favours of commerce and of poor Debitors but to ballance this speciality the Superiour is allow'd to retain the Land comprised to himself upon payment of the sums comprised for because he is also proprietar of the Lands having dominium directum as the Vassal who is Debitor has Dominium utile vid. 5. March 1634. Black contra Pitmedine But it was lately found that the Superiour could not redeem after seven or ten years no more than the Vassal for though the legal as to the Superiour be not limited yet he comes but in place of the Vassal and so ought to have no more priviledge and this general must be restricted by the other parts of the Act. 5 o. Though the Superiour be bound to receive the Comprisers and that without producing their Authors Right because it is not presumable that their Debitors from whom they comprised will produce their Rights to them yet where Adjudications are led for compleating Dispositions or other Rights the Superiour is not oblig'd to receive such Adjudgers until they instruct the last Vassals Right for such Adjudgers as these are not ordain'd by the Act of Parliament to be received June 24. 1663. M cneil contra M cdougal But it may be doubted what an Adjudger who has done ultiâ—at Diligence to recover his Debitors Writs shall do if he cannot obtain them it being very hard that he should ly out of his Right because of the contumacy of the person who is oblig'd to compleat the Right Vid. obs on the 19 Act Par. 2 Sess. 2 Ch. 2. THough it is said here that Justice-airs need not be continu'd yet Justice-courts are declar'd peremptor so that if Actions before them be not call'd the day to which the citation is given the citation is null perit instantiâ Act 79. Par. 11. Ja. 6. Vid. Observ. on that Act. BY this Act it is declar'd that the Rolls and Registers be put in Books and have the same strength that the Rolls had for understanding which it 's fit to know that both in Parliament and Exchequer there were no Registers but Rolls And by this Act the Rolls are ordain'd to be turn'd into Books and these Books are declar'd to be as authentick as their Originals and the Clerk is yet design'd Clerk of the Council Register and Rolls THis is the only Act by which counterfeiters of Money are punish'd by death and yet this Act properly stricks against the counterfeiters and coyners of Copper-money only which in our Law is call'd black Money It has been doubted whether the Officers of the Mint could coyn Copper-Money without express permission but it was lately found they could not because coyning is ex sua natura inter regalia 2 o. There have been several warrands expresly granted to the saids Officers themselves for coyning Copper-money and determining the quantity to be coyn'd and the rates to be follow'd which had been needless if this could have been done without a Warrand 3 o. There is so great profit to the Coyners and so great loss to the people by coyning Copper and black Money that it was necessary the coyning should have been determin'd 4 o. It had been unnecessary and absurd to have discharg'd the counterfiting and currency of Black-money by this Act if it had been lawful to have coin'd without a Warrand and whereas it was alleadg'd that black money was Coin'd in England without warrand To this it was answer'd that such farthings c. past only in the place where they were coin'd in England but what passes in one place of Scotland passes through all Vid. Annot. on Act 28 Par. 6 Ja. 2. Supra King JAMES the third Parliament 6. THe design of this Act is to shew that in Reductions of Decreets of inferiour Courts before the Parliament the Defender is not allow'd to propone Defences that were competent and omitted in the first instance and yet in Reductions of Decreets of inferiour Courts before the Session alleadgances though competent and omitted at the time of the first Decreet are receivable by the Lords especially if the Decreets be in absence Nota That Dilators might have been then propon'd separatim but now after a Dilator is repell'd all the other Dilators must be propon'd together Nota 2 o. It is clear by this Act that Decreets of inferiour Courts were reduc'd before the Parliament but these Lords were then not what our Session is now the Session being then a Committee of Parliament as is also clear by this Act. Nota 3 o. That Brieves of mort-ancestrie which are now call'd Brieves for Serving of Heirs were then led and expede in Justice-airs though it was still by an Inquest as this Act bears and if then Difficulties did occur in serving of Heirs it is clear that superiour Courts might give their opinion upon these though they cannot serve an Heir and thus two several persons having rais'd Brieves for serving themselves Heirs to Captain Ross they were Advocated from the Macers and it was Debated before the Lords what Probation was sufficient to exclude the King as ultimus Hares albeit it was alleadg'd that this was only proper to be Debated before the Inquest and yet though the Lords may determine how a thing may be proven ipsum modum probandi as in that case where the Debate did run whether the being habit and repute Cousins was sufficient in agnatione antiquâ yet the Lords in the case Forrester contra the Heirs of the Laird of Wrights-houses refused to consider the Probation it self and the Objections against the Writs produc'd but remitted the same to the Inquest though it was alleadg'd that it being objected here that the Writs produc'd for Probation were vitiated the Lords could only judge this as being species falsi but withal the Lords declared that if the Inquest desired to know whether the Papers were vitiated they would give them their opinion therein The Lords of the Session themselves have been sometimes the Inquest as in Serving King CHARLES the First Heir to Queen Ann his Mother and King CHARLES the Second to the Duke of Lenox though it was alleadg'd that this was inconvenient because no other Judge could reduce their Verdict but certainly either the Parliament might have reduc'd it and found them guilty of Error or the Lords of the Session might have reduc'd their own Verdict upon new Probation for in this case they proceeded not as Supream Judges but as Members of Inquest The Parliament have been sometimes the Inquest as in Serving the Earl of Mar Heir to his Mother BY this Act the Party put to the Horn for Slaughter is to find Caution before he be Relax'd not only to compear to underly the Law but to pay twenty pounds for his Escheat Goods and this is to this day exprest in all Relaxations VId. observ on Act 38 Par. 4 Ja. 4. BY this and by the first Act of this Parliament it is clear that that Parliament did
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
these Laws by the same reason that in England the Paroch is lyable for the Robberies committed therein betwixt Sun and Sun and thus these who have power of Jurisdiction from the Emperour are lyable vias publicas a latronibus purgare Gail observ 64. lib. 2. vid. etiam l. 3. l. congruit ult ff de officio Praesidis It has been doubted whether the Council could in other cases not warranted by express Acts of Parliament oblige the Subjects to give Bond to live peaceably conform to Law and particulary that their Tennents should not keep Conventicles but should go to Church and pay 50 pound Sterling for every Conventicle kept upon their Ground or should present their Delinquents and it was alleadg'd that the Council cannot because regularly one man is not lyable for another mans Crime nor can this inversion of Property and Natural Liberty be introduced by a lesse power than a Parliament nor had Acts of Parliament in this case been necessary if the King and Council could have done the same by their own authority but yet since the King has by express Act of Parliament the same power here that any Prince or Potentat has in any other Kingdoms and that Government belongs to him as Property does to us nor can the peace be secured otherwayes than by allowing him to take all courses for securing the peace and preventing disorders that therefore this joyned with the practice of the Council is a sufficient warrand for exacting such Bonds the practice of our King and Council being the best interpreter of the prerogative especially where the things for which Band is to be taken are not contrary to express Law and it is implyed in the nature of alledgiance that Land-lords should entertain none but such as will live regularly and if they transgressed the Master could not in common Law thereafter recept them without being lyable as we see in SpuilÈies or if the King pleased he might denounce the transgressors Rebels and so might put the Master in mala fide and though there be no such particular Laws warranding the taking of such Bonds yet it will appear by many instances in this Book that Laws are extended de casu in casum and thus this power seems inherent in the Crown likeas the matter of Property is sufficiently secured by the alternative foresaid of either presenting or paying the damnage which alternative seems to be founded upon the same principle of justice with actiones noxales mentioned in the Civil Law Domino damnato permittitur aut litis aestimationem sufferre aut ipsum servum noxae dedere vid. Tit. 8. lib. 4. Institut I find many instances in the Registers of Council wherein the Subjects are charg'd to secure the peace under the pain of Treason as in the case of the Lord Yester BOnd 's given by Cautioners for broken men do oblige the Heirs and Successors of the Cautioners though they be not mentioned in the Band. Observ. 1. In Law he who obligeth himself to pay a Sum obligeth his Heirs for as in Law qui sibi providet haeredibus providet sic qui se obligat haeredes obligat and therefore a man having bound himself and his Heirs Male it was found that the Creditor was not thereby excluded from pursuing the Heirs Female or any other Heirs but that he was only bound to discuss first the Heirs who were specially named in the Obligation 18 February 1663. Blair contra Anderson but yet Obligations for performing a deed such as to present a Thief are of their own nature personal and therefore this Act was necessary THe taking of Surety from Chief of Clanns doth not loose the Obligation taken from Land-lords e contra and the reason why this Act seemed necessary was because this seemed to be an Innovation and it seemed not just that both the Chiefs and Land-lords should be lyable since they could not both have absolute command over the person to be presented but yet this Act was most suitable to Law since novatio non praesumitur nisi ubi hoc expresse actum est l. ult Cod. de Nov. And the Tennents in the High-lands are influenced both by Chiefs and Land-lords but to make this Law more just the Council gives action of a relief against the Lands-lord if the Lands-lord harbour or to the Lands-lord against the Chief if the Chief recept him BY this Act if Goods be taken away by any Clann'd man and recept in the Country of their Chief for the space of 12 hours to his knowledge the Chief shall be lyable in solidum for all the Goods taken away though there were but very few of his men present as was found in a case pursued by Francis Irwing against Glenurchie before the Council all such Chiefs being lyable in solidum and not pro ratâ only for the wrongs committed by their Clanns BY this Act no Magistrat may keep a Thief or Malefactor in Arms with him albeit he pretend he is his Prisoner but he must deâ—ain him in a closs house both because squalor carceris is a part of the punishment due to Malefactors and because if this were allow'd Magistrats might by collusion suffer Malefactors to enjoy their liberty IS explained Crim. pr. tit Theft THis Act ordaining Masters to present their Tennents upon the Kings closs Valentines or Orders in little Papers like Valentines is observ'd in the whole Registers of Council THese two Acts discharging the Borderers of Scotland to marry with the Borderers of England or to labour their Lands are abrogated by the Union BY this Act the Land-lord doing diligence by obtaining Decreet of removing using Horning and doing all other things that was in his power after the fact comes to his knowledge is no further lyable Nota By this Act the Land-lord must be put in mala fide by intimation of his Tennents Crime 2. Dubitatur whether this priviledge should not likewise extend to Chiefs of Clanns since they have less interest in the Delinquents then the Land-lords BY the 100 Act of this Parliament such as committed Slaughter Mutilation or other hurt upon Thieves are not lyable But by this Act an Indemnity is likewise granted to such as raise fire against them that being there forgot THis Act is explained in the Observations upon the 29 Act of this same Parliament BY this Act the Burrows pay the sixth part of the Impositions of Scotland which is yet in observance and because of this burden they have the only priviledge of Trading and therefore they justly pretended that their priviledge of Trading could not be communicable to the Burghs of Barony and Regality who bore no part in this burden Nota That though by this Act the Taxation of the Burrows is not to be altered that is only mean't of the 6 part which is to be born by the Burrows in general for notwithstanding of this Act the Convention of Burrows do
ordinarly His Majesties Advocat chooses such Assizers as know the persons impannelled to be commonly repute to be Aegyptians These who are call'd Aegyptians in Scotland are call'd Zigeni Tartari Bohemij all which are remarked as idle Beggars going about oppressing the people and cheating them by vain Superstitions and Fortune tellings of which sort of people Fritschius has written a Treatise call'd de origine Zygenorum eorum coercitione where are to be found upon what pretext they were first suffered in several Nations which was because they did assist several Princes in their great difficulties having from being Vagabonds gathered themselves under Captains for that effect but continuing after Peace made to grow insolent they were ordain'd to be banish'd in Germany by an Imperial Constitution anno 1500. and in France by the Act of Orleance anno 1561. and thereafter anno 1612. which is about the time of this Act and in Spain 1492. THe time of this Act the Secret Council had a Commission from the King to receive Resignations and all the Procuratories of Resignations then did still bear a Power to Resign in the Hands of the Secret Council But now Resignations can only be made in His Majesties own Hands or in the hands of His Exchequer THis Act extends to the Decreets of the Admiral and his Deputs the priviledge of having Letters of Horning granted upon them without the necessity of a Decreet conform as was the old Custom and in this it equals the Decreets of that Court with the Decreets of Sheriffs and Baillies of Burghs But by the 29 Act Par. 1 Ch. 2. Whereby poinding is ordain'd to be granted upon their Decreets the Parliament has forgot to extend that priviledge to the Decreets of the Admiral Observ. 1. That this Act declares the Admiral to be a Supream Judge and therefore it has been decided that he may reduce the Decreets of inferiour or Admiral-deputs and that he may reduce his own Decreets upon just Reasons such as noviter provenientes ad notitiam c. And which kind of Jurisdiction is competent to no Inferiour Judge and yet the Lords of Session do suspend and reduce his Decreets also and Advocat Causes from that Court Observ. 