but now by the foresaid 5 Act 1 Par. Ch. 2. all sums to be rais'd for maintainance of Forts or Armies must be first concluded in Parliament or Convention of Estates And now the King has a considerable Revenue by the Excise for defraying those small necessities for which the Council then impos'd and it is certain in the general that all Countreys should supply the Monarch with Means to defray the expence of the Government Vid. Arnis de jur Majestatis in bona privatorum Vid Act 85 Par. 6 Ja. 4. BY this Act the making privie Conventions or Assemblies within Burghs to put on Armour or display Banners c. without Licence from the Soveraign are punishable by Death Observ. 1 o. It seems that meer Convocations or Assemblies are not per se punishable by Death without putting on Armour or displaying Banners Observ. 2 o. That Naked-assistance at such Tumults with a Batton was not found by the Justices to infer Death in anno 1665. and I conceive that though a previous design were prov'd yet the assistance with a Batton would not be sufficient since the Act requires putting on Armour or Cloathing themselves with Weapons which imports hostile VVeapons for neither of these can be verifi'd in a Batton and penal Statutes are not to be extended but yet the appearing with a Batton is sufficient to punish arbitrarly such as assist at Tumults THis Act Confiscating Ship and Coals wherein Coals are Transported is in Desuetude but is not expresly abrogated by any Law and though at first Licences for Transporting Coals were necessary yet now even these Licences are in Desuetude we having now discovered more Coals than serves our Nation THis Act Confiscating Beeff and Mutton that comes to Mercat without Skin and Birn is still in observance and was made for discovery of Theft for the Skin being upon the Beast that is kill'd does bear all marks whereby it may be known and for the same reason in the Southern Shires the meaner sort who kill any Beasts are oblig'd to keep their Ears and if the Flesh be found where the Ears cannot be produc'd it is commonly look'd upon in these Countreys as a point of Dittay not only must the beasts be brought to the Mercat with their Skins according to this Act but by Acts of Burrows the Skins that are brought to the Mercat must not be scor'd nor holl'd which Fleshers did before negligently nor must the Haslock be pull'd that being the best part of the VVool and by the Acts of the Convention of Burrows made at the desire of the Conservator the Skins of Beasts within this Kingdom did rise in value a third more than when they were carried beyond Sea Qeen MARY Parliament 10. BY the second Act 1 Par. Ja. 2. which is the Act here related to the Kings lawful age was declar'd to be twenty one Years but it seems that because it was left dubious by that Act whether the Year twenty one was to be inceptus or completus when begun or ended therefore by this Act it is declar'd to be twenty one Years compleat and the word compleat is twice repeated And it seems that before this Act even the year it self was debateable for in the 93 Act 7 Par. Ja. 5. It is said that the King after his perfect age of twenty five years Ratifies c. By an Edict of Charl. the fifth of France anno 1375. Their Kings are declar'd Majors hors de tutelle at their age of fourteen IN this Act all Confirmations of Kirk-lands not Confirmed by King or Pope before the Year 1558. at which time the Reformation begun were declar'd null and by this Act Confirmations from Rome after that Year are discharg'd and the Queens Confirmations are declar'd equivalent to the Popes and I find that by Act of Secret Council September 10. 1561. the sending to Rome for such Confirmations is by Proclamation discharg'd under the pain of Barratry K. JAMES VI. Parliament I. QUeen Mary being Queen during her Life appoints the Earl of Murray to be Regent and his Election is Confirmed by this Act and it is Declared to last till the Kings age of seventeen at which time it is Declar'd that he shall enter to the exercise of the Government I find amongst the Un-printed Acts subjoyn'd to this Parliament a Resignation of the Crown made by her which it seems was necessary she being Soveraign during her Life as the King is during his Life Observ. She calls the Earl of Murray Brother though he was her natural brother which was conceal'd ob honorem but Ineptly and though the Earl of Murray is here call'd the Kings Cousine yet he should have been call'd his Uncle Nor are Uncles properly Cousines But I think this was because all Earls who are Counsellors are call'd Cousines and Counsellors but yet if he had been to have been call'd a Counseller for this cause he should have been call'd Cousin and Counseller I have also seen a Commission to one of the Kings Natural Sons in England wherein he was call'd our Cousin It is observable that sometimes the Acts of this Parliament bear to be by Our Soveraign Lord my Lord Regent and the three Estates as the 20 21 and 29. which is not well exprest for the Estates and Regent had no power to make Acts and therefore the rest bear better Our Soveraign Lord with the advice and consent of his clearest Regent and three Estates Nota The Parliaments saying my Lord Regent seems very ill Grammar for it should have been the Lord Regent THose Acts Confirm and relate to former Acts past in the Parliament holden by Queen Mary August 24. 1560. and yet we find no such Parliament but the true answer to this is as appears by Spotswoods History that the Lords of the Congregation having met in anno 1560. and having past those Acts abolishing the Popish Religion many of the Members of that pretended Parliament protested that this meeting was no Parliament because there was none there to re-present the Queen nor the King of France her Husband whereupon Sir James Sandilands was sent over to procure a Ratification of these Acts which being deny'd the same Acts are here Ratifi'd by the Earl of Murray when he came to be Regent as if they had been past in a lawful Parliament FOr understanding of this Act and the nature of Patronages it is fit to know that the Right of Patronage is a power of Nomination granted to him who either was Master of the ground whereupon a Kirk was built or who doted any thing to the Maintainance of it or who did build a Church to present one to serve the Cure thereat in all which cases he is accounted Patron and may present a person to be Minister or to any other Benefice and that only if he reserve such a power to himself in his Mortification for Hope in his Lesser Practiques is of opinion that
run if that offer will hinder the incurring the irritancy for these years seing a Debitor may in Law pay before his day come and what if it be such a Prestation as must be performed yearly 8. If the Vassal will amit his Feu for not offering where he had a pretext to doubt who was his true Superiour and what he is to do in that case So much use the Lords to favour the Vassal against such severe irritancies that a Retour bearing in the first part of it an irritancy for not payment of the Feu-duty si petatur tantum they allowed the Vassal to purge though in the posterior part of the Retour these words were omitted in the Clause irritant it self February 18. 1680. Earl of Mar contra his Vassals Like to this irritancy was that of the Civil Law whereby non solutio pensionis per biennium in civill Emphiteusi per triennium in Emphiteusi Ecclesiastica efficiebat ut Emphiteuta a jure suo caderet by the Civil Law the irritancy mora in not payment was not purgeable but by the Canon Law it was In Tacks also with us the not payment of a Tack-duty for two years or terms infers an irritancy November 23. 1609. Murray contra Nisbit March 9. 1611. Seton of Baro contra Seton of Pitmedden which is also conform to the Civil Law l. 56. ff locati THis Act is Explain'd crim pract tit Usury BY the 18 Act 1 Par. Ja. 6. The bearing and shooting with Culverings or Daggs without the Kings Licence is forbidden under the pain of losing the Right Hand and that Act is here Ratifi'd and thereto is added Confiscation of Moveables and by the Act 6 Par. 16 Ja. 6. It is appointed that the Contraveeners of these Acts may be pursu'd either before the Council or the Criminal Court and when they are pursu'd before the Council it is provided that they shall not lose the Right Hand It may be argu'd from this Act that where there are two punishments appointed by two different Laws the last is not added to the first but either it antiquats the first or else either of the two can be only regularly inflicted for else this Act needed not say sâ—â—a that the ane pain shall not stop nor stay the other From that 6 Act 16 Par. It may likewise be observ'd that the Secret Council are not Judges competent to Life and Limb such as the amputation of the Right Hand By the Lex Julia It was lawful to carry Arms without Rome but not in the Town but they were every where thereafter Discharg'd Tit. 46. lib. 11. C. ut armorum usus inscio principe interdictus sit BY this Act is Ratifi'd an Act made at Dundee by the King His Nobility Council and Estates which was an Act of the Convention of Estates for the Convention of Estates ordinarly considered the matter of Coinage nor needed that a Parliament because Coinage is a part of the Prerogative and by the Estates there were mean'd some of every Estate taken by the King for advice From this Act it was urg'd in the Lord Hattons case That 1. By this Act it is clear that we had a different Standard from England which is to be eleven pennie fine 2. That it was lawful to melt down current forraign Coyn because this Act allows it to be us'd as Bullion Nota This is the first Act that mentions the General of the Mints Office as different from the rest BY this Act it is clear that the Convention of Estates made Acts also discharging the Transportation of Wool and the like and this Act as to Wool is again Ratifi'd but a power is allow'd to the Exchequer to Transport Wool contrary to this Act Act 40 Par. 1 Sess. 1 Ch. 2. But even this Act discharges only bypast Licences but not Licence for the future for these are allow'd even for Wool by the 254 Act of this same Parliament BY this Act Customs are declar'd to be due to His Majesty of all that is brought in from forraign Nations and by the 27 Act Sess. 3 Par. 1 Ch. 2. The ordering and disposal of Trade with forraigners is declared to be His Majesties sole Prerogative and therefore some think His Majesty may impose upon forraign Commodities what he thinks convenient for since he may discharge the Trade if He pleases it seems to follow that He may burden it as He pleases By this Act an a b c. of the Customs is to be put upon all Commodities that is to say a particular index of the several Customs imposed upon every several Commodity is ordain'd to be made according to the Letters of the Alphabet and this has varied in several ages the present a b c. being made by order of the Parliament 1661. vid. statut David 2. cap. 12. num 3. where this priviledge as to paying of Customs is formerly declar'd and by the Canon Law this was likewise declar'd lawful to Princes vid. perez ad lib. 10. C. tit 18. num 13. l 5. C. de jure fisci where it is said officialibus vâ—lentibus ea capere debet acquiescere From these words of this Act Albeit it cannot be deny'd that His Majesty is a free Prince of a Soveraign power havand al 's great Liberties and Prerogatives be the Laws of this Realm and priviledge of His Crown and Diadem as any other King Prince or Potentat whatsoever It is observable that our Kings are here acknowledged to be absolute and Soveraign Monarchs as is likewise more fully declar'd by the 1 Act Par. 18 Ja. 6. In which it is said Whom the hail Estates of their bounden duty with maist hearty and faithful affection humbly and truly acknowledges to be Soveraign Monarch absolute Prince Judge and Governor over all Persons Estates and Causes both Spiritual and Temporal within His said Realm By neither of which Acts I conceive our Kings are so absolute as that they have a Tyrrannick or Despotick power but that they are so absolute as that they have power to do every thing that is just and reasonable though they be not thereto empowered by particular Acts of Parliament and therefore they are ill Subjects and worse Lawyers who allow the King to do nothing but that for which he can shew an Act of Parliament since his being an absolute Monarch implyes this innate Power and therefore it follows by a better consequence when any thing is contraverted that the King may do the thing in controversie being reasonable if his power be not as to that point restrained by a particular Act of Parliament It is likwise very observable that this power of absolute Monarchy does not flow from the people but is his own Right for no Act of Parliament grants the King any Prerogative but only declares by way of humble acknowledgement what his Prerogatives were principibus says Tacitus summum rerum judicium dii dederunt subditis obsequii gloria relicta est lib.
said to be no more when they make but a part of the Parliament of Great-Britain for Scotland cannot be called Britain nor a part of a Parliament cannot be called a Parliament no more than the Commissioners for the North of Scotland can be called the Parliament of Scotland but how our Commissioners could sit in the Parliament of Great-Britain by vertue of their former Commissions I see not and therefore it seems to be both fit and just that the Commissioners of Shires and Burrows should be sent home to their respective Constituents to crave their advice and consent in so weighty and comprehensive an Affair nam quod omnes tangit ab omnibus debet approbari It may be likewise contended that this Great Determination of Uniting both Parliaments requires at least the full assent of the Members of both Parliaments and that though the Parliament had power to alter its own Fundamentals yet if any one dissent the Union of both Parliaments must stop for both in Law and Reason the power of making Laws and the Right to retain or resign Priviledges are two different things the one is a Legislative Power which is regulated by plurality of Voices the other is founded upon Dominion or Property and is not subject to Suffrage no more than other Properties are for as every Member has Right so his Right cannot be taken away from him without his own consent though all these who are in the Society with him should renounce what is theirs in re pari melior est conditio prohibentis in re communi nemo dominorum jure quicquam sacere potest invito altero L. Sabinus ait 28. ff com divid thus if the Members of a Society were by Law free from Impositions though all the Society save one should submit to pay yet plurality would not in that case oblige the Refuser and if all who had interest in a Commonty should condescend to Resign their Right therein in favours of another yet if one were refractory that one would not be prejudged by the consent of all the remanent partners whence it seems consequential that as the Parliament cannot Debar any Member from sitting in Parliament so that if one Member by advice from his Constituents oppose the Union of Parliaments it could not be carry'd by plurality for what ever Reason militats why plurality should not oversway in the one does likewise militat in the other and if the right of every Member is given as the cause why he cannot be debar'd from sitting Why should not the same Right empower him much more to stop the total alteration of the Parliament even as a man cannot be Debar'd from using a Commonty It will likewise operat that the Commonty cannot be altered in its Nature without his consent and the Right of these who sit in Parliament is as much prejudg'd by extinguishing the being of a Parliament as by debarring them from sitting or Voicing in it Our Shires and Burghs have Right to be Represented in no Parliament save that of Scotland and therefore if the Commissioners had power to overturn the being of the Parliament of Scotland they could have debar'd our Shires and Burghs from being Re-presented in the Parliament of Great-Britain seing they could pretend no Right to sit there so that it seems either plurality of Voices may exclude any particular Member and may retrinch that Member Or else by the same Reason no plurality can establish an Vnion of both Parliaments and if our Parliament could by plurality of Voices overturn the Fundamentals and destroy the very being of our Parliament How shall it be possible to secure our Parliament when it is joyn'd in with the Parliament of England into one Parliament of Great-Britain so as that the Parliament of Great-Britain may not by the plurality of Voices likewise overturn any Fundamentals that shall be condescended on but that the Fundamental Constitution and priviledges of Parliament are not subject to Suffrage and cannot be abrogated nor innovated without the universal consent of all its Members and Commissioners may be clear likewise from many Instances for it is most certain that the Parliament as now Constitute could not by any Statute Ordain that there should be no more Parliaments or resign over their Parliamentary power in the hands of the Council nor could they Transmit the Power they possess in favours of their own Heirs or exclude any of the Three Estates and sure if Fundamentals be not subject to plurality of Voices the power of Uniting of Parliaments and suppressing of Monarchies is not for these comprehend all other Priviledges and Fundamentals and if the priviledges of one of the Three Estates cannot be altered by plurality I see not how the priviledges of all the Three can be and we have seen Parliaments in the last age do such irregular things that the succeeding Parliaments have been forc'd not only to abrogat their Laws but even to find that they had exceeded their power which implyes that it was not arbitrary King IAMES the sixth Parl. 18. THis Act Declares His Majesties Royal Prerogative by way of acknowledgement without any new Concession in these words They all in a voluntar humble faithful and united heart acknowledge His Majesties Soveraign Authority Princely Power Royal Prerogative and priviledge of His Crown over all Estates Persons and Causes and Confirms to His Majesty His Imperial Power and whatever Soveraign Authority any of His Predecessors had and Casses annuls and abrogates all any way done to the prejudice of His Authority any manner oâ— way so that it seems that all former Acts of Parliament lessening any way the Royal Power are hereby abrogated By this Act likewise the Estates of Parliament promise to maintain defend and advance the Life Honour Soveraign Authority Prerogative Royal and priviledge of His Crown with their Lives Lands and Goods to the outmost of their power But because this Act was too general therefore by the 2 3 4 and 5. Acts of the first Parliament Charles the Second His Majesties Royal Prerogatives in the choice of the Officers of State Counsellours and Judges in Calling and Dissolving of Parliaments and making of Laws in making of Peace and War and ordering the Militia c. are expresly acknowledged and Ratified and by the second Act of the second Session of the first Parliament All endeavours to restrain His Royal Person to Depose or Suspend Him and all endeavours tending thereto are Declared Treasonable and all stirring up of the People to the hatred or disâ—ike of His Royal Prerogative are punishable in manner therein mentioned and by the 27 Act of the 3 Sess. of the 1 Par. Ch. 2. His Majesty is Declared by His Prerogative Royal To have the only Power of Ordering all Trade with Forraigners Nota This is the first Act that mentions the word Prerogative which was formerly call'd the Priviledge of the Crown and therefore this Act mentions both the Old and the New Words by asserting
publicum vid. Act 6 Par. 1 Sess. 3 Ch. 2. It may be argu'd from this Act That if the Town of Edinburgh could have made such Acts by their own authority this Act had been needless THis Act is Explain'd in the 106 Act Par. 7 Ja. 5. THis Act is Explain'd crim pract tit Usury THis Act discharges any man to Hunt or Hauk at any time who hath not a Plough of Land in Heretage under the pain of an hundred pounds but it is now in Desuetude K. CHARLES I. Parliament I. KING CHARLES the First having come to Scotland to be Crown'd in anno 1633. The Parliament does by this Act grant Him not only a Subsidie upon the Land-rent bu◠likewise the sixteen penny of all Annualrents the Annualrent being then at ten in the hundred but because the Annualrent was thereafter brought down from ten to six Therefore by the 49 Act Par 1 Ch. 2. It is Declar'd that the said six of the hundred shall be free of all Retention and other publick Burdens whatsoever There is no Immunity allow'd by this Act to any from this Taxation save the ordinary Lords of the Session and Mortifications to Universities Colledges and Hospitals and this was the first time the Lords were separated from the Advocats and other Members of the Colledge of Justice and yet by the 23 Act of this Parliament all the Immunities and Priviledges that ever were granted to the Colledge of Justice are Ratifi'd and though it may seem that this Act being posterior derogats from the former yet specialia semper derogant a generalibus By this Act likewise the Lords of Erection are to be Taxed in the same way that they were before the Erection THis Act is but a continuation of the first Act and shews the way of uplifting the Taxation thereby given THe Parliament having granted by the 8 Act Par 20 Ja. 6. Power to the King to appoint Apparel for Judges and others because that Act was but Temporary they by this Act continue the same to Our Soveraign Lord and His Successors who now is which certainly is wrong Printed and Reads ill for the words should run Our Soveraign Lord that now is and His Successors Observ. 1. That Acts referring any thing to the Kings Majesty and not mentioning His Successors are but Temporary else this Act had been needless Obs. 2. That these erre who think the Parliament cannot delegat their Power for in the former Act and this it is clear that the Parliament did delegat this Power and it is Declar'd that the Kings Letter Regulating this affair shall be equivalent to an Act of Parliament and this same Parliament 1633. did grant a Commission to Revise the Laws and did Declare that what they did should have the force of Laws without Reporting to the Parliament and the Lords of Articles anno 1681. Did grant a Commission with a Parliamentary Power to some to Revise the Earl of Argiles Rights and the Commission of Teinds is of the same Nature THere having been great Debates in anno 1633. concerning the securing the Protestant Religion it was at last agreed that the old Acts made by King James were in themselves sufficient and the best that could be fallen on as being made when there were greatest fears of Popery and by the help of which the Protestant Religion grew to the consistency it is now at and therefore the Parliament acquiesced in this short Act Ratifying in general the former Acts made for securing the Religion Vid. Act 1 Par. 3 Ch. 2. THe former Parliaments which had determined Ministers Stipends forgot to provide School-masters and therefore the Privy Council did provide them by an Act of Council and though it may seem strange that the Privy Council could impose a burden though for a just Cause yet that their Act is here approv'd and the Secret Council are made Judges to all Processes concerning School-masters dues though now the Lords of the Session are the only Judges nor are there any such Processes intented before the Privy Council Since by this Act the Planting of Schools is refer'd to the Bishop with the consent of the Heretors and most part of the Paroch it would appear that they and not the Kirk-session where they live should have the placing of them and albeit it be alleadg'd that the School-master of the Paroch is by the 17 Act Par. 3 Sess. 5 Ch. 〈◊〉 To be Clerk to the Kirk-session and therefore they should have the chief interest Yet this consequence is not sufficient and the Act whereupon it is founded is likewise abrogated This is conform to the Reform'd Church of Saxonie wherein cura scolarum pastoribus ac superintendenti commissa est Carpz lib. 1. tit def 77. BY this Act all Mortifications by Gift Legacy or otherwise are declar'd not to be alterable to any other use than the special use to which they were Destinated by the Mortifier but yet if that use become unlawful ex post facto so that the persons in whose favours they were Mortifi'd be dissabled to Possess I think they should fall to the King as Caduciary if the Property has been once Transfer'd and the person upon whom it was Transfer'd became thereafter uncapable for quae sunt nullius sunt Domini Regis and thus the Mortifications made to Monastries fell not back to the first Proprietars or their Heirs but to the King But if the Property was never Transfer'd but before the first acquisition the person to whom the same was left was incapable to receive the Right Mortifi'd as if a Man should leave a Legacy to his Brother who were a Capushian whose Monastry and not himself are only capable of Legacies it seems that if the Mortifier knew that his Brother was uncapable and that it would fall to the Monastry that in that case also the Mortification should belong to the King and should not be retained by his Heirs as a due punishment of his Fault But if the Mortifier knew not the same it were more reasonable to determine that the Mortifiers Heirs should retain the Right Vid. Tit. Cod. de caduc tollend Thomas Mudie having left a sum to be employ'd on the building a Church in the Grass-Mercat of Edinburgh The Magistrats thereof were upon their Supplication allow'd to build a Steeple and buy a Pale of Bells with the Money because a Church was useless wanting a Stipend though this Act against inverting Pious Donations was objected for the Parliament thought that if a Mortification be left which cannot take place either because it is against Law or is useless the Parliament may allow the same to be fulfilled by an equipollency that being more suitable to the design of the Mortifier and better for the Common-wealth than if the Mortification should become extinct which is consonant to the Civil Law George Heriot having appointed by one of the Statutes of his Hospital that nothing should be altered though for the
