frugal because they hope their Estate may remain with their Posterity encourage not such as resolve to shake loose by their Prodigality what was establish'd by their wise Predecessours By favouring the Creditors Defences you will but gratifie the prodigality of Heirs or the laziness of Creditors whereas by sustaining my Clients pursute you will secure us as to our own pactions and as to your decisions you will perpetuat Noble Families and bound the Luxury of such as are to succeed The Lords sustain'd the Pursute and repell'd the Defences propon'd for the Oreditors For the Lady Carnagie and her Lord against the Lord Cranburn THIRD PLEADING Whether Tax'd-wards be lyable to Recognition My Lord Chancellor THe late Earl of Dirletoun having no Children besides two Daughters and having an Estate consisting of Lands in Scotland and England did very judiciously at first resolve to marry one of them in Scotland and the other in England and in pursuance of this design he bestowed Elizabeth the eldest upon William Earl of Lanerick Secretary of Scotland Brother to Duke Hamiltoun but which was more a person admir'd for his heroick Vertues and whose Alliance was courted at any rate by the most eminent Families of both Kingdoms The younger of these Daughters named Diana was match'd thereafter to the Lord Cranburn and as the Earl of Lanerick could not but have justly expected all or at least the far greatest share of that Estate So the Lord Cranburn could scarce have expected thereafter any thing above an ordinar Portion Yet such is the capriciousness of old men that the Earl of Dirletoun did in anno 1649. by the impressions of some who were inveterat enemies to the Family of Hamiltoun dispone the Lands of Innerweek Fenton c. failing Heirs-male of his own body to Iames Cecil his Grand-child and the Heirs-male of his body His Majesty finding that the said Estate was most illegally dispon'd to Iames Cecil without His consent as Superiour they holding Ward of Him and that he had thereby defrauded the just expectations of so worthy a person as the Earl of Lanerick and so the Lands recogniz'd by the said Disposition did gift the saids Lands to the Lord Bargeny for the behoof of the Earl of Lanerick upon which Gift of Recognition there is now a Declarator pursued by the Lady Carnagie eldest Daughter to the said Earl of Lanerick who thereafter became Duke of Hamiltoun wherein she craves that it may be declar'd by you that she has the only Right to these Lands There are very many Defences propon'd for the Lord Cranburn which I shall endeavour thus to satisfie The first is Recognition has only place in feudo recto proprio whereas these Lands hold Tax'd-ward in which manner of holding all the casualities are taxed to a very inconsiderable sum which sum is designed to be the only advantage that shall accress to the Superiour and the reason why Ward lands recognize when they are sold without the Superiours consent is because the Superiour having so great interest in the Lands which hold by simple Ward as to have the Ward and Marriage of the Vassal the Law did therefore obliege him not to alienat that Land without the Superiours consent which reason ceaseth where the Ward is tax'd the Superiours interest becoming very inconsiderable by the Tax nor can it be imagin'd but that the Superiour having dispensed with the great casualities of Ward and Marriage has consequently dispensed with the said restraint Cui datur majus datur minus praesertim ubi minus inhaeret majori est ejus accessorium For satisfying which difficulties your Lordships will be pleas'd to consider that our Law appoints all Ward-lands to recognize if sold without the Superiours consent and makes no distinction betwixt simple and tax'd-ward the general is founded upon express Law and there is no express warrand for excepting tax'd-ward 2. Seing these Lands could not have been fold before they were tax'd by what warrand can they be sold since they were tax'd Seing though the casualities of Ward and Marriage were tax'd and thereby these casualities expresly remitted except in so far as they are tax'd yet there is no power granted to sell without the Superiours consent Nor is that priviledge remitted by the Superiour Et fendum alteratum in una qualitate non intelligitur alteratum in aliis actus agentium non operantur ultra concessa 3. The power of selling without the consent of the Superiour is different from the casualities of Ward and Marriage which are here only tax'd for Fewholdings are oft-times burdened with this restraint and this restraint was of old taken off expresly by warrands under the Quarter-seal without taxing the other casualities So that this priviledge differs from these and the one cannot be comprehended under the other The second Defence is that by the Feudal Law Recognition ob alienationem feudi est crimen delictum feudale against which error etiam probabilis ignorantia excusat as is clear lib. 2. tit 31. The words are Quod enim dicitur alinatione feudum aperiri domino intelligendum est cum à scientibus alienatum est beneficium which are the words of the said Law whereupon Socinus reg 153. though he do give it as a rule that Emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit conform to the civil Law l. ffinal C. de jure emphyteutico he subjoyns these words Fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam and accordingly Craig de recognitione lib. 3. diages 3. and in the case of disclamation lib 3. diages 5. layes down for an undoubted principle that ignorantia crassa excusat feudalia delicta And here the subject of the question is not in jure in thesi whether Ward-lands should recognosce but in facto hypothesi his Right being of the nature and in the terms foresaid he might dispone without hazard as to which an error in him who was an illiterat man was very excusable especially having consulted Peritiores and having been assur'd by very eminent Lawyers that there was no hazard in disponing those Lands without the Superiours consent they holding Tax'd-ward which was sufficient to have defended him in feudo amittendo To which it is answered that ignorance of the Law excuses no man and the case having been at best dubious the Vassal should not have hazarded upon what the Law might construct to be a disowning of his Superiour and since every man is oblieged to know the nature of his own Few the Law doth presume that every man doth know it Nam quod inesse debet inesse presumitur and therefore Craig doth very well conclude pag. 344. tit de recognitione that ignorantiam pretendens vix audiendus est cum sit crassa ignorantia feudi sui conditionem ignorare and though he observes there that excusabitur qui feudum suum non militare credidit cum militare est yet that cannot be
the Testimonies because the question is not whether the Testimonies dicta testium can be reprobated for that is not here contended but whether the initialia can be reprobated which initialia use to be interrogat in presence of the Parties and so there is no hazard of publication there nor did ever any Lawyer alledge that corruption was only probable by the corrupters oath and this were most unreasonable as will appear from these Arguments 1. Corruption is facti and falleth under sense and therefore is of its own nature probable by Witnesses 2. Corruption could cast or set a Witness before he were examined and co Casu would be probable by Witnesses why not then after he has depon'd for by our Law as by the Civil noviter provenientia ad notitiam emergentia are receivable and probable eodem modo ordine as they ought to have been if they had been sooner known and seing all objections against Witnesses are only receivable with us if they be presently proven it were unjust not to admit emergent Objections or Proofs 3. This were to make Witnesses most licentious and arbitrary for the Parties may give and the Witnesses take bribes sub spe impunitatis if they knew that they could not be found out but by their own confession and in effect this were to allow perjury and to invite men to it 4 It is most presumable that these who have brib'd will perjure and so their oaths cannot be believ'd and therefore the Law must either declare that corruption is no ground of Reprobator els that it is probable by other Witnesses and media probandi then the oaths of the bribeâ—s or bribed It was never denied but that a Decreet obtain'd by collusion of Advocats or Clerks might be reduc'd upon full probation of the collusion by the oaths of those Advocats or Clerks else any of these by compearing or omitting a Defence might bind one hundred thousand pounds upon any of the Lieges and since it is confest that the Civil Law and the Doctors do in this case allow probation by witnesses I see not why our Law should not admit it They were as zealous for the Authority of Sentences as we are and Perjury is more frequent now then of old and though our Law doth not allow probation by Witnesses in cases above one hundred pounds yet that Law was only made to regulate the original probation of Debts in the first instance but not the reprobating Sentences And it were against reason and justice that a Decreet that was obtained upon the depositions of Witnesses should not likewise be quarrelable upon the depositions of other Witnesses proving corruption these reprobating Witnesses being above exception and such persons as the Judges may think fit to admit whose choice will in this case cut off the hazard of a processus in infinitum Seing it is not probable that Judges will allow any such persons as may endanger the interest of him against whom they are led this power can be no where more securely depositat then in this Illustrious Senat whose frailty is much less to be jealous'd then is that of Witnesses and though the constitution of a Debt cannot be prov'd by Witnesses where there is no other probation yet it follows not that a Decreet founded upon a matter of fact and upon the depositions of Witnesses may not be taken away or reprobated by other Witnesses for though where Debt is lawfully constitute it cannot be taken away by Witnesses yet the case here contraverted is whether the Debt was lawfully constitute and the alledgeances are corruption alibi and other matters of fact and though a Decreet has interveen'd yet that doth not so alter the nature of the thing as to make it leave to be a matter of fact and the defences emergent since the Decreet and matters of Fact are still probable by Witnesses It is unjust that what was first purchased by Witnesses should not be tryed by the depositions of Witnesses Eum debet sequi incommodum quem sequitur commodum nihil est tam naturale quam unumquodque eodem