either Supream inferior or mixt These courts are properly called supream from whom there is no appeal to any higher Iudicatory such as the Parliament Privy Council Lords of Session the Criminal Court and Exchequer Inferior Judges are such whose decreets and sentences are lyable to the reviewes of the supream Courts as Sherriffs Stewards Lords of Regality Inferior Admirals and Commissars Magistrates of Burghs Royal Barrons and Iustices of Peace Mixt Iurisdiction participats of the nature both of the supream and inferior courts such a jurisdiction have the high Admiral and Commissars of Edinburgh Both which are in so far Supream that Maritim Affairs and confirmations of Testaments must come in and be tabled before the high Admiral and Commissars of Edinburgh in the first instance As also they both can reduce the Decreets of inferior Admirals and Commissars But seeing their Decreets are subject to the review of the Lords of Session they are in so far inferior Courts No inferior Iudge can judge in the causes of such as are Cusin-germans to him or of a nearer degree either of affinity or consanguinity But there is so much trust reposed in the Lords of Session that by a special Statute they can only be declined incases relating to their Fathers Brothers Sons Nephews or Uncles which by a late statute is likewise extended to the degrees of affinity and to the Lords of privy Council and Exchequer and the Commissioners of Iusticiary and to all other Iudges within the Kingdom The members of the Colledge of Iustice have this priviledge that they cannot be pursued before any inferior Iudge and if they be the Lords will Advocate the cause to themselves Tit. III. Of the Supream Iudges and Courts of SCOTLAND THE King is the Author and Fountain of all power and is an absolute Prince having as much power as any King or Potentate whatsoever deryving his power from GOD Almighty alone and so not from the people The special priviledges that he has are called His Prerogative Royal such as that he only can make Peace or Warr call Parliaments Conventions Convocations of the Clergy make Laws And generally all meetings called without his speciall command are punishable he only can remit crimes legittimate bastards name Iudges and Councilors give tutors Dative and naturalize strangers And is Supream over all persons and in all causes as well Ecclesiastick as Civil The Parliament of old was only the Kings Barron Court in which all free-holders were oblidged to give sute and presence in the same manner that men appear yet at other head courts And therefore since we had Kings before we had Parliaments it is rediculous to think that the Kings power flowed from them The Parliament is called by Proclamation now upon fourty dayes tho it may be Adjourned upon twenty but of old it was called by brieves out of the Chancellary It consists of three Estates viz. the Arch-Bishops and Bishops and before the Reformation all Abbots and Mitred-priors sat as Church men Secundo The Barrons in which estate are comprehended all Dukes Marquesses Earles Viscounts Lords and the Commissioners for the Shires for of old all Barrons who held of the King did come but the estates of lesser Barrons not being able to defray this charge they were allowed to send Commissioners for every Shire And generally every Shyre sends two who have their charges born by the Shyre Tertio The Commissioners for Burghs Royal each whereof is allowed one and the Town of Edinburgh two Though all the three Estates must be cited yet the Parliament may proceed albeit any one estate were absent or being present would disassent The legislative power is only in the King and the Estates of Parliament only consent and in Parliament the King has a negative voice whereby he may not only hinder any Act to pass but even any overture to be debated The Acts of Parliament must be proclaimed upon fourty days that the Lieges may know them To secure the Crown against factions and impertinent overturs in open Parliament Our Parliaments choose before they proceed to any bussiness four out of each State who with the Officers of State determine what Laws or Overturs are to be brought in to the Parliament and they are therefore called the Lords of Articles We have another meeting of the three Estates called the Convention of Estates which is now called upon twenty days and proceeds in the same way that the Parliament does diffreing only from it in that the Parliament can both impose Taxations and make Laws whereas the Convention of Estates can only impose or rather offer Taxations and make Statutes for uplifting those particular Taxations But can make no Laws And of old I find by the Registers of the Conventions the eldest whereof now extent is in Anno 1583. that the Conventions of Estates consisted of any number of the three Estates called off the Streets summarly by the King And yet they cryed down or up money and judged processes which now they do not The Privy Council is constituted by a special commission from the King and regularly their power extends