Edinburgh March 18. 1684. IT is ordered by the Lords of His Majesties most honourable Privie Council That none shall Re-Print or Import into this Kingdom the Book intitutled The Institutions of the Laws of SCOTLAND by Sir George Mackenzie of Rosehaugh His Majesties Advocat for the space of nineteen years after the date hereof without the consent of the Author under the pain of confiscation of the whole Copies to John Reid Printer of the said Book Extracted by me Pat. Menzies Cls. Sti. Cli. THE INSTITUTIONS OF THE LAW OF SCOTLAND By Sir George Mackenzie of Rosehaugh His MAJESTIES Advocat EDINBURGH Printed by Iohn Reid Anno DOM. M DC LXXXIV To the Earl of MIDDLETON My Lord THE Natural way of Learning all Arts and Sciences is to know First the Terms used in them and the Principles upon which they are founded with the Origins of the one and the Reasons of the other A Collection of these Terms and Principles is in Law called Institutions and the Natural and Easie way of Writing these is by going from the first Principle to a second and from that to a third The admir'd Method of Euclid in his Elements though much neglected by all who have written Institutions of Law in which not onely many things unnecessary are insert as almost all the third book of Justinians Institutions the Differences betwixt the Sabiniani and Proculiani c. Many Fundamental Titles are ommitted as all the matter of Restitutions And many things are taught in the first Book which cannot be understood till the fourth be read I have therefore in these my Institutions treated nothing save Terms and Principles leaving out nothing that is necessary and inserting nothing that is contraverted in all which I have proceeded building alwayes one Principle upon another and expressing every thing in the Terms of the Civil Law or in the Stile of Ours respectively so that if any Man understand fully this Little Book Natural Reason and Thinking will easily supply much of what is diffused through our many Volums of Treatises and Decisions Whereas the studying those would not in many years give a true Idea of our Law and does rather distract than instruct And I have often observed that moe Lawyers are ignorant for not understanding the first Principles than for not having read many Books as it is not the having travelled long but the having known the way which brings a man to his Lodging soon and securely My Lord You observ'd very justly to me that Institutions are a Grammar and therefore which is a great encouragement to all Readers of Institutions they who understand the Institutions of any one Nation will soon learn the Law of any other For though Terms Forms and Customs differ yet the great Principles of Iustice and Equity are the same in all Nations I send mine therefore to your Lordship not because you need them but that you may judge if my Institutions will be able to justifie your parallel Nec Phoebo gratior ulla est Quam sibi quae Vari praescripsit pagina Nomen The INDEX of the TITLES PART I. Title I. OF Laws in General Page 1 Title II. Of Iurisdictions and Iudges in general Page 9 Title III. Of the Supream Iudges and Courts of Scotland Page 17 Title IV. Of inferiour Iurisdictions and Courts Page 27 Title V. Of Ecclesiastick Persons Page 33 Title VI. Of Marriage Page 46 Title VII Of Minors and their Tutors and Curators Page 47 PART II. Title I. OF the Division of Rights and the several wayes of acquiring Property and Dominion Page 74 Title II. Of the difference betwixt Heritable and Moveable Rights Page 83 Title III. Of the Constitution of Heritable Rights by Charter and Seasin Page 92 Title IV. Of the several kinds of Holding Title V. Of the Casualities due to the Superiour Page 108 Title VI. Of the Right which the Vassal acquires by getting the Feu Page 13â— Title VII Of Transmission of Rights by Confirmation and of the difference betwixt Base and Publick Infeftments Page 14â— Title VIII Of Redeemable Rights Page 15â— Title IX Of Serâ—itudes Page 16â— Title X. Of â—eynds Page 18â— Title XI Of Inhibitions Page 19â— Title XII Of Comprysings and Adjudications Page 20â— PART III. Title I. OF Obligations and Contracts in general Page 217 Title II. Of Obligations by Write or Word Page 228 Title III. Of Obligations and Contracts arising from Consent and of accessory Obligations Page 232 Title IV. Of the Dissolution or Extension of Obligations Page 255 Title V. Of Assignations Page 261 Title V. Of Arrâ—stments and Poiâ—â—ings Page 265 Title VI. Of Prescriptions Page 275 Title VII Of Succession in Heritable Rights Page 282 Title VIII Of Succession in Moveaâ—â—es Page 323 Title IX Of â—â—st Heir and Bastards Page 330 PART IV. Title I. OF Actions Page 334 Title II. Of Probation Page 362 Title III. Of Sentences and their Execution Page 368 Title IV. Of Crimes Page 375 THE INSTITUTIONS Of the Law of SCOTLAND FIRST PART Tit. I. Of Laws in General JUSTICE is a constant and perpetual Will and Inclination to give every Man what is due to him LAW is the Science which teacheth us to do Justice This