Selected quad for the lemma: peace_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
peace_n	find_v	justice_n	surety_n	5,052	5	11.4235	5	true

Text snippets containing the quad

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

be no Burgh Royal July 10. 1623. The reason of which Exception was founded upon the exactness of Town Clerks and the constant Custom thereof Booking how soon the Seasin is granted and so far are Seasins within Burgh exeem'd from such Solemnities that the Lords sustain'd a Seasin within Town being subscribed by the Town Clerk though there was no Vestige of it in the Towns Register nor the Notars Protocal and was Latent for many years June 30. 1668. and thus singular Successors were not sufficiently secur'd by this Statute within Burghs for though Town Clerks use to Registrat yet there being no necessity upon them to Registrat and the Seasin not being annulled for not Registration it follows clearly that there is no security and therefore by the 11 Act Par. 3 Ch. 2. This is alter'd and the necessity of Registration is thereby extended to Seasins within Burgh and to all other Writs which by this Act must be Registrated THe Form us'd in loosing Arrestments of old was by the Messengers giving a Testificat under his Hand that the Arrestment laid on by him was loos'd this being too great a Trust for a Messenger and they receiving oftimes irresponsal Cautioners By this Act it is ordain'd that Arrestments shall be loos'd only by Letters on Bills past by the Lords which is now observ'd and Caution is found to a particular Servant in the Bill-Chamber to whom the Trying that the Caution is sufficient is referr'd and the ordinary way to hinder an unsufficient Cautioner is by getting a Warrand in praesentia from the Lords of Session for that Effect after presenting whereof to that Servant if insufficient Caution be receiv'd The Lords will give Warrand to Arrest de novo but if the Caution be once found and the Letters exped The Lords will not allow upon a Bill Arrestment to be made de novo nor recal their Letters though the Caution be insufficient the Clerk of the Bills being answerable by his Office for the sufficiency of the Caution THis Act grants power to all who are Infeft in ●o●●est●ies to Judge such as shoot and kill Vennison and Wild-fowl therein and that by an Inquest which seems to exclude all other wayes of Tryal for inclusio unius est exclusio a●●●rius and this Inquest was ordain'd to prevent the partiality and passion of the Heretor THis Act punishing Drunkards by sining is not well enough observ'd though it be renew'd Act 19 Par. 1 Ch. 2. It seems by this Act that the Kirk is regulariter founded in the judgeing and sining of Drunkards though it may be alleadg'd that this were to secularize too much Kirk Sessions which is properly an Ecclesiastick Judicature and by the Commission granted to the Justices of Peace The Justices seem to be made the only Judges as appears not only by the Instructions given to them but by the said 19 Act Sess. 1 Par. 1 Ch. 2. Though it be alleadg'd that Kirk-sessions have likewise a cumulative Jurisdiction for punishment of all Scandals for which the 22 Act 3 Sess. Par. 2 Ch 2. is alleadg'd and the constant practice of the whole Nation and it was found by the Council May 1681. The Kings Advocat contra the Justices of Peace of Dumfermling that the Kirk-sessions might uplift such fines as were voluntarly pay'd to them for such Scandals without being countable to the Justices of Peace for them THe difference betwixt a Caulp and Hereȝeld is that a Caulp is is the best aught or Beast that a man has which is due to the Chief or Master after his Death for protecting his Bairns given by express paction whereas a Hereȝeld is the best Beast due to the Master only by Law after his Tennents Death Caulps are here Discharg'd but Hereȝelds were allow'd Quon Attach cap. 23. But it would seem that Hereȝelds and all taking of the best Beast is discharg'd by this Act albeit indeed they are not THis Act is Explain'd in the 45 Act Par. 11 Ja. 6. To which is to be added that by this Act the Relicts and Bairns of Notars being oblig'd to bring in their Protocals to the Clerk-register within fifteen dayes after any Notars decease the Register uses to appoint a Deput call'd now the Clerk of the Notars who draws their Bill and receives Caution from them and is by his admission oblig'd to do Diligence to mark the Books of Notars and to receive Band for their returning their Books and therefore Sir William Primrose for not doing Diligence was Depos'd upon a Bill to the Lords February 19 1680. Though he alleadg'd that the Wives and Bairns only of the Notars were oblig'd to bring in their Protocals but not he and he was content for the future to follow what Instructions should be given him King IAMES the sixth Parl. 23 THere being a General-Assembly held at Pearth in August 1618. by Hadingtoun Southesk and Scoon as His Majesties Commissioners there were five Articles therein past in order to uniformity with England viz. Kneeling at the Sacrament Privat Communion Privat Baptism Confirmation of Children and the observing some Festival Dayes for conformity with the Church of England as far as was possible Which Articles are here Ratifi'd in Parliament nor is there any standing Law made since to abrogat them albeit for Peaces sake they have not been much observ'd VId. observ on Act 3 Par. 22 Ja. 6. Supra IN this Act it is warranted that such as Compris'd great Estates for small sums did notwithstanding possess the whole Rents for payment of their small Annualrent and therefore to Correct this it is ordain'd by this Act that the Comprizer shall impute in payment of his principal sum the superplus of the Rents of the Lands intrometted with by him and the true reason of the former Custom was because by the 37 Act Par. 5. Ja. 3. The Lands Comprized were to be adjusted by the Sheriff with the sums Comprized for and so the Rent was at first but answerable to the Annualrent though thereafter all being Comprised the Compriser appropriated all the Rents without imputing as said is Observ. 2. That this Act makes only the Compriser lyable for his actual intromission and it has been found that the Compriser is not bound to intromet But yet this is so severe to the poor Debitor and the other Comprisers all whom the first Compriser may debar and so suffer the Tennents to Bankrupt and the Lands to become waste that therefore if a Compriser once intromet he is bound to continue his intromission and where there are Tacks standing he is bound to do Diligence February 9. 1639. or where there are moe Comprisers the Lords may force the first Compriser to do Diligence or if he do not betwixt and such a time yearly they may allow access for the second to enter to the Possession February 11. 1636. July 1662. Or if the first Compriser exclude any Diligence that the second is using he will eo ipso