puniendi ratio si Dominum se pro Caesaris expeditione instruentem non suerit Comitatus feudum enim eo casu amittet dimidium fructuum illius anni ex feudo domino pendet non enim hic tantum contra dominum sed contra imperium Remp peccatur so that it seems in his time the Vassal who hâ—ld of another Superior then the King forfaulted his Feu for not going to the Host but the immediat Superior had Right to half a years Rent and the reason of this seems to have been because by all our old Laws the Vassal was obliged to attend his immediat Superior in going to the Kings Host and the Proclamation then commanded every man to come with his Vassals and therefore as the King had Right to the Forfaulture for not attending his Host so the immediat Superior had right to this half years Duty for his not attending him and sometimes by the Journal Books it appears that when Vassals were Fined and not Forfaulted the immediat Superior craved the half of the Fine THe punishment of such as ride with moe than their ordinary Houshold is Arbitrary and this Act must only be interpret against such as ride ordinarly with great Trains and which may look like an unpeaceable design nor is any man punished for riding at solemn Occasions with his Friends and Followers and I also think that this Act would only extend to such against whom there lies a presumption that they gather or keep men together upon some sinistrous design either against the Government or their Neighbours for if this were allowed great men might keep Troups together and for this same reason are Convocations discharg'd by other Acts and betwixt these Acts and this there is this difference that by these the Convocating for a time irregularly those in whom the Convocater pretends no interest is discharg'd but by this Act the conveening men upon pretext of a Retinue is discharged and though it may seem that every man may keep as great a Retinue as he pleases yet quilibet tantum in suo facere potâ—st illud quod fieri potest sine aemulatione vicini but multo majus sine aemulatione Reâ—publicae THough by this Law it is only appointed that there be Officers and Ministers of the Law made through all the Realm indefinitly without telling by whom they are to be made yet by the 2. Act Par. 1. Ch. 2. The power of choosing Judges is declar'd to be one of His Majesties Prerogatives It is observable from this Act that none can be Judges who have not sufficiently of their own where-through they may be punished if they transgress which is very just for a Judge who Decerns unjustly by palpable unjustice litem suam facit and therefore it may be well argu'd that when any who is a Judge or has an heretable Office becomes insolvent he may be forc'd to find a Depute who is solvent or else he may be discharged to sit Obs. Though it may seem That if any Heretable Officer be incapable to exerce the King should name Deputs jure devoluto yet by this Act it is ordained That if the Heretable Officer be incapable he shall ordain others for whom he shall be answerable The Design of this Act is to empower the Sheriff to arrest Oppressors and Vagabonds By these words to sojourn Horse is meant to quarter Horse from the French word sejour By Husbands of the Land is still meant Husband-men in our Acts of Parliament By taxing the Kings Skaith is meant to cause modifie what is due to the King and by Assything the King is meant the causing the Malefactors pay what is modified Obs. That the Legislative Words in our Statutes are very various for in this and many other Statutes of this King the formula is the Parliament Statutes and the King forbids which words shew that the Legislative Power is in the King for to forbid is the chief and most vigorous part of a Statute In the 17 th Act it is said It is Statute and the King forbids In the 14 th It is Statute by the whole Parliament and the King forbids In the 13 th It is Statute by the whole Parliament and by the King forbidden In the 30 Act 2 Par. Jac. 1. It is Decreeted by the whole Parliament In the Act 37 It is Decreeted and Statute In the Act 47 Par. 3 d. It is ordained by the King and Parliament Act 50. It is ordained and forbidden Act 60 Par. 3. Jac. 1 Our Soveraign Lord through the whole Ordinance of the Parliament Statutes Act 125 Par 9 Jac 1 Through the consent of the whole Parliament it is ordain'd Act 62 Par 3 Jac 1. It is seen speedful Act 76 Par 5 Jac 1. It is Statute and Ordain'd and Act 78 and 79 It is Ordain'd Act 83 Par 6 Jac 1. Rex per modum statuti ordinavit Act 85 Rex mandavit In the old Statutes of King Robert and King Alexander c. It is said Dominus Rex vult or statuit Rex or desinivit Rex or prohibet Rex or decrevit deliberavit Rex without speaking one word of the Parliament or Estates Act 105 Par 7 Jac 1. The King with the consent of the Council Act 104. The King with the consent of the Parliament and Council Act 108. The King of deliverance of Council But the formula now is Our Soveraign Lord with advice and consent or Our Soveraign Lord and Estates of Parliament which last is not so proper and though in most of the Acts of the 14 th Parliament K. Ja. 3 d It be said That it is Statute and Ordained by the whole three Estates yet it may be easily seen that these Acts were but in effect Overtures propos'd by the three Estates to be Ratified in Parliament and so in effect are conceiv'd rather as Overtures than Acts As also where any thing is to be put in execution by the King there the Act runs in name of the Parliament and not of the King as in the 23 d Act Par. 1 Jac 1. It is said that the Parliament has Determined and Ordain'd that Our Lord the King garâ—mend his Money and in the 6 Act Par 3 Jac 2. The three Estates has concluded that Our Soveraign Lord Ride throw all the Realm c. THere are many wayes whereby the Superior may crave Production of his Vassals Evidâ—nts for the King sometimes gets an Act of Parliament ordaining all the Vassals of such a Countrey to produce their Evidents as 262. Act. Parl. 15 Jac. 6. whereby all the Heritors in the Highlands are ordain'd to produce their Evidents with certification of losing their Rights The Superior may also crave exhibition of these Rights But the ordinaâ— way is by an Imprâ—bation wherein certification is granted against the Papers that are not produced which is deriv'd to us also from the Feudalists who affirm that Vassallus imperari potest sub poena
Nâ—ta Reset in some cases and in this is more severly punished than the Malefactors The pain is augmented to a 100. lib. Act. 210. Parl. 14 Ja. 6. And at last shooting them with Guns is declared punishable by death Act. 9. Parl 4. and Act. 51. Parl. 6. Q. M. BY this Act These who wilfully Reset Maintain or do favours to open and manifest Rebells are punishable by Forfalture For understanding whereof it is fit to know that there are some manifest Rebells de jure and some de facto Such as are denunced and registrated are manifest Rebells de jure for though the Leidges know them not yet they ought to know them and it would seem that this requires a Denunciation within the Shire where the Resetter lives Act â—2 Parâ— 6 Ja. 6 And though that Act bear that the Denunciation at the head Burgh of the Shire be sufficient yet it seems that the Denunciation being only a transient Act is not sufficient to put the Leidges in mala fide except the Rebel be Registrated as Registration of other Letters is necessary to put buyers in mala fide Such likewise as are by positive Act of Parliament declared to have been Forfaulted as these exprest in the Act. 11. Paâ—l 2 d. Ch. 2 d Sess. 1. are likewise manifest Rebels de jure since all are oblig'd to know what is in Acts of Parliament but it has been doubted whether the resetting even of these after they have been allow'd for many years to appear publâ—ckly in Kirk and Mercat to the knowledge of the Kings Servants should infer paenam ordinariam or whether the said paena ordinaria can be inferr'd by resetting such as are mention'd in a Proclamation These are manifest Rebels de facto whom the Pannel knew to be Rebels or Traitors though they weâ—e not Denunced and thus Hamilton of Munkland was Forfaulted for resetting his own man whom he had seen in the Rebellion and if a man did see one kill the King or should assist Rebels in Armes before they were defeated it were ridiculous to alleadge that this were not punishable as reset because the Rebels were not denunced Rebels since they could not be denunced before Citation and the danger in resetting actual open Rebels is greater than in resetting poor lurking Vagabonds but this kind of accession must be inferr'd only from clear qualifications of knowledge such as these whereupon Lawrie of Blackwood was Forfaulted Winter Session 1682. In which Process it was likewise found that Letters of Intercommoning were not necessary to infer nottor Rebellion because Denunciations for Treason includs Intercommoning ex sua natura it being hard to leave so dangerous certifications to be arbitrarly inferr'd from conjectures and the Acts of Parliament require very wisely that the Rebellion be wilfull These who are here call'd Manifest and open Rebels are by the 4 th Act. Parl. 1 Ja. 1. call'd Notâ—or Rebels and notorium by the comâ—on Law is that which is committed Palam inspectante populo non egeâ— probatione Mattheus de prebat cap. 15. Clar. § Fin. Quest. 9. which is to be understood of that which is in se notorium but there may be notorium respectu noscentis without this as in Munklands case By the 97. Act. Parl. 7. Ja. 5. Such as reset any Rebels are punishable by Death and Confiscation of Moveables but it seems strange that resetting Rebels for a Civil Debt should infer Death or that resetting Traitors should infer no more and therefore the 144 Act. Parl. 12. Ja. 6. is more just ordaining the resetters of Rebels to be punished with the same pain that the Rebels ought to have been punished with By this Act also all men are bound to search take and apprehend them or to certifie the Kâ—ng and Council of their lurking in their bounds sub paena talionis By the 29 statut David 2 d. The Resetter is not to be punished till the principal Malefactor be convict but this was Repell'd in Blackwoods case because he had reset persons that were de facto nottor Rebels and certainly if a man should reset a company of nottor Rebels who could not be Convict because they could not be personally and distinctly known yet the Resetter might be Convict IS in Desâ—etude THough this Act appoints Deacons to be yet all Deacons are discharg'd Act 86 Par. 6 Jac 1. and Wardens â—re appointed in their place Act 103 Par 7 Jac 1. and thereafter Visitors are brought in Act 52 Par. 6 Q Mary But now Deacons are restored to all Incorporat Trades But Maltmen are discharged to have Deacons by Act 29 Parâ— 2 Jac 6. And yet if a Trade be not in Possession of a Deaconâ—ie they cannot begin to choose Deacons without first obtaining liberty from the Council for that effect by Petition so far still is the puâ—lict Peace of the Nation thought concern'd in all Deaconries and in a Process at the instance of the Trads-men of Brunt-Island against their Magistrates concluding that they ought to have Deacons because their Charter gave them as great Priviledges as Edinburgh had The Lords found that this Charter gave the Trades a Liberty to have Deacons but did not oblige them to have them and therefore they having liv'd so long without Deacons and the Trads men being so few they were not oblig'd to have Deacons In Spain and France such Colledges are discharg'd vide Perez ad tit 16 lib 11 num 19 Habere tamen possunt Decanum suum ibid vide infra Act 86. p 6 Jac 4. IS much innovated by the Book of Rates IS in Desuetude BEggars or Thigsters who are gentle Beggars should have a Token from the Sheriff or Magistrates of Burghs else they are to be burnt in the Cheek this Act Ratifies only the 25 th Act Par 1 Jac 1. and adds to it that the Chamberlain shall inquire in his Air concerning this but all this is Regulated by the 18 th Act Par. 2 d Sess 3 Ch. 2. THis Act is extended to Hearers of such Leasing-making Act 134. Par. 8. Jac. 6. by this Act Leasing makers lose Life and Goods and this Act is made to determine the uncertainty of the cap 21. stat Rob. 1. whereby the inventers of Rumours betwixt King and People were put in the Kings will I find an Act in England against â—he same Crime vid 3 Hen 8 câ—p 10 annot 1637. NOta That though the Legislative Power belongs properly to the King in the Parliament yet the Judicative Power belongs properly to other Courts and therefore by this Act private Causes are appointed to be discus't before inferiour Courts and the Parliament should not be Judges in the first instance But de facto many privat cases are intended before them THough by this Act it be ordained that honest men be appointed to modifie Assythments yet this modification now belongs to the Exchequer who modifie the Assythment when the Signature for the Re-in-mission
passes in the Exchequer King JAMES the first Parl 3. IS in Desuetude THis Act was made to exclude all pretentions of the Emperour or Pope and all Laws made or Priviledges granted by them but was not design'd to exclude the Civil and Canon Laws which by many of our Statutes are call'd the Common Law and are followed in this Kingdom and to exclude the Danish Laws in the Isles Jac. 4 Par. 6 c. 79. THis Act against Transporting of Money is after many Innovations severly renew'd and the Merchants ordained to swear thereupon allowing only sixty Pounds to Passengers for their Charges by the 11 Act Par 1. Sess 3 d Ch 2 d. But many think it more reasonable to allow Exportation as in Holland since the hindering Exportation prejudges much all manner of commerce THe first part of the Act discharging Officers in the Countrey wherein any man is Indyted to be upon his Assize seems to be founded upon the suspition that arises from an Interest they may have in having the Pannel Convict since a part of his Escheat belongs to them and therefore I think this should not be extended to exclude any such Officers within the Shire as may expect no share such as Commissars c. The second part of the Act which discharges those who Indyte a man to be upon his Assyze extends also against Informers and these who gave advice for raising the Libel but from this part of the Act it clearly appears that it is not generally true that when a penalty is adjected to an Act the deed is not null though the penalty be due for it is here forbidden that any Officiar or other who Indyts a man shall be on his Assyze under the penalty of ten pounds and yet certainly this Act would sett the informer from being on the Assyze and though to this it may be answered that this is unlawful by the Law of Nations prior to all Law and so this Law is only declaratory yet that cannot be alleadged as to discharging Officers within the Shire to be upon assyzes it may be also alleadg'd that this Penalty is only irrogated in case any should pass on such Assyzes without being known to be such But I do really believe that we in our Parliaments considered not the subtile distinction betwixt Acts which proceed paenam irrogando and these which proceed actum irritando vide Obs on the the 216 Act Par 14 Jac 6. It may be likewise concluded from this Act that the Kings Advocat is oblig'd to condescend who is his informer for else the Informer may be upon the Pannels Assyze and yet because that would discourage men from informing interest Reipublicae ne crimina maneant impunita Therefore the Council has several times found that the Advocat is not oblig'd to condescend upon his Informer further than that if it be referred to the Advocats oath of Calumny that some of the Assyzers or Witnesses were his Informers as to which he will be oblig'd to give his Oath of Calumny THe difference betwixt Forethought-fellony and Chaudmella is only observed as to Murder though this Act seems to extend it to all Transgressions and even as to murder the Murderer is to be imprison'd whether it be committed upon Forethought-fellony or Chaudmella for Chaudmella or homicidium in rixa commissum is Capital by our present Law THis Act appointing all Barons to appear in Parliament may seem abrogated by the 102 Act Par 7 Jac 1. Whereby the Barons of each Shire are allowed to choose two wise Men to Re-present them which is the Custom at this day But it is observable that though by that Act they may for their conveniency choose two yet they are by no expresse Law discharg'd to come in greater numbers Nota It seems by that Act that a Prelat or Earl may send their Procurator to Vote for them if they have themselves a lawful excuse but yet de praxi that is not allow'd but this Act is more fully Explain'd in the Observations on the 7 Act Par 22 Jac 6. OBserve that this Act proves the Books of Regiam Majestatem and Quoniam Attachiamenta to be our Law for they are called the Books of Law ARe Explain'd in the 96 th Act Par 6 Jac 4. THis Act appointing all Ferriers to have Bridges in places where Horses are to be Ferried is renewed by the 20 Act Par 4 Jac 3. Wherein all passages on each side of the Water are ordained to have Bridges whereupon Brunt-Island and Kinghorn rais'd a Process against Kirkaldy to have their Passage-Boats discharg'd as not being able to have such Bridges and for the good of the Kingdom since if all places were allow'd to have Boats Kinghorn and Brunt-Island which in the old Evidents is called Wester Kinghorn could not have sufficient Boats against Storms as now but this being thought by the Council matter of Property was remitted to the Session it being dangerous upon pretext of publict good to discharge Property for else many Innovations might be pretended BEfore this Act the Kings Council were the Supream Judges in civil Causes but by this Act some Commissioners of Parliament are to be chosen by turns who with the Chancellor are to be the Session and are to be pay'd out of the Unlaws so that the Session was then a Committee of Parliament their power is further settled and declared by the Acts 61 62 63 Parl 14 Jam 2 d. By which it is clear that they were to Sit but fourty days at a time and that the Session was then ambulatory and their sitting was Proclaim'd in each Shire where they were to Sit three Moneths before and they were by that 63 Act to bear their own Expenses after which the Sessions were by K James 4 Par. 6 Act 58. turn'd in a dayly Council which was to be chosen by the King and was to Sit at Edinburgh continually and wherever the King Resided they had the same power that the Session had and their Sitting was to be notified to the People by open Proclamation at the Kings pleasure In place of all which The Colledge of Justice and The Lords as they now are were Instituted by King James 5 th Parl. 5 th Act 36. Nota There is power granted by this Act to determine Causes finally which may import an excluding of Appeals but thereafter Appeals are discharged expresly Jac. 2 Par. 13 Act 62. THe Sheriff are not now oblig'd to publish the Acts of Parliament but they are to be published at the Mercat Cross of Edinburgh only and bind not the Leidges till fourty dayes after Publication K. James 6 Par. 7 Act 128. King JAMES the first Parliament 4. ARe Explained in the 96 th Act 6 Par Jac 4. BY this Act wilful Fire-raising is Treason 2. Fire-raising by Mis-governance is punishable in Servants 3. Reckless Fire-raising is punishable either in the Owner or the Mealer or Tennent
many of the old Acts yet to be seen in the Records of Parliament are left out Observ. That the Acts of Parliament are call'd the Kings Laws and not the Acts of Parliament for the King has only the Legislative power and the Estates of Parliament only consent The Books of Regiam Majestatem are likewise numbred amongst our Laws but what is mean'd by the words Acts and Statutes added in this Act to the Kings Laws and Reg. Maj. I do not understand except by these be mean'd the Burrow-Laws and the Statutes of the Gildry and these other Books that are bound in with Reg. Maj. K. JAMES IV. Parliament I. BY the twelfth Articl Iter. Just. The Burrows had liberty to repledge their own Burgesses from being upon assizes which priviledge is here regulated but now the priviledge it self is in Desuetude for all Burgesses are oblig'd to pass upon assizes except the Chirurgeons of Edinburgh who have a special priviledge because of their necessary attendence upon sick persons BY this Statute all Ships must come first to free Burghs and no Strangers can fraught Ships but now by the 5 Act 3 Sess. 2 Par. Ch. 2. all â—urghs of Barony and Regality may Traffick in the product of Scotland as freely as Royal Burghs Vid. That Act and the observ thereon That part of the Act discharging strangers to buy Fish that is not salted is now in Desuetude It was argued from this Act in the case of the Town of Linlithgow against Borrowstounness that the Burrows Royal had the only priviledge of having all Goods Liver'd and Loadned at their Ports and which is likewise clear by Act 88 Par. 6 Ja. 4. and by Act 152 Par. 12 Ja. 6. 2 o. Without this priviledge the Burrows were not able to pay the sixth part of the burdens laid upon them in contemplation of their Trade since a Clandestine Trade without this might be carry'd on by the Burghs of Barony and Regality who since they may retail publickly might have the same priviledge as they if they had likewise power to import publickly 3 o. This was most convenient for securing the Kings Customs because where ever there is Livering allow'd the King must have Waiters and upon which consideration the Magistrats of Burghs Royal are by the Acts of Parliament appointed to assist the Kings Customers and whereas it was pretended that the priviledge of Commerce was inter regalia and consequently the King might grant a free Port to any Burgh he pleas'd 2 o. The priviledge of a free Port was different from that of Livering and Loadning 3 o. The Acts of Parliament cited did only discharge Strangers to Load and Liver which is yet more clear by the Act 120 Par. 7 Ja. 6. To which it was reply'd that the King and Parliament having formerly granted the sole power of Loadning and Livering to free Burrows it was no diminution of his power to assert that he could not give a new grant of that to any whereof he was formerly divested To the 2 d it was reply'd that the sole priviledge of a free Port granted by a King to a Burgh of Regality or Barony can extend no further than that thereby they may have the priviledge of bringing into their Port the Goods proper only to be sold by them To the 3 d it was reply'd that this Act discharges Strangers and others to Liver at any place except at the Ports of Burghs Royal and though in that 120 Act Par. 7 Ja. 6. This Act is repeated as relating only to strangers yet in the next line Strangers and others are in that 120 again discharged Likeas by the Acts of Parliament the sole priviledge of losing and loosing is declar'd to belong only to Burghs Royal which in Sea-faring Terms signifies loadning and un-loadning BY the Act 85 Par. 11 Ja. 3. The Rents of Churches or Benefices whereof the King is Patron are declar'd to belong to him sede vacante by the priviledge of his Crown and this was so formerly declar'd by the 7 cap. Stat. 2 Rob. 1. And Skeen there observes that cum alicujus beneficii Ecclesiastici patronatus pertinet ad Regem terra si quae sunt ei annexa pertinent quodammodo ad Regem and therefore by this Act it is appointed that it being declar'd by the best and worthiest Clerks of the Realm that if any Church-man received and purchast such a Benefice at Rome they should be punish'd and these who supplyed them This Declaration from Clerks was requir'd because the Secular would not meddle with Church-men in these days till Church-men had some way declar'd them guilty King JAMES the fourth Parliament 2. THat part of the Act appointing the intromission with the Kirk Rents to be a point of Dittay that is to say to be a Crime is now in Desuetude for they have no other priviledge here more than Laicks but to intromet with their Rents either by Arms or open Force is the Crime of oppression with us and was punish'd by the Romans lege Julià de vi per deportationem in liberos homines ultimum supplicium in servos Observ. That by this Act Parsons and Vicars are founded in jure as to Teinds for it is declar'd a Crime to intromet without a right from them I Understand not how it is said here that the King could not discharge any part of the Taxation granted to him though it was granted for a particular or publick use for it is ordinary and lawful to Kings with us to discharge privat parties their particular proportions except the contrary be expresly provided and the offer be so qualifi'd by the Parliament but here the King was minor as appears by the subsequent Act or rather this Taxation being granted originally for maintaining an Ambassador for the Kings Marriage as is clear by the Act and so ad particularem effectum it could not be diverted from that particular use lest else the Embassie should have fail'd And from this we may observe that what is granted for a general and publick use cannot be otherwise apply'd or taken away IT is observable from this Act that the King was Minor and that is the reason why he could not discharge something here exprest which falls not under his annex'd Property THe Parliament here recommends only to the King that his Majesty shall cause his Wardens observe the days appointed for Truce and they meddle not with it because what concerns Peace and War belongs to the King and not to the Parliament THe restrictions here put upon the King proceeded from his minority Nota Councellours are made accusable to the King and Parliament of their Council till the next Parliament for the words are and shall be responsal and accusable to the King for their Counsel but this was in the Kings minority and therefore there were greater reason that they should have been lyable for their Counsel than when a King is major for then he may judge of
