the Privy Council by vertue of their late Commissions are allowed and do usually grant Protections whereby the Executions of the Lords Sentences are oftimes stopt IN so far as this Act Discharges the Lords of Session to take Buds or Bribes I have Explain'd the same crim pract pag. 248. Observ. 1 o. That the Lords are allow'd to reject any person whom the King presents to them to be a Lord if he be not qualifi'd and of good fame and therefore the Lords usâ—d when the King presented any person to be a Lord which was by a Letter direct to the Session wherein the King did nominat him a Lord to name some of their number to Examine him But now the Form of Tryal is more severe and is set down in his Letter direct by His Majesty in anno 1674. whereby they are immediatly after Pleading to resume the Debate and to give their Opinion first in a Cause Debated in praesentia and to sit with the Ordinary in the Outter-house and to report some Causes there Debated and to give their own Opinion with the Reasons thereof Observ. 2 o. That by the first Institution of the Session the President was still an Ecclesiastick person and of the Dignity of a Prelat as this Act says and yet I see no such Article in the first Institution but however that is here dispensed with for the future For by the 96 Act 5 Parl. Ja. 5. It is only said that the Session shall consist of fourteen persons the one half Spiritual and the other Temporal with a President BY this Act the Tenor of Letters of Horning and of the Executions thereof cannot be proven by witnesses The reason whereof I conceive to be not only because upon such Letters mens Escheat and Liferent may fall and that were of too great Importance to be proven by witnesses since our Law does not allow any Debt above an hundred pounds to be proven by witnesses But because witnesses can neither know nor remember the exact Tenor of all the formalities of Executions and Stampings thereof and so strict are the Lords in the Observation of this Act that after the Horning and Executions were Registrat they would not allow the Messenger to add the word Three Oyesses in his Executions though he offered to prove that there were truly three Oyesses and was content to bide by the Execution so amended and that the Executions did bear the words Thee Oyesses which wanted but the Letter R to make the Oyesses three Oyesses Vid. July 28. 1671. Sir John Keith contra Sir George Johnston and July 11. 1676. Stevâ—â—son contra Innes It may be 〈◊〉 whether the Tenor of such Letterâ— may be proven if there 〈…〉 other Adminicles in writ since even Papers of the greatest â—mportance may be thus proven by witnesses and there is no Paper whereof the Tenor may not be proven nor is the proving of a Tenor here discharged and if the Letters of Horning and Executions be Registrat the Registration takes both off the Suspicion of Falshood and makes the witnesses who are to Depone know what Solemnities were used but yet it will never appear by the Registrat Extract whether the Executions were stamped and yet this point being sacti may likewise seem to be probable by witnesses who saw the same stamped In the case betwixt Boyd and Malloch December 19. 1677. The Lords inclined to think that even Executions of Hornings being once perfected by writ and thereafter lost might have their Tenor proven though by this Act it would not be originally proven that Letters of Horning were execute but they were all clear that this Act was siricti juris and did not extend to Executions of Comprizings and therefore they found that the Tenor of such Executions might be proven Nota That a Registrat Extract will not stop a Certification when a Horning and its Executions are call'd for but the principal must be produc'd The Parliament having ordain'd that the witnesses to be used for proving the Tenor of the Executions should be led in the Lords own presence It may be urg'd argumento â—ujus legis that witnesses for proving of all Tenors should be led in praesentia and which is very reasonable because proving of Tenors is nobilis officij altissimae in daginis It is likewise observable in this Case that though the Parliament made an Act for regulating that point for the future yet they left the Decision of the Case depending to the Common Law IT is fit to know that there being a Staple appointed where all Staple Goods to be brought from Scotland are declared free of all Custome laid upon Imported Goods which was a very great favour It was therefore very just that no Merchant should have liberty to enjoy the priviledges of the said Staple except he would give his Oath of obedience to the King and pay his entry in that Incorporation This and the subsequent Act are still in observance and the Conservator uses to raise general Letters against such as break the same by warrand from the Council who are the ordinary Judges in these cases except where matter of privat right falls in King JAMES the sixth Parliament 7. BY the old Canons all ordinations were null wherein the persons ordain'd was not intitled to a certain Church Can-Sanctorum distinct 70. and thence it was that all Ministeria vaga wherein a man was ordain'd a Minister without respect to any particular Church or charge were discharg'd by our Church though in the Lateran Council thereafter the ordination was allow'd but the Bishop who ordain'd was oblig'd to Aliment the Church-man ordain'd without a suitable living By this Act Paroches are to be design'd and circumscrib'd and every Paroch to have its own Stipend and Pastor but this quota was not determin'd till the Commission of surrender of Teinds in anno 1627. determin'd that the lowest proportion of a Ministers Stipend should be 8 Chalders of Victual or 800 Merks which Act is thereafter Ratified by the 8 Act of the Par. 1633. It is also provided by this Act that all Kirks annext to Bishopricks be provided to Ministers and when the Title of any Prelacy is conferr'd on any that the said Stipend be reserv'd the reason whereof was that the Pope us'd to unite Parochs and Benefices to Bishopricks upon pretext of the meanness of Bishopricks and therefore in the beginning of the Reformation when Titular Bishops were made it was thought just that these Parochs should be again provided with special Ministers We call him a Titular who has the Title of a Benefice qui est in Titulo and thus the Seculars who had right to the Teinds due formerly to the Church are call'd the Titulars of the Teinds and by the old Canons it is clear that quaedam beneficia a titulo pendent quaedam a reditu and these Tithes are in the Ecclesiastick History said to have had their Origine either ab intitulatione in Codicem
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
are expresly annull'd by the 4 Act Sess. 1 Par. 1 Ch. 2. Observ. 2so That the punishment is not here exprest but in general under the pain of being holden as movers of Sedition and punished with all rigour nor is it more special in the foresaid 4 Act Ch. 2. which I admire but yet I think that such Bonds and Leagues are punishable by Death from the Words all rigour which may be very well extended to Death especially in subjecto capaci as Sedition is for certainly some Seditions may be punish'd with Death as we see in the first Act of this Parliament and by this same Act such Leagues are declar'd to be against all Law and Allegiance Likeas by the 7 Act Par. 1 Ch. 2. The Subjects are discharg'd to take or renew the Covenant which is a Bond or League upon their highest peril and I wish the Act had determined what was the highest peril for generally Lawyers do not extend such Statutes to Death I find that the Nobility and others having enter'd into Bonds amongst themselves whereupon His Majesty was surpriz'd at Ruthven there are several Acts of Council and particularly a Proclamation issu'd out in April 1582. discharging all such Bonds so enter'd into and that none enter into such Bonds for the future and that gave occasion to this Act which says that these Bonds have given occasion to a great part of the Troubles that have occurr'd since The Certification in that Proclamation is under the pain of being repute favourers and partakers with the Conspirators against His Highness Majesty The Act here related to is the 43 Act 6 Par. Queen Mary but that Act properly extends only to Bonds of Man-rent but not to Bonds of Combination as this does so that this Act should rather