expresly THis Act shall be Explain'd in my Observations on the 21 Act Par. 3 Ch. 2. BY this Act it is ordain'd that none shall have Right to any Benefi●es till they take the Oath of Allegeance and if the patron omits this not only is the presentation to be null but the Right of Patronage as to that Vacancy belongs to the King THis Act is formerly Explain'd in the 8 Act Par. 22 Ja. 6. BY this Act His Majesty and Parliament having Erected Fishing Companies Do declare that Salt Cordage Hemp c. imported for the Trade of Fishing shall be free of any Custom or Imposition But yet by the 12 Act of the 2 Par. Ch. 2. The Importers of Forraign Salt are to give Security for payment of the Excise whether the Salt be employ'd for salting of Fishes or not but there is allowance to be given to the Exporters for what shall be prov'd to have been imploy'd upon Fishing It is observable likewise from this Act that His Majesty by His Soveraign Authority and prerogative Royal without speaking any thing of the consent of Parliament in this Clause D●clares that the Ships and Furniture imploy'd in Fishing shall not be arrestable by Creditors nor the persons pursu'd before any Judicature and it may be doubted how this is consistent with the property of the Subject Or whether this would Defend against Criminal Pursuits The word attatchments here exprest properly includes Criminal actions sed nulla excusatio prodest adversus pracepta ei qui cum leges invocat adversus eas committit l. auxilium ff de minor in ●in and though it may be answer'd to the other Doubt that the Parliament consented to this lessening of property Yet it is clear that the Prerogative and not their Consent is only mention'd except we construct their not opposing it to infer a consent and it may be rather urg'd that the Parliament has acknowledg'd that this is the Kings Prerogative But if this be the King may Discharge Judges to proceed in any civil action THis Act incouraging Manufactories by Discharging the Custom or Excise due upon the Materials to be therein employ'd is much lessened by an Act of Exchequer whereby it is Declar'd that these Materials are only to be free which the Masters of the Manufactory bring home upon their own Risk because this Act and the 48 Act in favours of Sope-work does say That shall be imported for the use of Manufactories and another Decision of Exchequer whereby it is Declar'd that these are only to be accounted priviledg'd Manufactories where the species of the thing Manufactored is altered and therefore it was pretended that the Suggar works were no Manufactory because they only Refine Suggar that is brought in It has been likewise Debated whether Materials Imported for Manufactories are by this Act free from paying Custom or Excise since the Act only says That Oyl Dying Stuffs Pottashes or any other Materials usual for Manufactories shall be free of Custom Excise and other publick Dues and that all Cloaths Stuffs Stockings and other Commodities to be Exported by them shall be free of Custom and Excise for nineteen years must be subjoyn'd both to the Export and Import both these being in one Sentence and not divided by a punctum but by a Semi colon By which we are to observe that not only the right Wording but the right Pointing of Acts of Parliament are to be observ'd But in my opinion the Materials are ever to be free and the Export is only to be free for nineteen years which is clear not only from the wording of this Act but likewise from the 48 Act of this same Parliament BY this Act any person inclosing his Ground at the sight of the Sheriffs Stewarts c. may cast about the High-way two hundred Ells and where Inclosurs fall to be upon the Borders of any persons Inheritance the next adjacent Heretor is to be at equal pains in Building Ditching and Planting that Dike which divideth their Inheritance which last Clause was found to be only conceiv'd in favours of those who had required the Neighbouring Heretor because he might have imploy'd his own Servants or Materials but yet the Lords in the case of Garletoun against George Seaton February 1679. found that if the Neighbouring Heretor was not required they would abate to him in the Modification what he might have saved by using his own Servants and Materials by the 17 Act Par. 2 Ch. 2. It is added That the Sheriffs and Justices of Peace may force the Neighbouring Heretor to sell as much of his Lands as may cause the Dike or Ditch to run upon even Ground or as may be capable of a Dike or Ditch where the Builders own Ground is incapable of either Dike or Ditch Bacons History Hen. 7. observes that that King restricted the frequency of Inclosures because much Grass could be mannag'd by a few Herds-men which occasion'd a great Decay of Infantry Towns Taxes Tiths vid. pag. 73. of that History BY this Act broken Copper and Brass are discharg'd to be Exported and the Reason truly is because it hinders the Manufactory of making things of Brass or Copper within the Kingdom but yet because there was so much allow'd to be taken for broken Brass and Copper Exported by the Book of Rates which seem'd to imply that Exporting was allow'd and that this Act had not been in observance therefore the Council Discharg'd the Confiscation quoad bygones preceeding 1684. But Discharg'd Exportation for the future And it must be notic'd that Custom is ●mpos'd by the Books of Rates upon many things that cannot be Exported THis Act Discharging Trades-men to Import made Work and declaring the one half to ●elong to His Majesty is not so well observ'd as in reason it ought to be since it makes them lazie in improving the Manufactorable Commodities of our own Nation But it may be doubted whether this Act does not also Discharge the importation of all such made Work by Merchants as well as Trades-men since this discourages Manufactories more than the other for it is less probable they who can make such Work will bring it home and why should ill Work be Confiscated when made by our own Trades-men whilst any ill Work may be brought from abroad and the words of the Act being the Parliament ●●hibits and Discharges all Trades-men to Import made Work or any such Ware brought home by Merchants The prohibition may by the particle or be extended to made Work brought home by Merchants To which nothing can be answered but that the Rubrick bears Act Discharging Trades-men to import This selling was discharg'd formerly to Crafts-men only Ja. 2. Par. 14. Act 67. Ja. 3. Par. 2. Act 12. and Par. 14. Act 107. But it is alleadg'd that some VVork cannot be so well made and that our own Trades-men would extortion us if we were not in a capacity to over-awe them by bringing home