reparation Obs. 1. Notwithstanding of this Act a Retour or the execution of a Brieve or any other piece of the Process may be improven at any time within fourty years and the Process it self may be reduc'd in consequentiam by Reduction of any Writ whereupon it followed Hope tit Reductions of Decreets Obs 2. That this short Prescription of three years runs not against such as are Minors or out of the Realm in imitation of the Civil Law which allow'd immobilia praescribi inter praesentes decennio inter absentes viginti annis Obs. 3. That these words be rais'd and pursu'd imply not that the Process must be ended but that it must be begun within three years and the Process is said to be pursu'd when the Summonds is executed Vid. Observ. on Act 64. Par. 8. Ja. 3. King JAMES the fourth Parliament 6. IT is observable that though this Parliament is exprest in the Printed Acts as held upon the 11 th of March and all these Acts are exprest as past upon that day yet I find by the Records themselves that they were all past upon the 15 th of March which is also called quinta dies Parliamenti Item It is observable that all the Acts of this Parliament are only set down in way of breviat and thus the 62 Act is thus exprest in the Original Record Item It is Statute and ordain'd that where any person happens to get a Remission in time to come that the said Remission shall not extend nor save the taker for greater Crimes be any general clause nor is contain'd especially and that the greatest action shall be specified or else it shall not be comprehended and that the general clause shall not include greater nor the special clause THis Act is formerly explained In the Observ. on Act 65. Par. 3. Ja. 1. and Act 62. Par. 14. Ja. 2. THese Acts are useless for all these Jurisdictions are now otherwayes divided and established THe Shires of Inverness and Ross having been again after this Act united they were and are now disjoyned and whereas this Act makes the Town of Thane and Dingwall to be the head Burghs of the Shire of Ross the Town of â—orteross is added as another head Burgh to the other two by an Act of Parliament 1661. IT is appointed that general Clauses in Remissions remitting all Crimes shall not be extended to greater Crimes than the Crimes specially condescended upon in the Remission but to evite this Remissions do now express specially all the great Crimes and then a general is subjoyned and upon this Law it was controverted in Glenkindies case whether a Remission for slaughter should be extended to Murder since Murder was pretended to be a greater Crime as proceeding upon forethought Fellony to which it was answer'd that Slaughter was a general term comprehending both Slaughter and Murder It may be argued from this Law by a parity of Reason that Discharges granted for a special Sum and thereafter discharging generally all debts shall not be extended to other Sums greater than that which is specially discharged but yet the 24 th February 1636. It was found that such general Clauses did cut off all Sums even though greater than the Sum discharged in special THis Act ordains all Remissions for Slaughter to be null if the Slaughter was premeditated and upon forethought Fellony nor is this Act temporary being to last in all time coming till the King revock the same specially but yet this excellent Law is not de praxi now observed though it be most reasonable Vid. Act 169. Par. 13. Ja. 6. And the same reason given here for it viz. because many in trust to get Remissions did commit slaughter is set down to the same purpose Canon injusta Quaest. 4. Nonne etiam cum uni indulget indigno ad prolapsionis contagium provocat universos facilitas enim veniae incentivum tribuit delinquendi By the cap. 50. Stat. Dav. 2. It is ordain'd that no Remission for Murder upon forethought Fellony shall be given except in Parliament and for a publick good Observe here the discreet stile wherein Kings are limited in the exercise of their Royal Power for here the King declares it is his pleasure that such an Act be past and desires the Estates to pass it and since this Act is to last till it be revocked by the King it may be doubted if the King alone may revock it without Authority of Parliament The like Act discharging Remissions for burning Corns Ja. 5. Par. 7. Act 118. THough Bishops are by this Act to appoint and deprive Notars yet they are now both tryed and deprived only by the Lords of Session Though this Act appoints Bishops and their Ordinars to take inquisition who uses false Writs yet none but the Lords of Session are now Judges to improbation which is the only Process competent for trying falshood of Writs in the first instance and the Commissar who is the Bishops Depute can never Judge of falshood now except where the falshood falls in only incidenter and by way of exception as if I were pursuing any Action before the Commissars and it were alleadged that the Execution of the Summonds were false there the Commissar would be Judge competent to try the falshood of the Executions for else his Jurisdiction were useless and all Sheriffs Lords of Regalities Stewards and the like have the same priviledges BY this Act Summonds for recent SpuilÈies must be executed upon 15. days whereas all Summonds were to be executed upon 21. days by the 6 Act Par. 1. Ja. 3. which is the Act here related to though not cited and by an Act of Sederunt 21 July 1672. this priviledge is extended to recent Intrusions which is a kind of SpuilÈie in immoveables Observ. 1. That since the Parliament thought that the former Act of Parliament could not be derogated from without an express Statute it may seem strange why the Lords do priviledge any Summonds by their own power or if they had power why they did not make actions of recent SpuilÈie and Intrusions to come in upon 6 days as well as Exhibitions Poynding of the Ground and other less favourable Causes to which nothing can be answered but that there was an old custome for the one but not for the other Observ. 2. That the last words of the said Act viz That there shall be no exception dilator admitted against that Summonds it being lawfully indorsed seem to imply that the Judge should grant no continuation though that properly cannot be called an exception dilator or else that the Judge should restore spoliatum ante omnia and admit no exception upon property nor compensation c. but these are not properly dilator defences or that the not continuation of the Summonds upon 21 days warning should not be objected but that is likewise unnecessary since the first part of the Act did that sufficiently and so these words with that sense had been
of authorizing Acts now is only by His Majesties touching them with the Scepter and if they be Voted in a former Session they may be touch'd without any new Vote or Act but if they were past in a former Parliament they must have a Vote else they cannot be call'd the Acts of the present Parliament THe King here Revock'd when he was in France and his Revocation is subscribed by a Notar which was at that time sufficient but his supplying the Solemnities by His Kingly power was unnecessary for the King cannot supply the want of Solemnities either in his own or other mens Acts or Deeds there is little in this Revocation different from what was in former Revocations save that 1 o. The King Revocks all Tacks and Assedations made for longer space than five years which Article is also repeated in the 31 Act Par. 11 Ja. 6. and the reason of it is because there is too great a restraint laid upon the King by these long Tacks hindering Him thereby to improve His Property or Casualty for which Reason likewise long Tacks set by Tutors are not allow'd and though this may seem only to extend to Tacks sett by Kings in their Minority Yet by the same Reason and upon the same Act a Tack of the Customs set by the King in His Majority to Fleming and Peebles was Reduced before the Exchequer November 17. 1634. because the Tack was sett for seven years 2 o. The King here Revocks all Rights made by Him by evil or false Suggestion or by expreeming of a false Cause though ordinarly false Narratives do not Reduce Deeds betwixt Majors this Lawyers terms ex suppressione veri expressione falsi and this article of Revocation agrees with the Civil Law Vid. tit C. de precib offerend tit C. si contra jus vel utilit public His Majesty here Revocks all Tacks and Assedations made in his minority for longer space than five years which is likwise a Clause repeated in all the posterior Revocations and though it may seem that no Deed done by a Minor in his Minority is Revockable except Lesion could be alleadg'd yet Craig is of opinion that the very setting of a Tack is a Lesion though it be not set under the true value Minorem enim laedi puto quod rei suae liberâ administratione prohibentur lib. 2. dieg 10. THe three Head-Courts to be held by Sheriffs c. conform to this Act are as follows the first is upon the first Tuesday after the fourteenth of January which is the first Tuesday after the twelfth day of Yule The second Court is upon the first Tuesday after Law-sunday The third is upon the first Tuesday after the twenty ninth of September which is Michaelmas day but now they need not writ any excuse to the King or Council if they be not personally present This Act makes a difference betwixt such as owe sute and presence and these who owe sute only all such Barons and Free-holders as owe sute and presence ought to be present in these head Courts but this Act determines not who owe sute and presence and though the 2 cap. 2 Stat. Rob 1. Statutes that none owe sute and presence but these who are expresly lyable thereto by theâ—r Infeftments yet by our present practice Vassals of Ward Lands and consequently of taxt Ward Lands are also lyable to compear in the Superiours head Courts without any Citation though they be not Câ—ted and though this be not exprest in their Infeftment for hoc mest in the nature of their holding but Vassâ—ls who hold bleâ—sh or â—eu are not oblig'd to compear without Citation except they be thereto ty'd by their Infeftment March 12. 1630. Bishop of Aberdeen contra his Vassals And by this Act also the Infeftment is made the rule of compearance these who owe sute only are only oblig'd to send an able man to attend and serve upon Inquests and ordinarly Charters bear tres sectas curiae THis Act appointing Sheriff-deputs and all other Deputs to be sworn yearly is in Desuetude THis Act appointing all Executions even of Letters by warrand of inferiour Courts to be stamped was running in Desuetude till it was revived by a Decision in January 1681. where an Execution proceeding upon a warrand before an inferiour Court was found not sufficient because not stamped and Horning and other Executions before the Lords were always null by way of action if not stamped July 2. 1630. This Act appoints that all Mayors and Officers shall have a Signet bearing the first Letters of their Name or some other Mark that shall be universally known and therefore though the Executions bear that they were stamped yet if they do not appear to be stamped the Executions may be quarrell'd as null especially if they be recent even as Testaments were null by the Civil Law if they did not appear to have formam insculptamque signi imaginem l. 22. § 6. qui testament fac but on the contrary if the Executions bear not that they were stamped they will not be valid though they appear to be stamped because another than the Messenger might have affix'd that stamp Vid. observ on 33 Act Par. 5 Ja. 3. ALbeit this Act appoints all such as execute Sheriffs or Barons Precepts c. to leave Copies yet it has been found that the execution of a Barons verbal Precept needs no Writ but mâ—y be prov'd by Witnesses But this was betwixt a Baron and his Tennents where there needed no written Precepts whereas this Act requiring written Executions is only to be interpreted ' where there are written Precepts because it says they shall indorse their Executions and there can be no Indorsation where there is no written Precept It is requir'd by this Act that the Executor should show the Letters which are his Warrand and that he should offer a Copy to the Servants and yet both these are in Desuetude This Act requires six knocks and the affixing of a Copy upon the most patent Door of the Defenders Dwelling house which the Lords found was only in the case where there could be no entry but found that there was no necessity of knocking when the Door 〈◊〉 patent and Servants found therein December 11. 1679. Counte◠〈◊〉 Cassils contra the Earl of Roxburgh but it may be doubted still whether six knocks be necessary where the Door is patent but no Servants within and the Act says only that if they get no entress they shall knock though a man may be cited in an ordinary action by a Copy left at the Inn where he stayed fourty days yet a man cannot be Denunc'd upon a Copy left at his Inn which is so determined in odium of his Escheat November 20. 1672. It has been doubted whether a Messengers Execution bearing that he came to the Defenders House and was by force keeped out so that he could not give a personal Citation if in that case the Defender should be
shall examine all this very fully in my Treatise of Tithes If the Bishop refuse to admit one presented by the Patron then recourse must be to the Arch-bishop and if he likewise give not redress then the Council will give Letters of Horning to Charge the Ordinary to receive the person presented and by that Act the Bishop may refuse to admit a person who hath not reserv'd to himself a sufficient Maintenance in setting Back-tacks of his personage to the Patron which paction is accounted Simoniacal and the Lords of Session declar'd only Judges competent thereto though by the Ch. 2 lib. 1. R. M. patronages are declar'd to belong to the Ecclesiastick Jurisdiction and the said paction is probable by the parties Oath albeit regulariter nemo tenetur jurare in suam turâ—itudinem by the 1 Act Par. 21 Ja. 6. It is appointed that the Bishop shall not refuse to admit any qualifi'd Minister who hath been once admitted and receiv'd a Minister by which it is clear that the Bishop is not oblig'd to receive an Expectant who is â—ot an actual Minister and the reason is because non constat if he be yet qualified and the Bishop cannot be obliged to Enter him and consequently is not oblig'd to accept his Presentation By the Canon Law four Moneths were allow'd only to a Laick Patron and fix to an Ecclesiastick this was our Law before this Act as is clear by the 2 cap. R. Mai. lib. 1. and there was good reason it should have been so for the constitution concerning it c. 2. Ext. de suplend negl prael is written Episcopâ— St. Andreae in Scotiâ and this is cited as our Law by Le Roy de jure patron c. 28. and in case of the Patrons negligence a gradation was allow'd from Inferiors to Superiors till it ended in the Pope By that Law likewise a Laick Patron might vary in his presentation but an Ecclesiastick person could not and if an Ecclesiastick Patron presented a person that was unworthy he lost the right of his Presentation pro ea vice but a Laick patron did not and by our Law if the Patron present one that is unfit he may present another and a third providing all his presentations end within six Moneths for the presenting one within six Moneths interrupts not so as that he may thereafter present another within other six Moneths as some think except his not admitting be occasioned by the Bishop who cannot seek a jus devolutum by his own fault by the 7 Act Par. 1 Ja. 6. the gradations then allow'd were from the Ordinary to the Super-intendant and Provincial-assembly and from them to the General-assembly Where there are more Patrons they have right to present per vices and he who hath been in possession of presenting trina vice that is to say the three last times successivly without interruption hath the only right of presentation in possessorio in a Competition with the other Patrons pro ea vice without prejudice to the rest to declare their Right for the future as accords and by some it is alleadged that Presentations trina vice ex decessu incumbentis excludes all other Rights etiam in petitorio but this is not our Law Doctor Forbes in his Treaty of Simony exclaims extreamly against this Act of Parliament for allowing the Incumbent to set Tacks reserving to himself a sufficient Maintainance and he urges violently that this Act allows rather Simony than accuses it IT may be argu'd that this Act debars not such of the Royal Line as have right to succeed to the Crown for this relates only to a Coronation and the Coronation it self is not necessary Coronatio enim magis est ad ostentationem quam ad necessitatem nec ideo Rex est quia Coronatur sed Coronatur quia Rex est Oldrad Consil. 90. num 7. Balbus lib. de Coronat pag. 40. Nor do we read that any Kings were Crowned except Joash in Scripture and Clovis King of France was the first that was Crowned nor are any Kings of Spain Crowned to this day neither is a Coronation Oath requisite Sisenandus being the first who in the 4 Tolletan Council gave such an Oath amongst the Christians as Trajan was the first among the Heathen Emperors Gregory was the first of our Kings who anno 879. gave the first Coronation Oath having embraced the Christian Faith in which he was very zealous swore to preserve it but this Oath was not made to the people for they were not present but to GOD nor could he as Blackwood observes Apol. pro Regib c. 26. bind his Successors quia par in parem non habet Imperium nor could he bind himself for them to the people quia Cliens jurat Domino non Dominus Clienti tit de formâ fidelitatis lib. 2. Feud Likeas it may be said that this Act being made in the King's Minority and being prejudicial to the right of Blood in his Successors it falls under his Revocation made Par. 11. cap. 31. whereby he expresly revocks every thing which might hurt the priviledge of the Crown which this Act 8 would do if Kings were thereby debarr'd from Succession for differing in Religion from their Subjects This is contrary to the Confession of Faith which tyes us to obedience to our King though an Heretick and since private Subjects are not debarr'd upon this account from their property the King ought not to be debarr'd from the exercise of his Government which is his Property and that Kings cannot be debarr'd by a Statute is clear by all the Doctors in Can. qui jura distinct 8 Aecurs in l. Princeps ff de Legibus l. 4. de natal restit l Jura Sanguinis ff de Reg. Jur. sed naturalia instit de Jure Naturali forma Juramenti quod praestant Reges in Coronatione per Gloss. 1. in cap. fin de Eccles. aedif est quod jurat se Regni sui jura illibata conservaturum vid. Ant Corset de potest Reg. pars 3. num 62. Some are also of opinion but injustly that Coronation is to a King the same thing that Investiture is to a Subject and therefore as Heirs may continue the possession of their Predecessors before the Infeftment but cannot sell excamb or do any other deads of property till he be Infeft so though a King before he be Crowned may do these things that are necessary for present administration yet he cannot hold Parliaments dispone upon annexed Property and do any other deeds which require the exercise of the Royal Power till he be actually Crowned And whereas this Act ordains that all future Kings shall take this Oath at their Coronation and the recept of their Princely Power which implyes that they should take this Oath before they can administrat It seems that this implyes a contradiction for they must administrat in appointing the Coronation and ordering all things thereto relating and our King did govern long ere he was Crowned but these words are
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 SpuilÈies 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 deâ—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
did write such a hand and for proving of this must produce the Hand-writs of all these Servants at that time February 7. 1672. Kirk-hill contra Ketlestoun IT was Debated upon this Act whether the Lands of Duncow though here annexed by a publick Law were sufficiently annexed so as to exclude the Earl of Nithisdale who pretended that a year before this Act he had a valid Right under the Great-Seal from the King and so could not be prejudg'd by a posterior annexation which behov'd to be salvo jure quoad him To which it was Reply'd that this annexation being by a publick Law was not of the nature of Ratifications which were salvo jure and such Acts of annexation were in effect the Kings Charter and being granted by a publick Act of Parliament in favours both of King and People they could not be taken away but by another Act of Parliament sibi imputet he who had the prior Right and compeared not at the time of this publick Law and objected it but now after so many years the King had at least prescrived a Right by vertue of this Act this case was not decided but the Lords inclined to think that there was a great difference betwixt original annexations where special Lands were annexed as falling in the Kings Hands by a special Forefalture or other cause which they thought could not be quarrelled by the Session or other Inferiour Judicatory and general Acts where Lands formerly annext are only repeated such as this is in which Lands belonging to privat parties may be by mistake repeated Nota The Lands of Duncow annexed by this Act came to the King upon Forefalture of Robert Lord Boyd anno 1477. BEfore this Act Decreets pronunced by Magistrates within Towns could not be the ground of a Charge of Horning till a Decreet conform had been first obtained before the Lords but by this Act Letters of Horning are summarly appointed to be granted upon such Decreets It is observable that though this Act says That Letters of Horning shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts yet it would seem that Commissars had no such priviledge at the time of granting this Act for that priviledge is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered but that Commissars had that priviledge even at the time of this Act de praxi though de jure it was only granted them by that Act for their further Security VId. Act 155. 12 Par. Ja. 6. THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer is Explained in the Observations upon the 2 Act 4 Sess. Par. 2 Ch. 2. IT is observable that by this Act the Dean of Gild is founded in the power of judging all Cases betwixt Merchant and Merchant and is here declar'd to be the most competent Judge because the most knowing Judge in such cases and declar'd to have the same power that the like Judges have in France and Flanders and in France such Cases are Judg'd by these who are call'd les consuls des marchants The Lords have found that according to this Act the Dean of Gilds Court is a Soveraign Court in suo genere and not subordinat to the Towns Court July 21. 1631. and they use to Advocat Causes from the Admiral to the Dean of Gild's Court upon this Act it being declar'd that he is Judge to all actions betwixt Merchant and Mariner though it be alleadg'd by the Admiral that these general words should be restricted by the nature of the respective Jurisdictions and so the Dean of Gild should be only Judge competent betwixt Merchant and Mariner in cases which fall out at Land but not at Sea THe Act related to here is the 36 Act 3 Parl. Ja. 4. IT is observable from this Act that it is there declar'd in geneneral that Acts of Parliament should only in reason and equity extend ad futura for regulating future cases for though Declaratory Acts may oft-times extend ad praeterita yet Statutory Acts should only extend ad futura THis Act differs not one word from the 170 Act of this same Parliament and has been only repeated here by mistake BEfore this Act such as were at seid with one another us'd ordinarly to fight together upon the Street of Edinburgh and us'd to beat the Magistrates or their Officers when they came to red them and that truly gave rise to this Act though the Narrative here bears only that several persons used to Deforce the Magistrates in their Execution of their own or the Councils Decreets By the Act it is declar'd That whosoever disobeys or opposes the Command of the Provost and Baillies of Edinburgh when they are Executing the Kings Commands or Letters from the Secret Council or Session or the Ordinances of their own Burgh shall be punished as Committers of Deforcement as Seditious and Perturbers of the Common well It has been found that naked assistance at such Tumults without Arms is not punishable by Death though a person be killed in the Tumult December 1666. But Convocation at all such Tumults with Arms is punishable by Death if a person be Murdered as was found September 11. 1678. And the acting any thing either by word or deed was found to infer Death Observ. That the using Fire-weapons within Town is discharged by this Act and long weapons that is to say Halbards Picks c. are only allow'd lest innocent persons passing on the Street might be kill'd but yet if Souldiers shoot in defence of their Prisoners on the Streets they are not punishable and this Act was found not to militat against the Kings granting Commissions to the Magistrates of Edinburgh to raise a Company with Fire-locks within Town for the Act discharges only Fire-locks without the Kings consent and a Commission implys his consent THe Act here related to is the 159 Act 12 Par. Ja. 6. THis Act is Explain'd in the 7 Act 9 Par. Ja. 6. VId. Obs. on the 29 Act Par. 11 Ja. 6. THe Abbacy of Dumsermling was Dispon'd by Ja. 6. in a morning Gift to Queen Ann. This Lawyers call Morganeticum and King Charles the First was Infeft in these Lands as heir to His Mother Observ. That this Confirmation was under the Great Seal and under the Seals and Subscriptions of the States King IAMES the sixth Parl. 14. THis Act seems very ill conceived for it appears that wilful hearers of Mass shall be executed to the death how soon they shall be found guilty or declared Fugitive since no man by our Law dies upon his being Denunced Fugitive except in the case of Treason and wilful hearing of Mass is not Treason even by this Act. Observ. 2. That as this Act is conceiv'd the wilful hearing or concealing is punishable by death either by Conviction or being denunced Fugitive before