have been founded on the 30 Act 2 Par. Ja. 1. There is in that Proclamation and this Act exception made of Bonds enter'd into with the Kings consent which was added because the Nobility and Estates at the Kings desire entered in a League and Bond for preservation of Religion which is Registrat in the Council Book June 8 1585. But this Bond is subscribed by very few of every Estate BY this Act Charges super inquirendis are discharged but it is a mistake to think that by that Act the King or other Judges cannot examine men without a formal Process for the design of that Act is only to discharge the denuncing men Rebels upon such Charges without previous tryal and yet if the Chief Officers of State or at least four of them concur it would seem that by that Act even such Charges are yet lawful and where the King or Magistrat has previous informations of Crimes latent it were against the interest of the Common-wealth that they should not be allowed to clear these by particular Interrogators It was urg'd from this part of the Act that no man could legally be Imprisoned even by a warrand under the Kings own hand and that this was very just in it self since as Liberty is very precious and the best part of Property it was sit to secure it so as that none could take it away but these who will be answerable and the King could not in Law be made answerable and therefore it was justly by this Act appointed that no man could be imprisoned by any Letter even under the Kings own hand except it were subscrived by the Officers of State who should be answerable to which it was answered by His Majesties Advocat that this Act did not debar the King from granting such privat warrands under his own hand for there might be some cases which he could impart to none of his Officers of State as for instance if all his Officers were upon a plot against him or if the Crime were the being upon a Plot with a forraign State which the King were not yet in a condition to resent though he might justly apprehend his Subjects who were in accession to it but the design of this part of the Act was only to discharge the passing ordinary Letters in common course under the Signet except in this Method and it might be much rather retorted that since only Letters under the Signet are discharged to be past except in this method therefore privat warrands from the King himself are not discharged for if the King and Parliament had designed any such thing they would have expresly discharged all warrands under the Kings hand which is not done in this Act and it is clear by the 184 Act 13 Par. Ja. 6. That the King may give Warrands out of his own mouth to apprehend Rebels or others whom Magistrats are obliged to apprehend I find also that this Act was past formerly in the Privy Council the 23 of June this year 1585. and there the Act bears To have been made to prevent the obtaining of unformal Letters at the importunity and malice of privat persons which clearly evinces that it was not design'd to preclude the King from securing such persons who he had reason to believe were obnoxious to the Government It is observed in the Acts of Sederunt that the King 8 June 1581. by his Letter ordain'd several Advocats to be imprison'd indicta causa By the second part of this Act Writers to the Signet are ordain'd to keep the old Style unalter'd for Arguments brought from Style are a great part of our Fundamental Law and in all our Decisions Argumentum a Stylo is still very strong as from the wills of Inhibitions Interdictions from the Forms of the Chancery c. and yet in some cases this Argument is not concluding and thus Gifts of single Escheat bear all Moveables present and to come and yeâ— they give only right to what Moveables the Rebels have or shall possess within a year after rebellion and though by the Style of Gifts of Wards the relief is discharged yet that discharge will not be valid As also the Style of Inhibitions and Interdictions bears a prohibition to alienat either Heretage or Moveables and yet it extendeth only to Heretage Stilus Curiae is by Justinian call'd forma observantia whence comes our word Form of Process Stilus consuetudo fori vel judicii pro lege observari dâ—bet l. 1. § in honorar de var. extraord cog vid. Vâ—et de Stat. Sect. 3. c. 3. Observ. That though by this Act every Writer should write his name upon the back of the Signature which he writes which doubtless was introduced to the end that every Writer might be answerable for his errors in Style or otherwise yet if at the passing of the Signature in Exchequer the Writer subscribes his name the Signature will be sustain'd which was found necessary though it was alledg'd that this Act was in Desuetude as to this point for it was found not to be in Desuetude THis Act explains the 141 Act 8 Par. Ja. 6. and dispenses with a part of it and that is the Act to which this
at eleven of of the Clock in the forenoon yet it does not irritat and annul all Courts holden at any other hour and Courts are ordinarly held at other hours but it may be doubted whether a party cited to a peremptory Diet and staying till twelve of the Clock and taking Instruments thereon could be unlawed in the afternoon for absence but if the Court once sit parties are obliged to attend THough this Act appoints the Expences of parties accus'd and acquitted to be modifi'd by the Justice-Clerk and his Deputs yet they are now only modifiable in full Court by the Justices but it is doubted whether the Justices can modifie Expences where the Defenders are absent since the only Certification against absents is that they shall be Denunc'd Rebels But yet the modifying Expences seems to be the necessary result of all Processes and that inest officio judicis It is also doubted whether the Justices can ex intervallo modifie Expences none having been sought the time that the Letters were brought back and the party declar'd Fugitive and the Justices are in use to do both but the case has not been yet fully Debated BY this Act the Roll of Assizers was to be given by the party accuser or a Notar in his name but now by the third Article of the Regulations for the Justice-court the Assizers are nam'd and the List subscriv'd by the Justices for it was thought too severe that the Kings Advocat or the party accuser should have the naming of the Assizers BY this Act Customers passing Customable Goods for Gratitude are to be Try'd Criminally and their Moveables to be Escheated in case they be convicted Observ. 2. That the Kings Servants are only to be punish'd in case they transgress for Money so that negligence is not punishable except it be gross but yet if Customers should wittingly and willingly pass Goods for Friends or Relations I think it would be punishable by a Fine And since the stealing of Customs is Theft this connivance in strict Law seems a Theft-bute or accession to theft Observ. 2. Though this Act declares this accession punishable in a Justice-air yet the Exchequer and Council do also punish the same by arbitrary punishments THis Act is Explain'd fully crim pract tit Assizes but it is fit to add that His Majesty having written a Letter in anno 1683. desiring the Justices to Examine Witnesses in Treason when the Council requir'd them at any time before insisting in the Process to the end His Majesties Advocat might know how to Libel and to prevent the absolving of Rebels who were truly guilty by the mistake of citing the wrong Witnesses it was alleadg'd that the desire of that Letter was contrary to this Act ordaining all probation to be receiv'd only in presence of the Pannel 2. That this would ingage Witnesses to adhere to the Depositions that might be Elicited from them by the too great zeal of His Majesties Servants or the influence of others To which it was answer'd that as to the first the Depositions to be taken in that previous Tryal were not to be made use of to the Assize which was all that was discharg'd by this Statute As to the second It was not to be imagin'd that the Judges to whom only this was to be intrusted would prejudge any Pannel or be corrupted by any influence and before the Witnesses Depon'd these Depositions should be destroy'd so that the Witnesses could be under no apprehensions upon that account and the people were in a better condition by this Letter than formerly for it was securer to trust previous examinations to the Judges than to the Kings Advocat who did alwayes Examine alone formerly and this would prevent unjust trouble when there were no Witnesses who could Depone against the persons accus'd through error or malice THis Act is also Explain'd in the Title Assizes But it is fit to add that Blair and others being Convict of Error for assoilÈying some Traitors wrongously and their Escheats being gifted they rais'd a Reduction of the Gift as founded upon a Verdict that was null by this Act in so far as the Kings Advocat had spoke with the Assyzers after they were inclos'd which reason was repell'd because the Justices had declar'd that the Advocat had only spoke to the Assyzers in their presence when the Assyzers were desiring to be solv'd of some doubts which was ordinary and allowable December 21. 