2. That by this Act the Admiral is declar'd to have power of summar Execution because Strangers and Sea-faring men cannot attend as others may and therefore it is that such as obtain Decreets before that Court may use Execution thereupon within three Tides Vid. Observ. on the 16 Act Par. 3. Ch. 2. King JAMES the sixth Parliament 21. HIs Majesty held a General Assembly at Glasgow and in anno 1610. drew up some Articles to be presented to the Parliament which are set down by Spoteswood and many whereof are here confirm'd By this Act His Majesties Power to call Assemblies is declar'd a part of His Royal Prerogative Vid. 114 Act Par. 12 Ja. 6. The Bishop is to be Moderator and in his absence any whom he shall Name The Bishop only can Excommunicat and with such Ministers as he associats to himself He only can Depose In this Act likewise is set down a formula of the Oath of Supremacy As to the manner of presenting Ministers it is formerly fully Treated in the Observations upon the 7 Act of the 1 Par. Ja. 6. AFter King James the sixth came to the Crown of England it was necessary that the Laws concerning the Borders should have been alter'd by both Kingdoms and by this Act there is a power granted to His Majesties Officers in England to remand from the Courts of Scotland that is to say to require His Majesties Officers in Scotland to deliver up English Malefactors who had fled into Scotland and another Act of the same Tenor verbatim was past in England about the same time In place of the old Wardens of the Borders there is now a Commission granted under the Great Seals of both Kingdoms to an equal number of Scots and English who have in effect a Commission of Justiciary and it was found by the Council of Scotland that they could not quarrel the Decreets of the Borders because they proceeded by a Warrand under the Seal of both Kingdoms but the Laird of Haining having Charged Elliot for payment of a sum for not presenting of a Thief to the Commissioners of the Borders conform to a Decreet of the Commissioners finding that he had Forefaulted the Bond there was a Bill given in to the Council craving that this case might be remitted to the Commissioners of the Borders and not Suspended by the Session because First These Decreets being pronounced by the English as well as the Scots Commissioners the Session could not be Judges to what was done by vertue of an English Commission and because they could not cite the English Commissioners therefore they could not Reduce their Sentences 2. The Commission of the Border is a Criminal Court and the Lords of the Session are only Supream Judges in Civils 3. The Border is judg'd by a Law unknown to us and therefore since the Lords of the Session behov'd to Consult them though they were Judges it but multiplies Processes and Expences to allow the Lords to be Judges in prima instantia 4. If the Lords were Judges all Thieves or their Cautioners would offer to Suspend or Reduce which would much hinder that expeditness of Tryal which is requisit to stop Thieving in the Borders 5. If the Lords here review'd such Decreets the Judges at Westminster would do the like which would be very troublesome and expensive to us The Council upon this Debate recommended to the Lords to remit the Tryal in so far as it was Criminal to the saids Commissioners By this Act Remanding is only to be granted after full probation of the offences of the persons Remanded in open Courtâ— but this is now antiquated and in Desuetude because it was found by the Commissioners of both Kingdoms to be unpracticable if either the Names or proofs were published in open Court the persons to be Remanded would flee and the Witnesses might be corrupted Therefore it was ordered by common consent that the Commissioners of either Kingdom might Remand privatly from the Commissioners of the other Kingdom and that the person so delated might be immediatly seiz'd upon THis Act is fully Explain'd crim pract tit Rapt THis Act is Explain'd in the Observations upon the 73 Act Par. 6. Ja. 6. THis Act Discharging all Actions of SpuilÈie committed upon the Borders prior to His Majesties coming to the Crown of England is but Temporary But from it it may be observed First That the King and Parliament may dispense with the privat interest of parties upon a publick account nor does the Act salvo jure subjoyn'd to the several Parliaments prejudge or derogat from this Act upon pretext that the parties whose interest was remitted and discharg'd were not call'd 2. In all such Discharges of privat interest and Acts of Grace
Par. Ch. 2. THis Act is Explain'd in the 62 Act Par. 1 Sess. 1 Ch. 2. THis Act is Explain'd in the 25 Act of the 1 Sess. Par. 1 Ch. 2. THe Bishops having consented by this Act to the Imposition upon themselves in favourâ— of Universities it is Declar'd That this Act shall be no preparative for laying on any burden upon the Clergy hereafter without their own consent From which it may be argu'd that though all the rest of the Parliament should consent to an Imposition upon the Clergy yet that would not be valid except they themselves consented to it though the Imposition were carry'd by plurality of Votes but this Inference is not concluding for the Parliament is a Collective Body Compos'd of the King and three Estates in which the major part determines the rest and if this were granted to the Clergy they being but a third Estate every one of the other two Estates might pretend the like and so each Estate should have a Negative as well as the King Whereas not only Craig has Determined that the Parliament may make an Act without the consent of any one of the States having stated this question expresly But we see that the Burrows having unanimously dissented from the 5 Act of the 3 Session of the second Parliament concerning the Priviledges of Burghs-Royal the same was notwithstanding past in Parliament and we all remember the memorable story of the Burrows rising and leaving the Rebellious Parliaments 1649. before the Parliament passed the Act for allowing the value of Annualrents whereupon a worthy Peer said that since they had sitten so long without the Head they might well enough sit without the Tail BY the 14 Act of the 1 Sess. of this Parl. the Annuity of 40000 pounds Sterling being granted to His Majesty to be uplifted out of the Excise in manner mentioned in the said Act by this Act the proportion of the said Excise is Regulated and laid on upon the several Shires and Burghs accordingly Nota. This is the only Act wherein I find the word Grievances BY this Act the Militia of 20000 Foot and 2000 Horse is Establish'd which was found not to take off the Obligation of rising betwixt 60 and 16 according to the ancient Laws for attending the Kings Host when called for This Act Declares That if His Majesty have further use for their service they will be ready every man betwixt sixty and sixteen to joyn and hazard their Lives and Fortunes as they shall be call'd for by His Majesty and though it be pretended that at least they cannot be called betwixt sixty and sixteen by this Act without an express Order from the King The words running When call'd for by His Majesty without adding or the Council in this Clause as it did in the former immediat Clause of this same Act and which shews that this was designedly omited in this Clause yet we see that the Council does call to the Host all betwixt sixty and sixteen without express Warrand from the King and that the Justices fine such as are absent upon these Proclamations and which is very just because the King is still presumed to be in the Council sictione juris they Re-presenting by their Commission His Royal Person and we see by many Instances that Rebellions may rise before any such Warrand can come from the King By this Act it is Declar'd That these Forces shall be in readiness as they sâ—all be call'd fâ—r by His Majesty to march to any part of His Dominions of Scotland England or Ireland for suppressing of any Forraign Invasion Intestine Trouble or Insurrection or for any other service wherein His Majesties Honour Authority or Greâ—tness may be concerned Which Clause was much excepted against by some in the Parliament of England as if Scotland had thereby design'd to Authorize the Invading of them but it cannot be properly said to be an Invading of them if we be call'd by the King and the Calling of Subjects etiam extra territorium is inter reservata principi and a just Right of all Kings as is clear by Castal de Imperatore quaest 57. num 57 And the Subjects of this Kingdom have been oft-times fined and Foâ—efaulted for not attending the Kings Host when they were called to Invade England nor could any War be mannaged or Rebellion supprest even in the justest Cases without this BY this Act the Ordering and Disposing of Trade with Forraign Countâ—â—â—s is Declared to be His Majesties Prerogative and though it be alleadged that this Act was only Design'd as a power to His Majesty for the better Debarring English Commodities whereby to bring both the Nations to an equal ballance of Trade which Design was said to have been then represented to the Parliament as the only Motive for making this Act and that if this were allowed in its full extent our Kings might by Debarring us from Iron Copper Timber Spices and other necessars force us to any Condescendencies or might by this Prerogative grant Monopolies at their pleasure Yet I see not how this Gloss is consistent with the general words of the Act or with our Declaring that this by the Law of Nations belongs to all free Princes Or with subsequent Parliaments allowing the priviledges granted to the Fishing Company the prohibiting of Brandy and other strong Waters and several other things which are founded solely upon this Act. It may be Debated whether under the word Forraigners the English may be comprehended since we are not Treated by them as Forraigners in the point of Succession it being frequently decided amongst them that the Scots may succeed to Heretage in England notwithstanding of their Statute debarring alibi natos and why then should they be repute as Forraigners to us in the matter of Trade and this were indeed solid Reason for both Nations but since the English debar us from their Plantations and look upon us as Forraigners in the point of Trade it is just that we should give them the same measure King CHARLES 2. Parliament 2. Session 1. IT is observable that in all the Sessions of this Parliament the particular day of the Month whereupon the respective Acts were past is set down and yet since the Acts are to take effect not from the passing but from the publication as is clear by the 3 Act of this Parliament it would have seem'd more rational to have set down the day of the Publication To which nothing can be answered but that the Laws are presum'd to be publish'd the day they were past in In no former Parliament the day is set down but the whole Parliament is said to be held upon such a day and the old use was that the Articles prepar'd all the Acts and they were all past in one day THis Act Declaring the Kings Supremacy in Ecclesiastick Causes is formerly explain'd in the Observations upon the 2 Act Par. 18. Ja. 6. IT is observable from this
Nâ—ta Reset in some cases and in this is more severly punished than the Malefactors The pain is augmented to a 100. lib. Act. 210. Parl. 14 Ja. 6. And at last shooting them with Guns is declared punishable by death Act. 9. Parl 4. and Act. 51. Parl. 6. Q. M. BY this Act These who wilfully Reset Maintain or do favours to open and manifest Rebells are punishable by Forfalture For understanding whereof it is fit to know that there are some manifest Rebells de jure and some de facto Such as are denunced and registrated are manifest Rebells de jure for though the Leidges know them not yet they ought to know them and it would seem that this requires a Denunciation within the Shire where the Resetter lives Act â—2 Parâ— 6 Ja. 6 And though that Act bear that the Denunciation at the head Burgh of the Shire be sufficient yet it seems that the Denunciation being only a transient Act is not sufficient to put the Leidges in mala fide except the Rebel be Registrated as Registration of other Letters is necessary to put buyers in mala fide Such likewise as are by positive Act of Parliament declared to have been Forfaulted as these exprest in the Act. 11. Paâ—l 2 d. Ch. 2 d Sess. 1. are likewise manifest Rebels de jure since all are oblig'd to know what is in Acts of Parliament but it has been doubted whether the resetting even of these after they have been allow'd for many years to appear publâ—ckly in Kirk and Mercat to the knowledge of the Kings Servants should infer paenam ordinariam or whether the said paena ordinaria can be inferr'd by resetting such as are mention'd in a Proclamation These are manifest Rebels de facto whom the Pannel knew to be Rebels or Traitors though they weâ—e not Denunced and thus Hamilton of Munkland was Forfaulted for resetting his own man whom he had seen in the Rebellion and if a man did see one kill the King or should assist Rebels in Armes before they were defeated it were ridiculous to alleadge that this were not punishable as reset because the Rebels were not denunced Rebels since they could not be denunced before Citation and the danger in resetting actual open Rebels is greater than in resetting poor lurking Vagabonds but this kind of accession must be inferr'd only from clear qualifications of knowledge such as these whereupon Lawrie of Blackwood was Forfaulted Winter Session 1682. In which Process it was likewise found that Letters of Intercommoning were not necessary to infer nottor Rebellion because Denunciations for Treason includs Intercommoning ex sua natura it being hard to leave so dangerous certifications to be arbitrarly inferr'd from conjectures and the Acts of Parliament require very wisely that the Rebellion be wilfull These who are here call'd Manifest and open Rebels are by the 4 th Act. Parl. 1 Ja. 1. call'd Notâ—or Rebels and notorium by the comâ—on Law is that which is committed Palam inspectante populo non egeâ— probatione Mattheus de prebat cap. 15. Clar. § Fin. Quest. 9. which is to be understood of that which is in se notorium but there may be notorium respectu noscentis without this as in Munklands case By the 97. Act. Parl. 7. Ja. 5. Such as reset any Rebels are punishable by Death and Confiscation of Moveables but it seems strange that resetting Rebels for a Civil Debt should infer Death or that resetting Traitors should infer no more and therefore the 144 Act. Parl. 12. Ja. 6. is more just ordaining the resetters of Rebels to be punished with the same pain that the Rebels ought to have been punished with By this Act also all men are bound to search take and apprehend them or to certifie the Kâ—ng and Council of their lurking in their bounds sub paena talionis By the 29 statut David 2 d. The Resetter is not to be punished till the principal Malefactor be convict but this was Repell'd in Blackwoods case because he had reset persons that were de facto nottor Rebels and certainly if a man should reset a company of nottor Rebels who could not be Convict because they could not be personally and distinctly known yet the Resetter might be Convict IS in Desâ—etude THough this Act appoints Deacons to be yet all Deacons are discharg'd Act 86 Par. 6 Jac 1. and Wardens â—re appointed in their place Act 103 Par 7 Jac 1. and thereafter Visitors are brought in Act 52 Par. 6 Q Mary But now Deacons are restored to all Incorporat Trades But Maltmen are discharged to have Deacons by Act 29 Parâ— 2 Jac 6. And yet if a Trade be not in Possession of a Deaconâ—ie they cannot begin to choose Deacons without first obtaining liberty from the Council for that effect by Petition so far still is the puâ—lict Peace of the Nation thought concern'd in all Deaconries and in a Process at the instance of the Trads-men of Brunt-Island against their Magistrates concluding that they ought to have Deacons because their Charter gave them as great Priviledges as Edinburgh had The Lords found that this Charter gave the Trades a Liberty to have Deacons but did not oblige them to have them and therefore they having liv'd so long without Deacons and the Trads men being so few they were not oblig'd to have Deacons In Spain and France such Colledges are discharg'd vide Perez ad tit 16 lib 11 num 19 Habere tamen possunt Decanum suum ibid vide infra Act 86. p 6 Jac 4. IS much innovated by the Book of Rates IS in Desuetude BEggars or Thigsters who are gentle Beggars should have a Token from the Sheriff or Magistrates of Burghs else they are to be burnt in the Cheek this Act Ratifies only the 25 th Act Par 1 Jac 1. and adds to it that the Chamberlain shall inquire in his Air concerning this but all this is Regulated by the 18 th Act Par. 2 d Sess 3 Ch. 2. THis Act is extended to Hearers of such Leasing-making Act 134. Par. 8. Jac. 6. by this Act Leasing makers lose Life and Goods and this Act is made to determine the uncertainty of the cap 21. stat Rob. 1. whereby the inventers of Rumours betwixt King and People were put in the Kings will I find an Act in England against â—he same Crime vid 3 Hen 8 câ—p 10 annot 1637. NOta That though the Legislative Power belongs properly to the King in the Parliament yet the Judicative Power belongs properly to other Courts and therefore by this Act private Causes are appointed to be discus't before inferiour Courts and the Parliament should not be Judges in the first instance But de facto many privat cases are intended before them THough by this Act it be ordained that honest men be appointed to modifie Assythments yet this modification now belongs to the Exchequer who modifie the Assythment when the Signature for the Re-in-mission
