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land_n	die_v	enter_v	fee_n	2,072	5	9.8051	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50697	Observations on the acts of Parliament, made by King James the First, King James the Second, King James the Third, King James the Fourth, King James the Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second wherein 1. It is observ'd if they be in desuetude, abrogated, limited, or enlarged, 2. The decisions relating to these acts are mention'd, 3. Some new doubts not yet decided are hinted at, 4. Parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by Sir George Mackenzie ...	Mackenzie, George, Sir, 1636-1691.	1686 (1686)	Wing M184; ESTC R32044	446,867	482

to a boll of victual and the price of the boll to have been valued to 18. shilling Scots yearly and this was by and attour the Sheriffie for which the like proportion of Lands was appryzed as the several appryzings bears and for the better making of the proportion they also bear that the Sheriff and Inquest came to the ground of the Lands and measured off the aikers and set a constant price on the victual but by one of the Decisions cited by Balfour later than these It 's like that five per cent has been theirby appointed to have been the Rule in time coming as he sayes When Annualrents out of Lands were appryzed the Inquest did never exceed 5 per cent without a Dispensation from the Lords of Session or else they were pr●judg●d sayes Craig pag. 332. And the Compryzings were reduceable but Dispensations were easily granted and Craig saye● they were sought to free the Inquest from hazard of perjury but upon what ground it was that the Inquest scrupled more in Compryzing of Annualrents than in Compryzing of Lands where they allowed a Rent answerable to 5 per cent I cannot conjecture except for one or two Reasons 1. That annualrent is a thing odious and unlawful by the opinion of many Divines and therefore not to be stretched 2. Annualrents were free of publick Burdens to which Lands were subject and therefore a greater allowance might have been given of Land-rent than annualrent When Life-rent Rights such as conjunct-Conjunct-fee Simple-liferent Terces or Curialitie were comprized the estimation was made according to the age of the Life-renter or Life-rentrix when within 40. years the estimation was 5 years purchase that is as much as the Fruits and Rents had yeelded for 5. years preceeding or might yeeld in 5. years thereafter and when the Life-renter exceeded 40. years of age and was not of the age of 50. compleat four years purchase was the estimation and if 50 years of age was exceeded and the sixtieth not attained the estimation was three years purchase and if the Life-renter was weak or sicklie or that there was any other cause that might interrupt the Liferent-right the Inquest did value as the Circumstances determined Craig pag. 331. in fine dict pag. 332. in princ And when any Servitude was apprized the Inquest did also value as they thought the Servitude profitable Craig loco citato This was the way of Procedor in old Comprizings in making a proportion betwixt the Debt and the thing Appryzed The form and stile of Decreets of Compryzings of old was shortly thus the Clerk of the Compryzing who was ordinarily the Sheriffs Clerk did extend a writing upon Parchment containing all the particulars of the procedor to wit that the Creditor having obtained a Sentence before the Sheriff decerning his Debitor to pay a certain sum and there being no Moveables to pay it the Sheriff came to the ground of the Land with an Inquest of most knowing Persons within the Shire selected for that effect and there measured off some aikers for the Money and Sheriffie corresponding each aiker paying so much victual and the victual being valued to a suitable Rate redeemable always by the Debitor within the time contained in the Act of Parliament and which Writing is Seal'd with the Seals of the Judge and of the Inquest 2 o. Though this Statute appoints the Sheriff to sell yet upon deliverence of the Lords of the Session they will appoint the Compryzing to be led before Messengers or Macers whom they will make Sheriffs in that part It being debated whether a Compryzers Marriage fell to the King where the Comprizer was payed within the Legal though he was not payed when the Marriage fell but was payed thereafter and before the Legal expired it was urged that it did fall because the Compryzer was Vassal and so as all Casualties due by other Vassals should fall and that the King should rather have this casualty from Comprizers than from any Vassals because a Compryzer could by a special Statute be entred by the King though a singular Successor 2 o. If the King were seeking this casualty by the Debitors Death the Comprizer would exclude him by alledging that the Debitor was Denuded and it were unjust that by this means the King should want his casualty from both 3 o. The King falls all other casualties by the Compryzer such as Recognition Liferent Escheat and the Compryzer by being entred can do all Deeds that other Proprietars can do and therefore should be lyable in all other casualties as they are 4 o. If this were not allow'd the