Banishing such as pay not Custom is in Desuetude and they now lose only their Goods so stold as by the l. 2. C. de Vectigal ALL Barons might come to Parliament before this Act but by this Act they are allow'd to choose Commissars who are now call'd Commissioners and by this Act their Expences are to be pay'd to them which is now done thus The Clerk Register gives them a Tâ—stâ—ficat declaring That according to the Sederunts of Parliament such Commissioners did Serve so long and by the late Act they get Letters of Horning for five pounds a-day vid. supra Act 52 Par. 3 Jac. 1. Nota That though this Act impowers these Commissioners to choose one to Re-present them as their Speaker yet there is no such Person now chosen and the Chancellor is now constant President of the whole Council by the Act 1. Parl. 1. Ch. 2 d. THis Act ordaining such as Interpret the Kings Laws wrongously to be punished arbitrarly stricks only against such as Interpret the Kings Laws so as to make them a meer Cloak for for doing un-justice but mistakes and probable Errors are not punishable nor are the Lords punishable for such mistakes because ipsorum sententiae pro veritate habentur Nota Laws like Oaths are to be taken according to the meaning of the Imposer else they be elusory and otherwise every man would be his own Law-giver and Judge The Earl of Argile was found guilty upon this Statute 1681. for Mis-interpreting so the Test by an quality adjected to his Swearing of it That he reserved still a power to himself to rise in Arms when ever he judg'd the same fit King IAMES the first Parliament 8. BY this Act all the Prelats Lords and Barons are to swear the same Alleagance to the Queen that they swore to the King and by the 136. Act Ja. 1 they promise Literas retinentia fidelitatis to the same Queen but the Queen being a Subject there is no Oath now made to Her and tho by this Act none were to be allow'd to enter to their Feu till they had given this Oath of Fidelity to the King and Queen which was conform to the Feudal Law yet no such Oath is required as to either King or Queen before the Vassals entry Princeps legibus solutus est Augusta autem licet legibus soluta non sit tamen eadem illi tribuunt privilegia quae ipsi habent l 31. ff de leg BY this Latine Act It is Statute that all such as flee from the King or His Lieutenent are to be punished as Nottor and Publict Rebels which Act stricks not only against such as were sworn to Colours for those are punishable only by Death according to the Military Law But all such as leave the Kings Host being obliged to attend and though it may be alleaged that this Act is to be extended only against such as flee in to the Enemie for else the punishment of Treason were too severe for simple deserters and by the Common Law there is ground for this distinction but by our Law there is no ground for this opinion because the going in to the Enemie is per se Treason Not. This is to be punished as Perduellion and Rebellion but it is not declar'd Perduellion or Rebellion and therefore it may be argu'd that the Fisk has not the same Priviledges as to the way of Procedore here that he has in other Species of High Treason or Perduellion such as that the Person himself may be Pursued and Condemn'd in absence upon Probation and that his Heir may be Pursued after his Death c. Not. It may be argu'd that this Act should only be extended against such as Flee from the Armie when the King or His Lieutenent are there in Person in the Fields because then there is great hazard but not against such as desert any under Officer King IAMES the first Parliament 9 THe Office of Maires was to Execut Summonds and the Kings Maires praeco Regis assisted in Criminal Courts there are yet some Maires of Fee or Heretable Maires in Scotland who have Right by their Charters to so many pairs of Shoes and so much Money c. out of every Pleugh which Fees are now very much regulated by Possession By this Act Maires of Fee are to present Persons to the Sheriff to serve under them and if there be no Mair of Fee id est Heretable Mair in that word or district the Shireff is to present an able Person who shall supplie his place by Summonding and this is the Origine of Sheriffs in that part to whom all our ordinar Summonds are direct by the 51 chap. stat David 2. The Serjeand or Maire for they are the same is ordained to give in his Execution in writ or by word if he cannot writ but he must prove all by Witnesses and there the Sheriff or Mair may make Executions or Records for so Executions were call'd of old THat Witnesses in Executions should dwell in different Baronies is in Desuetude That Witnesses should swear that they by-stood saw and heard is only required now in the Execution of Breives who must swear the verity of their Executions but the Witnesses even in that case needs not swear that they were Witnesses especially required to be Witnesses which is only required now in Seasines which bear that the Witnesses were ad hoc specialiter requisiti and yet by this Act all these qualifications are requir'd in all Executions Not. IT may be argu'd from this Law that the Dates are substantial not only in Breivs but in all other Papers Likeas the rubrick of this Act calls them substantialia and therefore if they be false the whole writ is false and it was so found as to Executions whereupon one Creditor is to be preferr'd to another such as are the Intimations of Assignations 29. March 1628. or the Executions of Arrestments for there to allow Witnesses to make up the Dates were in effect to allow Witnesses to prefer one Creditor to another and to establish considerable Sums by Witnesses but if the Date of any other Writ or Security be blotted the owner is allow'd to astruct it by Witnesses 10. Feb. 1636. And though the Moneth and Day be blank yet if the Year be exprest a Bond or such like Writ is sufficient being in re antiqua 15. January 1662 Grant contra Grant but in such cases the Law presums that the Bond was granted the last day of that Year Vid. Gem Consil. 79. Vid. R. M. l. 1.11 THere is no necessity now that he who propons ane EssonÈie or Excuse shall find Caution to prove it at the next Court for now ane EssonÈie being a Dilator of its own nature must like all Dilators be instantly proven Not. Sicknesse is only allow'd here to be proven by two Leil-men or the Parish-priest or Minister deponing upon it but with us Testificats upon Soul and Conscience
did write such a hand and for proving of this must produce the hand-Hand-writs of all these Servants at that time February 7. 1672. Kirk-hill contra Ketlestoun IT was Debated upon this Act whether the Lands of Duncow though here annexed by a publick Law were sufficiently annexed so as to exclude the Earl of Nithisdale who pretended that a year before this Act he had a valid Right under the Great-Seal from the King and so could not be prejudg'd by a posterior annexation which behov'd to be salvo jure quoad him To which it was Reply'd that this annexation being by a publick Law was not of the nature of Ratifications which were salvo jure and such Acts of annexation were in effect the Kings Charter and being granted by a publick Act of Parliament in favours both of King and People they could not be taken away but by another Act of Parliament sibi imputet he who had the prior Right and compeared not at the time of this publick Law and objected it but now after so many years the King had at least prescrived a Right by vertue of this Act this case was not decided but the Lords inclined to think that there was a great difference betwixt original annexations where special Lands were annexed as falling in the Kings Hands by a special Forefalture or other cause which they thought could not be quarrelled by the Session or other Inferiour Judicatory and general Acts where Lands formerly annext are only repeated such as this is in which Lands belonging to privat parties may be by mistake repeated Nota The Lands of Duncow annexed by this Act came to the King upon Forefalture of Robert Lord Boyd anno 1477. BEfore this Act Decreets pronunced by Magistrates within Towns could not be the ground of a Charge of Horning till a Decreet conform had been first obtained before the Lords but by this Act Letters of Horning are summarly appointed to be granted upon such Decreets It is observable that though this Act says That Letters of Horning shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts yet it would seem that Commissars had no such priviledge at the time of granting this Act for that priviledge is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered but that Commissars had that priviledge even at the time of this Act de praxi though de jure it was only granted them by that Act for their further Security VId. Act 155. 12 Par. Ja. 6. THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer is Explained in the Observations upon the 2 Act 4 Sess. Par. 2 Ch. 2. IT is observable that by this Act the Dean of Gild is founded in the power of judging all Cases betwixt Merchant and Merchant and is here declar'd to be the most competent Judge because the most knowing Judge in such cases and declar'd to have the same power that the like Judges have in France and Flanders and in France such Cases are Judg'd by these who are call'd les consuls des marchants The Lords have found that according to this Act the Dean of Gilds Court is a Soveraign Court in suo genere and not subordinat to the Towns Court July 21. 1631. and they use to Advocat Causes from the Admiral to the Dean of Gild's Court upon this Act it being declar'd that he is Judge to all actions betwixt Merchant and Mariner though it be alleadg'd by the Admiral that these general words should be restricted by the nature of the respective Jurisdictions and so the Dean of Gild should be only Judge competent betwixt Merchant and Mariner in cases which fall out at Land but not at Sea THe Act related to here is the 36 Act 3 Parl. Ja. 4. IT is observable from this Act that it is there declar'd in geneneral that Acts of Parliament should only in reason and equity extend ad futura for regulating future cases for though Declaratory Acts may oft-times extend ad praeterita yet Statutory Acts should only extend ad futura THis Act differs not one word from the 170 Act of this same Parliament and has been only repeated here by mistake BEfore this Act such as were at seid with one another us'd ordinarly to fight together upon the Street of Edinburgh and us'd to beat the Magistrates or their Officers when they came to red them and that truly gave rise to this Act though the Narrative here bears only that several persons used to Deforce the Magistrates in their Execution of their own or the Councils Decreets By the Act it is declar'd That whosoever disobeys or opposes the Command of the Provost and Baillies of Edinburgh when they are Executing the Kings Commands or Letters from the Secret Council or Session or the Ordinances of their own Burgh shall be punished as Committers of Deforcement as Seditious and Perturbers of the Common well It has been found that naked assistance at such Tumults without Arms is not punishable by Death though a person be killed in the Tumult December 1666. But Convocation at all such Tumults with Arms is punishable by Death if a person be Murdered as was found September 11. 1678. And the acting any thing either by word or deed was found to infer Death Observ. That the using Fire-weapons within Town is discharged by this Act and long weapons that is to say Halbards Picks c. are only allow'd lest innocent persons passing on the Street might be kill'd but yet if Souldiers shoot in defence of their Prisoners on the Streets they are not punishable and this Act was found not to militat against the Kings granting Commissions to the Magistrates of Edinburgh to raise a Company with Fire-locks within Town for the Act discharges only Fire-locks without the Kings consent and a Commission implys his consent THe Act here related to is the 159 Act 12 Par. Ja. 6. THis Act is Explain'd in the 7 Act 9 Par. Ja. 6. VId. Obs. on the 29 Act Par. 11 Ja. 6. THe Abbacy of Dumsermling was Dispon'd by Ja. 6. in a morning Gift to Queen Ann. This Lawyers call Morganeticum and King Charles the First was Infeft in these Lands as heir to His Mother Observ. That this Confirmation was under the Great Seal and under the Seals and Subscriptions of the States King IAMES the sixth Parl. 14. THis Act seems very ill conceived for it appears that wilful hearers of Mass shall be executed to the death how soon they shall be found guilty or declared Fugitive since no man by our Law dies upon his being Denunced Fugitive except in the case of Treason and wilful hearing of Mass is not Treason even by this Act. Observ. 2. That as this Act is conceiv'd the wilful hearing or concealing is punishable by death either by Conviction or being denunced Fugitive before
reparation Obs. 1. Notwithstanding of this Act a Retour or the execution of a Brieve or any other piece of the Process may be improven at any time within fourty years and the Process it self may be reduc'd in consequentiam by Reduction of any Writ whereupon it followed Hope tit Reductions of Decreets Obs 2. That this short Prescription of three years runs not against such as are Minors or out of the Realm in imitation of the Civil Law which allow'd immobilia praescribi inter praesentes decennio inter absentes viginti annis Obs. 3. That these words be rais'd and pursu'd imply not that the Process must be ended but that it must be begun within three years and the Process is said to be pursu'd when the Summonds is executed Vid. Observ. on Act 64. Par. 8. Ja. 3. King JAMES the fourth Parliament 6. IT is observable that though this Parliament is exprest in the Printed Acts as held upon the 11 th of March and all these Acts are exprest as past upon that day yet I find by the Records themselves that they were all past upon the 15 th of March which is also called quinta dies Parliamenti Item It is observable that all the Acts of this Parliament are only set down in way of breviat and thus the 62 Act is thus exprest in the Original Record Item It is Statute and ordain'd that where any person happens to get a Remission in time to come that the said Remission shall not extend nor save the taker for greater Crimes be any general clause nor is contain'd especially and that the greatest action shall be specified or else it shall not be comprehended and that the general clause shall not include greater nor the special clause THis Act is formerly explained In the Observ. on Act 65. Par. 3. Ja. 1. and Act 62. Par. 14. Ja. 2. THese Acts are useless for all these Jurisdictions are now otherwayes divided and established THe Shires of Inverness and Ross having been again after this Act united they were and are now disjoyned and whereas this Act makes the Town of Thane and Dingwall to be the head Burghs of the Shire of Ross the Town of â—orteross is added as another head Burgh to the other two by an Act of Parliament 1661. IT is appointed that general Clauses in Remissions remitting all Crimes shall not be extended to greater Crimes than the Crimes specially condescended upon in the Remission but to evite this Remissions do now express specially all the great Crimes and then a general is subjoyned and upon this Law it was controverted in Glenkindies case whether a Remission for slaughter should be extended to Murder since Murder was pretended to be a greater Crime as proceeding upon forethought Fellony to which it was answer'd that Slaughter was a general term comprehending both Slaughter and Murder It may be argued from this Law by a parity of Reason that Discharges granted for a special Sum and thereafter discharging generally all debts shall not be extended to other Sums greater than that which is specially discharged but yet the 24 th February 1636. It was found that such general Clauses did cut off all Sums even though greater than the Sum discharged in special THis Act ordains all Remissions for Slaughter to be null if the Slaughter was premeditated and upon forethought Fellony nor is this Act temporary being to last in all time coming till the King revock the same specially but yet this excellent Law is not de praxi now observed though it be most reasonable Vid. Act 169. Par. 13. Ja. 6. And the same reason given here for it viz. because many in trust to get Remissions did commit slaughter is set down to the same purpose Canon injusta Quaest. 4. Nonne etiam cum uni indulget indigno ad prolapsionis contagium provocat universos facilitas enim veniae incentivum tribuit delinquendi By the cap. 50. Stat. Dav. 2. It is ordain'd that no Remission for Murder upon forethought Fellony shall be given except in Parliament and for a publick good Observe here the discreet stile wherein Kings are limited in the exercise of their Royal Power for here the King declares it is his pleasure that such an Act be past and desires the Estates to pass it and since this Act is to last till it be revocked by the King it may be doubted if the King alone may revock it without Authority of Parliament The like Act discharging Remissions for burning Corns Ja. 5. Par. 7. Act 118. THough Bishops are by this Act to appoint and deprive Notars yet they are now both tryed and deprived only by the Lords of Session Though this Act appoints Bishops and their Ordinars to take inquisition who uses false Writs yet none but the Lords of Session are now Judges to improbation which is the only Process competent for trying falshood of Writs in the first instance and the Commissar who is the Bishops Depute can never Judge of falshood now except where the falshood falls in only incidenter and by way of exception as if I were pursuing any Action before the Commissars and it were alleadged that the Execution of the Summonds were false there the Commissar would be Judge competent to try the falshood of the Executions for else his Jurisdiction were useless and all Sheriffs Lords of Regalities Stewards and the like have the same priviledges BY this Act Summonds for recent SpuilÈies must be executed upon 15. days whereas all Summonds were to be executed upon 21. days by the 6 Act Par. 1. Ja. 3. which is the Act here related to though not cited and by an Act of Sederunt 21 July 1672. this priviledge is extended to recent Intrusions which is a kind of SpuilÈie in immoveables Observ. 1. That since the Parliament thought that the former Act of Parliament could not be derogated from without an express Statute it may seem strange why the Lords do priviledge any Summonds by their own power or if they had power why they did not make actions of recent SpuilÈie and Intrusions to come in upon 6 days as well as Exhibitions Poynding of the Ground and other less favourable Causes to which nothing can be answered but that there was an old custome for the one but not for the other Observ. 2. That the last words of the said Act viz That there shall be no exception dilator admitted against that Summonds it being lawfully indorsed seem to imply that the Judge should grant no continuation though that properly cannot be called an exception dilator or else that the Judge should restore spoliatum ante omnia and admit no exception upon property nor compensation c. but these are not properly dilator defences or that the not continuation of the Summonds upon 21 days warning should not be objected but that is likewise unnecessary since the first part of the Act did that sufficiently and so these words with that sense had been
and four Witnesses are requisit where the Party cannot Write By the 4 Act Par. 9. Ja. 6. Writs that are to be Registrated need not be Sealed but there is no express Law dispensing with Sealing as to other Papers which need no Registration so that the not Sealing is in these warranted only by uncontroverted Custom FIre-rising and ravishing of Women are to be put under surety as Mutilation and Slaughter by this Act From which some concluded that Mutilation was punishable as these Crimes were but the Act appoint not the punishment to be the same but the way of finding Caution to be the same and by the old Law Stat. Rob. 2 Cap. 11. Mutilation is to be proceeded against as Murder but yet licet redimere vitam and it is not declar'd there punishable by Death and in all the Journal Books no man was ever punish'd with Death for Mutilation the punishment being ordinarly confiscation of Moveables and Assythment to the party nor see I any warrand for Confiscation of Moveables since the Crime is not punishable by death nor any express Statute to warrand Confiscation I find that Mutilation is infer'd upon the cutting of a Thumb or Finger though digitus was alleadg'd not to be membrum but pars membri June 27. 1677. and it was formerly found July 15. 1642. Châ—in contra Mowat but though this may infer Mutilation Yet I conceive it would not infer Dis-membration Vid. observ on 28 Act 3 Par. Ja. 4. BY this Act all the Lieges may sell Fleshes on Sunday Munday and Thursday but thereafter all Mercats being discharg'd on Holy-days there is an Act of Town Council ordaining these Landward Fleshers to bring in their Fleshes only on Tuesday Thursday and Saturnday and not to sell in pieces but in Quarters which is confirm'd by a Decreet of the Session July 7. 1595. and ratifi'd in the Parliament 1681. FRom this Act it is clear that the Acts of Parliament cannot be Re-printed without the Kings special approbation even though the Lord Register consent for else why needed the Register get a Warrand by this Act and the Custom alwise is that the Register gets a special Warrand for that effect and the Council the 17 of November 1681. found that the Kings Printer having Re-printed the Acts of Parliament without such a special Warrand the Copies were Confiscable and should be burnt and the reason of this is because of the great danger that may arise from the wrong Printing of Acts of Parliament the difference of a word altering the sense to a contrariety but yet it seems the Register should have liberty to Re-print them since he is answerable for all the Errors and therefore we see that the Register used still to subjoin his Subscription to the Acts he Re-prints as is to be seen at the end of the 15 Par. Ja. 6. where Sir John Skeen's ordinary Subscription is set down at the end of the Acts which he Reprinted and Sir John Hay's at the end of the first Parliament Ch. 1. Q. MARY Parliament III. ALL the Acts of this Parliament except the first are Temporary for encouraging of such as were to hazard their Lives in that Army and are renewed fully by three equipollent Acts viz. Acts 41 42 43 Par. 2 Ja. 6. BY this Act Church-men are to have Right to the Fruits on the Ground the year they die and to the Annat thereafter and from this it is to be observ'd that the Annat was a Casualty that befel by and attour the Fruits that were on the Ground which belonged to the Church-men jure proprio and formerly the Church-men had right to all the Fruits of the year if he surviv'd the first of January for in beneficiis annus inceptus habetur pro completo but if he survived Michaelmas he had right to that whole year jure proprio and the half of the subsequent year jure annatae But now by the 13 Act 3 Sess. Par. 2 Ch. 2. If the Incumbents survive Whitsunday they have right to the preceeding half year by their own right and to the next half year by their Ann but if they survive Michaelmas they have right to the whole year viz. from January to January by their own Right and to the half of the other year as Ann and though it may seem incongruous that a Minister living till the last day before Michaelmas gets no more than he who lives till the day after Whitsunday Yet this is regulated in this case as it is in all Liferents and this is allow'd them for the support of their poor Families for that Act declares that the same shall belong to their Executors without necessity of a Confirmation and though this Act declares that the Ann is to belong to their Executors yet in effect that is not well exprest for it belongs to their nearest of Kin and Wife though they be not nominated nor Confirmed Executors If there be Bairns the Ann is equally divided betwixt them and the Wife but if there be no Bairns it is divided equally betwixt the Wife and nearest of Kin she having right in that case to a half and not to the whole because the Ann was of old introduc'd in favours of the nearest of Kin as appears by this Act for Church-men had no Wives under Popery when this Ann was introduced June 24. 1663. Elizabeth Scremgeor con the Executors of her Husband Though this Ann falls to Bishops and Ministers who die Incumbents yet it belongs not to such as renunce voluntarly their Benefices as was found in Bishop Lightoun's case and neither Manse nor Gleib fall under the Ann for the last Incumbents Executors have no right to the Gleib except the same was Sown before his Decease July 6. 1665. Colvil contra the Lord Balmerino The reason why Michaelmas and not Martinmas is made the Term in this case is because Ministers Stipends are payable out of the Teinds or by somewhat which is come in place of them and therefore Michaelmas should have been the ordinary Term and generally in payment of all Stipends the Terms of Whitsunday because the Sowing is then ended and Michaelmas because the Corns are then separated from the Ground are the legal Terms for payment of Stipends The foresaid Act allows an Ann to Bishops though the Act of the General Assembly and the Kings Letter in anno by which Anns were first establish'd as they now are did not mention them and under the Bishops Ann falls only the Quots of such Testaments as were actually Confirm'd in his Lifetime or during his Ann July 6. 1676. Captain Wisheart contra the Bishop of Edinburgh By the Canon Law the Annat was a quota payable to the Pope and Colledge of Cardinals by every Intrant out of his Benefice Vid. Tush concl 329. But a Casualty like ours is payable in the Protestant Churches of Germany Vide Carpzov jus consistoriale tit de decimis It may be doubted whether that Maxim annus inceptus
