at eleven of of the Clock in the forenoon yet it does not irritat and annul all Courts holden at any other hour and Courts are ordinarly held at other hours but it may be doubted whether a party cited to a peremptory Diet and staying till twelve of the Clock and taking Instruments thereon could be unlawed in the afternoon for absence but if the Court once sit parties are obliged to attend THough this Act appoints the Expences of parties accus'd and acquitted to be modifi'd by the Justice-Clerk and his Deputs yet they are now only modifiable in full Court by the Justices but it is doubted whether the Justices can modifie Expences where the Defenders are absent since the only Certification against absents is that they shall be Denunc'd Rebels But yet the modifying Expences seems to be the necessary result of all Processes and that inest officio judicis It is also doubted whether the Justices can ex intervallo modifie Expences none having been sought the time that the Letters were brought back and the party declar'd Fugitive and the Justices are in use to do both but the case has not been yet fully Debated BY this Act the Roll of Assizers was to be given by the party accuser or a Notar in his name but now by the third Article of the Regulations for the Justice-court the Assizers are nam'd and the List subscriv'd by the Justices for it was thought too severe that the Kings Advocat or the party accuser should have the naming of the Assizers BY this Act Customers passing Customable Goods for Gratitude are to be Try'd Criminally and their Moveables to be Escheated in case they be convicted Observ. 2. That the Kings Servants are only to be punish'd in case they transgress for Money so that negligence is not punishable except it be gross but yet if Customers should wittingly and willingly pass Goods for Friends or Relations I think it would be punishable by a Fine And since the stealing of Customs is Theft this connivance in strict Law seems a Theft-bute or accession to theft Observ. 2. Though this Act declares this accession punishable in a Justice-air yet the Exchequer and Council do also punish the same by arbitrary punishments THis Act is Explain'd fully crim pract tit Assizes but it is fit to add that His Majesty having written a Letter in anno 1683. desiring the Justices to Examine Witnesses in Treason when the Council requir'd them at any time before insisting in the Process to the end His Majesties Advocat might know how to Libel and to prevent the absolving of Rebels who were truly guilty by the mistake of citing the wrong Witnesses it was alleadg'd that the desire of that Letter was contrary to this Act ordaining all probation to be receiv'd only in presence of the Pannel 2. That this would ingage Witnesses to adhere to the Depositions that might be Elicited from them by the too great zeal of His Majesties Servants or the influence of others To which it was answer'd that as to the first the Depositions to be taken in that previous Tryal were not to be made use of to the Assize which was all that was discharg'd by this Statute As to the second It was not to be imagin'd that the Judges to whom only this was to be intrusted would prejudge any Pannel or be corrupted by any influence and before the Witnesses Depon'd these Depositions should be destroy'd so that the Witnesses could be under no apprehensions upon that account and the people were in a better condition by this Letter than formerly for it was securer to trust previous examinations to the Judges than to the Kings Advocat who did alwayes Examine alone formerly and this would prevent unjust trouble when there were no Witnesses who could Depone against the persons accus'd through error or malice THis Act is also Explain'd in the Title Assizes But it is fit to add that Blair and others being Convict of Error for assoilÈying some Traitors wrongously and their Escheats being gifted they rais'd a Reduction of the Gift as founded upon a Verdict that was null by this Act in so far as the Kings Advocat had spoke with the Assyzers after they were inclos'd which reason was repell'd because the Justices had declar'd that the Advocat had only spoke to the Assyzers in their presence when the Assyzers were desiring to be solv'd of some doubts which was ordinary and allowable December 21. 1682. It may be also doubted whether such Verdicts can be reduceable for though the Act declare that the Assizers may assoilÈe if any speak to them yet if they and the Justices proceed it seems not quarrellable or at least before the Session for I remember that the Justices having declar'd a Bond of Glenkindies forefaulted for not producing some Witnesses against himself the Lords declar'd that the Justice-court being a Supream Court their Acts and Sentences were not quarrellable before the Session Queritur if both these may not be quarrell'd before the Parliament and I think they can not except the Decreets of the Session can THis and the following Acts to the end of this Parliament were made for quieting the Borders and Highlands as to which the same courses are to be taken though now the Borders are Governed by a Commission of both Kingdoms so they are not put to find Caution as they were by these Acts but the Acts here set down are generally observ'd as to the Highlands still except in so far as I shall here observe upon the respective Acts. Observ. 1. Though this Act appoints that the first day of every Moneth shall be appointed for hearing Complaints concerning the Borders and Highlands yet that is in Desuetude as to both Observ. 2. That that part of the Act ordaining a special Register to be made for Borders and Highlands is in observance quoad the Highlands by a late Act of His Majesties Privy Council BY this Act all the Lands-lords contain'd in this Roll are ordain'd to find Caution which Roll is subjoin'd to the Acts of this Parliament but that Roll is now very much alter'd for many others are now ordain'd to find Caution who are not therein specifi'd but are now in the Proclamations of Council March 17. 1681. c. because the Heretors mention'd in the Acts of Parliament are often extinct and the Lands for which they were to be bound are dispon'd to others And whereas by these Acts these Landlords and Chiefs of Clans were ordain'd to produce their Delinquents before the Justice or his Deputs they are now to produce them before the Council or else to pay the Debt which are great arguments to prove that in matters of Government de facto we consider more the Reason than the Letter of the Law Though this and the 103 Act of this Parliament which is coincident with this may seem severe because the innocent is bound for the guilty yet necessity and publick interest has introduc'd
By the Civil Law incendium casu fortuito is not punishable but conductor tenetur de levissima culpa incendium praesumitur culpa inhabitantium factum fuisse si intra domum originem habuerit â—o casu pater familias tenetur ex facto delicto familiae sed non tenetur si ortum habuerit incendium extra familiam vide Gail lib 2 Obser 21 22. Though by this Act the Magistrates of Towns are to enquire concerning the skaith suffered by Fire-raising so that this seems to be a matter of Government and consequently proper to be try'd also by the Privy Council yet where the case is intricat in point of Law the Council uses to remit the same to the Session as in Doctor Sibbalds case April 1684. King JAMES the first Parliament 5. FOr Explication of this Act Vid sup Act 39 Par 3 Ja 1. and Act 86 Par 6 Ja 1. THis Combination of Workmen was also punished by the Civil Law and it was found in the case of the Lord Hattoun against the Deacon of the Masons of Edinburgh that a Man might choose any Stranger Mason to build his House and if any Mason within the Town give over the Work any other Mason within the Town might undertake it notwithstanding of their own private Statute King JAMES the first Parliament 6. THe Act here related to is 24 th Act Par 1 Jac 1. DEacons are discharged by this Act as tending to Sedition and in place of them the King did introduce Wardens of Crafts who were to Supervise the Work of the respective Trades-men and were indeed Deacons but were called Wardens quasi Guardians Act 102. par 7. Jac. 1. But thereafter though Q Mary of new supprest Deacons and introduced in place of them Visiters yet thereafter about the time of the Reformation to strengthen the Popish party and to oblige all Trades-men thereto she restored Deacons by a special Gift and a Letter to the Council of Edinburgh since which time they remain still legal Corporations and each private Trade has their Deaconry Confirmed by Parliament Vid. Act 39 Par. 3 Ja. 1. THis Act Regulating the Expenses of unjust Pleas seems to have been first made in a Provincial Synod for it relates to the Official or Commissary Court and ends thus Et quod istud statuatur de authoritate Concilij provincialis But I find that in Voet. de stat that general Laws are call'd jura provincialia THough all Submissions with the Decreets following thereupon be declared null if the Submission be not made to an odd person yet this is now in Desuetude vide R. M. l. 2. c. 5. num 4 5 which sayes that it is ordinary to submit to two though it be difficult to make them agree and therefore the Law recommends to them to submit to an Odd Man THis Act relates only to Processes for by it the Causes of all Merchants dying abroad should be decided by their ordinary Judges within the Kingdom viz. in the respective Commissariots and Shires where they liv'd if they went not abroad animo remanendi but notwithstanding of this Act the Testaments of such as live abroad though animo remanendi must be confirm'd in Scotland by the Commissars of Edinburgh as communis patria else no Pursuite can be sustained for their Moveables that are in Scotland July 18. 1666. in the case betwixt Duff and Bisset ANd if it be Fore-thought-Fellony he shall die therefore This may seem to imply that men die not for Murder committed without Fore-thought-Fellony But this holds not in our Law for Murder though committed without Fore-thought-Fellony is punishable by Death except it was either Casual or in Self-Defence and then it is call'd properly Homicide or Man-slaughter It is observable that Crimes ought regularly to be punished in the place where they were committed that where the Scandal was given there the Reparation should be made vide act 34 par 2 Jac 1. act 148 par 12 Jac 1. and this same Act is renew'd act 98 par 6 Jac 1. THe way prescribed by this Act is now obsolet and in Desuetude but the juster way now used is That when a man is Denunced Fugitive for a Crime there are Letters of Intercommuning got out against him by authority of the Council and these are publish'd at the Mercat Crosses where he uses to reside and if any within these Shires where these Letters were publish'd do reset or speak with him they are pursu'd as Intercommuners Nota The Resetter of a Murderer is punish'd as a Murderer and this by the Civil Law is clear in Resetters as to all Crimes l. 1 ff de receptat l un C de crim pecul which is made our Law by the 144 act par 2 Jac 6. and yet some think some Resetters are only to be punish'd as severely as the principal Offenders who assist in the Crime and then reset for these contract a double guilt but that such as only reset them who are guilty should be more benignly punish'd and this answers d. l un C de crim paec in fine l ult § ult ff abâ—g The Civil Law excuses Parents who reset and punishes less Friends and Allies who reset than others l 2 ff h t and though this Act be general yet it seems that it ought to be restricted by the Common Law OBserve first That though Barons do not use to judge Murderers yet by our old Law such as are Infeft with Pit and Gallows may punish Slaughter Q attach c 77. and this Act allows them if they be Infeft with such freedom Observe secondly That by this Act Judges who are negligent to arrest Malefactors if they escape the being warned in both these cases pays 20 pounds IT is fit for understanding this Act to know that Magistrates within Burghs have not power to judge Murders except they be Sheriffs within themselves as Edinburgh Pearth Innerness and some other Towns are A Lord of Regality and his Deputs have as much power in judging Murder as the Justices have though some contravert whether they can judge Murder under Trust because that is Treason and the Justices are only Judges competent to Treason Nota There is a Case exprest in this Act where moe Witnesses than two are required to prove a Crime The Word Croy here signifies an Assyâ—hment which the Judge should pay to the nearest of Kin if he be negligent in Ministring Justice against the Murderer but this is in Desuetude THe sense of this Act is that if a man has found Law-burrows which was called Assurance by our old Law the Friends of him who has found the Law-burrows are punishable if they wrong him to whom Law-burrows are found He who assaults with Edge and Ure is to be imprison'd that is to say with an Edg'd-tool or any thing made of Metal for Ure in Scots signifies Metal King IAMES the first Parliament 7. THe
Inventions in Anno 1469 and Reversions were only personal and did not oblige singular Successors before that Act but by this Act they affect singular Successors providing they be Registrated And though this Act speak only of Reversions yet elks to Reversions and obligations to grant Reversions are also real Rights if Registrated 2 o. A Reversion though not Registrated is by our Law valid against singular Sucâ—â—ssors if it be Incorporated and contain'd in the body of the Wodset it self for then the singular Successor must know the same since it is Incorporated in his own Right BY this Act personal Rights are ordain'd to prescryve if no Diligence was us'd thereupon within fourty years as Heretable Rights do prescrive by the Act 12 Par. 22 Ja. 6. And though this Act appoints only Obligations to prescryve and that the word Obligation does properly signifie only Bonds and Câ—ntracts yet this Act extends to Testaments and Decreets July 26. 1637. and this prescription is also extended to all personal Actions for Moveable Goods and so it did defend against an action for a Kirk-Bell December 7. 1633. For in effect all these are Obligations Whereas the Act says except document be taken thereupon the meaning is that Diligence upon the Writ that is to prescryve interrupts Prescription and thus Horning upon a Bond or Citation upon an Action interrupts July 6. 1671. M crae contra M cdonald and payment made by the principal Debitor interrupâ—s as to the Cautioners It is observable that Prescription upon this Act runs not against Minors contra non valentes agere though neither of these are excepted in this Act because these Exceptions are warranted by the Common Law and it may be alleadg'd that it runs not against furious Persons since they are in all things compar'd to Minors albeit there is this difference that a man may feign himself to be fuâ—ious to the end Prescription may not run against him But yet Prescription runs against things left ad pios usus nor is the time of War and Pestilence when there is no Judicature nor Session to be defalked June 30. 1671. Prescriptions runs only against personal Bonds from the Term of payment and not from the Date of the Bond because till then the Creditor cannot pursue Feâ—ruary 19. 