King might be still defrauded of this casualty for the Comprizer might still secure the Debitor and if his own Marriage fell he might thereafter cause redeem himself And whereas it was pretended that a comprising is but a pignus praetorium in pignori●us non transfertur dominium and so the Debitor being still Proprietar remain'd still Vassal To this it was replyed That though a Comprysing resemble pignus praetorium yet it is truely an alienation and this Statute appoints the Land to be sold to the Creditor and by the whole Tenor of Comprisings it is clear that it is a judicial Vendition made under Reversion and so resembles more a legal Wodset and therefore as in Wodsets the Wodsetters Marriage would fall so ought the Comprizers and its being a legal Vendition and Alienation appears from this also that it falls under Recognition and Recognition presupposes still alienationem dominij The Lords upon this Debate which clears much the nature of Comprisings prefer'd the King for they found that the Compriser being Vassal the Marriage fell by his Death he having died before the Comprysing was redeem'd and therefore it may be doubted whether the Compriser will have his relief for the damnage incur'd by this casualty from his Debitor before the Lands can be redeem'd from him since it fell by his fault in not paying him nor is the Debitor much prejudg'd for if the Lands had not been Compris'd this casualty might have fallen by his own Death and the inconveniency urg'd from the multitude of Marriages that would fall by the great number of Comprizers is of no w●ight since if a man had sold his Land and divided it amongst his Creditors all their Marriages had as well fallen in that case as in this 3 o. Whereas by this Act the legal is to extend to seven years only so that if there be one shilling resting after seven years the Comprysing expires yet by the 62 Act 1 Par. Ch. 2. Anno 1661. This legal is extended to ten years but both the seven and ten are to be compted from the Date of the Decreet of Apprising and not from the Date of the allowance by our practick 4 o. Though Superiours be not oblig'd to receive singular Successors yet they are bound to receive Comprizers upon payment of a years Dewty of the Lands Comprised and this singularity is introduc'd in

Gentlemen within the said Western Shires be above all exception and be more eminent that there are so few of sound Principles there yet to speak modestly the generality of the Inhabitants of these Shires has not been so forward to desire or promote His Majesties Restitution and Interest that now after His Majesties happy Re-establishment they should obtain what they could never effectuate in any time and should be gratifi'd to the prejudice of other Shires of undoubted and constant Loyalty and the overturning the ancient Law and Way of the Kingdom 8. As to the pretence of inequality in the old Way it is to be considered that though an Arithmetical proportion and exactness is not to be expected in any Way Yet there is more reason to presume for the justice and equity of a legal way venerable for antiquity warranted by express Laws and immemorial Custom which for any thing known had its beginning in the time of Freedom and has been continued in the best most peaceable and pureest times notwithstanding any endeavours to the contrary than for a way contriv'd and hatch'd in the Heart and fury of Trouble and Distempers and brought forth and obtruded upon the Countrey with so much partiality and factiousness that it is well known that the Shires and persons who were in opposition to His Majesty had so great and prevalent interest for the time that the valuations both as to the Quota of Shires and proportions and Rents of private persons were carry'd on by the instruments and Commissioners most inequally to the advantage of their party and the evident prejudice and pressure of whole Shires and all persons who were sincere or had the least Affection for the Royal Interest 9. By the Common and Feudal Law and Law of the Kingdom where the Heir of the Vassal Dieth not Entered the Superiour during the None-entry has right to the Duties of the Land holden of him and when the Heir of ward-Ward-lands doth Enter the Superiour hath Right to the Duties for a year under the notion of Relief which in both these Cases of Relief and Non-entry are payable according to Retoures and the New Extent if the old way of Retoures should be altered in relation to the payment of Taxations why not in order to None-entries and Relief so that they should be payed not according to Retour but Valuations there being no reason that the saids Casualities are not exacted in rigour but the ancient Law and Custom for Retoures How dangerous the preparative may be if the way of Retoures should be altered even to those who are for Novations and what Combustion and Disorder it may occasion in the contrary it is so apparent that it needs not to be represented 10. Whereas it is pretended that the Lords and others of the Clergy will have prejudice by the Old Way both as to their own proportion and the proportion of the Vassals and that they are in another condition than formerly by reason that their Rents are impaired by