to matters of publick Government in order to which they punish all Ryots for so we call breach of the peace They sequestrate Pupills gives aliments to them and to wives who are severely used by their husbands and many such things which require such summar procedour as cannot admit of the delays necessary before other courts And yet if any of these dipp upon matter of Law for they are only Iudges in facto they remit the cognition of it to the Session and stop till they hear their report The Council delay Criminal executions and sometime change one punishment into another but they cannot remit Capital punishments They may also Adjourn the Session or any other court It has its own President who preceeds in the Chancellours absence and it has its own Signet and Seal All who are cited to compeat there must be personally present because ordinarly the pursuer concluds that they ought to be personally punished All dyets there are peremptor all debat is in writ no Advocat being allowed to plead because the Council only Iudges in matters of fact The Lords of Council and Session are Iudges in all matters of civil Rights of old they were chosen by the Parliament and were a committy of Parliament But the present modell was fixt and established by King Iames the fifth after the modell of the Parliament of Paris Of old it consisted of seven Ecclesiasticks and seven Laicks and the President was a Church man But now all the fifteen are Laicks And there sits with them four Noble men who are called extraordinarie Lords and were allowed to sit to learn rather then decide But now they vote after the ordinary Lords All the Lords are admitted by the King and by Statute cannot be admitted till they be twenty five years of Age and excepâ— they have a
thereafter make any voluntar gratuitous Right to the prejudice of that Tailzie But yet the lands tailzied may be comprised or adjudged for sums truely due and not dolose contracted to disappoint the tailzie Heirs of Provision are these who succeed by vertue of a particular provision in the infeftment such as are Heirs of a second Marriage and as to these Heirs of Marriages we may observe two things first That if a Father by his Contract of Marriage be obliged to employ a sum to himself and Wife in Conjunct-â—ie and the heirs of the Marriage he cannot in prejudice thereof do any fraudulent gratuitous deed tho he may provide a Ioynter for a second Wife or provisions for his Children of a second Marriage Secundo Though a Father may assign or dispone sums to Children when extant whereby they will be preferred to posterior Creditors becoming Fiars by the said Rights yet if the Father dispone to children to be procreat this will be considered only as a destination and so will not hinder the Father to make posterior Rights or even posterior Creditors to affect by Diligenâ—es what is so disponed Tertio Process will be sustained at the instance even of the appearand Heir of the Marriage against the Father to fulfill the special obligations therein or to purge any deeds already done by him in prejudice thereof Albeit where Heirs are not designed in any right the Heirs of Line exclude all other Heirs yet if a man take lands to himself and his Heirs Male tailzie or provision and thereafter acquire reversions or tacks of the same lands to himself and his Heirs these rights will accress to that special Heir to whom the land was provided for it is not presumable that a man would give the lands to one and the rights of them to another Heir When women succeed all these of one Degree succeed equally and because the estate is divided amongst them they are called heirs portioners the eldest not secluding the rest and having no advantage over him but where the Rights are indivisible such as Titles Iurisdictions Superiorities and all the casualities of these superiorities such as Ward Marriage Nonentrie Feu duties c. these fall to the eldest heir Female without division together with the Principle Messuage it being a Tower or Fortalice for other houses are divided equally All these Heirs are lyable in solidum if they once enter Heir except heirs portioners who are onely lyable pro rata and heirs substitute in a sum who are onely lyable to Creditors in the value of the sum to which they are substitute But they have in SCOTLAND a Priviledge which they call the benefit of Discussion whereby the Heirs of Line must be first pursued to fulfill the Defuncts deâ—ds or pay his debts And next to these the Heir of conquest the Heirs Male the Heir of tailzie and Heirs of provision but for fulfilling a deed relating to particular lands the Heir who succeeds in these particular lands must be first pursued without discussing and that which is meant by discussing is that the Creditor must proceed by horning caption and apprising against the Heir who is to be discussed before he can reach the other Heirs An Heir is said with us to be Heir active who is served Heir and may pursue whereas he whom the Law makes lyable to be Heir is said to be Heir passive As when the