Parl. 2. THE only Act in this Parliament Warrands the Kings Lieutenent to force such as ly under violent presumptions of Spilling and Troubling the Countrey to find Caution that the Countrey and the Kings Subjects shall be unharm'd which shews clearly that the King may upon Presumptions of which He is sole Judge oblige any of His Subjects to give Bond to live Peaceably without which the Government could not Subsist This Act was occasion'd by the great Outrages committed by Archibald Earl of Dowglas in the South during the Kings Minority King IAMES the Second Parliament 3. VID Stat. Dav. 2 d cap. 42. Concerning the Liberties of the Haly-Kirk TWo Justice Courts were to be held Yearly by the Justices at Edinburgh and Peebles c. 79. Quon Attach and two Justice-airs are to be held yearly the one upon the North-side of Forth and the other upon the South-side of Forth c. 30. Stat. Rob. 3 d. And by The Scottis Sea is mean'd here The Water of Forth Secundo That part of this Act which appoints Lords of Regality to hold Justice Courts twice a year is now in Desuetude BY this Act after word is sent to the Council that there is any Rebellion Burning c. The King is to call the Sheriff and see it Re-drest and all the Barons oblige them to assist the King with their Persons and Goods as oft as it shall be seen needful by Advice of His Council From which it is observable That the King needs not call a Parliament to assist Him in a War but that the King and His Council may call for Men and Maintainance in case of War and this was very reasonable for Rebellion may be Invincible before a Parliament be assembled and Parliaments do often give little help in case of Combination if the occasions of it be popular as was too clearly discover'd in our late Rebellion The reason why in the former Act and this the Advice of the King's Council is still exprest as necessary was because the King was then Minor and His Person had been several times surpriz'd In all this Parliament there is no mention made of the Authority of the Regent as uses to be when the King is Minor but only the hail three Estates have Ordain'd which I think proceeded from the Hatred the Nobility had at that time to Alexander Livingstoun who was then Regent I find that in the Ratification of the Acts of Parliament called the black Acts Folio 149. The Duke of Chattelrault then Governour is plac'd before the Queen-Mother then Regent King IAMES the Second Parliament 4. OBserve that Excommunication takes away personam standi in judicio So that Excommunicate persons cannot pursue nor defend for the Act sayes That they shall not be heared nor answered in the Law of Judgement and though the Word answered would import only that they cannot pursue yet the Word Heared Imports both Pursuing and Defending and the Words Heared nor Answered had been superfluous if they had been to express only the Pursuing This Act and the 4 th Act 3 d Par. Ja. 2 d. Were made upon the Earl of Crawfords Cruelty to Kennedy Bishop of Aberdene King IAMES the Second Parliament 5. THis is the first time I find Art and Part mentioned in our Law Nota The time forbidden by Law for killing of Salmond is from the Feast of the Assumption viz. the 13 of August to St. Andrews which is the 30 of Nov. Act 34 Par. 2 Ja. 1. And though the third Fault was death by the 10 Act Par. 1 Ja. 1. Yet by this Act the third Fault is only punishable by loss of Office vid. Act 224 Par. 14 Ja. 6. THe form of causing restore Goods SpuilÈied now is That the Sheriff or any Judge discern and upon this Decreet Letters of Horning are rais'd and the Defenders Denunced We find by this Act that old Rule of the Canon Law Spoliatus ante omnia restituendus here Confirm'd and the meaning of it is That though the Spuilzier have a sufficient and valid Right to what he has SpuilÈied yet being pursu'd his Right will not defend him but he must first restore the Person SpuilÈied to his Possession for the Law will not allow any man to be his own Judge and to Intromet at his own hand Obs. secundo That of old all Decreets were under the Kings Wax that is to say His Seal and till of late and the last Institution of the Session all Decreets even of the Session were under the Quarter-Seal OBserve That all Scotland is divided in Royalty and Regality The Royalty is that which was Judged by the Kings immediat Judges as Sheriffs and they are here and else-where call'd the Lords of the Royal. THese who were Excommunicated were denunced Rebels and Letters of Caption raised against them and this Act as to this point is founded upon cap. 6 th Stat. Rob. 3 d. and is morefully explained Act 53. Parl. 3. Ja. 6. Where these Letters are appointed to be raised by the Authority of the Council after 40. days are expired from the date of the Excommunication Nota. This is the first Act that speaks of Appryzing of Lands and it was done then at the Mercat Cross in the same way that Moveables were then and are yet poyndable Nota. THe punishment of such as break the Peace is left Arbitrary by this Act and by this Act Justices of the Peace are ordained Irenarchae by the Civil Law of which there are whole Titles in that Law VId. Sup. Act 3 d. Parl. 1. Ja. 1. As also by this Act it is clear that Forfaultors for Rebellion were only to be led before the Parliament for it is here said that they shall be punished by the advice of the Three Estates but now open Rebels rysing in Armes may be Tryed and Forfaulted by the Justices by the Act. 11 th Parl. 2 d. Ch. 2 d. THis was Statuted before as to Murder C. 17. l. 3 d. R. M. by a Trespassour justified in this Act is mean't a Person condemned by Law or Justice and it is oft so mean't in all old Laws THere are now no Wardens in the Borders but these affaires are manadged by Commissions from the King cal'd Commissioners for the Borders ALL Officers offending wilfully are to lose their Offices for a Year by this Act but this Act is not the only punishment for if a Judge execut a man wilfully he will die for it and a Judge being partial or refusing to do Justice is to be punished Rigorously Ja. 1. Parl. 2 d. Act 45. and if he be Faulty or Negligent he loses his Office if it be Temporal for a Year or is to be Suspended from it if it be Heretable Ja. 2 d. Parl. 14. Act. 76. vid. Ja. 3 d. Par. 5. Act 27. Ja. 3 d. Parl. 14. Act. 105. And the punishment of Judges offending in their Offices is now Arbitrary suitable to the nature of
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
to the Party injur'd for Assythment may be called before the Lords of Council either in Session or out of Session but this is now abrogated by the late Constitution of the Session who are come in place of the Lords of Council who then were The meaning of these words in the Act And as for Slaughter and Mutilation to keep the order of the Act made thereupon of before Is that Slaughter and Mutilation are not comprehended under this Act because by the 63. Act Par. 6. Ja. 4. No remission can be granted for these Crimes and therefore there can be no Assythment THis Act is further explained in Crim. pract tit Fire-raising but it is fit here to observe that in these words that particular Justice Courts shall be set thereto as shall please the Kings Grace his Council and the Justices the word And is taken disjunctive as is often in the Civil Law and our Statutes l. 66. ff de haered Instit. Nota The killing of Thieves is declared no Crime King JAMES the fifth Parl. 4. EXcommunication is here called the Process of Cursing and Excommunication used in time of Popery to be granted for not payment of Civil debt or not performing of Contracts or not restoring of spuilÈied Goods is now in desuetude for all these were held to be mortal sins and by this Act Letters to Poynd or Appryze were to be granted thereupon And by the 7. Act Par. 4. Q. M. their Moveable Escheat falls to the King if they ly under the Process of Excommunication for a year the Creditor being first payed which Acts are further enlarg'd by the 3. Act 20. Par. Ja. 6. By which their whole Rents and Revenues are to be applyed to the use of the Publick and all Gifts of Escheat granted to the behove of the Wife Children or Confidents of such as are Excommunicated for Popery are declared null Act 197. Par. 14. Ja. 6. It may seem strange that Excommunication repells ab agendo sed non a defendendo and yet Horning debars from both though the person Excommunicated be the greatest Delinquent being at Gods Horn 8. July 1636. Colstoun contra Cranstoun Vid. observ on Act 11. Par. 6. Ja. 2. supra THis Act is innovated and enlarged by the 1. Par. Ch. 2. Sess. 1. Act. 41. THis Act is in observance to this day but it holds only in Forrests notoâ—ly known to be such for if there was probable reason of doubting whether it be a Forrest the Goods feeding in it will not be escheat for bygones vid. Leg. For. c. 2. § 2. sequen Because this Act sayes if any person be found putting their Goods in Pasturage in the Kings Forrest they shall escheat the same therefore it seems reasonable that if Goods be only found there this is not sufficiâ—nt to escheat them since they might have strayed there Dominus non tenetur ad poenam si animal ex seipso ingrediatur in locum prohibitum ut est Forresta Borel de Magistrat Edict lib. 4. cap. 6. num 18. VId. Annot. on Act 61 Par. 7 Ja. 3. supra THis Act relates to Act 88 Par. 14 Ja. 2. Whereby Hares are not to be kill'd in time of Snow and Act 59 Par. 11 Ja. 6. and Act 266 Par. 15 Ja. 6. whereby Hares are not to be kill'd at any times by Guns Girns Nets or Cross-bows which last is yet in observance and all these Acts are reviv'd by a Proclamation of Council in Febr. 1680. BY the 25 Act 3 Par. Ja· 4 It is ordain'd that the Superior of Ward lands or his Donatar shall find Caution to leave the Houses Orchyards Woods Stanks Parks c. in as good condition as they found them they taking their Sustentation or using them in needful things without waste or destruction which is extended to all Liferenters and Conjunct-feers who are ordain'd to find the like Caution by this Act. By which also all Sheriffs Stewards Magistrats within Burgh and Spiritual men within their bounds are also commanded to exact this Caution These Acts are also extended to all such as have Life-rent Tacks from the Heretors without payment of any considerable duty though the words of this Act run only against such as have Liferent Infeftments but this Act should not be extended to such as have Liferent-Tacks for payment of an equivalent Duty Qui sunt conductores non usufructuarii for the Heretor is rather oblig'd to entertain the Houses to such Tacks-men than they to him January 23. 1635. Laird of Laidly contra Boyd But this is to be understood of such Tacks-men as pay a Dewty equivalent to the Rent for else Relicts would in place of Liferents take Tacks during their life for any imaginary Dewty which should not free them from the finding of Caution In that case it was also found that this Act did oblige Donatars of Liferent-Escheats to find Caution to maintain the Houses Orchyards c. which fall under his Gift but quid juris if the Fisk retain Liferents so faln in his own hands peregr de jur fisc tit 1. num 35. is of opinion that usufructu sisco legato siscus non satisdat de utendo fruendo arbitrio boni viri but it is hard that the Heir should be in a worse case by the Crimes of the Liferenter or their going to the Horn so that his Estate should be thereby expos'd to mis-managment and albeit where a Liferent is left to the Fisk Caution may seem to be remitted by the intention of the Party yet that should not be extended to the case of its falling to the Fisk without his consent and it rather seems that since a Donatar is ty'd to find Caution that therefore the Fisk should Nota There needs no precognition to be taken by an Assize of the condition the Houses were in conform to the 226 Act. Par. 14 Iâ— 6. For that Act only ordains such precognitions to be taken when Houses are ruinous within Burgh and the Liferenters refuse to concur in Re-building them in which case the Heretor is allow'd to repair he finding Caution to pay the Liferenters the Dewty that these Houses pay'd formerly March 23. 1626. Foulis contra Allan Though this Act ordains the Sheriffs and others who refuse to exact this Caution to be lyable to the Heretor of the Ward-lands without mentioning that they shall be lyable to Liferenters or Conjunct-fiars yet doubtless they are lyable to them also for the damnage sustain'd in not exacting this surety Though in some cases cautio juratoria be allow'd yet it would not be allow'd here Gail lib. 2. obs 47. for that Caution cannot secure the Heretor and there is as little reason to receive it in this case as in Removings But Perez is of opinion that cautio juratoria is receivable si offerens sit probatae honestae vitae There was likewise cautio usufructuaria by the Civilians introducta est per senatus