Law in a large acceptation is divided In the Law of Nature Law of Nations and the Civil and Municipal Law of each particular Countrie The Law of Nature comprehends those Dictats which Nature hath taught all living creatures instances whereof are Self Defence Education of Children and generally all those common principles which are common to Man and beasts and this is rather innate instinct than positive Law The Law of Nations is peculiar to Man-kind onely dictated by right Reason and is divided into the Original and primarie Law of Nature that flows from the first and purest principles of right Reason Such as Reverence to GOD respect to our Country and Parents And the secundarie and consequential Law of Nature consisting of these general conclusions in which ordinarly all Nations agree and which they draw by way of necessary consequence from those first principles And under this part of the Law of Nations are comprehended the Obligations arising from promises or contracts The liberties of Commerce the ransoming of Prisoners securitie of Ambassadours and the like Civil or Municipal Law are the particular Laws and Customes of every Nation or people who are under one Soveraign Power The Romans having studied with great exactness the principles of Equity and Iustice. Their Emperour Iustinian did cause digest all their Laws into one body which is nowcalled by most polit Nations for its Excellency the Civil Law And as this Civil Law is much respected generally so it has great influence in Scotland except where Our own express Laws or Customes have receded from it And by the common Law in our Acts of Parliament is meant the Civil Law The Popes of Rome in Imitation of the Civil Law made a body of Law of their own which because it was compiled by
but are Iuris Divini which are either sacred such as the Bells of Churches for though we have no consecration of things since the Reformation yet some things have a Relative Holiness and Sanctity and so fall not under Commerce that is to say cannot be bought and sold by Private Persons Quinto Things that are called sanctae so called because they are guarded from the injuries of Men by speciall Sanctions as the walls of Cities Persons of Ambassadours and Laws Sexto Things Religious such as Church-Yeards As to those things which fall within Commerce we may acquire right to them either by the Law of Nature and Nations or by our Civil and Municipal Law dominion or propertie is acquired by the Law of Nations either by our own fact and deed or Secundo by a connexion with or dependence upon things belonging to us the first by a General term is called Occupation and the last Accession Occupation is the apropriating and apprehending of those things which formerly belonged to none And thus we acquire propertie in wild Beasts of which we acquire a Right how soon we apprehend them or are in the prosecution of them with probabilitie to apprehend them as also we retain a right to them whilst they remain in Our possession and evenafter they have escapt if they be yet recoverable by us Secundo Propertie comes by Accession as for instance a House Built upon or Trees taking root in our ground and the product also of our beasts belong to us and ground that grows to our ground becomes insensibly ours and is called Alluvio by the Civilians And it is a general Rule in Law that accessorium sequitur Naturam sui principalis and yet a Picture drawn by a great Master upon another mans Sheet or Table belongs to the Painter and not to the Master of that whereon it is drawn the meanness of the one ceding to the nobleness of the other There are many other wayes of acquiring Right and Property which may be referred either to Occupation or Accession as if a Man should make a Ship of my Wood it would become the Makers and would not belong to me to whom the wood belonged and this is called Specification in which this is a general rule that if the species can be reduced to the rude masse of matter then the Owner of the matter is also owner of the species or thing made As if a Cup be made of another mans Silver the cup belongs not to the maker but to the owner of the Mettle because it can be reduced to the first Mass of Silver but if it cannot be reduced then the Species will undoubtedly belong to him that made it and not to the owner of the matter as Wine and Oyl made of anothers Grapes and Olives which belongs to the maker seing wine cannot be reduced to the Grapes of which it was made Propertie is likewise acquired when two or moe Persons mixe together in one what formerly belonged to them severally and if the matterials mixed be liquid it is called by a special name Confusion as when several Persons Wines are mixed and confounded together but if the particulars mixed be dry and solid so as to retain their different shapes and Forms it is called commixtion and in both cases if the confusion or commixtion be by consent of the Owners the body or thing resulting from it is common to them all but if the Commixtion be by chance then if the