4. Armal vid. observations on the 15 Act Par. 1 Ch. 2. where our Parliament acknowledges that our Kings hold their Crowns from God immediatly Vid. Act 31. Par. 5 Ja. 3. I know some pretend that the Kings power is here declar'd to be absolute only in opposition to the Pope and implyes no more but that he did not depend upon the Pope but this is very groundless for he is here declared absolute in relation to his laying on of Customs in which the Pope is no way concern'd and generally the Kings power in relation to Ecclesiastick Rights is said to be supream not absolute and in Civil Rights is said to be absolute and not supream BY this Act English Cloath and all other English Commodities made of Wool are forbidden for the incouragement of our own Manufactures but since the Union this prohibition is taken off and a great Custom is only impos'd by the 13 Act Par. 1. Sess. 3 Ch. 2. but are thereafter upon the erecting of our Manufactures absolutely discharg'd by the 12 Act Par. 3 Ch. 2. THese Acts ordaining all Ships to have special Cocquets containing an Inventar of the Goods which they bear and the names of the Merchants and Owners are yet in observance but the Merchants do not still make Faith upon these points as is appointed by this 257 Act and if the Keepers of the Cocquet absent themselves to the prejudice of the Merchant or take more for the Cocquet than the sum of fourty shilling they are to lose their place and repair the Merchants damnage by the 50 Act Par. 1. Ch. 2. THis Act and the seven following Acts till the 61. are very clear and need no Observation only by lossing of Goods in these Acts is meant breaking of Bulk THis Act is but a Branch of the 245 Act. THis Act appointing three Burghs-Royal to be made one in Kintire one in Lochaber and one in the Lews is not only not in observance but the Erection of a Burgh-Royal in the Lews was unjustly oppos'd by the Burrows in anno 1636. upon pretext that it would communicat their priviledges to Forraigners and Strangers viz. Hollanders who offer'd to come and settle there whereas it would only have dilated and improv'd our Trade and these Forraigners had presently become Scottishmen BY the 119 Act Par. 7 Ja. 6. Inhibitions and Interdictions are to be Registrated in the Sheriff-Clerks Registers but by this Act all Letters of Horning Inhibitions Interdictions and their Executions are to be Registrated in the Registers of the respective Bailliaries Stewartries or Regalities within which the persons dwell against whom these Executions are but if these persons be out of the Countrey they must be Denunc'd at the Mercat Cross of Edinburgh and Peer and Shore of Lieth and not at the Head Burgh of the Stewartry Bailliary or Regality July 4. 1666. Cunninghame contra Cunninghame and that because this Act of Parliament speaks only of persons dwelland within the Kingdom but it may be yet doubted whether the single Escheats of persons out of the Countrey may fall upon Denunciations at the Mercat Crosâ— of Edinburgh and Peer and Shore of Lieth or whether Liferent-Escheats will fall except the Rebel be Denunced at the Head Burgh of the Shire Regality or Stewartry wherein his Lands lyes since if he had been within the Countrey he ought to have been Denunced in the Respective Jurisdictions within which the Lands ly Albeit this Act appoints all Letters to be executed within Regalities and Stewartries yet if these Jurisdictions have no known Head Burgh the Escheat will be sustained upon a Denunciation at the Head Burgh of the Shire January 7. 1677. Scot contra Dalmahoy BY this Act all Hornings Relaxations Inhibitions and Interdictions that were to be Registrated in inferiour Registers are ordain'd to be presented Judicially before a Notar and four Witnesses which formality is thereafter found not to be necessary and is abrogated by the 13 Act Par. 16 Ja. 6. VId. crim pract tit Theft BEcause the Money had risen at this time to a great value so that the same piece of Money which passed formerly for one penny was worth ten the time of this Act therefore it is justly appointed by this Act that all the Unlaws shall be raised so that the same Delict which was Fined only in twelve pennies before the first of March 1542. that is to say before the first Parliament of Queen Mary should be Fineable in ten shilling of the Money current the time of this Act Gel. lib 20. c. 1. tells us that the Romans were in this same manner forc'd to augment the penalties of the twelve Tables because Lucius Veracius took pleasure to beat all that past him because he was only to pay twenty five Asses for every blow according to that Law THis Act is Explain'd crim pract tit Beggars FRom this Act it is observable that he that is charg'd with Lawborrows shall be as lyable in the Contravention as if he had found Caution though he has not found Caution it being unjust that by his contempt he should put himself in a better condition and it is by the same reason that an appearand Heirs Liferent escheat falls to his Superiour in the same way as if he had entred since it is unjust that the Superiour should be prejudg'd by thâ— appearand Heirs lying out Observ. 2. That by this Act when any man finds Caution being charged with Law-borrows he who raises Lawborrows has action against either principal or Cautioner at his option as in other pecunial Obligations which words viz. as in all other pecunial Obligations are added because by our Law he who is a Cautioneâ— ad factum praestandum such as they are who become Cautioners for Executors Messengers or Tutors c. is only lyable after the Principal is discuss'd because they being only Cautioners for the Principals performance It must be first known whether the Principal has performed and thus the beneficium discussionis that was of old competent by the Civil Law to all Cautioners is only competent by our Law to such Cautioners only as become Cautionerâ— ad factum praestandum THis Act appointing that the pains of the general Bond shall be divided betwixt the King and the party is to be understood of the general Bond of Lawborrows which is appointed by the 3 Act Par. 2. and 12 Act Par. 6 Ja. 2. even as the pain of special Lawborrows is to be divided betwixt the King and the party by the 77 Act Par. 6. Ja. 6. for that Act 77 related only to privat Lawborrows at the instance of privat parties and therefore this Act was necessary in the case of general Lawborrows exacted at the Kings instance for the security of all His Subjects from such as he thinks lyable to suspition It was and is ordinary for the King and Council to Charge Heretors who are at feid to give Bonds of assurance
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 Mâ—onarchies or Parliaments generali mandato etiam cum libera ea veniunt quae sunt de consuetudine l. quod sâ—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 Courtâ— 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 SpuilÈie 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
Warrands but this is not in observance but consents by Advocats must be subscribed by Advocats else Decreets given thereupon are null July 20. 1664. And Executions are sufficient by a Sheriff in that part July 10. 1643. and thereupon the Defender will be holden pro confesso The Commissioners did of old appoint Sub-commissioners in every Presbytry who were to be chosen by the Presbytry it self and five to be a quorum for trying the Valuation of every mans Teinds and before them Process were intented at the instance of the Procurator-fiscal or the Heretors and their Reports being return'd to the Commission were allow'd The Injunctions given to them then were That none should be Witnesses before them who were not worth an hundred Pounds of free Gear that such as dwell within the Presbytry should be Cited upon ten days and such as were without it upon twenty that the Depositions should be Subscriv'd by the most part of the Sub-commissioners and the Clerk and when any man would make use of anothers Servant as a Witness that the Master should produce him upon his hazard that where both used Probation not the greatest number but the clearest Deponers should be prefer'd and no Witnesses to be receiv'd but only ten for each Party which was thereafter Expon'd to be ten for each Room July 18. 1634. The Probation is oft-times allow'd to both Parties in this Court and where it is single it is call'd The Prerogative of Probation and is much contended for Wherefore it is thus regulated viz. either the Teinds are drawn ipsa corpora by Titular or Tacks-man and then they have the sole Probation allow'd them to prove what the Teinds were worth they proving that they led seven years of fifteen before the year 1628. And though after so long a time this cannot be proven Yet the proving immemorial Possession is found equivalent or else they have Rental-bolls pay'd them eo casu they have the sole probation likewise they proving twenty years possession of uplifting Rental-bolls condescending upon the quantity and quality Or in the third case the Heretor has Tacks of their own Teinds for payment of Silver-Duty and then there is joynt Probation allow'd both to Heretor and Titular albeit the Heretor have the benefit of a Conjunct Probation Yet he may refer the worth to the Titulars Oath before Witnesses be receiv'd but not after February 21. 1623. but where the Titular has the sole Probation the Heretor cannot eo casu lead any Probation of the Stock except it be for certification id est except where the Heretor summons the Titular who was in possession of Drawing of the Teind to prove the worth thereof with Certification to him if he appear not the Heretor will prove the worth of the Stock quo casu the fourth part is Declar'd to be Teind February 19. 1634. and February 24. 1643. Where the Stock and Teind are valu'd joyntly the Teinds are made the fifth part but where the Titular and Tacks-man has the sole Probation the Heretor has the fifth part down as the Kings Ease and therefore where the Titular takes a Dyet for proving of the Teind by it self the Heretor may take the same Dyet to prove the Stock that in case the Heretor fail he may have the Kings Ease July 8 1642. Where there is joynt probation of Stock and Teind the present Rent should be proven as well as the Rent in all time coming else the same is null January 19. 1631. There are two Dyets granted for probation in this Court and if the first be not made use of the Term may be circumduc'd and the second will not be granted February 2. 1643. and though Diligence be Extracted after the Dyet yet if it be Extracted before the other party crave the Term to be circumduc'd the same will be sustain'd November 22. 1634. By this Act also it is Declar'd That where Valuations are lawfully led against all Parties having interest and allow'd they shall not be call'd in question at the Instance of the Minister not being Titular nor at the instance of His Majesties Advocat for His Annuity except the Collusion be proven to have been to the Diminution of the third of the just Rent presently pay'd and therefore all Reductions upon this head are at the instance of His Majesties Advocat but it may be doubted whether His Majesty has any interest where the party has bought his own Annuity though it may be alleadg'd that even in that case the Decreet is Reduceable together with the Alienation founded thereupon if subsequent to the Decreet because the Exchequer has sold upon a mistake occasioned by the Collusion albeit regulariter with us Venditions are not quarrellable as in the Civil Law though made infra dimidium By this Clause it is likewise Declar'd that this Collusion shall be probable by the parties Oaths and thereupon it has been doubted whether this Clause be Exclusive of other probation and in Meldrums case against Tolquhon before the Commission in January 1672. It was found that a Decreet of Valuation might be Reduced upon this Clause if it were proven by Witnesses that the valuation was led far within the third of what the Teinds were then worth THese Acts are but Temporary BY this Act the Liberties of the Colledge of Justice are restricted to the Senators of the Colledge of Justice and this is the first time that the Senators of the Colledge of Justice were divided from the other Members but thereafter the priviledges of the Senators are Communicated to Advocats Writers and others by the 23 Act Par. 1 Ch. 2. vid. observ on that Act. THis Act anent the priviledges of Royal Burrows is innovated by and therefore shall be Explain'd in the 5 Act 3 Sess. 2 Par. Ch. 2. THis Act gives a very large Commission to the Lords of Secret Council to grant to the Justices of Peace and Constables whatever power the Parliament could have granted them but this being in effect but a Commission may be alleadg'd to expire with the King and Parliament who gave it as all Mandats last no longer than the Mandator and the power being given to the Privy Council indefinitly without adding for the time being it may be urg'd that it could last no longer than that Commission of Council and from this many new doubts may be started which shall be elsewhere considered but however the Council does still grant Instructions by vertue of this Act. THis Act impowering the Lords of Session to exact 12 pennies of the pound of all sums decern'd by them is now obsolet THis Act concerning the priviledges of Baronets is fully Explain'd in my Treatise of Precedency but from this Act it is observable that the Convention of Estates have been in use to Ratifie and approve general Orders granted concerning Honours though it be generally believ'd that the Convention of Estates can only grant voluntary Taxations and nothing else and I
18 Act Par. 1 Ch. 1. But by a Letter in anno 1663. The Chancellour is Discharg'd to preside in Exchequer and this shâ—ws his innate power to dispense with Acts of Parliament which relate only to Government and His own Service Observ. 4. That though by vertue of this Act it may be pretended that the Chancellour may preside in the Justice or Admiral Court if he pleases to be present Yet I conceive he cannot come to any of these Courts without a special Nomination and even this Act says That the Chancellour and such as shall be nominat by His Majesty shall preside This Act likewise sets down the Oath of Allegiance wherein the King is acknowledg'd to be Supream over all Persons and in all Causes which is founded upon the 2 Act Par. 18 Ja. 6. and is the foundation of the Act of Supremacy which is the first Act of the 2 Par. Ch. 2. THe Parliament 1641. had taken from the King the Nomination of the Officers of State Counsellours and Judges and therefore by this Act the power of Nominating these Is declar'd to be a part of the Kings Royal Prerogative which is conform to the Law of all Nations l. unica ff ad l. Jul. de ambitu haec Lex hodie in urbe cessat quia ad curam Principis Magistratuum creatio pertinet non ad populi favorem By this Act also It is Declar'd that our Kings hold their Royal Power over this Kingdom from God which was exprest here to condemn that fundamental Treason of the last age which Taught That the King was subject to His People because He Deriv'd His Power from Them And from that they infer'd their power of Reforming and at last of Deposing the King But lest it might have been obtruded that though by this Act it be Declar'd That the King holds His Power from God alone Yet the holding it from God did not exclude the Interest of the People for all Men hold of God whatever they hold of others Therefore by the 5 Act of this Parliament It is Declar'd that our Kings hold their Crowns from God Almighty alone and lest it might still have been said That though the King holds His Power of God yet he Derives His Power from His People Therefore the Convention of Estates in their Letter to the King 1678. and the Estates of Parliament in the 2 Act 3 Par. Ch. 2. anno 1681. Acknowledge That He Derives His Power from God alone And though Conventions of Estates cannot make Laws yet it may be said that they may Declare and Acknowledge their Obedience as fully as Parliaments may Observ. That these words To hold the Crown from God is ill exprest For by our Law He that Holds from Me Holds not of Me for a me de me are Diametrically opposit in matters of Holdings THe former Rebellious Parliaments especially the Convention of Estates 1643. Did Sit without a special Warrand from His Majesty and therefore by this Act The Power of Calling Holding Proroging and Dissolving of Parliaments is Declar'd to be Inherent only in His Majestie as a part of His Royal Prerogative and therefore the 6 Act of this Parliament annulling in special Terms the said Convention 1643. was unnecessary I conceive that the word Proroguing here is us'd for Adjournment only though the Word in its property signifies only to Adjourn so as to make all the Overtures past in that Session to be null which distinction is unknown to and unnecessary with us The Impungers or Contraveeners of this Act are Declar'd by this Act guilty of Treason BY this the former Acts against Convocations and Leagues or Bonds are Ratifi'd and Discharg'd under the pain of Sedition and the keeping of all Assemblies and Meetings upon pretence of preserving the Kings Majesty or for the publick good are declar'd unlawful notwithstanding of these Glosses except in the ordinary Judicatures The Design of which Act was occasioned by and levelled against such Meetings as the Green Tables in anno 1637. Whereat the Nobility and Gentry did formally meet in great numbers though their Papers did alwise begin We the Noblemen Gentlemen and others occasionally met at Edinburgh THe former Rebellious Parliaments having rais'd Armies Fortifi'd Garisons and Treated with the French King without the Authority of their own King It is therefore declar'd by this Act That the Power of making Peace and War Resides solly in His Majesty and that to Rise or Continue in Arms or to make any Treaties or Leagues with Forraign Princes or amongst themselves shall be Treason Observ. 1. That by this Act the King is Declar'd to have the only power of Raising Armies and making Garrisons the Subjects alwayes being free of the Provision and Maintainance of these Forts and Armies and therefore it was asserted that free Quarter except in the Case of actual Rebellion was unlawful and that even then it behov'd to be warranted by a Parliament or Convention though it seems that Rebellions may be so sudden or Parliaments and Conventions so dangerous that free Quarter may be warranted by the Kings own Authority in cases of necessity and if any part of Scotland should rise in Rebellion it is not imaginable that they will either give Quarter for Pay or deserve to be pay'd and so to refuse the King the Power of free Quartering without Parliament or Convention in that case were to deny Him the Power of raising an Army without which it cannot be maintain'd But free Quarter is expresly Discharg'd by the 3 Act Par. 3 Ch. 2. Observ. 2. Some likewise think by this Clause that though the King may force Towns and adjacent Countreys to carry Baggage and Ammunition of His Souldiers the publick Good so requiring yet He must pay them for it since by this Act the King is to pay for the Provisions as well as Maintainance of the Army and to take away Countrey-mens-horses without pay is as great a Tax upon them as Free-quarter But yet our Kings have still been in use by immemorial Possession to exact such Carriage without payment and so the only Doubt remains Whether this Act Innovats the former Custom And whether the Subjects not seeking payment being merae facultatis prescrives against them jus non petendi Observ. 3. It has been controverted Whether though by this Act the King may Dispose upon all Forts Strengths and Garisons if He can thereby make any privat Mans House a Garison that was not so Originally it being pretended that if this were allow'd no man can be sure of his Dwelling-house which is the chief part of his Property but it cannot be deny'd but that all Houses with Battlements or turres pinnatae as Craig observes are inter regalia and of old could not be Built without the Kings special Licence and as to these the King may Garrison them for since He has the absolute power of making Peace and War it were absurd to deny Him the power of Garisoning convenient
places without which the War cannot be mannag'd It having been controverted whether the Earl of Caithness might Garison one of his Castles without express Warrand from the Council they found he could not though it was alleadg'd that he was a stranger in Caithness and the Countrey was broken For this Act of Parliament having Discharg'd all Garisoning of Houses upon any pretext whatsomever if it should be allow'd upon such pretexts as this not only would the express Letter of the Law be overturn'd but all persons dissaffected might Garison upon this pretext whereas on the other hand there can be no inconveniency since the Council will allow liberty to Garison and if present danger do press the Heretor he may Garison his House for his own Defence till he obtain that Order THis Act annulling the Convention of Estates 1643. was unnecessary it being formerly annull'd by the third Act of this Parliament THis Act Declaring the League and Covenant null and the Discharging the Renewing thereof under the Highest perril seems unclear because of the indeterminatness of the punishment and seems unnecessary because by the fourth Act of this Parliament Subjects making Leagues amongst themselves or with Forraigners are guilty of Treason THis Act does in the first part Command all Jesuits Priestâ—â— and Traffiquing Papists not to say Mass and to remove forth of the Kingdom within a Month under the pain of Death whereupon it was doubted whether within that Month they could be punished with Death else this Month had not only been elusory but might have prov'd a snare since they might have thought that this Month was allow'd for preparing for their Departure and so they might have appear'd and gone about their Business in order thereto By the second part of this Act Children are ordain'd to be taken from Parents Tutors or Curators Popishly affected that they may be bred with well affected Protestants at the sight of His Majesties Privy Council which Act is renew'd by a Proclamation of Council in January 1679. THough the Parliament 1648. be here Ratifi'd yet it is thereafter abrogated by the general Act Rescissory which is the fifteenth Act of this Parliament that not having been resolv'd upon till after this was past The Parliament 1649. is by this Act absolutely Rescinded and that without a general salvo and though by the Act Rescissory there is a general salvo in favours of the Rights and privat Securities past in other Parliaments as is clear by the last words of the 15 Act yet there is none subjoyn'd to this Parliament That Parliament 1649. had taken from Patrons the power of presenting they having conceiv'd it most Antchristian that the Minister who was to care for Souls should be chosen by one man and oftimes by one who would never hear him but they reserv'd to the Patron the Right of Teinds without prejudice to the present Stipend and therefore that Act is hereby Rescinded and Patrons restor'd to the power of Presentation and though it cannot be deny'd but that the people had a share in the Elections as is clear by Saint Cyprians Epistles yet this was when they pay'd them and were themselves very judicious and dis-interested in the infancy of Christianity and before Patrons had by founding Churches the interest they have now and now the people are by an Edict cited to Declare what they know why such a man should not be chosen And in the Reform'd Churches of Germany as Carpz in his jus Consist Relates the people have vocationem from which the Presbyterians borrow'd their Word Call By this Act it is Declar'd That such Parsons and Ministers as are in present possession of Kirks belonging to Laick Patrons shall claim no Right nor Possession but what they had before the making of this Act they being otherwise sufficiently provided THis Act was unnecessary because these Parliaments are taken away in the general Act Rescissory THis Act appoints all Officers of State to take the Oath of Allegeance and to assert under their Hands all the former Royal Prerogatives but now the Council do put the same to all who are suspected and Fine or Banish such as refuse to take it because the Act having left to the Council to put this Oath to any and having nam'd no penalty the penalty is to be understood arbitrary But now all who are in publick Trust take the Test appointed by the 6 Act 3 Par. Ch. 2. THis Act Confirms all Judicial proceedings under the Usurpers except when they were quarrel'd within a year and this Act having appointed that within that time the Sentences of the Usurpers might be quarrell'd without Suspension or Reduction and the Writ by which they were quarrel'd was call'd a Review which was in effect a Reduction and was like both in the Name and Matter to that revisio allow'd by the Civil Law THe Usurpers having by the Example of our Rebellious Parliaments laid on an Excise upon Bear and Ale this Loyal Parliament did grant His Majesty 40000 pounds Sterling to be uplifted yearly out of the Custome and Excise in manner mentioned in the 14 Act But it has been much doubted whether it had not been better to have continued the Excise upon the Bear and Ale than to have laid it upon the Malt for now Brewers endeavour to take as many Pints out of the Boll of Malt as they can which hinders much the consumption of the Malt by making the Drink weak whereas if it had been laid upon the Drink they would have endeavoured to make the Drink strong And for which Excise the Commissioners of the respective Shires are lyable personally and they have their Relief off the Deficients the Goods of which Deficients are hereby to be poinded without carrying them to the Mercat Cross they being apprised at the next Paroch Church Door which is like the priviledge given to Ministers Stipends by the 21 Act of the 3 Sess. of this Parliament Though by this Act the Excise is laid upon the Retailer of Commodities yet by the 12 Act Par. 2 Ch. 2. The Importers are declar'd to be lyable for the same Excise AFter this Parliament had Rescinded some privat Parliaments they considered that all the Parliaments from the year 1640. till the year 1650. were but Branches of one and the same Rebellion and therefore they did annul them all by this Act which is call'd The Act Rescissory But privat parties Rights obtain'd in these Parliaments are salved In this Act it is acknowledg'd by the Parliament That our Kings hold their Crowns immediatly from God Almighty which was done to exclude that Rebellious Republican and Sectarian Principle That our Kings deriv'd their Power from the People for if so then the people might call them to an accompt Depose or Suspend them and our very Stiles which acknowledge our Kings to be by the Grace of God does convince us that they are not Kings by the people and therefore Argentorat