1680. Lutefoot contra Glencorse IT is pretended that this Act is in Desuetude and that Magistrats may be continued for many years or at least that this Act must be so Interpreted as to infer only a necessity of a new Election yearly but not of yearly changing the persons elected for sometimes there are few to be choosed as in small Burghs and in great Burghs a forc'd alteration might prejudge the Towns Interest because there are few worthy to be Elected in these little Towns and the Lords inclin'd to this Gloss in the Town of Edinburghs Process against Sir Andrew Ramsay The Burrow Law here related to is cap. 77. leg burg it appears by this and many other Acts and old Evidents that Alderman was the same of old with our Provost and they are still plac'd above Baillies it comes from the Saxon Word Ealdor Senior thus we say for age or for eeld NOtars are now only chosen by the Kings Authority and are Examined by three Lords of the Session and get their Protocals marked at their admission by the Clerk to the Notars who is one of the Registers Deput Clerks Nor are the Notars to be admitted by the King to be Examined by the Bishops as this Act appoints and yet our Style retains to this day so much of the old Form that the Notars express still in all the Instruments and other Papers sign'd by them that they are Notars of such a Diocie BY this Act all Woolen Cloath is to be met by the Rig and not by the Selvedge but by the 43 Act 1 Par. Ch. 2. Linen Cloath is ordain'd to be taken up by the Selvedge and not by the Rig because Woolen Cloath stretches when measur'd by the Selvedge but the Selvedge of Linen hinders it to stretch THough this Act appoints only Heretable Sheriffs or Sheriffs in that part that is to say any ordinary person who executes the Kings Letters to put their Stamp to the Execution yet by the 74 Act 6 Par. Ja. 5. The execution of all Letters must be stamped and though here the not Stamping makes the Executions to be only null yet by that Act such as omit to stamp are punish'd by Deprivation Vid. Observ. on that Act. Oppression of the Kings Leiges in Fairs by taking more Custom from them than is due is by this Act punish'd only arbitrarly as to the offenders Persons and by a years Suspension from their Offices and what Custom is allow'd in such cases is exprest Act 60. Par. 13 Ja. 2. How far arbitrary punishments may be extended is doubted These who have Fairs had not power to exact Toll gl in l. un C. de nundinis because Fairs enrich the place and Toll wrongs Commerce THough removing of Tennents and poinding their Goods be appointed by this Act to be three days after Whitsunday or Martinmass yet by the 39 Act 6 Par. Q. Mary All warnings against Tennents are to be used fourty dayes before Whitsunday only the old Form of Removing was That the Master did only intimate to the Tennent that he was to remove and broke a Lance before the Tennents Door as the Symbol of breaking their Tack and within 3. days ejected the Tennent as Craig observes but now the Tennent must be warned 40 days before the Term and a Decreet of Removing must be had whereupon he must be Charged and Denunced before he can be Ejected and after that Letters of Ejection are directed to the Sheriff ALL Murders committed by Fore-thought Fellony that is to say upon design or per insidias called Assassinium are denyed the Protection of a Sanctuary or Girth by this Act but it appears that the Crime of Assassination was here excepted expresly because it not being exprest in the very Text of the Canon Law there were several debates about it vid. Covar Variar Resolut cap. 20. For though it be ordinarily proved per cap. 1. de homicidio si quis per industriam occederit proximum suum per iâ—sidias ab altari meo avellet cum ut moriatur which Text seems to be mean't by these words in this Act For the which the Law grants not the Immunitie of the Kirk and in which our Law has followed the common opinion that Assassinators are denyed the priviledge yet cap. inter alia gives Immunitie to all except publicus latro depopulator agrorum and that cap. de homicid Excepts only Church-men who have Assassinated proditorie and who indeed should have less Immunitie than others but now the Churches being a Sanctuary or Girth is in Desuetude since Poperie was abolished though the Kings Palaces are still Sanctuaries in all Nations if Princes be
and four Witnesses are requisit where the Party cannot Write By the 4 Act Par. 9. Ja. 6. Writs that are to be Registrated need not be Sealed but there is no express Law dispensing with Sealing as to other Papers which need no Registration so that the not Sealing is in these warranted only by uncontroverted Custom FIre-rising and ravishing of Women are to be put under surety as Mutilation and Slaughter by this Act From which some concluded that Mutilation was punishable as these Crimes were but the Act appoint not the punishment to be the same but the way of finding Caution to be the same and by the old Law Stat. Rob. 2 Cap. 11. Mutilation is to be proceeded against as Murder but yet licet redimere vitam and it is not declar'd there punishable by Death and in all the Journal Books no man was ever punish'd with Death for Mutilation the punishment being ordinarly confiscation of Moveables and Assythment to the party nor see I any warrand for Confiscation of Moveables since the Crime is not punishable by death nor any express Statute to warrand Confiscation I find that Mutilation is infer'd upon the cutting of a Thumb or Finger though digitus was alleadg'd not to be membrum but pars membri June 27. 1677. and it was formerly found July 15. 1642. Châ—in contra Mowat but though this may infer Mutilation Yet I conceive it would not infer Dis-membration Vid. observ on 28 Act 3 Par. Ja. 4. BY this Act all the Lieges may sell Fleshes on Sunday Munday and Thursday but thereafter all Mercats being discharg'd on Holy-days there is an Act of Town Council ordaining these Landward Fleshers to bring in their Fleshes only on Tuesday Thursday and Saturnday and not to sell in pieces but in Quarters which is confirm'd by a Decreet of the Session July 7. 1595. and ratifi'd in the Parliament 1681. FRom this Act it is clear that the Acts of Parliament cannot be Re-printed without the Kings special approbation even though the Lord Register consent for else why needed the Register get a Warrand by this Act and the Custom alwise is that the Register gets a special Warrand for that effect and the Council the 17 of November 1681. found that the Kings Printer having Re-printed the Acts of Parliament without such a special Warrand the Copies were Confiscable and should be burnt and the reason of this is because of the great danger that may arise from the wrong Printing of Acts of Parliament the difference of a word altering the sense to a contrariety but yet it seems the Register should have liberty to Re-print them since he is answerable for all the Errors and therefore we see that the Register used still to subjoin his Subscription to the Acts he Re-prints as is to be seen at the end of the 15 Par. Ja. 6. where Sir John Skeen's ordinary Subscription is set down at the end of the Acts which he Reprinted and Sir John Hay's at the end of the first Parliament Ch. 1. Q. MARY Parliament III. ALL the Acts of this Parliament except the first are Temporary for encouraging of such as were to hazard their Lives in that Army and are renewed fully by three equipollent Acts viz. Acts 41 42 43 Par. 2 Ja. 6. BY this Act Church-men are to have Right to the Fruits on the Ground the year they die and to the Annat thereafter and from this it is to be observ'd that the Annat was a Casualty that befel by and attour the Fruits that were on the Ground which belonged to the Church-men jure proprio and formerly the Church-men had right to all the Fruits of the year if he surviv'd the first of January for in beneficiis annus inceptus habetur pro completo but if he survived Michaelmas he had right to that whole year jure proprio and the half of the subsequent year jure annatae But now by the 13 Act 3 Sess. Par. 2 Ch. 2. If the Incumbents survive Whitsunday they have right to the preceeding half year by their own right and to the next half year by their Ann but if they survive Michaelmas they have right to the whole year viz. from January to January by their own Right and to the half of the other year as Ann and though it may seem incongruous that a Minister living till the last day before Michaelmas gets no more than he who lives till the day after Whitsunday Yet this is regulated in this case as it is in all Liferents and this is allow'd them for the support of their poor Families for that Act declares that the same shall belong to their Executors without necessity of a Confirmation and though this Act declares that the Ann is to belong to their Executors yet in effect that is not well exprest for it belongs to their nearest of Kin and Wife though they be not nominated nor Confirmed Executors If there be Bairns the Ann is equally divided betwixt them and the Wife but if there be no Bairns it is divided equally betwixt the Wife and nearest of Kin she having right in that case to a half and not to the whole because the Ann was of old introduc'd in favours of the nearest of Kin as appears by this Act for Church-men had no Wives under Popery when this Ann was introduced June 24. 1663. Elizabeth Scremgeor con the Executors of her Husband Though this Ann falls to Bishops and Ministers who die Incumbents yet it belongs not to such as renunce voluntarly their Benefices as was found in Bishop Lightoun's case and neither Manse nor Gleib fall under the Ann for the last Incumbents Executors have no right to the Gleib except the same was Sown before his Decease July 6. 1665. Colvil contra the Lord Balmerino The reason why Michaelmas and not Martinmas is made the Term in this case is because Ministers Stipends are payable out of the Teinds or by somewhat which is come in place of them and therefore Michaelmas should have been the ordinary Term and generally in payment of all Stipends the Terms of Whitsunday because the Sowing is then ended and Michaelmas because the Corns are then separated from the Ground are the legal Terms for payment of Stipends The foresaid Act allows an Ann to Bishops though the Act of the General Assembly and the Kings Letter in anno by which Anns were first establish'd as they now are did not mention them and under the Bishops Ann falls only the Quots of such Testaments as were actually Confirm'd in his Lifetime or during his Ann July 6. 1676. Captain Wisheart contra the Bishop of Edinburgh By the Canon Law the Annat was a quota payable to the Pope and Colledge of Cardinals by every Intrant out of his Benefice Vid. Tush concl 329. But a Casualty like ours is payable in the Protestant Churches of Germany Vide Carpzov jus consistoriale tit de decimis It may be doubted whether that Maxim annus inceptus
habetur pro completo does yet hold good in other Beneficiary cases for though it be altered by Act of Parliament quoad Annats yet where there is no Act of Parliament why should not the old Rule hold But I rather think that the Act extends to all Benefic'd Persons albeit the Rubrick mentions only Bishops and Ministers and so there are two Errors in the Rubrick of the said 13 Act one in that it mentions only Bishops and Ministers another in that it mentions only their Executors and not their Relict or nearest of Kin and the Rubrick should have born Act Regulating the Ann of Benefic'd Persons which shews also how weak the argument is a rubro ad nigrum The ancient Bishops allow'd sometimes the uplifting of the first years Rents of Benefices for assisting Christian Princes against Infidels but the Popes thereafter reserv'd them to the use of the Roman See upon pretext to supply the general necessities of the Church Pope John 22. extravag suscepti de elect was in this follow'd by Boniface the 9. who stated them in an ordinary Revenue till the Council of Basil oppos'd the same and still many Learn'd Doctors of the Romish Church it self condemn'd them as Simoniacal whereupon the French Kings did by Concordats force the Pope to pass from the same in France They were call'd Annats Anns or Annals because they were fructus primi anni and it seems with us they were not at the Popes disposal absolutely else this Act of Parliament could not have dispos'd upon them But it seems our Kings have in Parliament assum'd to themselves what others settled by Concordats with the Popes as may appear in all the Regalia throughout the whole old Acts of Parliament The whole Doctrine of Annats is excellently Treated by Antonius Nassa de materia annatarum But I conceive our Ann which is a half Years Stipend comes from the Saxon reform'd Church wherein ultra Salarium quod defunctus Aecclesiae minister promeruit ex singulari beneficio viduae ac liberis dimidius gratiae annus assignetur Carpzov Jurisp. Consistor lib. 1. tit 12. It was introduc'd there in anno 1580. a little before King James introduc'd it here by the Letter to the General-Assembly in Montrose BY this Act such as did dy in that Army were to have their Ward Non-entress Relief and Marriage freely from the Queen It is observable that though usually such Acts are made when our Armies are in procinctu going to Battel and though the King nor his Exchequer seek no advantage by Casualties in such Cases yet regularly it is no Defence in Law against a Ward or Marriage that he by whose Death they were sought were killed in the Kings Service THough where there is a Governour the style of Acts of Parliament made by him is The Governour with the advice of the three Estates Yet this Act says by the consent of the Governour and the consent of the Noblemen both Spiritual and Temporal By which words also it is clear that the Lords of the Clergy are to be accounted as Noblemen and so are to find Caution under the same pains as Noblemen and to pay publick Burdens as Noblemen c. Queen MARY Parliament 4. BY this Act these who are Excommunicated and continues so for a Year for any cause lose their Moveables Creditors being first paid and by the 3 Act 20 Par. Ja. 6. They are to lose their Liferent-Escheats if they be Excommunicated for Religion Vid. supra observ on 9 Act 4 Par. Ja. 5. VId. My Criminal Tract tit Treason THis Act inflicting the pain of Death and Confiscation of Moveables upon such as shoot at Deer Wild-fowl or Wild-beasts is deservedly in Desuetude Vid. infra observ on Act 51 Par. 6 Q. Mary THis Act and the Instructions subsequent to it were but Temporary Remedies for repairing Lands burnt at that time by the English Invasion But though only Parliaments can regularly invert Property yet the Privy Council do force Heretors to sell burnt Tenements if they will not repair them themselves to the end other Heretors and the publick advantage of the Burgh may not be prejudg'd and this the Council did in anno 1675. when all the Houses near the Parliament Closs were burnt and this is conform to a power granted by the 6 Act 3 Sess. Par. 1 Ch. 2. by which it is appointed that the Provost and Baillies may Charge all persons who have the property of such ruinous Lands to repair them within Year and Day and if they refuse the Magistrats may value and sell Vid. observations on the 226 Act Par. 14. Ja. 6. Queen MARY Parl. 5. THis Act as to the prices of Wine is in Desuetude but not in so far as concerns the mixing of Wines which by the opinion of the Civilians is a species of Falshood and is punishable as such Carpz de falso THis Act against abominable Oaths is enlarg'd Act 103. Par. 7. Ja. 6. Vide my Crim. observ Tit. Blasphemy § 6. THis Act against perturbers of the Kirk is enlarg'd Act 27. Par. 11. Ja. 6. For that Act reaches all tumults in Kirk-yards and the punishment in that Act extends to confiscation of all the offenders Moveables It is observable from this Act that Children are only to be scourged for such Crimes minority lessening the punishment and all within 14 years are accounted Children VId. Crim. obs Tit. Bigamie VId. Crim. obs Tit. Adultery VId. Crim. Tit. Falshood NOtars are still according to this Act examined and admitted by the Lords but are not presented by the Sheriffs for now they are presented by the Clerk to the Notars who gives in a Bill for them to the Lords By this Act the Instruments of such as exerce the Office of Notar not being lawfully admitted are null but yet if the pretended Notar was habite and repute a Notar his Instruments will be sustained Such as usurp the Office of Notars are punishable by this Act as Falsaries or Forgers yet I never observ'd that for this Crime death was inflicted upon them Nota It is observable from this and many other Acts that the Acts are call'd the Kings Laws and not Laws made by the Parliament and the Act related to made by King James the 5. but not condescended upon here is the 81 Act Par. 6. Ja. 5. IT is observable from this Act that the Secret Council used by their own Authority to make Sumptuary Laws both as to Meat and Cloathing and by the Act of Council here related to the contemners of the said Act of Council are to be punished in their persons and goods at the Lord Governours will and yet one of the accusations against the Earl of Middleton was that the Lord Lorn being found guilty of Treason the time of the Execution was referr'd to him as being then the King's Commissioner which it became no Subject to accept PRinting is Inter Regalia and so the