as go to the KINGS Host to take free Quarter or Meat and Drink gratis which we call Free-quarter which may be further clear from cap. 5. Stat. 1. Rob. 1. Where these that come to the Host are ordain'd to be serv'd for their Money and that they take nothing but at the sight of the Baillies and others there mention'd under the pain of being punish'd as Robbers But it is still doubted whether the Countrey may be put to be the first advancers when the Militia is rais'd in such haste that these who are remote cannot provide present money and the Countrey into which they are sent have by their irregularities occasion'd their coming it being unjust that innocent Shires who send in their Militia should be put to expences in levying and entertaining men to repress the irregularities of others IT is observable from this Act that it is not the Parliament but the KING without mentioning consent of Parliament who commands the Proprietars of Castles to furnish them for Defence against the Enemy with Victual and Artillery and the reason of this is because there was no Fort nor Strength or turris pinnata call'd Tower-houses allow'd to be build in Scotland without an express Warrand under the Kings own hand this being one of the effects o● his Prerogative in the sole disposing and making of Peace and War and since Arms cannot be born without his Licence much less should Strengths be built and from these grounds and the practise of other Nations it was contended lately that the King may Garrison any mans house when he and his Council find the having a Garrison in that place for maintaining the Peace of the Countrey is necessary But Craig is of opinion that it is Treason or at least Purpresture to deny the King the use of our Castles or Towers in such cases Jure anglorum turres omnes quia ad defensionem s●u munitionem regni extructae tantum praesumuntur ad regem pertinent ad quem regni defensio quod si idem jure nostro observari quis dicat non ut opinor a●errabit cur enim qui turrim sive fortal●●tium suum regi denegat crimen laesae Majestatis incurrit magis quam si equum aut aedes aut rem aliam nulla alia ratio probabilis reddi potest nisi quod negatio haec ex jure feudali regem dominum videtur privare jure fui dominij species quaedam purpresturae est alias res nostras principi poscenti possumus negare sine perduellionis periculo Which agrees with the opinion of forraign Lawyers who treat of the power of Kings in general Fritz de jur praesidij penes quem Monarchia is urbes arces occupare potest ●isque pro tuenda securitate publica praesidia imponere potest But in this as in all such cases the prerogative should not be made use of except in cases of extream necessity and even then the Heretor is to be repaid if he must hire another House as at Sea in Storms all the parties concern'd in the Ship are to contribute for repairing his loss who for lightning and securing his Ship is forc'd to throw his Goods over-board IF a Woman who has a Conjunct-fee alienat it during her marriage the alienation is 〈◊〉 except she ratifie the same judicially outwith the presence of her Husband upon oath never to revock it and then the alienation is valid but though this Act sustains a judicial Instrument under the Seal of the Judge as a sufficient probation yet now something must be produc'd under her own hand or by two Notars and the Lords would not sustain the Act of Renunciation though under the hand of both Judge and Clerk February 15. 1678. Gordon contra Maxvel The reason of which Decision I conceive to be not because this Act to which the Decision is contrary is only set down as a Memorandum and relates a Decision of Parliament without Statuting any thing thereupon for confirming the same for the meer setting down this Decision among the Acts of Parliament gives it the strength of an Act but because the time of that Act one Notar was sufficient but now either a Woman must subscrive her self or two Notars for her Observ. 1 o. That Decisions of Parliament bind as Laws though they be not set down as general Laws for the inserting them amongst Laws make them equal to Laws Some times Decisions by the King are inserted amongst the Acts of Parliament as cap. 16 David 2. Observ. 2 o. That though an oath is sufficient to confirm the Renunciation of a Joynture stante matrimonio Yet it is not sufficient to confirm a personal obligation granted by a Woman stante matrimonio as is decided November 8 1677. Sinclar contra Richardson and his Spouse the reason of which disparity seems to be that in Conjunct-fees she is domina and the Obligation is not to take effect till after her Husbands death But in other Obligations where the design is to bind her self the Obligation is invalid because she being sub potestate mariti cannot oblige her self and upon the same ground it is that Dispositions granted by Heretrixes stante matrimonio will be sustained they having therein plenum dominium as to the Property and even personal Obligations for sums of Money granted by a Woman who was an appearand Heir there being a Back-bond granted to her declaring that she should not be thereby personally oblig'd was sustain'd to be the foundation of a Comprizing for as she might have dispon'd her own Heretage expresly so she might have lawfully granted an Obligation whereby the same might have been Adjudg'd January 23. 1678. Pringle and Bruce contra Paterson vid. Stockman decis 59. BY the Canon Law Laicks have no power of choising or electing ●hurch men c. Quisquis 43. c massana 56. de elect elect potest So that the priviledge here granted seems contrary to the Canon Law But as the King of France had power by the Concordata with Pope Leo 10 th to nominat Bishops and Abbots so our King had the nomination of Bishops and Abbots and the provision of them belong'd to the Pope as is clear by the 125 Act 7 Par. Ja. 5. Which though this Act says did belong to our Kings by the Priviledge of their Crown for prerogative was then call'd priviledge yet it is con●e●● that they deriv'd this priviledge from the Pope Act 53 Par. 5 Ja. 4. For understanding this Act it is necess●ry to know that if the Kings who had these priviledges did not nominat within six Moneths the Pope might confer the Benefice as he pleas'd and if the King did nominat an unfit person the Pope might refuse him and the King was oblig'd to n●me another within three Moneths vid. past de benefi cap. 8. But our Kings not acknowledging this power of precluding It is Statute by this Act that our Kings may present at all times till the Prelate