modo resolvi quo colligatum est And as when I pursue upon a false Bond the falshood of that Bond is to be tryed by Witnesses our Law doth not force the Defender to refer the truth of the Debt or of the matters of Fact to the oath of the Pursuer Even so when a man is pursued upon a Decreet which is obtain d upon false grounds or corruption why should our Law force me to refer the truth to the Pursuers Oath Sure if ever Reprobator was granted it ought to be in this case wherein my Client offers to prove that this Lady whose Sex I am loth to wrong in her person did bribe these Witnesses and instructed them verbatim what they should depone this is offered to be proven not only by their own confession but by the deposition of many who are more numerous and more famous though their own confession proves them to be vaccillant and faithless Rascalls and who though they should not be believ'd in any case yet ought to be believed as well in this retraction as in their first deposition and who can enervat though they cannot astruct their own testimonies and this probation ought to be received against the deposition of two Villains who stand condemned by common fame which is sufficient to hinder them from being Witnesses omni exceptione majores and are condemned by the Kâ—â—k-session for keeping Baudy-houses wherein they have shak'd off that fear of God which is the ground of the Faith we give to Witnesses and have learned by pimping persons to pimp Plea's I am here in defence of a Marriage quae est causa maxime favorabilis and the dissolution whereof requires a probation per testes omni exceptione majores and it is very probable that a woman who is so impatient in those holy Bands and so malitious against her own Husband as to asperse him with every thing that may lessen his reputation with your Lordships would not spare to have dealt so with the Witnesses as might best effectuat her designs knowing that if she prevail'd not she behoved to return to the society of a Husband whom she had so highly disoblieged to misse the enjoyment of that Jointure which she so ardently expected and to be justly branded for having so malitiously and causelesly defam'd so sacred a Relation The Lords sustain'd the reasons of Reprobator to be proven by Witnesses omni exceptione majores For the Lord Balmerinoch against the Lady Coupar Feb. 1670. SEVENTH PLEADING How far a Disposition made by a man in favours of his Lady of his whole Estate is reduceable as done in lecto aegritudinis MY Clients My Lord Chancellor this day are not the Lord Balmerinoch only but all such as either may be Heirs or Husbands And by how much greater there Estates are by so much the more they are concern'd in this discourse wherein I design
to assist them when they are upon death-bed which is an occasion at which not only their wit and memory leave them but wherein they are oft deserted by all other Friends besides these who design to prey upon them And I am so zealous in this service that I cannot detain my self any longer from opening to you the matter of fact in this Cause which may be saved by its very merits if ever any was The case my Lord stands thus The late Lord Cupar had by his Fathers kindnesse and out of the Estate of the Family a considerable Fortune bestowed upon him and what addition it has receiv'd since is rather the product of so considerable a stock then of that Lords industry so that he having died without Heirs this Estate should have return'd to the Family not only by a legall succession but by the rules of gratitude Yet having in a second Marriage at the Age of threescore and ten married a Lady by whom he got no great Fortune she induc'd him to dispone his whole Estate Honours and Title in her favours and in favours of the Children to be procreat betwixt her and any other Husband the first bribe was ever given by a dying Husband to invite a Wise to a second Marriage and though a Brother may raise up seed yet we never hear that a Woman rais'd up seed to her Husband of which Disposition there is a Reduction rais'd by the Lord Balmerinoch who is Nephew to the Defunct and should have been his Heir wherein he quarrels this Disposition as made upon Death-bed by the Lord Coupar after contracting of that sickness whereof he died and as done in prejudice of him as appearand Heir My Lord I know that Legis est jubere non suadere and that omnium quae fecerunt majores nostri non est reddenda ratio yet this Law or rather ancient custom whereby persons upon death-bed can do nothing in prejudice of their Heirs can justifie it self equally well by Reason and Authority The reasons inductive of this excellent Law are first That after men are sick their judgements grow frail with their bodies and the soul of man wants not only then the pure ministry of well-disposed Organs but is likewise disordered by the infection of the languishing body wherefore the Law observes lib. 2. Reg. Maj. cap. 18. vers 9. Quod si quis in infirmitate positus quasi ad mortem terram suam destribuere caeperit quod in sanitate facere noluit praesumitur hoc fecisse ex fervore animi potius quam ex mentis deliberatione Which presumption seems to be very well founded for it is not imaginable that any man who is reasonable would pull down his own house and Nature and Reason being the same thing varied under different expressions he