after the former The old extent is said in all Retours to be tempore pacis and the new tempore guerrae or belli the reason of which some think to be that the new extent being made in time of War there was a necessity to highten the Valuation for maintaining the War These Casualties being the greatest part of the Kings Revenue whereas the old extent is very inconsiderable being in time of Peace when there was no necessity for any addition to the Revenue and when the value of the Money was very mean BY this Act four of the old Council are to sit with the new Council but this Act is now innovated by the posterior different Constitutions of privat Burghs Edinburgh and many other Burghs having far more whilst others have but the numbers here prescrived or fewer And as to Edinburgh the manner of choosing the Magistrates and Councâ—l thereof is regulated by â—KING IAMES the sixth his Decreet arbitral commonly call'd the Sett Vid. Ja. 3. Par. 5 Act 30. THe Superiour not entering to his Superiority to the effect he may enter his Vassal tines his Superiority for his lifetime and though this Act determines not for whose lifetime the Superiority is to be lost yet by an Act of Sederunt Anno 1634. It is ordain'd That the Superior tines his Superiority for his own lifetime and not for the Vassals lifetime and declares this to be the meaning of the Act. BY this Act it is clear that stealing of Dogs Hauks and the like is not to be punish'd as Theft but only by a fine or Penalty of ten pounds and in effect this is not contrectatio rei alienae lucri faciendi causa these Beasts being rather useful for sport than gain but it may be doubted if a Fowler who makes it his Trade ita lucrum sacit may not be punish'd as a Thief for stealing another poor Fowlers Dog who lives by that Trade and whose Dog is his Pleugh and especially since such Dogs are now bought and Sold. THis Act containing the pains of such as break Dovecots Cunninghares c. is alter'd and the Penalty hightned by subsequent Acts of Parliament viz. by the 84 Act 6 Par. Ja. 6. and by the 3 Act Par. 19 Ja. 6. but these Acts are without prejudice of putting all former Acts to Execution made against the foresaid Crimes THis penal Statute against Ferriers not making Bridges is in Desuetude as are the Prices here exprest Vid. Act 39. Par. 3 Ja. 1. Supra and Act 20 Par. 4 Ja. 3. King JAMES the third Parliament 8. IT would seem by this Act that all ordinary Actions must be first pursu'd before inferiour Courts which is likewise appointed by the 105. Act 14 Par. Ja. 3. But now any Action may be pursu'd before the Session or Parliament in the first instance But there can no action be rais'd before the Parliament without special warrand first past in the Articles for bringing the same before the Parliament Vid. not on Act 16 Pa. 6 Ja. 2. Act 76 Pa. 19 Ja. 2. and 27 Act 5 Pa. Ja. 3. supra BY this Act which is in present observance such Assyzers as assoilÈie a Pannel unjustly are to be pursu'd for Error but such as condemn him unjustly are not the reason whereof seems to be that the Law-givers presum'd that no Assyzer would condemn unjustly but that probably they might shew favour in absolving and if Assyzers were punish'd for condemning they would never Condemn and since they get no Sallaries they should not be severely us'd but though we have no Law allowing assyzes of error against such as condemn yet it may be alleadg'd that Assyzers may be pursu'd if they condemn a man without any shadow of probation 2 o. This Act appoints that the Assyzers who are to judge of the Error be noble persons for these that are to judge of the Error of others ought to be more judicious than they but by a Statut Sess. 1591. c. 117. It is declar'd that by noble persons is meant only Landed-gentlemen 3 o. The error must be infer'd upon Principles and Grounds which were represented to the Assyze at the time of the Verdict though the Retour may be reduc'd upon other grounds than such as was than represented as is clear by the Act 13 Par. 22 Ja. 6. It is also appointed by this Act that though the Verdict be reduc'd yet the person assoilÈed unjustly cannot thereafter be punish'd there being jus quaesitum to him by the Verdict and upon the same principle by the 91 Act Par. 11 Ja. 6. If any speak to the Assize after they are inclos'd the Verdict is declar'd null but the Pannel being thereby acquit cannot thereafter be accus'd 4 o. The place of Reg. Maj. cited but not exprest in this Act is lib. 1. c. 14. where an assize of error is said to consist of twenty four leil and lawful men though they are call'd here twenty five noble persons 5 o. It may be doubted from this Act whether though the Pannel be not assoilÈed yet it any or moe assizers who voted to assoilÈe notwithstanding of the clear Evidences to the contrary may not be pursu'd as temere jurantes super assisam since he is guilty of Perjury and Perjury is infer'd from an unjust Oath and not from the Effect and though it may be pretended that he follow'd his privat knowledge yet that cannot defend since this may be urg'd for all of them if all should assoilÈe nor could any thing deter each particular Assyzer more than that each may be found guilty whereas if they thought that they would not be lyable except the major part assoilÈed they would adventure upon assoilÈing as an uncertain Event But yet the Justices inclin'd not to this Opinion since no Error was ever pursu'd except where a person guilty was freed this being the vindicta publica allow'd in that case It is likewise observable from this Act That the Assyzers committing wilful error shall first be called before the King and His Council who shall give them a great Assyze and therefore His Majesties Advocat having pursued an assyze of Error in July 1681. He first called the Persons who had committed the Error before the Privy Council and asked at every man Judicially whether he owned his Verdict or not and these that owned not the Verdict were not insisted against Criminally but when this Cause came to be called before the Justices It was alleadged for them 1 o. That the Verdict bearing only that the major part had assoilÈed non constabat who had assoilÈed and who condemned which should hold much more after the Act of Regulations in Anno 1672 by which it is appointed that the assyzers should mark in their Verdict who assoilÈed or condemned to the end it might be known who should be pursued for Error but this was repelled because the King being prejudged by the Verdict their giving in the Verdict made all
Interdictions have been introduc'd amongst us for preservation of ancient Families for they extend not to secure Moveables or against personal Execution and it was found that many weak persons would consent to a voluntar restraint who would not compear Judicially to be restrained and the Letters of Publication passing upon a Bill by Deliverance of the Lords of Session seems to be a kind of interposing of the Authority of a Judge and so to make the voluntar Interdiction a Judicial Interdiction But the Narrative of this Act confesses that Interdictions upon consent are beyond the first design of the Law It is observable 1 o. That Interdictions need not be Intimated to the party Interdicted or execute against him December 11. 1622. Seaton contra Elleis Though Inhibitions must be execute against the person Inhibited The reason of which difference is because the person interdicted having consented there needs no intimation be made to him Obs. 2 o. The Stile in all such Letters is ordinarly the rule of all Decisions upon them and yet interdictions were found not to annul moveable Bonds though the Letters did discharge the granting such Bonds and that because Interdictions do naturally strick only against alienation of Heretage Our Law thinking Moveables of lesser importance or else because that would stop Commerce and straiten too much the person Interdicted July 11. 1634. Bruce contra Forbes June 20. 1671. Cranford contra Hamilton And though an inhibition did expresly discharge the granting of Renunciations Yet a Renunciation of a Wodset was not Reduc'd as granted after Inhibition since the Wodset was prior and so the Renunciation by the person Inhibited depended upon a prior Obligation July 16. 1667. Elleis contra Keith But by a late Act of Sederunt the 9 of February 1680. It is declar'd that if the User of an Inhibition shall intimat to the person who has Right to the Reversion that the Wodsetter or Annualrenter stands Inhibited at their instance and shall produce the said Inhibition duly Registrated at the time when he intimats that then the Renunciation or grant of Redemption though proceeding upon true payment shall not be sustained without Citing the Inhibiter There were no formal Inhibitions in the Civil Law but the Doctors speak of a prohibitio alienationis equivalent thereto Mâ—vius de Arrest c. 9. num 25. Arrestari possunt res moâ—iles immâ—bilium supervacanâ—um est arrestum cum loco moveri non possunt ejus tamen vice quoad illas obtinet prohibitio alienationis quae impetrari solet a judice quoties justus metus est ne alienando debitor deteriorem reddat petitoris causam essicitque ut non â—iat alienatio ipsius rei num 29. Judex ob aequitatem talem Inhibitionem decernere debet num 32. pro arresto habetur in immobilibus interdictio usus corum so that Interdictions and Inhibitions are a resemblance if not a species of Arrestments and I think with Maevius that the word comes from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 placitum incorruptum vel inviolatum because by all these remedies the obtainers rights are preserv'd inviolable Inhibitions have their Origine from the Canon Law whereby if the Secular Judge did interpose in any thing that was Ecclesiastick the Ecclesiastick Judge did Inhibite him to proceed And Inhibitions are mentioned cap. causam Ext. qui sil sint legit cap. tuam Ext. de ord cognit and with us they were first used in the matter of Teinds in the same sense but now the word is extended to Letters whereby the Judge inhibits debitors to sell in prejudice of Creditors The publication of Interdictions comes not from the Canon Law but from the French where it is necessary that they be published in Paraeciâ Mercatu as with us Vid. Argent tit des Mineurs Art 492. where he likewise determines that if a third party knew of the Interdiction either by being a Witness or by a privat Intimation made to himself that any right made to him would be null with us also the raising of an Inhibition upon a Bond of Interdiction was found equivalent to a publication the design of the Letters of Publication being only to put the Lieges in malâ side 10 November 1676. Stewart contra Hay of Gourdie where it was likewiâ—e found that the person Interdicted might after Interdiction sell his Land notwithstanding thereof to a third party if the Bargain was profitable and that without the consent of the Interdicters but in that case the Bond of Interdiction was many years kept up and the Inhibition thereupon was never execute till about the very time the communing begun for sale of the Interdicted persons Lands Observ. 3. That albeit all Inhibitions and Interdictions are to be Registrated by this Act within 40 days yet Inhibitions for Teinds need not to be Registrat for an Inhibitions for Teinds is but in effect a Summonds or Warrand discharging the Party to lead but not discharging third Parties to buy and so needs not be Registrated Obs. 4. That though by this Act they are to be null if they be not Registrat in the Sheriffs Register yet by 264 Act Par. 15 Ja. 6. It is sufficient to Registrat them in the Registers of Stewards or Lords of Regalitie within which they dwell and now they may be Registrat in the general Register at Edinburgh which is not here mention'd because it was not extant the time of this Act and Registration in the general Register at Edinburgh is allow'd by the 13 Act Par. 16. Ja 6. Observ. 5. Whereas this Act appoints them to be Registrat within 40 days after the publication it is doubted whether the day whereupon the Letters were execute or Registrat is to be numbered amongst the 40 days But by the late Decisions it is found sufficient that either of these days be free Nota Inhibitions prescrive from the last Execution but not from the date of the Registration for Actions might have been intented upon them before Registration 19 February 1680. Lutesoot contra Glencorse THis Act appointing such as are absent from the Convention of Burrows to be fyn'd and that upon their Acts the Lords of Session grant Letters of Horning c. is in observance except in so far as these Letters are ordain'd to pass at the instance of the Burgh of Edinburgh for by an unprinted Act of Parliament 1607. Execution is allow'd to pass at the instance of the Agent of the Burrows and the Letters are now still raised in his name This Act ordains the Burrows to be cited to their General Convention by a Missive Bill but this is now done by a Missive Letter in which the chief Articles on which they are to treat are exprest to the end they may consult on them with their Constituents and these are call'd the Heads of the Missive but this excludes them not from consulting on new Emergents which could not have been foreseen THat part of this Act which