quod ejus est auferri ab eà nequit sine consensu suo 5 o. Tochers are oft times augmented in consideration of the Coniunct-fie and therefore its most unreasonable and illegal that what was given her for an onerous cause should be taken from her and applyed to the behove of one who represents the Contracter who was bound to warrand her Life-rent and who got good deed upon that account And it is unjust that the Husband by spending his Estate should burden her or that his Heir should not rather want than she 6 o. Whatever may be said to oblidge a Mother jure naturae to entertain her own Children and I think this Aliment has been at first founded on that Principle of Justice whereby Donatores Patroni Parentes were only lyable in quantum facere potuerunt called by Lawyers Exceptio competentiae yet there is no reason that a Life-rentrix should be oblidged to entertain an appearand Heir who is a meer stranger and this jus naturae oblidges the Mother not only to entertain the appearand Heir but all her Children as was found in the case of the Countess of Buchan And albeit the Act of Parliament speaks only of Heirs yet by our Law even appearand Heirs will get an Aliment allow'd them though thereafter they renounce but it is less clear if it will be allow'd them after they have renounced July 16. 1667. Hamilton contra Symington And yet in this case they are but meer strangers and can no more be called Heirs or appearand Heirs after Renunciation as also though this Act mentions only Ward Lands yet it is ex praxi extended to others who have no Ward Lands the 22 Feb. 1673. Finnay contra Oliphant And though both the Rubrick and the words of the Act provide only Aliment for Minors yet it is extended to appearand Heirs who are Majors as in the case of Rig contra the Lady Carberrie nor will it be sufficient that the Life-rentrix offer to entertain the appearand Heir in the Family with her as Durie observes the 14. Feb. 1627. Noble contra his Mother nor is this only extended where the Mother Liferents all but it is even extended to the case where all the Minors Estate beside what is Life-rented is not sufficient to pay the debt and is affected by legal diligences as was found 13 Feb. 1662. Antonia Brown contra her Mother but it may be very well doubted whether this last Decision may be extended where the debt is only personal and I find the Lords did refuse to decide this point in a case debated 1667. betwixt the Lady Staniehill and her Son though the Son there alleadg'd that he sold his Land to hinder Comprising and if it had been Comprized she would have been lyable And this Action for Alimenting the Heirs was still sustained against both the Grand-Fathers Relict and the Fathers Relict pro rata of their Life-rents which they had of the appearand Heir albeit it was alleadg'd that the Mother having a nearer relation and being the Wise of him who spent the Estate should be only lyable or at least first lyable 12. Decemb. 1677. Laird Airdrie contra the two Ladies but yet I find the Grand-Father was found lyable in no proportion with the Mother where he had only reserv'd a mean proportion to himself when he did Infest the appearand Heirs Father 7. July 1629. It may be doubted whether a Husband marrying the Life-rentrix having given her a provision in contemplation of this Joynture will be lyable to Aliment since he is a meer stranger to which all that can be answer'd is that he was oblidg'd to know it was lyable to this burden and if he will be found lyable it may be doubted if he will not be free from the provision given in contemplation thereof tanquam causa data causa non sequuta As also it may be doubted whether the pursuing such an Action as this will infer a Passive Title seing the appearand Heir is thus lucratus but yet I think it will not since he reaps thereby no advantage which would have accresced to the Creditors to whom no part of his Aliment would have belong'd and even appearand Heirs renuncing will have right to an Aliment as is observed before The Civilians think that a Mother is oblig'd to Aliment her Child till it be past three years of age l. 3. C. de Patr. Pot. ibid. gloss and even after three years of age if the Father be not able to Aliment the Child the Mother is because the Child is oblig'd to Aliment and reverence the Mother vid. Surd. de Aliment quaest 14 tit 1. But they make no mention of such an alimentary action as this which we allow THough buyers of Land be obliged to keep the Tacks set by their Predecessors yet the Superior is not obliged to keep them when the Land falls to him in Ward during which time he is Proprietar nor are Life-renters nor Conjunct-fiars oblig'd to keep them during their temporary Rights but when these Rights expire the Tacks revive and yet by this Act the Superior or Life-renter cannot remove them till the next Whitsunday after the Ward or Life-rents fall the Tennents paying the Maills and Duties to the Superiors or Life-renters but it may be doubted whether this will hold when the Duty is only a simulate Duty and not near the Rent of the Land for this was design'd to secure the Tennents reasonably but not to prejudge the Superior or Life-renter but certainly this Act will not defend these Tennents who have payed their Duties to their Masters before hand THough particular pains be set down as to Law-burrows in Civil cases by former Acts yet in Criminal cases because of the importance and danger it is left Arbitrary to the Judges to cause the Parties find Caution under what sums they please and before the Council likewise the sum under which Caution is to be found is de praxi Arbitrary Since this Act sayes that the Party complainand shall be harmless it would seem by this Act the Council can oblige no party to keep another harmless except where the party himself complains in which case he must give his Oath he dreads bodily harm conform to the 129 Act Par. 9. Ja. 1. vid. observ on that Act. But yet the Council is in use to cause men find Caution to keep others skaithless even where the parties do not crave it but this is only in cases where there have been previous breaches of the peace amongst them so that either a party does complain and then he must give his Oath and if he complain not there must be a previous breach of the peace and in that case there is no need of an Oath or a Complaint that he does fear bodily harm Though the Council or Justices may by this Act exact Law-burrows yet by this Act it is only ordain'd where Complaints are rais'd before them and by Complaints here is not to be