this Act by the Arch-bishop Bishop Super-intendent or Commissioner who shall give their Testimonial how he and two of the Parochioners have design'd such four Aikers presently possest by such a man upon which Designation with a Supplication from the Minister the Lords of Session are ordain'd to grant Letters of Horning upon ten days which is renew'd by the 21 Act 3 Sess. 1 Par. Ch. 2. By which it is also appointed that such Designations of Manses shall be by such Ministers as the Bishop shall appoint and two or three of the discreetest Heretors BY this Act benefic'd persons being year and day at the Horn lose their Benefices which fall under their Liferent-Escheat but it may be doubted whether these Benefices should fall to the Patrons of the Benefices as other Lands fall to Superiors to compense their want of a Vassal especialy seing where Kirks vaik through the Ordinars not accepting of a presentation the vacand Stipends are declar'd to remain with the Patron or whether these Benefices ought to belong to Universities and such as have Right to vacand Stipends Or whether they ought to belong to His Majesty and to be Transmissable immediatly by Gifts in Exchequer as other Liferenters are And this last is most conform to our Law THough it appears by this and other Acts and by our progresses of Writs that the Pope us'd to Confirm Rights made of Church Lands yet that was never necessary by any positive Law with us and Feus even of Kirk-lands prior to the Reformation were and are valid without any such Confirmation but because about the time of the Reformation which was the 8. of March 1558. Benefic'd persons did dilapidat their Benefices Therefore by the 7 Act Par. 1584. It was declar'd that all Feus not Confirmed by the King or Pope before that time were null AT this time there were two opposit Parliaments sitting one for the King at Striviling or Stirling by the Earl of â—ennox as Regent and another for the Queen at Edinburgh and therefore this Act ratifies all that was done by the Parliament for the King and annuls all that was done by the other vide Melvils Memoirs pag. 113. vid. observ on 100 Act 7 Par. Ja. 6. BY this Act Excommunicat persons should be Denunc'd Rebels at the Instance of the Kings Advocat or Procurators for the Kirk but now the Kings Advocat is Procurator for the Kirk after this Denunciation their Liferent-Escheat falls to the King and all simulat Gifts of them are null Act 197 Par. 14 Ja. 6. and the Excommunicat persons and their Tennents are lyable for the Rents in solidum but the payment of the one frees the other Nor will the Defence of fructus percepti consumpti for the maintaining of their lives defend the excommunicat person as to bygones the reason whereof is not because if this could defend quoad bygones it should defend quoad the future and so the Act of Parliament would be evacuat as is alleadg'd in Dury June 26. 1629. But the true reason is because the excommunicat person cannot be bonâ fide possessor since he is so frequently cited BY this Act the Arch-Bishop or Bishop may appoint persons for Taxing the Parochioners for repairing of Churches if the Parochioners Elected to Tax refuse upon which Act the Lords are ordain'd to grant Letters of Horning which is extended to the Repairing of Kirk-yard-dykes by the 232 Act 15 Par. Ja. 6. But it may seem reasonable that the Patron should repair the Church since the care of the Edifice belongs to him ejus est incommodum cujus est commodum yet our Law burdens not the Patron But the Parochioners because they get the advantage in it of the Word and Sacraments for which reason also the Canon Law burdened them in the last place if there were not a fund for that effect or if fructus residui ex beneficio were not sufficient vid. Paul de citad de jur patr art 5. But for this reason all who are Parochioners should be lyable to repair and yet the Heretors are only lyable and it would seem that these Heretors should be first lyable who have bought in their own Teinds since they have most advantage by the Benefice the Rents of which Benefice were by the Canon Law burdened with these reparations By this Act also if any intromet with the Stones or Timber of a demolish'd Church the Bishops Decreet is equivalent to a Decreet of the Lords of Session but this is in Desuetude By this Act also the parsons of the paroch should furnish Bread and Wine to the Communion how oft the same shall be administrated and it seems that by the word Parson should be mean'd either Rector Ecclesiae for he is called the Parson or all the persons who are Parochioners and which seems reasonable because they partake of the Sacraments and yet Heretors are only lyable 2. It is clear from these word That what is due for Communion Elements should only be due when the Communion is given but yet Heretors are lyable yearly though the Communion be not given but it should be then given to the poor in that case and not to the Minister King James the sixth Parliament 4. FRom the Narrative of this Act it is observable that the Reformation from Popery first authorized in Parliament in August 1560 which observation may conduce to clear many things both in relation to dates and others which depend upon the Reformation By the Canon Law there could be no Divorce upon Separation because Marriage is a Sacrament and so could not be dissolved but by death but all Protestants allow a Divorce in case of wilful diversion and therefore by this Act if persons absent themselves and will not cohabite for four years they may be cited to adhere and if Divorce follow the Wife loses her Tocher donationes propter nuptias and if the Husband be the person who diverts the Wife will by the same parity of reason get her Conjunct-see and every thing else to which she could have had right â—f her Husband had died 21 March 1637. Lady Manderstoun contra Rentoun and by our Law the party injured has liberty to marry after such Divorces The Canon Law requires ten years diversion though this Act requires only four years c. 8. extrav qui filii vid. Ritors de disser Jur. Civ Canon l. 2. c. 14. but even in that case they grant no Divorcement but only separationem quoad thorum mensam As to the four years prescrived by this Act it may be doubted whether they should run from the date of the citation only or from the time of the withdrawing or desertion and it would appear that since the Act of Parliament sayes That if they remain in their malicious obstinacy for the space of four years therefore the four years should run only from the date of the refusal either by citation or at least by being required
puniendi ratio si Dominum se pro Caesaris expeditione instruentem non suerit Comitatus feudum enim eo casu amittet dimidium fructuum illius anni ex feudo domino pendet non enim hic tantum contra dominum sed contra imperium Remp peccatur so that it seems in his time the Vassal who hâ—ld of another Superior then the King forfaulted his Feu for not going to the Host but the immediat Superior had Right to half a years Rent and the reason of this seems to have been because by all our old Laws the Vassal was obliged to attend his immediat Superior in going to the Kings Host and the Proclamation then commanded every man to come with his Vassals and therefore as the King had Right to the Forfaulture for not attending his Host so the immediat Superior had right to this half years Duty for his not attending him and sometimes by the Journal Books it appears that when Vassals were Fined and not Forfaulted the immediat Superior craved the half of the Fine THe punishment of such as ride with moe than their ordinary Houshold is Arbitrary and this Act must only be interpret against such as ride ordinarly with great Trains and which may look like an unpeaceable design nor is any man punished for riding at solemn Occasions with his Friends and Followers and I also think that this Act would only extend to such against whom there lies a presumption that they gather or keep men together upon some sinistrous design either against the Government or their Neighbours for if this were allowed great men might keep Troups together and for this same reason are Convocations discharg'd by other Acts and betwixt these Acts and this there is this difference that by these the Convocating for a time irregularly those in whom the Convocater pretends no interest is discharg'd but by this Act the conveening men upon pretext of a Retinue is discharged and though it may seem that every man may keep as great a Retinue as he pleases yet quilibet tantum in suo facere potâ—st illud quod fieri potest sine aemulatione vicini but multo majus sine aemulatione Reâ—publicae THough by this Law it is only appointed that there be Officers and Ministers of the Law made through all the Realm indefinitly without telling by whom they are to be made yet by the 2. Act Par. 1. Ch. 2. The power of choosing Judges is declar'd to be one of His Majesties Prerogatives It is observable from this Act that none can be Judges who have not sufficiently of their own where-through they may be punished if they transgress which is very just for a Judge who Decerns unjustly by palpable unjustice litem suam facit and therefore it may be well argu'd that when any who is a Judge or has an heretable Office becomes insolvent he may be forc'd to find a Depute who is solvent or else he may be discharged to sit Obs. Though it may seem That if any Heretable Officer be incapable to exerce the King should name Deputs jure devoluto yet by this Act it is ordained That if the Heretable Officer be incapable he shall ordain others for whom he shall be answerable The Design of this Act is to empower the Sheriff to arrest Oppressors and Vagabonds By these words to sojourn Horse is meant to quarter Horse from the French word sejour By Husbands of the Land is still meant Husband-men in our Acts of Parliament By taxing the Kings Skaith is meant to cause modifie what is due to the King and by Assything the King is meant the causing the Malefactors pay what is modified Obs. That the Legislative Words in our Statutes are very various for in this and many other Statutes of this King the formula is the Parliament Statutes and the King forbids which words shew that the Legislative Power is in the King for to forbid is the chief and most vigorous part of a Statute In the 17 th Act it is said It is Statute and the King forbids In the 14 th It is Statute by the whole Parliament and the King forbids In the 13 th It is Statute by the whole Parliament and by the King forbidden In the 30 Act 2 Par. Jac. 1. It is Decreeted by the whole Parliament In the Act 37 It is Decreeted and Statute In the Act 47 Par. 3 d. It is ordained by the King and Parliament Act 50. It is ordained and forbidden Act 60 Par. 3. Jac. 1 Our Soveraign Lord through the whole Ordinance of the Parliament Statutes Act 125 Par 9 Jac 1 Through the consent of the whole Parliament it is ordain'd Act 62 Par 3 Jac 1. It is seen speedful Act 76 Par 5 Jac 1. It is Statute and Ordain'd and Act 78 and 79 It is Ordain'd Act 83 Par 6 Jac 1. Rex per modum statuti ordinavit Act 85 Rex mandavit In the old Statutes of King Robert and King Alexander c. It is said Dominus Rex vult or statuit Rex or desinivit Rex or prohibet Rex or decrevit deliberavit Rex without speaking one word of the Parliament or Estates Act 105 Par 7 Jac 1. The King with the consent of the Council Act 104. The King with the consent of the Parliament and Council Act 108. The King of deliverance of Council But the formula now is Our Soveraign Lord with advice and consent or Our Soveraign Lord and Estates of Parliament which last is not so proper and though in most of the Acts of the 14 th Parliament K. Ja. 3 d It be said That it is Statute and Ordained by the whole three Estates yet it may be easily seen that these Acts were but in effect Overtures propos'd by the three Estates to be Ratified in Parliament and so in effect are conceiv'd rather as Overtures than Acts As also where any thing is to be put in execution by the King there the Act runs in name of the Parliament and not of the King as in the 23 d Act Par. 1 Jac 1. It is said that the Parliament has Determined and Ordain'd that Our Lord the King garâ—mend his Money and in the 6 Act Par 3 Jac 2. The three Estates has concluded that Our Soveraign Lord Ride throw all the Realm c. THere are many wayes whereby the Superior may crave Production of his Vassals Evidâ—nts for the King sometimes gets an Act of Parliament ordaining all the Vassals of such a Countrey to produce their Evidents as 262. Act. Parl. 15 Jac. 6. whereby all the Heritors in the Highlands are ordain'd to produce their Evidents with certification of losing their Rights The Superior may also crave exhibition of these Rights But the ordinaâ— way is by an Imprâ—bation wherein certification is granted against the Papers that are not produced which is deriv'd to us also from the Feudalists who affirm that Vassallus imperari potest sub poena
The last Act of this first Parliament in the Black Impression is an Inhibition made by King James the First to the Bishop of St. Andrews delegated by the Pope to proceed upon the Dismembration of a Benefice purchased at Rome Nota There are many Acts omitted out of Skeens Impression which were in that Impression because Skeen judg'd them Temporary as this Act and a Taxation impos'd for the Kings Ransome by this Parliament wherein so much was put not only upon every Boll of Victual but upon every Beast of Cattel Some Acts are also to be found in Skeen which are not in that Black Impression as the 80. Act. Parl. 10. Ja. 3. in the old Impression it is Act 79. concerning Purprision As also some Acts which were there only temporary are made by Skeen constant and perpetual Laws as the 29. Act of the 2. Parl. of this King â—uns thus in Skeen It is statute and ordain'd that the breakers of the Acts of Parliament be punish'd after the form and ordinance thereof whereas that Act runs thus in the Black Impression Item that it be enquired by the Kings Ministers gif the Statutes made in his first Parliament be kept and if they be broken in any of their pâ—nctilio's that the breakers of them be punisht after the form and ordinance of the said Parliament The Rubricks also of the Acts of that Black Impression differ almost every where and very much from this Impression which proves that Argumentum à rubro ad nigrum is of no great weight with us the Rubrick being an Inscription made by the Clerk Register and no part of the Act of Parliament King JAMES the First Parl. 2 IN the Inscription of this Parliament it is said and of his Kinrick the 19. year by which word Kinrick is meant his Reign for Kinrick in the Saxon Tongue signifies Reign and sometime Kinrick signifies Kingdome with us as in the 145. Act Parl. 13. Ja. 1. In the Inscription of this Parliament according to the Black Impression it is said that to the three Estates of the Realm there gatherit were propon'd sundry Articles to which was answer'd in manner as after-follows by the Inscription of the first Parliament according to that Impression it is said Electae fuerunt certae personae ad Articulos datos per Dominum Regem determinandos data caeteris licentia recedendi By which it appears that the Lords of Articles being nam'd the Parliament Adjourn'd and the custome was that they never mett again till the last day of the Parliament when the resolution of the Articles was voted 2. The resolution of the Articles is said to be Per Dominum Regem because he is only Law-giver and the Parliament only consents It is said in the Inscription of the third Parliament that these Articles were put to certain persons chosen by the three Estates which insinuats that the Lords of Articles were chosen by the three Estates whereas now the way of choosing the Articles is prescrib'd by the 1. Act 1. Parl Sess 3 Ch 2. BY this Act it is ordain'd that if any Lands or Possessions of Haly Kirk be wrongously annaly'd they should be restor'd by Process of Law For understanding whereof It is fit to know that Regularly the Lands and Goods of the Church are not Annaliable and Church-men are not Proprieters of them but Administrators and Liâ—renters praecarij possessores quibus tanquam commendatis non tanquam proprijs uti debent Salv. lib. 1. And this is clear by the Canon Law Canon sine exceptione 12. Quest. 2. can ult Quest. 1. and the Civil Law l. Jubemus 14. C. de sacro-sanctis Ecclesijs But yet there are three cases excepted in which it is permitted to alienat them exprest in Gloss. causae 12. Quest. 2. viz. 1. In causa necessitatis if the Churches Debts require the same as for maintainig its Fabrick or to maintain the Christian Religion against Infidels or Hereticks 2 do Causa pietatis as to maintain the Poor when starving or to redeem Prisoners from Infidels 3 tio Causa damni vitandi when the Lands are not otherwise improvable for which last there is an Act in the Lateran Council under Alexander the 3 d. Cap. ad aures Extr. de Reb. Eccles non alienand By our Law all Ecclesiastical Persons are discharg'd to lessen the Rental of their Benefices by setting Feues Tacks conversion of Victual for Money or any other Disposition By the 5 th Act. Parl. 22. Jac. 6. Bishops are discharg'd to set in Tacks their Quots and Casualities and though this last Act seems unnecessary because of the former yet it was made least it might have been debaitable whether Casualities fell under the former Prohibition since Tutors may transact for these as we see in Francies Montgomeries case against the Earl of Liven where it was found that Tutors who cannot alienat may transact for Casualities as to give a Liferent to the Husband of the Heretrix in place of the Courtesie and though Prelats aswel as Barrons were allowed to Feu their Ward Lands for the better improvement of them Act. 71. I. c. 2. Parl. 14. Act. 91. Jac. 4. Parl. 6. Yet these Acts are only to be understood of Lands to be Feu'd out for the equivalent Rent when at first they were Barren but they are no warrand to Bishops to Tax their Wards for a certain Dutie for this is contrarie to the Interest of the Church and is so far from being warranted by any Law that there is an express Act. viz. 9. Parl 23. Ja. 6. allowing them only to few out their Ward Lands by a Temporary Statute to endure for three years allanerly which shews that Regularly it was not lawful and this did prejudge the King also who might have right to the Ward and Marriage sede vacante from which he would be debarr'd by Taxing these Casualities And therefore Sharp Arch-bishop of St. Andrews having Taxt the Ward-holdings of the Lands of Blebo that Right was reduced by his Successor 12. March 1684 Though it was alleadg'd that though Church-men cannot alienat Teynds which are the Spiritualities of the Church yet they are domini and not administratores tantum as to the Temporalitie which was said to be also Craigs opinion and Taxing was a more constant Rent to the Church and as a Bishop might Gift a Ward which could not be quarelled by his Successors even for years after his Death or Removal so might he Tax Nota Though by the 41. Act Parl. 10 Ja. 2. The King may resume the annext Property unlawfully Dispon'd but any Process of Law yet in this Act Kirk-men are not to resume the Lands wrongfully annalÈied by them otherwayes than by lawful Process of Law BY this Act Hospitals founded by the King are to be visited by the Chancellor but Hospitals founded by Bishops or other Subjects are to be visited by the Bishop and ordinary which Act is renew'd by the 63. Act Parl. 5. Ja. 6. But by the
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
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
Intromission for his Right being contrary to an express Law he is not bonae fidei possessor nec facit fructus suos And this Act bears That the Takers shall refound all Profits for the time they had the Lands so that the Possessor has neither the benefit of a possessory Judgement though he has possest seven years nor should such Rights prescrive being null and contrary to an express Law quod non est alienabile non est praescriptibile nor doth the Possessor sacere fructus consumptos suos not being bonae fidei possessor and yet the Lords shunn'd to decern such as had intrometted with the Rents of Orknay lyable in repetition of the bygone Mails and Dewties when their Rights were Reduc'd upon this Act because it had not been in observance as some Lords affirm'd and there was a most probable ground of â—gnorance in that case AS the Wardens could not cognosce upon these Crimes which are call'd The Points of the Crown so neither can the Commissioners for the Borders who are now come in their place The meaning of the Exception made in this Act is That tho the Wardens cannot generally cognosce upon points of the Crown iâ— Treason Fire-raising c. Yet they may if such a Tryal be necessary for conservation of the Truce That is to say if these Crimes be committed by Common Robbers upon the Borders THough this Act discharge any Regalities to be granted otherwise than by Deliverance of Parliament yet they are ordinarly granted by Signatures under the Kings Hand and a Defence propon'd by the Vassals upon this Act was repell'd by the Exchequer 1664. at the passing of a Signature containing a new Erection But I see not how this could be Repell'd by the Lords of the Session the Act is so express and so reasonable for the Erection of a Regality makes a new Justiciar who has very great power and a Lord of Regality is Regulus a little King and takes off the People from an immediat dependence upon the King Likeas the Lord of Regality gets Right by the Erection to the single Escheats which prejudgeth both King and People and is expresly contrary to the Act 69. Par. 11 Ja. 6. Discharging the giving away the Kings Casualities in great and they prejudge much the prior and establisht Rights of Sheriffs subject the people to moe Jurisdictions and by multiplying Registers distract and render uncertain all Buyers and others who are oblig'd to know the condition of their Debitors and so much is the King concern'd in Erections of such Regalities that they are expresly Revock'd by all our Kings in their general Revocations Though by this Act it would appear that Regalities ought to be null if they be not originally granted in Parliament yet a posterior Confirmation in Parliament is by our Decisions found sufficient though it may be alleadg'd that Confirmations pass in course without exact consideration whereas such Regalities ought not to pass so slightly since they establish a summar Jurisdiction over the Lives of the Subjects and such previous Grants do pre-determine the Parliament in their free Voting and therefore should no more be regarded than they are in the case of annex'd Property vid not on Act 41. Supra and on Act 94. Par. 6 Ja. 1. NOtwithstanding of this Act several Sheriff-ships are granted in Fee since this Act and therefore are Reduceable but it is very observable that though these two Prohibitions fell under the Parliaments consideration at once yet the Parliament discharged only Regalities without consent of Parliament but they discharged Heretable Offices simply as tending for ever to fix the dependence of a whole Shire upon an Subject whereas Regalities are only over a mans own Lands or his Vassals But Sheriff-ships are over other men and were it not for this it may seem that the first Act concerning Regalities was unnecessary since this Act would have serv'd for both vid. observ on the Act 4 Parl. 18 Jac. 6. THe Rubrick and Body of this Act being compar'd makes Theft to be capital for the Rubrick bears That Sornars shall be punished by Death and the Act sayes That Sornars shall be punished as Thieves therefore Thieves should be punish'd Capitally but we have no positive and specifick Law for punishing Theft Capitally ORdinary Actions within Towns are not Judged now by the Counsel of the Burgh as this Act requires but by the Baillies THis Act as to the Habit of Members of Parliament is in Desuetude for the Dukes Earls and Lords wear all Scarlet Cloath with Bars of Ermine the Duke has five Bars the Earl four and the Lord three and the Burrows have no special Habit. The Fore-speakers for Cost here mention'd and who are to have Green-habits were the Advocats who were allow'd to Plead before the Parliament and this Habit for them is in Desuetude for they Plead before the Parliament without any Gown or special Habit. They are call'd Fore-speakers for Cost because they may speak for Money and Advocats in our old Journal-Books are still call'd Prolocutors or Fore-speakers But Friends are also in the Journal-Books call'd Prolocutors and therefore Advocats are here distinguish'd from them by the words Prolocutors for Cost King JAMES the second Parl. 12. THe meaning of this is that Bone-fires call'd here Bails be made at several places to forwarn the people of the approach of the Enemy this is here call'd Taikenings THough where Treason is committed the Committers are to be imprison'd and cannot be let out upon Caution because the Crime is not Bailable yet where there is only a presumption of Rebellion though it may be violent the party may be let out upon Security for else a person might be punish'd without probation for Imprisonment is a severe punishment Likeas by the lib. 4. R. M. cap. 1. num 3 8 9 11. It is there said That he who is accus'd of Treason may be let out upon Caution and if he want Caution he is to be imprison'd And yet by this Act it is appointed that persons slander'd or suspect of Treason shall remain in Firmance till they be try'd by an Assize and this last is now in use But there must still some previous Tryal be taken by Precognition and Examination before any man can be Imprison'd or his goods secur'd for Treason it being most unjust to use such severities without very good ground Because this Act of Parliament sayes That if persons be slandered for Treason they shall be tane and their persons warded therefore It was given as an Instruction by the Council to the Circuit Court 1683. That such as compear'd and desir'd to go to the knowledge of an Assize might be Bail'd and let out upon Caution because this Act struck only against such as would not appear but needed to be taken and yet this is not universally true for if there be good grounds from a previous Tryal by two Witnesses to suspect the person
and that France and Flanders were then entring into Wars STaple Goods are by this Act to remain in Staple and not to go to Mercats for clearing of which Act it is fit to know that Kings and Common-wealthes allow some Goods only to be sold at particular places and these are call'd Staple Goods and the place is call'd the Staple Port Jus stapuli est potestas sistendi in suo foro restringendique merces speciali emporii beneficio certis civitatibus competens Loccen de Jur. Marit lib. 1. c. 10. num 3. Potest enim Rex ob bonum publicum in hoc casu dispensare l. ult C. de leg But this priviledge of Staple is not competent except it be specially granted and Strangers as well as Natives may be forc'd to observe that priviledge for they are here tanquam subditi temporarii Grot. de jur Bell. Part 2. num 11 and 5. But yet this Act discharging the carrying of Staple Goods by Sea from Simon and Jude's Day till Candlemas is in Desuetude for our best Trade is now in Winter but the reason why Winter Trade was then discharg'd was because our Vessels were small and our Sea-men ignorant so that many perished by Winter Voyages ARe Explain'd in the Acts 67 and 68 8 Par. Ja. 3. and by the 36 Act Par. 8. Ja. 2. as is also the last Act of this Parliament VId. Annot. on Act 59 Par. 3 Ja. 1. Supra King JAMES the third Parliament 4. THis Act is conform to Iter Camer cap. 30. And the last Act ordain'd to be put to Execution by this Act is Act 73 Par. 14 Ja. 2. THis Act is in Desuetude for it is now lawful to carry any kind of Cattel out of the Countrey without hazard of Confiscation It is clear from this Act that the Warden might then have granted Licences for Goods prohibited but this the Commissioners of the Borders cannot now do King IAMES the third Parliament 5. VId. Act 76 Par. 14 Ja. 2. But it is to be observ'd from these words in this Act It shall be lawful to the Kings Highness to take the Decision of any Cause that comes before Him at His empleasance Likeas it was wont to be of before That the King Himself may be Judge as he pleases but though the King did call an Action to be judg'd before himself that was depending before the Lords yet His Majesty was thereafter pleased upon a Representation of the Inconveniences that would arise to refer it back to them and some interpret this of the Kings power when he is sitting in his Judicatures though I think the Act will not bear that gloss â—ut certain it is that at first all Masters were Judges in their own Families and that Kings themselves Judg'd in their own Kingdoms as we see in the instance of Solomon and others vid. ch 16. Stat. David 2. Where there is a Decision of the Kings insert amongst his Statutes and the Doctors are of opinion that princeps habens causam cum suo subdito potest ipse judicare si vult Peregr de jure sisci tit 2. num 7. and this seems founded on l. hoc Tiberius 41. ff de haer instit l. proxime ff de his quâ— in test delent And though thereafter they did disburden themselves of that Charge by electing other Judges yet they did not debar themselves from that power and therefore we use to say that all Jurisdiction in Scotland is cumulative and not privative but if the King take the Cognition of any Cause He will try it according to the Forms of that Court where it should have been decided and therefore if He be to Try a Criminal the Pannel will be allow'd to hear the Witnesses Depone against him and the matter of Fact will be judg'd by an Assyze If it be alledg'd the meaning of this Act is only that the King may Try any Action He pleases in His Council that is to say His Session for of old the Session was call'd His Council and yet they are call'd His Council and Session To this it may be answered this Aâ—t appoints that Causes should be first Try'd by the Judge ordinary and if he either refuse to Judge or Judge wrong the Council is to Judge not the Cause but him and this induc'd some to urge that the absence from the Host could not be pursu'd before the Council though the punishment was restricted to an arbitrary punishment for which they brought these Reasons 1 o. That this would confound the nature and limits of all the Judicatures which are the great foundations of our Law and which is contrary to this Act. 2 o. It is the great security of the People that when they are Try'd for Crimes they should be judg'd not only by the learn'd Judges as to Relevancy but by their Peers whom they may judge again as to the Probation 3 o. Advocats are to be heard before the Criminal Court but not before the Council and the Debate is to be there in Writ which obliges a Judge to do justly and the Probation is to be led in presence of the Pannel 4 o. Before the Council the Crime may be refer'd to Oath which is not suitable to the Criminal Law even where the punishment is arbitrary except the Party be by Act of Parliament oblig'd to Depone as in the case of Conventicles 5 o. There are no Exculpations before the Council which are necessary in Crimes 6 o. Several Acts of Parliament appoint that cases may be pursu'd before the Criminal Court or Council when that is intended and which were unnecessary if all Causes might naturally be pursu'd before either It being likewise Debated from this Act that a Judge for giving an unjust Decreet might be pursu'd before the Council in the first instance for oppression the Council did in January 1682. find that a Sheriff or other inferiour Judge could not be â—ursu'd before the Council until his Decreet were first reduc'd before the Judge ordinary and that because the 105 Act Par. 14 Ja. 3. Appoints all Actions to be first pursu'd before the Judge ordinary and the Lords of the Session are Judges Ordinary to Reductions and are there appointed to cognosce the wrongs done by inferiour Judges and if this were Sustain'd the Privy Council should become the Session nor would any man be a Sheriff since he might every day be pursu'd before the Council And whereas it was pretended that the Council were Judges to Oppression and there might be great Oppression committed by inferiour Judges sub sigurâ judicij It was answered That when the Decreet was Reduc'd they might then be punishâ—d as oppressours if there was no colour of Justice for their Decision as the said 105 Act provided Sheriff of Bamff contra Arthur Forbes Vid. Obs. on the 16 Act 6 Par. Ja. 2. and 16 Act 3 Par. Ch. 2. WE see that the granting Reversions by the Wodsetters were but new