are expresly annull'd by the 4 Act Sess. 1 Par. 1 Ch. 2. Observ. 2so That the punishment is not here exprest but in general under the pain of being holden as movers of Sedition and punished with all rigour nor is it more special in the foresaid 4 Act Ch. 2. which I admire but yet I think that such Bonds and Leagues are punishable by Death from the Words all rigour which may be very well extended to Death especially in subjecto capaci as Sedition is for certainly some Seditions may be punish'd with Death as we see in the first Act of this Parliament and by this same Act such Leagues are declar'd to be against all Law and Allegiance Likeas by the 7 Act Par. 1 Ch. 2. The Subjects are discharg'd to take or renew the Covenant which is a Bond or League upon their highest peril and I wish the Act had determined what was the highest peril for generally Lawyers do not extend such Statutes to Death I find that the Nobility and others having enter'd into Bonds amongst themselves whereupon His Majesty was surpriz'd at Ruthven there are several Acts of Council and particularly a Proclamation issu'd out in April 1582. discharging all such Bonds so enter'd into and that none enter into such Bonds for the future and that gave occasion to this Act which says that these Bonds have given occasion to a great part of the Troubles that have occurr'd since The Certification in that Proclamation is under the pain of being repute favourers and partakers with the Conspirators against His Highness Majesty The Act here related to is the 43 Act 6 Par. Queen Mary but that Act properly extends only to Bonds of Man-rent but not to Bonds of Combination as this does so that this Act should rather have been founded on the 30 Act 2 Par. Ja. 1. There is in that Proclamation and this Act exception made of Bonds enter'd into with the Kings consent which was added because the Nobility and Estates at the Kings desire entered in a League and Bond for preservation of Religion which is Registrat in the Council Book June 8 1585. But this Bond is subscribed by very few of every Estate BY this Act Charges super inquirendis are discharged but it is a mistake to think that by that Act the King or other Judges cannot examine men without a formal Process for the design of that Act is only to discharge the denuncing men Rebels upon such Charges without previous tryal and yet if the Chief Officers of State or at least four of them concur it would seem that by that Act even such Charges are yet lawful and where the King or Magistrat has previous informations of Crimes latent it were against the interest of the Common-wealth that they should not be allowed to clear these by particular Interrogators It was urg'd from this part of the Act that no man could legally be Imprisoned even by a warrand under the Kings own hand and that this was very just in it self since as Liberty is very precious and the best part of Property it was sit to secure it so as that none could take it away but these who will be answerable and the King could not in Law be made answerable and therefore it was justly by this Act appointed that no man could be imprisoned by any Letter even under the Kings own hand except it were subscrived by the Officers of State who should be answerable to which it was answered by His Majesties Advocat that this Act did not debar the King from granting such privat warrands under his own hand for there might be some cases which he could impart to none of his Officers of State as for instance if all his Officers were upon a plot against him or if the Crime were the being upon a Plot with a forraign State which the King were not yet in a condition to resent though he might justly apprehend his Subjects who were in accession to it but the design of this part of the Act was only to discharge the passing ordinary Letters in common course under the Signet except in this Method and it might be much rather retorted that since only Letters under the Signet are discharged to be past except in this method therefore privat warrands from the King himself are not discharged for if the King and Parliament had designed any such thing they would have expresly discharged all warrands under the Kings hand which is not done in this Act and it is clear by the 184 Act 13 Par. Ja. 6. That the King may give Warrands out of his own mouth to apprehend Rebels or others whom Magistrats are obliged to apprehend I find also that this Act was past formerly in the Privy Council the 23 of June this year 1585. and there the Act bears To have been made to prevent the obtaining of unformal Letters at the importunity and malice of privat persons which clearly evinces that it was not design'd to preclude the King from securing such persons who he had reason to believe were obnoxious to the Government It is observed in the Acts of Sederunt that the King 8 June 1581. by his Letter ordain'd several Advocats to be imprison'd indicta causa By the second part of this Act Writers to the Signet are ordain'd to keep the old Style unalter'd for Arguments brought from Style are a great part of our Fundamental Law and in all our Decisions Argumentum a Stylo is still very strong as from the wills of Inhibitions Interdictions from the Forms of the Chancery c. and yet in some cases this Argument is not concluding and thus Gifts of single Escheat bear all Moveables present and to come and yeâ— they give only right to what Moveables the Rebels have or shall possess within a year after rebellion and though by the Style of Gifts of Wards the relief is discharged yet that discharge will not be valid As also the Style of Inhibitions and Interdictions bears a prohibition to alienat either Heretage or Moveables and yet it extendeth only to Heretage Stilus Curiae is by Justinian call'd forma observantia whence comes our word Form of Process Stilus consuetudo fori vel judicii pro lege observari dâ—bet l. 1. § in honorar de var. extraord cog vid. Vâ—et de Stat. Sect. 3. c. 3. Observ. That though by this Act every Writer should write his name upon the back of the Signature which he writes which doubtless was introduced to the end that every Writer might be answerable for his errors in Style or otherwise yet if at the passing of the Signature in Exchequer the Writer subscribes his name the Signature will be sustain'd which was found necessary though it was alledg'd that this Act was in Desuetude as to this point for it was found not to be in Desuetude THis Act explains the 141 Act 8 Par. Ja. 6. and dispenses with a part of it and that is the Act to which this
quo casu either it must be said that albeit the Exchequer make him Tutor Dative yet he is not properly Tutor or Curator but only a Curator ad lites or else if he be once properly Tutor the next Agnat cannot thereafter serve himself nam Tutorem habenti Tutor non datur vid. observ on the 67 Act 8 Par. I. 3. IT is to be observ'd from this Act that Laws ought not to be extended ad praeterita but only ad futura and as the Act sayes most reasonably Subjects cannot observe what is not yet made and not only so but Argumento hujus Legis it may be concluded that Processes are to be decided according to the Laws that were made before the Process was intented though the Law be made before the Decision in the Process which is very observable a notable instance may be seen in Act 94. Par. 6. Ja. 6. where the Parliament makes an Act upon occasion of a Process depending before the Session to be a rule in like cases for the future but leaves the case depending to be decided as they think just Vid. Observ. on 10 Act P. 3 Ch. 2. IT is by this Act appointed that no Signatures or other Writs shall be prâ—sented to his Majesty but by his ordinary Officers to whose Office the same properly belongs And it appears by the Registers of Council that this Act was a part of the remedy of that complaint mentioned in the 13 Act of this Parliament Observ. 1. That by Officers here are mean't Officers of State for none else can present Signatures and though a General Major or a President be his Majesties Officers they cannot present Signatures and yet any Officer of State may present promiscuously any Signature though it would seem by these words By his Majesties ordinary Officers and to whose Office the same properly belongs that every Officer of State may not promiscuously offer but that the Thesaurer or Thesaurer-Depute can only present Papers relative to the Thesaury the Justice-Clerk to the Justice Court c. Observ. 2. That though any Officer of State may present Signatures yet by the 60 Act 1 Sess. 1 Par. Ch. 2. any Officer who presents such Papers is obliged to send the Registrat Docket to the Secretary to the end his Majesty be so informed as that he may not grant double Rights King James the sixth Parliament 11. BY this Act the King 's lawful Age is declared to be 21 years compleat which Act was made to prevent a debate that had fallen out in France a little before that time where the Parliament of Paris had declared that the French King was not Major till he had compleated the last year of his Minority whereas the Parliament of Rouen had declared him to be of lawful age when he had begun the last year of his Minority nam in favorabilibus annus inceptus habetur pro completo and though Minors may revocke deeds done at any time before the last moment of their Minority and that Minoritas computatur de momento in momentum yet it is advantagious for a King to enter upon the Government of his Kingdom as soon as can be And though this be the age for reducing of deeds done by them they have another Majority in relation to the Government for we find that Josias entered upon the Government at 8 years and Solomon at 11. Cicero Philip. 5. tells us that the Kings of Macedon entered very early and in Anno 1375. the Kings of France were declared to be Majors and capable of the Government at 14. but by the Commission of Regency set down in the Act 1. Par. 1. Ja. 6. The Regency is declared to continue till 17. at which time the King is to take upon him the Government but yet King James 6 took it upon him sooner nor do I find any particular time limiting the King as to this point and therefore there may be many doubts amongst us whether the King or the Governour should be obeyed betwixt the Kings ages of 14 and 21. but before 14 no Pupil is thought fit by Law for administration and it may be strongly urg'd that 17 is the Legal age for why was the Commissions insert it being only a temporary right and such use not to be insert amongst our Laws By our Law minority runs in all persons to the last moment of 21 years whereas by the Civil Law it runs till 25 years compleat and in this our King differs not from others but because by the 2 Act Par. 1 Ja. 2. Our Kings were declared to be in minority till 21 years therefore by the 87 Act Par. 10 Q. Mary 21 years of age compleat was declared to be the perfect age of our Queens and by this Act it is declar'd to be the perfect and lawful age of our Kings It were to be wished that for proving the age of all Minors there were authentick Registers appointed as in other Nations and in some parts of our own since for want of this true probation of their birth perisheth and false probation is adduced OBserv. 1. That by this Act the receipting persons of the Romish Religion is not simply made Criminal except they did reset them for three days together or at three several times knowing that they were such which may be urg'd in all cases of Intercommuning and resetting of Rebels and yet in other cases once and short Intercommuning is sufficient to infer a Crime Observ. 2. That by the 164 Act 13 Par. Ja. 6. The resetting excommunicat Papists or Traffecting Jesuits for three nights together or three nights at several times is made sufficient to infer that they knew they were such per presumptionem juris de jure nor could the knowledge of their being such be otherways proven and if it had been necessary to prove their knowledge the Law might have been easily eluded by industrious ignorance and by that Act likewise the third fault is declared punishable as â—reason and because the punishment was so great it was just the presumptions whereby it was to be infer'd should be strong THough by this Act only the Sellers and Dispersers of erroneous Books are to be punished at our Soveraign Lords will and such Books to be burnt yet by our practise the Bringers home of Crucifixes Popish-beads c. are to be used in the same way and though there is only warrand here given to a Minister and Magistrats of Burgh to seize and burn such Books yet Magistrats use frequently to seize without a Minister and Sheriffs and other Officers do likewise seize but since burning seems to be an extraordinary power and so not to be assum'd without a special Statute I think that no Officers save Magistrats of Burghs with the concourse of a Minister can burn· THe reason why Ministers Benefices under Prelacies are declared to be free of the first Fruits and fifth penny of their Benefices is because in time of Popery the first years
Fruits of every Benefice were due to the Pope and are call'd by the Canonists Annata against which several Councils have made large but ineffectual Representations and the fifth penny was payable to the King and though this Act discharges only the exaction of these in Benefices under Prelacies yet now even Prelacies are free from these exactions in Scotland though in England the first Fruits belong still to the King Though the Priests were free from Subsidies amongst the Aegyptians Genes 47. vers 22. and that l. placet C. de Sacr. Eccles. nihil extraordinarium abhinc superinductumve ab Ecclesia slagitetur Yet this was only as to Tiths and things meerly Spiritual but the Lands of the Church were lyable to Impositions laid on for the common Defence of the Countrey and therefore the Canonists ad c. 1. de immun Eccles. give as a Rule that in bonis Ecclesiasticis ut Cleriâ—â—s in patrimonialibus ut laicos tractandos and such was this fifth penny here mentioned and with us Ministers stipends but not Bishops Lands are now ordinarly freed from Impositions OBserv. 1. That though such as invade Ministers for the Causes therein exprimed viz. for seeking their Stipend or because the Minister inflicted Church-censures upon them or any other forged quarrel are to be punished with all rigour yet if they invade them upon any account that is not Ecclesiastick or premeditat as in an accidental scufle they are only in these cases punishable as for wrongs done to other Subjects Observ. 2. Since the Act appoints that they may be punished with all rigour and the tinsel of their Moveables It is clear that such Invaders may be punish'd likewise personally besides the Confiscation of their Moveables yet the words with all rigour should not be extended to death but by the 4 Act Sess. 2 Par. 2 Ch. 2. The assaulting the lives of Ministers or the robbing of their Houses is declar'd punishable by death and by the 5 Act 1 Sess. of the said 2 Par. The Parochioners are made lyable for the Outrages done to Ministers if the Actors cannot be got Observ. 3. From these words That they may be punished at the Instance of the Minister or any other that will pursue This Crime is made so far crimen publicum that it may be pursu'd per quemlibet ex populo though he be not otherways interested Observ. 4. That this Act being only against Invaders of Ministers it is extended to Invaders of Bishops and all such as have power to administer the Sacraments 7 Act Par. 1 Char. 1. In which Act there are many other Extensions of this Law THe Popish Clergy had right to Lands that were mortifi'd to or bought by them and to Teinds which belonged to them as Church-men The Teinds were call'd the Spirituality of their Benefices because they belonged to them as Church-men and the rest was all comprehended under the Designation of the Temporality of their Benefices and upon the abrogation of Popery the King did begin to erect some of the Temporality of their Benefices in Lordships which He Dispon'd to several Noblemen who were most active in the Reformation Or to these whom He resolv'd to oblige by their Interest to be active in it and these were called â—ords of Erection but thereafter the Parliament resolving to fix a constant Rent to our Kings thereby to preclude the necessity of Taxes and to ingage future Kings not to return to Popery they annext the Temporality of all the Church-lands and Benefices to the Crown by this Act. Observ. 