trust reposed in him and the like hope of his Issue Patrene sequitur sua proles It was at first so simplie done that the entering of the Vassall in Possession in 〈◊〉 of his Peers was a sufficient Constitution of his Right and the Investiture signified then not so much the Act constituting as the Write evidencing the Fee in the which case from the nature of the right it is consequent first that none should succeed in the Fee but such as were fit for the Militarie Services and so Women and their Issue were utterlie excluded and all the Males Succeeded equally 2. In Proper Fees none could Succeed but the Lawful Issue of the first Vassall whose Person and Issue was specially chosen among which first the Male Issue of the Vassall who dyed last infeft according to their nearness do succeed with the right of Representation and so not per capita but per 〈◊〉 next unto the Descendents among the Collateralls Brothers and their Male Issue and among these the Brothers German and their Issue exclude the Brothers by one blood and after Brothers Father Brothers and their Male Issue And so other Agnats of the last deceased being alwayes of the Male Issue of the first Vassall which being extinct the Fee ceaseth and returneth to the Superior not as the Vassalls but by vertue of that Directum Dominium which still remained in the Superior In this course of Feudall Succession there could be no place to the Vassalls Father or other Ascendents because if the Fee were a new Fee or Conquest by the Son his Father nor his Brethren could not Succeed as not being of the Issue of the first Vassall and if it were an old Fee not purchased by the Son but whereunto he did succeed it doth necessarly presuppose the Death of the Father and other Ascendents to whom the Son could not be Heir nor succeed till they were Dead But when by the course of time Fees declined from the proper nature of Ancient Fees and the Investiture did express the Tenor and speciall nature thereof the Tenor of the Investiture became the first rule of Succession in such Fees and came in place of the Testament or Will of the Defunct for seing the Vassall could not alter the Succession without consent of the Superior he could not effectually Test thereupon 21. In the next place what is not the Express Will of the Vassall and Superior by the Tenor of the Investiture is regulate by their Conjectured Will from the nature of the Fee and Propinquity of Blood So if the Fee be Originally granted to a Woman her Issue 〈◊〉 succeed as well as the Male or if the Reddendo be not Militarie Service but Money Grain or Services competent to a Woman or Manual Services wherein there is no choise of Persons as Tilling c. And so generallie Fees holden Blench or Feu In all these Woman may Succeed because they are not excluded by the Nature of the Service 2. If the Fee be Granted to Heirs whatsomever not only doth the Issue of the first Vassall but all other his Lawfull Heirs or the Lawfull Heirs of the last Deceassing Vassall whether of the Issue of the first Vassall or not do succeed And now Fees being ordinarily acquired by Sale Excambion or the like Onerous Title Feuda ad instar 〈◊〉 sunt reducta Heirs whatsomever are commonly exprest and if they were not they would be understood for that which is Ordinar is Presumed 22. But now Custome hath altered the Course of Feudall Succession and given the Prerogative of Primogeniture to the eldest Male of the nearest Degree to the Defunct Vassall who excludes not only the Females of that Degree but the Males also and their Issue not only among us but in England France and most other Nations and therefore before we descend to our own Customes it will be fit to consider the Justice and Expediency of this common Custome in Feudall Succession The Lawfulness of Primogeniture will be easily evinced from what hath been said already upon Succession wherein the will of the Proprietar is the Rule even in Equity and though he be Naturally oblidged to provide for his own that Personal Obligation reatcheth him but not the Inheritance nor doth it Oblidge him to make these to Succeed but to give them Competent Provisions and therefore the Judicial Law which is the Positive Law of God evidenceth sufficiently the Lawfulness and in some Cases the Expediency of altering the Natural Course of Succession and therefore not only the Male Issue is thereby preferred to the Female All the Females are utterly excluded but only Daughters that the Inheritance may remain within the Tribe and the Preference of Males is because Femoles are less fitted for Management of Lands and therefore are to have a Portion which the Judiciall Law calleth the Dowry of Virgins The Expediency of Primogeniture is partly Publick and partly Private The Publick Expediency is that the Estate of Great Familyes remaining intire and undivided They with their Vassals and followers may be able to defend their Country especially against Sudden invasions for with us in France Polland and many other Places the Great Families are the Bullwarks of their Countrey Having 〈◊〉 to Maintain them selves and their Followers for some time without Standing Armies Constant Pay and Subsidies The Private Expediency is for the Preservation of the Memorie and Dignitie of Families which by frequent Division of the Inheritance would become despicable or forgotten Primogeniture taketh Place in Germanie and France in proper Fees like unto