Delegat some of their number not only in some particular cases but with a general power to represent them in all things which seems hard for that were to make and create a new Parliament but here their power was Delegated only as to Debatable cases for these Lords were then in place of the Session and I have heard it Debated if the Council could Delegat their Power to any of their number as to all things for that were to make a new Council and since the King impower'd only nine to be a Quorum they might not impower a fewer number nor were it fit for the People to have the Supream Power committed to so few nec potest delegatus delegare Nor can the Justices nor Commissioners for Teinds make such Committees though they are as Supream as the Council vid. Observ. on the last Act 10 Par. Ja. 3. BY this Act it seems that the Council may reduce the Verdicts of Inquests and Sentences of the Justices though the regular way of questioning Assizers who assoilÈe be by a Summons of Error before the Justices and a new Inquest of fourty five persons and de facto the Council do cancel such Verdicts and Sentences before themselves as they did in George Grahames Case and ordinarly they mitigat the Sentences of the Justices Nota The Books of Regiam Majestatem are by this Act called His Majesties Laws and the place here related to is lib. 1. R.M. cap. 14. BEcause the Riches of this Realm consists chiefly in our Fishing therefore Bushes are ordain'd to be made since these are able to ride out in Storms which lesser Vessels cannot do and it is best fishing when the Waters are troubled this is renew'd by the 49 Act Parliament 4 Ja. 4. THough by this Act he who tines his Action is to pay fourty shilling of expences yet the modification is left arbitrary to the respective Judges conform to the Civil Law which appoints condemnationem in expensas litium damna contra temere litigantes Inst. hic depen temerè litigantium § 1. And by the 43 Act Par. 11 Ja. 6. The Defender pays twelve pennies out of every pound to the Lords and the Defenders expences at the Lords modification King IAMES the third Parliament 7. BY the Civil Law he who is to succeed as Heir is still to be Tutor of Law but because this could not well be where the immediat Heir was himself under twenty five yeaâ—s and therefore by this it is appointed that the age of a Tutor of Law or Tutor legitimus shall be the age of twenty five years though the age of majority be twenty one because it requires greater experience to Govern other mens Affairs than our own and if the immediat Heir be not of that age the next Heir who has attain'd to that age is to be Tutor And by the Civil Law no man could be a Tutor even by a Testament till he attain'd to that age Inst. qui testament tutor § 2. By this Act also the nearest Agnat that is to say the nearest of the Fathers side is to be Tutor which was conform to the old Civil Law but Justinian by the Nov. 118. did take away this difference betwixt Agnats and Cognats both as to Succession and Tutories and we in both follow the old Law and not this Novel BY this Act the Laws called leges burgorum bound in with Reg. Maj. are declard a part of our Law and the Chapter particularly related to is cap. 125. Though this Act appoints only the Heirs of Barons Gentlemen and Free-holders to have Heirship-moveables Yet by our Law all Prelats Barons and Burgesses may have Heirs and these Heirs have right to the best of every thing that belong'd to their Predecessor as their heirship-moveable conform to a Roll expressing what is heirship-moveable a copy of which Roll may be had from the Clerk of Edinburgh the reason why moveable-heirship was allowed only to Prelats Barons and Burgesses seems to be either because these being the only three States of Parliament they only ought to be allow'd such considerable Plenishing as heirship-moveables or else because in those dayes none but persons of these qualities could have such moveables under the word Prelats are comprehended all benefic'd persons By Burgesses are understood all Trades-men and others Traffecking or working within Burghs but not honorary Burgesses By Barons are understood all who are Infest in Lands though not erected in a Barony and that maxime semel baro semper baro is to be interpreted presumptive so that he who is Infest in Lands is presum'd to die Infest But if he was devested before his death either by Comprysing Resignation or otherwise he cannot be counted a Baron and have an heir January 27. 1636. Straton contra Chirnside These words of the best of ilk thing must be interpreted de corporibus but not de quantitatibus rebus â—ungibilibus quae pondere numero vel mensurâ constant as Money Cloath c. and so the Stool of a Salt-pan which was out of use was accounted but Iron and fell not under moveable-heirship Had. 1497. Reid contra Thomson Item where there are a dozen of Spoons or moe the Heir shall have a dozen if they be fewer he gets but one Spoon Dict. cap. 125. l. burg which Custom hath extended not only to other things that go by dozens but likewise so as these things that go by pairs and are of one use must belong to the Heir and thus the heirship of Oxen was found to be a yoke July 20. 1610. Black contra Kincaid Dubitatur 1 o. If the appearand heir of a man who has only a Disposition but is not Infest may have moveable heirship Dubitatur 2 o. If the appearand heir of him who has an Assignation to a reversion of Lands may have moveable heirship since Assignations to Reversions are real Rights BY this Act it is declar'd that the Act ordaining personal Obligations to prescrive in fourty years was to be interpreted so as to extend to all Obligations prior to that Act which seems hard for these who had these Obligations were in bona fide not to do diligence and therefore some time should have been allow'd to do Diligence as thirteen years were allow'd in the Act of Prescription 1617. and therefore it would seem that the Act 29 Par. 5 Ja. 3. Ordaining personal Obligations to expire in fourty years rather declares what was Law before and that such Prescriptions have been formerly allow'd hereupon the common Law or some old Act for this Statute likewise says the time of the making of the said Acts so that it appears there have been other Acts besides that one to which this relates REtours to this day express the old and new extent by the old extent is meant that to which the whole Lands of Scotland were valu'd by the first general Valuation And by the new extent is understood the second Valuation which was long
superfluous and therefore I rather incline to think that these words were only designed to show the Parliaments great desire to have recent SpuilÈies dispatch'd though ill exprest it may be doubted whether recent SpuilÈies being only such as are raised within 15 days after the SpuilÈie is committed Sabbath or Feriot days should be counted amongst the 15. Observ. 3. That it may be argued that SpuilÈies regularly cannot be pursued before the Sheriff or else why is it allowed here as a priviledge to recent SpuilÈies that they may be pursued before the Sheriff and it seems the reason why SpuilÈies regularly should not be pursued before Sheriffs is because the dammages in SpuilÈies must be taxed by an Oath in litem and that is nobilis officii and consequently cannot be administrated by any inferior Judge nor can these inferior Judges modifie what is sworn by an Oath in litem that being yet nobilioris officii BY this Act the Sheriff is to have 12 pennies of every pound as Sentence-money which was called Sportulae by the Civil Law and this Sentence-money is still in use THis Act appoints every Lord and Laird to have a Cuningare but it may seem strange why none are allow'd to have Dove-coats except they have ten Chalder of Victual in Rent and yet men are commanded to make Cuningars since Cunins may prejudge Neighbours as Doves do which makes Craig as I conceive doubt whether the Vassals may have a Cunigare except the same be granted to him But though the Superior grant Cunigars with the clause cum Cuniculis Cuniculariis the former doubt remains for the Superior cannot prejudge third Parties To which these answers may satisfie 1 o. That it was necessary by this Act once to invite men to plant Cunigars whereas Dove-coats were frequent before the Act 1617. that restricts them 2 o. This command is only to Lords and Lairds which implyes men of Estates but is not given to all the Lieges and I doubt not but if an Heretor of ten Chalders of Victual or thereby should plant a Cuningar but his Neighbours might by common Law and an Argument drawn from the Act 19. Par. 22. Ja. 6. force them either to inclose their Cuningar or to give it over BEfore this Act the Heir could not have been pursued for any debt till the Executor was first discust but by this Act the Heir is made lyable to the Creditor after his annus deliberandi expires both as to Heretable and Moveable debts which was very just because quoad the Creditor they all represent the Defunct but yet he will get his relief of all Moveable debts from the Executor as far as the Inventar extends and if he be served Heir within the year the Creditor will get action against him for heretable debts even within the year for by entering Heir he renounces his benefit of deliberating and if he possess the Estate he ought to pay the Heretable debt but though he enter Heir within the year he should not be lyable for Moveable debts by this Act till the year expire since as to these he has no benefit by entering and though he renounce the benefit of deliberating yet he does not renounce the benefit of this Act Hading Tit. Heirs Nota Heirs are call'd in this Act Heretors from the French word Heretiers But Quaeritur if the Executor be discust and found insolvent may not the Heir eo casu be pursued within year and day and the affirmative seems strongly founded upon the reason and decision of this Act And yet by the present practice the Heir enter'd is lyable even for moveable debts tho pursu'd within the year Item Though by this Act the Executor is bound to find Caution to relieve the Heir of all moveable debts yet there is no Law obliging the Heir to relieve the Executor of Heretable debts but de practica the Lords sustain ex paritate rationis actions against the Heir for relieving the Executor of all Heretable debts 7. March 1627. Faulconer contra Blair vid. Spotswood tit Executor Carnoussie contra Laird Meldrum which seems to be contrary to the words of this Act whereby it is more than insinuated that the Fathers Moveable Goods should pay his debts and by the Narrative of 106 Act Par. 7. Ja. 5. is yet more clear By the Civil Law the Children that were in potestate patris were forced to enter Heir but thereafter this was thought too severe and therefore the Roman Praetor allowed even to these Heirs a liberty to abstain and a year to deliberate whether they would be Heirs which we have borrowed from thence but jure novissimo the Heir was to be only lyable according to the Inventar if he made one non ultra vires Inventarii which holds only with us in Executors who are Heirs in Moveables for Heirs in Heretable Rights are lyable in solidum if they once enter IF the Marriage was not quarreled by a Process in the Husbands time as unlawful the Wife will have right to her Terce without necessity of proving a lawful Marriage and will possess her Terce till the Marriage be found to have been unlawful for in the common Law and ours an unquarrel'd cohabitation is a valid probation of the Marriage l. in libera 24 ff de rit nupt Yet it cedes to a contrary probation as all praesumptiones juris do vid. Pacian tract de prob lib. 2. cap. 3. And in our Law Bastardy is not inferr'd because the Marriage cannot be proven but it must be prov'd positive that the Defunct was reputed Bastard Feb. 19. 1669 K. Advocat contra Craw June 15. 1670. Livingston contra Burn And if that be prov'd he who pretends to be Heir must prove also that the Defuncts Father and Mother were lawfully Married By the same parity of reason the Husband will have right to the courtesie of Scotland till the Marriage be found null and the allegiance of Bastardy is not receivable summarly against the service of an Heir vid. infra observ on Act 94. Par. 6. Ja. 4. ALL who did hold of the King were of old oblig'd to come to Parliament till by this Act these whose Lands are within 100 Merks of new extent are indulg'd not to come except they be specially called by the King This Act seems obsolet for none are specially called now whether the King may yet call any Barons he pleases is dubious both because they were once bound as well as impowerâ—d to come and this faculty was only remitted for their own advantage and after that this Act allows the King to call them And it seems reasonable that if there be any wise Baronin the Kingdom the King who calls Parliaments for consulting the great affairs of the Kingdome should have liberty to call him albeit the Shire choose him not and the King may make any man a Lord of Parliament Nota These who were then Members of Parliament could have sent their Procurators but now
of authorizing Acts now is only by His Majesties touching them with the Scepter and if they be Voted in a former Session they may be touch'd without any new Vote or Act but if they were past in a former Parliament they must have a Vote else they cannot be call'd the Acts of the present Parliament THe King here Revock'd when he was in France and his Revocation is subscribed by a Notar which was at that time sufficient but his supplying the Solemnities by His Kingly power was unnecessary for the King cannot supply the want of Solemnities either in his own or other mens Acts or Deeds there is little in this Revocation different from what was in former Revocations save that 1 o. The King Revocks all Tacks and Assedations made for longer space than five years which Article is also repeated in the 31 Act Par. 11 Ja. 6. and the reason of it is because there is too great a restraint laid upon the King by these long Tacks hindering Him thereby to improve His Property or Casualty for which Reason likewise long Tacks set by Tutors are not allow'd and though this may seem only to extend to Tacks sett by Kings in their Minority Yet by the same Reason and upon the same Act a Tack of the Customs set by the King in His Majority to Fleming and Peebles was Reduced before the Exchequer November 17. 1634. because the Tack was sett for seven years 2 o. The King here Revocks all Rights made by Him by evil or false Suggestion or by expreeming of a false Cause though ordinarly false Narratives do not Reduce Deeds betwixt Majors this Lawyers terms ex suppressione veri expressione falsi and this article of Revocation agrees with the Civil Law Vid. tit C. de precib offerend tit C. si contra jus vel utilit public His Majesty here Revocks all Tacks and Assedations made in his minority for longer space than five years which is likwise a Clause repeated in all the posterior Revocations and though it may seem that no Deed done by a Minor in his Minority is Revockable except Lesion could be alleadg'd yet Craig is of opinion that the very setting of a Tack is a Lesion though it be not set under the true value Minorem enim laedi puto quod rei suae liberâ administratione prohibentur lib. 2. dieg 10. THe three Head-Courts to be held by Sheriffs c. conform to this Act are as follows the first is upon the first Tuesday after the fourteenth of January which is the first Tuesday after the twelfth day of Yule The second Court is upon the first Tuesday after Law-sunday The third is upon the first Tuesday after the twenty ninth of September which is Michaelmas day but now they need not writ any excuse to the King or Council if they be not personally present This Act makes a difference betwixt such as owe sute and presence and these who owe sute only all such Barons and Free-holders as owe sute and presence ought to be present in these head Courts but this Act determines not who owe sute and presence and though the 2 cap. 2 Stat. Rob 1. Statutes that none owe sute and presence but these who are expresly lyable thereto by theâ—r Infeftments yet by our present practice Vassals of Ward Lands and consequently of taxt Ward Lands are also lyable to compear in the Superiours head Courts without any Citation though they be not Câ—ted and though this be not exprest in their Infeftment for hoc mest in the nature of their holding but Vassâ—ls who hold bleâ—sh or â—eu are not oblig'd to compear without Citation except they be thereto ty'd by their Infeftment March 12. 1630. Bishop of Aberdeen contra his Vassals And by this Act also the Infeftment is made the rule of compearance these who owe sute only are only oblig'd to send an able man to attend and serve upon Inquests and ordinarly Charters bear tres sectas curiae THis Act appointing Sheriff-deputs and all other Deputs to be sworn yearly is in Desuetude THis Act appointing all Executions even of Letters by warrand of inferiour Courts to be stamped was running in Desuetude till it was revived by a Decision in January 1681. where an Execution proceeding upon a warrand before an inferiour Court was found not sufficient because not stamped and Horning and other Executions before the Lords were always null by way of action if not stamped July 2. 1630. This Act appoints that all Mayors and Officers shall have a Signet bearing the first Letters of their Name or some other Mark that shall be universally known and therefore though the Executions bear that they were stamped yet if they do not appear to be stamped the Executions may be quarrell'd as null especially if they be recent even as Testaments were null by the Civil Law if they did not appear to have formam insculptamque signi imaginem l. 22. § 6. qui testament fac but on the contrary if the Executions bear not that they were stamped they will not be valid though they appear to be stamped because another than the Messenger might have affix'd that stamp Vid. observ on 33 Act Par. 5 Ja. 3. ALbeit this Act appoints all such as execute Sheriffs or Barons Precepts c. to leave Copies yet it has been found that the execution of a Barons verbal Precept needs no Writ but mâ—y be prov'd by Witnesses But this was betwixt a Baron and his Tennents where there needed no written Precepts whereas this Act requiring written Executions is only to be interpreted ' where there are written Precepts because it says they shall indorse their Executions and there can be no Indorsation where there is no written Precept It is requir'd by this Act that the Executor should show the Letters which are his Warrand and that he should offer a Copy to the Servants and yet both these are in Desuetude This Act requires six knocks and the affixing of a Copy upon the most patent Door of the Defenders Dwelling house which the Lords found was only in the case where there could be no entry but found that there was no necessity of knocking when the Door 〈◊〉 patent and Servants found therein December 11. 1679. Counte◠〈◊〉 Cassils contra the Earl of Roxburgh but it may be doubted still whether six knocks be necessary where the Door is patent but no Servants within and the Act says only that if they get no entress they shall knock though a man may be cited in an ordinary action by a Copy left at the Inn where he stayed fourty days yet a man cannot be Denunc'd upon a Copy left at his Inn which is so determined in odium of his Escheat November 20. 1672. It has been doubted whether a Messengers Execution bearing that he came to the Defenders House and was by force keeped out so that he could not give a personal Citation if in that case the Defender should be
be extreamly vex'd ordinarly the same day is appointed by the Judge for the proponer of the Falshood to consign and for the producer of the Writ to bide by the same like to these Consignations were the Sponsions mentioned in the Civil Law whereby Litigators sponsionem faciebant certae pecuniae quae ejus lucro cederet qui judicio vicisset l. paen ff de alcae toribus l. 17. § ult ff de praescript verb. Nota By this Act where Improbation is propon'd at the Kings instance the informer is to find Caution but if the Kings Advocat insist ad vindictam publicam I conceive he is oblig'd to find no Caution because he is never presum'd to pursue Calumniously WHen any thing is to be proven by Writ if the Writ be not produc'd this Act appoints that Protestation shall be given against the probation of that part of the exception but now the form is to call upon the Act and crave Circumduction of the Term which circumduction is here call'd Protestation but if the Writ be produc'd this Act appoints that the other party shall be heard against the same after Renunciation of probation and the form is that when any Writ is produc'd in modum probationis the other party protests to be heard against the same at the advising of the Cause and the producer puts up an Act renuncing further probation THis Act appoints the expences of Plea to be Tax'd and insert in Decreets which is conform to the Ch. 68 and 69. Quon Attach and though by the Civil Law expences of Plea ought not to exceed the principal sum pursu'd for Bart. in l. 8. Cod. de indiction Yet I have seen more expences allow'd than the sum pursu'd for extended to and it were very unjust that if a person of quality were pursu'd unjustly by a mean Rogue for a small matter that his expences should not be determined according to what he was really forc'd to expend for the necessity of expending is the only just rule in such cases Queen MARY Parliament 8. THis Act of Parliament doth enable French-men to bruik Lands and Estate in Scotland and Naturalizes them so as that they may enjoy all the priviledges here as any Scots-man may do but though quoad the point of Succession strangers have by many Nations been debarr'd and that by the Roman Law cum peregrinis Testamenti factio non erat l. 1. C. de hared instituend l. 1. § 2. ff de ◠yet Craig pag. 96. observes that strangers were not debarr'd from Succession in Scotland and I find it so decided 13 January 1575. in the case of one Richardson These priviledges granted by this Act are likewise confirmed to the Frenches by an Act of Sederunt the 11 of June 1595. From these first words in this Act appointing Letters of Naturality or Naturalization to be given to such of the French Subjects as shall happen to be in the Kingdom of Scotland It may be doubted that French-men cannot pretend to this right except they live here but this is expresly contrary to the French priviledges there granted to us It may be also urg'd that Dutch-men or others cannot pretend to it though they be Naturalized in France for to Naturalize them because they are Naturaliz'd in France were to allow the French King to Naturalize any he pleas'd in Scotland though enemies to us 2. Only French-men are Naturaliz'd which is to be interpreted only of such as are properly so 3. This were fictio fictionis which is reprobated by Law It seems also just that except this priviledge be continu'd to us in France French-men ought not to have it in Scotland Quaer If Merchants though not naturaliz'd will not have right to heretable Rights granted for security of their Money for without this there could be no Commerce THis Act contains the French priviledges to us communicated by the French whereby the Scots may succeed in France in the same way that the French-men themselves did and they are by this Act Naturaliz'd to that and all other effects and which was very necessary for us since by the Law of France the Fisk excludes the true Heirs of strangers except as to Goods brought in by them which priviledge is call'd by the French droict d' anbeine beside this right of Succession the Scots likewise are free to be preferr'd to all Ecclesiastical Dignities The Gentlemen are free from Taxes and the Scottish Ships free from Imposts albeit of late the French exact from us 50 Sols per Tun as from other Strangers As to which I drew this Memorial as Assessor to the Royal Burrows A Memorial concerning the Priviledges due to the Scots in France THe French Nation finding themselves oblig'd to have forraign Recruits for maintaining their Wars pitch'd upon Scotland as a Nation very sit to furnish them Levies and so old was their Alliance that a League offensive and defensive was enter'd into betwixt Charles the Great King of France and Achaius King of Scotland in Anno 787. at which time Charles the Great bestow'd upon the King of Scotland the Double Tressure garnish'd with Flower de Luces or as the French call it Fleurie Contre fleury born by them at this day as all the French Historians and Heraulds do acknowledge After this the French being ingaged in constant Wars with the English they imploy'd the Scots on all occasions in which their great succours and services are set down by Favin a learned French Author in his Theatre of Honour and to ingage that Nation the more as well as to reward their services the guarding of the King's Person was bestowed upon them by Charles the 5 th and they were holden as Naturalized French-men and were exempted from payment of all Customs and though many of these Contracts and Leagues be lost yet these following Papers are still extant A Treaty containing these priviledges betwixt Alexander the 2d and Lewis of France called St. Lewis Another betwixt King Robert le Bruce and King John An Act of Parliament 1558. relative to the like Act in France wherein Q. Mary who was then Married to Francis Dolphine of France doth with the consent of Parliament Naturalize all the French in Scotland and enable them to succeed to Estates moveable and immoveable here and free them from all Taxes payable by strangers In which Act of Parliament the Copy of the priviledges granted by the French to the Scots is verbatim ingrossed Item A Patent by Francis King of France dated May 1510. exeeming the Scots Nation from paying Custome in Normandie Item An Act of Exchequer approving thereof dated the said year Item An Act of the Thesaurers in France consenting to the same Item Letters Patent from the said King to his Great Council for expeding the former Patent dated the said year Item Act of the Great Council consenting thereto Item An Act of the Cour des aides at Paris approving the said Patent Item Charter by King Henry the