1. The reason whereupon this Act is founded is that the former Kings having mortifi'd a great part of their Revenue to Church-men and having thereby impoverish'd themselves and their people it was therefore just that the ends for which these Mortifications were made being declar'd unlawful the Benefices should return by this reason such Mortifications as were made by privat Families should have returned to them whereas here all returns to the King But in Law these Religious Houses being demolish'd all ought to have fallen in to the King for qua nullius sunt ea sunt domini Regis and these were such for they belonged not to the old Proprietars since they were once Dispon'd nor to these Houses since they were extinguished and that being found a false Religion what belong'd to it did by the Law fall under Confiscation Observ. 2. Though all Benefices belonging to Arch-bishops or Bishops are by this Act annexed yet they are restored by the 2 Act Par. 18 Ja. 6. And though all Benefices belonging to Chapters are annexed yet these are restored by the 2 Act Par. 22 Ja. 6. Observ. 3. From these words in the Clause of Annexation viz. All and sundry Common-lands bruiked by Chapters of Cathedral Kirks or whereof they have been in possession as Commonty That Possession in Church-lands is very often repute a sufficient Right and to be loco tituli For understanding whereof it is fit to know that both before and after the Reformation a Churh-man being in possession by the space of seven years though without a Title has the benefit of a possessory Judgement so that his Right cannot be quarrelled without Reduction nor needs he produce a Title as Laicks are oblig'd to do in possessory judgements July 18. 1671. Earl of Hume contra the Laird of Rislaw And if he be thirteen years in possession that possession is to him in place of a Title for by a rule of the Chancery as we believe docennalis triennalis possessio habetur protitulo though I find no such Rule in the Roman Chancery but yet these thirteen years induce only a presumptive Title which does not exclude the true Proprietar if he can instruct that the Benefic'd person possessed either by a redeemable Right and produce the Reversion as was found in the case of Francis Kinloch contra the Bishop of Dumblane July 11 1676. Or by a precarious Right as was found in the case of a Minister who had casten Peits for thirteen years by tolerance from the Heretor and though there be no difficulty where the Right mortifi'd does expresly bear that it is Redeemable or Precarious yet in absolute Rights there is greater doubt whether after thirteen years they can be qualifi'd by correspective Obligations The reason of this priviledge given to Church men is that they being imploy'd in Divine Matters are ignorant and careless of their Right especially since their Rights are not to descend to their own Heirs It is fit here to take notice that by a vulgar error triennalis possessio was thought to give the benefit of a possessory judgement 12 March 1629. Marshal contra the Laird of Drumkilbo and decennalis of a petitory and thus did they interpret the former rule At the Reformation also the Popish Clergy did either send their foundations to Rome or did by collusion with the Laicks interested or in hatred of the Reformed Clergy destroy their Rights and therefore by
our Laicks with the consent of our Kings did think they could bestow the Teinds belonging to these Kirks whereof they were Patrons upon Religious Houses whereof I have seen very many Instances in our old Charters one whereof I shall set down for an Example Alexander Dei gratia Rex Scotorum c. Sciant tam posteri quam praesentes nos concessisse c. Deo Ecclesiae sanctae Mariae de Dryburgh Ecclesiam de Lanarch now Lanerk cum terris decimis omnibus rebus juste ad illam pertinentibus Item How the other Church-lands became first to belong to Monastries I shall God-willing clear in an express Treatise concerning Kirk-lands and Teinds THis Act is Explain'd in the former Revocations only here the Fees and Pensions granted to the Officers of the Crown are excepted from this Revocation and the Officers of the Crown are declar'd to be the Thesaurer Secretary the Collector which Office is since joyn'd to the Thesaurer the Justice that is to say the Justice-General Justice-Clerk Advocat Master of Requests Clerk of Register and the Director of the Chancellary the Director of the Rols is but his Deput The Order wherein they are set down makes the Advocat to preceed the Register and though the Justice Clerk be named before the Advocat yet that is only because in all this enumeration these of one Court are still set together and therefore the Justice Justice Clerk and their Deputs are still set together but it would appear that the Justice-General should by this preceed both the Register and Advocat But by Ch. 1. His Revocation which is the 9 Act of his first Parliament the Register and Advocat are rank'd before the Justice and Justice-Clerk posteriora derogant prioribus Nota The Privy-Seal and Thesaurer-Deput are not here marked though they be both Officers of the Crown The Precedency amongst the present Officers of State was by Act of Council February 20. 1623. thus determined Lord Chancellor Lord Thesaurer Lord Privy-Seal Lord Secretary Lord Register Lord Advocat Lord Justice-Clerk Lord Thesaurer-Deput by Act of Parliament 1661. the President of Session was then and not till then ordain'd to preceed the Register Advocat and Thesaurer-Deput and the Register and Advocat then were ordain'd to preceed the Thesaurer-Deput By this Act of Revocation all the Exceptions in any former Acts are likewise Revocked but under this part of the Revocation do not fall the Exceptions in the former Act of Annexation for King James was then major and though he had not been major yet these Exceptions being made by a publick Law it may be said that publick Laws cannot be taken away by a Revocation for the Revocation is but a privat Act of the Kings whereby His Majesty secures Himself against privat Deeds done by Himself in His Minority but not against what He consented to as publick Laws By the last Clause of this Act it is provided that his Majesty shall not be prejudged by suffering any party to possess any Lands or others fallen under the Revocation but that his Majesty may put his hand thereto at any time but any obstacle by the first part of which Clause it is not meant that prescription shall not be valid against the King but only that the possessors shall not have the benefit of a possessory judgement and by the last Clause it appears that our King 's having revock'd they needed not intent Reductions ex capite minoritatis but may brevi manu intromet with what falls under Revocation even as they may do in their annex't property for this same Clause is like to that contain'd in the Annexation Ja. 2. Par. 11. Cap. 41. and which is repeated in all the other Acts of Annexation See Observ. upon that Act but it is more reasonable to think that the King needs no Reduction because he must prove Lesion in case of Reductions ex capite minoritatis but the King needs prove nothing in the case of Annexation yet our King is still in use to pursue Reductions and not summarly to dispossess these who have right WHilst our Parliaments grew very factious in the time of Q. Mary the Popish and Protestant Party contending who should prevail in Parliament the Popish Clergy who were very numerous in Parliament since all the Bishops and Miter'd Abbots did sit there as Church-men each of them who had Lands and Heretage craved two Votes one as Church-men and another as Barons To prevent which for the future this Act was made discharging any of the three Estates to take upon him the Office of all the three Estates or any two of them but the following words are not so clear viz. That every man shall only occupy the place of that self same estate wherein he lives and of which he takes the style which was designed to keep Barons who could not get themselves chosen to represent their Shires from being chosen as Burgesses of Parliament though they were Provosts or Magistrats as they then ordinarily were and by it also a Burgess who is ordinarily so design'd may be debarr'd from being chosen as a Baron of a Shire This Act was long in Desuetude but of late by Acts of Burrows all Burgesses are discharged from electing Gentlemen to represent them in Parliament under the pains specified in these Acts for they found that Gentlemen did not adhere to nor understand the true interest of Burghs and the King found that none desired to be so elected except such as had private designs albeit upon the other hand it is represented that this is the way for Burgesses to have their interest maintain'd by Lawyers or able States-men either of which they may choose and the people of England who are very jealous of their priviledges do choose such by which likewayes their Parliament is so considerable and their Laws are made by so judicious Lawyers But by an Act of the 3 Par. Ch. 2. it is determin'd that only actual Trading Merchants can represent Burghs-Royal in Parliament and that Act was founded upon an express Decision of the Session THe unlaws for absents from Parliaments here set down are 300 pounds for every Earl 200 pounds for every Lord 100 pounds for every Prelat and 100 Merks for every Burgh but there is no penalty appointed for Barons and I think that they are comprehended under the word Lords for the Lords and Barons make but one State of Parliament and Laird is but a corruption of the word Lord of old 10 pounds only was the unlaw or amerciament as is to be seen by the Preface of all the Acts of Parliament which bears ordinarly these words alii vero quasi per contumaciam se absentaverunt quorum nomina patent in rotulis sectarum quorum quisque adjudicabitur in amerciamento decem librarum THis Act appointing every State of Parliament to have three Apparels conform to a pattern to be made was not made that every man might have three several Habits
but to the end each distinct Estate might have a special Habit and yet Barons nor Burgesses have as yet no distinct Habit for Parliament FOr understanding this Act appointing the number of the Lords of Articles in every State to be equal and that the most shall not exceed ten nor the least be fewer nor six it is fit to know that by the 1 Act 3 Sess. Par. 1. Ch. 2. The Lords of the Articles are ordained to be elected and constitute in manner following viz. the Clergy choose 8 of the Nobility the Nobility 8 of the Clergy and these sixteen so elected or such of them as are present do choose 8 Barons and 8 Burgesses to whom are added the Officers of Estate and the Chancellor Presides And the Articles being so constitute do prepare Laws Acts and Overtures and orders all things remitted to them by the Parliament BY the 135 Act Par. 7. Ja. 6. no Advocat could plead in Reductions of Forfaulters without a licence which is abrogated by this Act but because this Act gave leave only to persons accused before the Parliament to have Advocats without licence therefore by the 90 Act of this Parliament Advocats are ordained to plead in all Criminal Cases and they do so upon Supplications This craving a Licence was founded upon 98 Act 14 Par. Ja. 3· vid. crim observ tit Advocats THis Act is fully cleared crim observ Tit. Jurisdiction of the Parliament IN this Act the King promises to do nothing that may prejudge the liberty of Voting and reasoning but yet if any person should offer to argue what is down-right Treason this Act would not defend him for by voting and reasoning jointly may be inferred that that reasoning is only allowed which relates to a stated case and to be put to the Vote and nothing that is treasonable will be allowed to be stated in order to a Vote THis Act discharging all contention for priority of place relates only to Parliament and the disturbance thereof but by a Decreet of Ranking in anno 1606. his Majesty having ranked the Nobility has commanded them to observe the Precedency there assigned in all places and that under the pain of being punishable as contemners of his Authority THough by this Act all actions of molestations are ordained to be pursued before inferiour Judges as being naturally but actions for cognoscing of Marches where the controversie being facti can best be understood upon the place yet now such actions are ordinarlie pursued before the Lords because there is a Declarator joyned with the molestation for the Pursuer Libels that though such Lands be his Property yet he is molested in the possession thereof and the reason of this Invasion is because Declarators of Property as all other actions concerning double Rights can only be pursued before the Lords of Session The form prescribed to molestations by this Act is that the Lords shall direct Letters to the inferiour Judges upon 15 dayes warning who shall continue their Courts from 8 dayes to 8 dayes and these inferiour Judges having discust the points of Law they shall choose an Assize the most part whereof shall have 4 Ploughs of Land or 300 Merks of yearly Rent in the same or Neighbouring Parochs if there be mutual pursuits the Judge shall discuss both together and choose an Assize out of the Assizes cited by either party equally and the Odd-man to be choos'd by Cavil if the Judge ordinar be suspect the Lords shall grant Commission by their own Act or by a Commission under the testimony of the Great Seal to unsuspect Judges This form is still almost in observance only the Lords in dubious cases grant Advocations to themselves where the Judge is suspect and after the Cause is debated the Lords ordain the Ground to be visited by some of their own number or grant Commissions to others if the Lands ly very remote but these Commissions under the testimony of the Great Seal are absolutely in Desuetude If the most part of the Inquest be not clear the Lords find that in that case the Cause should be Advocat to them as the Supream Court and they will judge according to the probation already taken or will grant warrand to cite new Witnesses as they did 21 July 1675. Walstoun contra Cheislie Though this Act appoints the Inquest to be chosen of Landed-men having 4 Ploughs or 300 Merks and that in or near the Paroch where the contraverted Land lies yet the verdict will be sustained though they have not so much and though they dwell not in that Paroch albeit there be such in the Paroch This was formerly appointed §· 14. c. 74. lib. 2. R. M. where such cognitions are appointed to be per fideles homines de viceneto And Skeen there observes that Perambulations differ from Molestations in that Perambulations are petitory Judgements and concern Property but Molestations are only possessory Judgements though both tend to the tryal of Marches Nota That by the last Clause of this Act the Members of the Colledge of Justice are exeemed from Tryal before Inferiour Courts which was formerly granted in Removings p. 6. c. 39. Queen M. and is here extended to all Causes according to old accustomed use and though it was alleadg'd that thir last words were restrictive and so the Members of the Colledge of Justice could not Advocat their Causes from Inferiour Courts except in such Cases only as they could prove old use and wont yet these words are found Exegetick and to be equivalent as if the Act had said because of old accustomed use granting them that priviledge and this was very reasonable for since they are oblig'd to attend the Lords and their Clients the Citing them before Inferiour Courts had been inconsistent with both The Action of Molestation is the same with us that finium regundorum was by the Civil Law and what can stop Perambulations in our Law are set down Statut. David 2. cap. 20. where amongst other things it is observ'd that a Minor is not oblig'd to Defend in Perambulations and this is the only place in our written Law where that old Maxime is to be found minor non tenetur placitare de hareditate paternâ and yet it seems that a Molestation being declar'd by this Act to be judicium possessorium a Minor should be oblig'd to Defend in this as he is in all other possessory Judgements but the reason of this Exception in Molestations seems to be because ordinarly Molestations resolve in Declarators of property or are joyn'd with them BY this Act the Defender is indefinitly to pay the Expence of the Obtainer of the Decreet at the modification of the Judge vid. Act 110 Par. 7. Ja. 5. But though this Act be general yet statutum quod disponit simpliciter ut victus victori in expensas sit condemnandus hunc sensum admittit si non habuerit justam litigandi causam hic quippe sensus juri communi est