who overturns the one cannot be sound in the other The second reason is because men ordinarily upon Death-bed being surpris'd with the approach of death and terrified with the prospect of what follows it do so little value the affairs of this world which they begin now to find so little able to repay their criminal pains and love that to evite the importunity of such assistants as are like Vultures busie about the Carrion upon such occasions they are content to ransome time and quiet with the carelesse losse of their Estate and who would not buy time then at a dear rate So that this Law is the great fence of our sick-bed as well as of our infirm judgments The third reason is the great respect our Law bears to ancient and Noble Families who are the corner-stones of the Kingdom to whose valour our Law has oft ow'd its protection and so could not refuse it s to them And sure if either the importunity of Mothers for their younger Children or of Wives for themselves could be successful the Heirs would succeed to a heavy and empty Title and upon this consideration the Parliament did lately refuse to allow Parents the power of providing their younger Children to small Portions upon Death-bed I know also that some adde as an original reason for this Law the avarice of Monks and Church-men who perswaded men to Wodset for themselves rooms in Heaven with great Donatives to pious uses to restrain which excesse Venice and other Kingdoms have taxt the value of what can be so bestow'd And albeit the restriction imposed by this Law may seem destructive of Dominium which is jus disponendi and that by the Law of the 12. Table Ut rei suae quisque legassit ita jus esto So that this seems to want all foundation either in common feudal or the Laws of other Nations Yet if we examine we will find Dominium is in very many moe cases then this and in more favourable restricted by all Laws and that quaerela inofficiosi Testamenti is sounded upon the same reason with this Law and that by the Laws of Spain and Flanders so great is the favour of Noble Families Noblemen cannot at any time dispone their Estates but must transmit to their Posterity what ever Lands they got from their Predecessors But though no Nation joyned with us in this Law this should rather induce us to maintain it as being truly a Scots Law and we must be so charitable to our Predecessors as to believe that they would not without very cogent motives have restricted their own power of disponing and have receded from the custom of all other Nations and we should be as carefull of our fundamental Lawes as the Spainiards are of their privat Estates And of all persons against whose importunity the Law should guard us sure our Wives are the chief for they have the nearest and frequentest accesses the most prevailing charms and arguments and of all creatures women are most importunat and are most dangerous when disoblieged wherefore the Law hath wisely forbidden all Donations betwixt man and wife fearing in this mutual love and hatred though in modesty it hath only exprest the first And sure if this Donation should subsist every woman would think her self affronted as well as impoverished if she could not elicit a Disposition from her Husband of some part of his Estate And to what condition should a poor man be reduc'd and with what inconveniences urg'd when he behoved either to disobliege his Wife or ruine his Heir and to load his Fame or his Estate So that the Lord Coupar hath in this prejudg'd Husbands and Heirs and hath violated jus Parentale Maritale It is alledged for the Lady that the reason is not relevantly libelled seing we do not condescend upon a form'd disease under which the Lord Coupar labouâ—ed the time of the Disposition and of which disease he thereafter died Nor is tenderness and infiâ—mity sufficient of it self to mâ—intain this reason of Reduction especially in old men whose age is a continual infirmity and yet is not by Lawyers called a sickness sickness being a preternatural whereas age is a natural infirmity
pactionum tenor qui alienationem interdixit aliquid tale fieri permiserit These Clauses De non alienando non contrahendo debitum are most allowable by the Feudal Law where such Tailzies are called Feuda Gentilitia Feuda ex pacti Providentia yea and by the Feudal Law it was not in the power of him to whom it was first disponed to alienat or affect the Few either in prejudice of the Superiour or of him who was next to succeed and what is more ordinar with us then such obligations in Contracts of Marriage Sir Thomas Hope is of opinion that a Right granted to a man and his Heirs secluding Assignayes could not be comprised by a Creditor and sure that exclusion is not so valid as a Clause irritant and resolutive which is actus maxime explicitus geminatus From these Principles there do arise very natural answers to the alledgeances proponed for the Defenders for whereas it is contended that such restraints as these are inconsistent with Property It is answered that there is nothing more ordinar then to qualifie Propriety as appears clearly by the nature fidei-commissi pacti gentilitii and very many other instances and even in our Law Ward-lands cannot be disponed upon without the consent of the Superiour and it is more contrary to the nature of Property and Dominium that a man cannot dispone