appearand Heir is infeft upon a precept of clare constat by the Superiour or otherwise medles with his Fathers Estate When the Predecessor dyes he who should be Heir and therefore is called appearand Heir has year and day allowed him to deliberate whether he will be Heir which is called annus deliberandi and which is indulged by the Law because if a man enter once Heir he is lyable to all the debts though far exceeding the estate and within that year he cannot be pursued nor obliged to enter but after the year is expyred the Creditor may charge him to enter Heir and if he resolve not to enter he must renounce any Right he has by a writ under his hand This year is compted from the defuncts death except in a posthum child who has a year allowed him after his Birth and not only during this year but after it expires the appearand heir without instructing any Title may pursue for exhibition of all Rights made to his Predecessors and of all rights made by his Predecssors to any in his own Family but not to Sirangers to the end he may deliberate whither he will enter Heir and the Liferenter is bound to aliment the appearand Heir not being able to entertain himself though he renounce vid. supra Part 2. Title 9. § Liferents If the appearand heir resolves to enter heir to his Predecessor he must raise Briefs from the Chancellarie which Brief is a command from the King to the Iudge ordinary where the lands ly to cause cite 15 sworn men to try whether the raiser of the Brief be nearest heir and this is executed or proclaimed at the mercat Cross where the lands lye and if at the day appointed these 15. sworn men find him to be the next person who should succeed they serve him heir by a paper which is called a service and which being returned be them to the Chancellarie there is a write given to the heir whereby he is declared heir and which is called the retour because it is their answer and return to the Chancellarie of the points contained in the brief and thereafter the person who is served heir is infeft by a precepts out of the Chancellarie and if the service was to any particular lands it is called a special service but if there was no land designed it is only called a general service and this general service is sufficient to establish a right to heritable Bands Dispositions Reversions Iurisdictions and all other rights whereupon the Defunct was not infeft nor needed to be infeft and a special service includes a general service but not E contra The general brief hath only two points or heads viz. if the Defunct dyed at the Kings peace and if the raiser of the brief be the next Heir but the special brief has seven viz. when the Defunct dyed Secundo If he dyed last vest and seased at the Kings peace Tertio That the raiser is next heir Quaerto Of whom the Lands are holden in capite Quinto By what manner of holding Sexto What is their old and new extent Septimo Whether the raiser be of lawful age and in whose hands the Lands are at present Sometimes likewise the Vassal without serving himself heir gets a precept of seasin from the Superiour wherein because the Superiour declares that it is known to him that such a man is heir to his Father it is therefore called a Precept of Clare constat which therefore makes the Obtainer lyable passive to all his Predecessors
Church men it was called The Cannon Law And though it has here no positive Authoritie as being compiled by private Persons at the desire of the Popes especially since the Reformation yet our Ecclesiastick Rights were settled thereby before the Reformation And because many things in that Law were founded upon material justice and exactlie calculated for all Church men Therefore that Law is yet much respected among us Especially in what relates to conscience and Ecclesiastick Rights Our Municipal Law of Scotland is made up partly of our written and partly of our unwritten Law Our written Law comprehends first our Statutory Law which consists of our Statutes or Acts of Parliament Secundo The Acts of Sederunt which are Statutes made by the Lords of Session by vertue of a particular Act of Parliament impowering them to make such constitutions as they shall think fit for ordering the â—rocedur and forms of Adminiâ—trating justice and these are called Acts of Sederunt because they are made by the Lords sitting in judgement But are not properly Laws the legislative power being the Kings Prerogative Tertio The books of Regiam Majestatem which are generally looked upon as a part of Our Law and they and the leges burgorum and the other tractates joyned by Skeen to them are called the old books of Our Law by many express Acts of Parliament Tho the books of Regiam Majestatem were originally but the works of one private Lawyer writing by way of Institution and are now very much abrogated by Custome Our unwritten Law comprehends the constant tract of decisions past by the Lords of Session which is considered as Law the Lords respecting very much their own decisions And though they may yet they use not to reced from them