would discourage them both from Rebellion and Robbery if they knew they behov'd to be still lyable in Restitution and though the King did remit vindictam publicam privatam by this Proclamation yet that vindicta privata was not to be interpret damnage and interest but that Revenge and Criminal Action which any privat party might pursue without the King and vindicta is still contra-distinguished from damnum interesse 5. When the Law allows to the Prince a power to remit and discharge the Damnage done to privat parties in contemplation of a publick Peace Lawyers acknowledge that this can only be done if Peace cannot otherwise be procur'd for otherwise publick Peace is none of these just Causes for which Property can be inverted and therefore any such Indemnity after the Peace is Established cannot prejudge privat Subjects as to their Restitution as Gail expresly Declares observ 56. num 6. King CHARLES 2. Parliament 1. Sess. 3. BIshops being restored in the former Session of Parliament the King does in this Act Declare That He will maintain and preserve that Government in the Church and not give any Connivance to the prejudice thereof in the least and so all Indulgences are from this still urg'd to be contrary to the Royal Promise and the publick Faith By this Act Ministers absenting themselves without a lawful excuse from the Diocesian meeting or not concurring in the Church-discipline when required by the Arch-bishop are to be Suspended till the next Diocesian meeting and if they conform not then to be Depos'd and though this be design'd chiefly against the Non-conforming Ministers Yet it has been repin'd at by some of the Episcopal Clergy because the Bishops have by it a power to Suspend by themselves and by the present Discipline of the Church the Bishop may Depose by himself without the concourse of the Clergy even in the Diocesian meetings though he usually takes alongs with him the advice of the Ministry In this Act with-drawing from publick Worship as well as keeping of Conventicles is Declared to be Seditious and therefore each Heretor with-drawing loses the fourth part of his years Rent each Yeoman or Tennent may be fin'd not exceeding a fourth of his free Moveables every Burges is to lose his Freedom and may be fin'd in a fourth part of his Moveables and the Council have by this Act a very full and undetermin'd power to inflict Corporal beside the former punishments But it seems that 〈…〉 those Punishments can be inflicted upon With-drawers except where they have first been admonished by their Minister in presence of two Witnesses But since the Minister of the Paroch is not here specifi'd it was thought that persons might be fin'd after an Admonition given by any Minister appointed by the Privy Council or Presbytry This part of the Act is not expresly abrogated but the Fines are altered by the 7 Act of the 2 Sess. Par. 2 Ch. 2. By which every Protestant With-drawer whereas this Act extends both to Papists and Protestants is to be Fin'd thus viz. an Heritor in the eight part of his valu'd Rent a Tennent in six Pounds Scots a Cottar in fourty shilling Scots every person above the Degree of a Tennent but having no real Estate in twelve Pounds Every considerable Merchant in twelve Pounds Every inferiour Merchant and considerable Trades-man in six pounds and the other Inhabitants within Burgh in fourty shilling and His Majesties Privy Council is by this last Act allow'd to force all who shall with-draw from their Paroch Churches for a year together to give bond that they shall not rise against the King nor His Authority and to banish or secure them in case of refusal Whereas by this first Act there is a general power given to the Council by the Parliament to do every thing that they shall find necessary for procuring obedience to this Act and putting the same to punctual Execution upon which Clause was founded the Councils putting Heretors to give Bond for their Wives Tennents and Servants keeping the Church for since the Parliament might have exacted such a Bond for that effect it was thought the Council might since they have by this Clause a Parliamentary power By the other Act also it is appointed That the same shall continue for three years except His Majesty shall think fit it continue longer and it was thought that this power of Fining might be continued by the Council without any new express Order from the King since His Majesty did not Command the contrary as also upon this Clause was founded the Indulgence 1679. The Parliament having put it in His Majesties power to punish With-drawers or not as he thought fit after three years were elapsed THis Act is Explained in the 5 Act of the former Session THis Act against Protections is Explained fully in the Act 47 Par. 11 Ja. 6. THis Act declares the King to have the only Power of Calling or Dissolving Synods and that His Majesty has not only a Negative Voice in stopping Acts to be made in such Synods but even a Negative in not suffering any thing to be Treated or Debated there except what is contained in his Proclamation or Instructions This meeting of the Church is with us call'd a Convocation though it be here only call'd a Synod Nor can it be deny'd but that the Emperors did of old call the Synods and the formula was Visum est mihi jussi Thus Euzeb Speaking of Constantine sayes Cum per varia loca exorirentur inter Episcopos dissentiones ipse seu communis Episcopus a Deo constitutus Synodos ministrorum Dei indicebat And thus Leo writing to the Emperor Theodosius si pietas vestra suggestioni ac supplicationi dignaâ—ur annuere ut intra Italiam haberi jubeatis Episcopale Concilium cito poterunt omnia scandala quae in perturbationem totius Ecclesia sunt commota resecari THis Act is Explain'd in the 10 Act Par. 4 Queen Mary and and in the Observations upon the 226 Act Par. 14 Ja. 6. BY this Act all Strong-waters are Discharg'd to be imported under the pain of Escheating thereof because it prejudged the Sale of Barley which is the great Native Commodity of this Kingdom But yet by the second Act of the 4 Session of the 2 Par. Ch. 2. All these Acts against strong-waters are Rescinded and an Imposition thereon is imposed but yet it was thought by the Council that notwithstanding of that last Act His Majesty might by His Prâ—rogative in the Ordering and Disposal of Trade with Forraigners asserted by the 27 Act of this Session of Parliament Discharge again the Importation of Brandy and other strong-waters and accordingly a Proclamation was issued out Discharging them in March 1680. and it was urg'd that the Parliament thought that the King might Dispose upon these against an express Act of Parliament for though by this Act the Importation of them be absolutely Discharged Yet the King had
Act that the Militia is come in place of the old Weapon-showings and that there being 20000 Foot and 2000 Horse granted as a Militia by the 26 Act 3 Session of the first Parliament which does specifie the particular proportion of Horse and Foot to be given by every Shire It might have been thought that these proportions could not have been altered but by the Parliament and yet the King and Council having Converted the Foot of some Shires unto Horse seems to be founded upon the last Clause of the former Act whereby His Majesty is intreated to give Directions to His Privy Council for mannaging of that whole affair as His Majesty shall think fit which Acts of Council and the said alteration of the proportions are hereby Ratifi'd as having been Legal and in the last Clause of this Act His Majesties Subjects are Commanded to obey whatever Orders and Directions they shall receive from the Privy Council relating to the Militia and upon these Clauses was founded the overtures of the late Conversion of the said 22000 to 5000 augmenting the number of the days wherein the said 5000 are to serve according to what might have been exacted from the whole 22000 so that the 5000 are to meet the number of 176 dayes because the 22000 were oblig'd to meet fourty dayes though this last model was by some objected to be a standing Force and all Laws are stricti juris and to be fulfill'd in forma specisica but especially Taxations which are a Gratuity founded upon the free Offer of the people as this is to allow Conversions in such Cases would discourage the Subjects from future offers This Act likewise did Ratifie the Acts of Council which appointed the Shires to provide at their own Charge Colours Standarts Drums and Trumpets though that might seem an Imposition but these being necessars and the natural Consequents of the first Grant and the Parliament having granted to the Council the former power as said is these Acts of Council are therefore hereby approven as Legal Both this and the former Act doe ordain the Militia to be furnished with fourty Dayes Provision which was the old provision that was ordinarly to be made by such as came to the Host albeit sometimes twenty dayes provision be only appointed as in the 90 Act 13 Par. Ja. 3. And of late the Council has ordain'd this provision to be made in Money though it was contended that the Parliament having appointed only provision to be made it was in the power of the persons obliged to furnish their own men according to their conveniency But Money being thought fitter for expedite Marches the Council thought they were authorized by the former Clauses to make this Conversion and some have thought that by the same power the Council could ordain the Shires from whom no proportions of Militia was sought to advance free Quarter to such of the Militia as could not furnish themselves or at least might force them to be the first advancers in Cases of necessity This Act concerning the Militia is further clear'd by the first Act of the third Session of this Parliament appointing such as 〈…〉 serve either as Officers or Souldiers in the Militia to accept and to take the Oath of alleadgeance and that those who are set a-part for the Militia be not altered c. NOtwithstanding of all our former excellent Acts for securing singular Successors yet they were still un-secure because they could not know if the Vassal had Resigned his Feu ad remanentiam in his own Superiours hand for in that case there was no Seasin requisite which is the only Register whereby singular Successors know if Lands were formerly Dispon'd and therefore by this Act it is appointed that these Instruments of Resignation ad remanentiam which are equivalent to Seasins be Registrated in the Register of Seasins within sixty dayes which is the time appointed for Registrating of Seasins by the 16 Act Par. 22 Ja. 6. By this Act likewise as in that Act Instruments of Resignation of Lands holding Burgage are excepted but it seems that they must be Registrated within the Town-Court-Books within the same sixty dayes for the Act sayes only That such Instruments being Registrated there shall not fall within the Certification BY this Act it is Declared unlawful to poind Moveables upon Registrat Bonds or Decreets for personal debts till the parties be first Charged and the dayes of the Charge expire The reason of which Act was because Noblemen and persons of quality were oft-times poinded and so affronted and Merchants surprized and thereby Ruined before they knew that a Decreet was recovered against them or their Bond was Registrated But this Act was found not to extend to other Diligences ex paritate rationis this being an Act restrictive of former Laws and Customs From this Act are expresly excepted poindings used against Vassals for their Feu-duties But this Exception was very unnecessary and unproper for such poindings did not at all fall under the prohibition of the Statutory part of the Act which only prohibits the poinding Moveables for personal Debts Exception is likewise made of Decreets obtained by Heretors against their own Tennents in their own Courts only and therefore it has been doubted whether Tennents may be Remov'd and Ejected without a previous Charge and though upon Decreets before the Lords previous Charges are necessary Yet upon Decreets of Removing before inferiour Courts it is the Custom to eject immediatly and though this may seem hard yet it is necessary because the intrant Tennent must Remove immediatly and so must have a place to which he may remove sibi imputet the Tennent who being warned did not provide himself timeously IT is fit to observe from the Narrative of this Act that the Parliament thought the King and Council had power to emit Proclamations Commanding the Parochs to Protect and Defend their Ministers and to be lyable to such Fines as the Council should think fit besides the Ministers Reparation if the Offenders were not brought to condign punishment which shows what great power the King has in the like Cases and the Council are hereby authorized to proceed in taking such courses for the future which general power may go very far especially where these courses are otherwise satisfied by necessity This Act is more fully Explain'd in the observations upon the 27 Act Par. 11 Ja. 6. FRom this Act Discharging Suspensions against Bishops Ministers and other Benefic'd persons without Consignation It is observable from comparing the Narrative and Statutory part of the Act that Vniversities and Colledges are still accounted a part of the Clergy and have still the same priviledges with them SInce we find that the Parliament grants Acts for Naturalization of Strangers as is clear by this and by the 65 Act Par. 8 Q Mary It may be doubted if the King can Naturalize Strangers by a Deed of His for else those Acts were unnecessary and in
115. l. 8. r. EsloinÈie P. 26. l. 9. for Reub r. Repub. P. 30. Act 137. l. 17. dele â—n P. 36. insert betwixt the 10 and 11 Acts K. James the 2 d Par. 6. p. 37. Act 17. l. 8. for revetis r. revives P. 38. l. 16. r. one helr P. 46. l. 35. r. person P. 47. l. 5. for â—s r. as P. 65. after the end of the 16 Act add K. James the 3 d. Par. 3. P. 68. Act 31. l. 2. r. get P. 71. l. 31. r. a 3 d. Comprising ibid. l. 34. r. 4 th ibid. l. 38. r. fiâ—th P. 72. l. 3. for prejudged r. perjured ib. l. 8. r. to more than 5. P. 74. l. 31. r. 3 d Session P. 83. dele the whole 20 line from â—y c. P. 87. l. 2â— for null r. quarrellable P. 113. l. 13. Act 74. for of r. under P. 129. l. 44. for reparation r. repetition P. 132. l. 2. r. 15â—5 P. 134. l. 21. Act 57. r. Judges P. 136. l. 5 Act 70. dele 8 P. 138. l. 5. Act 70. â— probioâ—atur P. â—41 to notwithstanding c. Add in the Margâ—n Act 82. ibid. for 82. r. 83. ibid. for 83. r. 92. P. 147. l. 4. Act 118. r. appoints P. 159. l. 7. Act 65. r. l. 1. § 2. ss de legatis 3. P. 170. l. â— Act 88. for Confirmations r. Inâ—estments P. 176. l. 28. r. § sed naturalia P. 185. l. â— r. Par. 9. P. 186. l. 2. Act 55. r. was first P. 187 l. 20. for Acts r. and. ibid. l. 21. r. for one only was only P. 188. l. 9. Act 66. r. their Rights P. 193. l. 18. Act 80. r. is probable P. 226. l. 12. r. quod Clericus in Patrimonialibus ut Laicus tractandus P. 228. l. 44. r. 189. P. 233. l. 4. for Erections r. Kirk lands P. 258. l. â— r. as P. 263. l. 5. r. Hujusmodi P. 276. l. 7. Act 156. r. Par. 11. Act 42. ibid. l. 11. r. l. 43. ss de via pub P. 278. l. 21. Act 166. r. Par. 3. Ja. 5. P. 298. l. 18. Act 251. r. volentibus P. 299. Acts 255 c. l. 8. r. 55. P. 300. l. 3. Act 263. for not in observance r. not put in practice P. 339. l. 7. Act 2. r. gestabat Ibid l. 8. â— tit 17. P. 358. l. 17. r. correctoriae P. 376. l. 8. r. this Act. Ibid l. 38. for proportâ—â—n r. property P. 377. l. 24. dele and for the property that was Feued out the time of 〈◊〉 Erection Ibid l. 29. r. â—nfavourable P. 379. l. 16. Act 17. for Beneficed person r. Heretor P. 396. Act 29. r 177. P. 399. l. 32 add after prerogative these words in matters of Trade and delet all that follows P. 405. l. 41. r. could not sell. P. 406 l. 19. for first Compriser r. Debitor P. 407. l. 42. r. a firâ—â— Compriser P. 413. Margin r. Act 4. P. 415. l. 4. r. l. 1. in â—in P. 416. l. â—â— dele as that P. 427. l. 30. dele refuse to P. 428. l. 10. Act 5. for satisfied r. â—ufilfied P. 4â—9 l. 6 for transact r. tranâ—mâ—â— Ibid. l. 2. r. Improving P. 437. l. 44. r. the half of the Fines of all who are not Heretors P. 448. l. pâ—n dele not Ibid. for short r. foresaid P. 462. all from before Act 16. should have been placed before Act 15. OBSERVATIONS Upon the STATUTES and ACTS OF K. JAMES I. Parliament I. IT is observable that our Parliaments do ordinarily begin with Acts in favours of the Church as Justi 〈…〉 codex Does and this Statute renews the first Statute Robert 1. cap 1. Our History observes that this Act was made to oblige the Clergy to assist the King against Duke Murdoch and this is the first of these Acts upon which the reduction of Erections was founded in anno 1627. It being subsumed there that though by this Act all Deeds done to the prejudice of the Church are declared null yet these Erections were very prejudicial to it being in effect alienations of Church-benefices and Lands in favours of Laicks TO make War against the King is Treason and even to make War against private Persons is punishable conform to the Common Law that is to say conform to the Civil Law for the Civil Law is still called the Common Law in our Statutes which word we have borrowed from the French who call the Civil Law Le droict commun and by the Common Law and our present custom the raising of Men in War-like manner by Mustering them or forming them in Companies or swearing them to Colours though no design against the King be proved is Treason for to raise War is a part of His Majesties Prerogative and whoever makes War usurps the Regal Power The Civil Law to which this relates is l. 3. ad l. Jul. Maj. l. un C. Vt armorum usus inscio principe interdictus sit Nulli prâ—rsus nobis insciis atque inconsultis quorumlibet armorum movendorum copia tribuatur but the Justices refused to sustain the raising of fewer than an hundred men to be Treason or to sustain that the raising them till after Letters of Fire and Sword did infer more than a Convocation Earl of Seaforth contra Assint Feb. 2. 1674. And Invasions made by one Subject upon another with numbers of Men without these qualifications was found only punishable as a Convocation by an Arbitrary punishment but I consider more the design than the numbers REbellion is properly rising in Arms against the Common-wealth openly and notorly It was called Perduellion by the Common Law and that is the species of Treason that is here punished by forefaulture of Life Lands and Goods vid. R. M. l. 4. c. 1. leg Malcol 2. c. 12. quon attach c. 19. THese who refuse to assist the King to punish notor Rebels are by this Act punished as favourers of them Notor Rebels are only such as are denounced Rebels or against whom there are Commissions of Fire and Sword granted by the Council or these who have risen in open Rebellion though there be yet no legal diligence against them as was decided February 1680. and these who refuse to assist against such are punishable as favourers of such Rebels that is to say as Art and Part of their Crimes as is clear by the 29 Act Par. 3. Jac. 4. where favourers of Rebels are declared punishable as Art and Part and consequently the staying from the Kings Host after open Proclamation commanding all Heretors to go thereto is punishable as Treason and it is clear by the Journal Books that this Crime has been punished by Forefaulture Jan. 9. 1577. and the 21 of April 1599. Likewise I find Andrew Naiff in Baldordy pannalled for Treasonable abiding from the Kings Host at the Raid of Bigger 1568. And yet I find that Absents from the Host are Bail'd March 15. 1576. though Treason is not of its own nature Bailable and that these Pannals who
and that France and Flanders were then entring into Wars STaple Goods are by this Act to remain in Staple and not to go to Mercats for clearing of which Act it is fit to know that Kings and Common-wealthes allow some Goods only to be sold at particular places and these are call'd Staple Goods and the place is call'd the Staple Port Jus stapuli est potestas sistendi in suo foro restringendique merces speciali emporii beneficio certis civitatibus competens Loccen de Jur. Marit lib. 1. c. 10. num 3. Potest enim Rex ob bonum publicum in hoc casu dispensare l. ult C. de leg But this priviledge of Staple is not competent except it be specially granted and Strangers as well as Natives may be forc'd to observe that priviledge for they are here tanquam subditi temporarii Grot. de jur Bell. Part 2. num 11 and 5. But yet this Act discharging the carrying of Staple Goods by Sea from Simon and Jude's Day till Candlemas is in Desuetude for our best Trade is now in Winter but the reason why Winter Trade was then discharg'd was because our Vessels were small and our Sea-men ignorant so that many perished by Winter Voyages ARe Explain'd in the Acts 67 and 68 8 Par. Ja. 3. and by the 36 Act Par. 8. Ja. 2. as is also the last Act of this Parliament VId. Annot. on Act 59 Par. 3 Ja. 1. Supra King JAMES the third Parliament 4. THis Act is conform to Iter Camer cap. 30. And the last Act ordain'd to be put to Execution by this Act is Act 73 Par. 14 Ja. 2. THis Act is in Desuetude for it is now lawful to carry any kind of Cattel out of the Countrey without hazard of Confiscation It is clear from this Act that the Warden might then have granted Licences for Goods prohibited but this the Commissioners of the Borders cannot now do King IAMES the third Parliament 5. VId. Act 76 Par. 14 Ja. 2. But it is to be observ'd from these words in this Act It shall be lawful to the Kings Highness to take the Decision of any Cause that comes before Him at His empleasance Likeas it was wont to be of before That the King Himself may be Judge as he pleases but though the King did call an Action to be judg'd before himself that was depending before the Lords yet His Majesty was thereafter pleased upon a Representation of the Inconveniences that would arise to refer it back to them and some interpret this of the Kings power when he is sitting in his Judicatures though I think the Act will not bear that gloss â—ut certain it is that at first all Masters were Judges in their own Families and that Kings themselves Judg'd in their own Kingdoms as we see in the instance of Solomon and others vid. ch 16. Stat. David 2. Where there is a Decision of the Kings insert amongst his Statutes and the Doctors are of opinion that princeps habens causam cum suo subdito potest ipse judicare si vult Peregr de jure sisci tit 2. num 7. and this seems founded on l. hoc Tiberius 41. ff de haer instit l. proxime ff de his quâ— in test delent And though thereafter they did disburden themselves of that Charge by electing other Judges yet they did not debar themselves from that power and therefore we use to say that all Jurisdiction in Scotland is cumulative and not privative but if the King take the Cognition of any Cause He will try it according to the Forms of that Court where it should have been decided and therefore if He be to Try a Criminal the Pannel will be allow'd to hear the Witnesses Depone against him and the matter of Fact will be judg'd by an Assyze If it be alledg'd the meaning of this Act is only that the King may Try any Action He pleases in His Council that is to say His Session for of old the Session was call'd His Council and yet they are call'd His Council and Session To this it may be answered this Aâ—t appoints that Causes should be first Try'd by the Judge ordinary and if he either refuse to Judge or Judge wrong the Council is to Judge not the Cause but him and this induc'd some to urge that the absence from the Host could not be pursu'd before the Council though the punishment was restricted to an arbitrary punishment for which they brought these Reasons 1 o. That this would confound the nature and limits of all the Judicatures which are the great foundations of our Law and which is contrary to this Act. 2 o. It is the great security of the People that when they are Try'd for Crimes they should be judg'd not only by the learn'd Judges as to Relevancy but by their Peers whom they may judge again as to the Probation 3 o. Advocats are to be heard before the Criminal Court but not before the Council and the Debate is to be there in Writ which obliges a Judge to do justly and the Probation is to be led in presence of the Pannel 4 o. Before the Council the Crime may be refer'd to Oath which is not suitable to the Criminal Law even where the punishment is arbitrary except the Party be by Act of Parliament oblig'd to Depone as in the case of Conventicles 5 o. There are no Exculpations before the Council which are necessary in Crimes 6 o. Several Acts of Parliament appoint that cases may be pursu'd before the Criminal Court or Council when that is intended and which were unnecessary if all Causes might naturally be pursu'd before either It being likewise Debated from this Act that a Judge for giving an unjust Decreet might be pursu'd before the Council in the first instance for oppression the Council did in January 1682. find that a Sheriff or other inferiour Judge could not be â—ursu'd before the Council until his Decreet were first reduc'd before the Judge ordinary and that because the 105 Act Par. 14 Ja. 3. Appoints all Actions to be first pursu'd before the Judge ordinary and the Lords of the Session are Judges Ordinary to Reductions and are there appointed to cognosce the wrongs done by inferiour Judges and if this were Sustain'd the Privy Council should become the Session nor would any man be a Sheriff since he might every day be pursu'd before the Council And whereas it was pretended that the Council were Judges to Oppression and there might be great Oppression committed by inferiour Judges sub sigurâ judicij It was answered That when the Decreet was Reduc'd they might then be punishâ—d as oppressours if there was no colour of Justice for their Decision as the said 105 Act provided Sheriff of Bamff contra Arthur Forbes Vid. Obs. on the 16 Act 6 Par. Ja. 2. and 16 Act 3 Par. Ch. 2. WE see that the granting Reversions by the Wodsetters were but new