bound to pay the Debt in the Horning by his Gift THough this Act requires that Seasins within Burgh should be subscrived by the Clerk and given by the Bailie of the Burgh yet the Lords sustain'd a Seasine of Lands within Burgh given by the Sheriff and Sheriff-Clerk where there were no Magistrats or Town Clerk in Office at the time that the Seasine was given 21 July 1666. Thomson contra Mackitrick This is one of the instances that necessitas non habet legem vid. 11 Act 3 Par. Ch. 2. THis Act was but temporary and so is useless now THis Act is Ratified by the 15 Act 2 Par. Ch. 2. and the reason why Maltmen are discharg'd to have a Deacon is because at their meetings they might easily conspire to set a price upon the Victual and upon the Ale and Beer at their pleasure and force the Gentlemen to sell at any rates IT may seem strange that this Act made by Q. Mary should be insert here but that Parliament holden upon the 19 day of April 1567. is not at all Printed and therefore it has been thought fit to insert this Act in favours of the reform'd Religion amongst her Sons Acts and to let it continue in her name because it might clear that her Majesty had consented thereto in her own Reign This Act bears an acknowledgment of the Queens deriving her Authority Royal from God which has been insert by our Reformers to show their abhorrency of their opinion who think that our Monarchs derive their power from the people THere is no such Parliament as that here mention'd to be held upon the 29 of December 1567. and therefore the 33 Act is here renew'd but it was needless to have made a special Act for allowing this to be Printed for both these Acts 32 and 33 might and should have been one vid. obs on this Act in my Crim. Tit. Treason King JAMES the sixth Parliament 2. BY this Act it is clear that Commissions for Regents of the Kingdom were then subscrived whereas they are now superscrived and were then past under the Privy Seal as all Factories Assignations or other private Rights granted by the King are as yet but now all such publick Trusts are past under the Great Seal Nota What was then a Regent is now a Commissioner which word is but late and the Regent was then called Protector The first Commissioner mention'd in our Laws is the Earl of Montrose for the Parliament 1604. but that Inscription speaks nothing of a Commission under the Great Seal as all subsequent Inscriptions do from the year 1607. and downwards Many Acts in this and the ensuing Parliament bear With advice of the Regent three Estates and hail Body of the Parliament which words the hail Parliament seems superfluous for the King and the three Estates are the hail Parliament But this was probably inserted either to show the unanimity of the Parliament or to include the Officers of State because they are not comprehended under any of the three Estates and this may be adduc'd to redargue their opinion who think that the Officers of State did not sit in Parliament till the Parliament 1633. nor do they yet sit as such in the Parliament of England For I find them marked in the Sederunts very anciently but differently for though now they are called and are also marked down in the Sederunts after the Lord Barons and are therefore called Lords yet sometimes the Sederunt adds after the Burghs Together with the Officers of State and the Sederunt of the Par. 15 bear That the Kings Majesty and Officers of State declare the Parliament to run and ordain the Articles to meet IT is fit to know that all Alienations and Dispositions made by persons who were thereafter forfeited for Crimes of Treason are null if they be made post commissum crimen though they be made before Sentence or Declarator and that though it may be pretended that in some latent Crimes of Treason such as where Treason is inferr'd for concealing and not revealing Treason the Subjects could not know the Committers guilt and so might bargain with them or take rights from them but yet such Heretable Rights are declar'd null because the King having Feued out his Lands he is not obliged to acknowledge any singular Successors except their Rights were confirm'd sibi imputent who did not confirm This Act is ratified by the 65 Act 5 Par. Ja. 6. and all former practiques contrary thereto are rescinded which clause in that Ratification was necessary because as Sinclair observes in his old Practiques there had been several Decisions past in favours of the Earl of Mortouns Creditors sustaining Rights made by the Earl of Mortoun who was after 20 years latent guilt convict for concealing the design of murthering the Earl of Lennox Queen Maries Husband As these Acts strike against Heretable Rights made by forfeited persons so by the 202 Act 14 Par. Ja. 6. all Bonds Obligations Factories Pensions and Assignations granted by forfeited persons are declared null except these Rights be confirmed by the King or authorized by a Decreet of the Judge before the citing of the persons forfeited from which Act it may be inferr'd Arg. legis that such Rights granted post commissum crimen but before citation are valid though not confirmed by a Decreet if they were granted for true debts prior to the committing of the Crime since this Act runs only against fraudulent Dispositions as also for the same reason it may be urg'd that where such personal Rights are granted meerly to defraud the Fisk they would be null though confirmed as said is for else a man being to commit the Crime of Treason might purposely dispone his Moveables to prejudge the Fisk. Nota That such Moveable Rights Confirmed as said is will only be a ground for diligence against the forefaulted persons Moveables even as if the saids Moveables had fallen to the King by single Escheat but they will not be a ground of diligence against a forefaulted persons real Estate Nota That as Gifts of forefaulted Lands can only be past under the great Seal so the forefaulted persons Moveables should be regularly Gifted under the Privy Seal being as to the King the same way of Transmission that an Assignation is to a privat party but in the Earl of Argil's case it was found that the Moveables of the forefaulted person might be likewise transmitted under the Great Seals THough by this Act the Superiors forefaulture does not prejudge the Vassals who are innocent yet this Act is expresly abrogated by the 201 Act 14 Par. Ja. 6. and by our Law the Vassals Rights are null except they be Confirmed or unless he has originally consented to them or unless the Feus be set in the Terms of the Act 71 Par. 14 Ja. 2. From this Act it may be urg'd that since by a special Law Vassals of persons forefaulted in this Parliament are
were not null though not Confirm'd and January 20. 1666. Rentoun contra Feuers of Coldinghame The Lords found that Gifts of an Office of Forrestry granted by Kirkmen needed not be Confirmed these not being properly Feus of Kirk-lands ibid. THis Act Appoints that all Money and Victual assign'd to the Captains of the Kings Castles and whereof they have been in possession for five years shall remain with them unquestionably and this is like the Quinquennial Possession given to the King in cases of Forefalture Nota That the King has a Duty paid to him in Exchequer called The Castle Wards so call'd because they are paid in forwarding or keeping His Castles and he has no Right to them but constant payment conform to the Exchequer Rolls and therefore yearly the Sheriffs are charg'd with them and they get Letters of Relief and it was found in a case betwixt the Sheriff of Haddingtoun and Sir John Nisbet January 11. 1678. That the said Sir John had not prescriv'd an exemption as to these Castle Wards neither against the King nor Sheriff though he had paid none for fourty years since there were Letters of Relief yearly granted 2 o. It was alleadg'd that his Lands of Dirletoun having come once in the Kings hands by Forefalture and His Majesty having of new given them out that Servitude was thereby extinguish'd since res sua nemini servit but was repell'd because the King did of new only Dispone the said Lands as when they fall in his hands by the Forefalture King IAMES sixth Parliament 10. MR. Nicol Dalgleish and some other Presbyterian Ministers having reproached the King and His Government this Act declaring slanderous Speeches and Writs punishable by Death as Sedition was made and is more fully explain'd in the Act 134 Par. 8 Ja. 6. and in my crim pract tit Injuries Observ. 1 o. Sedition is a Name that receives different punishments according to its different Degrees of guilt and therefore where it is destructive of the Kings Authority immediatly and designedly it is punishable by Death as here though l. 3. C. de seditiosis the punishment of these qui ejusmodi voces emiserunt is more moderat and as that Law well observes words spoke in civitatibus tumultuosis clamoribus are more punishable than the same expressions would be if spoken in private places or without tumult but yet by this Act such seditious Speeches whether spoken privately or publickly are punishable by Death Observ. 2 o That when His Majesties Advocat designs not to pursue the Authors of such Speeches to the Death he Libels only that the Pannel did speak or write what tends to Reproach or Slander His Majesties Person or to misconstruct his Proceedings but not that they actually did so and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same Observ. 3 o. That though by this Act the Depraving His Majesties Laws and Acts of Parliament is declared punishable by Death as Sedition yet all misconstructing Acts of Parliament is not so punishable and thus though a Sheriff or other Judge would misinterpret a Law so as to make it infer a higher mulct or penalty than the Law design'd that could not infer Sedition or Death though it be likewise punishable but the design of this Act is to declare the depraving and misconstructing of Laws so as thereby to reproach the King or Government to be Sedition and Spotswood tells us pag. 243. That this Act was made for punishing these Ministers who had declaim'd against the Acts of the former immediat Parliament as destructive to their Discipline Upon this Act the Lord Balmerino was found guilty in December 1634. for having dispersed a Petition that reflected upon the Government in which Process it being fully Debated that dolus malus should be found in such cases where the design of defaming makes only the Crime this was repelled because where the words may of their own nature move dislike of and Sedition against the Government the design needs not be proved for if the people be irritate the Author ought to be punished and this Law considers the effect and not the design and he ought to blame himself who meddles in matters of Government without his Sphere It was likewise alledged in this Process that a Petition to the King Himself could not be interpret a misconstructing but this was also repell'd because both by the Common Law and ours it has been found that great affronts have been put upon the Government by way of Supplication Upon this Act also Francis Tennent was found guilty in anno 1680. and Mr. Thomas Ross in anno 1618. and the Earl of Argile both in the Year 1662. and 1681. Observ. 4 o. That in this Act mention is made of raising dislike betwixt His Highness His Nobility and loving Subjects which word Nobility was expresly put in by the Lord Hamilton and other Noblemen who then turned out Captain James Steuart against whom this Act was partly designed whereas in the Act 134 Par. 8 Ja. 6. made the year before by the said Captain James's influence against slanderers there is no mention made of the Nobility as is observed by Mr. Robert Macgil in Balmerino's Process THis Act discharging all Dilapidations of Benefices runs only in the words of the Act against such as dilapidat Benefices that are at His Majesties presentation but yet de praxi no Benefices that are even at the presentation of Laick Patrons or Ecclesiastick Subjects can be dilapidated Dilapidations of Benefices were formerly discharg'd by the 101 Act Par. 7 Ja. 6. but to elude that Act Benefic'd persons us'd not to give down any of the Bolls payable to the Benefice but to convert these Bolls in Money and to make these who were lyable in payment only lyable in very small prices and therefore such Conversions are discharg'd by this Act But it may be alleadg'd that where the Conversion is for less than the present price as Victual now gives it is unlawful since that Conversion was unnecessary and the Benefic'd person is prejudg'd because if no such Conversion had been made he had got the Bolls presently which could have maintained him better than the small prices which these Bolls were worth the time of the Conversion and yet by our Decisions the price that the Bolls gave the time of the Conversion are only considered because both parties took their hazard and the price mentioned in the Conversion is presum'd to be the full price except it could be proven that the Victual gave then greater prices for in antiquis there can be no other probation Vid. observ upon the said 101 Act 7 Par. Ja. 6. BY this Act all Leagues and Bonds made amongst His Majesties Subjects without his consent are discharg'd Observ. 1 o. That though the Rubrick bears that all such Bonds and Leagues are null yet they are not expresly annulled in the body of this Act but they
Act relates though it be not expresly cited THis Act appointing Licences to be null except they be subscrived by the Comptroller is so far innovated that they must now be subscrived by the Thesaurer and Thesaurer-Depute who are come in place of the Comptroller BY this Act Sheriffs Stewards Magistrats of Burghs and others are ordain'd to apprehend notorious Thieves and if they refuse they may be pursued Criminally as partakers of their guilt or Civilly for the payment of their Debt and generally all these are lyable if they refuse to apprehend any Rebel for Civil Debts But it may be doubted 1. If any Judge be oblig'd to apprehend a man at the desire of any person who cannot instruct the person whom he takes to be a Rebel by producing Letters of Caption as he must do in Civil casâ—s and what makes a Thief a notorious Thief to this effect 2. If meer negligence in not apprehending these notorious Thieves be sufficient to found a Criminal pursuit against the refuser as partaker nor have I seen this sustain'd but if any person shall contribute actively to a Thiefs escape he is punishable as Art and Part but with a lesser punishment vid. Clar. Quaest. 9. num 7. Bart· ad l. furti ff de furto ait spem datam ad evadendum dici auxilium ad committendum Nota By this Act all who are present and able to apprehend are oblig'd to assist in taking Thieves or if they refuse they are to be repute partakers with them and though they may be punish'd with some small Mulct yet the certification here set down is in Desuetude as to them vid. tit Duels Crim. Observ. num 8. Idem est facere non prohibere cum possis and as the Law presumes every man guilty who wil not concur to punish what all men hate so much and that they would concur if they favour'd not the guilt so this assistance is so profitable for the Common-wealth that such as deny it are Criminal but that which is considerable in this Act is that if any Clann'd man rob any peaceable Subject and if the Sheriff or Steward c. refuse to assist him not only is the Sheriff c. lyable but further it is declared lawful to them who have their goods stollen and rest to apprehend and intromet with the Goods of the Offender or any other of the said Clann and retain them till compt and reckoning and though it would seem that this taking or retaining by privat authority is not allowable till the Sheriff be required to give satisfaction and refuse yet in the case Moor contra Mefadrick 29 Novemb 1678. It was found that these were separate Clauses and that a person pursued for a SpuilÈie might propone relevantly that the Pursuer being a notorious Robber or holden and repute so had rob'd him of as much and so he might justly have seiz'd upon the like quantity of the Pursuers Goods though he had not first required the Sheriff to repair him nor was this Act found to be innovat by the 100 Act Par. 11. Ja. 6. which appoints a new method for Goods taken away by Clann'd Men. HEre is a Revocation of the King's Property in general but I find in the Registers of Council that upon the 22 of March 1684. The King revocks all Rights made by him of the Abbacie of Dumfermling which Revocation is made with the consent of the Privy Council though ordinarly Revocations are made by the consent of the Parliament BY this Act the nearest Agnat that is to say the nearest of the Fathers side should be Curator to Fools Idiots and Furious Persons Observ. 1. That this Act is extended to Deaf and Dumb Persons to whom likewise the nearest Agnat is to be Tutor and though their Tutors and Curators are to be served by this Act yet if the nearest Agnat omit or is uncapable to serve there is place for a Dative nor doth this Act exclude the Father from leaving Tutors in his Testament to such Idiots and Furious Persons as are within the years of Tutory as he may do to other Children and Craig observes that if the Furious Person or Idiot have Lands the Superior will be preferr'd to the nearest Agnat but in this I differ from Craig for the Agnat will be preferr'd to the Tutory of these as he will be to the Tutory of Minors and Superiors have by this Act dispens'd with their Feudal interest if they had any Observ. 2. This Act relates to the Common Law by which the Curators are called Curatores Legitimi but by that Law as by ours if there be no Agnats extant the Judge gives a Dative who is preferr'd to all other nearest of Kin Vid. Tit. ff de curat Furios And the Agnats by that Law as by ours are preferr'd according to the same degree as they would succeed which is most just since the Law does prefer them to the custody of the Estate because of their hope of Succession and therefore it may be doubted where there are three Brothers whereof one is furious if his Estate be conquest whether the elder Brother will be preferr'd to be his Tutor because Conquest ascends but I incline to think that the Heir of Line is still to be Tutor of Law Observ. 3. That this Law appointing the nearest Agnat to be Tutor holds only where there is not a Legal Administrator and therefore if a Wife who is an Heretrix become Furious the Husband and not the nearest Agnat will be her Tutor and though Papinian thought the Husband should not be Tutor l. 14. ff de Curat Furios Yet the customs of other Nations agree with ours Perez num 10. h. t. vid. Act 67. Par. 8. Jam. 3. Observ. 4. Though this Act equiparats the Tutors of Fools Idiots and Furious persons to other Tutors of Law allow'd to Minors yet there seems this difference betwixt them that Tutors of Law to Minors must serve within year and day from the time they are in capacity to serve but the nearest Agnat may serve himself Tutor of Law to an Idiot or Furious Person at any time and when he is so serv'd he will be preferr'd to a Tutor Dative though the Lords will authorize that Tutor Dative to exerce till a Tutor of Law be served the Exchequer being in use in the interim to grant Datives as the Lords of Session are to grant Curators ad lites 21 January 1663. Stuart contra Spreul and though in that case the Pupil was not then declared Idiot or Furious by an Inquest and so there could not be a Tutor of Law yet it seems that albeit there had been a previous Declarator and so the Tutor of Law had been negligent the Decision had been the same and the reason is because this Act prefers the Agnats and yet it decides not quid juris if they enter not and what if the next Agnat require the nearest Agnat to enter and he refuse
quo casu either it must be said that albeit the Exchequer make him Tutor Dative yet he is not properly Tutor or Curator but only a Curator ad lites or else if he be once properly Tutor the next Agnat cannot thereafter serve himself nam Tutorem habenti Tutor non datur vid. observ on the 67 Act 8 Par. I. 3. IT is to be observ'd from this Act that Laws ought not to be extended ad praeterita but only ad futura and as the Act sayes most reasonably Subjects cannot observe what is not yet made and not only so but Argumento hujus Legis it may be concluded that Processes are to be decided according to the Laws that were made before the Process was intented though the Law be made before the Decision in the Process which is very observable a notable instance may be seen in Act 94. Par. 6. Ja. 6. where the Parliament makes an Act upon occasion of a Process depending before the Session to be a rule in like cases for the future but leaves the case depending to be decided as they think just Vid. Observ. on 10 Act P. 3 Ch. 2. IT is by this Act appointed that no Signatures or other Writs shall be prâ—sented to his Majesty but by his ordinary Officers to whose Office the same properly belongs And it appears by the Registers of Council that this Act was a part of the remedy of that complaint mentioned in the 13 Act of this Parliament Observ. 1. That by Officers here are mean't Officers of State for none else can present Signatures and though a General Major or a President be his Majesties Officers they cannot present Signatures and yet any Officer of State may present promiscuously any Signature though it would seem by these words By his Majesties ordinary Officers and to whose Office the same properly belongs that every Officer of State may not promiscuously offer but that the Thesaurer or Thesaurer-Depute can only present Papers relative to the Thesaury the Justice-Clerk to the Justice Court c. Observ. 2. That though any Officer of State may present Signatures yet by the 60 Act 1 Sess. 1 Par. Ch. 2. any Officer who presents such Papers is obliged to send the Registrat Docket to the Secretary to the end his Majesty be so informed as that he may not grant double Rights King James the sixth Parliament 11. BY this Act the King 's lawful Age is declared to be 21 years compleat which Act was made to prevent a debate that had fallen out in France a little before that time where the Parliament of Paris had declared that the French King was not Major till he had compleated the last year of his Minority whereas the Parliament of Rouen had declared him to be of lawful age when he had begun the last year of his Minority nam in favorabilibus annus inceptus habetur pro completo and though Minors may revocke deeds done at any time before the last moment of their Minority and that Minoritas computatur de momento in momentum yet it is advantagious for a King to enter upon the Government of his Kingdom as soon as can be And though this be the age for reducing of deeds done by them they have another Majority in relation to the Government for we find that Josias entered upon the Government at 8 years and Solomon at 11. Cicero Philip. 5. tells us that the Kings of Macedon entered very early and in Anno 1375. the Kings of France were declared to be Majors and capable of the Government at 14. but by the Commission of Regency set down in the Act 1. Par. 1. Ja. 6. The Regency is declared to continue till 17. at which time the King is to take upon him the Government but yet King James 6 took it upon him sooner nor do I find any particular time limiting the King as to this point and therefore there may be many doubts amongst us whether the King or the Governour should be obeyed betwixt the Kings ages of 14 and 21. but before 14 no Pupil is thought fit by Law for administration and it may be strongly urg'd that 17 is the Legal age for why was the Commissions insert it being only a temporary right and such use not to be insert amongst our Laws By our Law minority runs in all persons to the last moment of 21 years whereas by the Civil Law it runs till 25 years compleat and in this our King differs not from others but because by the 2 Act Par. 1 Ja. 2. Our Kings were declared to be in minority till 21 years therefore by the 87 Act Par. 10 Q. Mary 21 years of age compleat was declared to be the perfect age of our Queens and by this Act it is declar'd to be the perfect and lawful age of our Kings It were to be wished that for proving the age of all Minors there were authentick Registers appointed as in other Nations and in some parts of our own since for want of this true probation of their birth perisheth and false probation is adduced OBserv. 1. That by this Act the receipting persons of the Romish Religion is not simply made Criminal except they did reset them for three days together or at three several times knowing that they were such which may be urg'd in all cases of Intercommuning and resetting of Rebels and yet in other cases once and short Intercommuning is sufficient to infer a Crime Observ. 2. That by the 164 Act 13 Par. Ja. 6. The resetting excommunicat Papists or Traffecting Jesuits for three nights together or three nights at several times is made sufficient to infer that they knew they were such per presumptionem juris de jure nor could the knowledge of their being such be otherways proven and if it had been necessary to prove their knowledge the Law might have been easily eluded by industrious ignorance and by that Act likewise the third fault is declared punishable as â—reason and because the punishment was so great it was just the presumptions whereby it was to be infer'd should be strong THough by this Act only the Sellers and Dispersers of erroneous Books are to be punished at our Soveraign Lords will and such Books to be burnt yet by our practise the Bringers home of Crucifixes Popish-beads c. are to be used in the same way and though there is only warrand here given to a Minister and Magistrats of Burgh to seize and burn such Books yet Magistrats use frequently to seize without a Minister and Sheriffs and other Officers do likewise seize but since burning seems to be an extraordinary power and so not to be assum'd without a special Statute I think that no Officers save Magistrats of Burghs with the concourse of a Minister can burn· THe reason why Ministers Benefices under Prelacies are declared to be free of the first Fruits and fifth penny of their Benefices is because in time of Popery the first years
to these His Laws and the 9 Act Par 3 Ch. 2. Ordains all such Licences Protections c. to be sign'd and the Signers to be lyable c. It may be likewise doubted whether the Commission of the Kirk can grant Protections since there is only allowance by this Act granted to the Privy Council Session Exchequer and Justice Court but since the 61 Act 1 Par. Ch. 2 Declares that the Acts Decreets and Ordinances of that Commission shall have the strength of the Acts and Decreets of Parliament they are really a Commission of Parliament And therefore as the Parliament can grant Protections so can they especially since without this they cannot exerce well the Jurisdiction intrusted to them by the Parliament and it seems inherent in all Courts that they should be able to protect all whom they Cite and it is clear by this Act that the Supream Courts of Scotland have power before this Act of Parliament to grant Protections for this Act reserves only their former power but grants them no new power These Protections are thought the same with the induciae moratoriae granted by the Civil Law l. 4. C. de precibus Imperator c. which are not valid by that Law nisi idonea fideijussio super debiti solutione praebeatur But I think these to be rather Suspensions and that Cautioners in Suspensions with us arose from this THis Act anent Teinding of Corns is Explain'd fully in Act 73 Par. 6 Ja. 6. BY this Act he who accuses another for Treason and proves not commits Treason Observ. This is only in case of malicious accusation for the Act says That malicious accusers c. and therefore if the pursuer had probable grounds for his accusation he seems not to incur the hazard of this Act. Observ. 2. That though the Act says Whoever accuses yet the Kings Advocat runs no such hazard for he accuses ratione officii but to prevent this he gets alwayes in Treason a warrand from the King or Council upon Reading the Depositions of the Witnesses taken by way of Precognition or else he has an Informer who finds Caution to insist sub poena talionis Observ. 3. That the pursuer is only lyable if the party calumniat be call'd accus'd and acquit therefore the Accuser repenting and not insisting it seems that he will not be lyable in this pain but for not insisting he will be only lyable in the sum under which he has found Caution and possibly in poenam arbitrariam if malice appear and yet it may be urg'd that he should be lyable to the pain of Treason since not insisting was the pursuers fault and no man ought to have advantage by his own fault nam qui dolo desiit pâ—ssidere pro possessore habetur Dubâ—â—atur If this Act extends to such as pursue only Statutory Treason and sure it does not if they pursue not the same as Treason though upon the event it may prove so It may also be doubted if a Witness who has Deponed against a man in a previous Tryal as guilty of Treason and thereafter Depons he knows nothing of it commits Treason for this wrongs the party as much as an accusation yet if this Deposition was not emitted ultroneously but on a Citation it cannot be call'd an accusation nor punisht as such but it seems punishable by Death by l 1. in prin ff ad L. Cor. de fals LAnded men Convict of Theft Reiff or Reset commit Treason It may be doubted if an appearand Heir be punishable in that case as a Landed man or if a person once a Landed man but denuded be lyable Though Landed men may be thus punished as Traitors yet they are ordinarly pursu'd for single Theft and the Kings Advocat does restrict his Libel to ordinary Theft But because it may be punishable as Treason therefore the Lords Advocate Thefts against Landed men though the Libel bear only single Theft THe murthering any person who is under the trust power or assurance of the slayer commits Treason Assurance is extended to such as we have invited to our house or such as we are under trysting and capitulation with This Act is likewayes extended to Husbands killing Wives Bairns Servants e contra THis Act determining what is Usury is explained in my Criminal Pract. Tit. Usury THis Act declares that such as exact other Customs from the people than what is warranted by express Law or express warrand or immemorial possession shall be punished as oppressors It is thought that possession for 40 years is equivalent to immemorial possession and warrands such exactions by prescriptions SHips transporting Victual are confiscated and the Masters and Clerks imprisonable during pleasure This is now abrogated for it is lawful to transport Corn even without a warrand from the Exchequer except where the same is discharged by special Proclamation because of Dearth THis Act discharging the eating of Flesh in Lentron is in Desuetude tho till of late eating of Flesh was discharged without a previous warrand under the hand of the Clerks of the Privy Council THis Act appointing the slayers of Deer Cunnings to be punished as Thieves is explained crim pract Tit. Theft num 15. BEcause the people were oft times mistaken in executing their Brieves Legally through the difference arising from several Jurisdictions therefore some places are here appointed to prevent mistake and a General is subjoined appointing Brieves to be executed either at the head Burghs of Shires or Stewartries or where Brieves were most usually served From which last words it may be observed that Executions are sufficient though they be not at the real head Burghs if they be at the place where they used to be executed and thus Executions at Dunce were sustained for the Shire of Berwick though Greenlaw was really the head Burgh by the Erection and Executions of a Warning were sustained though not at the right Paroch Church within which the Lands lay since it was executed at the place at which Warnings used to be executed 24 January 1667. The Earl of Argile contra George Campbel so far the presumption of habite and repute prevails even over truth BY this Act the granter of a Woodset is declared not to be prejudged by his negligence though he suffer an Ecclesiastick quietly to intrude and to continue long yea even 100 years in the possession of Laick Patronages to which he has right because during the none-redemption the Woodsetter did not look upon himself as Heretor The reason of this Act has certainly been because Church-men possessing per decennalen triennalem possessâ—onem prescrived a right and the Act seems to imply that because the granter of the Woodset was not valens agere whilst the Woodset stood therefore his negligence should not prejudge him but I conceive that Church-men now prescriving a right by 40 years peaceable possession will exclude all the rights of Laick Heretors as well when the Lands