in other cases where there is no Statute it would seem that Rights granted to a man should regularly extend to his Heirs arg hujus legis Observ. 1. Though this Act mention only Rentals set by the King yet the Rentals set by Subjects are not extended to Heirs except Heirs be therein-mentioned and though a Rental mention Heirs indefinitly yet it will only extend to the first Heir and will neither be accounted null for want of an Ish nor be extended to all Heirs for then it would be equivalent to an Heretable Right THis Act Discharges the Disponing of the Kings Casualties in great as the Casualties of a whole Countrey which is most reasonable and therefore all Gifts of Regalities may be quarrell'd as null because in them all the Escheats are Dispon'd and though this Act Discharges the giving away of Casualties arising from any one Crime yet this Objection was Repelled against the Gift of Usury in which were given away all the profits arising to the King by Usury ALL pecunial pains are ordain'd to be taken up according to the rate the Money gave when the Fine was impos'd or else the Fine is to be augmented according to the augmentation of the Money and this Act was reasonable because it was not just that Delinquents should get advantage by not payment and it was necessary because without this Act Fines as all other Debts might be pay'd according to the current Money at the time the same fell due THe pain of negligent Sheriff-Clerks is tinsel of their Moveables and the principal Sheriffs are to pay 100 pounds for them besides the damnages of parties Observ. 1. That in the time of this Act Sheriffs had the nomination of their own Clerks but now since the Sheriff-Clerks are nominated by and depend upon the Secretary it is not just that the Sheriff should be Fineable for the fault of the Clerk Observ. 2. That though by this Act the Sheriff-Clerk is oblig'd to send an Inventar of all the Registrat Hornings yearly to the Thesaurer yet this is in Desuetude THis Act is in Desuetude as to the price to be taken by Messengers but they still find Caution to the Lyon at their admission de fideli administratione RElief is a Duty due by the Vassal to the Superiour at his Entry for relieving his Fee out of the Superiours hands By this Act it is appointed that when this Casualty arises to the King it may not be compounded for but that all that is due be taken and the true avail is a years Retour-duty in Ward-lands and the double of the Feu-duty in Feu-lands Hope tells us that though a Gift of Non-entry contain the Relief yet the Donatar will not have Right thereto because such is the Custom of Exchequer as he says But I think that the true reason is because this Act Discharges this Casualty to be gifted When ere the Vassal takes out a Precept from the Exchequer for Infesting himself he is lyable for the Relief and the Sheriff may be Charg'd therefore conform to the Responde Book or the party may be Summarly Charg'd for it by this Act and the ground may be also poynded for it as deâ—itum fundi when a party gets a Precept the Servants of the Chancery write down respondebit Vicecomes de c or Respondebit any Judge to whom the Precept is direct and that is call'd the Responde here mention'd by which Responde-book the Sheriffs and their Deputes are Charg'd yearly in Exchequer BY this Act the Sheriff did count for all Escheats yearly for then he might have intrometted summarly and had Letters of Introâ—ission but now he is not countable nor oblig'd to intromet but the Escheats are gifted to Donatars BY this Act all Commissions for judging Crimes are ordain'd to pass the Quarter-Seal but now Commissions are granted by the Council without any Seal and though this Act Discharges justly the granting Commissions for judging Slaughter ordaining that Crime to be Judg'd only by the Justices yet now the Council uses to grant Commissions even for Judging Slaughter Murder Witchcraft and all such Crimes But though the Council may grant such Commissions for Judging these Crimes when they fall in under general Commissions that are granted by the Council yet I see not how they can grant Commissions contrary to this Act for Judging Slaughter in special Observ. 2. That all Commissions of the Justiciary should be under the Quarter-seal to the end as this Act of Parliament observes there may be a Responde made thereupon and yet the Council now uses to grant Commissions which have no other warrand but a Paper subscriv'd by themselves and not by way of Signature as is here ordain'd and the great fault that is committed in granting these Commissions is that the Process is never ordain'd to be returned to the Justice-Clerk to the end that both it may be known whether the Processes be legal and that it may be known what is due to the King for which the Responde mentioned in this Act was to be made vid. observ on 126 Act Par. 12 Ja. 6. Observ. 3. From these words of the Act That no Commission be granted to proceed in Slaughter but that the Justice-general and his Deputs proceed thereupon It uses to be urged that a Council of War cannot be a sufficient Warrand for Souldiers to Judge Murders and other Crimes committed by any of their Number against Countrey-men these not being Military Crimes but being Crimes that should be tryed by our fundamental Law in the Justice-Court where the people have a double security both by Learn'd Judges and an Inquest of Neighbours and a Kings Advocat to be careful of the probation and it may as well be pretended that they may Judge their own Souldiers in civil Cases and that they may judge a Countrey man when he kills a Souldier Vid. Crim. pract Tit. Jurisdiction of Justices over Souldiers and the Council ordain'd Burr a Drummer to be delivered up to the Justice Court for killing a Woman though he had suffered two Councils of War November 3. 1681. But to clear this the King by His Letter to the Council has declar'd that Souldiers are only to be be Try'd for Military Crimes by a Counsel of War and that for ordinary Crimes they shall be judg'd by the Justices c. AS parties may pursue Crimes without concourse of the Kings Advocat so by this Act the King may pursue without an Informer ad vindictam publicam THis Act ordains that no Rests be allow'd to the Thesaurer exceeding 20000 pounds a year but that he shall compt for what is above this sum so that he may do Diligence therefore as accords but this is not observ'd The second part of this Act ordains that the King be not prejudg'd by general Ratifications in Parliament for though Ratifications cannot prejudge third parties yet they might have prejudg'd the King who past them if His Majesties Interest
had not been secur'd by this Act. THough this Act Discharges all continuation of justice-Justice-Courts and Ordains the Justices to proceed notwithstanding of such precepts yet both King and Council use to Command the Justices to continue their Diets though this Act was objected in the Process for William Halyburton's Murder June 1676. But it is necessary that in such Cases the King should be inform'd by the Justices what is to be said on both sides before they continue such Diets in Process at the instance of privat parties for the King and the party having different Interests and it being declar'd by Act of Parliament that the party may pursue without the King It seems very reasonable that the parties Process should not be stopt upon surreptitious Warrands without acquainting the King I find in the Council Register July 1582 That because His Majesty had been troubled by the importunity of such as desir'd not to be Try'd before the Justice-airs but at particular Diets whereby they eschewed ordinarly all punishment that therefore His Majesty does in Council Statute and Ordain this is oftimes the Stile in Acts of Council as well as in Acts of Parliament That the Justices shall proceed without respect to such Warrands and it seems that that Act of Council has given occasion to this Act of Parliament and generally many Acts of Parliament have been at first Acts of Council which shews likewise what power the King has in His Council of this Nation THis Act appointing that Sheriffs should yearly give in the Names of their Deputs and Clerks to the Lords of Session and find Caution in the Books of Council is in Desuetude as to both the parts for they neither find Caution nor give in the Names of their Deputs But de jure I think Letters of Horning may be direct upon this Act for both effects it being most reasonable that the Lords of Session should know whether the Deputs be able and this Caution would keep them in awe and secure the people if they do injustice The Caution requir'd by this Act is Burgesses Indwellers in Edinburgh Caution Burgeoise as the French call the best Caution BY this Act the form of holding Justice-airs is set down but it is to be found more fully in the Iter justiciarii and upon the word Justice-air de verb. signif and so needs not be repeated but there are some things fit to be observ'd because innovated Observ. 1. That Commissions of Justiciary are to be under the Testimonial of the Great-Seal by this Act but now they are always under the Great-Seal when granted by the King but seldom or never under the Quarter-Seal which is call'd the Testimonial of the Great-Seat and when they are granted by the Council they are only Sign'd by a Quorum but under no Seal Observ. 2. That albeit the Steuartries or Bailliries be here appointed to come to the head Burrows of the Shire where Dittay is to be taken up yet it has been found that the Council may ordain them to come to other places for the publick conveniency when the Diets are so short that the Justice Clerk cannot stay at every Shire and thus the Constabulary of Hadingtoun was ordain'd to give up Dittay at Edinburgh Obserâ— 3. That albeit by the old Form Pannels were to be Cited to Justice-airs upon fourty dayes Iter. Just. num 6. Yet now they use to Cite upon fifteen or more dayes and then as now they are not Cited peremptorly to one day as in ordinary Justice-Courts but to any one of the days in which the Court is to sit in that place to which they are cited and all the Pannels are called every day at that place and if they compear at any one of the dayes they are not declar'd Fugitives At the first day of Justice-airs all who are call'd must find Caution to appear at all the Diets of the Justice-airs which some complain of Albeit by the form of our old Briâ—ve and the constant Practique only Millers Brewers Smiths and Officers of Courts were cited to give up Dittay upon Oath because it was presum'd that the best intelligence is to be had from such publick persons yet the Couâ—cil did lately ordain that Noblemen and Gentlemen should likewise be oblig'd to give up Dittay because the Crime being Treason and art and part thereof It was presum'd that they should understand the same better than mean people and for detecting of so great a Crime persons of all qualities should concur and the former Custom was not exclusive of calling persons of quality Likeas by the 94. Act Par. 13 Ja. 3. The King is to call the Lords and Head-men of the parts of His Realm and to take Dittay of them id est by them of notour Trespassers BY this Act Hoghers or Slayers of Horse destroyers of Plough-Graith Growing Corns c. are punish'd as Thieves to the Death Vid. crim pract Tit. Theft Observ. 1. That this Act proves Theft to be Capital by our Law though we have no express Law for making Theft Capital generally Observ. 2. That it may well be doubted whether cutting of Corn c. in Landed-men is Treason since it would seem to be so for by this Act it is declar'd punishable as Theft and Theft in Landed-men is by the 50 Act of this Parliament declar'd to be Treason but yet I conceive that these Statutory Thefts are not punishable as Treason since that were but fictio fictionis duae fictiones non cadunt in idem subjectum Likeas the punishment is dedetermin'd here to be the punishment of simple Theft viz. Death whereas if the Law had design'd Forfalture it would have nam'd Forfalture here as in the former Act. It has been doubted upon this Act whether the cutting of Corns Sowen by a Strangâ—â— who had no right was a Crime in the Heretor who may pretend that satum cedit solo and it is thought that if the Heretor suffer'd a Stranger to possess for any considerable time he could not have cut them down summarly no more than he could have removed that Stranger summarly from his Possession though unjust THese Acts are Explain'd crim pract Tit. Deforcement Vid. Act 150 Par. 12 Ja. 6. and Statut. Will. cap. 4. v. 5. IT appears by this Act that Letters of Lawburrows were of old granted by several Clerks and by this all Caution for Law-burrows is ordain'd to be found to the Justice-Clerk which was indeed most reasonable because bodily harm is there dreaded and the preventing of that should belong to the Justice-Court but now the Council Session and Criminal Court have the power of causing parties find Caution for Lawburrows but the Act in so far as it discharges Lawburrows to be granted against Complices in the general is yet in observance and very justly for it was not fit to leave it arbitrary to the parties to charge any they pleased THough this Act appoints all Courts to be Fenc'd
