. That these two Sessions occasioned great Expense since people behov'd to come twice a year from the remotest parts of the Nation most unnecessarly for the Summer Session was spent in Preparation or Hurry as said is 3. The Summer being the only time wherein Scots-men could have any pleasure or could make any improvement by Building Imparking c. The Summer Session did without making us any Recompense destroy both our own Pleasure and the adorning of our Countrey The Arguments for continuing the Summer Session as formerly were 1. The Session not sitting for seven Moneths His Majesties Authority during all that time wants the support and assistance which otherwise it uses to have from the frequent attendance of the Nobility the Kings Officers and others do meet frequently during the Session because of the conveniency they have in attending their private Business Whereas in this long Vacation of seven Moneths they can hardly be brought together and so want that Correspondence Intelligence and mutual assistance which they have in time of the Session and our Rebellions being ordinarly in the Summer time because of the conveniency which Rebels have of lying in the open Fields and of getting provision for their Horses it would be much easier to suppress