Our Ward-holdings but not in Allodialls and Lands holden Freely or for Cane or Rent Gudelinus de Jure novissimo lib. 2 cap. 13. relateth that in many of the German and French Provinces the Male gets two third parts and the Females one in the other Provinces the Children of the first Marriage succeed in all the Lands the Parents had during that Marriage and so in order the Children of after Marriages And in other Provinces and Cities the Youngest Son Succeedeth in all Excluding the rest and Generally Bastards are not admitted even to the Succession of their Mothers and in England though Primogeniture have the Prerogative by the Common Law yet it hath an Exception of the Custom of Kent where Primogeniture hath no Prerogative And therefore that Custom is called the Gaball kind of Kent which is as much as to give to all the kind The Customs of England and Germany are contrary in this That in Germany Parents come in the next place after Descendents and exclude Brothers and Sisters and all other Collateralls but in England Parents do never Succeed so if the Defunct have no Issue Brothers nor Sisters nor their Issue the Fathers Brother Succeeds and excluds the Father though his Relation be by the Father and much further distant then the Father And it sometimes falls out that the Uncle Succeeding dying without Issue the Father Succeeds his Brother and so Accidentally and
to which it was estimate all the other Goods of the Wife were Paraphernalia whereof she had the sole Power and Right The Customs of most Nations even where the Roman Law hath much weight in this matter have returned to the natural course as is observed by Cassaneus ad consuetudines Burgundiae tit 4. And Duarenus tit ff de nupt in relation to the Custome of France Wessenbecius in parat ad tit ff de ritu nuptiarum And Covaruvias Epitt. lib. 4. Decretal part 2. cap. 7. In reference to the Customs of the Germans Spaniards and most part of the Nations of Europe Gudelinus de Jure Noviss sheweth the same to be the Custome of the Netherlands in which they do almost in every thing agree with our Customs to which we return By the Custome of Scotland the Wife is in the power of the Husband and therefore First The Husband is Tutor and Curator to his Wife and during her Minority no other Tutor or Curator need to be conveened or concur to Authorize So it was decided French contra French and Cranstoun hop tit de minoribus But on the contrair the Wife is in no case conveenable without calling the Husband and though she be Married during the dependance the Husband must be cited upon Supplication and the Process continued against him for his interest Spots Husband and Wife Margaeret Bailie contra Janet Robertson And likewise a Wife being charged upon her Bond given before Marriage but the Letters not being raised against her Husband for his interest they were found null by way of exception Nic. Reverentia Maritalis Relict of Robert Young contra Wachup yet a Wife was found con veenable without calling the Husband he being twenty years out of the Countrey and she repute Widow June 19. 1663. Euphan Hay contra Elizabeth Corstorphin Yea a Wifes Escheat or Liferent falls not upon any Horning execute against her during the Marriage because being then under the power of her Husband she hath no power of her self to pursue suspend or relaxe Dury February 16. 1633. Stuart contra Banner man and this was found though the Decreet was an ejection committed both by man and Wife yet where the Horning is upon a deed proper to the Wife as to divide the Conjunct-fee Lands Horning is valide Nic. Reverentia Maritalis Duff contra Edmonstoun or where the Horning was upon a Delinquence as on Laborrows Hope Husband and Wife Lord Roxburgh contra Lady Orknay In like manner a Wife cannot pursue or charge without concourse of her Husband and so Letters not raised at his instance were reduced though he concurred thereafter Dury July 27. 1631. Robert Hay contra Mr. John Rollo The like Spots Husband and Wife Napeir contra Mr. Robert Kinloch and Agnes Lial The like in a Reduction of an Heritable Right done by the Wifes Father on death bed which was not sustained unless the Husband had concurred or had been called in which case if he refused concourse without just reason the Lords would authorize the Wife to insist July 8. 1673. Christian Hacket contra Gordoun of Chapeltoun But we must except from this Rule if the Husband were Inhabilitat or forefaulted Had. the 26. of March 1622. William Hamiltoun contra Stuart or the Wife authorized by the Lords upon special consideration the Husband refusing to concur Dury the 9. of January 1623. Marshel contra Marshel Or that she were pursuing her Husband himself against whom ordinarily she hath no Action except in singular cases ut si vergat ad inopiam or in case he had diverted from her Dury December 21. 1626. Lady Foules contra her Husband Or if a Wife with concourse of her Friends at whose instance Execution was provided by her Contract were pursuing reduction of a deed done by her Husband in prejudice thereof during her life February 12. 1663. Lockie contra Patoun or that the Obligation in its own nature require execution in the Husbands life as an obliegement to Infeft the Wife in particular Lands but if it be a general Obliegement to imploy Money for her or to Infeft her c. which the Husband may at any time of his life perform the Wife will have no Action against him neither will she get Inhibition upon supplication unless the Lords grant the same upon knowledge that the Husband is becoming in a worse condition or that the Wife hath quite a present Infeftment for an Obligation of an other in which case the Lords granted Inhibition July 13. 