Valuations and Ministers Stipends it is humbly conceived with all tenderness and respect to the reverend Clergy that whatever others for their own interest do suggest under pretence of theirs The Lords of the Clergy and others will not decline to contribute and be Taxt for His Majesties Service as the other Estates and as to the pretended way of paying Taxation according to the Valuations in these late times they cannot be Taxed in that way because the Rents of the Bishops being for the most part in these times of Usurpation mortified to Universities and other pious uses they were not valued nor lyable to Cess and such like burdens it must then follow that either they must be Taxed in the old Way or else not at all as to the proportion of the Clergie it is designed by all the Laws concerning Taxations and it is not higher than it was at any time since Taxations were granted to His Majesties Predecessors and it is to be observ'd in all Acts of Parliament concerning Taxations The Lords of the Clergie do in the first place before the rest of the Estates make a chearful offer of the same proportion without any grudging and though there needs no reason to be given for clear Law and Practice yet that the said proportion is Defin'd and settled upon good Reason it is obvious seing the same is impos'd in order both to their Spirituality consisting in Tiths and their Temporality consisting in Lands and others and it is known that the Tiths are more than the fourth part of the Rent of Scotland and Temporalities and Church-lands will extend to a considerable part of Scotland at least to a fourth part The Clergie having their Benefices and Living not in Property as the other Estates but of His Majesties immediat favour and grant and for their lifetime so that it is not strange that upon the considerations foresaid they pay'd such a proportion of the Taxation the case is not altered upon the account of Valuations and Ministers Stipends that course for Valuation of Tiends and augmentation of Stipends being procured and taken at the earnest desire of the Reverend Bishops and Clergy so that it ought not to be represented as being to their prejudice and de facto the Reverend Bishops and M●nisters have no prejudice by that course by reason the Bishops and Ministers and Benefic'd persons who ought only to be looked upon as Clergie are secur'd by divers provisions contained in the Acts of Parliament anent the Valuation of Tiths and in special that what they were in possession of actually and really the time of the Submission made by them should remain with them in quantitate qualitate unpr●judged by any Valuation so that the Valuation and augmentation of Stipends being only in Relation to and affecting the Spirituality and Tiends the case neither is nor can be altered as to the Clergie they being secured by the saids Provisions and the burden of augmentation of Stipends and prejudice by Valuations doth only ly upon the Lords and Titulars of Erection and Tacks-men of Tiths as the case is not altered in relation to Benefic'd persons so Stipendiary Ministers cannot be prejudg'd by the good old Way seing by an Act of Parliament 162 Ja. 6 Par. 13. They are freed and exempted of all Taxations and Impositions the burden of the proportion of the Clergie doth not ly upon them but for the most part upon the Vassals and Tacks-men against which they have by the Law a present and summar way of Relief as to the Lands and Temporality of the Clergie they are the same and in the same case as in time of former Taxations and that the Vassals of Erection or of Church-men should be in better case than formerly as to the payment of Taxation It is contrary to Law and Reason seing res transit cum onere causa and that Lay-men acquiring Lands from Church-men should have more case of Taxation as to such Lands than

removetur ab officio sed hoc non tenet in judice perpetuo Farin Q. 3. num 423. says that Majores Officiales non removentur sed minores facile removentur by th● cap. 14. Stat. Rob. 2. A negligent Judge viz. a Baillie of Regality is to be punish'd by escheating his Moveables and their life is to be in the Kings will A faulty Judge is also punishable by this Act in the same way as a negligent Judge which must not be mean'd of the meanest fault seing the punishment is so great but whereas by this Act the punishment is the loss of Office for ever if it be not Heretable yet by the 26 Act Parl. 5. Ja. 3. The Heretable Officer lose● his Office for three years whereas this Act bears this being lawfully prov'd and notorly kend we must not conclude that a Judge may be convict upon this notoriety without probation for these two are only exegetick of one another and the sense is they being convict upon notor probation Vid. supra observ on Act 16 Parl. 6 Ja. 2. THe Form now to be follow'd in case any man should masterfully possess another mans Lands is that if violence was us'd at the entering then the Council upon a Complaint will restore the party dispossess'd but if the Intrant entred in vacuam possessionem though without any Right he behov'd to be pursu'd before the Session by an action of Intrusion K. JAMES III. Parliament I. BY this Act the third of the KING'S Rents