1682. It may be also doubted whether such Verdicts can be reduceable for though the Act declare that the Assizers may assoilÈe if any speak to them yet if they and the Justices proceed it seems not quarrellable or at least before the Session for I remember that the Justices having declar'd a Bond of Glenkindies forefaulted for not producing some Witnesses against himself the Lords declar'd that the Justice-court being a Supream Court their Acts and Sentences were not quarrellable before the Session Queritur if both these may not be quarrell'd before the Parliament and I think they can not except the Decreets of the Session can THis and the following Acts to the end of this Parliament were made for quieting the Borders and Highlands as to which the same courses are to be taken though now the Borders are Governed by a Commission of both Kingdoms so they are not put to find Caution as they were by these Acts but the Acts here set down are generally observ'd as to the Highlands still except in so far as I shall here observe upon the respective Acts. Observ. 1. Though this Act appoints that the first day of every Moneth shall be appointed for hearing Complaints concerning the Borders and Highlands yet that is in Desuetude as to both Observ. 2. That that part of the Act ordaining a special Register to be made for Borders and Highlands is in observance quoad the Highlands by a late Act of His Majesties Privy Council BY this Act all the Lands-lords contain'd in this Roll are ordain'd to find Caution which Roll is subjoin'd to the Acts of this Parliament but that Roll is now very much alter'd for many others are now ordain'd to find Caution who are not therein specifi'd but are now in the Proclamations of Council March 17. 1681. c. because the Heretors mention'd in the Acts of Parliament are often extinct and the Lands for which they were to be bound are dispon'd to others And whereas by these Acts these Landlords and Chiefs of Clans were ordain'd to produce their Delinquents before the Justice or his Deputs they are now to produce them before the Council or else to pay the Debt which are great arguments to prove that in matters of Government de facto we consider more the Reason than the Letter of the Law Though this and the 103 Act of this Parliament which is coincident with this may seem severe because the innocent is bound for the guilty yet necessity and publick interest has introduc'd
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
discharging penal Statutes exception is still made of Decreets already obtain'd for by the obtaining of the Decreet before that Discharge the Debt becomes innovated and a private Debt of the nature of other private Rights By this and many other the like observations we may see that the reading Temporary and even abrogated Acts is not useless since material Observations may be made thereupon THis Act is Explained in the 177 Act Par. 13 Ja. 6. THis Act ordains Arch-bishops and Bishops to build and repair their Houses and Manses and that the Successor shall have action against the Predecessors Executors who suffered them to decay which was very just upon the same Reason that all Liferenters are oblig'd praestare hanc cautionem ususructuariam and where the Houses are in decay and Repair'd by the Predecessor the next Successor is to satisfie therefore at the sight of two or three of the Bishops within the Province providing that the satisfaction exceed not 1000 pound if they be Prelats and 500 merks if they be other inferiour Ministers and by the 21 Act Sess. 3 Par. 1 Ch. 2. This is renewed as to the Maintaining of the Manse but the Heretors of the Paroch where there are no Manse are oblig'd to build Manses for Ministers at the sight of the Bishop or such Ministers as he shall appoint not exceeding 1000 pounds and not under 500 merks so that in effect a Ministers Manse may be as dear by that Act as a Bishops Manse is by this which seems unreasonable but their interveening more than 50 years betwixt the two Acts the price of things and Fees of Work-men was much increased the time of the last Act. Vide Papon Arrest lib. 1. num 15. additiones num 6. King IAMES the sixth Parl. 22. THe Presentation of Bishops by Kings begun in the Reign of Lewes King of France about the Year 821. and was resign'd to the Popes by Philip the first and thereafter by the Canon Law the nomination of Arch-bishops and Bishops did belong to the Pope only as the Canonists affirm but he transfer'd this power to the Chapters of Cathedral Churches C. omnes 22. dist c. fin quaest 7. and at last in France by agreement betwixt Pope Leo the Tenth and Francis the First of France the nomination of Prelacies was after much Debate granted to the Kings of France though it be pretended to be a priviledge belonging to Kings in Synodo Aurel. quinta as the Learned Pithâ—us has proven and after that Concordat made in favours of Francis the first It appears that King James the Fifth who lived in the same age and Married Francis the First 's Daughter did with His Parliament Declare that the Nomination of Bishops did belong to the King of Scotland and the Provision only to the Pope Act 125 Par. 7 Ja. 5. But by this Act it is declar'd That Arch bishops and Bishops shall be by His Majesties Licence Elected by the Dean and Chapter of their own Cathedral-kirk to which they are to be prefer'd who being assembled by His Majesties Warrand shall proceed to the Election of the Person named by His Majesty and the Election being Testified under their Seals and Subscriptions he is to get a right to his Benefice under the Kings Great Seal and to be Consecrated It is fit to know that this Warrand for meeting is call'd with us a conge d'eslire which is a French word signifying a liberty to Elect. It is fit to know likewise that with the conge d'eslire there comes a Letter from His Majesty recommending such a Person whom the Dean and Chapter are oblig'd to Elect by the words of this Act and being Elected the Election is Recorded in the Register of the Chapter in which Register all Deeds done by the Bishop either for Entering Vassals or granting Tacks of Teinds are inserted An Extract of this Election is returned to the Arch-bishop of the Province and inserted in his Register and by him Transmitted to the King who thereupon grants a Patent to the Person so Elected who after this is call'd Bishop Elect of such a See which passes through all the Seals and by which he has right both to Spirituality and Temporality though this Act says It shall only give right to the Spirituality This being signifi'd to His Majesty by the said Arch-bishop the King grants His Royal Mandat to a competent number of Bishops within the Province which cannot be under three by the 3 Canon 1 Concil Nicen. after which there is no new Gift to the Temporality as this Act provides only before his actual Possession he makes his homage either to the King personally or to one Commissionated to receive it of which Oath and Homage no mention is made in Ecclesiastick Story till the fourth Counsel of Toledo anno 633. Nota The Mandat for Consecration passes only the Great Seal per saltum It is natural to all Benefices that they should be vacant before they be fill'd and the Right should express a modus vacandi and therefore His Majesty having sent down two Conge d'eslires in January 1679. one in favours of the Bishop of Edinburgh to be Bishop of Ross and another in favours of the Bishop of Galloway to be Bishop of Edinburgh It was advis'd that the Conge d'eslire in favours of Edinburgh should not be presented till Edinburgh was vacant by his being Elected by the Chapter of Ross. It is