upon what is absolutely his own under what restrictions and qualifications he pleases then that he who hath only a qualified Dominium should be in a capacity to dispone absolutely upon what was not absolutely his own That Maxim whereupon we found that quilibet est moderator arbiter rei suae has no exception exprest in it whereas the definition of Dominium insisted upon by them which is that it is Jus de re sua libere disponendi has an exception adjected to it which is nisi quis Lege prohibeatur under which word Lex the Doctors alwayes comprehend pactum and to prevent all mistake some do expresly say nisi quis Lege vel pacto prohibeatur So that in vain do they found upon the nature of Dominium since the very definition of it doth contradict what is alledged To the second difficulty bearing that these Clauses are destructive of Commerce It is answered that the liberty of disponing upon our own as we think fit doth more nearly concern us then the liberty of Commerce especially in this Kingdom which stands more by ancient Families then by Merchants and therefore seing these Clauses tend necessarily to perpetuat Families and the other doth only tend to the better being of Trade we ought to prefer the pursute to the defence And to what purpose shall we gain an Estate by Commerce when we cannot secure it by such clauses Nor are these clauses destructive of Commerce as is alledged more then Inhibitions or Interdictions and it is easier to read a Charter then to try the Registers and England and Spain which are more interested in Commerce then we have by allowing such Clauses evidently declared that they think them not absolutely inconsistent with Commerce But the truth is real Rights are not the foundation of Commerce for Commerce is maintain'd upon the stock of personal Trust and the main thing which Traffiquers relye upon is the personal Trust which is amongst them and not the consideration of any real Rights I do not conceive my self oblieged to take much notice of the Creditors being in bona fide to contract with the Earl of Annandail for if Annandail had no power to burden that Estate their bona fides could not give it him nor could a Creditor apprise from him that to which he had no right no more then I can comprise one mans Estate for another mans Debt and if Annandail had only given a Back-bond declaring that the Estate was only in his person by way of trust the Creditors could not have apprised it for their Debt though they might likewayes have alledged that they were in bona fide to lend For the Law considers only bona fides where those who alledged the bona fides did exact diligence which these Creditors cannot alledge for if these Creditors did not at all call for Annandails Rights to Scoon they cannot be said to have laid out their money in contemplation of those Rights but in contemplation of his other Estate or upon the account of a personal Trust or if they did call for those Rights they might have very clearly seen his Prohibition and consequenly would have been secured against lending upon the faith of this Estate Whereas it is urged that such Prohibitions as these are only allowed when they are introduc'd by Testament by a Law or by a Judge but not when they are introduced by Contracts or Dispositions inter vivos It is answer'd that if it be allowable the one way it should be the other for the design is rather more deliberat in a Disposition then in a Latter-will for the one uses to be an act of health and the other of sickness and the one is as contrary to Commerce as the other is and if any weight be laid upon the favour allow'd by the Law to ultima voluntas upon the accout of consoling the Testator in obeying what he designs this favour is equally communicable to both for in both there is a Designation made of the way and manner of succession in which a dying man is as much concerned when he makes a Designation by a Disposition as when he makes it by a Testament and therefore Les substitutions contractuelles ont les mesmes Effects en France que les Testamentaires dans la prohibition d'aliener as Lowet observes tit 5. num 9. and for which he cites many decisions and where he observes very judiciously that the reason why the Roman Law did not allow these Substitutions and Prohibitions in Contracts as it did in Testaments was because Testaments was the only way amongst them of disponing upon Estates and of making Substitutions and fidei-commissa to make which was not allow'd by Contracts quia auferebant testandi liberam facultatem which subtilty is not now allow'd in this Age for on the contrary Tailzies and Contracts of Marriage are now the ordinary wayes of disponing Estates and if men might alter such destinations of Contracts such as do contract with them would be in a hard condition Nor is there more weight in that part of the alledgeance which bears that those Prohibitions do only annull deeds done in favours of him who has reserved some Right in his own person for Tailzies with such Prohibitions do imply a reservation in favours of those who are to succeed and the Tailzie is in that case but a Right of Trust to the behoof of the Family and the Provision in their favours is equipollent to a reservation The design of both is the same and therefore they should both operat the same effect Discourage not my Lords such as love to be