in other cases where there is no Statute it would seem that Rights granted to a man should regularly extend to his Heirs arg hujus legis Observ. 1. Though this Act mention only Rentals set by the King yet the Rentals set by Subjects are not extended to Heirs except Heirs be therein-mentioned and though a Rental mention Heirs indefinitly yet it will only extend to the first Heir and will neither be accounted null for want of an Ish nor be extended to all Heirs for then it would be equivalent to an Heretable Right THis Act Discharges the Disponing of the Kings Casualties in great as the Casualties of a whole Countrey which is most reasonable and therefore all Gifts of Regalities may be quarrell'd as null because in them all the Escheats are Dispon'd and though this Act Discharges the giving away of Casualties arising from any one Crime yet this Objection was Repelled against the Gift of Usury in which were given away all the profits arising to the King by Usury ALL pecunial pains are ordain'd to be taken up according to the rate the Money gave when the Fine was impos'd or else the Fine is to be augmented according to the augmentation of the Money and this Act was reasonable because it was not just that Delinquents should get advantage by not payment and it was necessary because without this Act Fines as all other Debts might be pay'd according to the current Money at the time the same fell due THe pain of negligent Sheriff-Clerks is tinsel of their Moveables and the principal Sheriffs are to pay 100 pounds for them besides the damnages of parties Observ. 1. That in the time of this Act Sheriffs had the nomination of their own Clerks but now since the Sheriff-Clerks are nominated by and depend upon the Secretary it is not just that the Sheriff should be Fineable for the fault of the Clerk Observ. 2. That though by this Act the Sheriff-Clerk is oblig'd to send an Inventar of all the Registrat Hornings yearly to the Thesaurer yet this is in Desuetude THis Act is in Desuetude as to the price to be taken by Messengers but they still find Caution to the Lyon at their admission de fideli administratione RElief is a Duty due by the Vassal to the Superiour at his Entry for relieving his Fee out of the Superiours hands By this Act it is appointed that when this Casualty arises to the King it may not be compounded for but that all that is due be taken and the true avail is a years Retour-duty in Ward-lands and the double of the Feu-duty in Feu-lands Hope tells us that though a Gift of Non-entry contain the Relief yet the Donatar will not have Right thereto because such is the Custom of Exchequer as he says But I think that the true reason is because this Act Discharges this Casualty to be gifted When ere the Vassal takes out a Precept from the Exchequer for Infesting himself he is lyable for the Relief and the Sheriff may be Charg'd therefore conform to the Responde Book or the party may be Summarly Charg'd for it by this Act and the ground may be also poynded for it as deâ—itum fundi when a party gets a Precept the Servants of the Chancery write down respondebit Vicecomes de c or Respondebit any Judge to whom the Precept is direct and that is call'd the Responde here mention'd by which Responde-book the Sheriffs and their Deputes are Charg'd yearly in Exchequer BY this Act the Sheriff did count for all Escheats yearly for then he might have intrometted summarly and had Letters of Introâ—ission but now he is not countable nor oblig'd to intromet but the Escheats are gifted to Donatars BY this Act all Commissions for judging Crimes are ordain'd to pass the Quarter-Seal but now Commissions are granted by the Council without any Seal and though this Act Discharges justly the granting Commissions for judging Slaughter ordaining that Crime to be Judg'd only by the Justices yet now the Council uses to grant Commissions even for Judging Slaughter Murder Witchcraft and all such Crimes But though the Council may grant such Commissions for Judging these Crimes when they fall in under general Commissions that are granted by the Council yet I see not how they can grant Commissions contrary to this Act for Judging Slaughter in special Observ. 2. That all Commissions of the Justiciary should be under the Quarter-seal to the end as this Act of Parliament observes there may be a Responde made thereupon and yet the Council now uses to grant Commissions which have no other warrand but a Paper subscriv'd by themselves and not by way of Signature as is here ordain'd and the great fault that is committed in granting these Commissions is that the Process is never ordain'd to be returned to the Justice-Clerk to the end that both it may be known whether the Processes be legal and that it may be known what is due to the King for which the Responde mentioned in this Act was to be made vid. observ on 126 Act Par. 12 Ja. 6. Observ. 3. From these words of the Act That no Commission be granted to proceed in Slaughter but that the Justice-general and his Deputs proceed thereupon It uses to be urged that a Council of War cannot be a sufficient Warrand for Souldiers to Judge Murders and other Crimes committed by any of their Number against Countrey-men these not being Military Crimes but being Crimes that should be tryed by our fundamental Law in the Justice-Court where the people have a double security both by Learn'd Judges and an Inquest of Neighbours and a Kings Advocat to be careful of the probation and it may as well be pretended that they may Judge their own Souldiers in civil Cases and that they may judge a Countrey man when he kills a Souldier Vid. Crim. pract Tit. Jurisdiction of Justices over Souldiers and the Council ordain'd Burr a Drummer to be delivered up to the Justice Court for killing a Woman though he had suffered two Councils of War November 3. 1681. But to clear this the King by His Letter to the Council has declar'd that Souldiers are only to be be Try'd for Military Crimes by a Counsel of War and that for ordinary Crimes they shall be judg'd by the Justices c. AS parties may pursue Crimes without concourse of the Kings Advocat so by this Act the King may pursue without an Informer ad vindictam publicam THis Act ordains that no Rests be allow'd to the Thesaurer exceeding 20000 pounds a year but that he shall compt for what is above this sum so that he may do Diligence therefore as accords but this is not observ'd The second part of this Act ordains that the King be not prejudg'd by general Ratifications in Parliament for though Ratifications cannot prejudge third parties yet they might have prejudg'd the King who past them if His Majesties Interest
such as are in Prison there needs no Solemnâ—y and yet for the more security Inditements of Treason are also executed against Prisoners by a Herauld That part of the Act which relates to the Deprivation of Messengers is formerly Explain'd Act 46 Par. 11 Ja. 6. Only it may be observ'd that though the Lyon by this Act is ordain'd to deprive Messengers by advice of the Lords of Session yet he uses to Deprive them by his own Authority and in his own Court and though he publishes the Deprivation at the Mâ—reat Cross yet Executions after that Publication have been sustain'd if the Messenger after that Publication was habite and repute a Messenger November 10. 1676. Stenart contra Hay And though it may be alleadged that this Publication should put the Lieges in mala side as well as the Publication of Interdictions and Inhibitions yet the answer is that there are publick Registers in these cases which may inform these who are to Transact which cannot clear them as to the Deprivation of Messengers THough this Act appoints that the Justice-Clerk or his Deputs shall within six days after Criminal Letters are returned deliver the names of the persons Denunced with a brief Note of the cause of their Denunciation to the Thesaurer as also the Names of such as are Unlawed for absence from Assizes yet this is not now in observance all that is observed now being only that upon a Command from the Thesaury these Lists are given in so that this Act is rather forgot than in Desuetude By the last part of this Act all Commissions of Justiciary for longer space than the particular affair for which it is granted are Discharged and therefore by this Act it would appear that Commissions for Justiciary granted for a year or any definite time and not for a particular Business are null It is likewise appointed by this Clause that such as procure Commissions of Justiciary shall find Caution to Re-produce the Process and to pay that part of the Commodity which by the Commission is destinated for the Kings use which is most rational because this would likewise oblige these who get the Commission to do Justice knowing that the Process may be revis'd when it is lying in publica custodia that is to say in the Books of Adjournal for such Processes ought to be brought back and are usually Registrated there but this is oftimes neglected and it was Debated in the Case Turnbul against the Lord Cranstoun July 1678. That the Tenor of a Decreet of Forfalture pronunced upon a Commission granted to the Earl of Dumbar could not be proven except the Process were produced whereupon it proceeded conform to this Act since all that the Witnesses could prove was that they had seen such a Decreet which is not sufficient for else an unjust Decreet of Forefalture might be pronunced and lost to the end the Tenor thereof might be proven without any possibility of quarrelling the VVarrands whereupon it proceeded It may be doubted what is meant by that part of the Commodity which belongs to the King and I conceive that when such Commissions of Justiciary are granted the whole Escheat belongs to the King and the Commissioners have only Right to their necessary Expence tanquam mandatarii except a particular Quota be condescended on in their Commission though some are of opinion that these Commissioners have right to the same Quota's that Sheriffs have since they are Sheriffs in that part BY this Act the Comptrollers consent is requisit in all Infeftments of Feu-ferm or Confirmations of the Kings proper Lands and though there be no Comptroller now yet the consent of the Commissioners of the Thesaury or Thesaurer if he were supplies the same Hence it is that this Act appoints all Feu-ferms and Confirmations to pass the Comptrollers Register which is likewise Ratifi'd by the 171 Act 13 Par. Ja. 6. It is sit to know that the Thesaurer and Comptroller had different Registers but now there is but one Clerk to all the Exchequer who is called the Thesaurers Clerk and he keeps but one Register each Volumn whereof is divided in two parts the one whereof contains only Gifts that pass the Exchequer and the other all other Signatures of Confirmation c. BEasts found in His Majesties Forrests or Parks may be brevi manu intrometted with Vid. Act 12 Par. 4 Ja. 5. But since Forrests are not now Fenc'd it seems unreasonable that a Beast straying should be Escheated though where Beasts are designedly driven into a Forrest it deserves punishment and this Act seems only to speak of Fenced Forrests for it says Parks or Forrests and it requires advertisement before Beasts even found in these can be Escheat Vid. Argent Tit. des Assize where this matter is fully Treated ALL English Goods may be searched for and if they be not Sealed by the Customers may be Confiscated which Act being put in practice at Edinburgh in anno 1664. occasioned a great Tumult and the Act was alleadged to be in Desuetude The word Selling in this Act is wrong Printed in the last Impression for it should be Sealing Nota This Act Ratifies only an Act of Privy Council which ordained formerly Confiscation and this shews how great the Kings power was of old in the matter of Trade Vide Act 24 Par. 16 Ja. 6. which renews again this Act. VId. last Act 1 Par. Ch. 1. THis Act is Temporary but from it it is observable that as the King may as Superiour call for production of any Vassals Rights and Infeftments in a Reduction or Improbation and even by way of Exhibition which is conform to the Feudal Law and to c. 24. Quon Attach so the King may by Act of Parliament sometime call for production of all the Rights of His Vassals of Kirk-lands together as in this Act or of all the Rights of any particular place as of the Isles Act 262 P. 15 I. 6. And I think the King might have call'd for them without this Act by Proclamation and albeit it be said c. 25. Quon Attach That the Vassal shall only be oblig'd to shew his Evidents once in his Life to the King this is not now observ'd and the true meaning of it is only design'd against too frequent troubling of the Liedges which as no Calumniousness is never to be presumed in the King or His Officers THis Act appoints Lords of the Session not to be admitted till they be twenty five years of age which agrees with the Law of France Langlei Semâ—str c. 10. and with that of Venice Contar. L. 3. c. 3. Whereas of old the Romans admitted no Senators till thirty five which Augustus retrenched till thirty Sweton c. 32. Vid. 93. Act Par. 6 Ja. 6. But that part of the Act appointing that none shall be admitted Lords but such as have a thousand Merks of Rent or twenty Chalders of Victual is not now strictly observ'd though this was an Act