for Art and Part is by the 114 Act Par. 12 Ja. 6. To be punishable as the Crime whereof it is an accession and it really deserves oft-times a severe and speedier animadversion and thus a Noble-man of great interest Plotting oâ— Hounding out is more dangerous than a Tennent who actually Rises in Arms But on the other side it is urg'd That Rising in Arms is to be pursu'd so in absence because the Probation is so notour that it can hardly be deny'd but the probation of secret Treasons may be more dangerous if taken in absence It has been doubted whether such whose Forefaultures were Ratifi'd by this Act could be thereafter admitted to propone an Exculpation since the Justices could not Rescind Sentences of Parliament and whether such as are Forefaulted before the Justice-Court can be admitted to propone any such Exculpation upon their being alibi or else where Or that there was two of the same Name or to object against the Witnesses for the persons Forefaulted being cited sibi imputent that they appeared not and if this were allow'd Forefaultures might be easily Evacuated and whatever might be said as to alibi in the first Instance yet it were hard to Reduce a Decreet upon it and except the person Forefaulted could prove an invincible necessity why he could not come or send certainly none of these Dâ—fences can have the least shadow of Justice nor is it sufficient to say That they were either afraid or out of the Countrey for these are the ordinary Defences of such as are guilty and any guilty person might go out of the Countrey purposely to have this Defence The method now observ'd in Forefaultures in absence before the Justice-Court is that the Advocat Raises a Libel of Treason with the former Certification he sends a Herauld with a Displayed Coat to give the Citation and sends Witnesses alongs who at their Return swear that they saw the Execution truly Executed because that was found to be the Form before the Parliament Then the Witnesses are adduc'd after the Relevancy is cleared by Interlocutors who are Examined whether they knew the party who is to be Forefaulted which excludes the Defence that there were more of one Name as the purging them of partial Council does all objections against the Witnesses that can be thereafter founded upon since it was their own fault who compeared not to object The Advocat uses ordinarly to cause Cite the Pannals upon sixty dayes and at the Mercat Cross and at their Dwelling-House lest they be out of the Countrey at all which places Copies of the Libel the Names of the Assizers and Witnesses are left Though ordinarly the Advocat for further Terror causes Renverse and Tear the Coat of the Persons Forefaulted in the justice-Justice-Court with sound of Trumpet after the Doom of Forefalture and Proclaim them Traitors over the Cross with sound of Trumpet Because that Solemnity is observed in Forefaultures before the Parliament yet this is not thought absolutely necessary It is observable That in the Process against the Earl of Mar and others for taking away King James the Sixth from Stirling and the Earl of Gowries Forefaulture the Summons were before the King Parliament and His Justices and the Doom is the King with the advice of His Parliament and His Justices Some think the Justices sit only in Parliament as the Judges sit in England But the Summons having been before them insinuats that they were conjunct Judges and not Assessors The probation in that case is led before the Lords of Articles and not before the Parliament but in anno 1661. The probation was led in plain Parliament and this is juster because the Parliament is the Grand Inquest The last words in the Act viz. If the said summons be found Relevant and proven by the Verdict of an Inquest are wrong Pointed For the summons cannot be found Relevant by the Verdict of an Inquest BY the 39 Act Par. 1 Ch. 2. Forraign Salt to be employed upon Fishing was to be free of Custom and Excize but by several Acts of Exchequer thereafter all Fishes spent within the Countrey lost that priviledge and by this Act the Importer is ordain'd once to pay all the Excize on forraign Salt which is to be Re-pay'd by the Customers to such as can by Certificats prove that the same was employ'd upon Fishes and though it was pretended that this could not prejudge the Importer since he was to be Repay'd if the Salt was imploy'd upon Fishes whilst on the other hand it would secure the Kings Customs and would keep out much Forraign Salt whereof very much was now brought in upon pretext of being employ'd upon Fishing Yet to this it was answered that this would destroy the Design of Fishing Companies and shew too much the Inconstancy of our Parliaments 2. Many poor Families were employ'd in Fishing who would get credit for Salt and yet would not get Money to pay the Excize thereof per advance 3. Fishers were sometimes forced to bring in great quantities of Salt being uncertain what quantities of Fish would be taken and oftimes they would lose their Salt altogether 4. This and all such Methods which subjected the Merchant to the Customer destroyed Trade and in this case they had but a personal action against publick Servants for their advanced Money and probably these publick Servants would not have so much Money at once in Lews Lâ—chsine c. as would pay back the Excize of Fishes exported out of these Places and beside that the Customer might Retard the Merchant at his pleasure 5. The poor Merchant behov'd still to make two unnecessary Voyages one to pay the Excize and another to seek payment By this Act likewise the Merchant is ordained to give his Oath upon the Custom and Excize though by the 57 Act Par. 1 Ch. 2. Their Oaths are discharged in matters of Custom THis Act annexing Orknay and Zeatland to the Crown is Explain'd in the Observations upon the 41 Act Par. 11 Ja. 2. BY this Act it is Declared lawful to Export Corns except when the same is Discharged by the Council upon the account of Dearth and to encourage Exportation Corns are to pay no Custom Bullion or other Duty except one Merk Scots for ilk Chalder Vidâ— Observations upon the 11 Act Sess. 3 Par. 1 Ch. 2. BY this Act the Lords of the Privy Council are Empowered to Regulate the prices of Ale and Drinking Bear and to settle a proportion betwixt the weight of the Bread and the Boll of Wheat and the price of the Ale and the Boll of Bear upon which Warrand the Privy Council do not pretend that they can settle a price upon Victual but that they may thereby only proportion the price of the one with the other so that they may Discharge Malt-men or Baxters to give less than such respective prices when they sell their Bread and Ale at such and such Rates as they did by their
the same when His Majesties Authority is fully represented and His Nobility and Servants fully conveen'd a great instance whereof appear'd in the late Rebellion of Bothwel-bridge 2. The Summer Session was very well contriv'd for the administration of Justice because in the Moneths of June and July such as have affairs in dependence before the Session had then no Labouring at Home those two Moneths falling very conveniently in betwixt Seed-time and Harvest and we having formerly had the Moneth of March adjected to the Winter Session that Moneth was taken from it because it was a part of our Seed-time and consequently to have it now a part of our Session must be very inconvenient 2. In those two Moneths His Majesties Subjects in the Isles and remote Countreys can only come to get Justice administrated to them in the Summer there being no passage from these places to the Session in the Winter time or at least if they do come they must stay the whole Winter and in some years the storms are such that there is no Travelling even from nearer Countreys nor is the winter fit for old men Bishops Clergy-men and such as are infirm to travel in 3. The Season in these two Moneths being very moderat with us and the dayes long much more Bussiness is dispatched than in the Winter time and there is far more conveniency of Informing than in the cold and rigid Winter Nights which puts men to great expense and occasions many Diseases 4. Though his Majesties Subjects now procure Decreets or get Bonds yet the same being Suspended they cannot be discuss'd for nine or ten Moneths during which time also widows and Orphans starve Masters cannot remove Tennents because they Advocat the Cause and Debitors become Insolvent Creditors likewise being forc'd to use Adjudiâ—â—â—ions within year and day of one another are altogether by the said long Vacation excluded 5. Not only Business before the Session by this means but even before inferiour Courts are stopt for such as are conscious to the injustice of their own cause stop procedure there likewise by Advocations which cannot be discuss'd for nine or ten Moneths 6. Not only in these particulars but in general the course of Justice is stopt here far contrary not only to our conveniency but to the Custom of all Nations who allow in place of one four or five Sessions There being no Vacation in the world longer than two Moneths except in Scotland who now allow seven during which time honest men are Defrauded Bankrupt and violent Possessors are Indulg'd Probation by Witnesses and otherwise perish and to be short there is no face of Justice during that time 7. As the Vacation is too long for the conveniency of the People so is the Winter Session too long for the conveniency of the Judges Advocats and other Members of the Colledge of Justice who must either destroy themselves by toiling too much or the Peoples Business by their languid and negligent mannadgement thereof it being undenyable that before the four Moneths used to expire formerly all persons concerned did languish weary and wish for a Vacation 8. The shortness of the time now allow'd forces the Judges to give shorter audience and to frequent the Side-Bars more than is fit 3. The want of the Summer Session destroys Trade and Commerce Because 1. Merchants cannot get in their Money with which they should Trade wanting the Execution of Law for so long a time 2. There is now no Whitsunday Term so that the Course of Money is stopt and it is undenyable that there are no payments now at Whitsunday whereas we having had two Terms formerly Whitsunday and Martinmas there were very wisely two Sessions appointed one in the Summer for those who did not pay at Whitsunday and another in the Winter for those who did not pay at Martinmass 3. There being no concourse and meetings of the People for seven Moneths there can be little Commerce For all Traffique arises and Bargains are made upon such occasions 4. It is undenyable that twice more Merchants have broke in those two years that we wanted a Summer Session than in any six formerly from which decay of Trade also arises a great loss to His Majesty in His Customs and Revenue 4. This want of the Summer Session is very prejudicial to the private Estates and Interests of almost all sorts of People For 1. There is alwise greatest consumption of Corn Cattle and all Products of the Nation in more frequent and numerous concourse of People and the greater the Consumption be the prices rises so much the higher 2. The Victual of the Northern Shires not being Transportable till April because of the Storms it was only vented during the Summer Session and now the price of the Victual there is much faln and His Majesties 〈◊〉 in those Shires much prejudg'd 3. The Heritors of Store-rooms in the South and West are very much prejudg'd since a great part of their Cattle especially of the younger was only vented in the Summer Session 4. The Heretors in the Shires about Edinburgh are prejudg'd in every thing that is pay'd to them 5. The half of the Town of Edinburgh it self is almost laid waste Landlords having almost lost half their Rent and the best Trades-men running away to other Nations because they are idle for seven Moneths here By which also His Majesty is a great loser in His Revenue that Town paying him more alone than a sixth part of what is pay'd by all the Burghs-Royal in the Kingdom and Trade by this extraordinary Poverty decaying in Edinburgh which is the Fountain of Commerce and the Staple Port of the Nation it must proportionally decay in all the other Towns since their Trade and Commerce depends upon it 6. His Majesties ordinary and additional Excise in Edinburgh has very much decreased and the Brewers are almost all broken within these two years as the Tacks-men and Customers too well know The Ministers Stipends likewise being pay'd out of the Annuities on House-Meals they must likewise decrease as the House-meals do Nor is the Town able to keep up the Company nor to furnish His Majesty such assistance as formerly it gave in the Rebellions at Pentland and Bothwel As to the contrary Arguments it was answered that as to the first Business did increase daily in all Nations with the improvement of Land and of Trade and the multiplying of Diligences so that Processes could not be sooner ended than formerly without deciding them more carefully To the second no man now needed to come till his Cause was call'd because all Causes were decided in their course by a Roll and so it was no matter whether he came Summer or Winter To the third it was answer'd there was more Planting and improvement in the Moneth of March which is now lost than in both the Moneths of June and July It may be doubted if the King can recal the Summer Session without an express Act of Parliament and it
are allow'd in all Courts except the Justice Court where â—ssonzie must be proven by Witnesses present in Court And to allow Testificats is dangerous because they may be forg'd yet they were allow'd even in Treason in E. Laudons case 1 Apryl 1684. but the speciality there was that the Earl was in Holland for it was thought hard to bring Phisicians from thence and yet I think the Seal of the Town should be brought in that case Vid. stat Will. c. 26. num 2. Quon Attach c. 33. THe meaning of this Act is when any Defender finds Caution to answer as Law will which is called here a Borgh upon a Weir of Law he may either answer presently or may have a day to give in his Defences he finding Caution to answer of new this is explained R. M. l. 1. c. 11. num 4. But now with us there is no dyet allow'd in Criminal Courts for the dyets there are peremptor THis falsing of Dooms or Appeal was altered and in place of them are come our Suspensions and Reductions of Decreets for the Doom is a Decreet and in these Reductions and Suspensions it is lawful to insert only one Reason at first and the rest may be now eeked without protesting for a Liberty to eeke new Reasons as is required by this Act and a Borgh or Caution is yet necessary in Suspensions as it was in falsing of Dooms By the Civil Law Appeals were to be interpos'd within ten days after Sentence but by this Act the Appeal was to be us'd immediatly or at least before the Pursuer walkt 40 paces by the Act 99. Parl. 6. Ja. 4. and in place of the words here used viz. That Doom is false stink and and rotten in the self and thereto a Borgh the party leased was to say I am gratumly hurt and injured by the said Doom and therefore I Appeal and this was done because the words here us'd were Rude and Unmanerly THe meaning of this Act is That if the Pursuer be forc'd to find Caution to answer as Law will he may force the Defender to Recounter it That is to say to find Caution also and whosoever is absent after Caution is so found shall lose the cause and shall be unlaw'd also Vid. c. 18. vers 2. 