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
run if that offer will hinder the incurring the irritancy for these years seing a Debitor may in Law pay before his day come and what if it be such a Prestation as must be performed yearly 8. If the Vassal will amit his Feu for not offering where he had a pretext to doubt who was his true Superiour and what he is to do in that case So much use the Lords to favour the Vassal against such severe irritancies that a Retour bearing in the first part of it an irritancy for not payment of the Feu-duty si petatur tantum they allowed the Vassal to purge though in the posterior part of the Retour these words were omitted in the Clause irritant it self February 18. 1680. Earl of Mar contra his Vassals Like to this irritancy was that of the Civil Law whereby non solutio pensionis per biennium in civill Emphiteusi per triennium in Emphiteusi Ecclesiastica efficiebat ut Emphiteuta a jure suo caderet by the Civil Law the irritancy mora in not payment was not purgeable but by the Canon Law it was In Tacks also with us the not payment of a Tack-duty for two years or terms infers an irritancy November 23. 1609. Murray contra Nisbit March 9. 1611. Seton of Baro contra Seton of Pitmedden which is also conform to the Civil Law l. 56. ff locati THis Act is Explain'd crim pract tit Usury BY the 18 Act 1 Par. Ja. 6. The bearing and shooting with Culverings or Daggs without the Kings Licence is forbidden under the pain of losing the Right Hand and that Act is here Ratifi'd and thereto is added Confiscation of Moveables and by the Act 6 Par. 16 Ja. 6. It is appointed that the Contraveeners of these Acts may be pursu'd either before the Council or the Criminal Court and when they are pursu'd before the Council it is provided that they shall not lose the Right Hand It may be argu'd from this Act that where there are two punishments appointed by two different Laws the last is not added to the first but either it antiquats the first or else either of the two can be only regularly inflicted for else this Act needed not say sâ—â—a that the ane pain shall not stop nor stay the other From that 6 Act 16 Par. It may likewise be observ'd that the Secret Council are not Judges competent to Life and Limb such as the amputation of the Right Hand By the Lex Julia It was lawful to carry Arms without Rome but not in the Town but they were every where thereafter Discharg'd Tit. 46. lib. 11. C. ut armorum usus inscio principe interdictus sit BY this Act is Ratifi'd an Act made at Dundee by the King His Nobility Council and Estates which was an Act of the Convention of Estates for the Convention of Estates ordinarly considered the matter of Coinage nor needed that a Parliament because Coinage is a part of the Prerogative and by the Estates there were mean'd some of every Estate taken by the King for advice From this Act it was urg'd in the Lord Hattons case That 1. By this Act it is clear that we had a different Standard from England which is to be eleven pennie fine 2. That it was lawful to melt down current forraign Coyn because this Act allows it to be us'd as Bullion Nota This is the first Act that mentions the General of the Mints Office as different from the rest BY this Act it is clear that the Convention of Estates made Acts also discharging the Transportation of Wool and the like and this Act as to Wool is again Ratifi'd but a power is allow'd to the Exchequer to Transport Wool contrary to this Act Act 40 Par. 1 Sess. 1 Ch. 2. But even this Act discharges only bypast Licences but not Licence for the future for these are allow'd even for Wool by the 254 Act of this same Parliament BY this Act Customs are declar'd to be due to His Majesty of all that is brought in from forraign Nations and by the 27 Act Sess. 3 Par. 1 Ch. 2. The ordering and disposal of Trade with forraigners is declared to be His Majesties sole Prerogative and therefore some think His Majesty may impose upon forraign Commodities what he thinks convenient for since he may discharge the Trade if He pleases it seems to follow that He may burden it as He pleases By this Act an a b c. of the Customs is to be put upon all Commodities that is to say a particular index of the several Customs imposed upon every several Commodity is ordain'd to be made according to the Letters of the Alphabet and this has varied in several ages the present a b c. being made by order of the Parliament 1661. vid. statut David 2. cap. 12. num 3. where this priviledge as to paying of Customs is formerly declar'd and by the Canon Law this was likewise declar'd lawful to Princes vid. perez ad lib. 10. C. tit 18. num 13. l 5. C. de jure fisci where it is said officialibus vâ—lentibus ea capere debet acquiescere From these words of this Act Albeit it cannot be deny'd that His Majesty is a free Prince of a Soveraign power havand al 's great Liberties and Prerogatives be the Laws of this Realm and priviledge of His Crown and Diadem as any other King Prince or Potentat whatsoever It is observable that our Kings are here acknowledged to be absolute and Soveraign Monarchs as is likewise more fully declar'd by the 1 Act Par. 18 Ja. 6. In which it is said Whom the hail Estates of their bounden duty with maist hearty and faithful affection humbly and truly acknowledges to be Soveraign Monarch absolute Prince Judge and Governor over all Persons Estates and Causes both Spiritual and Temporal within His said Realm By neither of which Acts I conceive our Kings are so absolute as that they have a Tyrrannick or Despotick power but that they are so absolute as that they have power to do every thing that is just and reasonable though they be not thereto empowered by particular Acts of Parliament and therefore they are ill Subjects and worse Lawyers who allow the King to do nothing but that for which he can shew an Act of Parliament since his being an absolute Monarch implyes this innate Power and therefore it follows by a better consequence when any thing is contraverted that the King may do the thing in controversie being reasonable if his power be not as to that point restrained by a particular Act of Parliament It is likwise very observable that this power of absolute Monarchy does not flow from the people but is his own Right for no Act of Parliament grants the King any Prerogative but only declares by way of humble acknowledgement what his Prerogatives were principibus says Tacitus summum rerum judicium dii dederunt subditis obsequii gloria relicta est lib.
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-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 Mâ—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 unprâ—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
the 5 Act Par. 18 Ja. 6. THis Act declaring the Provocker and Provocked in Duels to be punishable by Death is Explain'd Crim. pract tit Duels and since fighting Duels is only declared Death by this Act it appears that naked Provocation is not Capital but yet even the sending of Cartals may be arbitrarly punished by the Privy Council but Fighting is Capital though no killing follow and fighting by Rencounter may be punished as a Duel though there was no formal Cartal for by this Law all single Combats are declared punishable by Death vid. crim pract tit Duels This Act was renewed by a strict Act of Secret Council in anno 1674. THis Act is Explained in the Act 265. Par. 15 Ja. 6. BY this Act it is Declared that the negligence of the Kings Officers in Pursuing or Defending a Cause shall not prejudge the King and therefor competent and omitted is never received against the King though it be against private parties and by this Act it would appear that the King may propone a Nullity of a Decreet obtained against him even in foro before the Lords of Session by way of Exception or Suspension without a formal Reduction but yet Prescription runs against the King notwithstanding that it may be alleadged that by this Act he cannot be prejudged by the negligence of His Officers in not pursuing since Prescription is a general Remedy introduced for the final quiet both of King and People and as to Heretage it is introduced by an Act posteriour to this Act wherein there is no exception made in favours of the King but the Act introducing Prescription of Moveables is prior to this Act and so it may be the more doubted whether Prescription of Moveables runs against the King since by this posteriour Act it is Declared that the negligence of His Officers in not pursuing shall not prejudge him nor is there so great hazard to the Lieges in their Moveables as in their Heritage THe Transporting or In-bringing of forbidden or Un customed Goods that is to say Goods that should pay Custom without paying Custom is punishable not only by Forefaulture of the Goods but by Confiscation of the In-bringers whole Goods moveable albeit by the Civil Law ea res tantum in commissum cadit quam quis non est professus by which Law the naked Entry or sola possessio was sufficient to Defend against the Forefaulture imputandum est publicano qui non exegerit Perez tit C. de vect num 10. both by that Law and ours the Customers may recover the Goods un-entered even from singular Successors who have bought the same bona fide for a competent price and in that Law Error excus'd from Confiscation but in that case it exacted double Custom Perez ibid. I have not observed any mans Moveables Escheated upon this Act. THis Act fining such as will not Communicat once a Year when he is thereto desired by his Pastor is ill observed but not in Desuetude and therefore was renewed by Proclamation in January 1679. Observ. That the having Rancour against their Neighbour is Declar'd no relevant excuse and justly because it is a fault and so should be no Defence argumento hujus legis a Fanatick having prejudice at his Minister even though reasonable is no legal Defence for he should still hear Observ. 2. Though this Act say That no other excuse whatsoever shall Defend yet certainly inability to Travel madness c. will Defend and general words are still to be understood in subjecto capaci THis Act is Explain'd crim pract tit Heresie THis Act is Explained crim pract tit Beggars and Vagabonds THis Act is Explained crim pract tit Adultery THis Act is but a Temporary Commission THis Act against slaughter of Wild-fowl is renewed by an Act of Privy Council June 9. 1682. years whereby Masters of the Game are appointed for putting these Acts in Execution though by this Act the Sheriffs Stewarts and the Kings ordinary Magistrats have a particular Commission of Justiciary for this effect and it was questioned in the time how the Council could take away a Right establisht in them by the Parliament By this Act the killing of Mure Pouts is Discharg'd before the third of July and Partridge Pouts before the eight of September and by that Proclamation Mure Pouts are allow'd to be kill'd after the first of July and Heath Pouts after the first of August and Partridge and Quail after the first of September and whereas by the 109 Act Par. 7 Ja. 1. No Partridges Plovers Black-cocks c. are to be kill'd till August this Proclamation allows them to be killed from the first of July THis Act ordaining all English Cloath to be Seal'd by a Seal the Form whereof is here condescended on was thought to have been in Desuetude but now found not to be so in anno 1666. at which time it was found that the Customers might enter the Shops and Seal or Confiscat what was not so Seal'd This Sealing was formerly appointed by the 129 Act Par. 12 Ja. 6. THis Act appoints that no Letters of Horning shall be Direct against persons Dwelling on the other side of Dee upon shorter space than fifteen Dayes which Act was found only to be extended to Actions before the Privy Council but not to Charges before any other Court because the Narrative of this Act sayes That severals of the Lieges were drawn in inconveniencies by Charges before His Majesty and His Council though the Rubrick and Statutory part be General and though the reason whereupon this is inferred extends to all Charges as well as Charges before the Council SUch as Invade any of His Majesties Subjects within a Mile to the place of His Highness Residence or whoever resort thereto Armed with Jacks or Corslets under their Coats are to be Imprisoned for a Year and punishable by an arbitrary fine Observ. That the attrocity of the Crime is much hightned from the circumstance of place as well as time as is likewise clear by the 173 Act Par. 13 Ja. 6. It may be doubted whether this Act can be extended against such as Invade Strangers since the Act sayes only such as invade Subjects since the Invading of Strangers is more attrocious in it self than the Invading of Subjects the Crime being there aggredged by the breach of Hospitality It may be likewise doubted how long a time of Residence by the King makes the Invaders punishable and it would appear that if the Invasion be not within a mile of that which is known to be the place of the Kings ordinary Residence that then it must be proven that the Invader did reside there for the time BY this Act Sheriff-Courts should be kept in the middle of the Shire for the ease of the people but this is not observ'd OF old Pledges were taken in the Borders that is to say one man entered himself Prisoner for
Action against others of the same Manufactory for resetting their Servant who had run away from them and to whom they had learn'd their Trade and yet I have seen action granted in the Council against Heretors who had entized away other mens Fishers and the parity of Reason seems to reach to such as work in Lead-mines This condition of CoalÈiars and Salters by our Law makes them to be like to the addicti glebae adscriptitii mentioned in the Common Law THis Act is Explain'd formerly in the 72 Act Par. 14 Ja. 2. BY this Act men are Discharg'd to lay Lint in their own Lochs since thereby Fish is destroy'd and the Water becomes Noxious to Neighbours and thus property is in many things restricted for the good of the Common-wealth there being nothing more consequential to property than that quilibet potest jure suo uti modo principaliter hoc non faciat in aemulationem alterius But it seems that only the Parliament can restrain this exercise of property else this Act had been needless and therefore when the Laird of Haining offered to Drain his own Loch it was justly Debated whether the Fishers upon Tweed could hinder him because the Water that run in from the Loch to Tweed prejudged their Fishings But that which made the case there more Debateable was that publick Rivers and Salmond Fishings are of their own Nature priviledg'd It may be likewise Debated whether paritas rationis should extend this Act against such as lay stinking Hides or other such noysom things in their Loches or Burns and the laying any such things in the Loch of Lochlevin is specially Declar'd punishable by the 29 Act Par. 1 Ch. 1. Vide quaestiones medico legales Pauli Zacchej lib. 3. Tit. 3. where he condemns what is here Discharg'd as noxious both to Man and Beast BY this Act the Vassals who hold Blench of His Majesty are only lyable in their Blench-duties if they be required allanerly and these Blench-duties cannot be converted into Money by the Exchequer Observ. 1. It is declared by this Act that Blench-duties are not to be any Burden or yearly Duty by their own Nature but only an acknowledgement or recognizance if they be requir'd allanerly and yet by our Law in Lands holding blench of a Subject we thus distinguish viz. either the Charter bears si petatur tantum and then the Blench-duty cannot be required beyond the year in which it was due Or else the Blench-Charter bears not this Clause and then either the Blench duties are such as are of a yearly growth as Wax Pepper c. and these can only be crav'd within the year Or else they are things of some intrinsick value and not of an annual growth such as Silver Spurs c. and they may be pursued for at any time within fourty years Nor can any annual Prestations such as Carriages be acclaimed after elapsing of the respective years wherein they were due by the Tack or otherwayes January penult 1624. But though a Vassals Charter who holds of the King bear si petatur tantum Yet the Exchequer by an Act does Tax the price and pursue for these and for annual growths albeit they have not been crav'd within the year for which I can give no other reason but that the negligence of the Kings Officers cannot prejudge the King But how can the Act of Exchequer alter the Nature of the holding which is an express Contract betwixt the King and His Vassals and it may be alleadged that by Act of Exchequer it may be as well Declar'd that prescription shall not run against the King for this is a species of prescription but especially since it is Declar'd by this Act that they shall not pay notwithstanding of any Act of Exchequer past or to come nor does the Act anent the negligence of the Kings Officers abrogat this Act as it ought to have done The Advocats Protestation in the end of this Act seems to be in-intelligible for how can Blench-duties be conform to the Kings Estate and Dignity Some Interpret this Act as if it only prohibited the Conversion of the Blench-duty into Money in the body of the Charter but does not hinder the Exchequers valuing of it Others to reconcile the present practice with this Act make a distinction betwixt holdings in blanco and in alba firma as if the first being an inconsiderable Duty as a Rose or a Penny may not be converted to Money but the other affording some profit such as Gilt-spurs Gloves a pound of Pepper c. may be valued by the Exchequer This Act quadrats with Tit. 2. lib. 11. Cod. Theodos. THis Act is formerly Explain'd in the 77 Act Par. 6. Ja. 5. BY this Act all such as Convocat or Assemble themselves within Burgh without Licence of the Provost and Baillies are declar'd to be guilty of Faction and Sedition and it has been doubted whether Keepers of Conventicles within Burgh may be punishable by this Act for though there be a specifick punishment appointed for Conventicles yet since this and oâ—her Laws by which Conventicles may be punished in specifick and particular cases are not abrogated expresly It is therefore alleadged that they are not abrogated conform to the general Rule set down in the 243 Act Par. 15. Ja. 6. Observ. 2. It may be doubted whether since this Act runs in the general against Convocations within Burgh if this Act should not as well extend to Burghs of Barony and Burghs of Regality as to Burghs Royal since the word Burgh comprehends all and the Reason inductive of this Act viz. the quenching Convocations extends likewise to all and when the Parliament designed to extend their Acts only to Burghs Royal they were particularly exprest as is to be seen in the immediat foregoing Act and albeit it may be urg'd that this Act speaks of Provost and Baillies yet this must be Interpreted applicando singula singulis for there are many Burghs Royal as well as Burghs of Regality and Barony that want Provosts Observ. 3. That though this Act ordains only such as obey not their Magistrates and Officers to be fined yet if the Inhabitants of any Town refuse to obey any Officers in the Kings Name such as Captains c. they may be fined Observ. 4. This Act appoints that it shall be proclaim'd at all the Mercat Crosses of the saids Burghs albeit by the 128 Act Par. 7 Ja. 6. all Acts of Parliament are only to be published at the Mercat Cross of Edinburgh but this Act being posterior and special derogats from that general Law and this was specially appointed because of the special interest of the Burrows Observ. 5. It is observable that this Act proposes no punishment for Towns where the Magistrats do not their duty to oppose Tumults against the Government yet the Town of Lanerk was fin'd for not pursuing those who burnt the Test at their Cross anno 1681. and privat Burgesses pay
absens reipublicae causa in general is not sustainable as Minority is since these who are absent may leave Procuratories to pursue their Rights It may be likewise debated that such as are vi majore hindred from coming to pursue as being taken by Robbers or Pirats should have the priviledge of non valentes agere though no exception be made of them here for though the chief design of the Act be to establish Heretable Rights in the persons of singular Successors who cannot know such accidents and are secure if they find a fourty years progress Yet prescription was at first introduced for punishing the slouth of the Proprietars amongst other Reasons and therefore non valens agere was allow'd by the Civil Law and ours It may be also doubted whether prescription should run against a furious or mad Man since they are minors in the construction of Law and so are to have Curators and are less judicious oftimes than Minors are but yet since they are not exprest here when the Law secur'd priviledg'd Minors it is presum'd they were designedly omitted and it were hard to know who are Furious and Furiosity might continue eighty or ninety years or a man might feign himself mad c. Observ. 3. That this Act makes a difference betwixt such as are singular Successors who must produce for the Title of their Prescription not only a Seasine but a Charter and Heirs who need produce no Chaâ—ter but Seasines one or moe proceeding upon Retoures or Precepts of clare constat But because the Act sayes That they shall produce Seasines one or moe continued or standing together for the space of fourty years therefore the Lords found that Seasines must be produc'd by the Heir by vertue whâ—reof he and his Predecessours have bruiked for fourty years during their being Infest and so where the Father was Infest and lived thirty nine years yet the Son not having been Infest though he and his Grand-child possessed for above 100. years This Seasine was not found a sufficient Title for prescription February 15 1671. Earl of Argile contra Menauchtan and the reason is because a Seasine is but assertio notarii and therefore it was too lax a foundation for an Heretable Right and one Seasine may be easilier forg'd than moe Seasines can and one Seasine being forg'd may be laid up in the Charter-Chist so that the true Proprietar could not before the Registration of Seasines know how to improve the same and since this Act requir'd no Charter from Heirs it was just that it should require more Seasines to secure against Falshood But since the Act appointing Seasines to be Registrated the argument of easie Forging is much taken off Because the Act of Parliament sayes That it is necessary to produce a Charter granted to them by their Superiours and Authors It may be doubted whether the Superiour is oblig'd to receive a Vassal though fourty years in Possession except he or his Predecessors can shew a Charter from him and that because not only does the Act of Parliament say Copulative Superiours and Authors but without this there is no Title against the Superiour and some rather think the Superiour would bâ— excluded by this fourty years Possession from his Right of Supeâ—iority Observ. 4. Though the Act require Charter and Seasins yet a Disposiâ—ion or Precept of Seasin would be sufficient for many compleat Rights have no Charter Observ. 5. These fourty years run de momento in momentum and therefore the Prescription wanting a day was not sustain'd July 6. 1671. Though it was alleadg'd that de minimis non â—â—rat prâ—tor and it would be severe to take away the old Heretage of a Family for want of one day or hour These fourty years are tempus continuum and not utile and therefore the Law subduces not from the Compt those years in which Judicatures were not patent or in which War and Pestilence hindered the Proprietar to pursue the 30 of June 1671. but it may be here doubted quid juris if Judicatures were not open through War or Pestilence for the greatest part of the whole fourty years Observ. 6. This Prescription runs against His Majesty as well as Subjects for the Act sayes expresly that these who have possessed fourty years shall not be troubled by His Majesty or any other which was exprest least 〈◊〉 it might have been alleadg'd that the negligence of His Majesties Officers should not prejudge him in not pursuing c. Which are the express words of the 14 Act 16 Par. Ja. 6. Observ. 7. That by this Act the Prescription was drawn back in favours of these who had possessed fourty years prior to the Act for drawing back whereof nothing can be answered but that this Remedy was previously allow'd by the Civil Law but least the Subjects might have been hereby prejudg'd thirteen years are allow'd to run from the date of this Act so that though they had possessed fourty years before the Act they could not prescrive except they had likewise possessed 13 years after this Act and though in this Clause the priviledge of Minority be not repeated and that it seems that the Parliament design'd not to deduce minority out of so short a time as 13. years since having had it under consideration in the Act they excepted it not in this Clause yet it was found that Minority was to be discounted even in this case July 5 1666. Observ. 8. That by this Act it is declar'd that except the Summons be Call'd and Continu'd it shall not interrupt Prescription and it is declar'd That the Raisers of Summons shall not be oblig'd to insist except where the Summons is called and continued and the Defenders of new Summoned thereby and yet the 3 of July 1647. Elleâ—s contra Scot. It was found that upon a single Summons one may be forc'd to insist which I cannot reconcile with this Clause except by restricâ—ing this Clause meerly to the Course of thirteen years here specifi'd and generally a first Summons Executed interrupts Prescription January 26. 1622. And of old the Execution of a first Summons did interrupt though they bare no express relation to the Summons upon which the Interruption was founded but because there were several Summons at the same parties instance so that the Execution of one Summons might be obtruded for the Execution of another It is appointed that the Execution of Summons shall bear express relation to the Names of the Pursuers and Defenders and it shall not be sufficient that the Execution does generally relate to the Summons by the 6 Act Sess. 3 Par. 2 Ch. 2. and it had been fit that the Act had added that the Execution should bear the nature of the Action deduced in the Summons for else where the Pursuers and Defenders are the same one Execution may be still obtruded for another Observ. 9. Albeit this Act appoints all Rights to prescrive yet it was found that Heretors cannot prescrive a Right of their Tâ—â—nds