matterials cannot be separated the thing is yet common as when the Graine or Corns of two persons are mixed together by chance here there must necessarly be a community because the separation is impossible but if two Flocks of sheep belonging to different persons should by accident mix together there would be no community but every man would retain right to his own Flock seing they can be distinctly known and separated and these two ways of acquisition are by accerssion The last and most ordinarie way of acquiring of property is by tradition which is defyned a delivery of possession by the true owner with a design to transfer the property to the Receiver and this translation is made either by the real delivery of the thing it self as of a horse a cup c. or by a Symbolick delivery As is the delivery of a little Earth and Stone in place of the Land it self for where the thing cannot be truely delivered the Law allows some symbols or marks of tradition and so far is tradition necessary to the acquiring of the prorerty in such cases that he who gets the last right but the first tradition is still preferr'd by our Law If he who was once Proprietar does willingly quite his Right and throw it away which the Civil Law calls pro derelicto habere the first finder acquirs a new Right per inventionem or by finding it by which way also men acquire right to Treasures and to Iewels lying on the Shoare and generally to all things that belonged formerly to no man or were thrown away by them But it is a general Rule in Our Law that what belongs to no man is understood to belong to the King Prescription is a chief way of acquiring Rights by the Civil Law but because that Title comprehends many things which cannot be here understood I have treated that Title amongst the ways of loosing Rights it being upon diverse considerations modus acquirendi amittendi We also acquire Right to the Fruits of those things which we possess bona fide if these Fruits were gathered in or uplifted and consumed by us whilst we thought we had a good Right to the thing it self for though thereafter our Right was found not to be good yet the Law judged it unreasonable to make us restore what we lookt upon as our own when we spent it and therefore whenever this bona fides ceaseth which may be several wayes especially by intenting an action at the true owners instance we become answerable for these Fruits though thereafter they be percepti consumpti by us Tit. II. Of the difference betwixt Heritable and Moveable Rights HAving in the former Title cleared how we acquire Rights we come now to the division of them The most comprehensive division of Rights amongst us is that whereby they are divided into Heritable and Moveable Rights Heritable Rights in a strict sense are only Lands and all summs of money and other things which can be moved from one place to another are moveable but that is only counted Heritable in a Legal Sense which belongs to the Heir as all other things which fall to the Executor are moveable and so sums of money albeit of their own nature they are moveable yet if they were lent for Annualrent they were of old repute heritable For understanding whereof it is necessar to know that albeit by the Cannon Law all Annualrents were forbidden as being contrare to the Nature of the thing money being barren of its
is to say when the Debt and Credit meet in the same Person as when the Debitor succeeds to the Creditor or the Creditor to the Debitor or a Stranger to both and the reason of the Extinction in these cases is because the same Person cannot be both Debitor and Creditor Title V. Of ASSIGNATIONS ALL Rights whether Heritable or Moveable are transmissiable by Assignation but if a Seasin once be taken the Right is not Transmissable by an Assignation but by a Disposition except Liferents which are Transmissable by Assignation even after Seasin because they can admit of no subaltern Infefâ—ments He who grants the Assignations is called the Cedent and he who receives it is called the Assignay Assignation to a Right is compleated by Intimation and therefore in competition betwixt diverse assignays the first intimation is alwayes preferred This intimation is made by a Procurator who takes instruments in the hands of a Notar that such an assignation was intimat so that one man cannot be both Notar and Procurator and if after this the Debitor pay the Cedent he must repay it to the assignay because the Cedent was denuded by the assignation and for the same reason the Cedents oath will not prove against the assignay if the assignation be for an Onerous cause But if the assignation be Gratuitous or for the Cedents behoof or if the matter be litigious and after a depending Process in any of these cases the Cedents oath will prove against the assignay A pursute or charge of horning upon the Action assigned has likewayes the force and effect of an intimation but an Inhibition against the Cedent upon the assignation will not supply intimation The Debitors private knowledge of the assignation