Selected quad for the lemma: justice_n
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A50514
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The institutions of the law of Scotland by Sir George Mackenzie ...
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Mackenzie, George, Sir, 1636-1691.
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1684
(1684)
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Wing M158; ESTC R17260
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97,367
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403
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either Supream inferior or mixt These courts are properly called supream from whom there is no appeal to any higher Iudicatory such as the Parliament Privy Council Lords of Session the Criminal Court and Exchequer Inferior Judges are such whose decreets and sentences are lyable to the reviewes of the supream Courts as Sherriffs Stewards Lords of Regality Inferior Admirals and Commissars Magistrates of Burghs Royal Barrons and Iustices of Peace Mixt Iurisdiction participats of the nature both of the supream and inferior courts such a jurisdiction have the high Admiral and Commissars of Edinburgh Both which are in so far Supream that Maritim Affairs and confirmations of Testaments must come in and be tabled before the high Admiral and Commissars of Edinburgh in the first instance As also they both can reduce the Decreets of inferior Admirals and Commissars But seeing their Decreets are subject to the review of the Lords of Session they are in so far inferior Courts No inferior Iudge can judge in the causes of such as are Cusin-germans to him or of a nearer degree either of affinity or consanguinity But there is so much trust reposed in the Lords of Session that by a special Statute they can only be declined incases relating to their Fathers Brothers Sons Nephews or Uncles which by a late statute is likewise extended to the degrees of affinity and to the Lords of privy Council and Exchequer and the Commissioners of Iusticiary and to all other Iudges within the Kingdom The members of the Colledge of Iustice have this priviledge that they cannot be pursued before any inferior Iudge and if they be the Lords will Advocate the cause to themselves Tit. III. Of the Supream Iudges and Courts of SCOTLAND THE King is the Author and Fountain of all power and is an absolute Prince having as much power as any King or Potentate whatsoever deryving his power from GOD Almighty alone and so not from the people The special priviledges that he has are called His Prerogative Royal such as that he only can make Peace or Warr call Parliaments Conventions Convocations of the Clergy make Laws And generally all meetings called without his speciall command are punishable he only can remit crimes legittimate bastards name Iudges and Councilors give tutors Dative and naturalize strangers And is Supream over all persons and in all causes as well Ecclesiastick as Civil The Parliament of old was only the Kings Barron Court in which all free-holders were oblidged to give sute and presence in the same manner that men appear yet at other head courts And therefore since we had Kings before we had Parliaments it is rediculous to think that the Kings power flowed from them The Parliament is called by Proclamation now upon fourty dayes tho it may be Adjourned upon twenty but of old it was called by brieves out of the Chancellary It consists of three Estates viz. the Arch-Bishops and Bishops and before the Reformation all Abbots and Mitred-priors sat as Church men Secundo The Barrons in which estate are comprehended all Dukes Marquesses Earles Viscounts Lords and the Commissioners for the Shires for of old all Barrons who held of the King did come but the estates of lesser Barrons not being able to defray this charge they were allowed to send Commissioners for every Shire And generally every Shyre sends two who have their charges born by the Shyre Tertio The Commissioners for Burghs Royal each whereof is allowed one and the Town of Edinburgh two Though all the three Estates must be cited yet the Parliament may proceed albeit any one estate were absent or being present would disassent The legislative power is only in the King and the Estates of Parliament only consent and in Parliament the King has a negative voice whereby he may not only hinder any Act to pass but even any overture to be debated The Acts of Parliament must be proclaimed upon fourty days that the Lieges may know them To secure the Crown against factions and impertinent overturs in open Parliament Our Parliaments choose before they proceed to any bussiness four out of each State who with the Officers of State determine what Laws or Overturs are to be brought in to the Parliament and they are therefore called the Lords of Articles We have another meeting of the three Estates called the Convention of Estates which is now called upon twenty days and proceeds in the same way that the Parliament does diffreing only from it in that the Parliament can both impose Taxations and make Laws whereas the Convention of Estates can only impose or rather offer Taxations and make Statutes for uplifting those particular Taxations But can make no Laws And of old I find by the Registers of the Conventions the eldest whereof now extent is in Anno 1583. that the Conventions of Estates consisted of any number of the three Estates called off the Streets summarly by the King And yet they cryed down or up money and judged processes which now they do not The Privy Council is constituted by a special commission from the King and regularly their power extends to matters of publick Government in order to which they punish all Ryots for so we call breach of the peace They sequestrate Pupills gives aliments to them and to wives who are severely used by their husbands and many such things which require such summar procedour as cannot admit of the delays necessary before other courts And yet if any of these dipp upon matter of Law for they are only Iudges in facto they remit the cognition of it to the Session and stop till they hear their report The Council delay Criminal executions and sometime change one punishment into another but they cannot remit Capital punishments They may also Adjourn the Session or any other court It has its own President who preceeds in the Chancellours absence and it has its own Signet and Seal All who are cited to compeat there must be personally present because ordinarly the pursuer concluds that they ought to be personally punished All dyets there are peremptor all debat is in writ no Advocat being allowed to plead because the Council only Iudges in matters of fact The Lords of Council and Session are Iudges in all matters of civil Rights of old they were chosen by the Parliament and were a committy of Parliament But the present modell was fixt and established by King Iames the fifth after the modell of the Parliament of Paris Of old it consisted of seven Ecclesiasticks and seven Laicks and the President was a Church man But now all the fifteen are Laicks And there sits with them four Noble men who are called extraordinarie Lords and were allowed to sit to learn rather then decide But now they vote after the ordinary Lords All the Lords are admitted by the King and by Statute cannot be admitted till they be twenty five years of Age and excepâ— they have a