to the sum specifi'd for an Earl or for a Feuar and it was found that Caution should be found for five hundred merks only according to the condition of the Defender Observ. 2. The quality of a Burges is not here specifi'd and if he hold Land Burgage he is de praxi considered as a Free holder else he is considered as an Un-landed Gentleman and if he holds feu of the Burgh he is considered as a Feuar Observ. 3. The Unlaw of such as compear not at the first Justice air is to be twenty pounds that is to say the Master who presents not his Tennents is to pay twenty pounds over and above all other punishments which is relative to the 6 Act 5 Par. Ja. 6. and is there Explain'd Vid. supra obs on Ja. 1 Par. 11 Act 129. Ja. 3 Par. 1 Act 5. Ja. 4 Par. 3 Act 27. THis Act annexing all annualrents payable to Prelacies to the Crown is abrogated in so far as concerns Bishops by the Act restoring Bishops in anno 1606. NOta That such Customers and Searchers as cheat the Customs are only punishable by Deprivation and escheat of their Moveables and therefore it seems that they are mistaken who think that such may be punished by Death this being an extraordinary Theft both as to the value the preparative and the ordinary punishment not excluded It may be likewise doubted whether such as enter in Compacts with Customers and Searchers to defraud the Customs may be punished by the same punishment because they are art and part REmissions are notwithstanding of this Act past without previous Letters of Slayns or consents from the parties but the party may get an assythment albeit the Remission be past all Remissions are at present Registrated in the Thesaurers Register conform to this Act and in the Secretaries Register also as all Papers are that pass His Majesties Hand THough this includes the Members of the Colledge of Justice in the priviledges granted to the Colledge of Justice with the Senators yet of late by the 8 Act 2 Sess. 2 Par. Ch. 2. Freedom from Impositions is renew'd to the Senators only vid. obs on that Act where it is Debated that though Advocats be not there mention'd yet they are not thereby excluded IT would seem by the Narrative of this Act that all Patronages Gifted after this Act should be discharged and yet the Act discharges only such as are granted without the consent of the Benefic'd persons nor can I see how these Patronages should have been declar'd null for want of the Benefic'd persons consent since the Benefiâ—'d person being once provided the Kings Disponing the Right of Patronage could not prejudge them who were already entered though the Act says That these Rights were granted to the great hazard of the persons provided for they being once entered no posterior Right could prejudge them and Declarators upon prior Rights might have prejudg'd them however but it seems that the reason why the consent of the living Incumbent is requisite is because it is presumable that he would and could inform truly to whom the Patronage belong'd and in all Church Benefices when Dispon'd either the Demission Resignation or consent of Church-men has been thought requisite The Statutory part of this Act was wrong Printed in Skeens Impression for whereas it sayes That all such Rights where the Beneficod person was alive and their consent had and obtained thereto shall be null It should have said Not had and obtained thereto but this is helped in the last Impression VId. Crim. Pract. Tit. Murder But it is fit to add that this Act ordaining such as strick or hurt a man within the Kings Palace to be punished with Death is consonant to praetor cum l. sequen ff de injuriis vide etiam l. 23. § 2. ad leg juliam de adulteriis and to the Law of Nations Fritz de palatiis principum cap. 12. Where he cites as the Law of Scotland cap. 6. Stat. Will. By which he who draws a Knife in the Kings Court is to be struck through the Hand and he that draws Blood is to lose the Hand and he that kills any man is to pay twenty nine Cows to the King and to assyth the party which certainly is meant of a Slaughter committed where the Killer should not die as in accidental Slaughters or Slaughter committed in self-defence for otherwise that Statute had been ridiculous as it is now obsolet and innovated by this Act of Parliament and yet I think that even by this Act of Parliament he who stricks any man in self-defence would not die and if the King be absent some think that Statuts punishing Offenders within the Palace extend not to such cases as Placa l. 1. â—pit delict cap. 8. Though Menochius does extend those Statutes even to that case but to prevent this Debate this Act 173 bears expresly The King's Palace where His Highness makes His Residence for the time and it expresses the Inner-gate to cut off the ordinary Debates de consiniis palatii Though this Crime may be pursu'd Criminally yet the Lords may take a Precognition of it to the end it may be known how far they will remit the same to be punished by the Criminal Judges in so far as concerns the stricking any man in their presence as in Sir John Hay's ease and Sibbalds VId. Crim Pract. Tit. Remissions Vid. supra observ on Act 74 Par. 14 Ja. 2. IT would seem by the Narrative that only such Writs as were not Written by Notars and common Clerks who are notourly known should have been declar'd null for want of the Writers Name and yet the Statutory part declares all Writs to be null without exception which want the Writers Name Observ. 1. This Act is not by the Lords found to annul Seasines and other Acts of Office Written by Common-clerks and Notars though the Writers Name be not design'd in them but only Writs amongst privat parties June 6. 1634. Observ. 2. That though the Writers Name be not condescended on yet the Lords will allow the User of the Writ to condescend who was the Writer and though this Act of Parliament appoints that before the inserting of the Witnesses yet if it be insert in any place it is sufficient and though the Act appoints that it shall condescend upon the VVriters Name particular remaining place and Diocy yet Diocies are now only condescended on in Instruments of Notars but still there must be some Designation beside the Name and Sir-name such as A. B. Servitor to such a man which is sufficient and if there be moe of one Sir-name who where Servitors at that time yet is not the User of the VVrit oblig'd to condescend which of the Servants it was but he who offers to improve the said VVrit must relevantly alleadge that of the Date of that Bond he whose Servant the VVriter is Design'd to be had no Servant at that time who
both as to time and sums and therefore though by the 36 Act Par. 3 Ja. 4. Tacks of the Rents of Burghs be declar'd null if set for longer space than three years yet by the same reason they should be sustained if restricted to three years THese Acts are Explain'd in the 36 Act 2 Par. Ja. 6. THe design of this Act has been as I conceive to secure such as had intrometted with the Kings annex'd Property summarly by vertue of the 41 Act 11 Par. Ja. 2. Because it is probable the Warrand granted by that Act was thought dubious and somewhat severe in the Analogy of Law vid. observ upon that Act. A Provost is in our Law no Prelat and therefore Tacks sett by him are null without consent of the Patron Hope Tit. Kirks THis Dissolution of the Kings annex'd Property has several specialities in it as that it shall not extend to the setting in Feu-ferm of Castles Forrests Coal-heughs and Offices c. But that these shall remain inseparably annex'd to the Crown and from this it may be observ'd that to this day all Castles Palaces Woods Parks Forrests Pastures Coal-heughs and Offices are to remain inseparably with the Crown and therefore except they be expresly dissolved they fall not under Dissolution This part of the Act is renewed by the 235 Act 15 Par. Ja. 6. This Dissolution is likewise only in favours of kindly Tennents and ancient Possessors and of such as should pay their Composition betwixt and the first of August 1595. THis Act is Explain'd Crim. Pract. Tit. Injuries num 6. BY this Act the Duty granted by the States to the King upon Wines is to be charg'd for by Letters of Horning and I find by Act of Council February 21. 1581. That a Commission is granted to the Kings Master-housholds to break up the Doors of such Merchants as refus'd to let the Kings Servants Taste their Wines to the end they might chuse the best for the Kings own use but this certainly presupposed that the King would pay for the Wines FRom this and many other Acts it is observable that the Parliament may and does by a general Law annul Rights granted to privat persons without calling them and without the hazard of the Act salvo though any one privat mans Right cannot be declar'd null by the Parliament without citing him BY this excellent Act a Horning or Escheat following thereupon cannot be taken away and declar'd null upon acquittances and Discharges which were alleadg'd to be prior to the Horning so that the Escheat could not fall the Debt being pay'd except the producer of the Discharge make Faith that it is of a true Date because such Discharges with ante Dates use to be granted by the Creditor when himself is paid It has been doubted whether Assigneys be bound to swear in this case but since this is factum alienum which they are not oblig'd to know and if this be necessary the Cedent by refusing to swear may destroy the Assigney but yet the Act of Parliament obliges indefinitly the producer of the Discharge to swear and so it seems whether he be Cedent or Assigney he is still bound since his Oath is solemnly requir'd by Act of Parliament Quaeritur whether it can be remitted to Quakers Anabaptists c. who think swearing unlawful THis Act giving many priviledges to the Kings Forrests seems not communicable to all Forrests though it be pretended that all Forrests are the Kings Forrests it having been very ordinary to erect Forrests in privat mens Lands in imitation of the Kings Forrests but because these Erections of Forrests were very prejudicial to Neighbours since they might fine their Neighbours and poind their Beasts therefore the Lords of the Session did in July 1680. give their opinion to the Lords of Exchequer that all such new Erections should be stopt and it appears to me very clearly that all Forrests are not the Kings Forrests by comparing cap. 17. leges forrestarum which Treats of Crimes committed in the Kings Forrest with cap. 21. which Treats of the Delicts committed in the Forrests of Barons and wherein they are Infeft cum libera forresta Observ. 2. That that part of the Act which ordains all that Hunt within six miles to His Majesties Castles VVoods Parks or Palaces to be fin'd in an hundred pounds is in Desuetude and it seems then only to be observ'd when the King Himself Dwells in his Castles and uses actually to Hunt in His VVoods or Forrests this Act bearing To be made for His own Royal Pastime or at least this priviledge should not be continued to Castles or Forrests which the King has Dispon'd to privat Subjects VId. observ on the 13 Act Par. 3 Ch. 2. THough this Act say That the Lords of Session were not oblig'd to sit down till nine a Clock yet it appears clearly that they were oblig'd to sit down at eight by the 49 Act 5 Par. Ja. 5. IT is observable from this excellent Act that where Evidents are not thought necessary to be kept there is no reason to grant Certification against them after many years and therefore the Lords refuse oft times to grant Certification against the Grounds and VVarrands of Appryzings such as Executions though they cannot be produc'd after twenty or thirty years ex paritate rationis though the Act secures only against the not producing of Procuratories and Instruments of Resignation and Precepts of Seasâ—nes and July 1680. Strowan contra Earl of Athol This Act was extended to secure against the production of the Decreet of Compryzing and Decreet whereupon it was led albeit this extension seems dangerous since thereby great Estates may be carryed away by null Compryzings and small Debts which might be satisfi'd by less than a years intromission whereas none or small prejudice can be infer'd from not producing Instruments of Resignations c. It is observable that this priviledge 〈◊〉 â—ot being oblig'd to produce such Papers is only allow'd to such as are and were in Possession for fourty years There is likewise in this Act a presumptio juris founded that these from whom Lands are Appryz'd will industriously abstract their Evidents and therefore the Lords use to be very favourable in granting Certification against Compryzers THe Act salvo jure is still subjoyn'd to Parliaments except here where it is insert in the midst of the Acts of this Parliament BY this Act Lords of the Session Advocats Clerks Writers and their Servants nor no other Member of the Colledge of Justice nor no Judges Clerks c. of inferiour Courts may take Assignations to Pleys which is conform to the Civil Law lib. 2. cod tit 14. ne liceat potentioribus patrocinium litigantibus praestare vel actiones in se transferre Nota The Right taken by them is not declar'd null but themselves only punishable and the reason seems to be because when they are depriv'd from being
Action against others of the same Manufactory for resetting their Servant who had run away from them and to whom they had learn'd their Trade and yet I have seen action granted in the Council against Heretors who had entized away other mens Fishers and the parity of Reason seems to reach to such as work in Lead-mines This condition of CoalÈiars and Salters by our Law makes them to be like to the addicti glebae adscriptitii mentioned in the Common Law THis Act is Explain'd formerly in the 72 Act Par. 14 Ja. 2. BY this Act men are Discharg'd to lay Lint in their own Lochs since thereby Fish is destroy'd and the Water becomes Noxious to Neighbours and thus property is in many things restricted for the good of the Common-wealth there being nothing more consequential to property than that quilibet potest jure suo uti modo principaliter hoc non faciat in aemulationem alterius But it seems that only the Parliament can restrain this exercise of property else this Act had been needless and therefore when the Laird of Haining offered to Drain his own Loch it was justly Debated whether the Fishers upon Tweed could hinder him because the Water that run in from the Loch to Tweed prejudged their Fishings But that which made the case there more Debateable was that publick Rivers and Salmond Fishings are of their own Nature priviledg'd It may be likewise Debated whether paritas rationis should extend this Act against such as lay stinking Hides or other such noysom things in their Loches or Burns and the laying any such things in the Loch of Lochlevin is specially Declar'd punishable by the 29 Act Par. 1 Ch. 1. Vide quaestiones medico legales Pauli Zacchej lib. 3. Tit. 3. where he condemns what is here Discharg'd as noxious both to Man and Beast BY this Act the Vassals who hold Blench of His Majesty are only lyable in their Blench-duties if they be required allanerly and these Blench-duties cannot be converted into Money by the Exchequer Observ. 1. It is declared by this Act that Blench-duties are not to be any Burden or yearly Duty by their own Nature but only an acknowledgement or recognizance if they be requir'd allanerly and yet by our Law in Lands holding blench of a Subject we thus distinguish viz. either the Charter bears si petatur tantum and then the Blench-duty cannot be required beyond the year in which it was due Or else the Blench-Charter bears not this Clause and then either the Blench duties are such as are of a yearly growth as Wax Pepper c. and these can only be crav'd within the year Or else they are things of some intrinsick value and not of an annual growth such as Silver Spurs c. and they may be pursued for at any time within fourty years Nor can any annual Prestations such as Carriages be acclaimed after elapsing of the respective years wherein they were due by the Tack or otherwayes January penult 1624. But though a Vassals Charter who holds of the King bear si petatur tantum Yet the Exchequer by an Act does Tax the price and pursue for these and for annual growths albeit they have not been crav'd within the year for which I can give no other reason but that the negligence of the Kings Officers cannot prejudge the King But how can the Act of Exchequer alter the Nature of the holding which is an express Contract betwixt the King and His Vassals and it may be alleadged that by Act of Exchequer it may be as well Declar'd that prescription shall not run against the King for this is a species of prescription but especially since it is Declar'd by this Act that they shall not pay notwithstanding of any Act of Exchequer past or to come nor does the Act anent the negligence of the Kings Officers abrogat this Act as it ought to have done The Advocats Protestation in the end of this Act seems to be in-intelligible for how can Blench-duties be conform to the Kings Estate and Dignity Some Interpret this Act as if it only prohibited the Conversion of the Blench-duty into Money in the body of the Charter but does not hinder the Exchequers valuing of it Others to reconcile the present practice with this Act make a distinction betwixt holdings in blanco and in alba firma as if the first being an inconsiderable Duty as a Rose or a Penny may not be converted to Money but the other affording some profit such as Gilt-spurs Gloves a pound of Pepper c. may be valued by the Exchequer This Act quadrats with Tit. 2. lib. 11. Cod. Theodos. THis Act is formerly Explain'd in the 77 Act Par. 6. Ja. 5. BY this Act all such as Convocat or Assemble themselves within Burgh without Licence of the Provost and Baillies are declar'd to be guilty of Faction and Sedition and it has been doubted whether Keepers of Conventicles within Burgh may be punishable by this Act for though there be a specifick punishment appointed for Conventicles yet since this and oâ—her Laws by which Conventicles may be punished in specifick and particular cases are not abrogated expresly It is therefore alleadged that they are not abrogated conform to the general Rule set down in the 243 Act Par. 15. Ja. 6. Observ. 