is not equivalent to an intimation but his paying a part of the sum or annualrent for it is equivalent to an intimation and much more the writting a letter promissing to pay since that is in effect a renewing the Obligation Bills of Exchange and orders by Merchants to pay need not be intimated because in Commerce we are Governed by the Law of Nations nor need assignations to reversions be intimated because the registration is a publication of them nor legalâ— judicial assignations such as apprisings adjudications and Marriage and that because they are past and expede publictly A Blank Band is equivalent to an assignation and so must be intimated and in competition with other rights it is only preferred according to the date of its intimation that the receivers name was filled up in it It is a general principle in Our Law that in the competition of moe Creditors the first compleat diligence is still preferred And therefore an Assignation is preferred to an Arrestment if it be intimate before the arrestment but if the imtimation and Arrestment be in one day they come in pari passu except the Arrester be in mora and do no diligence upon his Arrestment Title V. Of Arrestments and Poyndings THE ordinary Diligences in Our Law affecting Moveable Rights are Arrestment which answers to Inhibition in Heritage and poynding which answers to Comprising in Heritage Arrestment is the cammand of a Iudge discharging any Person in whose hands the Debitors Moveables are to pay or deliver up the same till the Creditor who has procured the Arrestment to be laid on he satisfied Arrestments may be laid on by any Iudge in whose Territories the goods are or by the Lords of the Session wherever they lye and that by special letters of Arrestment or by a warrand exprest in the ordinarie letters of horning these letters are execute by a Messenger and if after it is laid on the partie in whose hands it is made pay he may be forced to pay the same over again or may be pursued Criminally for breaking Arrestment the punishment being consiscation of Moveables and their persons to be in the Kings will Arrestment can only affect moveable sums and the ground thereof must be for payment of moveable debts or sums due on Heritable security if no infeftment has followed and it reaches only to the sums already due or for which the year or term is current How soon on Action is raised against a Person his Goods may thereupon be arrested and this is called an Arrestment upon a Dependence but this Arrestment may be loosed by letters for loosing of Arrestment which passes upon a Common Bill and a Band of Cautionry is given to the Clerk of the Bills wherein the Granter of the band obliges himself to pay the sum if the Arrestment be found lawful and the sums or goods decerned to belong to the Arrester but Arrestments upon a Decreet or which is equivalent on a Registrat Band cannot be loosed at all Except the decreet be turned unto a libel that is to say the Lords do only sustain the Decreet as a libell or summonds against the Defender or that the Arrestment was laid on after the Decreet was suspended for in either of theses cases Arrestments may be loosed even upon Decreets Arrestment being but a Personal Prohibition against the Defender to pay it lasts no longer than the lifetime of him in whose hands the Arrestment is made except it be renewed against his Successors but it dyes not with him in whose favours it was raised nor with him for whose debt it was laid on and if the debt be not liquid the Debitors representative must be called to the Liquidation In the Competition amongst moe Arresters preference is granted according to the Priority even of houâ—s and the first Arrestment is not preferred if the Posteriour Arrester get the first Decreet to make the Arrested goods forthcoming for arrestment being only an inchoat diligence it is compleated by the sentence to make forth-coming and yet if the Arrester did exact dligence to obtain a Decreet his raising the first pursute will prefer him He also who arrests on a Decreet will be preferred to him who arrests on a dependence and he who Arrests after the term of payment will be preferred to him who Arrests before the term The Kings pensions and gratuities aliments cannot be arrested because they are given for a particular and favourable use and not applicable to the Arrester Poynding may be likewise used against moveables by vertue of letters of horning against the Debitors containing poinding or any other inferiour Iudge his Decreet or precept which is done by a Messenger after the dayes of the charge are expired the form thereof is The Messenger after poynding the goods apprises them upon the ground where he apprehends them and offers them to the Debitor for the sum for which they were apprised and if he compear not he carries them to the mercat cross of the head burgh of the shire or other Iurisdiction where they are poinded and there he apprises them and delivers them to the Party who is called the Poynder but if any compear and offer