1000 lib. or 20 Chalders of victual in yearlie rent Nine are a Quorum Crimes of old were judged by the Iustice General Iustice Clerk and two Iustice Deputes but now five Lords of Session are joyned to the Iustice General and Iustice Clerk and they are called the Commissioners of justiciary Because they sit by a special commission only Four of which number make a Quorum in time of Session three in time of Vacance and two at Circuit Courts The Exchequer is the Kings Chamberlain Court wherein he judges what concerns his own revenues It consists of the Theasurer in whose place are sometimes named Commissioners of the Theasury the Theasurer Depute and as many of the Lords of Exchequer as his Majestie pleases The High Admiral has a commission from the King to judge in all Maritime affairs not only in Civil but also in Criminal cases where the crime is committed at Sea or within flood-mark nor can the Lords of Session Advocat causes from him tho they can reduce his Decreets as he does the Decreets of all inferior Admirals or Admiral Deputes for many Heritors are constitute Admirals within themselves by a right from the high Admiral since his Gift or from the King before it Tit. IV. Of Inferior Iurisdictions and Courts THe Sherriff is the Kings chief and Ancient Officer for preserving the Peace and putting the Laws in execution he has both a Civil and Criminal Iurisdiction and his Commission is under the Great Seal he is obliged to raise the huy and cry after all Rebels and to apprehend them when required To assist such as are violently disposâ—est To apprehend such as say Mass or trouble the Peace and take caution for their appearance He nor no Inferior Iudge can hold Courts in time of Vacance in Civil cases without a dispensation from the Lords of Session But in Criminal cases he needs no dispensation because crimes should be instantly punished He is Iudge in all crimes Except the four Pleas of the Crown to wit Murder Firâ— rasing Robery and ravishing of Women but murder he can judge if the Murderer was taken with red-hand that is to say immediately committing the murder In which case he must proceed against him within three Suns And in Theft he may judge if the Thief was taken with the fang The Shireff is also judge competent to punish Bloodwits for which he may syne in 50 pounds Scots but no higher and for contumacy he can fine no higher than 10. pounds A Lord of Regality is he who has the land whereof he is Proprietar or Superior erected with a Iurisdiction equal to the justices in Criminal cases and to the Shirreff in civil causes he has also right to all the moveables of Delinquents and rebels who dwell within his own Iurisdiction whether these moveables be within the regality or without the same And because he has so great power therefore no Regality can legally be granted except in Parliament The Lord of Regality has also by his erection power to repledge from the Sherriff and even from the Iustices in all cases except treason and the pleas of the Crown that is to say to appear and crave that any dwelling within his Iurisdiction may be sent back to be iudged by him and he is obliged to find caution that he shall do justice upon the Malefactor whom he repledges within year and day and the caution is called Cul reach The Stewart is the Kings Sherriff within the Kings own proper Lands and these were erected where the lands had been erected before in Earledoms or Lordships For else the King appointed only a Baillie in them and these Iurisdictions are called Bailliaries the Baillies of the Kings proper lands having the same power with the Sherriff And all these viz. the Sherriff the Stewart and the Lord of Regalitie proceed in their courts after the same way and each of them has a Head Burgh where they hold their courts and where all letters must be executed and Registrate The Prince of Scotland has also an Appange or Patrimony which is erected in a Iurisdiction called the Principality The revenues comes in to the Exchequer when there is no Prince but when there is one he has his own Chamberlain Iustices of Peace are these who are appointed by the King or Privy Council to advert to the keeping of the peace and they are judges to petty ryots servants fies and many such like relateing to good neighbour-hood exprest in the instructions given them by the Parliament and are named by the Council allbeit be the foresaid Statute the nomination is to be by His Majestie and His Royal Successors which the King has now remitted to the Privy Council The Iustices of peace do name Constables within their own bounds from six months to six months Their Office is to wait upon the Iustices and receive injunctions from them delate such Ryots and Crimes to the Iustices as fall under their Cognisance Apprehend all suspect Persons Vagabounds and night Walkers as is at length contained in their injunctions given them be the foresaid Act. Every Heritor may hold courts for causing his Tennents pay his rent And if he be infeft cum curijs he may decide betwixt Tennent and Tennent in small debts and may judge such as commit blood on his own ground tho his land be not erected in a barronie But if his land be erected in a barronie which the King can only do he may like the Sherriff unlaw for blood-wits in 50 lib. and for absence in 10. And if he have power of Pit and Gallows he may hang and drown in the same manner as the Sherriff can Tit. V. Of Ecclesiastick Persons SInce the Reformation the King is come by Our Law in place of the Pope and all rights to Kirk-lands must be confirmed by him else they are null His Majestie only can call convocations of the Clergie for so we call our National assemblies and His Commissioners sits in them and has a negative We have two Archbishops and twelve Bishops and they are thus elected the King sends to the Chapter a Conge de Eslire which is a French word signifying a power to elect and with it a letter recommending a person therein named And the Chapter returns their electing Whereupon the Kings grants a Patent to the persons and a mandate to the Archbishop or Bishops to Consecrate him Both which pass the great Seal The Archbishops and Bishops have the sole power of calling Synods within their own Diocies and in these they name the Brethren of the conferance Who are like the Lords of Articles in the Parliament and by their advice the Bishops depose suspend and manage Bishops have their Chapters without whose consent or the major part the Bishop cannot alienate which Major part must sign the deeds done be the Bishops And it is sufficient if those of the Chaper sign at any time even after