1638. Lady Glenbervy contra her Husband This delay where a Term is not exprest is upon consideration of Merchants who ordinarily having no other means than the Stock with which they trade it would ruine them if they were necessitate to imploy it on security so soon as they are married It is a Priviledge of Women amongst the Romans per Senatus consultum velleianum that the Obligations by which they became surety or interceeded for others were void But our Custome hath inlarged that Priviledge so far that a Wifes Obligation for Debt or personal Obliegement contracted during the Marriage is null even though the Bond were granted by her and her Husband containing an Obliegement to Infeft the Creditor in an Annualrent out of their Lands and in this case the Bond as to the Wife and an Apprising thereon as to her Life-rent of these Lands was found null But here there was no special Obliegement of Annualrent or Wodset of the Wifes Life rent Lands but generally out of both their Lands Dury March 24. 1626. Greenlaw contra Gulloway The like Hope Husband and Wife Archibald Douglas of Tofts contra Mr. Robert Elphingstoun and Susanna Hamiltoun The like Dury January 30. 1635. Mitchelson contra Moubray in which case the Bond being granted by the Man and Wife and thereupon Apprising deduced though she did Judicially ratifie it upon Oath never to come in the contrair yet the Bond and Infeftment as to her Life-rent was found null seing there was nothing to instruct her Ratification but the Act of an inferiour Court whereof the warrand was not produced But a Wifes Obligation with her Husband conjunctly and severally oblieging them to pay and also to Infeft in an Annualrent out of either of their Lands found null as to the Wife in the Obliegement to Pay but not as to the Obliegement to Infeft December 15. 1665. Master John Ellies contra Keith Neither was a Wife found lyable for furnishing to the House in her Husbands absence furth of the Countrey which did only affect her Husband Spots Husband and Wife John Loury contra Lady Louristoun The like January 29. 1631. Porter contra Law The like though the cause of the Bond was Money advanced for the Wifes necessar Aliment for which no Process was granted against her till her Husband was first discussed December 22. 1629. Mr. David Artoun contra Lady Hackertoun And also a Wifes Obligation without consent of her Husband found not to affect her but him
with Industry and preserved with Earnestness 32. Fourthly When man increased upon the Earth and Societies became to be Erected they possessed whole Countreys and divided them amongst them by Meiths and Marches and when any one of them swelled to that greatness that their Territories could not contain them either the whole or the Excreass of them removed to places of the Earth not then inhabited and fixed Seats for themselves though the unjust ambition of some of them made them expell others Yet that as contrary to the Law of Nature was also abhorred and gave occasion to the rest from that same Law to concur with and maintain the oppressed So that almost the whole Face of the Earth became changed from its Original Community and there was a tacite consent of Division and Property established throughout the World except some Barbarous Nations and nothing was left common that could be proper but the few ways of Community of which before do only remain In which Division and Appropriation this also is implyed by the common consent of Nations that what is possessed or appropriated by none or relinquished is not now common to all but held as belonging to none that by posession it might be appropriat 33. And therefore Fifthly Property is introduced by Possession of things which are simply void and belong to none and that without limitation This is by the Law of Nations and their common consent whence is that principle Quod nullius est fit occupantis And this way of Appropriation differeth from the first way whereby things common or their Fruits become proper by seasure and possession for that being an effect of the Native Community was with this limitation imployed in the Nature of Community that one might sease upon no more then their use required without hurt to the rest who enjoyed that same Community as in a Theatre which is common to a City every Citizen as he cometh may possess a place for himself by standing or sitting there but he may notly along if thereby others of the Society might be hindered to be present and behold So if Property now were but the effect of that Original Community when the Earth is so straitned with the increase of man it would be the ground of perpetual Contention and War that the Possessions of some were unequal and exceeded and others had not enough therefore for preservation of the common Peace of mankind the custom and consent of Nations hath allowed Property of things void by Occupation without any further debate All these ways of Appropriation are by Possession or Occupation and thus are all free Creatures Appropriat as Fowls of the Air wild Beasts of the Earth Fish of the Sea without distinction upon whose ground they be taken and though men