observable likewise from this Act that a Bishop has not right to the Temporalities till after Consecration For the Act sayes That after the Consecration His Majesty is to Dispone to the Person elected the Temporality and the same being past under the Great Seal the Bishop shall do Homage and swear Obedience neither shall it be lawful for him who is admitted to intromet with any of the Benefices or Rents of the Bishoprick until he have taken the said Oath and done the said Homage And thus the English Lawyers following as I conceive that notion of the Common Law that Episcopus est maritus Ecclesiae They say that Election is as the Sollicitation the Confirmation is the Contract and the Consecration is the Consummation of the Marriage but where a Bishop is Translated there needs no Consecration either by the Canon Law or ours The old Forms of Election was that the King sent a Visitor to oversee the Election and he return'd to the King the Decree of the Election who Confirm'd it by giving investiture and the Metrapolitan was oblig'd to Ordain the Person Elected the Investituâ—e of the Spirituality was by giving a Bible and the Temporality by a Ring and Baton Vid. sirmund form lib. 2. formul 6. and the Conge d'eslire succeeded in place of these Visitors BY this Act the Dean and Members of the Chapters of the Cathedral-kirks within this Kingdom are restor'd to their Manses Gleibs and other Patrimonies belonging to them The Chapter is to the Bishop what Convents were to other
to any Church-lands and all Infestments of Erections of Abbacies Prelacies c. Spirituality or Temporality and a Reduction of these Rights was thereupon rais'd Notwithstanding that by the 2 Act Par. 18 Ja. 6. His Majesty to remove all mistrust does for Him and His Successors perpetually Confirm all Erections Confirmations Patronages of the saids whole Benefices and promises in verbo principis never to quarrel the same But what was done afterwards being voluntar and upon the submission of all parties concern'd did not at all impinge upon the former Statute It is likewise declar'd in the end of this Act that the possession of any thing hereby Revocked shall not prejudge His Majesty and therefore it may be urg'd that fourty years possession of any Lands or others falling under this Revocation would not debar the King by Prescription and yet it was found That if the King be Denuded in favours of a Donatar This Revocation does not interrupt Prescription without a Reduction THis Act is wrong plac'd for it should be after the 14 Act for the Superiorities of Kirk-lands being by the said 14 Act Declared to belong to the King The saids Superiorities are by this Act annex'd to the Crown but they could not have been annex'd to the Crown till they were first declar'd to belong to it THere is here a Dissolution of the Annexation made in the former Act in which it is Declared That this Dissolution shall not warrand the Alienation of His Majesties Castles Woods Parks Meadows and Offices which is conform to the 235 Act Par. 15 Ja. 6. Whereby all Dispositions of these are declar'd null and though the Lomonts of Falkland be Dissolv'd particularly by the 19 Act Par. 18 Ja. 6. Yet it is Declar'd particularly in this Act that they shall remain inseparably with the Crown BEcause by the Act of Prescription 1617. It is appointed that such as might be prejudg'd by that Prescription of fourty years run before that Act 1617. might intent Actions within thirteen years after the Date of that Act and because the King could not intent particular Summons against every person whose Rights he might challenge Therefore it is allow'd by this Act that His Majesty might interrupt the said Prescription by open Proclamation at the Mercat Cross of Edinburgh and other particular Mercat Crosses where the Lands lye and at the Mercat Cross of Edinburgh Peer and Shore of Leith against such as are out of the Kingdom But least this interruption might have too much alarm'd the Subjects It is upon the Kings own Concession declar'd that the said interruption should be Restricâ—'d to the annulling of Rights of the annext Property of the Crown and the un-annex'd whereof account hath been made in the Exchequer and of the principality unlawfully Dispon'd by His Majesties Predecessors against the Laws and Acts then standing and to the annulling of Erections and other Dispositions of whatsoever Lands Tiends Patronages and Benefices formerly belonging to the Kirk and since annex'd to the Crown and of any other Lands or Patronages which should any way justly belong to the Kirk or Crown and of whatsoever Lands and Benefices mortifi'd and devouted to pious Uses and of Regalities and Heretable Offices and of the change of holdings from the ancient holding of Ward and Relief to blench and Taxt Ward since the year of God 1540. years The Earl of Southesk having Right to the Muire of Montromant as Heretable Forrester intented a Declarator against the adjacent Heretors concluding that they should be debar'd from Pasturing therein Against which it being alleadg'd 1. That they had prescriv'd the right of Pasturage It was Reply'd that the Prescription was interrupted by this Act. To which it being Duply'd that this edictal Interruption was introduc'd without a Warrant the Act 1617. having allow'd thirteen years for the Subjects to interrupt without any Reservation in favours of the King 2. This is neither His Majesties annext Property nor is it a part of that un-annext Property whereof the Ferms or Feu-duties have been counted for in Exchequer since the year 1455. and so the interruption which is restricted to these reaches not to this case 3. This Pasturage is but a Servitude and this Interruption extends only to Alienations but not to Servitudes or things of so small moment To which it was Triply'd that as to the first there was no necessity that there should have been a Reservation in favours of the King by the Act 1617. since the King not being mention'd in the Act which was the Rule There was no necessity to reserve His Right by way of exception but this Act of Parliament has supply'd that want though there had been an omission in that Act. To the second it was Triply'd That the interruption 1633. being to secure His Majesty against Prescriptions upon the Act 1617. It was just that it should extend as far as the Act 1617. And these words Whereof the Ferms have been Compted for in Exchequer are only Demonstrative and not Taxative the compting in Exchequer being only a publick Evidence of His Majesties Right and therefore where there were other publick Evidences of His Majesties Right as strong as this His Majesties interruption by this Act behov'd to take place else it should not extend to secure His Majesty as to any thing for which there were blench or Ward-holdings This Act mentioning only Feu-ferms it should not extend to His Majesties Castles or other things for which he gets no advantage 3. This has been compted for in so far as the Sheriff compts for the Blench-duties and Southesk payes Blench-duties for his Forrest 4. By an Act of Parliament in King Davids time 1357. and another 1367. All the Kings Forrestries are ordain'd not to be Dispon'd without consent of Parliament and so are to be lookt upon as a part of the annext Property To the third it was Duply'd That this Act as the Act 1617. was to be extended to Prescriptions and there were things of less consequence than Servitudes secur'd against by this Act such as change of holdings Patronages c. This case is not decided The reason why this Act restricts it self in this Clause to the year 1455. is because in that year was the first Act for annexing any Property to the Crown viz. The 41 Act Par. 11 Ja. 2. It being alleadg'd upon this Act that the King behov'd to produce the Letters of Publication at the several Mercat Crosses and the Executions thereof else His Majesty could not have the benefite of the Interruption It was answered That the Act of Sederunt of the Session did indeed appoint Letters of Publication but two years after that Act this Act of Parliament was made allowing the King this Interruption wherein the Parliament did certainly consider the Publication as having preceeded statuit lex hoc casu super praesumpto and so the Letters of Publication and Extentions need not now be produc'd Which Answer the Lords found Relevant