of Assyse that is to say the third of His Lands and Customes belong to the Queen as her Dowrie or Terce allenarly which is conform to the Common Law of this Kingdom by which the Wife has right to a Third of all the Lands in which a man dies Infest and that though she be otherwise provided if she be not expresly secluded from it by her Contract of Marriage so that it seems the Queen would have had right to a Terce of proper Lands belonging to the King though this Act had not been made But now by the 10 Act Parl. 3 Ch. 2. If a Wife be provided to a particular Provision though never so small either in her Contract of Marriage or in any other Write she will be secluded from a Terce except her Terce be expresly reserv'd to her by and attour the particular Provision Nota The Rents of Assize comprehends the Kings Customes and Lands as was found Decemb. 9. 1466. and March 11. 1500. Ogilvie contra Gray It may be doubted whether this Act was Temporary relating only to this Queen or if any Queen of Great-britain will have right as Queen of Scotland to a third of the Property conform to this Act since the Act seems to be reasonable in it self and that the Queen is founded in this right by the Common Law and if this had been only a Temporary Right relating only to this Queen it would not have been inserted amongst the general Laws or at least it would not have been generally conceiv'd as this Act is in these Terms The Dowrie of the Queen for terminus indefinitus aequi●ollet universali I find that in the 191 Act Parl. 13 Ja. 6. Queen Ann is provided to the third of the Property but not to the third of the Customes but that being by express paction derogats not from this Law SOmetimes Benefices Ecclesiastick were bestow'd upon secular persons who were call'd Commendators because the Benefice was commended and intrusted to their oversight and they were Procuratores in r●m s●am habebant tantum detentionem poss●ssionem but were not Proprietars and so could not Dispone Roman Concil 350. And because Commendators were but Trusties or Tutors Therefore Rights made by them though with consent of the Chapter are no longer binding in our Law than during the Commendators own Right And by this Act these Commendams are discharg'd and yet the Deeds done by them are not annull'd and therefore many Rights made by Commendators since this Act are sustain'd as valid though they were not Proprietars By the Canon Law only the Pope could grant commendam perpetuam and the Bishops could only grant Commends for six Moneths c. Nemo Elect. l. 6. THe pain of Lawburrows here exprest is hightned by the Act 166. Par. 13 Ja. 6. by which every Earl or Lords Penalty is made two thousand pounds every great Baron a thousand pounds every Free-holder a thousand merks every Fewar five hundred merks the un-landed Gentleman two hundred merks and the Yeoman one hundred merks which last Act is now observ'd and though Penalties be exprest here against breakers of Lawburrows found to Church-men and that there be no mention made of them in the last Act yet an Arch-bishop or Bishop can pursue now for the same penalty that is due to an Earl and Bishops and their Wives are allow'd the same Solemnities at their Funerals that are allow'd to Noblemen and their Wives by the 14 Act 3 Par. Ch. 2. And though there be no mention made here of Dukes and Marquesses yet the priviledge granted to Earls is extended to them 2 o By this Act the Penalty is to be apply'd to the King and is due by and attour the Reparation due to the person les'd but by the last Act and the present Custom the Penalty is to be divided betwixt the King and the Party and though by this Act the Master is free if he present his Servant who breaks the Law-burrows Less than the Law-burrows that is to say he who found the Lawburrows bring the Trespassors to the King or Sheriff within fourty days Dominus noxali judicio servi sui nomine conventus servum actori noxae dedendo liberatur yet by our present Custom the Master finds Caution that the Raiser of Law-burrows shall be skaithless from him against whom it is rais'd and his Men-Tennents and Servants and therefore the Master seems now lyable though he should present his Servants Albeit these be the ordinary Penalties allow'd where there is no other proof of the Danger then the Oath of the Complainer yet if the Complainer prove Threatnings the Council or Criminal Court may ordain surety of Law-burrows to be found upon such sums as they think proportional to the danger Vid. Not. on Act 129 Par. 9 Ja. 1. Supra THough by this Act all Summons are to be on twenty one days Warning yet all Summons that are priviledg'd by their own Nature or the Lords Deliverance come in upon six days vid. Hope Form of Process and by an Act of Sederunt July 21. 1672. It is declar'd that no Actions can be priviledg'd except Removings recent Spuilȝies recent Ejections Intrusions succeeding in the Vice Exhibitions Causes alimentary Summons for making forthcoming Transferrings Poyndings of the Ground Walkennings special Declarators Suspensions Prevento's and Transumpts all which and all second Summons in all Actions are to come in upon six days warnings except recent Spuilȝies because by the 65 Act Par.