these Laws by the same reason that in England the Paroch is lyable for the Robberies committed therein betwixt Sun and Sun and thus these who have power of Jurisdiction from the Emperour are lyable vias publicas a latronibus purgare Gail observ 64. lib. 2. vid. etiam l. 3. l. congruit ult ff de officio Praesidis It has been doubted whether the Council could in other cases not warranted by express Acts of Parliament oblige the Subjects to give Bond to live peaceably conform to Law and particulary that their Tennents should not keep Conventicles but should go to Church and pay 50 pound Sterling for every Conventicle kept upon their Ground or should present their Delinquents and it was alleadg'd that the Council cannot because regularly one man is not lyable for another mans Crime nor can this inversion of Property and Natural Liberty be introduced by a lesse power than a Parliament nor had Acts of Parliament in this case been necessary if the King and Council could have done the same by their own authority but yet since the King has by express Act of Parliament the same power here that any Prince or Potentat has in any other Kingdoms and that Government belongs to him as Property does to us nor can the peace be secured otherwayes than by allowing him to take all courses for securing the peace and preventing disorders that therefore this joyned with the practice of the Council is a sufficient warrand for exacting such Bonds the practice of our King and Council being the best interpreter of the prerogative especially where the things for which Band is to be taken are not contrary to express Law and it is implyed in the nature of alledgiance that Land-lords should entertain none but such as will live regularly and if they transgressed the Master could not in common Law thereafter recept them without being lyable as we see in Spuilȝies or if the King pleased he might denounce the transgressors Rebels and so might put the Master in mala fide and though there be no such particular Laws warranding the taking of such Bonds yet it will appear by many instances in this Book that Laws are extended de casu in casum and thus this power seems inherent in the Crown likeas the matter of Property is sufficiently secured by the alternative foresaid of either presenting or paying the damnage which alternative seems to be founded upon the same principle of justice with actiones noxales mentioned in the Civil Law Domino damnato permittitur aut litis aestimationem sufferre aut ipsum servum noxae dedere vid. Tit. 8. lib. 4. Institut I find many instances in the Registers of Council wherein the Subjects are charg'd to secure the peace under the pain of Treason as in the case of the Lord Yester BOnd 's given by Cautioners for broken men do oblige the Heirs and Successors of the Cautioners though they be not mentioned in the Band. Observ. 1. In Law he who obligeth himself to pay a Sum obligeth his Heirs for as in Law qui sibi providet haeredibus providet sic qui se obligat haeredes obligat and therefore a man having bound himself and his Heirs Male it was found that the Creditor was not thereby excluded from pursuing the Heirs Female or any other Heirs but that he was only bound to discuss first the Heirs who were specially named in the Obligation 18 February 1663. Blair contra Anderson but yet Obligations for performing a deed such as to present a Thief are of their own nature personal and therefore this Act was necessary THe taking of Surety from Chief of Clanns doth not loose the Obligation taken from Land-lords e contra and the reason why this Act seemed necessary was because this seemed to be an Innovation and it seemed not just that both the Chiefs and Land-lords should be lyable since they could not both have absolute command over the person to be presented but yet this Act was most suitable to Law since novatio non praesumitur nisi ubi hoc expresse actum est l. ult Cod. de Nov. And the Tennents in the High-lands are influenced both by Chiefs and Land-lords but to make this Law more just the Council gives action of a relief against the Lands-lord if the Lands-lord harbour or to the Lands-lord against the Chief if the Chief recept him BY this Act if Goods be taken away by any Clann'd man and recept in the Country of their Chief for the space of 12 hours to his knowledge the Chief shall be lyable in solidum for all the Goods taken away though there were but very few of his men present as was found in a case pursued by Francis Irwing against Glenurchie before the Council all such Chiefs being lyable in solidum and not pro ratâ only for the wrongs committed by their Clanns BY this Act no Magistrat may keep a Thief or Malefactor in Arms with him albeit he pretend he is his Prisoner but he must de●ain him in a closs house both because squalor carceris is a part of the punishment due to Malefactors and because if this were allow'd Magistrats might by collusion suffer Malefactors to enjoy their liberty IS explained Crim. pr. tit Theft THis Act ordaining Masters to present their Tennents upon the Kings closs Valentines or Orders in little Papers like Valentines is observ'd in the whole Registers of Council THese two Acts discharging the Borderers of Scotland to marry with the Borderers of England or to labour their Lands are abrogated by the Union BY this Act the Land-lord doing diligence by obtaining Decreet of removing using Horning and doing all other things that was in his power after the fact comes to his knowledge is no further lyable Nota By this Act the Land-lord must be put in mala fide by intimation of his Tennents Crime 2. Dubitatur whether this priviledge should not likewise extend to Chiefs of Clanns since they have less interest in the Delinquents then the Land-lords BY the 100 Act of this Parliament such as committed Slaughter Mutilation or other hurt upon Thieves are not lyable But by this Act an Indemnity is likewise granted to such as raise fire against them that being there forgot THis Act is explained in the Observations upon the 29 Act of this same Parliament BY this Act the Burrows pay the sixth part of the Impositions of Scotland which is yet in observance and because of this burden they have the only priviledge of Trading and therefore they justly pretended that their priviledge of Trading could not be communicable to the Burghs of Barony and Regality who bore no part in this burden Nota That though by this Act the Taxation of the Burrows is not to be altered that is only mean't of the 6 part which is to be born by the Burrows in general for notwithstanding of this Act the Convention of Burrows do