Delegat some of their number not only in some particular cases but with a general power to represent them in all things which seems hard for that were to make and create a new Parliament but here their power was Delegated only as to Debatable cases for these Lords were then in place of the Session and I have heard it Debated if the Council could Delegat their Power to any of their number as to all things for that were to make a new Council and since the King impower'd only nine to be a Quorum they might not impower a fewer number nor were it fit for the People to have the Supream Power committed to so few nec potest delegatus delegare Nor can the Justices nor Commissioners for Teinds make such Committees though they are as Supream as the Council vid. Observ. on the last Act 10 Par. Ja. 3. BY this Act it seems that the Council may reduce the Verdicts of Inquests and Sentences of the Justices though the regular way of questioning Assizers who assoilÈe be by a Summons of Error before the Justices and a new Inquest of fourty five persons and de facto the Council do cancel such Verdicts and Sentences before themselves as they did in George Grahames Case and ordinarly they mitigat the Sentences of the Justices Nota The Books of Regiam Majestatem are by this Act called His Majesties Laws and the place here related to is lib. 1. R.M. cap. 14. BEcause the Riches of this Realm consists chiefly in our Fishing therefore Bushes are ordain'd to be made since these are able to ride out in Storms which lesser Vessels cannot do and it is best fishing when the Waters are troubled this is renew'd by the 49 Act Parliament 4 Ja. 4. THough by this Act he who tines his Action is to pay fourty shilling of expences yet the modification is left arbitrary to the respective Judges conform to the Civil Law which appoints condemnationem in expensas litium damna contra temere litigantes Inst. hic depen temerè litigantium § 1. And by the 43 Act Par. 11 Ja. 6. The Defender pays twelve pennies out of every pound to the Lords and the Defenders expences at the Lords modification King IAMES the third Parliament 7. BY the Civil Law he who is to succeed as Heir is still to be Tutor of Law but because this could not well be where the immediat Heir was himself under twenty five yeaâ—s and therefore by this it is appointed that the age of a Tutor of Law or Tutor legitimus shall be the age of twenty five years though the age of majority be twenty one because it requires greater experience to Govern other mens Affairs than our own and if the immediat Heir be not of that age the next Heir who has attain'd to that age is to be Tutor And by the Civil Law no man could be a Tutor even by a Testament till he attain'd to that age Inst. qui testament tutor § 2. By this Act also the nearest Agnat that is to say the nearest of the Fathers side is to be Tutor which was conform to the old Civil Law but Justinian by the Nov. 118. did take away this difference betwixt Agnats and Cognats both as to Succession and Tutories and we in both follow the old Law and not this Novel BY this Act the Laws called leges burgorum bound in with Reg. Maj. are declard a part of our Law and the Chapter particularly related to is cap. 125. Though this Act appoints only the Heirs of Barons Gentlemen and Free-holders to have Heirship-moveables Yet by our Law all Prelats Barons and Burgesses may have Heirs and these Heirs have right to the best of every thing that belong'd to their Predecessor as their heirship-moveable conform to a Roll expressing what is heirship-moveable a copy of which Roll may be had from the Clerk of Edinburgh the reason why moveable-heirship was allowed only to Prelats Barons and Burgesses seems to be either because these being the only three States of Parliament they only ought to be allow'd such considerable Plenishing as heirship-moveables or else because in those dayes none but persons of these qualities could have such moveables under the word Prelats are comprehended all benefic'd persons By Burgesses are understood all Trades-men and others Traffecking or working within Burghs but not honorary Burgesses By Barons are understood all who are Infest in Lands though not erected in a Barony and that maxime semel baro semper baro is to be interpreted presumptive so that he who is Infest in Lands is presum'd to die Infest But if he was devested before his death either by Comprysing Resignation or otherwise he cannot be counted a Baron and have an heir January 27. 1636. Straton contra Chirnside These words of the best of ilk thing must be interpreted de corporibus but not de quantitatibus rebus â—ungibilibus quae pondere numero vel mensurâ constant as Money Cloath c. and so the Stool of a Salt-pan which was out of use was accounted but Iron and fell not under moveable-heirship Had. 1497. Reid contra Thomson Item where there are a dozen of Spoons or moe the Heir shall have a dozen if they be fewer he gets but one Spoon Dict. cap. 125. l. burg which Custom hath extended not only to other things that go by dozens but likewise so as these things that go by pairs and are of one use must belong to the Heir and thus the heirship of Oxen was found to be a yoke July 20. 1610. Black contra Kincaid Dubitatur 1 o. If the appearand heir of a man who has only a Disposition but is not Infest may have moveable heirship Dubitatur 2 o. If the appearand heir of him who has an Assignation to a reversion of Lands may have moveable heirship since Assignations to Reversions are real Rights BY this Act it is declar'd that the Act ordaining personal Obligations to prescrive in fourty years was to be interpreted so as to extend to all Obligations prior to that Act which seems hard for these who had these Obligations were in bona fide not to do diligence and therefore some time should have been allow'd to do Diligence as thirteen years were allow'd in the Act of Prescription 1617. and therefore it would seem that the Act 29 Par. 5 Ja. 3. Ordaining personal Obligations to expire in fourty years rather declares what was Law before and that such Prescriptions have been formerly allow'd hereupon the common Law or some old Act for this Statute likewise says the time of the making of the said Acts so that it appears there have been other Acts besides that one to which this relates REtours to this day express the old and new extent by the old extent is meant that to which the whole Lands of Scotland were valu'd by the first general Valuation And by the new extent is understood the second Valuation which was long
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 oâ— 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 sâ—u munitionem regni extructae tantum praesumuntur ad regem pertinent ad quem regni defensio quod si idem jure nostro observari quis dicat non ut opinor aâ—errabit cur enim qui turrim sive fortalâ—â—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 â—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 â—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 conâ—eâ—â— that they deriv'd this priviledge from the Pope Act 53 Par. 5 Ja. 4. For understanding this Act it is necessâ—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 nâ—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
named by the Pope show his Bulls of Provision to the King and Chapter and though the King should admit to the Temporality a Prelate before showing of his Bulls it will not be prejudicial to the Kings priviledge of presentation that is to say that though the King had admitted a person whom the Pope had rejected as unfit he might yet of new present and the Pope should not have Right jure devoluto FOr understanding this Act it is fit to know that regulariter beneficia vacatura could not be purchast and yet the Pope had reserv'd a power to confer even these ex plenitudiâ—e potestatis cap. proposuit de confer praebend 6. decret But this Act iâ— made to annul all such Provisions to Benefices not yet vacand King IAMES the third Parliament 12. THis Act giving the Warden power to continue his Courts shews that the continuance of Courts is not of its own nature lawful and therefore no Judge may continue his Courts except he have an express Warrand for it since such as are cited may be thus prejudg'd by delays But since the King is the Fountain of Jurisdiction it is thought the King may grant such Warrands tho there be some cases wherein the King has restricted himself by express Statute as in Criminal Courts which are declar'd to be peremptor by the 79 Act 11 Par. Ja. 6. Where it is observable that these Courts are declar'd not to be conâ—inuable by the Kings specâ—â—l will and direction to shew that continuations of Courts depended upon him and generally it is by the will of the Letters that it is known what Actions abide continuation or not and though the Wardens Courts be Justice-Courts yet it is thought they may be continued notwithstanding of that posterior Act. BY this Act the breakers of the King or Wardens safe Conduct are punishable by death which is conform to the Civil Law l. 1. ff ad Leg. Jul. Majest and to the practice of other Nations Christin tit 4. Art 8. What difference there is inter pacem securitatem salvagardiam salvum conductum Vid. afflict lib. 3. tit 16. THough the selling or buying of corrupt Wine after it is found to be such be declar'd punishable by death yet the selling corrupt Wine willingly even before that is punishable and though selling corrupt Wine in the general be punishable yet this must be restricted to the case of knowledge for he who sells or buys without knowing of it to be corrupt or to have been found so is not punishable by death King JAMES the third Parl. 13. OF old every Heretor brought his own men to Weapon-showing and to the Kings Host as is clear by the 81 Act Par. 11 Ja. 3. and all these were commanded by the Sheriffs Lords of Regalities and the Kings other Officers and were call'd together by Letters patent under the Privy Seal directed to these Officers as is clear by this Act But now the Militia is commanded by Colonels and chosen by the King and are call'd together by Proclamation and Letters from the Council subscriv'd only by the Chancellor or President of the Council From this and other old Writs it is clear that the Privy Seal was then the Seal of the Privy Council but now they have a Seal peculiar to themselves which is call'd the Signet of the Privy Council Vid. Annot. on Act 30 Par. 3 Ja. 4. The Kings Rents of old were Govern'd by the Kings Master-houshold and Compt-roller and the Council but now by the Exchequer and the Master-houshold has no interest in them ratione officij that Office belonging Heretably to the Earl of Argile is now extinct by his Foreâ—alture But the Office of Compt-roller is engrossed in the Thesaurers Office By this Act such as detain the Kings Rents are to be distrainÈied that is to say pursu'd in the ordinary way viz. by poynding the ground for their reddendo by Hornings upon their Tacks but though the uplifting the Kings Feu-duties was design'd once to have been by quartering yet this was thereafter found illegal nor could the Excise be so lifted if that way were not warranted by Parliament there is no special punishment exprest here against the Officers who detain the Kings Rents But by the Civil Law these who abstracted publick Money or converted it to their own use Erant rei peculiatus qui olim paenâ quadrupli postea deportatione puniâ—bantur magistratus vero qui durante officio publicas pecunias abstraxerunt capite puniuntur l. un C h. 1. but this Crime only holds in the misapplying of publick Money and not in the withholding the Kings Rents Nota. This and the next Act bear not to be made with consent of the three Estates of Parliament but only that the Lords think expedient by which I think must be mean'd the Lords of the Articles or else this and the next Act being Concessions of the Barons in what related to themselves they were not thought fit to be drawn as Acts of Parliament but only as concessions but I incline rather to think that by Lords here is mean'd the Lords of Articles because the Acts 95 and 96 of this Parliament bear the conclusion of the Lords of the Articles though sometimes by the word Lords are mean'd the three Estates of Parliament as in the 30 Act Par. 7 Ja. 2. BY this Act the Rose-noble was made the standart of all the Gold and it was of twenty two Carrets and ten grain fineness but now our Gold is only of twenty two Carrets fineness that Gold being too soft and consequently subject to be wasted By this Act also the Warden of the CunÈie-house were first instituted for understanding of whose Office it is fit to know that the Master of the CunÈie-house has the care of Coyning and as checks over him are for trying the fineness the Essay-master and for trying the weight are the Warden who trons the Money and the Counter-warden who weighs after him and is his Check and over them all is the General of the Mint BY this Act Respits are discharg'd whereby Justice is delay'd and it 's here said that Respits are more against Justice than Remissions the reason whereof seems to be that Remissions are only granted after some Tryal but Respits are granted more easily and may be sought more frequently and that before the state of the case be examined nor is the Party injur'd assyth'd here as in Remissions For the same reason also Precepts for continuing Justice Courts are discharg'd and the Justices allow'd not to respect them Act 79 Par. 11 Ja. 6. and by the 47 Act of that same Parliament they are discharg'd also for that Act stricks against Respits as well as against Protections THe Act anent Ferries is Explain'd in the observations upon the Act 75 Par. 10 Ja. 3. OBserve 1 o. From this Act that the Silver of Scotland should be 11 penny fine for though this Act says
has spent more blood and money in the French service than all those priviledges were ever worth and it 's known that the last Concessions were granted to the Scots for giving Q. Mary in Marriage to the Dauphine of France whereby if he had had Children Scotland it self had been annexed to France and because the Scots did refuse her to K. Edward the 6 of England they were thereupon invaded by the English and their Nation was almost ruined 3. Though renumeratory Concessions might be quarrell'd as they cannot yet mutual Treaties and Contracts can never be abrogated nor taken away without the consent of both the Parties Contracters 4. The Scots being secured by Decisions of the Supream Courts of France as said is they have thereby the greatest security that the Law of any Nation can give As these reasons may convince any man that it were against the Justice of France to take away the priviledges of the Scottish Nation so the principles of prudence and policy seem very much to oppose the taking them away for 1. What can any other Strangers expect from Concessions Treaties or Contracts when so old and well deserved priviledges are questioned it being very well known to all Nations that Scotland has deserv'd extraordinarly of France and this Alliance has been famous beyond all the other Alliances now known in the World 2. The Scots and Scottish Nation have upon this account refused all other Alliances to their great loss and prejudice in so much that they have oft times suffered their Kingdom to be invaded harrass'd and ruin'd by the English because we preferr'd the French Alliance to theirs and as our Countrey-men have alwayes been ready to spend their lives for the French so within these 50 years we have lost 100000 men in their service who did not amongst them all bring home 20000 Livers to this Kingdome and it 's very well known how ready we are to own the French interest in all Courts and Countreys where we live abroad The Kingdoms of Scotland and England may come to divide by the failure of the Scottish Line in England and so it still seems prudent for the French King not to extinguish his interest in Scotland And whereas it may be pretended that we have forfeited our priviledges by declaring War against the French to this it is answer'd that 1. The denouncing of War by us was only the effect of a necessary obligation upon us as being a part of Great Britain and not a War enter'd into by Scotland upon any National account 2. By Treaties following upon the War all things are restor'd to the former condition they were in except in so far as former Treaties were innovated by express conditions but so it is there is nothing inserted in any of those Treaties to the prejudice of our former Leagues and Priviledges and therefore they must revive and return to the same force and vigour they were in before the War I find this Act Registrated and Recorded in the Books of Sederunt and generally it is observable that most of the publick Papers whereupon any legal Debates or Securities might depend were inserted in the Books of Sederunt which was somewhat like the French Custom of verifying in the Parliament of Paris that is the same with our Session the Kings Edicts and thus the pacification betwixt the Regent and the Hamiltons in anno 1572. and many such Papers are inserted there and of old even publick accidents were likewise insert such as Ecclipses c. Queen MARY Parl. 9. ORdinaâ—ly in Acts of Indemnity which follow Civil War as this is the King or State does only discharge all action that may be competent for all manner of Omissions or Commissions by vertue of any Power or Warrand of those in power for the time as is to be seen in the 10 Act 2 Sess. 1 Par. Ch. 2. But here in this Act all actions that may be competent for any Cause or occasion during the time for which the Troubles lasted are once discharg'd except there be a Warrand given by the persons named in the Act for intenting actions during that time but thereafter by the Act 44 11 Par. Ja. 6. the Lords of Session are made Judges to the Interpretation of that Act of Oblivion and all Decreets recovered during these times are declared irreduceable if they be not pursued within Year and Day and this short Prescription is declar'd to run against Minors which is likewise conform to the said 10 Act in which late Acts the nature oâ— Amnesties and Oblivion shall be more fully declar'd VId. obs ad Act 11 Par. 1 Ja. 1. VId. obs ad Act 49 Par. 13 Ja. 1. UPon this Act the Forgers or Bringers home of false Money use to be forefaulted as was found in the case of John Drummond November 27. 1621. and many other Cases and though it was alleadg'd in defence of Hamilton and Burn October 1677. that only Officers of the Mint-house used to be forefaulted because of their exâ—berant Trust and that it was easie for them to commit such Crimes yet Drummond was no Officer but a Sadler in Pearth the words of this Act that are ordinarly founded upon are that the Revealers of Forgers or home bringers of false Coyn shall have the one half of the Escheat of all their Lands and Goods moveable and immoveable and this punishment is peculiar to Treason and it seems that Forging or Coyning is an incroachment upon the Kings Prerogatives one of which is the Coyning of Money but I see not why bringing home of false Coyn could upon this account be declared Treason It is also observable from the former case 1677. that the meanness of the quantity or value Coyn'd excuses not from the punishment of this Act Vid. Crim. observ Tit. Falshood BY this Act it is appointed that no Parson Vicar or other Kirk-mans Manse or Gleib can be set in Feu or long Tack and therefore an Heretor to whom the Vicars Gleib was Feu'd though a year before this Act was refus'd relief when that Land was design'd to the Minister because the Feu set to him was contrary to this Act and though the Feu was set prior to this Act yet it was null because it was not confirm'd before this Act February 12. 1635. Vid. obs on 48 Act Par. 3 Ja. 6. ALL such as practise Witchcraft or consult with them are by this Act punishable by Death as are also all such as pretend to have any such Craft or Knowledge there-through abusing the people from which it is observable that such as pretend to fore-tell things to come or to tell where things are lost may by this Act be punish'd with Death though really they have no such skill By this Act also all Sheriffs Lords of Regalities and other Judges having power to execute the same are ordain'd to put the same in execution but it does not therefore follow that Stewarts and Bailliffs and Sheriffs are competent
reservation is necessary and the reason is because jus patronatus est servitus libertati Ecclesiae imposita and therefore is not to be allow'd except the same was adjected at first to the Mortification Molin ad Reg. de infirm The first mention of Patronages is by St. Panlin about the Year 431. and Justinian I find mentions the Novel 67. Patronages in Scotland are either Laick or Ecclesiastick all Patronages are accounted Ecclesiastick which either belong to Ecclesiastick persons or which have flowed from the King though by Infeftment since the Reformation in so far as concerns these Benefices wherein the King succeeds in place of the Pope who before the Reformation was accounted universal Patron Laick Patronages are such as have been Disponed before the Reformation by His Majesty and these pass by Infeftment or have been founded by Laick persons since and these must be now obtained by a Signature from His Majesty even by such as either contribute dotem sundum edisicationem The words of the Concession are His Majesty grants advocationem donationem jus patronatus Ecclesiae de c. It is expedient to know the differences betwixt the old Laick Patronages and these which are Dispon'd by the King since the Reformation because by the Act of Annexation July 1587. all Kirk-lands are annexed to the Crown and an exception is always made of Lands which pertains to the Benefices of Laick Patronages which exception is only extended to Laick Patronages which were lawfully established before the Reformation which is also conform to the Canon Law by which the Pope may prejudge an Ecclesiastick Patronage but cannot a Laick Bevg de union beneff § 3. num 9. After one is prefer'd by the Patron he hath only jus ad rem but his Collation and institution which is given him by the Church-man to whom the Presentation is directed gives him jus in re but if the Benefice to which the Patron presents be a Benefice without Cure that is to say having no care of Souls as Provestries Prebendries c. eo casu there needs no Collation or Institution December 11. 1632. L. Lugtoun con Edmiston The Patron must present one within six moneths after he comes to know the vacancy else the Presentation pro eâ vice belongs to the Church jure devoluto in which we agree with the Customes of Normandie as in many other things But Molineus does more rationally conclude ad Reg. de infir resig num 63. That the Bishop does confer jure proprio after elapsing of these six Moneths because all Churches of his Diocess sunt in illius ordinatione so that substracto per lapsum hunc jure patronatus quod huic juri derogabat redit ad suam naturam quod probatur ex c. 22. c. 2. Extr. de suplend negl praelat and yet when the Arch-bishop presents upon the Bishops failÈure he does it only jure devoluto nam inter utrumque est gradus jurisdictionis quae ab inferiori puta Episcopo post elapsum tempus legitimum devolvitur ad superiorem puta Archi-episcopum sed patronus nullum facit jurisdictionis gradum but if the Presbytrie refuse to admit a qualified Minister presented by the Patron then the Patron may retain the whole Fruits of the Benefice in his own hands Act 115 Par. 12 Ja. 6. This retention is likewise allowed by the 1 Act Par. 21 Ja. 6. But whereas by the former Act the Presentation jure devoluto fell to the Presbytries by the last Act it falls to the Bishop but though by these Acts it be lawful to the Patron to retain the vacand Stipends or Fruits of the Benefice in his own hand yet it may be doubted if he may apply them to his own use for these are not only different effects but it seems that this being contrary to the nature of things Sacred and to the principles of the Canon Law he cannot for though by cap. in quibusdam 12 de paen cap. 13 de elect Patrons had the Custody of their own Churches when they vacked yet the Fruits of all vacant Churches were to be reserved for the future intranti futuâ— ro Clerico cap. 2. Extr. ne sede vacant and though at first Kings and then all Patrons pretended to the intrometting with the Fruits of their Churches especially in Britain as Malch Westmonst observes in the Year 1240. yet Alexander 1. by the cap. 14. Extr. de off Jud. ord appointed that even Procurators should be appointed for intrometting with these Fruits during the vacancy quod patroni laici curam tantummodo defensionem suarum Ecclesiarum haberent non etiam potestatem ullam in rebus quas iis donarunt vid. can Noverunt 10. Quest 2. Notwithstanding of which Canons Hostiensis and others except such cases wherein by the foundation or by a singular priviledge or by prescription the contrary is introduced and Molineus asserts that all Laick Patrons may appoint Administrators and gather up the Rents though they cannot fructus Ecclesiarum vacantium in usus â—uos converteresed futuro Clerico reservare vel utiliâ—er in Ecclesias impendere and therefore it seems that the Parliament having only allow'd Laick Patrons to retain these Stipends during the vacancy they can only apply them to a pious use but can in no case appropriat them to themselves for as such an appropriation would be sacrilegious so it would be sufficient for preserving the Patrons Right that he might bestow them upon such pious uses as he pleased but since the Act 52 Par. 1 Ch. 2. and the Act 23 of the third Session of that Parliament appoint all vacand Stipends to be imploy'd for Universities and other pious uses and that there are several exceptions there made and yet none in favours of Laick Patrons I see not why the Rents of Laick Patronages fall not likewise under the Collection of vacand Stipends the Laick Patrons having been re-presented in that Parliament and so consenting to this Act especially seing the said Act 52 declares that the Benefices of vacand Kirks should during the vacancy be imploy'd upon pious uses and the Collectors of vacand Stipends have alwise been in use to Collect these Selden in his Treatise of Tithes asserts that the Right of Investiture was at first reserv'd by Lay Patrons in the Foundations and that the Gleib and Tithes were at every Vacation confer'd by the Patrons to the new Incumbents by some Simbole or Ceremony not differing from our Seasines and it is probable that for some ages after Charles Martels Reign it was so because Tithes were then Transmitted by Laical Infeudations and I have seen several Rights of this nature in the Chartularies of our Abbacies and though afterwards this was condemn'd by many Councils yet Kings reserv'd to themselves the vacant Fruits of Bishopricks as being Founders and Patrons of these Benefices and with us this Clause reserving to the Patrons power to retain these Stipends during the vacancy seems a vestige of their old pretension but I