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-Church-lands became first to belong to Monastries I shall God-willing clear in an express Treatise concerning kirk-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

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 De●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 li●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 Commission●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 i● 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

us'd in the 4 Act Par. 16 Ja. 6. BY this Act the Fines appointed for House-Conventicles are for every Man and Woman having Land and Heretage Liferent or proper Wodset a fourth part of their valued yearly Rent each Tennent twenty five Pounds each Cottar twelve Pounds each Serving-man a fourth part of their Fee each Merchant or chief Trades-man to be Fin'd as a Tennent and each inferiour Trades-man as a Cottar if their Wives or Children be present at House-Conventicles they are to pay the half of the respective Fines and if themselves be present at Field-Conventicles they are to be Fin'd in the double of these Respective Fines so that though the Act do not specifie Wives and Children yet they are to be comprehended under the word others Field Conventicles are by this Act Declared to be Meetings where any shall without Licence or Authority Preach Expone Scripture or Pray in the Fields or in any House where there are more persons than the House contains so that some of them are without Doors which last alternative was added because some to shun the double avail Preached within a little House many thousands being without It has been doubted whether those who were within and knew not that any were without can be punished as a Field-Conventicle for though versabantur in re illicita yet it was such a res illicita as had a determined and different punishment and it were hard that where the punishment is Death as it is for the Minister Preaching at a Field-Conventicle that he could be overtaken where he could not know his Guilt It seems by this Act that if the House could hold more though some were known to be without Doors yet that Meeting could not be call'd a Field-Conventicle since the Act sayes or in any House where there be more persons than the House contains and the Reason inductive of the Act ceases in this case By this Act Magistrats of Burghs-Royal are Fineable at the Councils Pleasure for each Conventicle keeped within their Burgh but that which was thought somewhat severe by the Burrows was that they should have been Fin'd where they discovered the Conventicles themselves since in Law Diligence can only be requir'd in Magistrats and in Policy it seems that this would discourage Magistrats from doing Diligence to discover Nor is it sufficient that by this Act they have Relief from those who were present at the Conventicle since these oft-times are neither known nor able to Relieve The Master and Mistres of the House likewise where the Conventicle was kept are lyable to relieve the Magistrats upon which ground an Act of Council was made making the Heretor lyable for the Fines against which it was objected that the Parliament 〈◊〉 not the Heretor lyable but the Master which is the Lands-lord who because he is present may hinder the Keeping of Conventicles in his House which the innocent Heretor who may be very remotely absent cannot By this Act the Minister who Preaches at Field-Conventicles is punishable by Death but the Minister who keeps House-Conventicles cannot be so much as Fin'd for he is only ordain'd to find Caution not to do the like thereafter under the pain of five thousand Merks or to enact himself to go out of the Kingdom and not to return By this Act the half of the fines are declared to belong to Sheriffs Stewarts Lords of Regality and therefore by the 17 Act of the 3 Sess. Par. 2. They are ordained yearly to give an account of their Proceedings to His Majesties Privy Council under the pain of five hundred merks In which Act this Act is Explained as to some other points BY this Act such as offer their Children to be baptized by any but their own Ministers or by such as are authorized by the Council in absence of their own Minister upon a Certificat from their own Minister or in his absence from one of the Neighbou●ing Ministers are to be fin'd i● an Heretor in a fourth part of His valued Rent Every person above the degree of a Tennent having only a personal Estate in an hundred pounds Scots Every inferiour Merchant considerable Trades-man and every Tennent labouring Land in fifty pounds Scots Every meaner Burges Trades-man and Inhabitant within Burgh and every Cottar in twenty pounds Scots and every Servant in half a years Fee But because upon this Act these who would not conform did to shun these fines delay to Baptize their Children Therefore by the 11 Act Sess. 3 of this Parliament the same fines are Impos'd upon such as keep their Children unbaptized for thirty dayes THis Act is formerly Explain'd in the 1 Act Sess. 3 of the 1 Par. Ch. 2. But for further clearing thereof it may be observ'd that since by this Act Husbands are not made lyable for their fines as by the 5 Act of this Parliament It was urg'd that therefore they could not be fin'd for them since it was presumeable they were designedly left out here because tho a man may hinder his Wife to go to a Conventicle and therefore was justly punished by that for her going whereas no man can force his Wife to go to Church and therefore he was not to be punish'd for her in this Act it was also urg'd that Laws should not be extended de casu in casum where it was probable that the ommission was design'd and so tho Adjudications and Comprisings were equipollent Diligences by our Law yet it was found that an Adjudger was not lyable to pay a years Rent for his Entry as a Compryzer was because the Statute appointing the one had not exprest the other and therefore an express Statute was made for extending this to adjudications which is the 18 Act Par. 2. Ch. 2. and this extension was less favourable because it was a penal Statute and it was against the principles of Law that one person should be punished for another To which it was answered That the Parliament had refer'd the Regulation of Conventicles to the Council and had invested them for this end with their own full power to prevent the Cheats that might be invented and the dangers that might ensue 2. This being a matter of Government must be interpreted so as to preserve the Government and if Wives who were the half and the more humorous half of Scotland were allow'd to abstract all the other Remedies would be ridiculous and they would debauch their Children Tennents and Servants as well as influence their Husbands 3. In all other Cases they were lyable for their Wives for Conventicles by the said 5 Act for Popish withdrawing and Superstitions by the 104 Act 7 Pa. Ja. 6. For their VVives swearing and cursing by the 3 Act Pa. 1 Sess. 1 Ch. 2. In all which Acts the Parliament considered more the good of the Kingdom than the advantage of private parties and extensions are allow'd in favourable Cases and there is none more favourable than this especially since the VVomen