at due Rates but Teinds holden of Collegiat Kirks are subject to buying and selling as other Teinds the 3. of February 1632. Though it would appear by this Act that every man shall only have the Leading and Drawing of his own Teind after the same is valu'd since the Act sayes the same being first truly and lawfully valued Yet if the Heretor intent a Pursuit for Valuation he will during the Dependence get liberty to lead his own Teinds if he offer Caution to pay his Teinds conform to the Valuation that shall be led July 14. 1630. But this benefit of leading is only granted to Heretors by the the foresaid Act and therefore no Liferent Tacks-man hath this benefit except the Liferent be Constitute by Infestment of Conjunct-fee or the like November 30. 1631. Neither can Rentallers or Tennents crave this benefit ex eodem capiâ—e March 8. 1630. It is only granted likewise to such Heretors whose Teinds were drawn before but not to these who pay'd Rental-bolls July 24. 1635. And yet the contrary is found the 3. of July 1643 But the Heretor may have the leading of his own Teinds though he does not instruct a publick Infeftment if he shew that he is not in mora to be Infest and that he is the person who should be Infest July 6. 1642. But the Teinds belonging to Church-men whereof they were in possession the time of the Submission are not to be led upon Caution and yet by a Missive the 9. of May 1634. His Majesty declares His Favour not to be extended to their Tacks-men being Laicks but that during these Tacks the Heretor may lead he finding Caution as said is By the Submission the Decreets following thereupon and the express words of this Act Ministers are to be provided before the Heretors have liberty to buy or value and therefore the Titular may allocat what Teinds he pleases towards the Maintainance of the Minister and the Heretor eo casu cannot force the Titular to sell February 17. 1645. But though the Kirk be not provided yet the Heretor may buy his Teinds if he be content to undergo his part of the augmentation when it shall be granted the 20. of January 1645. Earl of Hadington contra the Laird of Bairfuird So that it appears that albeit a Titular may assign any one mans whole Teinds towards the Ministers Maintainance when there is no present provision yet if there be any though it be small he may not but the same should burthen proportionally the whole free Teinds of the Paroch where there is a present provision and where the Teinds are once bought the Heretor will not be burdened as long as there is any Tack-duties free in the Titulars hands February 15. 1643. But the Tacks-man will not be found lyable in the said Relief January 27. 1635. But if there be no free Teinds in his hand then the Buyers and all the Heretors must be burdened with the augmentation January 16. 1635. It seems that the Titular cannot assign the Teinds of one Paroch for paying the Stipend of another For by this Act it is said That the Teinds shall be burdened with the Stipend of the Minister serving the Cure of the Kirk But the Commission allocats sometimes the Teinds of one Paroch to make up a Stipend to the adjacent Paroch if the Minister of the Paroch out of which the free Teinds are allocated be competently provided for the Commission thinks the Teinds as the Spirituality of the Church to be burdenable in general and yet if this argument prove any thing it will prove there can be no free Teinds as long as there is any Minister in Scotland unprovided competently BY this Act the Exchequer is Declar'd a Soveraign Court and power is given them to pass and discuss Suspensions and to Decern in all things concerning His Majesties Property and all things concerning the Annuities of Teind which was the particular reason of making this Act at this time but because of this Act giving them power to decide every thing relating to the Property therefore by the 59 Act Par. 1 Sess. Ch. 2. It is declared that the deciding concerning the validity and invalidity of Infestments shall only belong to the Session And whereas this Act allows the Exchequer only to proceed in things relating to His Majesties Property and others depending thereon that Act declares they have liberty to judge in all things relating to His Majesties Rents and Casualities as they might have done before the year 1633. And it being doubted whether the Lords of the Session were Judges competent to the Discussing Suspensions rais'd against the Customers by the Masters of Manufactories who pretended that as to goods imported for the use of their Manufactories they were free from Custom the Lords did justly determine that thogh the Exchequer were only Judges Competent to Discuss Suspensions as to Customs or any part of His Majesties Revenue where the same were due by a clear Law or constant use of payment yet the Lords of the Session were Judges Competent to clear what was due by Law and to interpret Acts of Parliament Nota The Act of Parliament alleadg'd to be made upon the 22. of May 1584. Concerning the Exchequer Ratifi'd by this Act can neither be found amongst the Printed nor the Un-printed Acts. Though by vertue of this Clause and a Letter from His Majesty It is declar'd That the Exchequer are Judges competent to liquidat Wards and Marriages and that the Exchequer has decided in some such cases Yet regulariter the Session are only Judges Competent to such Actions and albeit the Session be only Judges Competent to Contravention of Law-borrows yet after the Contravention is Decided in His Majesties favours if the party against whom the Decreet is obtain'd Suspend the same the Charge being at His Majesties Instance it ought only to be Judg'd by the Exchequer that being a Casuality already stated and the point of Law being already determin'd although it be alleadg'd that this being a Suspension of the Lords of the Sessions Decreet it should only be Discuss'd before them ob continentiam causae Though by the 25. Act Par. 16. Ja. 6. It is appointed that all Hornings henorth d ee shall be upon no less than fifteen Dayes Yet that is to be restricted as has been there observ'd in Cases before the Council for by this Act all Charges of Execution before the Exchequer are to be upon twenty dayes upon the North-side of Dee and ten days upon the South-side of Dee THis Act is the first Commission granted for valuing of Teinds conform to the Surrender and Decreets Arbitral pronunced thereupon which Commission is renew'd in several subsequent Parliaments And for clearing somewhat of The Form of Process before that Court it is fit to know that all Dyets before the Commission are with Continuation and because of their uncertain sitting there needs no Wakening all Procurators appearing before them should have Written
formerly observ'd that they were in use to regulate the Mint also VId. observ on Act 13 Par. 18 Ja. 6. THough by this Act the Clangrigor were abolish'd and they ordain'd to alter their sirname because of their bangstry yet because of their good Services done to His Majesty during the late Rebellion they were restor'd in anno 1661. It has been always believ'd that no Clan or Family can change its sirname in Scotland without express Act of Parliament or Act of Council for that might occasion great confusion and might be a ground of cheating the people in their Evidents and securities But any privat man may as we see daily in Tailies and it does not follow that because the Parliament only can force men to change their sirname that therefore they cannot do it voluntarly themselves BY this Act it is expresly declar'd that because particular Acts of Parliament and Acts of Ratification are made without hearing of Parties that therefore the Lords of Session shall Judge in these cases without respect to those Acts according to the privat interests of parties The immediat occasion of making this Act was the case betwixt John Stuart of Coldinghame and the Earl of Hume which was this The Earl of Bothwel having been Forefaulted the Priory of Coldinghame was Dispon'd by the King to the Earl of Hume which Earl of Hume set in Tack a-part of the Teinds of the said Priory to the Laird of Wedderburn but thereafter the Earl of Hume having entred in a Transaction with John Stuart Son to the Earl of Bothwel he suffers by Collusion a Decreet of Parliament to pass in anno 1621. whereby John Stuart was not only re-habilitat as to his Blood but the Forefaulture Rescinded in so far as concerned his Right to the Priory of Coldinghame