6 Ja. 4. these were to come in on 15. days Ejections Intrusions and succeeding in the Vice which are of the nature of recent SpuilÈies But since this Act appointed all Summons to come in upon 21. days dubitatur how the Lords could have priviledg'd any Summons upon fewer days though there was an old immemorial Custom for this prior to this Act of Sederunt and it will be fit to Ratifie this Act of Sederunt in the first Parliament By that Act of Sederunt likewise second Summons may be executed against persons within Edinburgh or the Suburbs thereof upon twenty four hours Vid. Observations on the Act 65 Parl 6 Ja. 4. THis is abrogated by the Union of the Nations MOney is yet escheated to the King and his Customs if taken out of the Countrey without a Warrand but that part of the Act which allows a Noble for every private man's expence is in Desuetude for now every man is allow'd to carry out what may defray his Expence and that part of the Act appointing every man to make Faith and swear that he carries no Money out with him is also in Desuetude but any man may be pursued for having carried out Money and his having carried out and the quantity may be proven by his Oath We see also in this Act that Seculars could not Judge Ecclesiasticks for Ecclesiasticks were to be Judg'd by the Official that is to say the Bishops Judge in whose place the Commissars are now come and this priviledge descends to Church-men from the Canon Law c. 2. de judiciis But since the Reformation this Priviledge fell for now all men whether Secular or Ecclesiastick answer to the Civil Judge The great reason why our own Coyn should not be carried out is because our Money is finer nor forraign Money being eleven denier fine and so is constantly Exported and being melted down into forraign Coyn is brought home again to us at a greater extrinsick value but yet because it might be doubted if this prohibition extended to the carrying out of all Money that is current or if that which is not current may be carried out such as Ryals c. For the carrying out of Gold and Silver is generally ordain'd to pay Custom when it is carried out by Act 15 Par. 1 Ja. 1. but by the 149 Act Par. 13 Ja. 1. The carrying out of all Gold and Silver Coyn'd or Un-coyn'd infers escheat of the Gold and Silver so exported Vid. not on Act 49 Par. 3 Ja. 1 Supra King JAMES the third Parl 2. BY this Act Noblemen and Gentlemen pretend to be free from Custom of what is imported for their own use as to which I have insert this Paper Reasons why the Nobility Barons and other Heretors in Scotland are lyable to pay Customs and Excise for what Commodities they bring in though for their own private use OUr Laws and Acts of Parliament have granted to His Majesty the Custom of all Goods exported or to be imported as is clear by the 251 Act 15 Par. Ja. 6. The Words being That His Majesty with consent of the Nobility Council and Estates have ordain'd that all Cloath and other Merchandice brought into this Realm shall pay Custom c. And therefore the King being as to this founded in the Rule all must be lyable except where there are clear exceptions derogating from the general Concession Likeas by an express Statute 14 Act Par. 1 Ch. 2. The Customs of all Goods are Confirmed to the King And a special A. B. C. Of all Customable Goods expressing what each species is to pay In which Act there is no exception of any person whatsoever By the foresaid Act 251 Par. 15 Ja. 6. Customs are to be paid to the King according to the use of any other Kingdom But so it is that â—y the use of other Kingdoms and particularly of England and France the Nobility Barons and others pay Customs for all imported Goods The Customs being granted for the Defence of the Kingdom and the Support of His Majesties Royal Dignity it is just that the Nobility and Barons should rather pay than any others since they are of all others most concerned to maintain the one and support the other Scotland being a Countrey that has no Consumption for imported Goods save within themselves if the Nobility and Gentry should not pay they might bring home all their own Commoditieâ— and so there should be little or no Customs due to the King They might colour the Trade of Merchants by granting simulat Commissions for bringing home the Goods of Merchants under their names which would occasion much Perjury and at least put the Customers to a Process and Suspend the payment of the true Customes till that were clear'd by Process When this Kingdom thinks fit to guard against the importation of any forraign Goods they do this by imposing great Customs as was lately done by imposing 80 per cent upon all English Cloath But so it is that if this exemption were allow'd to the Nobility and others these Prohibitions would be useless and ineffectual for those Prohibited Goods might be brought in by them and so our Manufactories could never be encouraged nor could we force other Nations justly to ballance their Trade with us or keep our Money within our own Countrey If these Exemptions were allow'd there could be no possibility of lessening and curbing the Luxury of the Nation For the Nobility and Gentry might still wear what they pleas'd at least it would be an encouragement to them to bring home things superfluous they being free from Impositions whereas their being burdened with Custom would discourage them to bring home superflueties The Exchequer has in their Tacks been in use to set the Customs with express order to allow no exemptions and the Customers have exacted Customs from the Nobility and Gentry which proves the Kings Possession and the acquiescence of those who plead the exemption Whereas it is pretended 1 o. Customs are regularly a Duty impos'd upon Merchandice and Traffique But what Noblemen and Gentlemen import for their own use is not Merchandice nor Commerce 2 o. By this Act and by Act 152. Par. 12 Ja 6. the 251 Act Par. 15 Ja 6. And the 143. cap. Leg. Burg. There is an express exemption from Customs granted to the Nobility Barons and other Heretors for what they import to their own use It is answered that as to the first Custom being impos'd for the uses foresaid the payment should be regulated by the reason that imposed the Imposition and not by the nature of the Traffique and if that were a good reason neither Merchants Burgâ—ssâ—s nor any else should pay Customs for what they are to apply and consume for their own privat use 2 o. Though that were generally true as it is not yet the Laws and Customs of this Kingdom should alter the case here as it does in other Kingdoms To the 2 d it is answered that 1 o. There is
of their own Sheriff-doms which is here restricted only to Justice-airs and Sheriff-courts by which I think is mean'd taking of Dittay but now both these Acts are in Desuetude for every place answers to Justice-airs according to the Division of their own Shires IT is most observable from this Act that it was made in a Scotish Parliament or Council holden within England which Refutes that Opinion that our Kings cannot hold Parliaments nor Councils without their own Territories upon the mistaken principle that Judex extra territorium jus non dicit It is likewise observable that this Act is made only by the King with the advice of his Lords And it is probable that this Act like a testamentum militare in procinctu must have some allowance given to it against the Common Rules and that it imported only a Discharge of the Wards and Marriages of such as died in this Host and was only valid because the King and Lords remitted only therein a Casuality due to themselves so that this Act was but a general Discharge by the King and his Subjects then present who were Superiours but why then is it inserted amongst the Acts of Parliament Or how could it have oblig'd absents And the Rubrick calls it an Act made by our Soveraign Lord King James the 4. and yet this is not properly an Act of Parliament for this Parliament is held in Anno 1509. whereas this Act is made in Anno 1513. and it may seem only an Act of Council made by the advice of the Lords that is to say the Lords of Council which Judicature then Govern'd the Kings Property by its Acts and it has been thereafter inserted amongst the Acts of Parliament for the greater security of those who had hazarded their lives at this time and therefore by the 3. Act p. 2. I. 5. This Favour is extended to the Vassals holding of Subjects K. JAMES V. Parliament I. THE Master by this Act is bound to deliver up his Servant who is attach'd or challeng'd as a Thief or Robber vid. Stat. Alex. 2. c. 21. Stat. Will. c. 15. Stat. Da. 2. c. 1. and Act 6. Par. 3. Ja. 5. And in the Registers of the Council there are many Bonds given by Masters in those terms vid. obs on the said 6 Act. King JAMES the fifth Parliament 2. THese two Acts discharging the Wards of those who were killed in the Kings Host or prorogating for 5 years the Tacks of Tennents were very reasonable but being temporary are not now in observance for the Wards of these who died in the Kings Host at Worcester or else where fell without any priviledge That the 3 d Act is Temporary only appears from these words That are now killed in pursuing or defending in time of Weir against our auld enemies of England for that enmity ceas'd by the Union Observ. From both these Acts that the receiving a deadly wound is equiparated to the being killed King IAMES the fifth Parliament 3. BY this Act the Porteous Roll was to be deliver'd to the Crowner but now it is deliver'd to the Sheriff when Justice-Airs are to be held though these who are Crowners do still protest against this Innovation When the Crowner got the Porteous Roll containing the names of those who were to be cited to the Justice-Airs he was obliged to cite them at their dwelling houses and Paroch Kirks by this Act for by the word Arrestment in this Act and many of our old Laws is meant Citation but if they can be apprehended personally this manner of citation is unnecessary though that be not here exprest By the present Practique if they cannot be apprehended personally they are to be cited at their dwelling houses and at the Mercat Cross of the Head Burgh of the Shire where they live 2. By this Act if the persons to be cited can be found the Crowner is to take Surety of them for their appearance which the Sheriff yet does but if they be not StreinÈieable that is to say if they cannot be apprehended then the Crowner was to arrest their Goods like to the annotatio bonorum in the Civil Law 3. If they have no Goods to be arrested they were to be put in the Kings Castles that is to say the Kings Prisons 4. If the King has no Castles within that Shire they were to be deliver'd to the Sheriffs who are bound to keep them securely By this Act the Crowner is to be answerable for the Caution he takes for the Act says That they shall take sicker Surety sik as they will stand for to the Kings Grace and it is pretended that the Clerk of the Justiciary is not bound for the Surety he accepts though the Crowner and Sheriff be because the Crowner is oblig'd to know who are Solvendo in the Shire which the Clerk of the Criminal Court cannot know through all Scotland but I think that both are equally oblig'd viz. to do exact diligence to know the solvency of these they take and since the punishment of taking insufficient Caution is not here exprest it seems to be Arbitrary and in effect to take Surety that is notorly insufficient seems the same guilt with letting a Malefactor escape THe Master here is only oblig'd to present such Tennents as dwell within the Shire with him but by the Act 2. Par. 1. Ja. 5. If the Complainer would attach the Tennent the Master be required to deliver him up whether he liv'd in the Shire with the Tennent or not he was to be punish'd as Art and Part in case he refused to deliver him up and by this Act he is only to pay the Unlaw But this last Act is not well observ'd for now no man is lyable for his Tennent except Highland Heretors and Chiefs of Clanns who are to find Caution to the Council for that effect vid. Acts 92 93 94 c. Par. 11. Ja. 6. But by this Act it is clear that the King may make Masters still lyable for their Tennents who live upon their Ground and that in any Court though this Act appoints them to be presented to Justice Airs since eadem est ratio and this Act was adduc'd for justifying the Proclamation that appointed Masters to be lyable for their Tennents vid. Act 2. Par. 1. Ja. 5. And the Acts there cited where Masters are lyable for Servants vid. tit 55. lib. 2. Feud where Vassals are oblig'd to present their servants to their Superiors if they have offended them But since by this Act Masters are only to be lyable for the Tennents unlaw if he present them not It may be doubted what this unlaw is since in Justice Airs if the Tennent was absent he was ordinarly denunced Fugitive for the Justice Court does not unlaw an absent Defender and therefore by this unlaw may be mean't what the Tennent would be unlaw'd in if he had been present vid. Stat. Will. Regis cap. 7 8. BY this Act these who are Surety
has spent more blood and money in the French service than all those priviledges were ever worth and it 's known that the last Concessions were granted to the Scots for giving Q. Mary in Marriage to the Dauphine of France whereby if he had had Children Scotland it self had been annexed to France and because the Scots did refuse her to K. Edward the 6 of England they were thereupon invaded by the English and their Nation was almost ruined 3. Though renumeratory Concessions might be quarrell'd as they cannot yet mutual Treaties and Contracts can never be abrogated nor taken away without the consent of both the Parties Contracters 4. The Scots being secured by Decisions of the Supream Courts of France as said is they have thereby the greatest security that the Law of any Nation can give As these reasons may convince any man that it were against the Justice of France to take away the priviledges of the Scottish Nation so the principles of prudence and policy seem very much to oppose the taking them away for 1. What can any other Strangers expect from Concessions Treaties or Contracts when so old and well deserved priviledges are questioned it being very well known to all Nations that Scotland has deserv'd extraordinarly of France and this Alliance has been famous beyond all the other Alliances now known in the World 2. The Scots and Scottish Nation have upon this account refused all other Alliances to their great loss and prejudice in so much that they have oft times suffered their Kingdom to be invaded harrass'd and ruin'd by the English because we preferr'd the French Alliance to theirs and as our Countrey-men have alwayes been ready to spend their lives for the French so within these 50 years we have lost 100000 men in their service who did not amongst them all bring home 20000 Livers to this Kingdome and it 's very well known how ready we are to own the French interest in all Courts and Countreys where we live abroad The Kingdoms of Scotland and England may come to divide by the failure of the Scottish Line in England and so it still seems prudent for the French King not to extinguish his interest in Scotland And whereas it may be pretended that we have forfeited our priviledges by declaring War against the French to this it is answer'd that 1. The denouncing of War by us was only the effect of a necessary obligation upon us as being a part of Great Britain and not a War enter'd into by Scotland upon any National account 2. By Treaties following upon the War all things are restor'd to the former condition they were in except in so far as former Treaties were innovated by express conditions but so it is there is nothing inserted in any of those Treaties to the prejudice of our former Leagues and Priviledges and therefore they must revive and return to the same force and vigour they were in before the War I find this Act Registrated and Recorded in the Books of Sederunt and generally it is observable that most of the publick Papers whereupon any legal Debates or Securities might depend were inserted in the Books of Sederunt which was somewhat like the French Custom of verifying in the Parliament of Paris that is the same with our Session the Kings Edicts and thus the pacification betwixt the Regent and the Hamiltons in anno 1572. and many such Papers are inserted there and of old even publick accidents were likewise insert such as Ecclipses c. Queen MARY Parl. 9. ORdinaâ—ly in Acts of Indemnity which follow Civil War as this is the King or State does only discharge all action that may be competent for all manner of Omissions or Commissions by vertue of any Power or Warrand of those in power for the time as is to be seen in the 10 Act 2 Sess. 1 Par. Ch. 2. But here in this Act all actions that may be competent for any Cause or occasion during the time for which the Troubles lasted are once discharg'd except there be a Warrand given by the persons named in the Act for intenting actions during that time but thereafter by the Act 44 11 Par. Ja. 6. the Lords of Session are made Judges to the Interpretation of that Act of Oblivion and all Decreets recovered during these times are declared irreduceable if they be not pursued within Year and Day and this short Prescription is declar'd to run against Minors which is likewise conform to the said 10 Act in which late Acts the nature oâ— Amnesties and Oblivion shall be more fully declar'd VId. obs ad Act 11 Par. 1 Ja. 1. VId. obs ad Act 49 Par. 13 Ja. 1. UPon this Act the Forgers or Bringers home of false Money use to be forefaulted as was found in the case of John Drummond November 27. 1621. and many other Cases and though it was alleadg'd in defence of Hamilton and Burn October 1677. that only Officers of the Mint-house used to be forefaulted because of their exâ—berant Trust and that it was easie for them to commit such Crimes yet Drummond was no Officer but a Sadler in Pearth the words of this Act that are ordinarly founded upon are that the Revealers of Forgers or home bringers of false Coyn shall have the one half of the Escheat of all their Lands and Goods moveable and immoveable and this punishment is peculiar to Treason and it seems that Forging or Coyning is an incroachment upon the Kings Prerogatives one of which is the Coyning of Money but I see not why bringing home of false Coyn could upon this account be declared Treason It is also observable from the former case 1677. that the meanness of the quantity or value Coyn'd excuses not from the punishment of this Act Vid. Crim. observ Tit. Falshood BY this Act it is appointed that no Parson Vicar or other Kirk-mans Manse or Gleib can be set in Feu or long Tack and therefore an Heretor to whom the Vicars Gleib was Feu'd though a year before this Act was refus'd relief when that Land was design'd to the Minister because the Feu set to him was contrary to this Act and though the Feu was set prior to this Act yet it was null because it was not confirm'd before this Act February 12. 1635. Vid. obs on 48 Act Par. 3 Ja. 6. ALL such as practise Witchcraft or consult with them are by this Act punishable by Death as are also all such as pretend to have any such Craft or Knowledge there-through abusing the people from which it is observable that such as pretend to fore-tell things to come or to tell where things are lost may by this Act be punish'd with Death though really they have no such skill By this Act also all Sheriffs Lords of Regalities and other Judges having power to execute the same are ordain'd to put the same in execution but it does not therefore follow that Stewarts and Bailliffs and Sheriffs are competent