be lyable thereafter to do exact Diligence Observ. 3. By this Act it is Declar'd that upon payment of the principal Sum and Annualrent and the Expence bestow'd by the Compriser in passing and obtaining Infestment together with the Annualrent of the said sums and the necessary Expences bestow'd in leading the Comprising that then the Comprising shall expire ipso facto that is to say by way of exception without Declarator though ordinarly an order of Redemption be us'd and not only does payment or intromission with the Mails extinguish the Comprising and prove against singular Successors but even any acknowledgement of payment by the Leader of the Comprising will extinguish the Comprising against those singular Successors July 23 1662. Observ. 4. That the Comprizer is to get allowance of a years Duty as due to the Superiour by this Act and though he get himself entered for less by the Superiour than the years Duty yet he will get allowance of the full years Duty that was due to the Superiour whose gratuity will be of no advantage to the Debitor July 2. 1625. Observ. 5. That by this Act what is pay'd to the Superiour bears Annualrent as do the necessary Expences but it may be doubted if Annualrent be due for Sheriff-fees Observ. 6. That Comprisings are not to run against Minors but that it is lawful for the Minor at any time within the age of twenty five years to Redeem which priviledge was found not only to be due to Minors when the Comprising is led against themselves but even when a Minor has right to the legal Reversion he being himself a second Compriser for even in that case a Minor having led a Comprising may be prejudged as well as the Minor against whom the Comprising is led there being the same parity of reason in both and though this be not clear by the first words of the Exception Yet it is clear by these words And that notwithstanding of the preceeding Laws and Practiques of this Kingdom by the which the Legal Reversion of the Comprised Lands expired within seven years after the leading of the Comprising from the which His Majestie and Estates hath by this present Act and Statute excepted Minors in all time coming declaring the same no wayes to run against them Observ. 7. That because this Act appointed only the superplus of the Mails and Duties which exceeded the annualrent to be imputed in the payment of the principal sum during the seven years of the Legal but did not expresly extend this to the case of Minority Therefore it was found that Minors not Redeeming within the seven years the Compriser had from the expiring of the seven years the whole Rent of the Land for payment of his Annualrent without imputing the superplus in payment of the principal sum because the Act Corrected only that Custom quoad the Legal leges correctiâ—â—â— non extendi debent ultra verba directa expressa February 22 1639. and therefore by the 10 Act Par. 1 Sess. 3 Ch. 2. This Decision was Corrected and it was by that Act ordain'd that Comprisers should impute the superplus of the Rent beyond the Annualrent for payment of the Principal sum not only during the Legal but during the whole course of the Minority THis Act extends all the priviledges granted to Minors in Comprisings to Minors against whom Adjudications are led And from this it would seem to follow argumento hujus legis that whatsoever is competent in Adjudications is not Competent in Comprisings for else this Act had been needless and the Lords would not extend the priviledges of the one to the other in many other cases and so would not allow the Superiour to get a years Duty because the immediat preceeding Act did allow Comprisd Lands to be Redeemable upon the payment of the sums Compris'd for and a years Rent for their Entry But in this Act of Adjudication there is no mention of a years Duty and which therefore was thought to be of purpose omited and so needed a new Law notwithstanding of the parity of Reason whereupon a new Law was made viz. the Act 18 Par. 2 Ch. 2. Whereby not only the Superiour is ordain'd to have a years Duty but it s expresly Declar'd That in all Cases relating to Superiours Adjudications shall be in the same condition with Comprisings and consequentially to this last Act it was found that the Superiour might at his option either Enter the Adjudger or pay the Sums for which the Adjudication was led since the Act of Par. Ja. 3 Par. 5 and Act 37. Appoints this in Comprisings June 10. 1671. Scot of Thirlestoun contra the Lord Drumlanrig As also upon the same Reason the Lords found that the Superiour was bound to receive the Adjudger though he could not produce his Authors Rights Debitors abstracting their Writs because Comprisers are not bound to produce February 9. 1667. Ramsay contra Ker. Nota That Comprisers intrometting are lyable for their intromissions with the Victual according to the Sheriffs Fiars and not according to the Commissars not only because the Commissars Fiars are made only to Regulat Prices betwixt Tutors and Pupils and in other Consistorial Cases but because this Act sayes as the samine were commonly Sold between Yuil and Candlmas in the Sheriffdom where the Lands ly THough regularly Infeftments upon Comprisings and Adjudications ought to be perfected by appending the Great-Seal yet an Extract of the Debitors Infeftment under the Privy-seal is here Declar'd equivalent in so far as concerns the Debitors Heirs because it is presumable that the Debitor has destroy'd or Abstracted the Writs of the Lands Compris'd from him Quaritur Whether this Act should be extended to Adjudications since they are not mention'd here in the very next Act to the Act anent Adjudications THis Act allowing Bishops to Feu out their Ward-Lands is but Temporary for three years and so is expir'd because not renew'd and consequently Bishops have not leave to Feu out their Ward-lands now AS Ministers Gleibs were to be Tiend-free so ought the Soums Grass that is allow'd to Ministers in place of Gleibs be Tiend-free The Reason given by this Act is because the same is dedicated and appointed ad pios usus which is no adequat and sufficient Reason since Lands mortifi'd to Hospitals are destinat ad pios usus and yet are not Tiend-free that being a special priviledge only granted by the Pope to the Coelestines or Cistertians and some few other Orders but ordinarly Hospitals and others are free from Taxations as Act 1 and Act 15 Par. 1 Ch. 1. BY the 2 Act Par. 22 Ja. 6. Deans and Chapters were Restored but by this Act all the Offices and Dignities of the Chapter are likewise Restor'd and it is declar'd That all Deeds done since the date of that Act or to be done thereafter whereby any Member of a Cathedral Kirk being an Office or Dignitie hath or shall be supprest or any
Land Parsonage Vicarage or other Living belonging to the said Dignity dissolved from the same without express Warrand from His Majesty and Parliament shall be null For understanding this Act it is fit to know that in every Bishoprick there are several Dignities allow'd by the Canon Law by which Law the Word Dignity is either taken largely so as to comprehend all Ecclesiastical Dignities as in cap. denique dist 4. But properly it imports administrationem Ecclesiasticam cum honore vel jurisdictione conjunctam Glâ—ss in cap. 1. de consuetud in 6. and generally all such to whom the Cognition of Causes could be delegated were accounted Ecclesiastick Dignities cap. cum olim de offic legat There are in every Chapter and Bishoprick with us some of those Dignities but of a different Rank and Jurisdiction not only from those in the Canon Law but the Dignities in our own Bishopricks differ from one another though all of them agree in this that those Dignities which were appointed at the foundation of the Bishopricks continue to this day and the foundations are the Rule and are very different The ordinary Dignities common to all are the Dean the Arch-dean the Chanter the Chancellour and the Thesaurer The Office of the Dean has been fully Explain'd in the Act 2 Par. 22 Ja. 6. The Arch-deacon call'd improperly by us Arch-dean is the Archidiaconus of the Canon Law who though they be inferiour to Deans yet they are in effect the Bishops Vicar and have the Chief Jurisdiction next to him being in the Canon Law oculus Episcopi their Office in that Law was to examine such as were presented to the Bishop and to put them in possession of their Benefice after their admission as also to visit the Diocy every three year if the Bishop be not present and to oversee the Manners and Living of the Clergy The Chanter is in the Canon Law called Primicerius because he is first of the Order of the Singers and by the Greek Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his employment was to oversee such as sung and read in the Church and with us the Sub-chanter is a dignity called Succentor in the Canon Law and that likewise he was allow'd a dignity by the Canon Law is clear Innocent cap. 3. inter dilectos de excess prael The Chancellor was so called because he kept the Seal of the Church Cujac ad tit ut Eccles. bon sine diminut conserv he was likewise Superviser of the Bibliotheck of Schools and of these who taught the Clergy cap. penult ult de translat Epis. cap. veniens de reg trans ad monast In England the Chancellor is in effect a Church-Lawyer who judges for the Bishop through the whole Diocy and is universal Commissary whereas these only are called Commissars by that Law to whom the judging in particular Places or Cases is committed But with us the Chancellor is still a Church-man and the Province of Saint Andrews has its Chancellor as well as the special Bishopricks the Bishop of Edinburgh being the Chancellor of the Province of Saint Andrews The Thesaurer is he who did oversee the Thesaury and all things else belonging to the Church who in the forecited cap. cum olim is accounted to have Ecclesiastick Dignity It is observ'd by Bengeus de beneficiis Ecclesiasticis Renat Chopin and other Canonists that both the Jurisdiction and Precedency amongst those Dignities is now consuetudinary and alter'd much according to the custom of the several Places and it is so with us where they are regulated according to the special Foundations or Custom if these be wanting or lost THis Act is Explain'd in many other Acts concerning the priviledge of Burghs Royal. THis Act is formerly Explain'd in Act 47. Parl. 11. Ja. 6. BY this Act all playing at Cards or Dice in any Inn or Ale-house is discharg'd under the pain of fourty Pounds and all playing at Cards or Dice even in privat Houses is forbidden except where the Masters of the Families play and all playing at Cards and Dice even though the Master play and all Horse-Races are so far restrain'd that the Gainer cannot have Action for any thing he wins above an hundred Merks But yet it was found that the Loser is still lyable in payment and therefore the Kings Advocat was found to have interest to compear and crave the Money to be consign'd November 12. 1668. Park contra Somervel Where it was debated if this was vitium reale and might be taken from an Assigney though he knew not how the Money was dew for else this Act might be eluded by filling up the name of an Assigney By the Civil Law Tit. 43. lib. 3. l. 1. Cod. de aleatoribus he that is overcome at such Games is not oblig'd to pay and though he pay he or his heirs have repetition and by the Canon Law Church-men who use such Games cannot be promoted to Benefices cap. 11. de excess prelat but yet wagering seu sponsio was by that Law allowed l. 17. § ult ff de prescript verb. and so our Horse-races were not condemn'd by that Law though they are by ours for that Law did think that nullam turpitudinem continet in se spoâ— sio nam inde rixae oriri non solent but our Law did condemn Horse-Races because they occasion'd great Idleness and Expence This Act is still exactly observ'd but is not extended to other Wagers such as that Ships will arrive at such a day or in such a place which was not found to fall under this Act which speaks only of Cards Dice and Horse-Races it seems that this Act would not be extended to any other Game ex paritate rationis but yet I find that by the late Decisions of most Nations these are not sustain'd tanquam otiosi aleatorii contractus qui nihil in se continent praeter inanem animorum concertationem Stockman decis 134. Molin tract de usur quest 3. num 97. By the Civil Law likewise though wagering was allow'd yet where either of the Parties did certainly know the thing whereupon he wagered but conceal'd his knowledge as for instance if a man should wager that such a man should be dead before a year elapsed and that he knew him to be already dead the Law would not allow Action upon that Wager because in effect that were to cheat and accordingly our Courts in Scotland have most justly decided Wagers likewise upon the deaths of Princes are discharg'd as giving occasion of jealousie as also Wagers concerning the event of Publick Undertakings for the good of the Countrey such as the success of Arms c. and that lest men should be tempted either to wish the Armies of their native Country not to prosper or to reveal their Secrets to the end they may not prosper vid. Zipeum in not juris belli lib. 3. in fin there is such an Act as ours made by Lewis 13. of France amongst his Statutes cap. 138.
places without which the War cannot be mannag'd It having been controverted whether the Earl of Caithness might Garison one of his Castles without express Warrand from the Council they found he could not though it was alleadg'd that he was a stranger in Caithness and the Countrey was broken For this Act of Parliament having Discharg'd all Garisoning of Houses upon any pretext whatsomever if it should be allow'd upon such pretexts as this not only would the express Letter of the Law be overturn'd but all persons dissaffected might Garison upon this pretext whereas on the other hand there can be no inconveniency since the Council will allow liberty to Garison and if present danger do press the Heretor he may Garison his House for his own Defence till he obtain that Order THis Act annulling the Convention of Estates 1643. was unnecessary it being formerly annull'd by the third Act of this Parliament THis Act Declaring the League and Covenant null and the Discharging the Renewing thereof under the Highest perril seems unclear because of the indeterminatness of the punishment and seems unnecessary because by the fourth Act of this Parliament Subjects making Leagues amongst themselves or with Forraigners are guilty of Treason THis Act does in the first part Command all Jesuits Priestâ—â— and Traffiquing Papists not to say Mass and to remove forth of the Kingdom within a Month under the pain of Death whereupon it was doubted whether within that Month they could be punished with Death else this Month had not only been elusory but might have prov'd a snare since they might have thought that this Month was allow'd for preparing for their Departure and so they might have appear'd and gone about their Business in order thereto By the second part of this Act Children are ordain'd to be taken from Parents Tutors or Curators Popishly affected that they may be bred with well affected Protestants at the sight of His Majesties Privy Council which Act is renew'd by a Proclamation of Council in January 1679. THough the Parliament 1648. be here Ratifi'd yet it is thereafter abrogated by the general Act Rescissory which is the fifteenth Act of this Parliament that not having been resolv'd upon till after this was past The Parliament 1649. is by this Act absolutely Rescinded and that without a general salvo and though by the Act Rescissory there is a general salvo in favours of the Rights and privat Securities past in other Parliaments as is clear by the last words of the 15 Act yet there is none subjoyn'd to this Parliament That Parliament 1649. had taken from Patrons the power of presenting they having conceiv'd it most Antchristian that the Minister who was to care for Souls should be chosen by one man and oftimes by one who would never hear him but they reserv'd to the Patron the Right of Teinds without prejudice to the present Stipend and therefore that Act is hereby Rescinded and Patrons restor'd to the power of Presentation and though it cannot be deny'd but that the people had a share in the Elections as is clear by Saint Cyprians Epistles yet this was when they pay'd them and were themselves very judicious and dis-interested in the infancy of Christianity and before Patrons had by founding Churches the interest they have now and now the people are by an Edict cited to Declare what they know why such a man should not be chosen And in the Reform'd Churches of Germany as Carpz in his jus Consist Relates the people have vocationem from which the Presbyterians borrow'd their Word Call By this Act it is Declar'd That such Parsons and Ministers as are in present possession of Kirks belonging to Laick Patrons shall claim no Right nor Possession but what they had before the making of this Act they being otherwise sufficiently provided THis Act was unnecessary because these Parliaments are taken away in the general Act Rescissory THis Act appoints all Officers of State to take the Oath of Allegeance and to assert under their Hands all the former Royal Prerogatives but now the Council do put the same to all who are suspected and Fine or Banish such as refuse to take it because the Act having left to the Council to put this Oath to any and having nam'd no penalty the penalty is to be understood arbitrary But now all who are in publick Trust take the Test appointed by the 6 Act 3 Par. Ch. 2. THis Act Confirms all Judicial proceedings under the Usurpers except when they were quarrel'd within a year and this Act having appointed that within that time the Sentences of the Usurpers might be quarrell'd without Suspension or Reduction and the Writ by which they were quarrel'd was call'd a Review which was in effect a Reduction and was like both in the Name and Matter to that revisio allow'd by the Civil Law THe Usurpers having by the Example of our Rebellious Parliaments laid on an Excise upon Bear and Ale this Loyal Parliament did grant His Majesty 40000 pounds Sterling to be uplifted yearly out of the Custome and Excise in manner mentioned in the 14 Act But it has been much doubted whether it had not been better to have continued the Excise upon the Bear and Ale than to have laid it upon the Malt for now Brewers endeavour to take as many Pints out of the Boll of Malt as they can which hinders much the consumption of the Malt by making the Drink weak whereas if it had been laid upon the Drink they would have endeavoured to make the Drink strong And for which Excise the Commissioners of the respective Shires are lyable personally and they have their Relief off the Deficients the Goods of which Deficients are hereby to be poinded without carrying them to the Mercat Cross they being apprised at the next Paroch Church Door which is like the priviledge given to Ministers Stipends by the 21 Act of the 3 Sess. of this Parliament Though by this Act the Excise is laid upon the Retailer of Commodities yet by the 12 Act Par. 2 Ch. 2. The Importers are declar'd to be lyable for the same Excise AFter this Parliament had Rescinded some privat Parliaments they considered that all the Parliaments from the year 1640. till the year 1650. were but Branches of one and the same Rebellion and therefore they did annul them all by this Act which is call'd The Act Rescissory But privat parties Rights obtain'd in these Parliaments are salved In this Act it is acknowledg'd by the Parliament That our Kings hold their Crowns immediatly from God Almighty which was done to exclude that Rebellious Republican and Sectarian Principle That our Kings deriv'd their Power from the People for if so then the people might call them to an accompt Depose or Suspend them and our very Stiles which acknowledge our Kings to be by the Grace of God does convince us that they are not Kings by the people and therefore Argentorat
though the person against whom the Comprising was led was dead and the sixty dayes were expir'd and found that notwithstanding thereof it should be prefer'd to a Comprising whereof the allowance was Registrated after its Registration Observ. 2. That by this Act a Comprysing is not declar'd null for not being allow'd and so was not excluded by a posterior apprysing first allow'd but both were brought in pari passu which last part of the Decision may seem strange since it is expresly declar'd by this Act that the not allowance shall be with Certification that a posterior Comprising first allow'd shall be prefer'd according to the date of the allowance November 29. 1672. Maxton contra Cunninghame and so they could not come in pari passu But the reason of this Decision must be that by the posterior Act 62. of this same Parliament all Comprysings led within year and day of others are ordain'd to be brought in pari passu and these Comprisings have been led within year and day though the Decision mention not this And this I find decided July 17. 1668. Stuart contra Murray Observ. 3. That if the Appryser has obtain'd Infeftment without allowance he will be prefer'd because as I think his Infeftment being Registrated in that case supplies the not Registration of his allowance and Certiorats singular Successors sufficiently Observ. 4 This Act Narrats that it was ordain'd formerly by Act of Secret Council that the whole Comprisings and not a Breviat should be Registrated Which not being authoriz'd by any Law or Act of Parliament is therefore Discharg'd from which it appears that the Secret Council use not only to make Acts relating to Government or to regular prices of Writs as appears by the 19 Act 23 Par. Ja. 6. Or to discharge Bakers and Candle-makers to keep their Broom-stacks or Melting-houses within Towns as in the 29 Act 23 Par. Ja. 6. But even to make Acts relating to Registration and Competition of Writs which though the Parliament does here openly condemn yet tacitly this Act declares their Act was no Law and they could less have made such an Act than the Lords could have made an Act of Sederunt ordaining Seasins within Burgh to be Registrated which they found only the Parliament could do and it is observable also that this Act of Council did therefore soon run in Desuetude and the Parliament confirms the contrary Custom Observ. 5. This Act Narrats that by a Custom allowances of Apprysings did contain and express the Names and Designations of the Apprysers the Names of the Defenders whereas it should have said Debitors though the Debitor be a Defender in the Comprysing which is a Decreet the Debts for which the Comprising is Deduc'd the Messengers and the Clerks names the Date of the Executions the Witnesses names thereto and the Superiours names which Custom being authoriz'd by this Act it may be doubted if the omiting any of these particulars in the Registrated allowance would annul the same since the Act does not subjoyn an irritancy THe difference concerning Heretable and Moveable Bonds is fully Explain'd in my Institut Part 2. tit 2. BY this Act these who Marry themselves Clandestinly or inorderly are to be imprison'd for three Moneths and beside to pay each Nobleman a Thousand Pounds each Baron and Landed Gentleman a Thousand Merks each Gentleman and Burges five hundred Pounds each other person an hundred merks Observ. 1. The want of the Parents consent or of the consent of others having interest seems by the Narrative to infer the Clandestinness of the Marriage But yet by our practique Children Marrying without the consent of their Parents if they be of age and the Marriage otherwise regular they are not punishable wherein we seem to agree rather with the Counsel of Trent than either with the Law of God Exod. 22. and 17. Numb 30 Deut. 7.3 Or the Civil Law Institut de nuptiis l. 2. ff de Ritu nupt Observ. 2. That it may be doubted whether since this Act appoints no punishment to Women if a Noble-woman being an Heretrix Marry a Gentleman Disorderly she may be punish'd as a Noble-woman or he only as a Gentleman and I think she should be punisht as a Noble-woman having precedency as such Observ. 3. That it has been doubted if an Expectant having power to Preach and being appointed a Presbyter but having no settled Kirk and Marrying persons the Marriage can be punished Or if such as Marry by a lawful Minister of another Paroch without Warrand either from the Bishop or the Minister of their own Paroch may be punished by this Act. Observ. 4. By the 9 Act Sess. 3 Par. 2. Ch. 2. Such as enter into these Disorderly Marriages lose their jus mariti or jus relictae by and attour the penalties here express'd Observ. 5. That the Marrying in England or Ireland without proclamation of Bonds in Scotland and against the Order observ'd in this Church infers the former Fines but the Marrying without proclamation of Bonds is not per se sufficient and therefore if there be a Dispensation from the Bishop Quaer if the Marriage is not Clandestine and it seems it is not for the Bishop may be mis-inform'd as if the Woman wanted parents And by the Narrative of this Act the want of the parents consent is made an impediment as well as the having granted a prior promise to another and therefore as the Bishops Warrand should not defend in the one case so neither should it in the other but it is still periâ—ulo petentis else Bishops should innocently become the Instruments of Robbing us of our Children and Estates and of taking them away in such manner as that parents can neither see their Daughters provided to competent Jointures by the Husband nor the Husbands who Marry them sufficiently provided by the Father in Law Quaer 2. Whether is the consent of the Mother necessary when the Father is Dead and I conceive it is especially when she is intrusted by the Father and the Child stays with her for though the Daughter be not in potestate materna yet she is a Parent and this Act requires the consent of Parents and the Instituts tell us that naturalis civilis ratio requirit consensum parentum nor can it be deny'd but the Mother has an equal natural Relation and by this Interest Law incourages and rewards the Mothers pains Quaer 3. What if the parents refuse reasonable offers and yet the Child is Marriageable To which it is answer'd That the consent should be first askt and why they refuse that the Judge may when the parent thereafter complains consider if the parent was culpable in refusing his consent Quaer 4. If the being Married by their own Minister without proclamation or Dispensation from the Bishop be sufficient and though the Minister have a Warrand from the Bishop Yet by Act of Synod he is discharged to Marry in a privat House except the Warrand dispense therewith