except upon grave considerations Secundo Our Ancient customes make up a part of our unwritten Law which have been universally received among us The tacite consent of the people operating as much in these as their express consent does in making Laws And such is the force of custome or consuetude that if a Statute after long standing has never been in observance or having been has run in desuetuâ—e consuetude prevails over the stâ—â—â—â—e till it be renewed either by a succeeding Parliament or by a Proclamation from the Council For though the Council cannot make Laws yet they may revive them Generally all Laws should look foreward though declaratory Laws regulat what is past since their design is to declare what was Law prior to the statute and to direct Iudges how to decide in cases that needed the decision of a Parliament Laws should command not perswade and though the rubrick or title and narrative of the statute may direct a doubting Iudge yet if the statutory words be clear they should be followed in all cases All Laws should be so interpreted as to evite absurdities and as may best agree with the mind of the legislator and Analogie or general design of the common Law Correctory Laws so we call these which abrogate or restrict former Laws are to be strictly interpreted for we should reced as little as can be from received Laws Honourable Laws are to be extended and the Paritie of Reason often prevails with our Judges to extend Laws to Cases that are founded on the same reason with what is expresly determined by the Statute Tit. II. Of Iurisdiction and Iudges in General HAving resolved to follow Iustinians method to the end there may be as little difference found betwixt the Civil Law and Ours as is possible And that the Reader may not be distracted by different methods I do resolve first to lay down what concerns the Persons of whom the Law treats â—at â—do what concerns the things themselves treated of such as rights obligations c. Tertio The actions whereby these rights are pursued which answers to the Civilians objecta juris viz. Personae res Actiones The Persons treated of in Law are either Civil or Ecclesiastick the chief of both which are Iudges with whom we shall begin And for the better understanding of their Office it is fit to know that Iurisdiction is a power granted to a Magistrate to cognosce upon and determine in causes and to put the sentence or decreet to execution in such maner as either his commission law or practice does allow All Iurisdiction flows originally from the King so that none have power to make Deputs except it be containd in their commission And if a Depute appoint any under him that sub-depute is called properly a substitute and every Iudge is answerable for the Malversation of his depute Iurisdiction is either Cumulative or Privative Cumulative jurisdiction is when two Judges have power to judge the same thing And generally it is to be remembred that the King is never so denuded but that he retains an Inherent power to make other Judges with the same power that he gave in former commissions And thus he may erect lands in a regality within the bounds of an heritable Sheriff-ship and burghs Royal within the bounds of a regality And these bounds within which a Judge may exerce his commission is called his Territory so that if any Judge exercise Iurisdiction without his Territory his sentence is null and among those who have a Cumulative Iurisdiction he who first cites can only Judge and this is called jus Praeventionis Privative Iurisdiction is when one Judge has the sole power of judging exclusive of all others such power have the Lords of Session in judging of all Competitions amongst heritable rights and here there can be no prevention Iurisdiction is founded to any Judge either because the defender dwels within his territory which is called Sortiri forum ratione domicilij or Secundâ— Because the crime was committed within his territory which is called ratione delicti or Tertio If the Person pursued have any immovable estate within his territory though he live not within the same he may be pursued by any action to affect that estate which is called sortiri forum ratione rei sitae A Iurisdiction is said to be prorogate when a person not other wayes subject submits himself to it as when he compears before an incompetent Judge and propons defences All Judges with us must take the Oath of Allegiance and the Test whereby they swear to maintain the Government of Church and State as it is now established and an oath de fideli administratione before they exerce their Office And no excommunicate person nor rebell against the Government can Judge by Our Law If a person be pursued before a Judge who is not competent he may complain to the Lords of Session and they will grant Letters of Advocation whereby they Advocat that is to say call that cause from the incompetent Judge to themselves And if after the letters of Advocation are intimat to that Judge he yet proceed his Decreet will be null as given Spreto mandato Iurisdiction is