run if that offer will hinder the incurring the irritancy for these years seing a Debitor may in Law pay before his day come and what if it be such a Prestation as must be performed yearly 8. If the Vassal will amit his Feu for not offering where he had a pretext to doubt who was his true Superiour and what he is to do in that case So much use the Lords to favour the Vassal against such severe irritancies that a Retour bearing in the first part of it an irritancy for not payment of the Feu-duty si petatur tantum they allowed the Vassal to purge though in the posterior part of the Retour these words were omitted in the Clause irritant it self February 18. 1680. Earl of Mar contra his Vassals Like to this irritancy was that of the Civil Law whereby non solutio pensionis per biennium in civill Emphiteusi per triennium in Emphiteusi Ecclesiastica efficiebat ut Emphiteuta a jure suo caderet by the Civil Law the irritancy mora in not payment was not purgeable but by the Canon Law it was In Tacks also with us the not payment of a Tack-duty for two years or terms infers an irritancy November 23. 1609. Murray contra Nisbit March 9. 1611. Seton of Baro contra Seton of Pitmedden which is also conform to the Civil Law l. 56. ff locati THis Act is Explain'd crim pract tit Usury BY the 18 Act 1 Par. Ja. 6. The bearing and shooting with Culverings or Daggs without the Kings Licence is forbidden under the pain of losing the Right Hand and that Act is here Ratifi'd and thereto is added Confiscation of Moveables and by the Act 6 Par. 16 Ja. 6. It is appointed that the Contraveeners of these Acts may be pursu'd either before the Council or the Criminal Court and when they are pursu'd before the Council it is provided that they shall not lose the Right Hand It may be argu'd from this Act that where there are two punishments appointed by two different Laws the last is not added to the first but either it antiquats the first or else either of the two can be only regularly inflicted for else this Act needed not say sâ—â—a that the ane pain shall not stop nor stay the other From that 6 Act 16 Par. It may likewise be observ'd that the Secret Council are not Judges competent to Life and Limb such as the amputation of the Right Hand By the Lex Julia It was lawful to carry Arms without Rome but not in the Town but they were every where thereafter Discharg'd Tit. 46. lib. 11. C. ut armorum usus inscio principe interdictus sit BY this Act is Ratifi'd an Act made at Dundee by the King His Nobility Council and Estates which was an Act of the Convention of Estates for the Convention of Estates ordinarly considered the matter of Coinage nor needed that a Parliament because Coinage is a part of the Prerogative and by the Estates there were mean'd some of every Estate taken by the King for advice From this Act it was urg'd in the Lord Hattons case That 1. By this Act it is clear that we had a different Standard from England which is to be eleven pennie fine 2. That it was lawful to melt down current forraign Coyn because this Act allows it to be us'd as Bullion Nota This is the first Act that mentions the General of the Mints Office as different from the rest BY this Act it is clear that the Convention of Estates made Acts also discharging the Transportation of Wool and the like and this Act as to Wool is again Ratifi'd but a power is allow'd to the Exchequer to Transport Wool contrary to this Act Act 40 Par. 1 Sess. 1 Ch. 2. But even this Act discharges only bypast Licences but not Licence for the future for these are allow'd even for Wool by the 254 Act of this same Parliament BY this Act Customs are declar'd to be due to His Majesty of all that is brought in from forraign Nations and by the 27 Act Sess. 3 Par. 1 Ch. 2. The ordering and disposal of Trade with forraigners is declared to be His Majesties sole Prerogative and therefore some think His Majesty may impose upon forraign Commodities what he thinks convenient for since he may discharge the Trade if He pleases it seems to follow that He may burden it as He pleases By this Act an a b c. of the Customs is to be put upon all Commodities that is to say a particular index of the several Customs imposed upon every several Commodity is ordain'd to be made according to the Letters of the Alphabet and this has varied in several ages the present a b c. being made by order of the Parliament 1661. vid. statut David 2. cap. 12. num 3. where this priviledge as to paying of Customs is formerly declar'd and by the Canon Law this was likewise declar'd lawful to Princes vid. perez ad lib. 10. C. tit 18. num 13. l 5. C. de jure fisci where it is said officialibus vâ—lentibus ea capere debet acquiescere From these words of this Act Albeit it cannot be deny'd that His Majesty is a free Prince of a Soveraign power havand al 's great Liberties and Prerogatives be the Laws of this Realm and priviledge of His Crown and Diadem as any other King Prince or Potentat whatsoever It is observable that our Kings are here acknowledged to be absolute and Soveraign Monarchs as is likewise more fully declar'd by the 1 Act Par. 18 Ja. 6. In which it is said Whom the hail Estates of their bounden duty with maist hearty and faithful affection humbly and truly acknowledges to be Soveraign Monarch absolute Prince Judge and Governor over all Persons Estates and Causes both Spiritual and Temporal within His said Realm By neither of which Acts I conceive our Kings are so absolute as that they have a Tyrrannick or Despotick power but that they are so absolute as that they have power to do every thing that is just and reasonable though they be not thereto empowered by particular Acts of Parliament and therefore they are ill Subjects and worse Lawyers who allow the King to do nothing but that for which he can shew an Act of Parliament since his being an absolute Monarch implyes this innate Power and therefore it follows by a better consequence when any thing is contraverted that the King may do the thing in controversie being reasonable if his power be not as to that point restrained by a particular Act of Parliament It is likwise very observable that this power of absolute Monarchy does not flow from the people but is his own Right for no Act of Parliament grants the King any Prerogative but only declares by way of humble acknowledgement what his Prerogatives were principibus says Tacitus summum rerum judicium dii dederunt subditis obsequii gloria relicta est lib.
allowance is only specifickly given to Dukes Marquesses Earls Viscounts Lords or Prelats and yet I see no reason for the Distinction but on the contrary it seems more reasonable that to the end a whole Shire may be represented that therefore they may be allow'd to deput some to Vote in case others be absent for though it may be answer'd that the power of Proxies is unnecessary in Shires because if their members be necessarly absent they may choose others For to this it may be reply'd that they cannot choose new Commissioners except in case of Deâ—th whereas the Shire may be much concern'd to have their Proxies at any one Dyet Likeas by the 52 Act Par. 3 Ja. 1. All Free-holders are allow'd to have Proxies in case of lawful absence from Parliaments It is ordinary also for the chief Burrows to choose and send an Assistant to attend their Commissioner Observ. 2. By the said 52 Act Par. 3 Ja. 1. absents seem only to be allow'd to send their Procurators for excusing their absence but by this Act they are allow'd to Reason and Vote and therefore it may be doubted whether a Brother who cannot Vote in his own Brothers Cause may notwithstanding be admitted to Vote for his Brother as Proxie for another to whom his Brother is a stranger since here sustinent personam extranei but seing the affection is the same I think they would not be allow'd nor does the Parliament now allow Proxies in any case It may be liâ—ewise doubted if this Act may be extended to Conventions since the Act speaks only of Parliaments and does not add or other General Councils as the Act 113 Par. 11 Ja. 6. and other Acts do but yet the Act 52 Par. 3 Ja. 1. allowing Proxies in absence speaks of Parliaments and General Councils Obs. 3. It is the Kings advantage and interest that Proxies should be allow'd for they are only to be allow'd by this Act where the reason of absence is warranted by the King His Commissionâ—r or Council and so the King may allow Proxies or not as He pleases and needs never allow any to those whom He suspects which is also the present Custom of England as to the Peers Observ. 4. That though Letters of Actourney out of the Chancery be sufficient for absence in other Courts yet by this Act the absents must give a written warrand under their own hand THis Act gives instructions to Justices of Peace and Constables which iâ— renew'd and somewhat altered by the 38 Act Par. 1 Ch. 2. But by this Act their Decreets are ordain'd to receive Execution by Letters of Horning and Poynding and that no Suspension shall be granted but on Consignation which Consignation is neither appointed by the foresaid Act 38. nor is it now in viridi observantia and though by both the Acts they are ordain'd to proceed against Cutters of green Wood Slayers of red and black Fish c. yet they are not in use to proceed in such cases because the Act appoints that Commissions shall be granted to them for that effect but these Commissions have never as yet been granted Though by our Customes no person can be holden as confest except they be personally cited because else men might be drawn in snares by Citations at Dwelling-houses yet here they are allow'd to be holden as confest upon the second Citation at their Dwelling-houses because the subject is small in Justice of Peace Courts This Act is likewise Explain'd crim pract tit Justices of Peace and is Ratifi'd by the 38 Act Par. 1 Ch. 2. Where the Council is allow'd to grant them what further instructions they shall think fit The Council uses to name Justices of Peace in place of such as dy and it being alleadg'd that all Commissions for Justices of Peace should slow from the King immediatly this was refused by the King as being contrary to the constant Custome of Council whom the King allows to name Justices of Peace BY this excellent Act such as have peaceably possessed their Lands for fourty years are secured by Prescription As to this Act it is observable First That Prescription is only competent to such as have bruiked by vertue of Heretable Infeftments and therefore he who alleadges Prescription must alleadge an Heretable Title but though the Possessor be not expresly Infest yet if he has possessed the subject as part and pertinent it will be sufficient and therefore a Salmond-fishing was found to be prescriv'd though it was alleadg'd to be inter regalia since the Prescriver was Infest cum piscationibus in general February 7. 1672. But if the Prescriver be Infest upon a bounded Evident it will not furnish him a valid Title for prescriving as part and Pertinent any Land that is without the bounding November 14. 1671. This Act is also extended to Heretable Offices as to Patronages Pensions and all Servitudes though not expresly mention'd and though Heretors and Wodsetters are enumerated sometimes as different from one another Act 6 Sess. 2 Par. 1 Ch. 2. yet Heretage in this Act comprehends Wodsets and it is even extended to long Tacks so that it was found that after fourty years they could not be quarrel'd as granted without consent of the Patron July 7. 1677. This want of a Title likewise and of bona fides hinders a Vassal to prescrive against his Superiour since the reddendo of that same Charter whereupon he founds his prescription obliges him still to know his Superiours Right and by this Act for the same cause a Wodset cannot prescrive where the Reversion was incorporat in the body of his own Infeftment Since this Act appoints that His Majesties Lieges bruiking for 40. years shall have Right by prescription it may be doubted whether prescription can run in favours of strangers who have not been Naturalized Observ. 2. That these fourty years are only to run from the date of their Infestments by this Act and yet in warrandice it is only to run from the date of the Distress but from both it is clear that the reason is because till then they who have such Rights non valent agere and therefore the exception allow'd by the Civil Law of non valens agere is allowable in ours though it be not expressed in this Act as minority is whereby it seems that exceptio firmat regulam in non exceptis Likeas it was found in the Earl of Lauderdail's case against the Earl of Tweddel that Lauderdail being Forefaulted by the Usurpers prescription could not run against him during that Forefaulture but where there is a Title prescription may run albeit the Defender was absens reipublicae causa at the least durst not come home in the Usurpers time for alleadg'd Crimes committed against them as was found in White-foords case the 24 of July 1678. He having kill'd in Holland Dorislaus one of the Kings Murderers for the Lords thought that he might have Transferr'd his Title to another and if this reason hold it seems that
though the person against whom the Comprising was led was dead and the sixty dayes were expir'd and found that notwithstanding thereof it should be prefer'd to a Comprising whereof the allowance was Registrated after its Registration Observ. 2. That by this Act a Comprysing is not declar'd null for not being allow'd and so was not excluded by a posterior apprysing first allow'd but both were brought in pari passu which last part of the Decision may seem strange since it is expresly declar'd by this Act that the not allowance shall be with Certification that a posterior Comprising first allow'd shall be prefer'd according to the date of the allowance November 29. 1672. Maxton contra Cunninghame and so they could not come in pari passu But the reason of this Decision must be that by the posterior Act 62. of this same Parliament all Comprysings led within year and day of others are ordain'd to be brought in pari passu and these Comprisings have been led within year and day though the Decision mention not this And this I find decided July 17. 1668. Stuart contra Murray Observ. 3. That if the Appryser has obtain'd Infeftment without allowance he will be prefer'd because as I think his Infeftment being Registrated in that case supplies the not Registration of his allowance and Certiorats singular Successors sufficiently Observ. 4 This Act Narrats that it was ordain'd formerly by Act of Secret Council that the whole Comprisings and not a Breviat should be Registrated Which not being authoriz'd by any Law or Act of Parliament is therefore Discharg'd from which it appears that the Secret Council use not only to make Acts relating to Government or to regular prices of Writs as appears by the 19 Act 23 Par. Ja. 6. Or to discharge Bakers and Candle-makers to keep their Broom-stacks or Melting-houses within Towns as in the 29 Act 23 Par. Ja. 6. But even to make Acts relating to Registration and Competition of Writs which though the Parliament does here openly condemn yet tacitly this Act declares their Act was no Law and they could less have made such an Act than the Lords could have made an Act of Sederunt ordaining Seasins within Burgh to be Registrated which they found only the Parliament could do and it is observable also that this Act of Council did therefore soon run in Desuetude and the Parliament confirms the contrary Custom Observ. 