upon a pretext that he had a commendam of it settled in his person before his Father was Forefaulted whereupon Dowglass of Evelaw pursuing the Laird of Wedderburn for a Spuilzie of Teinds in anno 1627. he obtains a Decreet notwithstanding of very unanswerable grounds then alleadg'd because the Lords of the Session would not call in question the Act of Parliament 1621. Notwithstanding of the Act salvo subjoyn'd to the Acts of that Parliament for the Lords found that the Session as an inferiour Judicature could not canvass special Acts of Parliament but because the Subjects might be extreamly prejudg'd in their privat Rights by such Acts of Parliament therefore the foresaid Clausâ— was inserted in this Act and that it might extend to this Case though anterior it is expresly declar'd in this Act that this was the meaning of all former Acts Salvo and accordingly the Lords of the Session did in February 1679. Repone the Laird of Wedderburn to Debate upon his just Rights notwithstanding of the Act of Parliament 1621. By this Act several privat Rights and Ratifications are excepted from this Act salvo But since the Act salvo proceeds upon the principal of natural Reason and Justice it seems that even these Exceptions are questionable for else the Act salvo should signifie nothing For these who had the interest to obtain privat Acts of Parliament would likewise have the interest to get them excepted from the Act salvo and upon this Reason it was doubted and not Decided whether Exceptions from the Act salvo made in privat Rights though not repeated in the Act salvo were sufficient to secure these Rights against the Act salvo for though it might be alleadg'd that in these there is a speciality from this case since the Act salvo being posterior and simple Annuls and Derogats from the former Reservation yet even there it may be alleadg'd that it cannot derogat since in the former special Act the Parliament Declar'd their special Inclination that it should not Derogat Nota The Act salvo jure is never Voted in Parliament because it is but an Act in Course and for the same Reason Ratifications are not Voted now since no man can be concern'd in either albeit of old I find that Ratifications were past in Parliament in the form of decreets and so must have been voted but it seems strange why Acts for granting of Mercats and Imposing Customs for the maintaining of Bridges should not be Voted And in the Parliament 1681. The Reports of the Articles thereof as to these past the last Dâ—y without being Voted which was oppos'd by some as irregular because there the consent of some parts of the Nation was requisite But I conceive that this likewise proceeded from the numerousness of the things that were brought in and the general acquiescence of the Members and the time they were to sit being so short and it seems securer to settle these by a vote K. CHARLES II. Parliament I. Session first ALbeit KING CHARLES the Second did hold a Parliament at Saint-Iohnstoun in anno 1650. yet this Parliament being the first after His Majesties happy Restauration is by the Inscription Intituled The First Parliament of KING CHARLES the Second though that Parliament 1650. is not Rescinded by the general Act Rescissory which is the fifteenth Act of this Parliament Nor by any other special Act And so that Parliament stands still in force so that this Inscription seems unwarrantable THe Rebellious Parliaments in the former age did choose their own President though the Chancellour ought to have presided in all Courts as is insinuated by the 40 Act Par. 5 Ja. 5. but this they did to have the President of Parliament Depend upon Them and not upon the King and therefore by this Act it is Declar'd that the Chancellour is ratione officii to preside in all publick Judicatures where he is present Observ. 1. That this Act says That the Lord Chancellour and such as shall be nominated by His Majesty shall preside and therefore if the King please He may Nominat another President though the Chancellour be present And I find that His Majesty has Nominated others to preside where the Chancellour was present Obser. 2. That though when the Chancellour is absent His Majesty can only Nominat another President Yet this does not exclude His Majesties High Commissioner from the power of Nominating a President since he has mandatum cum libera and Middleton did Nominat the Earl of Crawfurd to preside in this Parliament when Glencairn then Chancellour went to London Observ. 3. That the Chancellour is to preside not only in the Parliament but in all other publick Judicatures and therefore though it was pretended by the Thesaurer that notwithstanding of this Act the Chancellour could not preside in Exchequer though he was named in the Commission Because the Exchequer was rather the Kings Chamberlains Court than a publick Judicature in which the Thesaurer was chiefly intrusted because he was chiefly to be answerable yet this pretence was groundless since the Exchequer is a Judicature which Hears and Discusses Causes relating to the Revenue and is Declar'd a Judicature by the
pag. 206. Observes well that formula illa quae est in titulis Dei gratia utuntur illi soli qui nulli mortalium imperium suum debent vid. obs on the 251 Act Par. 15 Ja. 6. THis Act allowing the Government by Synods Presbytries and Sessions is Rescinded by the 1 Act of the 2 Sess. of this Parliament THis Act appointing a Solemn Aniversary Thanksgiving for His Majesties happy Restauration was scrupled at because this Act did appoint it to be set a-part as a Holy-day and therefore it was thought fit by the 12 Act of the 3 Sess. Par. 2 Ch. 2. To renew it as an Anniversary Thanksgiving leaving out the words Holy-Day THis Act against Cursing and Beating of Parents is fully Explain'd crim pract tit Paricide THis Act is Explain'd crim pract tit Blasphemy THis Act concerning casual Homicide is Explain'd crim pract tit Homicide but it is fit to add here that the Rubrick of this Act of Parliament bearing Act concerning the several Degrees of casual Homicide is very rediculous for the degrees mentioned in the Act are casual Homicide Homicide in lawful Defence and Homicide committed upon Thieves and no sober Lawyer can think that either Homicide in Defence or Homicide committed upon Thieves are degrees of casual Homicide BY this Act the whole priviledges belonging to the Colledge of Justice that is to say Senators Advocats Clerks Writers and remanent Members or whereof they have been in use or in possession at any time bygone are expresly Ratifi'd and that notwithstanding of whatsoever Act Custom or Practice to the contrary Vid. Act 8 Par. 2 Sess. 2 Ch. 2. Where the priviledge of Immunity from Taxes is only given to the Lords of Session Upon which Act it was Debated in December 1678. Whether Advocats should not be free from the Annuity impos'd by the Town of Edinburgh since they were by this Act freed from all Impositions and though by a special Act of this same Parliament Ch. 2. The Colledge of Justice was made lyable to the Annuity Yet they being free by this Act and the other Act being but an un-printed Act and an Act to which they were not call'd their priviledge could not be thereby taken away albeit it was contended that the being free from Annuity was no priviledge ever expresly Declared in their favours But on the contrary was a Debt upon them as Hearers of the Word of God and so the Parliament might very well by a general Law declare this Priviledge not to prejudge the Annuities nor was that Law concerning Annuities a special but a general Law binding all the people who came to live in Edinburgh and therefore there needed no party be cited nor was it necessary to the Essence of an Act of Parliament that it should be printed BY this Act the Creditors of the Defunct are prefer'd to the Creditors of the appearand Heir as to all Execution against the Defuncts Estate they doing Diligence within three years after the Defuncts Death which three years was found to be tempus continuum and not utile and that these three Years did run even contra non valentem agere December 19 1678. Paterson contra Bruce The reason of which Act of Parliament is that it is just that every mans Estate should pay his own Debt though upon the other hand it is likewise just that in the next place the appearand Heirs Creditors may likewise do Diligence even against that Estate to which their Creditor may succâ—ed Nor ought his voluntary lying out to prejudge them for which cause likewise it is that they may Charge the appearand Heir to Enter and Comprise or adjudge the Predecessors Estate BY this Act it is ordain'd that fourty dayes after the Sentence of Excommunication Letters may be rais'd at His Majesties Advocats instance for Denuncing the persons Excommunicat Rebels the Process being first revis'd by the Lords of the Session but this power of the Lords of the Session being made before the Bishops were Restor'd is abrogated by the 23 Act of the 3 Sess. of this Parliament BY this Act the person from whom Goods were Stollen is to have his Goods or the value thereof restor'd to him out of the readiest of the Thiefs Goods he alwise pursuing the Thief to Sentence Observ. 