2. It may be doubted whether since this Act runs in the general against Convocations within Burgh if this Act should not as well extend to Burghs of Barony and Burghs of Regality as to Burghs Royal since the word Burgh comprehends all and the Reason inductive of this Act viz. the quenching Convocations extends likewise to all and when the Parliament designed to extend their Acts only to Burghs Royal they were particularly exprest as is to be seen in the immediat foregoing Act and albeit it may be urg'd that this Act speaks of Provost and Baillies yet this must be Interpreted applicando singula singulis for there are many Burghs Royal as well as Burghs of Regality and Barony that want Provosts Observ. 3. That though this Act ordains only such as obey not their Magistrates and Officers to be fined yet if the Inhabitants of any Town refuse to obey any Officers in the Kings Name such as Captains c. they may be fined Observ. 4. This Act appoints that it shall be proclaim'd at all the Mercat Crosses of the saids Burghs albeit by the 128 Act Par. 7 Ja. 6. all Acts of Parliament are only to be published at the Mercat Cross of Edinburgh but this Act being posterior and special derogats from that general Law and this was specially appointed because of the special interest of the Burrows Observ. 5. It is observable that this Act proposes no punishment for Towns where the Magistrats do not their duty to oppose Tumults against the Government yet the Town of Lanerk was fin'd for not pursuing those who burnt the Test at their Cross anno 1681. and privat Burgesses pay
began the last Rebellion and since the Council has ordained Men to be lyable the Countrey was become much quieter 4. There being a communion of Goods betwixt Man and VVife it was just that the Husband should be lyable for his VVife and so he should pay her Debts whereof this withdrawing was one and if he offer her to the Magistrats and do not converse with her he is to be free and so he can only blame himself The Council having Transmitted thâ—se Reasons to the King His Majesty found that Husbands should be lyable for their Wives but Declared that Husbands who were loyal and would take the Oaths of Allegiance and Test should be favoured in the exacting of such Fines THis Act is Explain'd in the 23 Act Par. 1 Ch. 1. and 23 Act Par. 1 Ch. 2. And the exemption from Taxes here granted to the Senators of the Colledge of Justice is also allow'd to the Counsellours of the Empire Bocer de Regal c. 2. and to the Counsellours of France Papon l. 2. c. 11. and is extended in both these Kingdoms to their Widows arg l. 29. C. ad l. â—ul de adult vid. Jac. Benium privil Juriscon part 3. nâ—m 1. THis Act is Explain'd in the 16 Act Par. 2. Ch. 2. King CHARLES 2. Par. 2. Sess. 3. THis Act is Explain'd in Observations upon the 2 Act Par 2 Ch. 2. THis Act ordains that no Tutors or Curators to be named or designed to any Pupil Minor Idiot or furious person shall exercise their Office till they first make Inventar of the Pupils Writes Evidents Means or Estate with the consent of the nearest of Kin of the Fathers side and of the Mothers side in manner specifi'd in the Act and if the nearest of Kin refuse to concur for making Inventars they are to be summoned by the Tutor for that effect with certification that if they be absent the Tutor is to make an Inventar before the Judge ordinary to the end it might be known what the Tutor or Curator might be Charged with Observ. 1. That since the Act only says That no Tutor or Curator of any Pupil Minor Idiot or Furious-person shall Exercise It may be doubted whether a Curator bonis datus should be comprehended under this Act because he may fall under none of these Denominations though the Reason of the Law extend to him as for instance if a man should TailÈie his Estate to A. and failing of him to the second Son of B. which failing to the second Son of C. If A. died B. being alive but having no second Son the King might nominat a Tutor to mannage the Estate till it were known whether B. would have a second Son and therefore it had been clearer to have said in the Act That no Tutor nor Curator should Exercise c. Observ. 2. That the words no Tutor or Curator nam'd or design'd might have been better expressed by suppressing these words nam'd or design'd for that is not the proper words of Stile Observ. 3. That since the Act requires only the consent of the nearest of Kin of the Father and the Mothers side indefinitly This is found by Decisions to be so Interpreted as that two of the Fathers side and two of the Mothers side are only requisite conform to the 35 Act Par. 6 Queen M. And though Tutor Datives were formerly granted summarly by the King in Exchequer yet by this Act it is appointed That the Craver of such Gifts shall cite the nearest of Kin upon both sides that is to say two of each as has been also decided THis Act is formerly Explain'd in the 14 Act Par. 1 Sess. 3 Ch. 2. ALL Law having thought fit to use more Citations than one in matters of Importance By our Forms before this Act he who Raised a Summons caused Execute the same by any person he pleased who is call'd a Sheriff in that part after which he did get an Act of continuation from one of the Clerks and a second Summons both which were called Act and Letters and were Sign'd by the Clerk but because that was expensive and troublesome Therefore by this Act these Act and Letters are taken away and two citations upon the first Summons are declared to be sufficient as also because of old the Execution of Summons did only bear That the Messenger cited the parties within exprest without mentioning the particular parties therefore sometimes the Execution of another Summons at the same parties Instance was cast on upon a Summons which it may be was never Execute as for Instance if I had rais'd a summons of Reduction against B. and another against C. the Executions against B. would have been sufficient against C. though C. had never been Cited and so would have Interrupted a Prescription or would have produced any other effect against him which being alleadged in a Case of Rowallans It is by this Act appointed in times coming That all Executions of Summons shall bear expresly The Names and Designations of the parties pursuers and defenders and that it shall not be sufficient that the same do relate generally to the Summons otherwise the Execution shall not be sustained And though it was alleadg'd that this was only to hold in Cases of Prescription but in no other Case yet it was found to extend to all Citations indefinitly and therefore a Citation against Mr. James Alexander having no Designation but Husband to such a Woman and bearing only relation to the Letters within-written was not sustain'd but yet the Lords thereafter upon the helping the Execution allow'd the same the Messenger having abidden by the Execution IT is fit to know that there are three Seals in Scotland the Great-Seal Privy-Seal and Quarter-seal The Great-Seal is properly design'd to be appended to Heretable Rights and the Privy-Seal for Moveables and the Quarter-Seal is but the Testimonial of the Great-Seal and generally it is appended to Papers that are subservient to Heretable Rights such as Precepts of Seasin Presentations to Forefaultries c. The Chancellour keeps the Great-Seal The Lord Privy-Seal keeps the Privy-Seal and the Director of the Chancery keeps the Quarter-Seal for as the Quarter-Seal is but a Seal subservient to the Great-Seal so the Director of the Chancery is an Officeâ— depending upon the Chancellour The Servants of the Chancery and Privy-seal Office having been in use to give out the Papers that were to pass their Registers before they put them in a Minut-book so that such as desired to know what passed those Seals could not know the same therefore they are by this Act ordain'd to Registrat all Writs that pass their Office before they give them out and to make a Minut-Book Nota That in the Chancery-Chamber there are two kinds of Registers one of Parchment for Charters and such Heretable Rights and other two in Paper one for Temporary Rights such as Gifts Pensions c. In which likewise Adjudications and Comprisings are included
Judges inclined to think that these Regulations extend to Justice-airs as well as Justice-Courts as to all the Articles here exprest since Orders are given by the Parliament for regulating Justice in these Regulations which shew the Parliament design'd to extend them to both From these words in the ninth Article That the Chancellour of the Assize mark how every individual Assizer shall Vote whether he Condemns or AsseilÈies it clearly follows that no Assyzer in Criminals may be non liquet and if this were allow'd in one it might be in all because this was not necessary formerly Therefore by the 63 Act Par. 8. Ja. 3. It was ordain'd that when a Summons of Error was rais'd each Assizer was to set down who assoilÈed and who Condemned but because they might forget or for fear of punishment might be unfaithful in this Therefore this Act appoints That in the first Verdict it shall be marked who Condemned and who assoilÈed Albeit this Act appoints that the Chancellor shall mark whether every man assoilÈes or Condemns Yet it is thought the omission of this would not annul a Verdict in favours of the King that being only introduc'd in favours of the King to the end that His Majesties Advocat may be instructed whom to pursue in a Summons of Error when a party is wrongously assoilÈed By the 11 Article it is appointed That when any Summons of Exculpation is Executed against any party that at the same time the Names of the Witnesses and Inquest should be given to the end the party may know what to object against the Witnesses Upon which Article it was alleadged that when an Exculpation was rais'd against the King the Witnesses Names should be given to his Advocat likewise and which the Justices found to be necessary in March 1680. For the Act being general as to all and there being as great reason that the King should know those who are to be led against Him as any privat party He ought to have the same measure and whereas it was objected that it were a very severe thing that a poor Pannal might not lead any Witness even during the Debate though his Name had not been given in List yet this has no weight since the Act is so clear in general Terms as to all and it may seem as unreasonable that the King should not be allow'd to lead any Witness to prove a Crime if he find him in the Court the time of the Debate for the Pannal may much better know who can prove his Defence since he behov'd to know them if they were present than the Kings Advocat can know who were present when the Crime was committed and though there may be some inconvenience in this for one particular Pannal yet in the general there is great advantage in this to Pannals the King being thereby forc'd to give in the Names of his Witnesses so that the Pannal may not only know how to object against them but even how to practise them and whereas it may be objected that by this procedure there behov'd to be progressus in infinitum since the King might Cite Witnesses to cast the Pannals Witnesses and the Pannal behov'd therefore to be allow'd to cast the Kings Witnesses and to have Citation for that effect It is answered that this might as well be urg'd against all Reprobators nor does this hold here for the Judge should not allow such Citations save one to each party Because Messengers in Executing Criminal Letters gave sometimes only copies of the Libel it self and yet returned Executions to His Majesties Advocat that they had likwise given Lists of Assizers and Witnesses Therefore the Justices declar'd in February 1681. by an Act of their Sederunt that if the Pannal should produce a Copy under the Messengers hand of the Libel except the List of the Assizers and Witnesses Names were upon the same Paper with it they would not sustain the Execution though bearing That Lists of Witnesses and Assizers were given THis Act is Explain'd in the 1 Act 1 Par. Sess. 3. and 7 Act Sess. 2 Par. 2 Ch. 2. COmprisings were at first Invented to pay Debt with a suitable proportion of Land and the Sheriff was to adjust the sums due with the Lands Comprised but thereafter great Estates being Comprised for small Debts the Parliament thought fit by this Act to Ordain that for the future not a Messenger who was Judge in Comprisings but the Lords of Session should by a Process before them Adjudge as much of the Debitors Lands to the Creditor as would satisfie his principal Sum and Annualrent with a fifth part more because the Creditor was forc'd to take Land for Money whereas by the Common Law aliud pro alio invito creditore solvi nequit And albeit this Act expresses only that this fifth part shall be beside the Composition to the Superiour and Expenses of Infeftment yet certainly the Creditor must likewise have all the Expenses bestow'd upon the Process for as this is reasonable in it self so that expenses tends to the procuring of the Infeftment Observ. 1. This Act came in to the Parliament simply in these Terms and the equity of it was prest from the Custom of other Nations and particularly the Common Law where the Praetor did adjudge the Debitors Land proportionally to the Debt but it being strongly urg'd by the Lawyers Burgesses and other Members who were Moneyed Men that it was most unreasonable to force the Creditor to take Land except the Debitor should produce to him a good Progress and Security for both to be forced to take Land and yet to want a sufficient Right thereto was altogether unreasonable Therefore the Parliament ordain'd that if the Debitor did not compear and produce a sufficient progress and Renunce the Possession the Debitor might Adjudge the whole Estate as formerly he Comprised it and this has almost Evacuated the whole Act for the most of Debitors are unwilling to produce a Progresâ— and renunce Possession and therefore most Lands are now adjudg'd as they were formerly apprised and in December 6. 1681. It was found that an Adjudication led for a fifth part more in absence of the Debitor was null since the fifth part more was only to be given where the Creditor compeared produced a Progress and Renunced albeit it seems that this alternative being introduced in favours of the Creditor it ought to be optional to him to choose either Observ. 2. That the Legal in these Adjudications is only five years whereas it was seven in Comprisings for the danger being less because of the said Commensuration it was just that the time for Redemption should be shorter and though it be not exprest that the foresaid five year shall not run against Minors and that it may seem it should not run against them in respect of the short commensuration and that it seems unreasonable that a Creditor being forc'd to take so little Land and should yet be forced to be