5. This Act Narrats that by a Custom allowances of Apprysings did contain and express the Names and Designations of the Apprysers the Names of the Defenders whereas it should have said Debitors though the Debitor be a Defender in the Comprysing which is a Decreet the Debts for which the Comprising is Deduc'd the Messengers and the Clerks names the Date of the Executions the Witnesses names thereto and the Superiours names which Custom being authoriz'd by this Act it may be doubted if the omiting any of these particulars in the Registrated allowance would annul the same since the Act does not subjoyn an irritancy THe difference concerning Heretable and Moveable Bonds is fully Explain'd in my Institut Part 2. tit 2. BY this Act these who Marry themselves Clandestinly or inorderly are to be imprison'd for three Moneths and beside to pay each Nobleman a Thousand Pounds each Baron and Landed Gentleman a Thousand Merks each Gentleman and Burges five hundred Pounds each other person an hundred merks Observ. 1. The want of the Parents consent or of the consent of others having interest seems by the Narrative to infer the Clandestinness of the Marriage But yet by our practique Children Marrying without the consent of their Parents if they be of age and the Marriage otherwise regular they are not punishable wherein we seem to agree rather with the Counsel of Trent than either with the Law of God Exod. 22. and 17. Numb 30 Deut. 7.3 Or the Civil Law Institut de nuptiis l. 2. ff de Ritu nupt Observ. 2. That it may be doubted whether since this Act appoints no punishment to Women if a Noble-woman being an Heretrix Marry a Gentleman Disorderly she may be punish'd as a Noble-woman or he only as a Gentleman and I think she should be punisht as a Noble-woman having precedency as such Observ. 3. That it has been doubted if an Expectant having power to Preach and being appointed a Presbyter but having no settled Kirk and Marrying persons the Marriage can be punished Or if such as Marry by a lawful Minister of another Paroch without Warrand either from the Bishop or the Minister of their own Paroch may be punished by this Act. Observ. 4. By the 9 Act Sess. 3 Par. 2. Ch. 2. Such as enter into these Disorderly Marriages lose their jus mariti or jus relictae by and attour the penalties here express'd Observ. 5. That the Marrying in England or Ireland without proclamation of Bonds in Scotland and against the Order observ'd in this Church infers the former Fines but the Marrying without proclamation of Bonds is not per se sufficient and therefore if there be a Dispensation from the Bishop Quaer if the Marriage is not Clandestine and it seems it is not for the Bishop may be mis-inform'd as if the Woman wanted parents And by the Narrative of this Act the want of the parents consent is made an impediment as well as the having granted a prior promise to another and therefore as the Bishops Warrand should not defend in the one case so neither should it in the other but it is still periâ—ulo petentis else Bishops should innocently become the Instruments of Robbing us of our Children and Estates and of taking them away in such manner as that parents can neither see their Daughters provided to competent Jointures by the Husband nor the Husbands who Marry them sufficiently provided by the Father in Law Quaer 2. Whether is the consent of the Mother necessary when the Father is Dead and I conceive it is especially when she is intrusted by the Father and the Child stays with her for though the Daughter be not in potestate materna yet she is a Parent and this Act requires the consent of Parents and the Instituts tell us that naturalis civilis ratio requirit consensum parentum nor can it be deny'd but the Mother has an equal natural Relation and by this Interest Law incourages and rewards the Mothers pains Quaer 3. What if the parents refuse reasonable offers and yet the Child is Marriageable To which it is answer'd That the consent should be first askt and why they refuse that the Judge may when the parent thereafter complains consider if the parent was culpable in refusing his consent Quaer 4. If the being Married by their own Minister without proclamation or Dispensation from the Bishop be sufficient and though the Minister have a Warrand from the Bishop Yet by Act of Synod he is discharged to Marry in a privat House except the Warrand dispense therewith
For though these be Heretable yet they are but Temporary Rights being Redeemable there is another Paper Register likewise for Retours Of old the precept of Seasin did pass the Quarter-Seal But because that was expensive and troublesome therefore they are now ordain'd to be ingrossed in the Charter and so pass the Great Seal only By this Act likewise Charters which were formerly in a large Skin of Parchment are by this Act ordain'd to be Written by way of a Book that they may thereby be the more commodiously Read the Line being very much shorter in the one than in the other BY an old Custom in Scotland Burgesses might have arrested Strangers if they found them within their Burgh till they faud Caution to pay them what was due But by this Act this is Restricted to Horse or Mans Meat AbuilÈiments or other Merchandise for which they have no security which Act was found not to extend to such as lived upon the Borders of either Kingdoms The Custom having been amongst the Borderers of each side to cause one another find Caution judicio sisti judicatum solvi lest otherwise the English might have drawn the Scots to London or the Scots the English to our Session Laws unknown to either and therefore since the English continued this Custom after this Act of Parliament it was fit that the Scots should have the like priviledge of arresting such as dwell in England January 13. 1676. Bell contra Robertson and it was found by the Council that the same Custom had been and therefore should be allow'd to Sheriffs and other Magistrates without Burgh so that the Sheriff upon the borders may arrest any English-man till he find Caution judicio sisti judicatum solvi By this Act Burghs of Regality and Barony are discharged to arrest or Incarcerat any person who are not Burgesses or Inhabitants in their Burghs for any manner of Debt which seems to imply that they may arrest their own Burgesses who are Inhabitants Likeas de facto they use to arrest such This Act having Discharg'd all such arrestments except for Horse or Mans Meat AbuilÈiments or other Merchandize The Lords February 22. 1677. Found that a Merchant could not arrest a stranger within Burgh until he should find Caution to answer as Law will for payment of the price of a Bargain of Victual which had fallen to the said Burges as a part of his Fathers Stipend and consequently was of the nature of other Ferms though it was alleadged that this did fall under the word Merchandise and that Corn so falling to be due might as well fall under this Act as a Merchands Shop falling under Executry or Legacy THis Act Ordains that no person shall Ordain or be Ordained Ministers except in the way prescriv'd by the present Government of the Church under the pain of Banishment and Confiscation and whosoever shall be married within this Kingdom by the foresaid persons or any not authorized they shall amit and lose any Right or Interest they may have by that Marriage jure mariti vel jure relicti and that by and attour the penalty contained in the Act 1661 which is the 34 Act Par. 1 Ch. 2. Upon this Act His Majesty having Gifted the jus mariti of Hume of Kimmorghame who had Marâ—ied the young Lady Aiton and a Declarator being pursu'd at the Donatars Instance· It was alleadg'd That first The person who Married them had a Licence from the Arch-bishop of St. Andrews to Preach 2. That the jus mariti was not declared by this Act to fall to the King but only that the Husband had amitted the same and that the King can have Right to no Confiscation except where the same is expresly declared to belong to Him by the Statute which inflicts the Confiscation To which it was answered That as to the first no man could Marry any within the Paroch of any Minister without leave from that Minister who could only understand whether the parties might be Married lawfully nor is the being ordained a Presbyter sufficient since that gives only power to Preach but not to Baptize or Marry Marriage especially requiring Proclamation of Bonds which is de officio Parochi To the second it was answered that by Law all Confiscations cedunt fisco whether the Act appoint so or not this being the very nature of Confiscation as is clear by Peregrin de jur fiâ—â— lib. 4. cap 8. num 9. For cui competit accusatio ei desertur poena nam poena est effectus tantum accusationis and Penalties being introduc'd in solâ—â—ium ejus cui fiâ— injuria that should belong to the King to whom the Injury was done 2. The design of the Act was to punish such as Transgressed and contemned the Government of the Church whereas it were no punishment for the Husband to lose his jus mariti if the same fell to the Wife 3. If it fell to the Wife she was uncapable of it being in the same Delict 4. Nothing by our Law can subsist in the person of the Wife and therefore if the Husband do Renounce his jus mariti in favours of the Wife it does by our Law return to the Husband 5. If this were allow'd not only might the Wife in other Cases and particularly in this be Rewarded for Transgressing the Law since for Marrying irregularly she would have â—â—ight to the jus mariti of her Husband but this would prompt all humorous Women to Marry irregularly that they might get a jus mariti and Administration of their Husbands Estate and Dominion over him 6. If this were allow'd the Husbands Creditors might be easily cheated for they might Marry disorderly and so their Creditors could have no Right to the jus mariti and this would open a Door to those Frauds against which our Law has so seriously guarded It may be doubted from these words of the Act Whosoever shall be married within this Kingdom that such as are Married without the Kingdom incur not this Penalty though they should go upon Design which if it were allow'd would frustrat absolutly the Act for the Transgressors might still go over the Border and be Married and by the said 34 Act Par. 1. All persons having their Residence in Scotland are discharged to get themselves married in England or Ireland without Proclamation in Scotland and since the Law looks upon actus elusorios as inefficaces so that if a man should go out of Scotland to shun a Citation to the end another Compriser may be prefer'd coming back after he is Cited by the first upon sixty Dayes to the end the second may Cite him upon a shorter time and so be able to lead the first Comprising the first Citation would be preferr'd and consequently it were unjust that this which is a greater Collusion should be allow'd THis Sumptuary Law against Apparrel is restricted and Explained by the 3 Act Sess. 4. of this Parliament and the whole Act is now in Desuetude THis
caducitatis comminatione legali certus terminus statui si â—â—tra eum instrumenta non edat This Commination is our Certifiâ—ation and this Terminus is our Term in Improbations Rosenthal cap. 8. concl 33. num 13. and 14. In these Actions the King needs produce nothing to prove that he is Superior for the King is presum'd to be general Superior and is Infeft Jure Coronae in all the Lands of Scotlaâ—d but though other Superiors must produce a Seasing of the Lands yet they need produce nothing to prove that the Dâ—fender is Vassal who is oblidg'd to produce upon his hazard or else to disclaim and yet if the Superior Libel only that he is Infeft in such an Earldom and that the Defenders Lands are part and pertinent of the Earldom without producing any thing to instruct that he stands expresly Infeft in these Lands as a part of his Earldom the Lords would not put the Defender in that case to produce Simpliciter but allowed the same day to the Pursuer to prove that they were Part and Pertinent of the Lands wherein the Pursuer stands Infeft and to the Defender to produce if that were proved for the Lords thought it hard to force Heretors to propale and lay open the secrets of their Coveyances where it was not certain if the Pursuer had any Interest albeit it was alleadged that this would occasion two Litiâ—-contestations in one Cause viz. One whither the Pursuer had Right and another whether the Defender had sufficient Interest to seclude the Pursuite for the Lords thought that this being an Act before answer did solve this difficulty and the ordinar Maxime that the Vassal must disclaim upon his hazard and the Argument that either the Pursuer was Superior and would be found to be so and then there was no wrong done or else he was not and in that case the Defender was in no danger by disclaiming were both found only to take place where the Pursuer produc'd a special Right to the Lands Libell'd but not where he pretended only that the Land possest by the Vassal was part and pertinent of his Land which any Pursuer might alledge The third and old way of forcing the Vassal to exhibit his Evidents was by a Feudal Tryal per pares curiae that is to say before an Inquest for of old the King summoned his Vassals to appear before an Inquest to bring with them any Right they pretended to such or such Lands and that way is exprest in this Act as well as the other and in Statut. 36. Rob. 3. num 3. but is now in Desuetude The Lords of Session being come in place of the Inquest The Earl of Rothes as Donator to the Ward of the Countess of Buâ—cleugh having pursued the Tutors for inspection of the Charter-Chist that he might know what Lands held Ward The Lords ordained one of their own number to take inspection and to shew to the Donator what Papers could prove the Ward-holding because it is presumed that all Lands hold Ward Decem. 20. 1661. FRom this and the subsequent Acts It s observable that the Parliament may without citing parties discharge priviledges contained in private mens Rights though they cannot without citation casâ—e and annul privat Rights FOR understanding this Act It is fit to know that the distance betwixt the Hecks of Cruivs should be 3. inches wide which is renew'd by the 74. Act Parl. 10. Jac. 3. and should not be 5. inches conform to the 15. Act. Parl. 2. Jac. 4. which the Lords found 29 July 1665. to be ane error in the Printing They there also found that the Mid-stream was in Desuetude notwithstanding that it was reviv'd in all these Statutes but that the Saturndays Slop was to be observ'd in all Cruivs which was to continue by pulling up all the Hecks to the breadth of an ell in every Cruive from Saturnday at six a clock till Sunday at Sun-rising THough Mines of Gold and Silver be by this Act declar'd to belong to the King yet by the 27 Act. Parl. 4. Sess. 2. Car. 1. they were declared to belong to the Heretor he paying to the King the tenth Penny which was the Canon Metallious that was only due out of Mines found in private Fields l. 2. C. de Metal But that Act is resâ—inded in the general Act Rescissory and this Act is conform to the Feudal Law Feud lib. 2. tit quae sunt Regalia 56. It has been doubted whether Lead Copper or Tin belong to the King or the Heretor but the King is in possession of disponing upon these also and when He dispones them in a novo damus even to the Heretor He reserves a tenth part to be payed in to His Exchequer and His Majesty has granted general Gifts of all Copper-Mines and Craig tells us lib. 1. dieg 14. that omnium gentium omniumque aetatum consensu â—odinâ—s omnes auri argenti stanni aris similium in patrimonio principis numerari but yet they are not enumerate in the foresaid Text of the Feudal Law otherwise than by being comprehended under the word argentaria frequens est in jure sub majoribus minora comprehendi and yet I think that if His Majesty dispon'd Land with all the Silver-Mines this would not comprehend Copper Tin c. So that this Rule holds not in all Cases nor doth it hold in any Case where things require special Dispositions as omnia regalia do Nota From this Act to the 23. the Acts are either in desuetude of no import or explained in the Observations upon other Acts. BY this Act it is ordain'd that our Coyn be of the weight and fynness of England which was formerly ordain'd by the Ch. 38. Stat. Dav. 2. and though by the 17. Act. Parl. 1. Ja. 6. It is declar'd that Our Soveraign Lord cause Print and ConÈie Gold and Silver of sick fynness as other Countries doe yet after King James succeeded to the Crown of England He past a Contract betwixt the Mints of both Nations wherein they oblige themselves to keep the same Standart and though the denominations be different now yet the Standart is now the same For the English Denomination is 11. vnces 2. deniers fine which is call'd Sterling fyne ours is 11. deniers and 2. graine and albeit upon a very subtile inquirie It is alleadg'd that the Denominations cannot be adjusted without some difference yet it is so small a fraction as is not to be regarded and there are four indented Pieces two of Gold and two of Silver made of the same fynness and out of the same Essay-pot two whereof are sent to Scotland the one of which is kept by the Thesaurer and the other in the Mint and two are retain'd in England the Denominations are Printed upon these Pieces and in the Lord Hattons case it was found that this common Standart was to be the Rule Vid. Observation on the 249. Act 15. Parl. Ja. 6.