another and bound himself for his appearance person for person but now the Peace is secured by Sureties or Cautioners who if they present not the person for whom they are bound that very hour they Forefault their Bonds nor is the presenting the Prisoner afterwards sufficient which speciality has been found necessary in Border Sureties These Pledges were Distributed of old amongst the Nobility and Gentry who were to be answerable for them because we wanted then many and sure Prisons and because they were unwilling to receive these Pledges therefore this Act obliges them to receive and keep such Pledges under the pain of two thousand merks It may be doubted if Pledges may not be taken in other Crimes as well as these relating to the Borders and Highlands argumento hujus legis since this may tend much to the quieting of the Countrey and if the Nobility may not be forc'd to keep these for Prisons may be often so full that Prisoners cannot otherwayes be kept and by many Acts of Secret Council the Nobility was before this Statute oblig'd to keep Pledges By the Common Law Obsides or Pledges could only be granted ex causa publica sed non ex privata Bald. in l. ob aes C. de obl act But it seems that Pledges though for Criminal Causes could not bind themselves to corporal punishment quia nemo est dominus suorum membrorum licet aliter obtineat de consuetudine ob bonum publicum Bald. in tit de pace Constant. § damna in finè King JAMES the sixth Parliament 17. THere have been two Commissions granted for considering of an Union betwixt this Kingdom and England one in this year 1604. and another in anno 1670. Betwixt which there are only these two differences that in this Act the Names of the Commissioners are set down and they had no other Commission but the Act of Parliament but in the other Commission 1670. the persons were nominated by his Majesty under His Great Seal the nomination being refer'd to the King by that Act of Parliament The second difference is that in this Commission 1604. their power is limited with this provision viz. not derogating any wayes from any Fundamental Laws ancient Priviledges Offices Rights Dignities and Liberties of this Kingdom but the other has no such exception and yet it may be doubted whether by vertue of the last Commission those who were Commissionated could have derogated by their Treaty from any of our Fundamental Laws ancient Priviledges Offices and Dignities That the Parliament of Scotland could not consent to an Union of Parliaments though all its Members were admitted without at least Consulting the Shires and Burghs which the respective Members of Parliament represent may be thus urg'd all Nations considering the frailty of their Representatives and that some ages and generations do too easily quite what is fit and necessary for securing their Liberty have therefore thought fit to declare some Fundamentals to be above the reach of their power and that Parliaments cannot overturn Fundamentals seems clear not only because these were not Fundamentals if they could be overturn'd that being the true difference betwixt Fundamental and other Laws But if a Parliament should enslave their Kingdom to a Forraigner the people might by a subsequent Election disown the Perfidie or if two of three Estates should by plurality exclude the third surely their Exclusion would be null and that the Constitution of a Parliament is a Fundamental appears not only from the Nature and Weight of that Priviledge but likewise from this Commission anno 1604. wherein it is call'd Fundamental and looked upon as unalterable nor is it imaginable how the Parliament cannot invert the Constitution of one Estate and yet can invert and alter the Constitution of the whole and by our Statutes it is Declared Treason to endeavour to lessen the power of the three Estates of Parliament and it cannot be said that their power is not lessened when they cannot make one Act or Statute by their own authority or when others have more interest in and influence upon their Determinations than they themselves have and when from being absolute they become subject to another and a Parliament has but some such power over the people as the Magistrats and Council have over a Burgh for the Parliament is but the great Council of the people and Kingdom and it is most certain that the Magistrats and Council of a City or Town could not consent to Incorporat with another Town and consent to the eversion of their own without the full consent of their people whom they Govern Commissioners for Shires and Burghs are the same with us that procuratores universitatis are in the Civil Law and Procurators etiam cum libera could not alienat the Rights of their Constituents without a special Mandat for that effect l. procuratori ff de procurat nor can they exchange nor transact upon what belongs to their Constituents which is our case exactly l. mandato generali ff de procurat and if we consider the Commission whereby they sit in Parliament we will find it does only empower them to Represent in Parliament their Constituents in every thing which shall be advantagious for them From which Commissions I argue first That this is but mandatum generale for it empowers them only in general Terms and bears no Warrand to Treat with England of an Union of M●onarchies or Parliaments generali mandato etiam cum libera ea veniunt quae sunt de consuetudine l. quod s●no l. § qui assidua ff de aedidit edict non comprehendit ea quae sunt usui regionis repugnantia it empowers not such as have it to do things extraordinary and which it is probable the Constituents would not allow l. ut si filius ff de donationibus l. indebitum ff decondict indebit cap. generali de reg jur in sexto but in such cases as Lawyers observe and Reason Teaches the Constituent is to be Consulted and a special Mandat is required as is clear by the Laws above-cited Our Commissioners for Shires and Burghs sit by vertue of Commissions and as they need a Warrand to sit so cannot they exceed it when they sit and are not arbitrary Nor could the Parliament of Scotland as now Constituted resign their Parliamentary power over to the Council Nor does their Commission empower them to ordain that there shall be no future Parliaments and when they exceed their Commissions they are no more Members of Parliament and therefore what they do is null 3. By these Commissions the Commissioners for Shires and Burghs are only empowered to Represent them in the Parliament of Scotland which presupposeth that there must be a Parliament and consequently that they cannot exstinguish or innovat the Constitution of the Parliament of Scotland for how can they Represent the Shires and Burghs in a Parliament which is not and certainly the Parliament of Scotland can be