3. l. 1. R. M. THis Act appoints That the Ships which break in this Kingdom shall be Confiscated amongst us if the Ship belongs to a Countrey which uses that Law against us For clearing this it is fit to know that by the Civil Law the Goods of Ship-wrackt Persons fell not to the Fisk. l. 1. C. de naufr si quando naufragio navis expulsa fuerit ad Litius vel si quando aliquam terram attigerit ad Dominos pertineat fiscus meus sese non interponat quidenim jus habet fiscus in aliena calamitate ut de re tam luctuosa compendium sectetur and by the Canon Law qui christianos naufragium sacientes damnata cupiditate râ—bus suis spoliant excommunicantur c. 3. Extr. de Rapt But yet France does Confiscat Ship-wrackt Goods le bris est confisque au segnieur Soveraigne â—odin de 〈◊〉 C. ult Where it is asserted that this was the Law of both Eastern and Western Seas which is false for it is not the custome of Holland nor Pole nor Denmark Vid. Curick ad tit 9. jur Hans with us if no Living Creature escape that was in the Ship the Goods are Wreck and belong to the Admiral by his Gift from the King but if any Living Creature escape neither Ship nor Goods are Wreck as was decided where only ane Ox escapt 12 December 1622. And yet by the present custome of the Admirality though no Living Creature escape the Admiral secures only the Goods and restors them if the true Owner claime them and prove his Propertie within year and day being repayed of his Salvage for which we have no positive Statute And it seems we have borrowed this from the Statute of Hen. 3. anno 1226. cited by Curick tit 9. Though Skeen de verb. sig verb. Wrack cites another Statute viz. Anno 3. Ed. 1. C. 4. So that though the Custome seems unjust yet this Law has seem'd just because of Lex talionis And the Title quod quisque juris in alium statuit ut ipse eodem jure utatur tit 2. lib. 2. ff And yet our present Custome has justly corrected this Law in manner above mentioned And I likewise believe that even after the Year is Elapsed the true Proprietar may recover his Goods if he prove the Propertie and if his Goods be extant for 1. That which is mine cannot be taken from me without my own fact and deed 2. There were as good reason for the King to seize upon Goods that were Robb'd by Land for the Proprietar quytes his Goods as unwillingly in the one case as in the other 3 ly Even in Goods that are thrown over Board for the securitie of the Vessel the Law presums no design in the Proprietar to quite them as de relicta § Fin. Inst. de rer divis And therefore much lesse ought this to be sustained in Goods forced from the Proprietar by a Tempest since there is some consent in the one but none in the other 4 to If any privat man seize on such Ship-wrackt Goods his seizing on them would be a Crime l. 1. l. ult de inâ—end ruin l. de submersis C. de naufrag And it is strange that private men should be punished because they seized on what was anothers and yet the same calamitie which aggrages the Crime in them should establish a Right in the Publick and it may be well argued that either the Propertie is lost by the Ship-wrack and if so why has the Proprietar action against the seizers or if it be not lost how has the Fisk acquyred the Propertie for duo non possunt esse domini ejusdem rei in solidum 5 o. There is lesse reason for a shorter prescription in such than in any other Moveables For in other Goods there may be a presumed design to quite the possession but here there can be none for it is palpably to be imputed to force 6 o. This is destructive to all Commerce and no Nation ought to sustain it because all Nations will loss equalie by it 7 o. The Owners may not know where to seek their Ship-wrackt Goods because lost in very remote Countries and oftentimes the Owners themselves being lost with them leave none to prosecute their Rights so that upon the whole matter it seems that the custome of other Nations can no more justifie ours in this than the eating of our men amongst the Cannibals would justifie our eating them and it seems rather that Letters of Mark ought to be granted in such cases if restitution be refus'd THough this Act appoints Advocats to give their Oath of Calumnie only in Temporal Courts yet this holds also in the Commissar
named by the Pope show his Bulls of Provision to the King and Chapter and though the King should admit to the Temporality a Prelate before showing of his Bulls it will not be prejudicial to the Kings priviledge of presentation that is to say that though the King had admitted a person whom the Pope had rejected as unfit he might yet of new present and the Pope should not have Right jure devoluto FOr understanding this Act it is fit to know that regulariter beneficia vacatura could not be purchast and yet the Pope had reserv'd a power to confer even these ex plenitudiâ—e potestatis cap. proposuit de confer praebend 6. decret But this Act iâ— made to annul all such Provisions to Benefices not yet vacand King IAMES the third Parliament 12. THis Act giving the Warden power to continue his Courts shews that the continuance of Courts is not of its own nature lawful and therefore no Judge may continue his Courts except he have an express Warrand for it since such as are cited may be thus prejudg'd by delays But since the King is the Fountain of Jurisdiction it is thought the King may grant such Warrands tho there be some cases wherein the King has restricted himself by express Statute as in Criminal Courts which are declar'd to be peremptor by the 79 Act 11 Par. Ja. 6. Where it is observable that these Courts are declar'd not to be conâ—inuable by the Kings specâ—â—l will and direction to shew that continuations of Courts depended upon him and generally it is by the will of the Letters that it is known what Actions abide continuation or not and though the Wardens Courts be Justice-Courts yet it is thought they may be continued notwithstanding of that posterior Act. BY this Act the breakers of the King or Wardens safe Conduct are punishable by death which is conform to the Civil Law l. 1. ff ad Leg. Jul. Majest and to the practice of other Nations Christin tit 4. Art 8. What difference there is inter pacem securitatem salvagardiam salvum conductum Vid. afflict lib. 3. tit 16. THough the selling or buying of corrupt Wine after it is found to be such be declar'd punishable by death yet the selling corrupt Wine willingly even before that is punishable and though selling corrupt Wine in the general be punishable yet this must be restricted to the case of knowledge for he who sells or buys without knowing of it to be corrupt or to have been found so is not punishable by death King JAMES the third Parl. 13. OF old every Heretor brought his own men to Weapon-showing and to the Kings Host as is clear by the 81 Act Par. 11 Ja. 3. and all these were commanded by the Sheriffs Lords of Regalities and the Kings other Officers and were call'd together by Letters patent under the Privy Seal directed to these Officers as is clear by this Act But now the Militia is commanded by Colonels and chosen by the King and are call'd together by Proclamation and Letters from the Council subscriv'd only by the Chancellor or President of the Council From this and other old Writs it is clear that the Privy Seal was then the Seal of the Privy Council but now they have a Seal peculiar to themselves which is call'd the Signet of the Privy Council Vid. Annot. on Act 30 Par. 3 Ja. 4. The Kings Rents of old were Govern'd by the Kings Master-houshold and Compt-roller and the Council but now by the Exchequer and the Master-houshold has no interest in them ratione officij that Office belonging Heretably to the Earl of Argile is now extinct by his Foreâ—alture But the Office of Compt-roller is engrossed in the Thesaurers Office By this Act such as detain the Kings Rents are to be distrainÈied that is to say pursu'd in the ordinary way viz. by poynding the ground for their reddendo by Hornings upon their Tacks but though the uplifting the Kings Feu-duties was design'd once to have been by quartering yet this was thereafter found illegal nor could the Excise be so lifted if that way were not warranted by Parliament there is no special punishment exprest here against the Officers who detain the Kings Rents But by the Civil Law these who abstracted publick Money or converted it to their own use Erant rei peculiatus qui olim paenâ quadrupli postea deportatione puniâ—bantur magistratus vero qui durante officio publicas pecunias abstraxerunt capite puniuntur l. un C h. 1. but this Crime only holds in the misapplying of publick Money and not in the withholding the Kings Rents Nota. This and the next Act bear not to be made with consent of the three Estates of Parliament but only that the Lords think expedient by which I think must be mean'd the Lords of the Articles or else this and the next Act being Concessions of the Barons in what related to themselves they were not thought fit to be drawn as Acts of Parliament but only as concessions but I incline rather to think that by Lords here is mean'd the Lords of Articles because the Acts 95 and 96 of this Parliament bear the conclusion of the Lords of the Articles though sometimes by the word Lords are mean'd the three Estates of Parliament as in the 30 Act Par. 7 Ja. 2. BY this Act the Rose-noble was made the standart of all the Gold and it was of twenty two Carrets and ten grain fineness but now our Gold is only of twenty two Carrets fineness that Gold being too soft and consequently subject to be wasted By this Act also the Warden of the CunÈie-house were first instituted for understanding of whose Office it is fit to know that the Master of the CunÈie-house has the care of Coyning and as checks over him are for trying the fineness the Essay-master and for trying the weight are the Warden who trons the Money and the Counter-warden who weighs after him and is his Check and over them all is the General of the Mint BY this Act Respits are discharg'd whereby Justice is delay'd and it 's here said that Respits are more against Justice than Remissions the reason whereof seems to be that Remissions are only granted after some Tryal but Respits are granted more easily and may be sought more frequently and that before the state of the case be examined nor is the Party injur'd assyth'd here as in Remissions For the same reason also Precepts for continuing Justice Courts are discharg'd and the Justices allow'd not to respect them Act 79 Par. 11 Ja. 6. and by the 47 Act of that same Parliament they are discharg'd also for that Act stricks against Respits as well as against Protections THe Act anent Ferries is Explain'd in the observations upon the Act 75 Par. 10 Ja. 3. OBserve 1 o. From this Act that the Silver of Scotland should be 11 penny fine for though this Act says
Riots pursu'd before them King JAMES the fifth Parl. 5. AFter many Alterations observ'd by me in the Annot. on Act 65 Par. 3 Ja. 1. and Act 62 Par. 14 Ja. 2. at last the Session was establish'd in the way it now is by King James the fifth in this his fifth Parliament and is ordain'd to consist of fourteen Lords seven whereof were to be of the Clergy or Spiritual and seven Temporal with the President who was to be of the Clergy but since the abolition of Popery they are all Seculars or Laicks though sometimes Bishops were extraordinary Lords and though this Act of Parliament appoints the half to be Spiritual and the half Temporal with a President yet by the 93 Aâ—t 6 Par. Ja. 6. It is declar'd it shall be lawful to the King to present any able Person whether he be of the Spiritual or Temporal State VId. observ on Act 7 Par. 3 Ch. 2. THe present Lords are ordain'd to have all the priviledges that the Lords of Session for so they were call'd in the Reign of King James the second had formerly and therefore it is alleaged that since Appeals could not be received from them that they cannot be received from the Lords of Council and Session as was formerly observed Act 62 Par. 14 Ja. 2. THe Chancellor when present is to preceed and because he preceeds therefore he gives his Vote last and because it was controverted whether he was to be President in the Parliament therefore by the 1 Act 1 Par. Ch. 2. He is declar'd to be President in all Courts and he did preceed by vertue of this Act in Exchequer till he was discharg'd by His Majesty by a Letter in anno 1663. These words And sicklike other Lords as shall please the King's Grace to subjoyn to them of his Great Council who shall have Vote to the number of 3 or 4. are all the warrand that there is for nominating the extraordinary Lords of Session who cannot exceed 4. They are still named by a Letter from the King as the ordinary Lords are but they are not examined like them and these extraordinary Lords are marked in the Books of Sederunt after all the ordinary Lords THese words And the Lords to subscrive all Deliverances and none other is all the warrand that was for the Lords subscriving all the Bills for raising Summonds before the Criminal Court but I think these general words should be restricted secundum subjectam materiam as all general words in Law ought to be for we see that notwithstanding of these general words the warrands for raising Summonds before the Privy Council are subscrived only by Privy Counsellors and now the Justices are only in use to subscrive their own Bills though the other Lords of Session are not excluded from that power THis Act is the warrand that the Lords have for making Acts of Sederunt which were so called because the Lords sitting are marked Sederunt such and such men but these Acts are to reach no further than the ordering of Forms of Process or the regulating their own House and therefore this Act sayes For advising and making of their Rules and Institutes for the order of Justice This same power is almost allow'd by all Nations to their Supream Judicatures Vin. Comment ad § 9. Inst. lib. 1. tit 2. Christin Vol. 2. Decis 51. num 8. THis division of the Kingdom in order to the calling Causes is now in Desuetude for all Causes are now Enrolled according to the order of the returns of the Process vid. Act. 16. Sess. 3. Par. 2. Ch. 2. Artic. 