101. Act Parl. 7. Jam 5. all the Visiters are to be appointed by the King and by our present Practice All Actions intented for causing Patrons or others Compt for their Intromissions with the Rents of Hospitals are still intented at the instance of the Chancellor By the Canon Law Curis Hospitalitatis Hospitalium ad Episcopi solicitudinem pertinet sed ubi non aedificantur Hospitalia cum permissione Episcopi locus non est sacer nec est sub Episcopi cura HEreticks are by this Act to be punished as Law of haliâ— Kirk requires id est by Excommunication with us they were burnt and by Act 46. Parl. 3. Jam. 6. Church-men who are Hereticks are to be Excommunicated and Depos'd if they revock not their Heresie the punishment by the Common Law is Burning and Confiscation of Moveables Clar. Num. 13. This Act was made against the first of our Reformers called then Lollards for the Rubrick in the Black Impression bears of Hereticks and Lollards Obser. From this Act it is observable that the Kirk was Judge to Heresie in prima instantia and Clarus makes the Tryal so far Ecclesiastick that the Cognition belongs to the Church and the punishment to the secular Judge but with us the Justices are Judges in prima instantia IT may be alledged from this Act that all Transgressions of Law are not punishable as contempt of Authority where there is no express sanction in the Law since by this Act it is appointed that the Breakers of Acts of Parliament are to be punished after the Form and Ordinance thereof By which words also it seems that all Acts of Parliament are with us stricti juris and not to be extended de casu in casum but yet with us Laws are extended by Parity of Reason and by Analogie as in the case of making Men answerable for their Wives not going to Church c. And the meaning of this Act is that Judges shall not have liberty commutare paenam Lege definitam expresse for the best Lawyers acknowledge that though an Statute should say And it is ordained that this Statute shall be understood exactly according to the Letter yet it is capable of even an extensive Interpretation if no unjustice follow on that extension but much more if without this it would be unjust Bald. de stat num 3. Voet. de statut sect 7. cap. 1. And a declaratorie Interpretation is by all Lawyers acknowledg'd to be a Literal Interpretation Voet. ibid albeit in general it cannot be deny'd that these who have power to make Statutes must by a necessarie consequence have power to modifie and qualfie them as they please and as they may allow inferiour Judges a Power to Interpret Statutes in general so they may discharge them in a particular Statute to use that their Power and in that Case an inferiour Judge cannot Extend or Interpret otherways than in the terms foresaid LEagues and Bonds are by this Act only declared null but by the Act. 12 Parl. 10. Jam. 6. and Act 4. Parl. 1. Ch 2. they are declared punishable as Sedition and were punishable by Warding Act 43. Parl. 6. Q. Mary IF any carry Horses under three Years old to be sold out of the Country they Eâ—cheat them by this Act and by the 22 Act Parl. 1. Jam. 6 If Horse without making difference as to their Age be carry'd beyond Sea the Horse and Ship and Goods of the Owner are Escheated and their Persons to be punished arbitrarly It is declared by that Act that there were several Acts before discharging the exportation of Horses whereas I see none save this and therefore these behov'd to have been Acts of Council or unprinted Acts of Parliament though generally all Acts inferring Escheat should be printed for Certioration These Acts are now in Desuetude carrying Horses out of the Country being an Improvement of Rent though that was then discharg'd upon the account of our Wars with England but it would appear that the carrying Horses out of the Kingdom till they be three Years old was not discharg'd upon the account of War but to the end the Horses should be kept till they gave a greater price and so should bring in more Money therefore this Prohibition it seems should still last BY this Act Tallow transported is escheated and the reason hereof is given by the 123. Act. Parl. 7. Ja. 5. because by the transportation thereof it became very dear at home and therefore the escheat of the transporters whole Moveables is added but the ill Increasing the Moveables of the Masters and Skippers of such Vessels in which it is transported are declar'd to fall under Confiscation Act. 40. Parl. 6. Q. M. And this Act extends the former to Strangers It is Observable that though this Act discharg'd all Persons to export yet all other Acts mentions Strangers when it is design'd that the Prohibition shall be extended to them as is also clear by the Act. 22. Parl 1 Ja. 6. and the 31. Act. Parl. 7. Ja. 2 d. So that it may be doubted if such penal Acts should be extended to Strangers where they are not mention'd and if the words all Persons are not in our Acts to be restricted to Natives Though by the Civil Law the owners be lyable for the Skippers fault in so far as concerns the prejudice done in the Ship yet it seems hard that an owners escheat shall fall for the Skippers taking in Tallow else Rich men would not be Owners and Skippers might Maliciously ruine their Owners and therefore it seems that by Masters here should only be mean'd Skippers and by the Civil Law the Skipper was call'd Magister Navis THough this Act punishes only Stealers or Cutters of Green Wood in the night time yet they are punishable for such Faults at all times the punishment is exprest Act. 84. Parl. 6. Ja. 6. but thereafter cutting of Green Wood is punisht as Thift with Death Act. 82. Parl. 11. Ja. 6. and yet I find none ever punished Capitaly for this Crime and the ordinary way of pursuing is by Process before the Sheriffs or the Lords for pecuniarie mulcts BY the Common Law no Judge can cite a Malefactor without his own Territorie and therefore if a man cut my Trees I could only pursue him within my Jurisdiction ratione criminis commissi if I find him within it but yet heâ—e it is enacted that if a man steal my Wood the same shall be punished in the Court within which tâ—e Lands lye out of which the Wood was stolne and none other but it seems that this being only introduced in favours of the Person injur'd he may renunce it and pursue before the Judge of the Jurisdiction in which the Offender dwels who cannot obtrude this Statute FOr clearing this Act Vid. infra Ja 1.9 Parl. Act 131. BY this Act Stalkers of Deer are to pay 40 shilling to the King and their Resetters ten pounds
guilty it is not just to admit Caution and the true speciality upon which the Council founded that Resolution was because above four thousand were delated in that Porteous Roll for Treason and it was almost impossible to Imprison all The Acts 50 51 52 53 are abrogated by the Union of England and so is the 56 but though they be abrogated yet the following Observations may be made from them Obser. 1 o. From the Act 52. that the supplying the Scottish Towns then under the Command of the English is declar'd Treason as is in general the assisting of all Enemies to the State vid. Ja. 1 Par. 13 cap. 141. Ja. 2 Par. 12 Act 50. For though we have no special Statute declaring the assisting of Enemies of the State to be Treason Our Acts running generally against such as assist declar'd Traitors or assure with English men in particular yet it is Treason by the Common Law l. 3. ff ad l. Jul. Maj. And such of our Nation as continued in the Dutch Service during the War with Holland in anno 1666. were forfaulted as Traitors By the second part of this Act it is declared Treason for any who ride with the Warden of the Marches or any other Chiftain to go away with any manner of Goods till they be thirded that is to say till they be divided for one third by the Law of the Borders belongs to the King a second third to the Warden or Chiftain and a third to the Apprehenders For understanding whereof it is fit to know that Lands when taken from Enemies become the Kings or the Common-wealths by the Laws of all Nations but Moveables by the Law of GOD Deut. chap. 20. vers 14. Josh. chap. 8. vers 1. when taken were divided equally amongst the Takers But sometimes there was a Division the one half falling to such as Fought the other to these that stayed with the Baggage and a fiftieth part of their part who Fought not was dedicated to the LORD whereas one of five hundred was only Consecrated out of their part who Fought Num. 31. verse 50. At present Grotius distinction lib. 3. de jur Bell. c. 6 11 12. Is generally observ'd whereby if Moveables be taken by a party led on by an Officer who only knew the design then the Souldiers get no share but all falls to the publick but if the Moveables be taken in Excursions or free Adventures they belong to the Takers And Voet. c. 5. n. 19. de jure milit Sets down the several proportions whereby Goods are divided amongst a Party and Officers in Holland where if the Party exceed 50. the Captain gets a tenth the Leiutenent a fifth the Ensign a third the Quarter-master a double portion the Serjeant one and an half and each Souldier a single share but still the Horse get double of what is due to the Foot BY this Act which is a continuation of the former it is declared Capital for any man to take from another Goods or Prisoners which they are in Possession of from which it is observable in War that Possession or Capture gives only right thus Inst. de rer div Par. 17. It is said Item quae ex hostibus capiuntur statim jure gentium capientium fiunt and therefore a Ship being pretended to belong to the King because one of the Kings Friggots had beat the Convoy that Guarded her and was in pursuit of another and had taken both her and this Ship here controverted if the Privateer had not interveen'd and it being answer'd that an actual Capture could only establish the Property and this Statute requir'd Possession The Lords before answer granted mutual Probation for trying whether this Ship could have escaped from the Friggot if the Privateer had not taken her IT is Treason to raise a Fray wilfully in the Kings Host for this wilfully done shews a Design to ruine the Army and I find that the Master of Forbes was Hang'd for raising a Fray in the Kings Host at Jedburgh July 14. 1537. The words without Cause are added here because if a man doing his duty was the occasion of raising a Fray he ought not to be punish'd as if an Officer punishing a Mutineer should by that occasion raise a Fray this would not be punishable By the Civil Law such as were Authors of Sedition in an Army for a Fray is properly Sedition were punish'd as Murderers l. 3. § 4. ff ad l. Cornel. de sicariis But if the Common-wealth was in danger they were punish'd as Traitors as in this Statute and in l. 1 ff ad l. Jul. Maj. and they are every where now punish'd by Death Sand. Decis 165. tit 9. des 12. vid. Voet. de jure milit c. 4. num 40. And if the Authors cannot be known all involv'd in the Guilt are forc'd to cast Lots Voet. ibidem Sometimes also if the Sedition was carried on sine gravi tumultu intra vociferationem the guilty were only Casheir'd l. 3. § 20. ff de re militi if the Tumult was rais'd upon privat picques or grounds but if it was rais'd upon prejudices against the Common-wealth or Prince it was punish'd even in that case and though no actual prejudice follow'd as Treason d. l. 1. ff ad l. Jul. Maj. King IAMES the second Parliament 13. THis putting the Kingdom in a posture of Defence was formerly ordain'd Stat. Will. cap. 23. Stat. 1. R. 1. cap. 27 But all these Acts are now in Desuetude and the Act concerning the Militia is regularly come in their place but yet the King may call for either vid. observ on 4 Act 1 Par. Ja. 1. By the Kings Letters by Bailis is mean't Letters to raise Fire or Takenings for advertising the Countrey By Out-hornes is mean'd these who follow'd the Sheriffs and whose Office it was to raise the Kings Horn for warning the Countrey to assist the Kings Officers THis Act contains what is fit to be done in time of Pestilence and because it was an Affair to be Govern'd by Christian Charity therefore the Regulation of it was referr'd to the Clergy and upon this account it is that the Act says The Clergy thinks without speaking of King or Parliament it being ordinary in our Acts of Parliament to set down the report without drawing it into the formality of an Act of Parliament and thus in the 91 and 92 Acts Parl. 13 Ja. 3. It is said The Lords thinks it expedient by which word Lords must be interpreted Lords of Articles THere was of old Distresses taken from such as came to Fairs that is to say some thing was taken to be a Surety for their good behaviour and was deliver'd back at the end of the Fair if the Owners committed no wrong during the Fair. THis Act is only to be interpreted of the Fees due to the great Constable of Scotland who is now the Earl of Errol for he only can exact during the time of Parliament but
suffering the Rebel to possess three years has been found to be presumptio juris for inferring Simulation June 1666. Oliphant contra Oliphant There is a Title in the Civil Law de collusione detegenda which though it run there only against Collusion inter dominos servos yet the whole matter of Collusion is there Treated by the Doctors and it is defin'd to be sub specie litis lusus Vide Barthol Caâ—oll de simulationibus where this Subject is fully Treated By the last Clause in this Act it is provided that the Thesaurer or his Deputs may cause secure the Houses of the Committers of the Crimes upon the expences of the readiest of the Escheat Goods that is like that annotatio bonorum allow'd by the Civil Law in Criminals against absents and though the Act of Parliament specifies only that this may be done in Crimes yet I conceive that all Rebellion is comprehended under the word Crimes for in all cases even for civil Rebellion not only may the Thesaurer Seal till Caution be found but even the Lords of Session will upon a Bill allow the Sealing of the Rebels Goods at the Donatars instance till Caution be found WIlful setting of Fire in Coal-heâ—ghs is Treason vid. crim pract Tit. Fire-raising THis Act is Explain'd crim pract Tit. Beggars and Vagabonds THis Act against Forestalling is fully Explain'd crim pract tit Forestallers TAis Act punishing the Carriers of Wool Nolt and Sheep into England by Escheating the Transgressors Moveables is not abrogated by the Union of the Crowns the Nations being still distinct THis Act against Deforcers is Explain'd crim pract tit Deforcement THis Act is Explain'd crim pract tit Art and Part num 2. THis Act declaring that none but actual Burgesses shall Traffick is fully Explain'd 5 Act 3 Sess. 2 Par. Ch. 2. BY this Act all manner of persons Inhabitants of Burghs exercing any manner of Traffick or having Change therin shall bear Stent Which Act was found not to extend to Indwellers though they have the benefit of the Mercats and had never any other Residence but within Burgh and have the benefit of Seats in the Kirks and so should at least pay Contribution for the Ministers Stipend January 11. 