1. Since this Act reserves to the Sheriff or Takers of the Thief the expence war'd out by them in taking the Thief and putting him to â—xecution It seems that they ought to be prefer'd to the Owners of the Goods though the Act sayes that he is to be pay'd out of the readiest Observ. 2. It may be doubted whether the Justices or the Judge ordinary should Restore and though the Justices have no civil Jurisdiction yet I have seen them Restore in such Cases and this is in effect an incident Jurisdiction â—b continentiam causae Observ. 3. That it has been doubted whether third parties buying the Goods though in a publick Mercat are oblig'd to restore THis Act pardoning penal Statutes seems by a mistake to except Usury for Usury is properly a Crime punishable by all Law at all times Whereas a penal Statute is properly a Statute which punishes a Delinquency that is only punishable upon some occasions by an arbitrary punishment and therefore Acts of Grace or general Indemnities Discharging the Execution of penal Statutes should no more be extended to Usury than it should be extended to Murther or Adultery and Usury is by the Act of Indemnity which is the 29 Act 3 Sess. of this Parliament excepted from that Indemnity amongst Murderers Thefts and other Crimes of that Nature and it was excepted only in this Act ad majorem cautelam because the Chancellour had then the Gift of Usury What are properly counted penal Statutes may be seen Act 9 Par. 21 Ja. 6. Where amongst other Crimes Usury is ordain'd to be punish'd and not to be pardon'd as a penal Statute and if Usury fell under penal Statutes it would very much encourage Usury for men would still expect a Discharge of it because penal Statutes are frequently Discharg'd But yet the Lords in the case betwixt the Laird of Haining and Cruick found that Usury was Discharg'd by the Act of Grace 1674. because of the special conception of that Act. BY this Act the Quots of Testaments are taken from the Commissars but upon the Restoring of Bishops this Act is abrogated by the 1 Act and 2 Sess. of this Parliament THis Act is formerly Explain'd Act 77 Par. 13 Act 10 Par. 18 Ja. 6. THis Act is formerly Explain'd in the 14 Act Par. 1 Ch. 1. BY this Act all Comprisings are to be allow'd within sixty dayes after the date thereof with Certification that if they be not allow'd and Recorded within that space a posterior Comprising first Recorded shall be prefer'd thereto and upon the 8 of June 1665. The Lords upon a Supplication ordain'd a Comprising to be allow'd
Parliament was Adjourned by Proclamation was elapsed a new Parliament behoved to be called Or if the current Parliament ought to be Adjourned by a new Proclamation notwithstanding the Day was elaps'd and it was found that it might be Adjourned since the power of Calling and Dissolving Parliaments is the Kings Prerogative and a Letter to this purpose from the King is Registrated in the Council Books in July 1683. King CHARLES 2. Parliament 1. Session 2. EPiscopacy having been Restor'd in anno 1606. Bishops were by the Rebellious Parliaments abolish'd and therefore are by this Act Restor'd to their undoubted Priviledge in Parliament that is to say to be a third Estate their Function Dignities and Estates but before this Act of Parliament the Secret Council by their Act in June 1662. Discharg'd any Person to meddle with their Estates or Revenues in Obedience to a Letter directed by His Majesty which gave the first rise both to that Act of Council and this Act of Parliament By the first Act Par. 12. Ja. 6. King James had permitted the Church to be Govern'd by General-assemblies Synods and Presbytries Which Act was not expresly abrogated by the 2 Act Par. 18. Ja. 6. and therefore it is by this Act expresly abrogated They are also Restor'd to their Commissariots and Quots of Testaments but the present Commissars Rights are reserv'd and albeit they be Restored to the Superiorities Yet Vassals having Entered by or having pay'd to the Superiors for the Interval are secur'd BY this Act taking up Arms though in Defence of Religion is Declar'd Treason and conform to this Clause all going to Field-conventicles in Arms was Declar'd Treasonable though it was alleadg'd that this was not a Rising in Arms since every man went without knowing of his Neighbour for the Council and Justices thought that at this rate a multitude of Arm'd men might easily assemble and the Levying War or taking up Arms being impersonally Discharg'd it reaches every single man and though there were only one single man in Arms yet he would be guilty of Treason especially after that Proclamation for he knew not but others might be there versabatur in illicito By this Act also all accession to the Suspending His Majesty or His Successors or to the Restraining their Persons or inviting Forraigners to Invade their Dominions is declar'd Treason There is one Branch of this Clause which may seem hard but was necessary viz. Or put limitations upon their due Obedience for the former age and this having invented new Treasons in asserting they would own the King in as far as He would keep the Covenant or own Jesus Christ But reserving still to themselves to judge how far the King did so they did by a necessary consequence conclude that they were no further oblig'd than they pleas'd and so made themselves in effect Judges above the King than both which nothing can be more Treasonable And I remember that Sir Francis Bacon in his History of King Henry 7. Tells us That the Judges of England found Sir Robert Clifford guilty of Treason because he said that if he knew Perkin Werbeck were King Edward 's Son he would never bear Arms against him though the Words were alleadg'd to be only conditional for they thought it a dangerous thing to admit ands and ifs to qualifie words of Treason whereby any man might express his malice and blanch his danger The denying His Majesties Supremacy as it was then Established is declar'd punishable by in-capacity and such other punishment as is thereto due by Law But it had been fitter to Determine that punishment and from the words as it is now Establisht It may be doubted whether the Impugning the Supremacy absolutely be punishable by this Act since the Supremacy is extended by a posterior Act viz. The 1 Act 2 Par. Ch. 2. But that Act being only an Explication of this all such as Impugn the Kings Supremacy absolutely are punishable From these words also That they shall be punishable by such other pains as are due by Law in such cases It may be doubted what punishment is due to such as Impugn the Kings Supremacy besides incapacity and it seems they may be pannal'd upon the 129 and 130 Acts 8 Par. Ja. 6. It has been urg'd That all speaking against the Kings Prerogative is only punishable by incapacity and arbitrary punishments because this Clause sayes That if they Speak Print c. against the Kings Supremacy in Causes Ecclesiastick or to justifie any of the actings or practices abovementioned they shall be so punished But so it is that all rising in Arms to Depose the King c. are above-mentioned Ergo say they The speaking or Preaching in Defence of these is only to be so punished and they urge this from the Principles of Reason and the practice of other Nations and that excellent Law si quis imperatori maledixerit lib 9. tit 7. C. but this were a most absur'd Gloss For certainly if this Objection prov'd any thing it would prove that no words could infer Treason which is expresly contrary to the very Act whereby all these Positions are Declar'd Treason and consequently all words whatsoever which express these Positions are punishable