1. NO Session sits now on Munday and so this Act is in Desuetude Suspensions are called on Tuesday and Wednesday and ordinary Actions upon Thursday Friday and Saturnday The Friday was allotted for the Causes of the King and Queen and the Actions of Ministers and Strangers but by the Regulations the Kings Causes may be call'd on any day the Party Defender being advertis'd 14. dayes before of the particular day on which it is to be called It has been doubted before this Act whether the Queens Causes should enjoy the priviledge of the Kings Causes And the priviledge is by this Act extended to her ita Augusti privilegia ad Augustam sunt extendenda l. 31. ss de Legibus NOw the Lords sit from 9. to 12. and they sit down sometimes before 9. as occasion requires NOta By this Act Parties were allow'd to plead their own cause and they needed not have Advocats except they pleased but no other Party not contain'd in the Summonds can have liberty to speak But the Lords can now hinder Parties to Plead or force them to have Advocats to shun confusion and nonsence It seems also that though an Action be to a mans behove he cannot be allow'd to speak except his name be in the Summonds THe order of Tabulating Summonds is now much alter'd for no Summonds are Tabulated except Actions of Declarators Improbations Contraventions and other Actions at the King 's Advocats instance upon the back of which Summonds he Writes Tabuletur erga diem Veneris proximè sequentem and except this be written upon it the Action cannot be debated and some think that if the Action be called without this a Decreet thereupon pronounced would be null WItnesses are now examin'd by one of the ordinary Lords in the afternoon as here and that Lord who sat last Week in the Outer-house does the next Week Examine Witnesses THe Quorum of the Lords by this Act is ten either ordinary or extraordinary for either make up the Quorum but now eight Lords with the President make a Quorum which alteration proceeds from the 44. Act 11. Par. Ja. 6. Nota 1. By this Act that advising of Processes cannot be recommended to any particular Lord. Nota 2. That by this Act publication of Witnesses is allow'd else how is it ordain'd here that publication of Witnesses should be before the hail Auditor and Advocats were allow'd to see the Depositions and to debate against them till the year 1666. at which time this was discharg'd upon pretext that Advocats did spend too much time in debating against the Depositions and that Witnesses Depositions were more to be credited when no man was to see them or know them than when the persons interested were to see them because it was probable they would take pains to please them But we find great mistakes by not letting Advocats see the Depositions since they might clear many things that seem inconsistent and which depend upon other matters of Fact and it 's rather presumeable that Witnesses knowing that what they say is not to be seen will take liberty to Depone too liberally the not publication also of the Depositions tends much to make Judge Arbitrary since the warrands whereon they proceed is not known and publication of Testimonies iâ— a kind of confronting Witnesses with the Parties
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
Poynding as well as Horning to pass not only for liquid Sums but where the execution consists in facto since poynding can only be for a liquid Sum. To which it may be answer'd that the meaning of the words are that poynding may be allow'd though the Obligation was not originally for a liquid Sum but ad factum praestandum but it is necessary in that case that the effect should be thereafter liquidat by a Sentence else there could be no commensuration and so no poynding and yet I cannot deny but the Clause is ill exprest THis Act appointing that the Defender shall find Caution to enter the justice-Justice-Court but in sober manner is now in Desuetude there being no such Clause either in the Letters or any such Caution found but though the Justices allows some Friends to enter the Pannel with the Defender yet these must be very few and disarmed THis Act appointing that Salmond Herring and White Fish shall be only sold at the Staple here related is in Desuetude and though the Town of Aberdene has their own Gadges of Salmond conform to this Act yet the Town of Edinburgh pretend a right to be the sole Gadgers of Salmond in all Scotland by vertue of a Gift from King Charles the First which Gift the Town of Aberdene have suspended upon this Act and this Act in so far as it appoints Herring and White Fish to be brought to Leith and Crail is expresly abrogated by the 14 Act Par. 10 Ja. 6. THis Act is explained in the Observations upon the 75 Act 6 Par. Ja. 6. King IAMES the sixth Parliament 9. THis Act was introduced to correct an ill custome which had crept in at the Reformation whereby the Popish Prelate finding that they were to be put out did demit their Benefices in favours of these with whom they entered in a compact and by vertue of which compact they reserved to themselves their own Liferents Likeas according to the Câ—â—on Law Si quis resignaverit beneficium retentis sibi fructibus pro per si ne non valet resignatio nam decet quod ipse qui Altari servit de Altari vivat cap. cum secundum 16 de prab And in reason it must be concluded that the Benefices must be ill served when these who resign reserve their own Liferent for he who serves will have nothing in that case and he who serves not ought to have nothing Therefore by this Act all such compacts are declared null and it is declared that for the future all Rights to be made to Prelacies shall be null except the places be vacant by decease forfalture or simple dimission of him who possest the same formerly nor doth the King now accept of any dimission or resignation in favours of any other party for that is a real invasion upon His Royal Power by which he dispones upon all Offices according to his free will WHen persons are forfeited they or their Children use to abstract the Evidents of their Land and therefore by the first part of this Act it is declared that the King or his Donatar shall have right to all Lands c. peaceably possessed by the forefeited person for the space of 5 years preceeding the forfeiture Observ. 1. That this priviledge holds only in cases of Treason but not where his Majesty comes to have right by any other Title and it may be debated if this should hold where the forfeiture proceeds upon all the Laws whereby any Crime is ordained to be punished as Treason but it is not declared to be Treason such as Theft in Landed Men c. for it would appear that this priviledge was only granted where the Crime is declared to be Treason but yet since these Crimes are punished as Treason this Act should extend even to these for the presumptions inductive of this Act viz that they will abstract their Evidents holds even in this case and it cannot be deny'd but these persons are forfeited as Traitors Observ. 2. That this right introduced in favours of the King seem to be only presumptive so that if any Party should show a Back-band from the forfeited person who was 5 years in possession the person to whom the same was granted or any who could instruct a better right might pretend to exclude the Donatar even as a Church-man who was decennalis triennalis possessor might be excluded upon a better right or by proving that the Church-man possessed only by a tolerance but yet this presumption may be answered to be juris de jure and so to exclude all better rights sibi imputent who having such rights suffered the forfeited person for 5 years to possess without any interruption and if such competitions were allow'd the King 's right might be eluded by an hundred contrivances and though this Act may seem to be useless now since the Registration of Writs which hinders Writs to be abstracted yet that was repelled 23 and last of July 1666. Earl of Southesk against the Marquess of Huntley but by the 4 Act Par. 18. Ja. 6. It is declared that Extracts of Rights either disponed or confirmed by his Majesty shall be valid though the principles cannot be produced and yet if King and Parliament pleased this Act might suffer some correction because his Majesty is much better secur'd now by Registrations than he was at the making of this Act. Observ. 3. That since this Act appoints this quinquennial possession to be proven only by the Retour of an Inquest it was therefore well found that it could not be proven by exception 13 June 1666. Home contra Tennents of Kello and Home Yet though there be not a Retour already made the Lords will superceed extracting that betwixt and such a time the quinquennial possession may be retoured as was found in that case Observ. 4. That the possession condescended on in the Act is where the forfeited persons were 5 years in possession by labouring the same with their own Goods setting the same to Tennents or uplifting the Mails and Duties so that it would seem that these kinds of possessions are requisite in this case and that the Act of Parliament hath required them because they are palpable and therefore civil possession per constitutum by reservation receiving of Annualrent from Principal or Cautioners not relative to the Infeftment of Annualrent but to the Bond or otherwayes seen not sufficient by the words of this Act Observ. 5. That since this Act is founded upon uninterrupted possession of the forfeited person that therefore where there are interruptions this holds not and thus it was found that the raising of an Inhibition was a sufficient interruption 23 July 1666. Earl of Southesk con Morquess of Huntly By the second part of this Act it is appointed that where the forfeited person was in possession of Lands Tacks or Teinds c. the time of the forfeiture albeit he had not been in possession 5 years preceeding
perceperit Ecclesiae non reddiderit Christiana Sepultura privetur But yet before that time Laical Infeudations were Discharg'd per Concilium Turon 1096. Though we in this Nation consider only the Discharge in the Lateran Council It remains clear from these Informations that our decimae inclusae are in effect the same with the decimae infeudatae in the Canon Law and these are call'd decimae inclusae where the Stock and Teinds were never separated but were feu'd joyntly before the Lateran Council but yet it seems that all decimae infeudatae are not esteem'd inclusae with us for in a Case betwixt Monimusk and Pitfoddels Teinds were found not to have the priviledge of decimae inclusae though Transmitted by Infestments and call'd decimae inclusae because there was separat a Reddendo paid for the Teind and Stock and so it could be known to be different from the Stock albeit it was contended that decimae inclusae and infeudatae were pares termini and a different Reddendo did not evince that the Teinds had ever been separated from the Stock but only that there was a different Duty as is in Lands of the same holding oftimes and it may in general seem strange why we should add since the Lateran Council for that Council did find that Laicks before that time were incapable of any Right to Teinds and therefore all Feus of Teinds whether before the Lateran Council or after should be null and this Error it seems has been occasion'd by our concluding that because Laicks were declar'd uncapable of them by that Act therefore they were capable of them before it and yet with us a Laick cannot prescrive Teinds because he is not capable of them and Balsour tells us a Decision wherein not only alienations of Teinds but even Tacks of Teinds for three nineteen years were accounted alienations and so null for else Discharging alienations might have been eluded by setting long Tacks But now Teinds pass by Infestments as the Stocks does since the Surrender and His Majesties Decreet thereupon wherein every man may buy his own Teinds and so may set as long Tacks of them as he pleases or Feu them out cum decimis inclusis But it may be alledg'd this tenth part payable to the Ecclesiastick person for Teinds may be made liable to Ministers Stipends since this tenth part must be constructed as Teinds and so should be lyable to all the burdens of Teinds but to this it is answer'd that these decimae inclusae are consider'd as a part of the Stock and so no more liable to Ministers Stipends than the Stock is this division of the Feu-Duty doth not alter the nature of the decimae inclusae but is only insert to regulate the way of payment of the Feu-Duty even as if after a Feu granted of Stock and Teind promiscuously for a Feu-Duty the Church-man should dispone nine parts of the Feu-Duty and reserve only the tenth to himself that tenth part could not be liable to Ministers Stipends 2. Since this Act by the death of the Titular both Temporality and Spirituality came in his Majesties hands and so were dispon'd to the Lords of Erection and return'd to them without this distinction of nine or tenth parts Though by this Act Teinds are declared the Spirituality of Benefices yet they may be sold and are appointed now to be sold by the Parliament 1633. and the Heretors are to be infest in them as in their other Lands which seems inconsistent with their being the Spirituality of Benefices and the Patrimony of the Church but it may be answer'd that they are even in that case burden'd with payment of Ministers Stipends till they be competently provided Observ. 8. By this Act all Lands and others mortified to Colledges are excepted from the Annexation and the reason is because Kirk-Lands remain still to be such albeit they be mortifi'd to Colledges 12 Feb. 2635. Tock contra the Parochiners of Achtergoven and therefore it was necessary to except them Maisons Dieu or Hospitals are also excepted and Maisons Dieu are Hospitals dedicated to the honour of GOD it is a French word signifying the House of God the Canon Law calls them Domus Dei and makes them Hospitals Observ. 9. Pensions likewise out of Church-Benefices are excepted if they be authorized either by Decreets or Possession but possession of a part is repute possession of the whole and by the 137 Act 12 Par. Ja. 6. this Act is ratified and it is declared that all Pensions out of the Spirituality or Temporality neither clad with Decreet nor Possession in the Prelats lifetime who dispon'd the same before this Act of Annnexation shall be null but if they be clad with possession in manner foresaid they are valid against singular Successors though Pensions granted by Laicks are not valid albeit they be clad with possession prior to the singular Successors right as was found the 11 of December 1662. Clappertoun con the Lady Ednem but by the Act 140 Par. 12 Ja. 6. Pensions granted by Church-men should contain the particular names of Tennents and Duties vid. observ on the 62 Act of this Parl. Observ. 10. By this Act it is declared that the Bailie or Steward of the Regality shall have the same power he had before to repledge from the Sheriff or Justice-general in case he hath prevented the Justice-general by apprehending or citing the person before he be apprehended or cited by the Justices but if the Justices have prevented as said is then the Bailie of the Regality or Steward shall not have power to repledge but he may sit with the Justice-general if he pleases so that in effect by this Act there is this difference betwixt the Ecclesiastick and Laick Regalities that there is a right of repledging competent to the Laick Regalities whereas Ecclesiastick Regalities have not this priviledge except they prevent the Justices but otherwise the Bailie of Regality may only sit with them the reason of which difference is that the Regalities having been only granted in favours of the Religious Houses which were supprest the Regalities became extinguish'd with them and his Majesty having ex gratia only reserved their Offices to the Lords of Erection he thought that they were abundantly gratified by this new Concession without allowing them the power to exclude his own Justices in case of prevention and this was also a favour to the Lieges in not troubling them with two Courts nor were the Lords of Regality much prejudg'd for by this same Act they retain the whole right to the Escheats and Fines even of these who are condemned by the Justices Observ. 11. That the Parliament has been so careful of the Vassals and Feuers of Kirk-Lands that because the King who is declared Superior by this Act of all these Lands was a more powerful opposite Therefore by a Clause in this Act it is provided that the King shall not quarrel their Rights to these Kirk-lands save by Improbation or by