1678. Town of Alerdene contra Lesk And by the 275 Act 15 Par. Ja. 6. All such as have an hundred pounds of yearly Rent may be Stented but by 276 Act of that Parliament they are only to be Stented according to the value of what Rent they have within that Burgh and not according to what they are worth else-where but it may seem that by the 275 Act all who have an hundred pound to spend ought to be Stented that therefore Indwellers are to be Stented though they have not an hundred pound of Rent in House-mail or Trade for the Act sayes if they may spend and not if they have and therefore that the persons who come in accidentally to live in Town should not pay yet if they have no other constant Dwelling save in Burgh that in that case they ought to pay because it is just all Subjects should bear some burden and they bear none else-where to which nothing can be answered but that the Act ordains only such to be Stented as have Rents and Livings copulative Observ. That by this Act one of every Craft is to be exeemed as His Majesties Servant from all Taxation Watching and Warding such as the Kings TailÈour His Smith c. And yet this Act does not exeem them actually but only allows His Majesty to exeem if He pleases so that except these be actually exeemed by their Gift this Act will not exeem them This priviledge is renew'd Act 275 Par. 15 Ja. 6. And His Majesty by His Gifts to His Work-men declares them to be exeem'd conform to these Acts whereupon the Council in anno 1680. did find they should not be stented and all these priviledges are again Ratifi'd in the Parliament 1681. But there being a Declarator rais'd of these priviledges before the Lords of Session in anno 1684. It was objected first That because these Acts being made in favours of the Kings Servants whilst our Kings liv'd in Scotland and they actually ty'd to Service the saids Acts should not now take place but should cease with the Service whereupon they are sounded 2. Though Wrights Masons c. Who are actually at present ty'd to serve may plead this priviledge yet the same cannot be crav'd by the Kings Barbers Shoe-makers c. who never serve 3. The said Exemption could extend no further than to the value of the imployment they had from the King but if the Kings Smith c. have from the people the imployment that other poor Smiths should have it were not just that he should be exeem'd which were to make them pay the value of the Impositions that should be put upon him 4. That these Laws could not exeem from paying for their other Trades So that if the Kings Mason be likewise a Vintner he should pay for his gain in that Trade 5. These Acts of Parliament could only free from Watching and Warding which are inconsistent with personal attendence but should not be extended to Stents and Impositions which were not usual before these Acts since the general words of Laws are ordinarly restricted to what ordinarly happens in the time 6. Though these Exemptions could secure against Impositions laid on by the Town yet they cannot secure against Impositions laid on in Parliament by voluntar offers made by the Subjects themselves in which those Trads-men must be considered as voluntary Offerers as well as others since they are re-presented in Parliament as well as others And in which Act Colledges and Hospitals are only exeem'd and not they this Debate is as yet come to no Decision BY this Act the Crafts-men living in Suburbs of Free and Royal burrows are discharg'd to work and their work declared conâ—â—â—â—able but this Act is not extended to Suburbs that are erected in a Burgh of Barony for these are priviledged by their erection and are not meer Suburbs but distinct Jurisdictions July 21. 1629. and there is a Decreet arbitral betwixt Edinburgh and the Suburbs wherein there is a Liberty allow'd to these who live in their Suburbs to work to Strangers but not to Towns-men This Act of Parliament has likewise been extended not only to Suburbs but to all who were within the Liberties and Priviledges of Burrows Royal though the saids places be not properly Suburbs and that the Act of Parliament discharges only the exercise of such Crafts in Suburbs adjacent to the saids Burrows July 7. 1671. Town of Stirling contra Polmais whose Tennents and Trads-men in Saint Ninians lived a mile from the Town of Stirling vid. etiam Durie March 21. 1628. and the reason of this Decision was because such Un-free men as live within the Priviledges do as well abstract the Trade of the Inhabitants as
this Act is in Desuetude but I believe neither for where the Council names jure dâ—voluto because Magistrates accept not they come only in place of the old Magistrates and Council and therefore they can only do what these could have done ex regula surrogatorum and this Act having been made in favours of the King and Monarchy it cannot run in Desuetude without their consent and it is thought that by vertue of it none who are Lords of the Session can be Provosts these being incompatible Employments and inconsistent with the design of this Act which bears to be made to hinder the dissipation of their Common Good and perverting of their Priviledges which is much more easie for Lords of the Session and persons in publck Employment than for others beside that publick Traffique and Merchandising is inconsistent with that exact distribution of Justice which is necessary in His Majesties Judges vide Lampridium in vita Severi as to the distinction of Habits amongst Magistrates THis Act is Explain'd crim pract tit Injuries To which I shall only now add that not only what is destructive to the Government but what may tend to the prejudice of the Government is here punished and this I have thought fit to observe because tending has been oftimes Debated not to be Relevant It may be also doubted whether speaking against the House of Commons or their Resolutions is punishable by this Act since it punishes all reproachful Speeches of the People or Countrey of England and they are the Representatives of the People and since these are punishable who speak against a Councellour of England much more ought they to be punish'd who speak against the House of Commons But in my opinion this Act reaches only such as speak reproachfully of their Nation Countrey and Counsellours but the whole Act ought to be abrogated by our Parliament as being past by us in expectation that England would make such an Act in their Parliament which they never did and upon which account it was never in observance with us It is likewise observable that though in our Law Concealing and not Revealing is only punishable in Treason yet by this Statute the hearing any thing spoke against the people of England or any Privy Counsellour in that Nation and the not Revealing is declared to be equally punishable with inventing such Calumnies THis Act is Temporary as to many things but it is observable from it that the using false Testimonials is punishable by death as Falshood And the power given to the Commissioners of the Borders to apprehend Fugitives and to send them or their marks and tokens to the Kings Commissioner is founded on l 4. ff de Fugitivis Where Limenarcha which is our Commissioners of the Borders debent inquirere in fugitivos and to send them with their notae which is our Tokens to the next Magistrats THe Customs being annex'd to the Crown by the 8 Act Par. 1 Ja. 1. They are by this Act dissolved from the Crown in so far as concerns 10000 pounds yearly to be pay'd to the Lords of Session in place of Quots of Testaments and therefore the Lords of the Session do conform to this Act Decern summarly the Tacks-men and Collectors to pay this 10000. pounds and ordains them to be Charged with Horning BY the 4 Act Par. 18 Ja. 6. It is Declar'd That Restitutions by way of Grace shall not prejudge those who acquired the Forefaulted persons Lands either by a Lucrative or an onerous Cause but because both by an inference from that and by the Principles of the Common Law these who are restored by way of Justice might pretend to quarrel those who during their Forefaulture were presented to Benefices to which they were Patrons upon pretext that they were to be restor'd intirely Therefore it seems that this Act has been made whereby it is declar'd that such as are presented to Benefices which were at the Presentation of Forefaulted persons shall not be prejudg'd by their Restitution and which was very just since Patrons are not prejudg'd because it is presum'd that the Ordinary would not Collate persons that were insufficient nor were Patrons allow'd to make any advantage by the Presentations and upon the same principle it seems reasonable to conclude that a Minor cannot Revock a presentation granted by him with the consent of his Curators during his Minority THis Act Ratifies an Act of Privy Council whereby Aegyptians were commanded to depart the Kingdom betwixt and the first of August thereafter under the pain of Death but it may be justly doubted how the Council had power to make Acts inferring the pain of Death Since it is a received Principle in our Law as is clear by Craig and others that the Secret Council can make no Act which may infer forefaulture of Life or Estate and though by the Acts 124 and 147. Par. 12 Ja. 6. Judges be ordain'd to punish Aegyptians and that by the 268 Act Par. 15 Ja. 6. Vagabonds and Aegyptians are to be employ'd in Common Works yet by neither of these Acts is the pain of Death to be inflicted and therefore it was lately Debated that this Act was but at best a Temporary Act and so Aegyptians could not be impannelled for their Life but yet this Act has been still repute a sufficient Warrand for punishing by Death such as were known holden and repute to be Aegyptians And I find that upon the last of July 1611. Moses Schaw and others were Hang'd as Aegyptians and it is notour that immediatly after this Act Sheriffs and others did Hang very many by warrand thereof and the Act is not Temporary for it appoints them to be Executed in time coming after the first of August and the Act has ordain'd Aegyptians to be proceeded against as Sorners and common Thieves who are by our Law to be punish'd with Death as is clear by the Narrative of this Act which bears that the Council had Commanded That the Sorners and common Thieves commonly call'd Aegyptians c should depart forth of the Kingdom So that the Council has not inflicted the pain of Death upon a new Crime but has only declared That Aegyptians fell under the old Crime that was punishable by Death Nor can it be deny'd but that from this and many other Acts it is clear that the Council has a power to extend and interpret Statutes even relating to Life and Forefaulture since the Act appoints only such to be punishable by Death as are known holden and repute to be Aegyptians It may be doubted what can prove that the Aegyptians pannell'd are known holden and repute to be such For which beside the common Inferences of notoriety adduc'd by Mascardus and others in probatione notorij Our Law allows that such as call themselves Aegyptians or go up and down the Countrey bleaking their Faces telling Fortunes and speaking the Gebrish peculiar to those people shall be punished as Aegyptians and
before the other Act allowed the Importation of them and the Parliament in the Narrative of this Act Declares That the King had done this upon good Considerations THis Act for preventing the fraudulent mixture of the Finer sort of Tinn with baser Mettle has ordained the Peutherers to put their Name with the Thiâ—â—le and the Deacons Mark upon their Work and that the same be as fine as the Peuther of England marked with the Rose It may be argu'd that this Act does not hinder all mixture of Lead and Tinn for one pound of Lead must necessarly be mixt with two pound of Tinn to make it work The Peutherers and Plumbers are with us under one Deacon we had no Plumbers till of late our Peutherers of old having been our only Plumbers but now it is pretended from this Act and upon other grounds that the Peutherers should not work in Lead THis Act Discharging Advocations from inferiour Courts for sums within 200 merks did not except the members of the Colledge of Justice and therefore by the 16 Article of the Act for Regulating the Session Causes belonging to the Members and sums due to Merchants Cooks Vintners and others in Burgh for Furniture taken off from them by such as dwell not within the Shire where the Furniture was taken off are expresly excepted from this Act and because this Act wanted a Sanction or Penalty therefore by that seventeenth article the Clerk of the Bills is ordained not to present pass or write on any such Bill at his peril because this Act of Parliament sayes That the Lords shall not pass any such Advocations for Causes which may competently be decided by inferiour Judges Therefore it is ordained by the 16 Article foresaid That when the Lords pass any such Advocations for sums within two hundred merks they shall write upon the back of the Bill that the Lords have found sufficient ground why the Cause should not be pursu'd in the first Instance before the Inferiour Judge and this was done to prevent any mistake and to cause this Act be carefully Observ'd THis Act is formerly Explain'd in the 6 Act of the 23 Par. Ja. 6. THe Exportation of Money being Discharg'd by many Acts as Ja 3 Par. 1 Act 8. Ja 1 Par. 6 Act 84. For making these Acts effectual By this Act every Skipper and Merchant is oblig'd upon Oath to Declare before the Thesaurer Thesaurer-depute or such as are appointed by them that they shall not carry abroad any more Money than is able to make their Expence to the next Port and to reveal either before or after the Voyage any who does and that a Book shall be keeped in Exchequer for that effect but this Act is not exactly observ'd BEcause by the 40 Act Par. 6 Q Mary The carrying of Victuals Tallow or Flesh out of the Countrey was then Discharg'd under the pain of Escheating the same Victuals having been then scarce Therefore by this Act it is Declared lawful to Export Corns when the Wheat is under twelve pounds the Bear and Barly under eight pounds Oats and Pease under eight merks the Boll and also to Export all sorts of barrell'd Flesh for nineteen years free from Custom and Bullion but the Custom and Bullion here impos'd upon Corns Exported is absolutely discharg'd by the 14 Act Par. 2 Ch. 2. It may be observ'd from the former Act of Q. Mary That Skippers are not regularly lyable for Transporting Merchandise forbidden by Acts of Parliament except the Sanction of the Act do expresly strick against them since that Act is appointed to be extended to Masters and Skippers as well as Owners of the Goods for beside that the Parliament thought fit to express them which they needed not have done if the Act had imported it these words this Act to be extended seem to imply that the Act naturally did not import it for to extend an Act or any thing else is to carry it beyond its natural import THis Act Imposing great Impositions upon English Commodities for the advantage of our own Manufactories is in force but not in observance and one of the great dis-advantages of Setting the Kings Customs in Tacks is that it is the Tacks-mens interest that all Prohibited Commodities be brought in for the advantage they get by their paying Custom and for conniving at the bringing them in BY this Act there is a great Custom Imposed upon Victual brought from Ireland But thereafter by the 3 Act 3 Sess. Par. 2 Ch. 2. Importing of Irish Victual is totally discharged THis Act is formerly Explain'd in the 63 Act Par. 11. Ja. 6. But it is further observable that by this Act it is Declared the Duty of all Sâ—eriffs Steuarts and Baillies of Regality to cause apprehend all Rebels and to count for their Escheats and to punish all the Contemners of His Majesties Authority and this is Declar'd to be both by Law and the nature of their Office a Duty incumbent to them and therefore it is fit that Sheriffs and others advert to this THis Act Ratifies by mistake the 4 Act Par. 6 Ja. 6. But the Act that should have been cited is the 74 Act of that Parliament This Act Ratifies also the 168 Act of this 15 Parliament but it should have cited the 268. The Act it self provides for the maintainance of Beggars and Manufactures by putting the one in the other but the Act was never observ'd though in it self it be a very excellent Act. THese Acts are Explain'd in the 96 Act Par. 6 Ja. 4. But for further clearing of the Act 16 It is sit to know that though Coals were forbidden of old to be Exported by the 84 Act Par. 9 Q. Mary Yet when they grew more frequent they were allowed to be Transported and Custom and Bullion is put upon them viz. Two ounces of Bullion for every four Chalders Coals as is clear by the 37 Act Par. 1 Ch. 2. and by this Act the Culross Chalder is Declared to be the measure by which the Custom and Bullion is to be Exacted because as I conceive that was the least of all Chalders The Lothian Chalder of Coals being generally a third more but thereafter Bullion being only Impos'd upon Goods Imported Coals do now pay no Bullion for Exporters pay no Bullion and there are no Coals Imported to this Nation THe keeping Mercats upon Sunday was Discharged 122 Act Par. 12 Ja. 6. and by this Act they are Discharg'd to be kept upon Munday or Saturday lest people might be oblig'd to Travel to and from Mercats on the Sabbath But by that Act it was appointed that they should keep them upon any other Day not being the Mercat-Day of the next Burgh which provision in favours of the next Burghs was ill forgot here vide the Observations upon that Act. THis Act is formerly Explain'd in the Observations upon the Act 48 Par. 3 Ja. 6. and the 7 Act 3 Sess. 1