ordinarly His Majesties Advocat chooses such Assizers as know the persons impannelled to be commonly repute to be Aegyptians These who are call'd Aegyptians in Scotland are call'd Zigeni Tartari Bohemij all which are remarked as idle Beggars going about oppressing the people and cheating them by vain Superstitions and Fortune tellings of which sort of people Fritschius has written a Treatise call'd de origine Zygenorum eorum coercitione where are to be found upon what pretext they were first suffered in several Nations which was because they did assist several Princes in their great difficulties having from being Vagabonds gathered themselves under Captains for that effect but continuing after Peace made to grow insolent they were ordain'd to be banish'd in Germany by an Imperial Constitution anno 1500. and in France by the Act of Orleance anno 1561. and thereafter anno 1612. which is about the time of this Act and in Spain 1492. THe time of this Act the Secret Council had a Commission from the King to receive Resignations and all the Procuratories of Resignations then did still bear a Power to Resign in the Hands of the Secret Council But now Resignations can only be made in His Majesties own Hands or in the hands of His Exchequer THis Act extends to the Decreets of the Admiral and his Deputs the priviledge of having Letters of Horning granted upon them without the necessity of a Decreet conform as was the old Custom and in this it equals the Decreets of that Court with the Decreets of Sheriffs and Baillies of Burghs But by the 29 Act Par. 1 Ch. 2. Whereby poinding is ordain'd to be granted upon their Decreets the Parliament has forgot to extend that priviledge to the Decreets of the Admiral Observ. 1. That this Act declares the Admiral to be a Supream Judge and therefore it has been decided that he may reduce the Decreets of inferiour or Admiral-deputs and that he may reduce his own Decreets upon just Reasons such as noviter provenientes ad notitiam c. And which kind of Jurisdiction is competent to no Inferiour Judge and yet the Lords of Session do suspend and reduce his Decreets also and Advocat Causes from that Court Observ. 2. That by this Act the Admiral is declar'd to have power of summar Execution because Strangers and Sea-faring men cannot attend as others may and therefore it is that such as obtain Decreets before that Court may use Execution thereupon within three Tides Vid. Observ. on the 16 Act Par. 3. Ch. 2. King JAMES the sixth Parliament 21. HIs Majesty held a General Assembly at Glasgow and in anno 1610. drew up some Articles to be presented to the Parliament which are set down by Spoteswood and many whereof are here confirm'd By this Act His Majesties Power to call Assemblies is declar'd a part of His Royal Prerogative Vid. 114 Act Par. 12 Ja. 6. The Bishop is to be Moderator and in his absence any whom he shall Name The Bishop only can Excommunicat and with such Ministers as he associats to himself He only can Depose In this Act likewise is set down a formula of the Oath of Supremacy As to the manner of presenting Ministers it is formerly fully Treated in the Observations upon the 7 Act of the 1 Par. Ja. 6. AFter King James the sixth came to the Crown of England it was necessary that the Laws concerning the Borders should have been alter'd by both Kingdoms and by this Act there is a power granted to His Majesties Officers in England to remand from the Courts of Scotland that is to say to require His Majesties Officers in Scotland to deliver up English Malefactors who had fled into Scotland and another Act of the same Tenor verbatim was past in England about the same time In place of the old Wardens of the Borders there is now a Commission granted under the Great Seals of both Kingdoms to an equal number of Scots and English who have in effect a Commission of Justiciary and it was found by the Council of Scotland that they could not quarrel the Decreets of the Borders because they proceeded by a Warrand under the Seal of both Kingdoms but the Laird of Haining having Charged Elliot for payment of a sum for not presenting of a Thief to the Commissioners of the Borders conform to a Decreet of the Commissioners finding that he had Forefaulted the Bond there was a Bill given in to the Council craving that this case might be remitted to the Commissioners of the Borders and not Suspended by the Session because First These Decreets being pronounced by the English as well as the Scots Commissioners the Session could not be Judges to what was done by vertue of an English Commission and because they could not cite the English Commissioners therefore they could not Reduce their Sentences 2. The Commission of the Border is a Criminal Court and the Lords of the Session are only Supream Judges in Civils 3. The Border is judg'd by a Law unknown to us and therefore since the Lords of the Session behov'd to Consult them though they were Judges it but multiplies Processes and Expences to allow the Lords to be Judges in prima instantia 4. If the Lords were Judges all Thieves or their Cautioners would offer to Suspend or Reduce which would much hinder that expeditness of Tryal which is requisit to stop Thieving in the Borders 5. If the Lords here review'd such Decreets the Judges at Westminster would do the like which would be very troublesome and expensive to us The Council upon this Debate recommended to the Lords to remit the Tryal in so far as it was Criminal to the saids Commissioners By this Act Remanding is only to be granted after full probation of the offences of the persons Remanded in open Court● but this is now antiquated and in Desuetude because it was found by the Commissioners of both Kingdoms to be unpracticable if either the Names or proofs were published in open Court the persons to be Remanded would flee and the Witnesses might be corrupted Therefore it was ordered by common consent that the Commissioners of either Kingdom might Remand privatly from the Commissioners of the other Kingdom and that the person so delated might be immediatly seiz'd upon THis Act is fully Explain'd crim pract tit Rapt THis Act is Explain'd in the Observations upon the 73 Act Par. 6. Ja. 6. THis Act Discharging all Actions of Spuilȝie committed upon the Borders prior to His Majesties coming to the Crown of England is but Temporary But from it it may be observed First That the King and Parliament may dispense with the privat interest of parties upon a publick account nor does the Act salvo jure subjoyn'd to the several Parliaments prejudge or derogat from this Act upon pretext that the parties whose interest was remitted and discharg'd were not call'd 2. In all such Discharges of privat interest and Acts of Grace