our Laicks with the consent of our Kings did think they could bestow the Teinds belonging to these Kirks whereof they were Patrons upon Religious Houses whereof I have seen very many Instances in our old Charters one whereof I shall set down for an Example Alexander Dei gratia Rex Scotorum c. Sciant tam posteri quam praesentes nos concessisse c. Deo Ecclesiae sanctae Mariae de Dryburgh Ecclesiam de Lanarch now Lanerk cum terris decimis omnibus rebus juste ad illam pertinentibus Item How the other Church-lands became first to belong to Monastries I shall God-willing clear in an express Treatise concerning Kirk-lands and Teinds THis Act is Explain'd in the former Revocations only here the Fees and Pensions granted to the Officers of the Crown are excepted from this Revocation and the Officers of the Crown are declar'd to be the Thesaurer Secretary the Collector which Office is since joyn'd to the Thesaurer the Justice that is to say the Justice-General Justice-Clerk Advocat Master of Requests Clerk of Register and the Director of the Chancellary the Director of the Rols is but his Deput The Order wherein they are set down makes the Advocat to preceed the Register and though the Justice Clerk be named before the Advocat yet that is only because in all this enumeration these of one Court are still set together and therefore the Justice Justice Clerk and their Deputs are still set together but it would appear that the Justice-General should by this preceed both the Register and Advocat But by Ch. 1. His Revocation which is the 9 Act of his first Parliament the Register and Advocat are rank'd before the Justice and Justice-Clerk posteriora derogant prioribus Nota The Privy-Seal and Thesaurer-Deput are not here marked though they be both Officers of the Crown The Precedency amongst the present Officers of State was by Act of Council February 20. 1623. thus determined Lord Chancellor Lord Thesaurer Lord Privy-Seal Lord Secretary Lord Register Lord Advocat Lord Justice-Clerk Lord Thesaurer-Deput by Act of Parliament 1661. the President of Session was then and not till then ordain'd to preceed the Register Advocat and Thesaurer-Deput and the Register and Advocat then were ordain'd to preceed the Thesaurer-Deput By this Act of Revocation all the Exceptions in any former Acts are likewise Revocked but under this part of the Revocation do not fall the Exceptions in the former Act of Annexation for King James was then major and though he had not been major yet these Exceptions being made by a publick Law it may be said that publick Laws cannot be taken away by a Revocation for the Revocation is but a privat Act of the Kings whereby His Majesty secures Himself against privat Deeds done by Himself in His Minority but not against what He consented to as publick Laws By the last Clause of this Act it is provided that his Majesty shall not be prejudged by suffering any party to possess any Lands or others fallen under the Revocation but that his Majesty may put his hand thereto at any time but any obstacle by the first part of which Clause it is not meant that prescription shall not be valid against the King but only that the possessors shall not have the benefit of a possessory judgement and by the last Clause it appears that our King 's having revock'd they needed not intent Reductions ex capite minoritatis but may brevi manu intromet with what falls under Revocation even as they may do in their annex't property for this same Clause is like to that contain'd in the Annexation Ja. 2. Par. 11. Cap. 41. and which is repeated in all the other Acts of Annexation See Observ. upon that Act but it is more reasonable to think that the King needs no Reduction because he must prove Lesion in case of Reductions ex capite minoritatis but the King needs prove nothing in the case of Annexation yet our King is still in use to pursue Reductions and not summarly to dispossess these who have right WHilst our Parliaments grew very factious in the time of Q. Mary the Popish and Protestant Party contending who should prevail in Parliament the Popish Clergy who were very numerous in Parliament since all the Bishops and Miter'd Abbots did sit there as Church-men each of them who had Lands and Heretage craved two Votes one as Church-men and another as Barons To prevent which for the future this Act was made discharging any of the three Estates to take upon him the Office of all the three Estates or any two of them but the following words are not so clear viz. That every man shall only occupy the place of that self same estate wherein he lives and of which he takes the style which was designed to keep Barons who could not get themselves chosen to represent their Shires from being chosen as Burgesses of Parliament though they were Provosts or Magistrats as they then ordinarily were and by it also a Burgess who is ordinarily so design'd may be debarr'd from being chosen as a Baron of a Shire This Act was long in Desuetude but of late by Acts of Burrows all Burgesses are discharged from electing Gentlemen to represent them in Parliament under the pains specified in these Acts for they found that Gentlemen did not adhere to nor understand the true interest of Burghs and the King found that none desired to be so elected except such as had private designs albeit upon the other hand it is represented that this is the way for Burgesses to have their interest maintain'd by Lawyers or able States-men either of which they may choose and the people of England who are very jealous of their priviledges do choose such by which likewayes their Parliament is so considerable and their Laws are made by so judicious Lawyers But by an Act of the 3 Par. Ch. 2. it is determin'd that only actual Trading Merchants can represent Burghs-Royal in Parliament and that Act was founded upon an express Decision of the Session THe unlaws for absents from Parliaments here set down are 300 pounds for every Earl 200 pounds for every Lord 100 pounds for every Prelat and 100 Merks for every Burgh but there is no penalty appointed for Barons and I think that they are comprehended under the word Lords for the Lords and Barons make but one State of Parliament and Laird is but a corruption of the word Lord of old 10 pounds only was the unlaw or amerciament as is to be seen by the Preface of all the Acts of Parliament which bears ordinarly these words alii vero quasi per contumaciam se absentaverunt quorum nomina patent in rotulis sectarum quorum quisque adjudicabitur in amerciamento decem librarum THis Act appointing every State of Parliament to have three Apparels conform to a pattern to be made was not made that every man might have three several Habits
but to the end each distinct Estate might have a special Habit and yet Barons nor Burgesses have as yet no distinct Habit for Parliament FOr understanding this Act appointing the number of the Lords of Articles in every State to be equal and that the most shall not exceed ten nor the least be fewer nor six it is fit to know that by the 1 Act 3 Sess. Par. 1. Ch. 2. The Lords of the Articles are ordained to be elected and constitute in manner following viz. the Clergy choose 8 of the Nobility the Nobility 8 of the Clergy and these sixteen so elected or such of them as are present do choose 8 Barons and 8 Burgesses to whom are added the Officers of Estate and the Chancellor Presides And the Articles being so constitute do prepare Laws Acts and Overtures and orders all things remitted to them by the Parliament BY the 135 Act Par. 7. Ja. 6. no Advocat could plead in Reductions of Forfaulters without a licence which is abrogated by this Act but because this Act gave leave only to persons accused before the Parliament to have Advocats without licence therefore by the 90 Act of this Parliament Advocats are ordained to plead in all Criminal Cases and they do so upon Supplications This craving a Licence was founded upon 98 Act 14 Par. Ja. 3· vid. crim observ tit Advocats THis Act is fully cleared crim observ Tit. Jurisdiction of the Parliament IN this Act the King promises to do nothing that may prejudge the liberty of Voting and reasoning but yet if any person should offer to argue what is down-right Treason this Act would not defend him for by voting and reasoning jointly may be inferred that that reasoning is only allowed which relates to a stated case and to be put to the Vote and nothing that is treasonable will be allowed to be stated in order to a Vote THis Act discharging all contention for priority of place relates only to Parliament and the disturbance thereof but by a Decreet of Ranking in anno 1606. his Majesty having ranked the Nobility has commanded them to observe the Precedency there assigned in all places and that under the pain of being punishable as contemners of his Authority THough by this Act all actions of molestations are ordained to be pursued before inferiour Judges as being naturally but actions for cognoscing of Marches where the controversie being facti can best be understood upon the place yet now such actions are ordinarlie pursued before the Lords because there is a Declarator joyned with the molestation for the Pursuer Libels that though such Lands be his Property yet he is molested in the possession thereof and the reason of this Invasion is because Declarators of Property as all other actions concerning double Rights can only be pursued before the Lords of Session The form prescribed to molestations by this Act is that the Lords shall direct Letters to the inferiour Judges upon 15 dayes warning who shall continue their Courts from 8 dayes to 8 dayes and these inferiour Judges having discust the points of Law they shall choose an Assize the most part whereof shall have 4 Ploughs of Land or 300 Merks of yearly Rent in the same or Neighbouring Parochs if there be mutual pursuits the Judge shall discuss both together and choose an Assize out of the Assizes cited by either party equally and the Odd-man to be choos'd by Cavil if the Judge ordinar be suspect the Lords shall grant Commission by their own Act or by a Commission under the testimony of the Great Seal to unsuspect Judges This form is still almost in observance only the Lords in dubious cases grant Advocations to themselves where the Judge is suspect and after the Cause is debated the Lords ordain the Ground to be visited by some of their own number or grant Commissions to others if the Lands ly very remote but these Commissions under the testimony of the Great Seal are absolutely in Desuetude If the most part of the Inquest be not clear the Lords find that in that case the Cause should be Advocat to them as the Supream Court and they will judge according to the probation already taken or will grant warrand to cite new Witnesses as they did 21 July 1675. Walstoun contra Cheislie Though this Act appoints the Inquest to be chosen of Landed-men having 4 Ploughs or 300 Merks and that in or near the Paroch where the contraverted Land lies yet the verdict will be sustained though they have not so much and though they dwell not in that Paroch albeit there be such in the Paroch This was formerly appointed §· 14. c. 74. lib. 2. R. M. where such cognitions are appointed to be per fideles homines de viceneto And Skeen there observes that Perambulations differ from Molestations in that Perambulations are petitory Judgements and concern Property but Molestations are only possessory Judgements though both tend to the tryal of Marches Nota That by the last Clause of this Act the Members of the Colledge of Justice are exeemed from Tryal before Inferiour Courts which was formerly granted in Removings p. 6. c. 39. Queen M. and is here extended to all Causes according to old accustomed use and though it was alleadg'd that thir last words were restrictive and so the Members of the Colledge of Justice could not Advocat their Causes from Inferiour Courts except in such Cases only as they could prove old use and wont yet these words are found Exegetick and to be equivalent as if the Act had said because of old accustomed use granting them that priviledge and this was very reasonable for since they are oblig'd to attend the Lords and their Clients the Citing them before Inferiour Courts had been inconsistent with both The Action of Molestation is the same with us that finium regundorum was by the Civil Law and what can stop Perambulations in our Law are set down Statut. David 2. cap. 20. where amongst other things it is observ'd that a Minor is not oblig'd to Defend in Perambulations and this is the only place in our written Law where that old Maxime is to be found minor non tenetur placitare de hareditate paternâ and yet it seems that a Molestation being declar'd by this Act to be judicium possessorium a Minor should be oblig'd to Defend in this as he is in all other possessory Judgements but the reason of this Exception in Molestations seems to be because ordinarly Molestations resolve in Declarators of property or are joyn'd with them BY this Act the Defender is indefinitly to pay the Expence of the Obtainer of the Decreet at the modification of the Judge vid. Act 110 Par. 7. Ja. 5. But though this Act be general yet statutum quod disponit simpliciter ut victus victori in expensas sit condemnandus hunc sensum admittit si non habuerit justam litigandi causam hic quippe sensus juri communi est