may be hindered to come within the ground of others there being now no ground for passage only upon account of Hunting Halking or Fishing Yea though in some Nations the use of some of these free Creatures be prohibite to any but to the Soveraign power yet the personal restraint hindereth not but he who seaseth upon any wild Creature in another mans bounds it becometh his own though he be punishable for that trespass and Positive Law may make a part of the punishment to be the loss of what he hath taken So likewise it is the first seasure that introduceth Property and not the first attempt and prosecution as he who pursueth or woundeth a wild Beast a Fowl or Fish is not thereby Proprietar unless he had brought it within his power as if he had killed it or wounded it to death or otherways given the effectual Cause whereby it cannot use its native freedom as at the Whale Fishing at Greenland he that woundeth a Whale so that she cannot keep the Sea for the smart of her Wound and so must needs come to Land is Proprietar and not he that lays first hand on her at Land though the falling in upon anothers Game when he alone is in prosecution may be 〈◊〉 civility or injury yet it hindereth not the constitution of Property though it be a just ground to annull the Right of the first Possessor and make him restore to the first prosecuter if he continue his pursuit with a probability to reach his prey And therefore in the last Dutch War a Frigot of the Kings called the Nightingall and a French Frigot being then auxiliary to the King in that War having Rencountered a Dutch Privateer who had possessed and manned three Pryzes and having debelled him in the mean time the Prizes made sail to escape while the two Frigots were taking two of these Pryzes a Scotish Privateer atacked the third called the Tortoice and made her strick Sail but not knowing whether the other Frigots were friends or foes at such a distance did not board her till they came near The French Frigot being nearer then the English Frigot both the French Frigot and the Scotish Privateer claimed the Tortoice as their Prize The English Captain sent the Prize to Leith and declared the case under his hand whereupon the Admiral adjudged the Tortoice Prize to Rankine the Scotish Privateer and the matter being brought before the Lords by Reduction the French Privateer pursued not but the Kings Advocat the Lords found that the Frigots under the Kings pay having defeat the Dutch Privateer who was Possessed of the Tortoice and being in view and prosecution of her that Rankins Capture and Possession was injurious otherways then to assist the first attacker unless it were proven that the Prize would have escaped if it had not been stopped and forced to strick Sail to Captain Rankine February 15. 1667. Kings Advocat contra Captain Rankine The Creatures are understood to be free while they are not within the power of any But Fishes within Ponds are proper and Fowls though never so wild while the are in custody Amongst these free Creatures these which are tame are not comprehended but only these which are wild which if they be tamed contrary their Nature are so long proper as their tameness remains but if they return to their ancient wildness the property thereof is lost so soon as the owner ceaseth to pursue for Possession It is so long continued or understood to be continued by the mind having once begun by bodily Acts and therefore prosecution of wild Creatures will not begin though it may continue the property of them Bees are numbered amongst these wild Creatures which therefore are not proper though they hyve on Trees more then Fowls who set their Nests thereupon but if they be within a Skep or work in the hollow of a Tree Wall or in a House they are proper or while they Hyve or flying away are pursued by the Proprietar but thereafter they belong to him who next getteth them in his power As also these who were tamed and become wild become theirs who regain and tame them again and return not to their first owner Thus are
enervat their Testimonies if they were made to swear at Sea the Privateer and Company having Swords and Pistols in their hands because to evite the insamy of Perjury they might adhere in their judicial Re-examination to their Testimonies taken at Sea upon oath albeit not true or if by force or just fear they did so depone before the Admiral Deput February 25. 1668. the owners of the Ship called the Castle of Riga contra Captain Seatoun The like was found where a great part of the Company were Hollanders June 30. 1668. Peterson contra Captain Anderson And in the case betwixt Captain Allan and Bartholomew Parkman decided July 9. 1668. the Ship was found Prize for having a number of Hollanders Sailers viz. three the Company being nine and for having a small parcel of Tar as counterband aboard and having aboard the product of counterband taken in the immediat return of that Voyage upon all which grounds joyntly the Ship was declared Prize But in this War there hath no Ship been declared Prize upon account of the Companies being Hollanders neither because the Master was a Hollander if he were not also a part owner albeit two of the Company were Hollanders July 24. 1673. Captain Bennet contra the owners of the Pearl But the Master being a Hollander was found a sufficient ground of suspition and seazure but not of Confiscation the property being proven to pertain to free men and therefore probation was allowed to either party July 16. 