THis Act Discharges the Custom of two and a half per cent and all raising of His Majesties Customs directly or indirectly without consent of Parliament and so though by the 27 Act of the 3 Sess. of this Parliament asserting His Majesties Royal Prerogative in the Ordering of Trade with Forraigners It seems that His Majesty may lay what Restraints and Impositions He pleases upon Forraign Imported Commodities and as He pleases yet it seems the Customs by this Act cannot be rais'd for though that Act be posteriour yet this is special and is not particularly abrogated albeit by that Act all Acts and Statutes contrary to that Act are abrogated By this Act likewise His Majesty Discharges the taking Masters Merchants and Mariners Oaths in the matters of Customs but since their Oaths are taken in the matters of Excise this priviledge signifies nothing Vide Observations on the Act 12 Par. 2. Ch. 2. THis Act is Explain'd in the Observations upon the 18 Act Par. 1. Ch. 1. THis Act allows any of His Majesties ordinary Officers to whose Charge the same belongs to Docquet signatures and by ordinary Officers I think are only mean'd Officers of State and this was formerly Established by the 20 Act Par. 10. Ja. 6. But by this Act is added That these who do Docquet shall send a double of the Docquet to the Secretary to be Registrated But yet the Deed is not annull'd though this be omitted and therefore the Deed I think would subsist but the Omitters would be punish'd The Reason why a double is to be Registrated is because by this His Majesty may know what is formerly granted which will prevent double Gifts of the same thing THis Act is formerly Explain'd in the former Commissions for Plantation of Kirks viz. Ja. 6 P. 22 Act 3 Ch. 1 P. 1 Acts 8 19. THis Act for the most part is but Temporary and was made to give some ease to the poor Debitor whose Lands had been so wasted and burdened in the late Rebellion that he could neither pay Annualrent nor Redeem Comprisings or Wodsets as formerly being founded upon the same Reason by which the novae tabula were Introduced in Rome by Julius Caesar after the Civil Wars betwixt Pompey and him But the chief things observable in it are first That the Legal Reversion of all Comprisings to be led or that were led since January 1652. whereof the Legals are Expired and all Comprisings whereof the Legals were not expired before that Moneth shall endure for ten years and though it might have been pretended that this Act does not prorogat the Reversion but only makes the Lands to be Redeemable and so the Rents of the last three years above the seven which was the ordinary Legal was not to be Restored but that the Compriser had Right to them as fructus bona fide percepti consumpti Yet the Lords found that the Compriser was countable for his Intromission even for these three years since in effect these three years are added to the Reversion and so the Compryser is lyable for these three years as he would have been for the other seven January 20. 1666. Clapperton contra Torsonce Albeit by our former Law the Compriser could have possess'd the whole â—ents of the Comprised Lands during the Legal Yet in respect the Rents do often exceed very far the Annualrents Therefore by this Law allowance is given to the Lords of Session to Restrict the Compriser to such part of the Land as will pay him the annualrent of his Sum and Expense The Debitor from whom the Lands were Comprised Ratifying the Apprysers Possession of the rest but it is still to be remembred that after the Legal is expired the Compryser has undoubted Right and cannot be limited Upon this Clause of the Act the Lords upon the 27 of June 1662. Restricted Wilson who had Comprised Sir William Murays Estate to medle with any part of the Estate Comprys'd that he pleas'd esseâ—ring to eight per cent he counting for the superplus above this annualrent and for the publick burdens but thereafter in February 1684. in a case betwixt Wilson and Sir Alexander Hume It was contended that this Clause was a part of the Temporary Regulation past in favours only of such Debitors as had taken the benefit of this Act by payment of their annualrents and was only ill plac'd here amongst the Clauses relating in general to Comprysings for it was against the whole current of our Laws that during the Legal the Creditor who was forc'd to want his Money should be forc'd during the long legal of ten years to accept of naked annualrent especially seing oft-times they got Land at last that they could not nor car'd not for the Possession of it Nor would this ever spur and excite Creditors to pay the sums Comprys'd for and this was a very universal prejudice most part of Rights being now founded on Comprysings and the Practique being single and not upon Debate was not to be respected To which it was answered That the Clause was oppon'd and it was dangerous to alleadge that Clauses were Transplac'd by mistake nor could any thing Gloss a Law better than a Decision past so Recently after the Act made at the making of which Decision many eminent persons were present who had been the very Penners of the Act and the Restriction was most reasonable for since great Estates were to be carry'd away by Comprisings for small sums it wast just that till the Comprising expir'd the poor Debitor should be favour'd Nor was the Creditor a loser since a Comprysing being a legal Pledge only for his Money he got the Annualrent duly pay'd him and a Ratification of his Possession even during the Legal and if his Money was not pay'd cum omni causa with annualrent for his very Expense he got the whole Land though the sum were never so small upon which Debate the Lordâ— adher'd to the former Decision though it seems very strange to the best Lawyers The Lords likewise found upon the 28 of July 1671. That this Power granted to them was only in favours of the Debitor from whom the Lands were Comprysed and could not be extended in favours of posteriour Comprysers who could not upon this Clause crave that the first Compryser should be restricted to his Annualrent for the priviledge is granted to the first Compryser in contemplation of his being oblig'd to Ratifie Nor are the second Comprysers prejudged by the first Comprysers Possession since it will extinguish his Comprysing pro tanto and make way for them By this Act also all Comprysings led since the first of January 1652. before the first effectual Compryser or after but within year and day of the same shall come in pari passu as if one Comprysing had been led for all the Sums Upon which Clause it is observable 1. That Comprysings led since 1652. come not in with Comprysings led before that year though
within year and day thereof December 12. 1666. Hume contra Hume For clearing this and all other Acts of Parliament which appoint Diligences to be done within year and day It is fit to know that the year is the time design'd by these Acts and the day is adjected only ad majorem evidentiam and therefore dies ille inceptus pro completo habetur February 25 1680. Weddel contra Salmond Where the Husband was found to have the Tocher though the Wife liv'd not the intire day following the year but died in the morning of that adjected day Observ. 2. That the first effectual Comprysing is interpreted to be a Decreet of Apprysing whereupon Infeftment follows and therefore if the second Comprysing be led within year and day after Infeftment was taken upon the first it will not come in pari passu with it except it be within year and day of the Decreet of Apprysing for the first Comprysing was expir'd and so the next Creditor could Comprise nothing so that his Comprising could not come in pari passu Which was so decided Albeit it was alleadg'd that by this Act all Comprysings led within year and day are fictione juris to be repute as if one and the same Comprysing had been led for all the sums contained in all these Comprysings quo casu one of the Creditors Rights could not have expired in prejudice of another and in effect this year is a new Prorogation of the Legal quoad that Con-creditor who has led his Comprysing within year and day of the other July 4. 1671. Laird of Balsour contra Dowglas Upon this Clause it was also Debated very subtilly whether an Infeftment of Annualrent having interveen'd betwixt a prior Comprysing and other posterior Apprysings could be prefer'd to the posterior Apprysings for all these Comprysings having been led within year and day It was alleadg'd that by this Statute they behoved to come in pari passu as if one Comprysing had been led for all and therefore since the first was preferable to the Infeftment of Annualrent so should the rest though posterior to it But to this it being answered that the meaning of the Act was That Comprysings led within year and day should come in pari passu only in competition with one another but that Infeftments of Annualrents or other Rights could not be postpon'd to posterior Rights for which Annualrents if the Creditor had Compris'd he had been prefer'd The Lords brought them all in pari passu the matter being dubious and the doubt arising on the unclearness of a new Statute February 6. 1673 Brown of Colstoun contra Nicolas which shews what 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Lords have and what is done for clearing of new Statutes Observ. 3. That this Computation is only to be made with respect to the first effectual Comprising and therefore though it be extinguished by Discharge or Intromission Yet the third Compriser will not upon this Act of Parliament come in pari passu with the second upon pretence that the second becomes first by extinguishing the first Comprysing Decemb. 13. 1672. Street contra the Earl of Northesk Obser. 4. That this Act of Parliament being Correctory of a former Law was found not to be drawn back so as to make such as intrometted prior to that Act oblig'd to Communicat their Intromissions before the Act though their Comprysings were led within year and day the Intrometter having been bona fide possessor January 7. 1665. Grahame contra Brown But yet some think that after the Act 〈◊〉 first Compryser will be lyable for his Intromissions and to Communicat them with a second Compryser Comprysing within year and day from the very date of the second Comprysing and not from the Date of a Citation only for though it may be alleadg'd that before a Citation a second Compryser is bona fide possessor and is not oblig'd to know that there was a second Comprising or whether he was pay'd aliunde Yet to this it may be answered that by this Act the first Compryser is to count as if the same Comprysing had been led for both the Debts quo casu Intromissions would have been Communicated even before Citation and by the foresaid Decision The Lords found that bona fides Defended only as to Intromissions prior to the Act Ergo it did not Defend as to Intromissions subsequent to the Act. Observ. 5. That this Clause of the Act is somewhat innovated by the 22 Act Sess. 3. of this Parliament whereby in favours of those posterior Comprisers who bought in the first Comprising to prevent its expiration It is Declar'd That the first Comprising so standing in their person shall not be brought in pari passu with other Comprysings though led within year and day But it being doubted whether that Act of Parliament should only secure such as were necessitated to buy in the first Comprysing Because that seems to be the Design of the Legislator Yet the Lords extended it to all Comprisings so bought in the Statutory words being general December 9. 1664. Veatch contra Williamson Observ. 6. That since posterior Comprysers were brought in pari passu with the first Compryser It was justly ordered by this Act That the first Compryser should be pay'd of his Expenses by the posterior Comprysers which was found to extend to all the Expenses laid out by the first Compryser who is to contribute no part thereof himself that being all he has in recompense of their coming in pari passu But quaritur whether if one of these Comprysers were only pursuing to come in if he would be oblig'd to pay all the Expence or pro rata off his sums And I think he would be oblig'd to pay all reserving his Relief It is likewise doubted whether one of many Comprysers coming so in will have Right to any more than proportionally to his sums all the rest remaining with the first Compryser till the rest of the Comprysers seek to come in or if that Compryser will force the first compryser to divide with him according to the proportion of their two sums only without respect to the other Comprysers till they come in Observ. 7. That Comprysings led for real Debts and debita fundi remain as formerly so that Comprysings led within year and day come not in pari passu with Comprysings led upon these real Debts such as Ground-annuals Annualrents due upon Infeftments or sums whereupon Inhibition was rais'd for clearing whereof it is fit to know that debita fundi are either when Lands are burdened by an express Act of Parliament which makes the burden real and to affect the Ground against singular Successors Or 2. What is pay'd to a Superior as a part of his Reddendo are likewise debita fundi and do in like manner affect the Land Observ. 8. That though Adjudications and Comprysings have generally the same priviledges Yet where Adjudications are not led for liquid sums but are granted by the Lords for
for the Act runs disjunctively Writing Preaching Praying or advis'd and malicious Speaking THis is the first Act whereby Conventicles are Discharg'd and in it they are call'd Nurseries of Sedition But yet there is no penal Sanction against them in this Act but by the 2 Act of the 3 Sess. of this Parliament they are Declar'd to be fineable in a fourth part of the yearly Rent every Burgess being to lose the priviledge of his Burges-ship and Merchandizing beside the payment of a fourth part of his Moveables Observ. 1. I see by this Act no Fine impos'd upon such as live within Burgh and are not Burgesses Observ. 2. By this Act it is requir'd That before with-drawers from publick Ordinances be punish'd they must be first admonisht by the Minister before two Witnesses which is not observ'd Observ. 3. The Council are empower'd by this Act to impose such arbitrary punishment as they please upon With-drawers But it is thought that such general powers cannot extend to Life nor Limb. Observ. 4. That these Acts are only to last for three years and are by the 5 Act of the 2 Sess. of the next Parliament continu'd for other three years and further if His Majesty pleases so that it is in His Majesties Power to Discharge these Acts when He pleases By the Laws of the twelve Tables privat and clandestine Meetings under pretext of Religion were Discharg'd and the word Conventiculâ— is oft mention'd in the Civil Law l. 1. 3. ff de collegiis illicitis Plin. lib. 10. Complains of them as the Pest of the Empire In these Words Haec tempora serio docent magna monstra talibus parentibus alii nec quicquam in tota re-publica magis esse perniâ—iosum vid. de crimine conventicula Farin quaest 113. inspect 4. There is a Proclamation extant in the Registers of Council in King James the sixths Reign Declaring all privat Convocations without the King's consent and particularly Conventicles which is the first time I see them nam'd in our Law to be punishable as Treason For collegia conventicula permittere valde quidem est regale Argen art 56. num 37. THis Act appoints the Declaration thereto subjoyn'd acknowledging the League and Covenant to have been unlawfully impos'd and not to have been Obligator c. To be taken by all persons in publick Trust or Office under His Majesty and which seems to be very strange all Members of the Colledge of Justice are declar'd to fall under this general and such as offer to exerce before they take the Declaration are Declared to be punishable as Vsurpers of His Majesties Authority and this punishment is de facto arbitrary and is impos'd by the Privy Council This Act is extended to Baillies of Regality by the second Act of the 3 Sess. of this Parliament and by a Decision of the Council both these Acts are extended to Baillies in Burghs of Barony though they be exprest in neither of these Acts and that because of these words in this Act and all who enjoy any other publick Charge Office or Trust within the Kingdom which is as all general Clauses ought to be extended to particulars that are of the same nature with these to which the general Clause is subjoyn'd and there was as great reason to extend this to Baillies of Burghs of Barony as to Baillies of Burghs of Regality By that Act also such as refuse to accept Offices within Burgh are punishable by losing their Burgesship and they may be also compell'd to accept though the Act mentions not this expresly for by the Common Law cives cogi possunt ad suscipiendum munera reipublicae l. ss de decurio But with us they cannot be oblig'd to continue longer than a year January 2. 1668. Wilson contra Magistrats of Queensferry Though this Act of Parliament obliges all who are Privy Counsellors c. to take the Oath of Allegiance and this Declaration Yet His Majesty by a Letter to the Council in November 1679. Declares that the lawful Sons and Brothers of the present King are oblig'd to take no Oathes because of their presumed Fidelity and that Loyalty is their Interest as well as Duty and upon this Ground it seems to be that His Royal Higâ—ness had not formerly taken these Oaths as Admiral We see likewise that both the Sons and Brothers of Kings are Serv'd not as Subjects but as the King Himself and though they be Dukes or Earls yet they take not place as other Subjects but as the Sons and Brothers of the Royal Family and thus the Sons of Kings were call'd adminicula augusti subsidia dominationis and in St. Matthew St. Peter affirms that the Sons of Kings are exempt from Tribâ—t nor are they in France ever Subjected to any corporal punishment or put to Death vid. Le Bret. Tit. des enfans freres du Roy leur Praerogatives And they are exempted by the Parliament 1681. from taking the Test. THis excellent Act does appoint all Sheriffs and Justices of Peace to assist such as are Robbed or Opprest in taking back their Goods immediatly upon intimation and to restore them within fifteen days or otherwise to be lyable but the word immediatly does restrict the Act so as that Sheriffs are not thereby empowered after a long interval to bring back Goods or make such Intimations or raise the people for concurrence and therefore the Gentlemen of Caithness were found lyable in a Spuilzie for Robbing and away taking an Heirship out of Strathnaver though they alleadg'd that they were Convocated and Commanded by the Earl Caithness so to do he being Sheriff and Justice General and they conceiv'd that they might have been punishable if they had disobey'd which Defence was Repell'd because though that Convocation was since this Act yet so long a time having interveen'd the Sheriff could only have proceeded via ordinaria It may be doubted from this Act whether when any man complains of Oppression as that a Robber or Neighbour sits violently down upon his Land The Sheriff and Countrey are not oblig'd to concur by this Act since the Act seems to be restricted to the way of taking of Goods though it speaks generally of oppression and I think they are lyable in the one case as well as in the other and this case being a permanent Act is more easily redress'd By this Act likewise the Heretors Wodsetters and Feuars within the Paroch where the Goods are found to have been Disposed or sparpelled are declar'd lyable for the value of the Goods but from the context of the Act it is clear that they are only lyable subsidiarly in case the Goods cannot be otherwise recover'd The words Wodsetters and Feuars needed not to have been subjoyn'd to Heretors for both these are Heretors But it seems to have been more necessary to have added Liferenters since it was just that men who are Liferenters should be lyable for a Father may put his Son who is minor
in Fee and reserve the whole Liferent to himself or a person of quality may Marry one who Liferents the whole Paroch and so this Remedy becomes ineffectual because the Act mentions not Liferenters and in such cases Liferenters are found not to be comprehended November 14. 1679. Minister of Morum contra the Lady Beanstoun By this Act such as Kill Slay Hurt or Mutilat the away-takers or their associats in prosecution of their Goods are Indemnified Observ. That all who kill in such pursuits are not Indemnifi'd but such only whose Goods are taken or who are oblig'd to rise for else such as had privat Grudge might upon that Grudge follow and kill but yet it seems just that if men were desir'd though not oblig'd or if Gentle-men being in the House when Robbed should pursue and kill that they should also be indemnifi'd This Act is generally so well conceiv'd that if it were well prosecuted as that it alone might settle the Highlands THis Revocation seems to be very ill conceiv'd for it had forgot the Lands of the Principality which are still comprehended under all other Revocations and therefore the Parliament thought fit to add this to the Revocation and if this be valid there needs no Revocation under the Kings Hand but an Act of Parliament shall be sufficient without a Revocation It is likewise observable from this Act that the Parliament qualifies the Kings Revocation in sua far at His Majestie Revocks all Deeds done by His Father by Declaring that such only are Revocked as were made against the Laws standing in force before the Year 1637. For otherwise all Deeds done by the late King might have been challeng'd upon that Head of vis metus exprest in this Revocation but however Acts extorted vi majori either from King or Subject are null ipso jure by the Common Law without any special Revocation but Revocations are naturally only extended to Deeds done in Minority but not to Deeds extorted vi majore though this Revocation comprehends both WHen the Clergy submitted their Rights to the King both the Submission and Decreet Arbitral provides that the Bishops and others of the Clergie should enjoy the Fruits and Rents of their Benefices as they were Possessed by them the time of the Submission and therefore by this Act it is Ordain'd That any Valuations of â—einds whereof the Bishops and other Benefic'd Persons were in Possession either by Leading Drawing or Rental-bolls since the year 1637. should be null and yet this Priviledge is meerly personal in favours of Church-men for by a Missive Letter from King Charles the First the 9 of May 1634. It is Declar'd that this Favour shall not be extended to the Tacks-men of Bishops and other Church-men they being Laicks but that during these Tacks the Heretor may lead he finding Caution and accordingly a Valuation was sustain'd to James Hamilton of the Lands of Hetherwick against the Earl of Roxburgh the Bishops Tacks-man of the Tiends of these Lands though it was alleadg'd there that the Submission and Decreet Arbitral having no such quality but the Tiends whereof they were in possession being absolutely reserv'd no posterior Letter could have prejudg'd them and it was a great prejudice to them to have their Tiends valu'd during the Tacks for this could not but lessen the Tack-duty and the Grassoums In this Cause it was likewise doubted what way these Tiends should be valued during the Tack GOvernment belongs to the King and Property to the People Yet since the publick Interest must over-rule the privat all being still preferable to any one Therefore Government does so far Influence Property that all Lawyers are of opinion that the Prince may for a just Cause invert or take away Property res privatorum auferre jus alteri quaesitum tollere and thus we see that the King may make a Cittadale upon any mans Ground paying the just price c. And sometimes he may throw down the Houses of Suburbs when there is either actual War or fear of War in which Towns may be besieg'd so that He is the sole Judge of this justa causa by which Property may be inverted and amongst other just Causes one is the procuring of Peace amongst the Subjects for procuring whereof the Prince may remit both the Civil and Criminal Reparations due to Subjects that are wrong'd during the time of the War Gail lib. 2. observ 56 57. But with us general Indemnities are ordinarly granted in Parliaments wherein certainly all privat interests may be Discharg'd because every privat man is presum'd therein to be represented and this Act of Indemnity is one of the most full and formal that ever we had and in it all such are Indemnifi'd as acted by vertue of the publick pretended authority of these times and though an order be necessary to be produc'd in cases where Orders use to be given yet the benefit of this Indemnity was extended to such as were in Arms though they could prove no Orders since Souldiers use to get no written Orders except it were offered to be proven by their Oaths that they had no Order or that they converted the Goods pursu'd for to their own privat use February 15. 1666. Murask contra Gordon and that any promises made to restore such Goods did not bind after the Act of Indemnity though it was alleadg'd that the promise did Innovat the Debt from a military to an ordinary Debt because the Lords thought that that promise might have been given and emitted upon the Supposition that the Souldier thought himself lyable before the Indemnity and therefore the Lords found him not lyable notwithstanding of the promise except it could have been prov'n that he apply'd the Goods to his own use or that he wanted a warrant Sometimes also the King does by His Proclamation grant general Indemnities as He did in 1666 and 1679. to the Western Rebels but in this case it was controverted whether such as had Robbed privat mens Horses were lyable in Restitution notwithstanding of that Indemnity and it was urg'd that they were Because 1. What ever might be alleadg'd where the King had once acknowledg'd Rebellion to be a pretended Authority speâ—iem belli by exchanging of Prisoners and making of Truces with them c. Yet here there was not even those pretexts and so they were only to be considered as a Company of privat Robbers 2. Even this Act Indemnifies only such as acted by vertue of pretended authority Therefore since even the Parliament did not Indemnifie such privat Robbers much less should they be secur'd by Proclamations 3. Whatever an Act of Parliament might do because all persons injur'd were therein represented Yet those Proclamations were but general Remissions and no Remission could prejudge the Party injur'd of his Reparation and Assythment 4. This would incourage all Rogues to be Rebels that they might robb and thereafter be enriched by an Indemnity Whereas on the other hand it
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 Neighbouâ—ing Ministers are to be fin'd iâ— 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
Clause is here added to this Act and is not in the 4 Act 1 Par. Ch. 1. THis Act is Explained in the Observation on the 8 Act 1 Par. Ja. 6. but more fully in my Jus Regium Cap. The Right of Succession Defended and it is remarkable that it was past without a contrary Vote or the least Objection only most thought it so just that it was unnecessary and really it had been so if some in England had not controverted it THis Act Discharges â—ree-quarter and Localities but because some pretended that by this Act they were free from all necessity of carying Corn or Strae or Grass whereas if this were true the Souldiers Horses had been made unfit for Service by such Carriages and the Troopers and Dragoons might have been easily Murther'd whilest they went out singly to bring it in therefore by Act of Council this is fully regulated THere having been a full Debate before His Majesty how far Masters were answerable for their Tennents the Parliament to prevent the like for the future made this Act being fully convinc'd that Masters in Scotland could command their Tennents and Servants suitable whereto there are many old Statutes Commanding Masters to present them and finding that without this the Peace could not be secured and upon the event it is found that this has secur'd the Peace for Tennents and Servants knowing that their Masters would find out their Crimes which Sheriffs and others could not know and that they could not get Service or Land any where If they were disorderly they have conformed and this hath Restor'd Masters to the just Influence which our Predecessors had over their Tennents and Servants and which they lost by their Fanaticism by which they came to depend only on their Ministers and minding more Conventicles than their Work and in which extravagancy they were so far advanc'd that they would not see themselves till they were secur'd that they should be allow'd to go to these nor is the Master ty'd by this Act to any hard thing since by presenting them to Justice or by putting them out of his Land or out of his service he is free from all danger and this is in his power as also to secure him yet further it is Declar'd that he may break their Tacks and that if any Master take them who are put away he shall be lyable unto three years Duty It having been also Debated before the King that there could be no Deputs nam'd for putting the Laws against Ecclesiastick Disorders to execution within the bounds of Heretable Judges therefore His Majesties Power is Declar'd as to this Point by the Clause of this Act but this is now unnecessary because by the 18 Act of this Parliament His Majesties cumulative Power is Declar'd as to all points IT is very observable that the longer the World lasts Probation by Witnesses-lessens alwise in esteem because men grow alwise more Wicked In our Saviours time out of the mouth of two or three Witnesses every word was to be established Thereafter by our Law and by the Laws of other Nations nothing above an hundred pounds could be proven by Witnesses And albeit of old the affixing of a Seal was probative without a Subscription or Witnesses but as by former Acts the Subscriptions of Parties is Declar'd requisit So though formerly the Designing the Witnesses was sufficient although they did not Subscrive Yet by this Act no Writ is Declar'd Probative except the Witnesses Subscrive and without their Subscriving the Writ is Declared null But the Act of Parliament does not condescend whether this nullity shall be receivable by way of exception Or if it must require a Reduction But I conceive it must be null by way of exception since the Law hath Declar'd such Papers null and the want of Witnesses appears by production of the Paper it self The second thing Established by this Act is that no Witnesse shall sign as a Witness to any Parties Subscription except he know the Party and saw him subscrive or saw or heard him give warrand to the Nottar or touch the Pen The occasion of which part of the Act was among other remarkable Cases that a Gentlewoman pretending that she could not Write before so many Company desir'd to sign the Paper in her own Chamber whereupon she got the Paper with her and at her return brought it back subscriv'd and she thereafter rais'd a Reduction of the same Paper as not truly sign'd by her and though this should hardly have been sustainable at her own instance because she was heard to own it by the subscriving witnesses and the whole company yet this exception of dole could not have secluded her Heirs or Executors from reducing it as said is If witnesses without seeing a party subscrive or giving warrand to subscrive shal subscrive as witnesses they are declared to be punishable as accessory to Forgery which quality some think was added to seclude the punishment of Death it being as may be pretended too severe to punish by Death that which is the effect of meer negligence and unto which very many fall through negligence yet our Law knows no difference betwixt accessories and principals further than ex gratia accessories may sometimes find a mitigation of the punishment I conceive also that a party signing as Witness without seeing the Paper subscriv'd should be lyable to a third party who got assignation to that Paper in Damnage and Interest if it be Reduced ex eo capite since he was a loser by his negligence But quid juris 1. If the party himself to whom the Paper was granted were pursuing such an action for Damnage and Interest since he should have considered his own security and the Witnesses might have trusted to his exactness 2. Quid juris if the Witness heard Command given to one of the Nottars since the Act says That unless they heard him give Warrand to a Notar or Notars and touch the Notars Pen and yet even in that case the Paper may be null because there was not a Command given to both the Notars and a third party may thereby lose his Right 3. It may be doubted if upon a Notars asking if the party will warrand him to subscrive the party do give a Nod whether that Nod will be equivalent to a Warrand and free the Witness who thereupon subscrived as Witness And it seems it should for the Act says except he saw or heard him give Command and a man cannot see a Warrand otherways than by a Nod and nutus was sufficient by the Civil Law to infer a Mandat The third point in the Act is that albeit in all Forraign Nations the Subscription of a Notar proves in all Obligations for there the Notar keeps the Paper sign'd by the Party and gives only a Duplicat sign'd by him and albeit in our Law a Notars Subscription did prove in all Instruments such as Seasins Intimations c. If the Witnesses were