discharges the conducting and fraughting any strangers to the Isles under the pain of tinsel of Life Lands or Goods is in Desuetude BY this Act Lords of Regality and Magistrats of Burrows are appointed to set prices upon all Stuffs but that part of the Act appointing such Magistrats and Judges as are negligent herein to be punished at Justice Airs or Courts is not now observed and yet that would not defend such as might be pannel'd upon this account for the negligence of Judges should not defend them seeing that would invite them to be negligent THis Act appointing the shooters with Guns to be punished is not in Desuetude but is seldome put in execution and it was thought that Fowlers had prescrived an exemption against it shooting being their Trade and their design is not lyable to these suspitions for which the carrying Guns is discharged by this Act but yet since by a Proclamation 9 June 1682. Fowlers are discharged to use Guns and Setting Dogs it seems this favourable construction ceases and the bearing such prohibited Weapons is still sustained as the aggravation of other Crimes but is not so sustain'd as that it takes off the strength of a defence that would be otherwise relevant and thus Nicolson being Pannel'd for Murther 24 June 1673. alledg'd that whilst he was strugling his Gun went off without any accession of his which defence of his was sustain'd though it was reply'd that carrying of Guns was unlawful in a person of his quality and so versabatur in illicito exillicito nunquam exculpatio THough this Act prohibits the carrying Nolt and Sheep out of the Countrey yet it is now allowed and they pay Custome to his Majesty for though before the Countrey was fully laboured and plenished with these it was fit to keep them in the Countrey yet now the Countrey would be too much burden'd with them if they were not exported BY this Act whosoever renders the King's Castles for Money are made lyable to repetition and it is declared that their Heirs shall be lyable which last is the speciality for which this Act was necessary since the persons who received the Money were thereby lyable to restore and yet before this Act Heirs were not lyable by our Law since the Crime was extinguished by Death and thus in Crimine repetundarum repetitio ad Haeredes extendit l. 2. ff h. t. naâ— turpe lucrum ab Haeredibus extorqueri debet licet crimina morte extinguantur l. 5. ff de Calum THat mixing of Wines is justly by this Act made Criminal and declared a point of Dittay and this is by Carpzov Tit. Fals. and other Lawyers declared to be a species of Falshood and to be punishable as such King James the sixth Parliament 8. BY this Act as by all the Acts of this Parliament King James endeavoured to curb the insolence of such Ministers as being dissatisfied with Episcopacy became very seditious and turbulent for at this time Spotswood's History tells us that there being a Convention of Estates holden by King James the Ministers of Edinburgh and others desired that nothing might pass concerning the Church till they were heard and Mr. Pont protested against the Proclamation of these Acts and by this Act such as decline the Kings Council and refuse to be judged by them in any matter whatsoever of whatever degree or Function they be are declared guilty of Treason This Act was occasioned by their frequent declining of the Council upon pretext that the Council were not Judges competent in prima instantia to what was preached by Ministers and particularly by Mr. Andrew Meldrums Declinator and upon this Act Mr. James Gutherie was Convict of Treason for declining the King and his Council at Stirling in anno 1651. and was execute therefore in anno 1662. This Opinion the Presbyterians did borrow from the Romiâ—h Church who make Ecclesiastick persons only Judges in the first instance to what is spoke or written by Church-men and after they have found them guilty then they deliver them over brachio seculari For understanding these Exemptions that are claim'd by Church-men from the Civil Jurisdiction of Laicks it is fit to know that the King Deut. chap. 17. vers 18. is commanded to write the Law and that David Solomon Joash and others did Reform the Priests and others serving at the Altar and judg'd their misdemeanours in imitation of whom Constantin the Great Theodosiu and the first Christian Emperours did regulat the Clergy and judge Crimes till Arcudius and Honorius did by an express Law ordain quoties de religione agitur Episcopos judicare caeteras vero causas qua ad ordinarios cognitores vel ad usum publici juris pertinent legibus oporlet audiri which were just marches betwixt the Secular and Civil powers But Justinian at the instance of Menna Patriarch of Constantinople did in the thirteenth year of his Reign by his 123. Novel ordain that Church-men should be only conveenable in Civil Cases before their Bishops and as to Criminal Cases that they should be only conveenable before their Bishops in Ecclesiastick Crimes Civil Crimes being cognosced by the Judge as formerly From these beginnings did arise the vast pretensions of Church-men whereby they endeavoured to decline the Civil Judge in all Cases as well Civil as Criminal in the first Instance and to that hight that Panor in c. novit 13. Decret Greg. de Judiciis in c. causam 4. Decret Greg. qui filii sint legit asserts that both the Jurisdictions Spiritual and Temporal belongs to the Pope which was first check'd by Peter Cogniers the Learn'd Advocat of Philip 4. King of France 1329. It is Declar'd by the 114. Act 12 Par. Ja. 6. That this Act shall not prejudge the Spiritual Office-bearers as to the power of Excommunication Collation or other essential Church-Censures THis Act declaring that such as shall impugn the Authority of the three Estates or shall seek or procure the Innovations or Diminution of their Power or Authority to be Treason was occasioned by such as endeavoured at that time to exclude Bishops from the Parliament of which they were and are the third Estate and it is observable both by the Narrative and Statutory part of this Act that the designing to exclude one of the three Estates was the chief design of the Act though such as impugn the power of the Parliament in general so far as relates to Cases Spiritual do likewise commit Treason and as in the former Act the controverting of the power of the Council is declared Treason so in this Act the controverting the power of the Parliament is much more Treasonable and yet it is controverted whether the denying any Branch of the Parliaments power be Treasonable such as is the quarrelling the Power or Constitution of the Articles or whether the Subjects may appeal from the Session to the Parliament Or if the Parliament has power to Reduce their Sentences past
in foro In all which the Parliaments Authority may be alleadg'd not to be controverted but the question seems to reach only to the controverting its fundamental powers and if such Cases as these were Treasonable the people might be discouraged to enquire even into what were otherways lawful and whatever may be said against such Debaits when they are meerly factious and officiously mov'd and prosecuted by such as have no interest yet such Debates in Parliament may be alleadged not Treasonable by the 40 Act 11 Par. Ja. 6. and the votes of Parliament are likewise by this Act declar'd to be free Votes As to all which I shall only say that these and such cases are to be detertermin'd by the respective Circumstances and therefore it is still safer not to approach too near those Rocks on which we may splite THis Act declares the Convocating all Councils Conventions or Assemblies Civil or Ecclesiastick to be punishable by the pains enacted against such as Convocat the Kings Lieges and it was occasioned by the unlawful Church-assemblies holden at that time in opposition to Episcopacy and by the 4 Act Par. 1 Ch. 2. This Act is Ratified and all such Convocations declared punishable though it be pretended by such as hold them that they design nothing but the good of King and Kingdom which Declaration was there made to condemn the false pretences of our late Rebellion IT is observable from this Act that the being once or twice drunk is not a sufficient reason for deprivation of a Minister for the Act requires common Drunkenness and deprives ebriosum sed non ebrium Observ. 2 o. That though this Act say That none residence for the space of four Sabbaths without the allowance of the Ordinary shall be cause of Deprivation Yet though there be no express allowance the None-residence will be no reason of Deprivation if the reason was sufficient and the Ordinary could not be had as the Common Law decides in this case None-residence is a Cause of Deprivation by the Canon Law Decret Greg. de Praeb cap. 17. and Franciscus Forrensis has writ a Learn'd Treatise proving the necessity of Residence to be juris divini The Civil Law had formerly required Residence from Church-men Nov. 6. cap. 2. 123. cap. 9. except where they had liberty from the Emperour and thus with us the King only may dispense with None-residence Observ. 3 o. That plurality of Benefices having Cure is a sufficient Reason of Deprivation which is consonant to cap. adhaec 13. de Praebend But exception is made where one is not able to entertain the Incumbent vid. Alphons Hoieda de compatibilitate beneficiorum The Pope might dispense so now may the King Observ. 4 o. That by this Act Commissioners to be appointed by the King are to have power of depriving Ministers which is abrogated by the first Act 12 Par. Ja. 6. THough this Act declares that Ministers who exerce or officiat as Notars shall be depriv'd yet it does not expresly annul the Writ and therefore a Contract of Marriage Subscrived by a Minister in place of a Notar was the 12 of July 1631. Hassington con Bartilme Sustained though it was found that the Ministers was thereby deprivable This Act discharging Ministers to be Judges was made to exclude Mr. Pont who was then Lord of the Session for after the Reformation Ministers came in place of the Ecclesiastick Lords and though they pretend now that Bishops should not sit in Civil Judicatures yet they desir'd to be there BY this Act the uttering of slanderous and un-true Speeches to the contempt of His Majesty His Councils Proceedings and Progenitors is declar'd punishable as Leasing-making and Leasing-making is punished with tinsel of Life and Goods by the 43 Act Par. 2 Ja. 1. Vid. Act 83 Par. 6 Ja. 5. Vid. etiam tit Cod. si quis imperatori maledixerit For such slanderous Speeches the party is sometimes only Banish'd or Scourg'd as Tweedie was March 13. 1612. But one Fleeming was hang'd for saying that he wish'd the King would shoot to dead May 15. 1615. Spoâ—eswood Relates that this Act was occasioned by Pamphlets and Preachings after Gourie's Execution Observ. 2 o. That all the Subjects are Discharg'd to medle in His Highnesses Affairs or in the Affairs of His Estate that is to say to make inquiry curiously into what His Majesty or His Council does for that is presum'd to be done malo animo And in all ages such curiosity has been punish'd Thus Augustus kill'd Panarus velâ—ti curiosum Sueton. cap. 27. and Plut. l. de curios Observes that the Locrenses fin'd such curious persons Vid. Langl l. 8 Semestr c. 11. who Treats on these Crimes Learnedly BY this Act no Sentence of Forfalture for Treason committed against the King and his Estate can be quarrelled upon Nullity of Process till the Crime for which the Forefalture was led be pardoned Observ. 1. That since this Act speaks only of Crimes committed against the King and His Estate it has been doubted whether this Act can be extended to Treason meerly committed against the Kings Person for by the Kings Estate is ordinarly mean'd His Prerogative and Majesty Observ. 2. That that part of the Act which Discharges Advocats to plead or consult for any person who stands forefalted is abrogated Act 38 and Act 39 Par. 11 Ja. 6. But yet none use to plead for forefalted persons till they get a Licence from the Judge before whom the Tryal is to be There was a Commission granted to consider what nullities could be objected against Swintons Forfalture and it was alleadg'd that the Decreet was null by intrinsick nullities in substantial points and so the Commissioners might proceed since this Act was only to be interpreted of Formalities and alleadg'd nullities which could not be instantly prov'd or did not appear by the Decreet it self yet they would not proceed because the forefalture was not nor could be purg'd and the Crime was notour THis Act declaring all Remissions for Slaughter Fire raising and other odious Crimes to be null is suitable to Stat. Dav. 2. cap. 50. and Act 7. Par. 3. Ja. 5. But this Act is thought Temporary as is likewise Act 63 Par. 6 Ja. 4. and notwithstanding of these Acts His Majesties Remissions for such Crimes has been oft sustain'd vid. crim pract Tit. Remissions THis Act is in Desuetude for His Majesties Guards are paid out of the Excise and I find this Act formerly establish'd by an Act of Council THis Act is fully Explained crim tit Murder BY this Act Decreets of the Lords of Session are discharged to be Suspended without Consignation but this being in Desuetude it is by the Regulations Article 19. appointed that Decreets in foro shall not be Suspended without Consignation or by the whole Lords in time of Session or by three Lords in time of Vacance It may be doubted what this Act means in appointing Letters of
Poynding as well as Horning to pass not only for liquid Sums but where the execution consists in facto since poynding can only be for a liquid Sum. To which it may be answer'd that the meaning of the words are that poynding may be allow'd though the Obligation was not originally for a liquid Sum but ad factum praestandum but it is necessary in that case that the effect should be thereafter liquidat by a Sentence else there could be no commensuration and so no poynding and yet I cannot deny but the Clause is ill exprest THis Act appointing that the Defender shall find Caution to enter the Justice-Court but in sober manner is now in Desuetude there being no such Clause either in the Letters or any such Caution found but though the Justices allows some Friends to enter the Pannel with the Defender yet these must be very few and disarmed THis Act appointing that Salmond Herring and White Fish shall be only sold at the Staple here related is in Desuetude and though the Town of Aberdene has their own Gadges of Salmond conform to this Act yet the Town of Edinburgh pretend a right to be the sole Gadgers of Salmond in all Scotland by vertue of a Gift from King Charles the First which Gift the Town of Aberdene have suspended upon this Act and this Act in so far as it appoints Herring and White Fish to be brought to Leith and Crail is expresly abrogated by the 14 Act Par. 10 Ja. 6. THis Act is explained in the Observations upon the 75 Act 6 Par. Ja. 6. King IAMES the sixth Parliament 9. THis Act was introduced to correct an ill custome which had crept in at the Reformation whereby the Popish Prelate finding that they were to be put out did demit their Benefices in favours of these with whom they entered in a compact and by vertue of which compact they reserved to themselves their own Liferents Likeas according to the Câ—â—on Law Si quis resignaverit beneficium retentis sibi fructibus pro per si ne non valet resignatio nam decet quod ipse qui Altari servit de Altari vivat cap. cum secundum 16 de prab And in reason it must be concluded that the Benefices must be ill served when these who resign reserve their own Liferent for he who serves will have nothing in that case and he who serves not ought to have nothing Therefore by this Act all such compacts are declared null and it is declared that for the future all Rights to be made to Prelacies shall be null except the places be vacant by decease forfalture or simple dimission of him who possest the same formerly nor doth the King now accept of any dimission or resignation in favours of any other party for that is a real invasion upon His Royal Power by which he dispones upon all Offices according to his free will WHen persons are forfeited they or their Children use to abstract the Evidents of their Land and therefore by the first part of this Act it is declared that the King or his Donatar shall have right to all Lands c. peaceably possessed by the forefeited person for the space of 5 years preceeding the forfeiture Observ. 1. That this priviledge holds only in cases of Treason but not where his Majesty comes to have right by any other Title and it may be debated if this should hold where the forfeiture proceeds upon all the Laws whereby any Crime is ordained to be punished as Treason but it is not declared to be Treason such as Theft in Landed Men c. for it would appear that this priviledge was only granted where the Crime is declared to be Treason but yet since these Crimes are punished as Treason this Act should extend even to these for the presumptions inductive of this Act viz that they will abstract their Evidents holds even in this case and it cannot be deny'd but these persons are forfeited as Traitors Observ. 2. That this right introduced in favours of the King seem to be only presumptive so that if any Party should show a Back-band from the forfeited person who was 5 years in possession the person to whom the same was granted or any who could instruct a better right might pretend to exclude the Donatar even as a Church-man who was decennalis triennalis possessor might be excluded upon a better right or by proving that the Church-man possessed only by a tolerance but yet this presumption may be answered to be juris de jure and so to exclude all better rights sibi imputent who having such rights suffered the forfeited person for 5 years to possess without any interruption and if such competitions were allow'd the King 's right might be eluded by an hundred contrivances and though this Act may seem to be useless now since the Registration of Writs which hinders Writs to be abstracted yet that was repelled 23 and last of July 1666. Earl of Southesk against the Marquess of Huntley but by the 4 Act Par. 18. Ja. 6. It is declared that Extracts of Rights either disponed or confirmed by his Majesty shall be valid though the principles cannot be produced and yet if King and Parliament pleased this Act might suffer some correction because his Majesty is much better secur'd now by Registrations than he was at the making of this Act. Observ. 3. That since this Act appoints this quinquennial possession to be proven only by the Retour of an Inquest it was therefore well found that it could not be proven by exception 13 June 1666. Home contra Tennents of Kello and Home Yet though there be not a Retour already made the Lords will superceed extracting that betwixt and such a time the quinquennial possession may be retoured as was found in that case Observ. 4. That the possession condescended on in the Act is where the forfeited persons were 5 years in possession by labouring the same with their own Goods setting the same to Tennents or uplifting the Mails and Duties so that it would seem that these kinds of possessions are requisite in this case and that the Act of Parliament hath required them because they are palpable and therefore civil possession per constitutum by reservation receiving of Annualrent from Principal or Cautioners not relative to the Infeftment of Annualrent but to the Bond or otherwayes seen not sufficient by the words of this Act Observ. 5. That since this Act is founded upon uninterrupted possession of the forfeited person that therefore where there are interruptions this holds not and thus it was found that the raising of an Inhibition was a sufficient interruption 23 July 1666. Earl of Southesk con Morquess of Huntly By the second part of this Act it is appointed that where the forfeited person was in possession of Lands Tacks or Teinds c. the time of the forfeiture albeit he had not been in possession 5 years preceeding
conformis rationi conveniens Voet. de Statut. Sect. 7. cap. 2.116 BY the first part of this Act the Lords of Session are made Judges to the Interpretation of the Act of Oblivion whereas by the Act 67 Par. 9 Q. M. several particular persons were named for that effect There is an unprinted Act saying that because several of the Lords were dead and that because many legal actions arose upon the Indemnity therefore this Act was necessary By the second part of this Act nine Lords of Session are sufficient to be a Quorum and which is now observ'd though by the 57 Act 5 Par. Ja. 5. ten Lords with the Chancellor or President at the first Institution were necessary to make a Quorum THis Act is fully Explain'd in the 78 Act 9 Par. Queen M. except in so far as concerns the Obligation laid by this Act upon the Notars to bring their Prothecals to the Lords of Session and which are to be kept by the Clerk register and his Deputs these Prothecals are the Book wherein Notars set down the Breviats of what Instruments they take protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss in Novel 44. de tabel the reason why they are ordain'd to be brought to the Register is that false Papers may be hereby try'd and lost Papers may be made up for if an Instrument be lost the person in whose favours it was at first made may raise an Action before the Lords craving that it may be made up out of the Notars Prothecal and this being nobilis officii cannot be done before inferiour Courts Vid. 22 Act 22 Par. Ja. 6. Upon the 19 of February 1680. The Lord Register contra Sir William Primerose It was found that the Registers Deput called the Clerk for the Notars was Deprivable for not calling in the Prothecals of Deceassed Notars by the space of five years to which the Lords found him actually oblig'd though it was alleadg'd that by these Acts he was only oblig'd to receive the Prothecals when they were brought in but not to call for them nor was it possible for him to know when Notars dy'd and therefore by this Act Sheriffs c. are ordain'd to acquaint him of the Death of Notars within their Jurisdictions for it was urg'd that the Obligation to bring in the Prothecals being committed to this Clerk and he being only intrusted with it the Act would be elusory if he were not oblig'd to do Diligence since none else could do it and he might easily inform himself at least once a year It was also Debated that by this Act the Clerk to the Notars was oblig'd to understand sufficiently the Office of Notary though it was answer'd that he was no further oblig'd than to draw a Bill for their admission and the Clerks of the Session are not oblig'd to understand the Civil Law which they are oblig'd to Minut MEssengers being grown too numerous therefore by this Act they are restricted to 200. comprehending the seventeen Heraulds Macers and Pursevants in that number which number is here divided amongst the Shires but the number is now increas'd contrary to this Act and to the great loss of the people The Lyon is Constituted by this Act sole Judge to the faults committed by Messengers and to their Cautioners whom they find for their good behaviour at their Entry which power is Ratifi'd by the 125 Act 12 Par. Ja. 6. And the Lyon with his Brethren Heraulds are declar'd Judges to all the Malversations of Messengers in their Offices by the 21 Act 3 Sess. 2 Par. Ch. 2. by which Act though the Malversation of the Messenger be punishable by the Lyon yet he has not power thereby to determine upon the Damnages done to privat parties by Messengers and to determine against the Messenger or his Cautioner for the sums for which the Messenger should have us'd Execution albeit the Lyon has privat Ratifications from the Parliament with this priviledge vide June 27. 1673. Heriot contra Corbet BY this Act all Supersederies are discharg'd for Protections against Execution of the Law were so call'd then This Act is renew'd 13 Act 23 Par. Ja. 6. By which the Granter is declared lyable for the Debt and by the 9 Act 3 Par. Ch. 2. These Acts are Ratifi'd and because the last Act related only to the Session therefore the Privy Council Session Commissioners of Justiciary and Exchequer are declar'd lyable if they grant Protections except to such as are Cited to answer before them and so the Act protects not pursuers for they are not Summon'd and if pursuers were protected any man might raise a summons and thereby grant himself a Protection but yet if the interest of the Common-wealth require that a Crime be prosecuted I think they may after inquiry secure the pursuer during the dependence for though His Majesties Advocat may pursue without an Informer yet an Informer helps much Albeit that Act Discharges the granting Protections and makes the Granters lyable yet the Contemners of the Protection are punish'd and a Writer to the Signet was Suspended in November 1678. for causing apprehend a person notwithstanding of the Lords Protection albeit it was there alleadg'd that though Protections might be granted by the Lords upon depending Processes yet these Protections could not extend to secure them against delivering of Papers which are in their own power and though a Protection granted by the King for Debt does not secure against things that are in the Receivers own power as Exhibition of Papers c. yet if either the King or the Lords grant expresly Protections against all Cases whatsoever then it will secure even against such Exhibitions until the same be expresly re-called though it seems that by that Act Judicatures have only power to grant Protections to such as are Cited before them during the time wherein they may come and return to obey the Judicature in cases wherein their personal presence is necessary for the Administration of Justice not exceeding a month in all It is also clear that even the Defender may be apprehended if he get not a Protection for this Act does not protect but is only a warrand for granting one And there is lately an Act appointing Protections that pass under the Kings Hand to pass the Great Seal per saltum The Council to prevent the granting of Protections whereby the privat interest of the Subjects was so much destroy'd and the execution of Law eluded did by an Act in January 1678. and signed by all of them declare that whoever voted to any such Protections should be lyable to the Debt to elide which they thereafter changing the name of Protections granted Licences to persons to stay in the Countrey free from all Execution and therefore the King by His Letter in July 1679. did Discharge the Council to grant any Licences or Protections except conform