1673. Captain Lyle contra the Master of the Ship called the Leopard The hyring of the enemies people is no assistance to them in the War but rather a weakening of them so that if these of the enemies Country be only aboard as Servants to Newters and not upon their own account either as Traders or Passengers there hath been no inquiry in the last War as to their Residence neither hath any thing as to that point been mentioned in the last Proclamation of War or in His Majesties Instructions to the Admiralities of His Kingdoms and though the Law might have reached Ships Navigat by Hollanders residing in Holland and not changing the Domicile yet in favour and prudence that ground hath not been sustained it being more the Kings Interest to allow his enemies to withdraw from their Countrey then to force them to serve only there Counterband is not only a cause of Confiscation when taken going towards enemies Ports but also when the Ship is taken in her return from the enemies Port in that same Voyage for then the Delinquence is compleat whereas it had not taken effect before the Ship attained the Port and yet might be justly seazed before the full effect because the seazure of the Ship in her Voyage is the impediment that the effect is not attained and therefore the common custom of Nations hath allowed such seazures for otherways it were impossible to hinder Newters to carry Counterband-goods to enemies for carrying on the War neither will the pretence of altering their resolution to sail to or disload in a free Port be a sufficient Defence unless the Ship were actually stearing another course but if a Ship should be pursued to be searched for counterband in her passage to an enemies Port and should be waited for till her return and taken as she came from that Port there could be far less pretence to excuse that Delinquence and therefore it was one of the grounds of Confiscation of Parkmans Ship taken by Captain Allan that she was taken in the return of the same Voyage in which she carryed counterband to the enemies Ports July 9. 1668. And though in that case the reason was lybelled that the Ship was taken having in her the product of counterband having the same effect with counterband it self quia surrogatum sapit naturam surrogati yet without that in the foresaid case of Captain Lyle it was found sufficient that the Ship was taken in the return of that same Voyage in which she carryed counterband without mention of the product thereof July 16. 1673. in which case it was found necessar that the Ship belonged to the same owners that had carryed in the counterband so that though the Ship had been light without any Loading she would have been Prize unless she had been a Swedish Ship and so secured by the Swedish Treaty Confiscating only counterband when it is actually taken It is a most convenient moderation of the Law of Nations that the Delinquence of carrying counterband is followed no further then the immediat return of that Voyage otherways it would be the foundation of marring Trade by perpetual quarrels upon pretence of counterband carryed in to enemies in former Voyages In these Wars there has been no occasion to determine whether it be a cause of Confiscation if a Ship be taken in return of that Voyage wherein she was Loaded with enemies goods The Dutch by their Declaration did prohibit all Friends and Allies not only to carry counterband-goods to any Port in the Kings Dominions but to be found therewith upon his Coasts or diverting from the Voyage they might make with counterband towards the Kings Ports holding that for a sufficient probation of their intending these Ports which is like they would not take off by Documents aboard expressing their own Ports or the Ports of Newters it being so easie to procure false and colourable Documents yet that was never sustained as a relevant ground of Adjudication with us By what hath been said the confiscation of the Ships and Goods of Allies and Newters upon account of counterband and the assistance given to enemies thereby hath been cleared the other chief ground of confiscation of the Ships and goods of Newters is by their concurse with enemies in carrying on their Trade and therefore in all the Treaties the formula of Passes doth require that it be attested upon oath that the ship and Loading belongs to the Subjects of that Ally and no part thereof to the Kings enemies and likewise the particular kinds and quantities of the Cargo and the owners thereof and of the Ship must be exprest Some are of opinion that an unfree Ship Confiscats the Loading as accessory thereto but that unfree Loading or a part thereof doth not Confiscat the Ship which is but a groundless subtilty the reason of this Confiscation being the partaking with enemies in carrying on of their Trade it taketh place alike in the Ship and Loading or any part thereof but it being a Delinquence it hath still the exception of the bona fides and ignorance of these who partake in that Conjunction of Trade but though the Society or partnership was entered into before the War it was not found to liberat seing there was time and opportunity to dissolve it after July 17. 1673. Master of the Golden Falcon contra Captain Buchannan That a part of the Ship belonging to an enemy doth confiscat the whole Ship and Loading hath been of times decided even in