insert and design'd though they did not at all subscrive yet by this Act the Witnesses must likewise subscrive which is another argument to prove how much the Faith to be given to men is now lessen'd But it is fit to observe that other Instruments taken by Notars continue in the former condition and need no subscriving Witnesses though for cautiousness all Witnesses in any Instrument do now Subscrive Nota That the Civil Law call'd all Obligations Instruments but we call only Acts of Notars Instruments The fourth Point in this Act is That all Executions of Messengers upon Inhibitions Interdictions Hornings or Arrestments shall be null if they be not subscriv'd by Witnesses and these were exprest because they are Executions of great Importance and yet it seems that Executions of Comprisings and Adjudications are of as great Importance as any of these and yet it is not requir'd by this Act that Executions of Comprisings and Adjudications should have subscriving Witnesses and a Reduction being raised of the Execution of a Comprising because there being but two Witnesses exprest in the Execution one whereof did expresly deny that ever he was witness in such an Execution and so the same became null as wanting two Witnesses To this it was answered that the Deposition of a Witness denying that he was present upon the Land the time of the Execution was not sufficient to destroy an Heretable Right of so great importance as this Comprising was for this Deposition after so long a time could amount to no more than a non memini and the reason whereupon this Statute is founded appears by the Narrative to be because the Witnesses may by their forgetfulness easily disown their being Witnesses and many men are apt to forget such Circumstances and to deny that ever they have been in such a Place or House until the same be brought back to their memory by other very remarkable Circumstances which could not be done here because the Messenger and the other Witnesses were both Dead 2. The Deposition of one Witness denying his being present should not infer a nullity of the Comprissing since the loss of the whole Executions would not infer the same after so long a time as has been frequently decided 3. If this were allow'd it should be in the power of every single Witness in an Execution of a Comprising or Adjudication which are now the Foundations of the most of our Rights to destroy and overturn the same for Money or Prejudice 4. No singular Successor buying a Comprising could be secur'd and if these Executions had been thought of such importance this Statute had required subscriving Witnesses For a Comprising is of far more consequence than an Arrestment The one relating to an Heretablâ— the other to an Moveable and very Temporary Right 5. No man could with a sufficient causa scientiae Depone that he was not upon the Ground of the Lands of such a Barony except he knew every bit of the March of the Barony for that Execution might have been used upon the very remotest corner of it The last Branch of this Act is that no Execution whatsoever shall be sufficient to interrupt the Prescription of Heretable Rights unless the same have subscriving Witnesses and by this we see what Care our Law has taken to preserve Prescriptions and for the same reason it is appointed by the 10 Act 2 Par. Ch. 2. That all Citations that shall be made use of for Interruptions shall be renew'd every seven year and because of this Clause in the Act it is advisable that all Executions in Adjudications Comprisings Molestations and generally in all Actions relating to real Rights have Subscriving Witnesses though these be not Exprest because they may be made use of as interruptions in other cases vid. observ on the said Act. THis Act concerning the Test is so exactly and universally known and all objections against it have been so fully clear'd that it is unnecessary to Write any Observation upon it BY the 2 Act of the 1 Par. Ch. 2. It is Declar'd that the nomination of the Senators of the Colledge of Justice did ever belong to the King And His Majesty and His Predecessors have ever been in use of appointing the times in which they should sit and Judge for him and therefore His Majesties Royal Brother finding that many Members of Parliament inclin'd to want the Summer Session he allow'd the Overture to be brought into the Articles It was likewise propos'd That there might be one Moneth allow'd for the Summer and four only for the Winter for which it was urg'd that this would save all the inconveniencies that could be adduc'd against the Summer Session since therein Causes that could not well admit of delay such as Suspensions Removings Actions upon Bills of Exchange c. might be discuss'd but this was Rejected by Vote of both Articles and Parliament as tending to as much Trouble and Expense as the Summer Session it self without any considerable advantage For the Leiges behov'd to attend from the remotest parts of the Nation and yet the whole time would be spent in useless preparations for Business the first fourthnight and in a dangerous hurry the last fourthnight by this Act then there is only one Session to be in the whole year which is to last from the first of November to the last of March inclusive The Arguments adduc'd for this Model were first That two meetings of the Session did encourage our Countrey-men too much to litigiousness who were naturally too much addicted thereto whereas one Session might well enough end all our Affairs and it was indeed observable that to recommend this Overture all possible dispatch had been made in the former Session 2. That these two Sessions occasioned great Expense since people behov'd to come twice a year from the remotest parts of the Nation most unnecessarly for the Summer Session was spent in Preparation or Hurry as said is 3. The Summer being the only time wherein Scots-men could have any pleasure or could make any improvement by Building Imparking c. The Summer Session did without making us any Recompense destroy both our own Pleasure and the adorning of our Countrey The Arguments for continuing the Summer Session as formerly were 1. The Session not sitting for seven Moneths His Majesties Authority during all that time wants the support and assistance which otherwise it uses to have from the frequent attendance of the Nobility the Kings Officers and others do meet frequently during the Session because of the conveniency they have in attending their private Business Whereas in this long Vacation of seven Moneths they can hardly be brought together and so want that Correspondence Intelligence and mutual assistance which they have in time of the Session and our Rebellions being ordinarly in the Summer time because of the conveniency which Rebels have of lying in the open Fields and of getting provision for their Horses it would be much easier to suppress
might scruple to pursue a Reduction of a Writ that they themselves had granted upon Oath and albeit this Act Declares only such Contracts to be null yet it will certainly extend to Bands Dispositions and other Writs for as the Reason is the same so both the Narrative and the last words of the Act has the word Writs which comprehends all these and I conceive the Remedy of this Act will extend likewise to promises though these be not comprehended under the word Writs for if it were otherwise the Act might be eluded by taking of Promises upon Oath from Minors As also albeit the Narrative Relates only to Writs of Importance by which are only mean'd in our Law such wherein the sum exceeds an hundred pounds Scots yet since the Statutory part is general and that an hundred pounds may ruine poor people nor should men of Substance Lasâ—le an Oath by interposing it to mean matters therefore I think that this Remedy should be extended to all cases whatsoever BY this Act for facilitating the course of Trade Bills of Exchange are ordain'd to be Registrated within six moneths after they are due and tho the Bill bear no consent to the Registration as Bands do yet they are registrated by vertue of this Act which is Narrated in the beginning of the Paper that is Registrated but this is of no great use and therefore Merchants choose rather to pursue summarly before the Dean of Gilds Court who is with us le consul des Merchans and even these Pursuits are disappointed by Advocations nor have they so much as the priviledge of being Discust summarly without attending the course of the Roll as was crav'd by the draught of the Act that was first under consideration It was also crav'd that Compensation should not be receiv'd against Bills of Exchange as is Customary abroad and a Bill is in effect in the construction of Law a bagg of Money trusted by the Drawer and to be redelivered in another place and Compensation is not even by the Common Law received against Depositations The reason why this Act was only extended to Bills drawn from abroad or in favours of persons abroad and not to Bills drawn from one place within the Kingdom to another was because if that had been allow'd all Debts had still been constituted by Bills and not by Bands and so had been priviledged by too summar execution BEfore Parliaments can proceed to publick Affairs all the controverted Elections must first be cleared and determined which being the occasion of great delayes in the dispatch of business gave the rise to this Act whereby it is ordain'd that none shall have vote in the Elections of Commissioners for Shires or Stewartries except those who are publickly Infeft in Property or Superiority Life-rent or proper Wodset and in possession of a 40 shilling Land of old Extent holden of the King or Prince or in Lands of 400 Pounds Valuation whether Kirk-lands or other Blench Few or Ward-lands and that appearand Heirs being in possession by vertue of their Predecessors Rights and Husbands for the free-holds of their Wives or as Life-renters by the courtesie of Scotland of the Extent and Valuation foresaid have right to Vote The Shire of Berwick having made cross Elections of Commissioners to the late Parliament the Committee for controverted Elections decided these points for clearing this Act which report was approven in Parliament 1. That a Charter confirmed by the King of a 40 shilling Land does not give a party right to vote except his Seasin thereupon be produced and that the Confirmation be of the Seasin since the Confirmation of a Charter imports no more but the Confirmation of a personal obligment 2. Vassals of Kirk-lands of the Extent and Valuation foresaid have no vote unless they hold their Lands of the King as their immediat Superiour for since it is optional to them either to hold of the King or Lord of Erection by the 53 Act 1 Parl. Ch. 2. it is presumed they still hold of the Lord of Erection unless they instruct that they hold of His Majesty 3. Where Vassals produce Rights to a part of a Barony that will give them no right to vote except they can instruct that their Lands are Retour'd to such a proportion as put them in the terms of the Act of Parliament 4. Life-rents not constitute by Infeftments but by personal obligments give not the Life-renters right to vote 5. Persons Interdicted seem to be debarr'd from voting since they who were not fit for managing their own affairs ought not to be trusted to vote for Commissioners to Parliaments but this I think should only hold in Interdictions causa cognita very judicious men consenting to voluntar Interdictions 6. If the King be only Superiour supplendo vices of the immediat Superior by his not entering to the Superiority this will not give the Vassal a vote since the immediat Superior retains all the casualities and consequently remains still Superiour albeit pro hac vice the King supplies the defect of the Immediat Superiours lying out by infefting the Vassal 7. Appearand Heirs albeit in the terms of this Act have no right to vote if they have renounced or if their Predecessors were denuded albeit they were in possession the famine being only by a tollerance from the Party in whose favours the Predecessor was denuded 8. Appearand Heirs by the Mothers side gives not a Title to vote except they be actually entered Heirs since it is presumed there are Heirs Male except the contrair be proven by a Service 9. Vassals who have expired Apprisings or Adjudications have liberty to vote albeit by an Act of the Lords of Session the Lands are declared to be redeemable for the Sums truly due since by this Act Apprisings Adjudications and proper Wodsetts are not to be questioned upon pretence of any order of redemption payment or satisfaction unless a Decreet of Declarator voluntar Redemption Resignation or Renunciation be produced 10. It was found in the Election of the Commissioners of East Lothian that no votes are sustained but these who voted and signed before the Meeting was dissolved and the votes of those who came immediatly after were not sustain'd tho the Preses return'd with some of the number But in the Elections for the Mers it was found that a person was capable to vote albeit he was detained Prisoner by a mis-information from one of the Competitors he having given an account of the way and manner of his Imprisonment to the Meeting and declared his vote to them and after his enlargement did immediatly take the Test and sign the Commission FINIS Several Additions and Supplements to the Observations on the Acts of Parliament BY this Act the Wardens are discharged to judge which is here called very odly to intromet with any thing that pertains to the Dittay of the Justice-Air saving the points that are needful for conservation of the Trews or Truce that is to say
because even by the Canon Law Benefices cannot be united without consent of the Laick Patron Bengeus de Benefic cap. 3. § 3. num 7. Unions are now made by the Commission of the Kirk and the ordinary reasons upon which Churches are united with us are the meanness of the provision the meanness of the two Parochs and the paucity of the hearers To the granting of which Unions the Patrons must still be call'd because of the above-cited Constitution of the Canon Law but they may be united though the Patron consent not if he shew no good reason for his dissent The Popes also us'd to value Benefices upon new informations whereby the value was much hightned and therefore by that Act it is ordain'd that no Benefices be higher than they were in Bagimonts Roll which Bagimont was a Cardinal who had made a Rental of all the Benefices in this Kings time as Skeen de verb sig observes Verb Bagimont and this Taxation of Benefices is founded on Extravag suscepti Regiminis lib. 6. It is therefore appointed that none supply with Money those who are to go to Rome to make such purchases Act 86 Par. 11 Ja. 3. But that Act seems unnecessary for the Purchasers being declar'd Traitors it was certainly Treason to assist them with Money so that the said Act was made to certifie and clear ignorant people which the Law calls ad majorem evidentiam THis Act is formerly Explain'd and that part of it which appoints the Hosts with whom strangers lodge to be comptable for their uncustomed Goods is in Desuetude except they were conscious to the guilt Vid. observ on Act 3 Par. 1 Ja. 4. supra CRafts men who exact from these of their Craft are to be punish'd as oppressors but I doubt what is the meaning of these words and shall buy their life as common oppressors and the most probable meaning is that they shall be bound to take Remissions for so doing as for a capital Crime Nota Common oppression is capital by this Act and such Statutes or Impositions laid on by Crafts-men for extortioning the Leiges are reprobated by the Laws of all Nations as a species of Monopoly Vid. Tritz de monopoliis cap 12 Vid. observ on Act 21 Par. 2 Ja. 4. Supra CRafts-men leaving off mens work if others refuse to compleat it because of Statutes among themselves forbidding them to undertake any such work such are punishable as oppressors but if they refuse upon any other account they are not punishable for this Act punishes only such as make use of such unlawful Statutes and if Crafts-men should come in to cheat this Act by a general resolution not to suffer any to compleat what another had begun I believe that the Magistrat might punish this as a cheating contravention of this Law Nota That Trades-men who make Statutes against the Common-well of the Leiges are punishable as Oppressors for otherwise Crafts-men might extortion the people at their pleasure This is also discharg'd l. un C. tit 59. lib. 4. de monopoliis nov 122. cap. 1. Aedificiorum quoque artifices vel Aergolabi aliorumque operum professores penitus arceantur pacta inter se componere ut ne quis quod alteri commissum sit opus impleat vid Trith cap. 12. and observ on Act 80 Par. 5 Ja. 1. supra IT is free to sell Victual in all Burrows any day of the Week though it be no Mercat day by this Act yet now every Burgh has its own Mercat days for Corn as well as for other things THough by this Act the users of false Measures and Weights be only punish'd as Falsaries yet the Justices found that the havers of false Measures should be also punish'd as Falsaries though using could not be proven since these who had them are presum'd to have had them only for use except the presumption were taken off as by proving that the Weights were only borrow'd or laid aside upon Tryal May 1671. In the case of Porteous at a Justice-Court in Jedburgh but by the 14 cap. Stat. Dav. 2. The users of false weights were only to pay 8 Cows to the King IT is clear from this that the Masters commanding his Servants or Cottars to break Laws such as Muir-burning specifi'd in this Act does not free the Servants but makes both lyable albeit Ignorance and Command when joyn'd might seem to excuse the breach of a penal Statute at least a poenâ ordinaria but the Masters Command should not excuse from the punishment where the Transgression is either against the Law of God of Nature Nations or the Crime is atrocious in it self SOme of the Nobility having most Rebelliously fought against King James the third upon a false pretext that he was bringing in the English upon the Kingdom they advanc'd his Son King James the fourth to be Leader and having prevail'd they secur'd themselves by several Acts yet extant in the black Impression but which are omitted in this Impression except this one THe King Revocks all TailÈies made to Heirs-male in prejudice of heirs general because as Craig observes this is against Conscience and is defrauding of the Righteous Heir and I have seen old Licences granted by the Pope to make such TailÈies and Alienations for reasons exprest in the Bull and upon Consideration whereof the Pope dispences with the matter of Conscience and in the Act 50 the Estates without the King revock all such Rights quod notandum Nota The King here Revocks all change of holdings from Ward to blench and not from Ward to Feu because it was lawful at that time to change from Ward to Feu by the Act 71 Par. 14. Ja. 2. Nota Union of Lands in Barony is revocked by this and all the posterior Revocations of our Kings because one Seasine serves after the Union and the Proprietar is only oblig'd to answer at one Court so that the King loses several Casualties Vid. Act 93 Par. 6. Ja. 4. King JAMES the fourth Parl. 5. BY this Act Barons are to cause their Sons learn Latin jure that is to say Law because the Act sayes that they may have knowledge of Law to prevent needlesse coming before the King 's Principal Auditor for which reason also Advocations are much discourag'd by many subsequent Acts Auditor was not a proper term for the Session for Andientia is properly allow'd only to such as have not Jurisdiction as is clear by Gothesr ad Rubr. C. de Episcopali Audientia BY this Act all Actions of Error against Brieves or inordinate Process are to be pursued within three years else they prescrive And by the Act 13. Par. 22. Ja. 6. It is declared that the prescription secures only the Assyzers against wilful Error but that the Retour may be quarrelled within 20 years as to the right of Blood prejudg'd by the said wrongous Retour And it is observable that the Law favours still revenge less than
to the sum specifi'd for an Earl or for a Feuar and it was found that Caution should be found for five hundred merks only according to the condition of the Defender Observ. 2. The quality of a Burges is not here specifi'd and if he hold Land Burgage he is de praxi considered as a Free holder else he is considered as an Un-landed Gentleman and if he holds feu of the Burgh he is considered as a Feuar Observ. 3. The Unlaw of such as compear not at the first Justice air is to be twenty pounds that is to say the Master who presents not his Tennents is to pay twenty pounds over and above all other punishments which is relative to the 6 Act 5 Par. Ja. 6. and is there Explain'd Vid. supra obs on Ja. 1 Par. 11 Act 129. Ja. 3 Par. 1 Act 5. Ja. 4 Par. 3 Act 27. THis Act annexing all annualrents payable to Prelacies to the Crown is abrogated in so far as concerns Bishops by the Act restoring Bishops in anno 1606. NOta That such Customers and Searchers as cheat the Customs are only punishable by Deprivation and escheat of their Moveables and therefore it seems that they are mistaken who think that such may be punished by Death this being an extraordinary Theft both as to the value the preparative and the ordinary punishment not excluded It may be likewise doubted whether such as enter in Compacts with Customers and Searchers to defraud the Customs may be punished by the same punishment because they are art and part REmissions are notwithstanding of this Act past without previous Letters of Slayns or consents from the parties but the party may get an assythment albeit the Remission be past all Remissions are at present Registrated in the Thesaurers Register conform to this Act and in the Secretaries Register also as all Papers are that pass His Majesties Hand THough this includes the Members of the Colledge of Justice in the priviledges granted to the Colledge of Justice with the Senators yet of late by the 8 Act 2 Sess. 2 Par. Ch. 2. Freedom from Impositions is renew'd to the Senators only vid. obs on that Act where it is Debated that though Advocats be not there mention'd yet they are not thereby excluded IT would seem by the Narrative of this Act that all Patronages Gifted after this Act should be discharged and yet the Act discharges only such as are granted without the consent of the Benefic'd persons nor can I see how these Patronages should have been declar'd null for want of the Benefic'd persons consent since the Benefiâ—'d person being once provided the Kings Disponing the Right of Patronage could not prejudge them who were already entered though the Act says That these Rights were granted to the great hazard of the persons provided for they being once entered no posterior Right could prejudge them and Declarators upon prior Rights might have prejudg'd them however but it seems that the reason why the consent of the living Incumbent is requisite is because it is presumable that he would and could inform truly to whom the Patronage belong'd and in all Church Benefices when Dispon'd either the Demission Resignation or consent of Church-men has been thought requisite The Statutory part of this Act was wrong Printed in Skeens Impression for whereas it sayes That all such Rights where the Beneficod person was alive and their consent had and obtained thereto shall be null It should have said Not had and obtained thereto but this is helped in the last Impression VId. Crim. Pract. Tit. Murder But it is fit to add that this Act ordaining such as strick or hurt a man within the Kings Palace to be punished with Death is consonant to praetor cum l. sequen ff de injuriis vide etiam l. 23. § 2. ad leg juliam de adulteriis and to the Law of Nations Fritz de palatiis principum cap. 12. Where he cites as the Law of Scotland cap. 6. Stat. Will. By which he who draws a Knife in the Kings Court is to be struck through the Hand and he that draws Blood is to lose the Hand and he that kills any man is to pay twenty nine Cows to the King and to assyth the party which certainly is meant of a Slaughter committed where the Killer should not die as in accidental Slaughters or Slaughter committed in self-defence for otherwise that Statute had been ridiculous as it is now obsolet and innovated by this Act of Parliament and yet I think that even by this Act of Parliament he who stricks any man in self-defence would not die and if the King be absent some think that Statuts punishing Offenders within the Palace extend not to such cases as Placa l. 1. â—pit delict cap. 8. Though Menochius does extend those Statutes even to that case but to prevent this Debate this Act 173 bears expresly The King's Palace where His Highness makes His Residence for the time and it expresses the Inner-gate to cut off the ordinary Debates de consiniis palatii Though this Crime may be pursu'd Criminally yet the Lords may take a Precognition of it to the end it may be known how far they will remit the same to be punished by the Criminal Judges in so far as concerns the stricking any man in their presence as in Sir John Hay's ease and Sibbalds VId. Crim Pract. Tit. Remissions Vid. supra observ on Act 74 Par. 14 Ja. 2. IT would seem by the Narrative that only such Writs as were not Written by Notars and common Clerks who are notourly known should have been declar'd null for want of the Writers Name and yet the Statutory part declares all Writs to be null without exception which want the Writers Name Observ. 1. This Act is not by the Lords found to annul Seasines and other Acts of Office Written by Common-clerks and Notars though the Writers Name be not design'd in them but only Writs amongst privat parties June 6. 1634. Observ. 2. That though the Writers Name be not condescended on yet the Lords will allow the User of the Writ to condescend who was the Writer and though this Act of Parliament appoints that before the inserting of the Witnesses yet if it be insert in any place it is sufficient and though the Act appoints that it shall condescend upon the VVriters Name particular remaining place and Diocy yet Diocies are now only condescended on in Instruments of Notars but still there must be some Designation beside the Name and Sir-name such as A. B. Servitor to such a man which is sufficient and if there be moe of one Sir-name who where Servitors at that time yet is not the User of the VVrit oblig'd to condescend which of the Servants it was but he who offers to improve the said VVrit must relevantly alleadge that of the Date of that Bond he whose Servant the VVriter is Design'd to be had no Servant at that time who