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-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
Members the advantage they had over others is taken away and which advantage was the reason inductive of this Act nor should the punishment be extended beyond the Cause which is also conform to the opinion of the Civilians vid. vin select Quest. jur cap. 1. But it may be doubted if he who takes such Assignations should not be lyable to resound the damnages which are occasion'd by taking such an Assignation since it is a principle that Damnage is still due where the injury is done to any man against a positive Law though that Law ordain not Damnage and Interest to be repay'd and in this case the taking such Assignations is declar'd unlawful and so an injury is done against a positive Law 2. Without this the party injur'd is not repair'd for though the publick Interest vel vindicta publica be repair'd by the Deprivation yet the interest of the person les'd which is chiefly to be considered is not 3. Deprivation is oft-times no punishment and seldom a Commensurable Punishment for many Members of the Colledge of Justice lose nothing by Deprivation and a Plea may be worth a great sum and their Imployment worth nothing whereas Damnage as it is a natural so it is a most Commensurable Punishment Because this Act Discharges only Members of the Colledge of Justice to buy Plea's Therefore it is still lawful for them to take Assignations to Plea's gratis as a Donation July 30. 1678. for as this falls not under the express prohibition of the Act so it is noâ— presumable that they will be as keen in pursuing such Processes as these for which they have pay'd out Money nor were it just to make the Members of the Colledge of Justice incapable of their Friends and Relations Liberality By this Act Advocats Servants do pretend they are Members of the Colledge of Justice because this Act says their Servants and other Members Though this Act and the Rubrick Discharges only the buying Debateable Lands Teinds or Possessions and speaks nothing of Moveables nor even Heretable Bonds mobilia being ordinarly accounted vilioris naturae yet the Lords do now ob paritatem rationis extend this Act to such as take Assignations to Moveable Debts or any other debateable Rights This Act uses to be so Interpreted as to be extended only to the Members of the respective Courts who take Assignation to Plead before the Court where they serve and thus if an Advocat should take an assignation to a Plea depending before an Inferiour Court it may be urg'd that this Act should not reach them because he has not influence before that Court but if he should go and Plead before that Court as an Advocat may before any Court then the Act would reach him also Item Though this Act does not speak of Procurators before Inferiour Courts yet the word Advocats seems to comprehend them BY this Act Caution is to be found in actions of Ejections for the violent profits and though cautio juratoria be ordinarly sustain'd where persons cannot find other Cautioners yet it is not sustain'd in this case July 17. 1630. Because this Act says that by the proponing of these Defences against Ejections delays are granted therefore the Defender either in Removings or Ejections is not oblig'd to find Caution where the Defence can be instantly verifi'd and although it has been doubted whether this Caution is to be found at the proponing of the Defence or at the first Term assign'd by the Act yet it is clear that the Caution should be found at the first Term assigned by the Act both because this Act says that the Caution shall be found at the first Dyet of â—itis contestation and because there must be some time given to find Caution Nota That in the Brieves of Dissasine which was the same thing of old that Ejection is now Caution was to be found as here by the Defender Quon Attach cap. 53. num 2. For clearing some mistake in the Printing of my Criminals pag. 294. my meaning was that there may be Perjury in cautione juratoria as for instance if a person should Depone that he could not find Caution for the violent Profits and yet it could be prov'd that such a person who was very responsal offer'd to be Caution this I think would infer Perjury BY this Act it is appointed that twenty dayes after the Parliament is proclaim'd and before it meet four of every Estate should meet to receive Articles to be presented to the Parliament but this is now in Desuetude for no State can now meet except the Burrows and yet sometimes the King writs down to call whom He pleases to name to meet and consult previously what Laws are fit to be made in the future Parliament By this Act also it seems that nothing can be presented in plain Parliament by any of the Members of Parliament but that every thing must be first presented in the Articles for eviting confusion and this Act was made use of to that purpose in the Parliament 1674. against a proposal made then for having a Commitee of grivances To which it was then answered that the Articles being but a Committee of Parliament they could not restrict their own Constituents and this Act was rather directive than restrictive THis Act is fully Explain'd crim pract tit Jurisdiction of the Lords num 7. THis Act is explain'd crim pract tit Paricide THis Act is formerly Explain'd 15 Act 4 Par. Ja. 5. where Liferenters are to find Caution By this Act also a power is granted to the Magistrats of Burghs to cause repair Burnt and Waste Lands but yet ordinarly the Magistrats of Burrows use to give in Petitions to the Council craving liberty to force the Heretors of such Burnt Lands to repair their Burnt Lands themselves or else to sell their part and when there are many small Heretors concern'd the Council grants Warrand to the Magistrats to regulat their Venditions though I know it hath been alleadg'd that the Council could not do this because it was an Inversion of Property and that this was only competent to the Parliament and yet the Council have still been in use to do so for the common good of the people nor is any man a loser since he may repair by himself and if he will not he gets his just price This was granted to the Magistrats of Edinburgh in anno 1678. publice enim interest ne civitatis aspectus deformetur ideo constitutum est l. 4. C. de jur reipub aream collapsam posse a fisco distrahi si proprietarius monitus eam reficere non curaverit vid. l. 46. ff de dam. insect I have seen a Decreet in anno 1636. at the Town of Edinburghs instance against several Heretors before the Lords of Session for ordaining the Heretors of these Houses upon which the Trone-Church now stands to denude themselves of their Right in favours of the Town ob utilitatem publicam and to
a proportion of such fines though they were not required by their Magistrates because it is their duty to concur when they see such Tumults and Magistrats are oftimes unable to require concurrence THe Lands of Huntingtoun and Strabrand are dissolved to be set in Blench Farm in favours of the Earl of Montrose and it was necessary that there should be a particular Warrand for setting the Lands in Blench-farms because by the 234 Act Par. 15. Ja. 6. The annext property can only be dissolved for setting Lands in Feu-farm vid. observ on that Act. It is likewise observable by this Act that because this Dissolution was to be made in favours of the Earl of Montrose then Commissioner It is mentioned that there is a particular Warrand for dissolving the same King James the sixth Parliament 19. THis Act against Sayers and wilful Hearers of Mass is Explain'd crim pract tit Heresie Nota By this Act the Resetters of such are fineable as Non-communicants and the Act by which these are fined is not here cited but it is the 17 Act Par. 16 Ja. 6. THis Act against the users of false Weights and Measures whose whole Goods are to be Confiscated is Explain'd crim pract tit Falshood THis Act is Explain'd crim pract tit Theft THis Act empowers the Bishop of Saint-andrews to choose seven within his Diocie to be his constant Chapter which was formerly resolved upon by the 3 Act Par. 18 Ja. 6. Though the power of choosing them was not given to that Bishop expresly But thereafter by the 2 Act Par. 22 Ja. 6. The Benefices whose Incumbents are to make up that Chapter are particularly condescended on in that Act. King JAMES sixth Parliament 20. SUch as sent Pedagogues abroad with their Children without a Testificat from the Bishop of the Diocie where the Pedagogue lately made his Residence are fineable by this Act and though this Act is thought only to strick against Children of Popish Parents Yet it is general and stricks against all His Majesties Subjects of what Religion or Opinion soever and though they use to call these Governours and not Pedagogues yet that will not defend against this Act for Pedagogue was the only Term then in use THis Act stricks only against the Children of Popish Parents who are hereby ordain'd to find Caution to the Lords of Privy Council that they shall not intertain their Children abroad when they know them to be Popishly inclined and by vertue of this Act the Lord Semple and others were oblig'd in anno 1667. to recal their Children out of Doway and this Act was renewed by Proclamation of Council January 1679. BY this Act it is Ordain'd that such as are Excommunicated for not professing the true Religion shall neither directly nor indirectly possess their Estates and by vertue of this Act it was found upon the 16 of June 1629. That those Excommunicated persons are not so much as bona fide possessores but that by vertue of this Act they are oblig'd to refound all their own bygone Rents possessed by them before Citation or Sentence they only getting Defalcation of Seed Tâ—ends and Servants Fees Which are ordinarly defalked in the Computation of Multures and all other intromissions IN time of Popery every Bishop had his own Official or Commissar but in the year 1563. Queen Mary by a Signature Superscrived with her own Hand did institute this Court at Edinburgh appointing four Commissars to sit there and to judge in Divorces and to Reduce the Decreets of Inferiour Commissars which is Ratified in Parliament 1567. by which also they are appointed to Judge in all Actions concerning Benefices granted by the Queen They were at first nominated by the Queen and were called Judices Regâ—i but after Her Demission they were nominated by the Lords of Session as is clear by the Books of Sederunt and even in this Act the present Commissars were to continue they getting Testimonials of their sufficiency from the Lords of the Session and severals of them were at once Lords of the Session and Commissars as appears by the Books of Sederunt upon the Restitution of Bishops the Commissars who then were did submit and this Act seems to have proceeded upon a Submission betwixt the Bishops and Commissars the 23 of June the day before the Parliament sat down whereupon Decreet was pronounced the 29 of June containing the foresaid Reservation of the Commissars Offices and in the case of the new Provisions the Commissars are the only submitters and yet there are Annuities Decerned to the Clerk to the former of Testaments Quot-masters and others and there is a form prescrived anent the procedure in Divorcements betwixt the parties in other Commissariots who are not worth a certain sum which hath no foundation in the Act nor seems to be seconded by practice the Decreet is Registrated January 19. 1610. Relative to the Decreet wherein the Arch-bishops and Bishops of Galloway and Orknay are subscrivers for themselves and taking burden for the remnant Bishops and their Successors there is a Contract the 15 of November 1609. and March 5. 1610. entered into amongst the Bishops for the relief of the Arch-bishops or either of them for payment of their respective proportions to the Arch-bishop who shall happen to be distressed for the Sallary the Arch-bishops by the Contract being bound conjunctly and severally to the Commissars the whole proportion of Relief due by Glasgow to Saint-andrews is the double of the Contribution to the Lords and Sallary due to the two youngest Commissars and the Relief due by Saint-Andrews to Glasgow is the double of his Contribution and the Sallary due by him to the two eldest Commissars By which it appears that before this Decreet the Commissars had Sallaries the obligement in favours of the Members of Court of the Commissariot of Edinburgh whereby the Bishops are obliged to compel the Members of their Court to pay certain Sums to the Members of the Court of Edinburgh during their lifetime is not renewed in the Contract In this Contract the obligements upon the part of the Commissars are general relative to their Duty to their Superiours and fidelity in administration of Justice according to the Practique and Injunctions the Observation of the Decreet Arbitral and Articles by which it is ruled subscriv'd by Arbiters and Overs-men which is not extant there is no penalty adjected neither are the Commissars subscriving The Commissars and many of the Bishops being dead who were alive the time of the Decreet Arbitral the Bishops especially the succeeding Bishops refused to pay the Sallary to the succeeding Commissars whereupon they pursued John then Arch-bishop of Saint Andrews who the time of the Decreet and Contract was Arch-bishop of Glasgow and James Arch-bishop of Glasgow who then was Bishop of Orknay as the only two alive who were burden-takers by the Submission for the rest and Decreet followed February 12. 1630. against the Arch-bishop of