Clause is here added to this Act and is not in the 4 Act 1 Par. Ch. 1. THis Act is Explained in the Observation on the 8 Act 1 Par. Ja. 6. but more fully in my Jus Regium Cap. The Right of Succession Defended and it is remarkable that it was past without a contrary Vote or the least Objection only most thought it so just that it was unnecessary and really it had been so if some in England had not controverted it THis Act Discharges ●ree-quarter and Localities but because some pretended that by this Act they were free from all necessity of carying Corn or Strae or Grass whereas if this were true the Souldiers Horses had been made unfit for Service by such Carriages and the Troopers and Dragoons might have been easily Murther'd whilest they went out singly to bring it in therefore by Act of Council this is fully regulated THere having been a full Debate before His Majesty how far Masters were answerable for their Tennents the Parliament to prevent the like for the future made this Act being fully convinc'd that Masters in Scotland could command their Tennents and Servants suitable whereto there are many old Statutes Commanding Masters to present them and finding that without this the Peace could not be secured and upon the event it is found that this has secur'd the Peace for Tennents and Servants knowing that their Masters would find out their Crimes which Sheriffs and others could not know and that they could not get Service or Land any where If they were disorderly they have conformed and this hath Restor'd Masters to the just Influence which our Predecessors had over their Tennents and Servants and which they lost by their Fanaticism by which they came to depend only on their Ministers and minding more Conventicles than their Work and in which extravagancy they were so far advanc'd that they would not see themselves till they were secur'd that they should be allow'd to go to these nor is the Master ty'd by this Act to any hard thing since by presenting them to Justice or by putting them out of his Land or out of his service he is free from all danger and this is in his power as also to secure him yet further it is Declar'd that he may break their Tacks and that if any Master take them who are put away he shall be lyable unto three years Duty It having been also Debated before the King that there could be no Deputs nam'd for putting the Laws against Ecclesiastick Disorders to execution within the bounds of Heretable Judges therefore His Majesties Power is Declar'd as to this Point by the Clause of this Act but this is now unnecessary because by the 18 Act of this Parliament His Majesties cumulative Power is Declar'd as to all points IT is very observable that the longer the World lasts Probation by Witnesses-lessens alwise in esteem because men grow alwise more Wicked In our Saviours time out of the mouth of two or three Witnesses every word was to be established Thereafter by our Law and by the Laws of other Nations nothing above an hundred pounds could be proven by Witnesses And albeit of old the affixing of a Seal was probative without a Subscription or Witnesses but as by former Acts the Subscriptions of Parties is Declar'd requisit So though formerly the Designing the Witnesses was sufficient although they did not Subscrive Yet by this Act no Writ is Declar'd Probative except the Witnesses Subscrive and without their Subscriving the Writ is Declared null But the Act of Parliament does not condescend whether this nullity shall be receivable by way of exception Or if it must require a Reduction But I conceive it must be null by way of exception since the Law hath Declar'd such Papers null and the want of Witnesses appears by production of the Paper it self The second thing Established by this Act is that no Witnesse shall sign as a Witness to any Parties Subscription except he know the Party and saw him subscrive or saw or heard him give warrand to the Nottar or touch the Pen The occasion of which part of the Act was among other remarkable Cases that a Gentlewoman pretending that she could not Write before so many Company desir'd to sign the Paper in her own Chamber whereupon she got the Paper with her and at her return brought it back subscriv'd and she thereafter rais'd a Reduction of the same Paper as not truly sign'd by her and though this should hardly have been sustainable at her own instance because she was heard to own it by the subscriving witnesses and the whole company yet this exception of dole could not have secluded her Heirs or Executors from reducing it as said is If witnesses without seeing a party subscrive or giving warrand to subscrive shal subscrive as witnesses they are declared to be punishable as accessory to Forgery which quality some think was added to seclude the punishment of Death it being as may be pretended too severe to punish by Death that which is the effect of meer negligence and unto which very many fall through negligence yet our Law knows no difference betwixt accessories and principals further than ex gratia accessories may sometimes find a mitigation of the punishment I conceive also that a party signing as Witness without seeing the Paper subscriv'd should be lyable to a third party who got assignation to that Paper in Damnage and Interest if it be Reduced ex eo capite since he was a loser by his negligence But quid juris 1. If the party himself to whom the Paper was granted were pursuing such an action for Damnage and Interest since he should have considered his own security and the Witnesses might have trusted to his exactness 2. Quid juris if the Witness heard Command given to one of the Nottars since the Act says That unless they heard him give Warrand to a Notar or Notars and touch the Notars Pen and yet even in that case the Paper may be null because there was not a Command given to both the Notars and a third party may thereby lose his Right 3. It may be doubted if upon a Notars asking if the party will warrand him to subscrive the party do give a Nod whether that Nod will be equivalent to a Warrand and free the Witness who thereupon subscrived as Witness And it seems it should for the Act says except he saw or heard him give Command and a man cannot see a Warrand otherways than by a Nod and nutus was sufficient by the Civil Law to infer a Mandat The third point in the Act is that albeit in all Forraign Nations the Subscription of a Notar proves in all Obligations for there the Notar keeps the Paper sign'd by the Party and gives only a Duplicat sign'd by him and albeit in our Law a Notars Subscription did prove in all Instruments such as Seasins Intimations c. If the Witnesses were