Act that the Militia is come in place of the old Weapon-showings and that there being 20000 Foot and 2000 Horse granted as a Militia by the 26 Act 3 Session of the first Parliament which does specifie the particular proportion of Horse and Foot to be given by every Shire It might have been thought that these proportions could not have been altered but by the Parliament and yet the King and Council having Converted the Foot of some Shires unto Horse seems to be founded upon the last Clause of the former Act whereby His Majesty is intreated to give Directions to His Privy Council for mannaging of that whole affair as His Majesty shall think fit which Acts of Council and the said alteration of the proportions are hereby Ratifi'd as having been Legal and in the last Clause of this Act His Majesties Subjects are Commanded to obey whatever Orders and Directions they shall receive from the Privy Council relating to the Militia and upon these Clauses was founded the overtures of the late Conversion of the said 22000 to 5000 augmenting the number of the days wherein the said 5000 are to serve according to what might have been exacted from the whole 22000 so that the 5000 are to meet the number of 176 dayes because the 22000 were oblig'd to meet fourty dayes though this last model was by some objected to be a standing Force and all Laws are stricti juris and to be fulfill'd in forma specisica but especially Taxations which are a Gratuity founded upon the free Offer of the people as this is to allow Conversions in such Cases would discourage the Subjects from future offers This Act likewise did Ratifie the Acts of Council which appointed the Shires to provide at their own Charge Colours Standarts Drums and Trumpets though that might seem an Imposition but these being necessars and the natural Consequents of the first Grant and the Parliament having granted to the Council the former power as said is these Acts of Council are therefore hereby approven as Legal Both this and the former Act doe ordain the Militia to be furnished with fourty Dayes Provision which was the old provision that was ordinarly to be made by such as came to the Host albeit sometimes twenty dayes provision be only appointed as in the 90 Act 13 Par. Ja. 3. And of late the Council has ordain'd this provision to be made in Money though it was contended that the Parliament having appointed only provision to be made it was in the power of the persons obliged to furnish their own men according to their conveniency But Money being thought fitter for expedite Marches the Council thought they were authorized by the former Clauses to make this Conversion and some have thought that by the same power the Council could ordain the Shires from whom no proportions of Militia was sought to advance free Quarter to such of the Militia as could not furnish themselves or at least might force them to be the first advancers in Cases of necessity This Act concerning the Militia is further clear'd by the first Act of the third Session of this Parliament appointing such as 〈…〉 serve either as Officers or Souldiers in the Militia to accept and to take the Oath of alleadgeance and that those who are set a-part for the Militia be not altered c. NOtwithstanding of all our former excellent Acts for securing singular Successors yet they were still un-secure because they could not know if the Vassal had Resigned his Feu ad remanentiam in his own Superiours hand for in that case there was no Seasin requisite which is the only Register whereby singular Successors know if Lands were formerly Dispon'd and therefore by this Act it is appointed that these Instruments of Resignation ad remanentiam which are equivalent to Seasins be Registrated in the Register of Seasins within sixty dayes which is the time appointed for Registrating of Seasins by the 16 Act Par. 22 Ja. 6. By this Act likewise as in that Act Instruments of Resignation of Lands holding Burgage are excepted but it seems that they must be Registrated within the Town-Court-Books within the same sixty dayes for the Act sayes only That such Instruments being Registrated there shall not fall within the Certification BY this Act it is Declared unlawful to poind Moveables upon Registrat Bonds or Decreets for personal debts till the parties be first Charged and the dayes of the Charge expire The reason of which Act was because Noblemen and persons of quality were oft-times poinded and so affronted and Merchants surprized and thereby Ruined before they knew that a Decreet was recovered against them or their Bond was Registrated But this Act was found not to extend to other Diligences ex paritate rationis this being an Act restrictive of former Laws and Customs From this Act are expresly excepted poindings used against Vassals for their Feu-duties But this Exception was very unnecessary and unproper for such poindings did not at all fall under the prohibition of the Statutory part of the Act which only prohibits the poinding Moveables for personal Debts Exception is likewise made of Decreets obtained by Heretors against their own Tennents in their own Courts only and therefore it has been doubted whether Tennents may be Remov'd and Ejected without a previous Charge and though upon Decreets before the Lords previous Charges are necessary Yet upon Decreets of Removing before inferiour Courts it is the Custom to eject immediatly and though this may seem hard yet it is necessary because the intrant Tennent must Remove immediatly and so must have a place to which he may remove sibi imputet the Tennent who being warned did not provide himself timeously IT is fit to observe from the Narrative of this Act that the Parliament thought the King and Council had power to emit Proclamations Commanding the Parochs to Protect and Defend their Ministers and to be lyable to such Fines as the Council should think fit besides the Ministers Reparation if the Offenders were not brought to condign punishment which shows what great power the King has in the like Cases and the Council are hereby authorized to proceed in taking such courses for the future which general power may go very far especially where these courses are otherwise satisfied by necessity This Act is more fully Explain'd in the observations upon the 27 Act Par. 11 Ja. 6. FRom this Act Discharging Suspensions against Bishops Ministers and other Benefic'd persons without Consignation It is observable from comparing the Narrative and Statutory part of the Act that Vniversities and Colledges are still accounted a part of the Clergy and have still the same priviledges with them SInce we find that the Parliament grants Acts for Naturalization of Strangers as is clear by this and by the 65 Act Par. 8 Q Mary It may be doubted if the King can Naturalize Strangers by a Deed of His for else those Acts were unnecessary and in
England though the King can grant a Charter of Denization which lasts only for Life and though it enables a man to Transact his Heritage to his Children Yet His Majesty cannot there Naturalize without Act of Parliament and it may be urg'd that since third parties who would otherwise succeed are prejudg'd by the Naturalization that therefore this cannot be done without an Act of Parliament especially if there be once jus quaesitum to any party But by the Civil Law the Prince could Naturalize l. 1 ff de jur aur annul Of old Strangers acquired only usum toga and at last were received inter cives l. 31. 32. ff de jur Fisci And with us Craig observes that bona immobilia nemini ablata memini ex eo quod extraneus esset And I find it decided that Strangers may succeed with us January 13. 1675. And that Strangers doing Diligence for their Debts may enjoy and affect Lands in Scotland seems more favourable for else there could be no Commerce for without this none would trust our Merchants or Countrey-men The Design of proving Trade by Naturalizing Strangers has been very ordinary for as Plinius Remarks nunc factum est ut gens altera alterius suppleret inopiam ut quodam modo quod genitum esset uspiam apud omnes natum esse videretur in France Lewis the 11. Did upon the same Design Naturalize those who Traded in the Hanseatick Towns TO encourage the Exportation of Commmodities the Bullion which was formerly payable by the Exporters by the 37 Act 1 Par. Ch. 2. Is by this Act imposed upon the Importers BY this Act all Arrestments on Registrated Bonds or Contracts or Decreets not pursu'd and insisted on within five years after the Date and all Arrestments upon Dependences shall prescrive if not insisted on within five years after Sentence so that there is here a new visible difference betwixt Arrestments on Dependences and Arrestments upon Decreets but upon the matter that comes to be the same For all Arrestments upon Dependences are likewise by this Act to prescrive within five years from the Sentence that is to say from the Decreet so that utrobique the prescription begins from the Decreet By this Act likewise Ministers Stipends Multures Bargains concerning Moveables and Sums of Money that are probable by Witnesses are after this Act declared only probable by Writ or Oath of party after five years and all actions upon Warnings SpuilÈies Ejections Arrestments or Ministers Stipends are to prescrive within ten years except they be Wakened every five years but prejudice alwise of any of the saids actions which by former Acts of Parliament are appointed to prescrive in a shorter time Which Exception is here added because of the Acts 81 82 and 83. Par. 6 Ja. 6. By which SpuilÈies Ejections and Removings did prescrive within three years Yet if any action was intented upon them it did not prescrive otherwise than in fourty years Therefore by this Act these Actions are Ordained to prescrive in ten years except the action be Wakened that is to say a new Summonds raised and executed for the raising of a Summonds is not sufficient in any case to stop Prescription vide Observations upon these Acts. It was sound Hamilton contra Herreis March 20. 1683. That this Act was not to be extended to the Teind-duties due to Bishops or other Titulars being only a Correctory Law and in the Case pursued by Sir William Purves contra It was Debated that a part of what was due to the Minister could not prescrive because it was Mortified Money and Mortifications are not appointed to prescrive by this Act But the Lords found that if a Mortification became a part of a Stipend they did prescrive by this Act though of their own nature they do not prescrive Holograph missive Letters and Holograph Bonds and Subscriptions in Compt Books without Witnesses not pursu'd on within twenty years are only to be proven by the Oath of the Subscriver so that if the Subscriver die these Debts die with him I remember the Parliament expresly refused to limit Bills of Exchange to this time though these be Holograph Papers because these beng the Vehicles and Supports of Trade betwixt us and Forraigners â—hat were to limit them by too narrow Statutes These Prescriptions are ordain'd not to run against minors and from this and the next Act it may be argu'd that Prescriptions regularly run against Minors except they be secured by a positive Statute BEcause Citations do interrupt the current of a Prescription therefore this Act does appoint that only Executions by Messengers shall interrupt which was done to Exclude Sheriffs In that part Messengers being persons of publick Trust and who find Caution But though this Act mentions only Messengers and that it is correctorie of a former Custom and consequently ought to be strictly Interpreted Yet Citations by Heraulds or Pursevants will Interrupt nam majori inest minus It was alleadged that this Act should extend to all Interruptions so that if an Interruption had been made in anno 1660. It should be renew'd after this Act for the Act says That all Interrupions shall be Renewed evrey seven years But it was found February 5 1680. Colstoun contra Barefoot That only such Interruptions should be renewed as were made since the Act of Parliament for the first part of the Act bears That all Interruptions as to Rights of Lands shall in all time hereafter be Executed by Messengers and the last part of the Act must be Interpreted according to the first and agrees with the general Nature of Laws quae futuris tantum dant formam negotiis Since this Act is only to extend to Interruptions concerning the Rights of Lands some have doubted whether it should extend to Heretable Bonds and Servitudes BY our former Law Explain'd in my crim prac tit Treason It appears clearly that no man could be forefaulted in absence except before the Parliament But this being thought a great incouragement to Rebellion the Justices did upon an advice from the Lords of the Session alter the Conclusion of Criminal Libels for Treason making the Certification to be that probation should be led against them and they should be Forefaulted as if they were present and therefore by this Act these Decreets of the Justices are Ratified and for the future It is Ordained that such as rise in Arms in open and manifest Rebellion against the King may be Forefaulted before the Justice Court So that this method can only be taken against such as are guilty of Perduellion but not in Statutory or other Treasons such as the raising a fray in the Kings Host drawing Treasonable Papers c. For these can yet only be forefaulted before the Parliament though they may be declared Rebels before the Justices and it has been doubted whether the hounding out to open Rebellions or the Resetting those who were at them be punishable by the Justices in absence
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