as â—reason and it is fit to know that it is not that very formula or words which are condemn'd but these Positions are condemn'd for else it were easie to make the Act elusory and to evade it by using other words than the words here set down and the Analysis of that part of the Act is that first the Positions are Declar'd Treasonable 2. The speaking against the Kings Supremacy and the Ecclesiastical Government as now Establish'd c. is forbidden 3. The Plotting or Contriving any thing against the King consequentially to these Positions is Declar'd punishable by Forefaulture 4. That the speaking c. against the Supremacy and the Establish'd Government of the Church is to be punish'd arbitrarly and the words Or to justifie any of the Deeds declar'd againstly this present Act are to be restricted to words relative to the Supremacy c. mention'd in that Clause only It is also observable That the Impugning the Government by Bishops or the Kings Supremacy are only punishable if they be pursu'd within eight Moneths and Sentenc'd within four Moneths thereafter and are only punishable by this Act if it was done by malicious and advis'd Speaking and therefore it appears that such as were Drunk when they spoke these words are not punishable by this Act nor such as are reputed fatuus and Fools though they be not declared Idiots or Furious and yet it seems that all Writing Preaching and Prayers and such malicious Expressions to stir up the people to a dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastick are punishable indefinitly and that because either the Law presumes they are premeditated or because of the great danger arising therefrom and therefore it will have them punish'd as such
Judges inclined to think that these Regulations extend to Justice-airs as well as Justice-Courts as to all the Articles here exprest since Orders are given by the Parliament for regulating Justice in these Regulations which shew the Parliament design'd to extend them to both From these words in the ninth Article That the Chancellour of the Assize mark how every individual Assizer shall Vote whether he Condemns or AsseilÈies it clearly follows that no Assyzer in Criminals may be non liquet and if this were allow'd in one it might be in all because this was not necessary formerly Therefore by the 63 Act Par. 8. Ja. 3. It was ordain'd that when a Summons of Error was rais'd each Assizer was to set down who assoilÈed and who Condemned but because they might forget or for fear of punishment might be unfaithful in this Therefore this Act appoints That in the first Verdict it shall be marked who Condemned and who assoilÈed Albeit this Act appoints that the Chancellor shall mark whether every man assoilÈes or Condemns Yet it is thought the omission of this would not annul a Verdict in favours of the King that being only introduc'd in favours of the King to the end that His Majesties Advocat may be instructed whom to pursue in a Summons of Error when a party is wrongously assoilÈed By the 11 Article it is appointed That when any Summons of Exculpation is Executed against any party that at the same time the Names of the Witnesses and Inquest should be given to the end the party may know what to object against the Witnesses Upon which Article it was alleadged that when an Exculpation was rais'd against the King the Witnesses Names should be given to his Advocat likewise and which the Justices found to be necessary in March 1680. For the Act being general as to all and there being as great reason that the King should know those who are to be led against Him as any privat party He ought to have the same measure and whereas it was objected that it were a very severe thing that a poor Pannal might not lead any Witness even during the Debate though his Name had not been given in List yet this has no weight since the Act is so clear in general Terms as to all and it may seem as unreasonable that the King should not be allow'd to lead any Witness to prove a Crime if he find him in the Court the time of the Debate for the Pannal may much better know who can prove his Defence since he behov'd to know them if they were present than the Kings Advocat can know who were present when the Crime was committed and though there may be some inconvenience in this for one particular Pannal yet in the general there is great advantage in this to Pannals the King being thereby forc'd to give in the Names of his Witnesses so that the Pannal may not only know how to object against them but even how to practise them and whereas it may be objected that by this procedure there behov'd to be progressus in infinitum since the King might Cite Witnesses to cast the Pannals Witnesses and the Pannal behov'd therefore to be allow'd to cast the Kings Witnesses and to have Citation for that effect It is answered that this might as well be urg'd against all Reprobators nor does this hold here for the Judge should not allow such Citations save one to each party Because Messengers in Executing Criminal Letters gave sometimes only copies of the Libel it self and yet returned Executions to His Majesties Advocat that they had likwise given Lists of Assizers and Witnesses Therefore the Justices declar'd in February 1681. by an Act of their Sederunt that if the Pannal should produce a Copy under the Messengers hand of the Libel except the List of the Assizers and Witnesses Names were upon the same Paper with it they would not sustain the Execution though bearing That Lists of Witnesses and Assizers were given THis Act is Explain'd in the 1 Act 1 Par. Sess. 3. and 7 Act Sess. 2 Par. 2 Ch. 2. COmprisings were at first Invented to pay Debt with a suitable proportion of Land and the Sheriff was to adjust the sums due with the Lands Comprised but thereafter great Estates being Comprised for small Debts the Parliament thought fit by this Act to Ordain that for the future not a Messenger who was Judge in Comprisings but the Lords of Session should by a Process before them Adjudge as much of the Debitors Lands to the Creditor as would satisfie his principal Sum and Annualrent with a fifth part more because the Creditor was forc'd to take Land for Money whereas by the Common Law aliud pro alio invito creditore solvi nequit And albeit this Act expresses only that this fifth part shall be beside the Composition to the Superiour and Expenses of Infeftment yet certainly the Creditor must likewise have all the Expenses bestow'd upon the Process for as this is reasonable in it self so that expenses tends to the procuring of the Infeftment Observ. 1. This Act came in to the Parliament simply in these Terms and the equity of it was prest from the Custom of other Nations and particularly the Common Law where the Praetor did adjudge the Debitors Land proportionally to the Debt but it being strongly urg'd by the Lawyers Burgesses and other Members who were Moneyed Men that it was most unreasonable to force the Creditor to take Land except the Debitor should produce to him a good Progress and Security for both to be forced to take Land and yet to want a sufficient Right thereto was altogether unreasonable Therefore the Parliament ordain'd that if the Debitor did not compear and produce a sufficient progress and Renunce the Possession the Debitor might Adjudge the whole Estate as formerly he Comprised it and this has almost Evacuated the whole Act for the most of Debitors are unwilling to produce a Progresâ— and renunce Possession and therefore most Lands are now adjudg'd as they were formerly apprised and in December 6. 1681. It was found that an Adjudication led for a fifth part more in absence of the Debitor was null since the fifth part more was only to be given where the Creditor compeared produced a Progress and Renunced albeit it seems that this alternative being introduced in favours of the Creditor it ought to be optional to him to choose either Observ. 2. That the Legal in these Adjudications is only five years whereas it was seven in Comprisings for the danger being less because of the said Commensuration it was just that the time for Redemption should be shorter and though it be not exprest that the foresaid five year shall not run against Minors and that it may seem it should not run against them in respect of the short commensuration and that it seems unreasonable that a Creditor being forc'd to take so little Land and should yet be forced to be