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
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
Judges inclined to think that these Regulations extend to Justice-airs as well as justice-Justice-Courts as to all the Articles here exprest since Orders are given by the Parliament for regulating Justice in these Regulations which shew the Parliament design'd to extend them to both From these words in the ninth Article That the Chancellour of the Assize mark how every individual Assizer shall Vote whether he Condemns or AsseilÈies it clearly follows that no Assyzer in Criminals may be non liquet and if this were allow'd in one it might be in all because this was not necessary formerly Therefore by the 63 Act Par. 8. Ja. 3. It was ordain'd that when a Summons of Error was rais'd each Assizer was to set down who assoilÈed and who Condemned but because they might forget or for fear of punishment might be unfaithful in this Therefore this Act appoints That in the first Verdict it shall be marked who Condemned and who assoilÈed Albeit this Act appoints that the Chancellor shall mark whether every man assoilÈes or Condemns Yet it is thought the omission of this would not annul a Verdict in favours of the King that being only introduc'd in favours of the King to the end that His Majesties Advocat may be instructed whom to pursue in a Summons of Error when a party is wrongously assoilÈed By the 11 Article it is appointed That when any Summons of Exculpation is Executed against any party that at the same time the Names of the Witnesses and Inquest should be given to the end the party may know what to object against the Witnesses Upon which Article it was alleadged that when an Exculpation was rais'd against the King the Witnesses Names should be given to his Advocat likewise and which the Justices found to be necessary in March 1680. For the Act being general as to all and there being as great reason that the King should know those who are to be led against Him as any privat party He ought to have the same measure and whereas it was objected that it were a very severe thing that a poor Pannal might not lead any Witness even during the Debate though his Name had not been given in List yet this has no weight since the Act is so clear in general Terms as to all and it may seem as unreasonable that the King should not be allow'd to lead any Witness to prove a Crime if he find him in the Court the time of the Debate for the Pannal may much better know who can prove his Defence since he behov'd to know them if they were present than the Kings Advocat can know who were present when the Crime was committed and though there may be some inconvenience in this for one particular Pannal yet in the general there is great advantage in this to Pannals the King being thereby forc'd to give in the Names of his Witnesses so that the Pannal may not only know how to object against them but even how to practise them and whereas it may be objected that by this procedure there behov'd to be progressus in infinitum since the King might Cite Witnesses to cast the Pannals Witnesses and the Pannal behov'd therefore to be allow'd to cast the Kings Witnesses and to have Citation for that effect It is answered that this might as well be urg'd against all Reprobators nor does this hold here for the Judge should not allow such Citations save one to each party Because Messengers in Executing Criminal Letters gave sometimes only copies of the Libel it self and yet returned Executions to His Majesties Advocat that they had likwise given Lists of Assizers and Witnesses Therefore the Justices declar'd in February 1681. by an Act of their Sederunt that if the Pannal should produce a Copy under the Messengers hand of the Libel except the List of the Assizers and Witnesses Names were upon the same Paper with it they would not sustain the Execution though bearing That Lists of Witnesses and Assizers were given THis Act is Explain'd in the 1 Act 1 Par. Sess. 3. and 7 Act Sess. 2 Par. 2 Ch. 2. COmprisings were at first Invented to pay Debt with a suitable proportion of Land and the Sheriff was to adjust the sums due with the Lands Comprised but thereafter great Estates being Comprised for small Debts the Parliament thought fit by this Act to Ordain that for the future not a Messenger who was Judge in Comprisings but the Lords of Session should by a Process before them Adjudge as much of the Debitors Lands to the Creditor as would satisfie his principal Sum and Annualrent with a fifth part more because the Creditor was forc'd to take Land for Money whereas by the Common Law aliud pro alio invito creditore solvi nequit And albeit this Act expresses only that this fifth part shall be beside the Composition to the Superiour and Expenses of Infeftment yet certainly the Creditor must likewise have all the Expenses bestow'd upon the Process for as this is reasonable in it self so that expenses tends to the procuring of the Infeftment Observ. 1. This Act came in to the Parliament simply in these Terms and the equity of it was prest from the Custom of other Nations and particularly the Common Law where the Praetor did adjudge the Debitors Land proportionally to the Debt but it being strongly urg'd by the Lawyers Burgesses and other Members who were Moneyed Men that it was most unreasonable to force the Creditor to take Land except the Debitor should produce to him a good Progress and Security for both to be forced to take Land and yet to want a sufficient Right thereto was altogether unreasonable Therefore the Parliament ordain'd that if the Debitor did not compear and produce a sufficient progress and Renunce the Possession the Debitor might Adjudge the whole Estate as formerly he Comprised it and this has almost Evacuated the whole Act for the most of Debitors are unwilling to produce a Progresâ— and renunce Possession and therefore most Lands are now adjudg'd as they were formerly apprised and in December 6. 1681. It was found that an Adjudication led for a fifth part more in absence of the Debitor was null since the fifth part more was only to be given where the Creditor compeared produced a Progress and Renunced albeit it seems that this alternative being introduced in favours of the Creditor it ought to be optional to him to choose either Observ. 2. That the Legal in these Adjudications is only five years whereas it was seven in Comprisings for the danger being less because of the said Commensuration it was just that the time for Redemption should be shorter and though it be not exprest that the foresaid five year shall not run against Minors and that it may seem it should not run against them in respect of the short commensuration and that it seems unreasonable that a Creditor being forc'd to take so little Land and should yet be forced to be
may be urg'd that He may since the Session is his own Court wherein He does Justice to His People by His Judges and therefore as any of His Majesties Vassals may hold their Courts when they please much more may His Majesty hold His. Likeas His Majesty has oft-times by His Council order'd the Session to sit when and where He pleas'd And whereas it is pretended that if this were true Acts of Parliament in â—his case were unnecessary and that such alterations have never been made without the Parliament To this it is answered That at first the Session was a Committee of Parliament and so the Diets of Session behov'd to be appointed by Parliament and now likewise it is fit that the Inclinations of the Subjects be gratifi'd by such Acts taking along their consent in a Case of so general a concern but it does not necessarly follow that all things that have been Establâ—shed by an Act of Parliament at some times can at no other time be order'd by His Majesty alone for we see that there are several Acts of Parliament Regulating Trade and Coynage and yet it cannot be deny'd but that Trade and Coynage are inter Regalia ALbeit by the fourteenth Act 1 Par. Ch. 2. The Excise is to be taken up by the Commissioners of the Excise or Collectors appointed by them and for whom the Commissioners are answerabâ—â— and may be quartered upon for their Deficiency By this Act the grant of the Excise which is to Commense from the Kings Death gives His Royal Successors only a Right to what the Drink Exciseable it self can yield and so the Shires will not be oblig'd to burden their Land with Cess for Deficiency of the Excise as now they do THis Act is formerly Explain'd in the Observations on the 47 Act Par. 11 Ja. 6. BY our former Law it was generally believ'd that all Widows had Right to a third of their Husbands Estates call'd with us a Terce except the Wife had been expresly secluded by her Contract of Marriage and that she had Right to her Joynture and to a third of the superplus of any Land wherein her Husband died Infeft But in a Case betwixt Prestongrange and the Lady Craigleith Debated in the Session immediatly before this Parliament It was alleadg'd that the said Lady being competently provided by her Contract of Marriage to a great Joynture she could not likewise have Right to a Terce because primo provisio hominis tollit provisionem legis and therefore where a Wife is provided by express agreement and the Provision acquiesced in by the Wife and her Friends it is in the construction of Law reputed to be in full satisfaction of all she can crave if the same amount to a third of all the Lands which the Defunct had at his Decease 2. This is Declar'd to be our Law by the 16. cap. lib. 2. Reg. Maj. N. 6 10. And by Balfour in his Title of the Wises Dowry and Terce And by Craig lib. 2. Cap. 22. 3. By the Laws of other Nations it is clear that where a Wife is secured by a Conventional Provision she can have no Right to any legal Provision This the French expresly determine when they say that a Wife having dotarium praesixum cannot claim dotarium ex lege consuetudinarium 4. This Terce is the same in the Analogy of Law that a Legiâ—tim or an Aliment is to Children but so it is that neither of these are due when the Children are provided and therefore the most that can be due in either Case is supplementum legittimae the Law having only designed the rationabilis tertia And there is no more due to our Queens by the 2 Act 1 Par. Ja. 3. Albeit these Reasons were thought very pungent and tending much to the support of old Families and to secure Men against the importunity of their Wives yet because some positive Decisions had run in favours of the Wives though abundantly provided therefore the case was referr'd by the Session to the Parliament and they by this Act ordain'd that in time coming if the Wife be provided tho her Provision were never so small she shall be excluded from a Terce unless her Right to a Terce be secur'd to her by and attour her particular Provision But because this Act was not thought a Declaratory Statute but a Regulation therefore the Case depending was remitted back to the Session THis is fully Explain'd in the Observ. upon the 16 Act 22 Par. Ja. 6. HIs Majesty having by vertue of His Prerogative Royal Declar'd by the 27 Act 3 Sess. Par. 1 Ch. 2. The Sole ordering and disposing of Trade with Forraigners He did by Act of Council Anno 1681. Regulate the matter of Trade and Manufactories which Proclamations are here Ratifi'd for a security to such as shall undertake Manufactories and therefore it may be doubted if His Majesty can dispense with any thing relating to Manufactory since in this third Parties have followed the Faith of his Majesties Acts and Proclamations so that His Majesty seems to be bound to them ex quasi contractu It is declared by the last Clause of this Act That no persons contraveening this Act shall be lyable to the Penalties unless they be found guilty within three Moneths after the delation Upon which Clause it was found that the Offenders were free though they had confess'd their Contravention by their Oath within the three Moneths because there was not a formal Sentence against them albeit it was alleadg'd that in confitentem nullae sunt partes judicis and the King had done sufficient diligence and the reason of the Act did only militat in favours of those who where not oblig'd to Depone after so long a time and the King could not be prejudg'd where his Officers had done sufficient Diligence for this in effect was a Prescription which runs only against the negligent Likeas in this Case the want of a Decreet could not be oppon'd since it was occasioned by a Petition given by the Defenders craving a delay with which the King gratifi'd them But yet the Council thought the words of the Act so positive that they would not go over them especially since the Clause did resolve in an Indemnity to People who might have and did ordinarly contraveen by mistake or through necessity and all such Indemnifying Clauses should be favourably Interpreted BY the 212 Act 14 Par. Ja. 6. The Lords of Session can only be declined to Vote or Judge in Causes belonging to their Fathers Brothers or Sons But because the prohibition of that Act was too narrow and that the reason thereof did equally militat against all Judges Therefore by this Act the Prohibition of the former Act is extended to degrees of Affinity as well as Consanguinity As also to Uncles and Nephews so that now no Lord of Session or other Judge whatsomever is Capable to Vote where either the Pursuer or Defender is Father Brother