to these His Laws and the 9 Act Par 3 Ch. 2. Ordains all such Licences Protections c. to be sign'd and the Signers to be lyable c. It may be likewise doubted whether the Commission of the Kirk can grant Protections since there is only allowance by this Act granted to the Privy Council Session Exchequer and Justice Court but since the 61 Act 1 Par. Ch. 2 Declares that the Acts Decreets and Ordinances of that Commission shall have the strength of the Acts and Decreets of Parliament they are really a Commission of Parliament And therefore as the Parliament can grant Protections so can they especially since without this they cannot exerce well the Jurisdiction intrusted to them by the Parliament and it seems inherent in all Courts that they should be able to protect all whom they Cite and it is clear by this Act that the Supream Courts of Scotland have power before this Act of Parliament to grant Protections for this Act reserves only their former power but grants them no new power These Protections are thought the same with the induciae moratoriae granted by the Civil Law l. 4. C. de precibus Imperator c. which are not valid by that Law nisi idonea fideijussio super debiti solutione praebeatur But I think these to be rather Suspensions and that Cautioners in Suspensions with us arose from this THis Act anent Teinding of Corns is Explain'd fully in Act 73 Par. 6 Ja. 6. BY this Act he who accuses another for Treason and proves not commits Treason Observ. This is only in case of malicious accusation for the Act says That malicious accusers c. and therefore if the pursuer had probable grounds for his accusation he seems not to incur the hazard of this Act. Observ. 2. That though the Act says Whoever accuses yet the Kings Advocat runs no such hazard for he accuses ratione officii but to prevent this he gets alwayes in Treason a warrand from the King or Council upon Reading the Depositions of the Witnesses taken by way of Precognition or else he has an Informer who finds Caution to insist sub poena talionis Observ. 3. That the pursuer is only lyable if the party calumniat be call'd accus'd and acquit therefore the Accuser repenting and not insisting it seems that he will not be lyable in this pain but for not insisting he will be only lyable in the sum under which he has found Caution and possibly in poenam arbitrariam if malice appear and yet it may be urg'd that he should be lyable to the pain of Treason since not insisting was the pursuers fault and no man ought to have advantage by his own fault nam qui dolo desiit pâ—ssidere pro possessore habetur Dubâ—â—atur If this Act extends to such as pursue only Statutory Treason and sure it does not if they pursue not the same as Treason though upon the event it may prove so It may also be doubted if a Witness who has Deponed against a man in a previous Tryal as guilty of Treason and thereafter Depons he knows nothing of it commits Treason for this wrongs the party as much as an accusation yet if this Deposition was not emitted ultroneously but on a Citation it cannot be call'd an accusation nor punisht as such but it seems punishable by Death by l 1. in prin ff ad L. Cor. de fals LAnded men Convict of Theft Reiff or Reset commit Treason It may be doubted if an appearand Heir be punishable in that case as a Landed man or if a person once a Landed man but denuded be lyable Though Landed men may be thus punished as Traitors yet they are ordinarly pursu'd for single Theft and the Kings Advocat does restrict his Libel to ordinary Theft But because it may be punishable as Treason therefore the Lords Advocate Thefts against Landed men though the Libel bear only single Theft THe murthering any person who is under the trust power or assurance of the slayer commits Treason Assurance is extended to such as we have invited to our house or such as we are under trysting and capitulation with This Act is likewayes extended to Husbands killing Wives Bairns Servants e contra THis Act determining what is Usury is explained in my Criminal Pract. Tit. Usury THis Act declares that such as exact other Customs from the people than what is warranted by express Law or express warrand or immemorial possession shall be punished as oppressors It is thought that possession for 40 years is equivalent to immemorial possession and warrands such exactions by prescriptions SHips transporting Victual are confiscated and the Masters and Clerks imprisonable during pleasure This is now abrogated for it is lawful to transport Corn even without a warrand from the Exchequer except where the same is discharged by special Proclamation because of Dearth THis Act discharging the eating of Flesh in Lentron is in Desuetude tho till of late eating of Flesh was discharged without a previous warrand under the hand of the Clerks of the Privy Council THis Act appointing the slayers of Deer Cunnings to be punished as Thieves is explained crim pract Tit. Theft num 15. BEcause the people were oft times mistaken in executing their Brieves Legally through the difference arising from several Jurisdictions therefore some places are here appointed to prevent mistake and a General is subjoined appointing Brieves to be executed either at the head Burghs of Shires or Stewartries or where Brieves were most usually served From which last words it may be observed that Executions are sufficient though they be not at the real head Burghs if they be at the place where they used to be executed and thus Executions at Dunce were sustained for the Shire of Berwick though Greenlaw was really the head Burgh by the Erection and Executions of a Warning were sustained though not at the right Paroch Church within which the Lands lay since it was executed at the place at which Warnings used to be executed 24 January 1667. The Earl of Argile contra George Campbel so far the presumption of habite and repute prevails even over truth BY this Act the granter of a Woodset is declared not to be prejudged by his negligence though he suffer an Ecclesiastick quietly to intrude and to continue long yea even 100 years in the possession of Laick Patronages to which he has right because during the none-redemption the Woodsetter did not look upon himself as Heretor The reason of this Act has certainly been because Church-men possessing per decennalen triennalem possessâ—onem prescrived a right and the Act seems to imply that because the granter of the Woodset was not valens agere whilst the Woodset stood therefore his negligence should not prejudge him but I conceive that Church-men now prescriving a right by 40 years peaceable possession will exclude all the rights of Laick Heretors as well when the Lands
such as are in Prison there needs no Solemnâ—y and yet for the more security Inditements of Treason are also executed against Prisoners by a Herauld That part of the Act which relates to the Deprivation of Messengers is formerly Explain'd Act 46 Par. 11 Ja. 6. Only it may be observ'd that though the Lyon by this Act is ordain'd to deprive Messengers by advice of the Lords of Session yet he uses to Deprive them by his own Authority and in his own Court and though he publishes the Deprivation at the Mâ—reat Cross yet Executions after that Publication have been sustain'd if the Messenger after that Publication was habite and repute a Messenger November 10. 1676. Stenart contra Hay And though it may be alleadged that this Publication should put the Lieges in mala side as well as the Publication of Interdictions and Inhibitions yet the answer is that there are publick Registers in these cases which may inform these who are to Transact which cannot clear them as to the Deprivation of Messengers THough this Act appoints that the Justice-Clerk or his Deputs shall within six days after Criminal Letters are returned deliver the names of the persons Denunced with a brief Note of the cause of their Denunciation to the Thesaurer as also the Names of such as are Unlawed for absence from Assizes yet this is not now in observance all that is observed now being only that upon a Command from the Thesaury these Lists are given in so that this Act is rather forgot than in Desuetude By the last part of this Act all Commissions of Justiciary for longer space than the particular affair for which it is granted are Discharged and therefore by this Act it would appear that Commissions for Justiciary granted for a year or any definite time and not for a particular Business are null It is likewise appointed by this Clause that such as procure Commissions of Justiciary shall find Caution to Re-produce the Process and to pay that part of the Commodity which by the Commission is destinated for the Kings use which is most rational because this would likewise oblige these who get the Commission to do Justice knowing that the Process may be revis'd when it is lying in publica custodia that is to say in the Books of Adjournal for such Processes ought to be brought back and are usually Registrated there but this is oftimes neglected and it was Debated in the Case Turnbul against the Lord Cranstoun July 1678. That the Tenor of a Decreet of Forfalture pronunced upon a Commission granted to the Earl of Dumbar could not be proven except the Process were produced whereupon it proceeded conform to this Act since all that the Witnesses could prove was that they had seen such a Decreet which is not sufficient for else an unjust Decreet of Forefalture might be pronunced and lost to the end the Tenor thereof might be proven without any possibility of quarrelling the VVarrands whereupon it proceeded It may be doubted what is meant by that part of the Commodity which belongs to the King and I conceive that when such Commissions of Justiciary are granted the whole Escheat belongs to the King and the Commissioners have only Right to their necessary Expence tanquam mandatarii except a particular Quota be condescended on in their Commission though some are of opinion that these Commissioners have right to the same Quota's that Sheriffs have since they are Sheriffs in that part BY this Act the Comptrollers consent is requisit in all Infeftments of Feu-ferm or Confirmations of the Kings proper Lands and though there be no Comptroller now yet the consent of the Commissioners of the Thesaury or Thesaurer if he were supplies the same Hence it is that this Act appoints all Feu-ferms and Confirmations to pass the Comptrollers Register which is likewise Ratifi'd by the 171 Act 13 Par. Ja. 6. It is sit to know that the Thesaurer and Comptroller had different Registers but now there is but one Clerk to all the Exchequer who is called the Thesaurers Clerk and he keeps but one Register each Volumn whereof is divided in two parts the one whereof contains only Gifts that pass the Exchequer and the other all other Signatures of Confirmation c. BEasts found in His Majesties Forrests or Parks may be brevi manu intrometted with Vid. Act 12 Par. 4 Ja. 5. But since Forrests are not now Fenc'd it seems unreasonable that a Beast straying should be Escheated though where Beasts are designedly driven into a Forrest it deserves punishment and this Act seems only to speak of Fenced Forrests for it says Parks or Forrests and it requires advertisement before Beasts even found in these can be Escheat Vid. Argent Tit. des Assize where this matter is fully Treated ALL English Goods may be searched for and if they be not Sealed by the Customers may be Confiscated which Act being put in practice at Edinburgh in anno 1664. occasioned a great Tumult and the Act was alleadged to be in Desuetude The word Selling in this Act is wrong Printed in the last Impression for it should be Sealing Nota This Act Ratifies only an Act of Privy Council which ordained formerly Confiscation and this shews how great the Kings power was of old in the matter of Trade Vide Act 24 Par. 16 Ja. 6. which renews again this Act. VId. last Act 1 Par. Ch. 1. THis Act is Temporary but from it it is observable that as the King may as Superiour call for production of any Vassals Rights and Infeftments in a Reduction or Improbation and even by way of Exhibition which is conform to the Feudal Law and to c. 24. Quon Attach so the King may by Act of Parliament sometime call for production of all the Rights of His Vassals of Kirk-lands together as in this Act or of all the Rights of any particular place as of the Isles Act 262 P. 15 I. 6. And I think the King might have call'd for them without this Act by Proclamation and albeit it be said c. 25. Quon Attach That the Vassal shall only be oblig'd to shew his Evidents once in his Life to the King this is not now observ'd and the true meaning of it is only design'd against too frequent troubling of the Liedges which as no Calumniousness is never to be presumed in the King or His Officers THis Act appoints Lords of the Session not to be admitted till they be twenty five years of age which agrees with the Law of France Langlei Semâ—str c. 10. and with that of Venice Contar. L. 3. c. 3. Whereas of old the Romans admitted no Senators till thirty five which Augustus retrenched till thirty Sweton c. 32. Vid. 93. Act Par. 6 Ja. 6. But that part of the Act appointing that none shall be admitted Lords but such as have a thousand Merks of Rent or twenty Chalders of Victual is not now strictly observ'd though this was an Act
to one another and that upon six hours advertisement under the pain of Rebellion vid. the Council Registers July 26 1582. and which is a great instance of the Kings power allow'd him by Law against those whom he has reason to suspect THe Rubrick of this Act is wrong for Sheriff Clerk bring not their Books to the Exchequer but to the Lord Register BY this Act it is appointed that all such as are Commissioners for Parliament shall be authoriz'd by the Subscription of a great number of the Barons then present and the Subscription of the Clerk of the Convention else to be null which Act was found not to be in Desuetude by a Decision in the Convention July 1678. where it was found likwise that this Act extended to Commissions for Conventions as well as to Parliaments for though this Act speaks only of Parliaments yet Parliaments and Conventions being called the same way the Commissions should have the same Solemnities and the reason why the Sheriff-Clerks Subscription is requisit is because he is the publick Servant of the Shire and so it is presumable that he will mark exactly all that was done and will not suffer counterfited Subscriptions to be put to Commissions being to be lyable himself whereas otherwise Commissions may be obtruded upon the Convention with false Subscriptions as was done in that same Meeting and which dangerous falshood cannot otherwise be well fastened upon any other since the Commissioner may justly alleadge that the Commission was so granted to him and one may be chosen a Commissioner who is absent in which case he cannot know who sign'd BUrrows having great Freedoms and Priviledges from the King are therefore oblig'd to have sufficient Prisons for receiving such as are attached for Crimes and Debts which Act was found to oblige Baillies of Burghs of Regality as well as Burghs Royal July 7. 1668. and Stewarts of Stewartries June 18. 1670. and these words of this Act By the Sheriffs to Stewarts and Baillies of Regality are wrong Printed for the word to should be or But this Act was not found to oblige Baillies of a Burgh of Barony March 13. 1623. Nor Bishops Baillies March 21. 1627. But the Baillies of the Head Burghs of Stewartries were thought to be oblig'd by this Act of Parliament to receive Prisoners albeit the Act of Parliament appoints them to be presented only to Stewarts and Baillies of Regality but speaks not of Baillies of the Head Burgh of the Stewartry June 18. 1670. Cheap contra the Baillies of Falkland Where it vvas likevvise found that the Baillies keeping a Rebel eight or ten dayes in a privat House and thereafter Imprisoning him vvere not lyable super hoc medio except he escaped by their negligence or the insufficiency of the Prison and it seems by the Act of Parliament that these Burghs are only oblig'd to have Prisons vvhich have Provosts and Baillies for the Act appoints the Prison to be upholden by the Provost Baillies c. though the Rubrick sayes that Prisons should be Bigged within all Burghs and it may be doubted from the vvords of the Act vvhether Burghs vvhich have no Common-good should be lyable especially seing Magistrats are oblig'd to keep Prisons for the Kings use because they have a Common-good from Him If the Magistrats do not receive Rebels or have not sufficient Prisons they are lyable for the Debt and that vvithout calling the principal Debitor since the Magistrats are lyable ex suo delicto and these Jails are found not to be sufficient vvhich vvant Cat-bands and outward Chains because the Prisoner cannot force those from vvithin but the Prison being sufficient and sufficiently Guarded vis major is a sufficient Defence and though this Act says only That they shall secure persons presented to them yet they are found to be oblig'd to search any House vvhere the Rebel is said to be July 2. 1669. Farquhar contra Magistrates of Elgin and though this Act bears That they shall detain all such Prisoners upon their own Expence yet this is only extended to Prisoners taken ob vindictam publicam but it is indulg'd to the Tolbooth of Edinburgh That they shall not be oblig'd to receive any who are offered to Prison by privat parties till the presenters find Caution to aliment them This Act appoints those Prisons to be made for sure Imprisoning Keeping and detaining of such Prisoners as are presented and therefore the Magistrats cannot let them out either to Church or to go about any of their Affairs hovv important soever though vvith a Keeper since squalor carceris is thus eluded and therefore in such cases the Magistrats must be authorized by a Warrand from the Secret Council or Lords of the Session and that by an Act of Sederunt in anno 1671. and if the Rebel be suffered to escape or go abroad the Magistrats vvill not only be lyable but they vvill get no relief from the Cautioner though they take Assignation to the Debt since tenentur ex proprio delicto and the Cautioner is prejudg'd of his relief by that their Delict January 24. 1668. THis Act is formerly Explain'd in the 1 Act Par. 9 Ja. 6. THis Act is formerly Explain'd in the 153 Act Par. 12 Ja. 6. SInce by this Act all Burgesses are to be Stented according to their Rents and holding within Burgh it may be doubted if a Burges have no actual Trade but only Money owing him by persons without the Burgh if he may be Stented according to that Estate since it is no Rent nor holding in Burgh but the answer is that mobilia semper sequuntur personam and therefore he may be Stented according to that Money it may be doubted if Gentlemen who never had any Trade but dwell in the Town very long may be Stented though they be honorary Burgesses only Item If they can Stent for Ministers Stipends Strangers within Burgh who are not at all Burgesses and this Act seems to imply that Inhabitants as well as Burgesses may be Stented according to their Estates within Burgh and that all who have advantage by the Ministry should pay Ministers THere are two ways of Levying Subsidies in Scotland the one is by Taxation which was the old way and which Taxation was uplifted according to the Retour The other is by way of Cess in which the Subsidie is uplifted according to the late Valuations wherein every mans Land Rent was given up as presently possess'd The Subsidie granted by this Act is by way of Taxation and the old way of uplifting Subsidies by Taxations may be fully herein seen and which is very fit to be Read upon that accompt and in which it is evident that the Clergy pay'd the one half including the Erections but in anno 1666. a proposal being made that the Subsidie then offered should be uplifted by way of Cess and not by way of Taxation These ensuing Reasons were represented against that proposal and which I
His Majesties Prerogative and Priviledge of the Crown BY this Act Bishops are not so much restored to their Offices as it is Declar'd that it was never mean'd by His Majesty that the Estate of Bishops was to be suppressed Their sitting in Parliament being by this Act Declar'd to be one of the Fundamentals of the Nation But by this Act their Benefices are only Restored to them which were much impaired And though by the 114 Act Par. 12 Ja. 6. General and Synodal Assemblies and Presbytries are thereby Ratifi'd yet Episcopacy is not thereby abrogated expresly By this Act the King is Declar'd to be Soveraign Monarch absolute Prince Judge and Governour over all Persons Estates and Causes both Spiritual and Temporal within this Realm And by the 1 Act Par. 2 Ch. 2. It is asserted and Declared That His Majesty hath the Supream Authority and Supremacy over all Persons and in all Causes Ecclesiastical within this His Kingdom and that by vertue thereof the Ordering and Disposal of the External Government and Policy of the Church doth properly belong to His Majesty and His Successors as an inherent Right to the Crown and that His Majesty and His Successors may Settle Enact and Emit such Constitutions Acts and Orders concerning the Administration of the external Government of the Church and the persons employed in the same and concerning all Ecclesiastical Meetings therein as they in their Royal Wisdom shall think fit There having been great Debates about the wording this part of the Act some Members of Parliament pressing to have it without any Restriction and others though very Loyal pressing it might be Restricted to the Calling and Dissolving of Ecclesiastick Meetings and External Government only Lightoun Bishop of Dumblane was at last trusted by the Commissioner who has drawn it very Cautiously for the Church though our blinded Fanaticks think otherwise For First It is Founded upon the former Old Statute and after repeating that Statute it is said It is therefore Enacted to shew that it was not Design'd that this Act should exceed the former and old Supremacy 2. The Prerogative is restricted to Government and not only so but to the External Government and even as to this External Government the King has only the Ordering and Dâ—sposal of it and the Administration of it by the next Clause so that the Doctrine of the Church nor the internal part of the Government falls not at all under the Kings power by vertue of his Supremacy that is to say He can neither Admit nor Depose nor Administrat Sacraments though He may Discharge a Bishop or Minister to Preach and this is that which was allow'd by the Primitive Church to their Emperours Thus Constantine that Great and first Christian Emperour is approv'd by all the Fathers for setling thus the Marches betwixt the Ecclesiastick and Civil Jurisdiction Euseb. lib. 4. de vit Constant. vos quidem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eorum quae intus in ecclesia sunt agenda ego vero 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eorum quae extra sunt episcopus sum a Deo constitutus and that the Administration of the Sacraments and these other things quae intus sunt belong not to the Civil Magistrat is acknowledg'd by the 69 Act Par. 6 Ja. 6. Wherein it is acknowledg'd that the Jurisdiction of the Kirk consists in the Preaching of the Word the Correction of Manners and the Administration of the Sacraments In which Act three things are observable 1. That the Act tells they derive their Jurisdiction from the King which is as to the external part for no man can think they Derive their power of Administrating the Sacraments from the King though from Him they Derive the Faculty of having the External Face of a Church without which that could not be enjoy'd 2. Though the Church has the Correction of Manners yet the King may regulat these as we see in the very next Act for keeping the Sabbath and which seems to have been made the next Act to this for to clear the meaning of that part of this Act. 3. Though the Preaching of the Word is Declar'd to be a part of the Ecclesiastick Jurisdiction yet that relates only to the Matters of Faith to be Preach'd as to which Ministers are to be judg'd by Church Judicatures but if they Preach what encroaches on the Secular power they are to be judg'd by the King and those Deriving Power from Him conform to the 129 Act Par. 8 Ja. 6. This Supremacy in cases Ecclesiastick seems to have been ever the proper Right of Secular Princes and Haedeus the Great Canonist repet in cap. novit de jud num 145. Though a Roman Catholick does acknowledge That nemini dubium est quin in primitiva Ecclesia de rebus personis ecclesiasticis jus dixerint which will very clearly appear to any who will Read the first thirteen Titles of the first Book of Justinians Codex in which he ordains amongst other things vim legum obtinere Ecclesiasticos canones a quatuor synodis Nicena Constantinopolitana prima Ephesina prima Chalcedonensi expositos confirmatos and I find that the Supremacy is in England thus Established under the Reign of Henry the eighth That the King and His Heirs and Successors should be taken and accepted as the only Supream Head on Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of that Realm as well the Title and Stile thereof as all Honours Dignities Preheminencies Jurisdictions c. to the said Dignity of Supream Head belonging In this Act the Bishops are not restored to Benefices that are not of Cure but to these which have a particular Cure and therefore His Majesty Confirms all Dispositions or other Rights made of Abbacies Priories or other Benefices not being Bishopricks made or Confiâ—med at or before July 1587. they paying the Greslum appointed by that Act to the Bishop within Year and Day There is likewise reserved by this Act all Feus lawfully set and Confirmed before the Act of Annexation which was in the year foresaid and all Patronages of Kirks pertaining formerly to them Disponed by the lawful Titular and the Kings Majesty and Ratifi'd in Parliament which extends as well to the Patronages of Mensal Kirks as of Kirks which are of the Bishops presentation March 25. 1631. and albeit regulariter confirmatio nihil novi juris tribuit yet hoc casu supplet omnes alios desectus for by the former Practique it is found that alienations of Patronages even of Mensal Kirks are valide if made as said is by the lawful Titular though not made by him with the consent of the most part of the Chapter for this Act requires that it be made by the lawful Titular but there is no mention therein of the consent of the Chapter By the Act of Annexation in anno 1587. the whole Superiorities of all Kirk-lands being annexed to the Crown it was therefore necessary that by
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
Prelats that is to say their Council of which the Dean or Decanus was the Head under the Bishop By the Civil Law decanus erat ille qui defunctorum lectos seu feretrum gestabant vid. Tit. de Decanis lib. 12. Cod. tit 17. But by the Canon Law Decanus comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the Dean proceeded over ten Canons or Prebends and their decani especially in the Cathedral Churches succeeded in place of the Archipresbyter and therefore these two are taken in the same sense cap. ad haec 7. de off Archid vide Bengeum de beneficiis pag. 29. And with us Deans are Created by the King He being only Patron of that Benefice The Chapter is call'd Capitulum by the Canon Law because it is the little or inferiour Head of the Diocy and is defined to be Clericorum congregatio sub uno Decano in Ecclesia Cathedrali A Bishop in our Law nor no other Dignifi'd Person who hath a Convent can alienat without the consent of their Convent or the greatest part of them beside himself who is the Disponer in which number Minors nor absents are not counted March 14. 1622. If one of the Chapter have two Benefices he will have two Votes and albeit the Law Ordains them to be capitulariter congregati yet now sufficiunt eorum suffragia licet emendicata vel sevaratim impetrata which is not only by meer custom as Craig observes but by Law likewise Act 3 Par. 18. Ja. 6. and thus an Instrument of Resignation of a Benefice was found sufficient though some of the Convent subscriv'd not before the Date of the Instrument November 16. 1624. Providing alwise that none of their subscriptions be obtained after the Death of the Granter for then they cannot be said to consent seing they are not all alive together from which it follows likewise that the alienation is not valid if any of the Convent or Subscrivers be Dead before the rest subscrive where many subscrive separatly the consent of the last is drawn back to the consent of the first Craig pag. 91. and albeit Craig be clear that the consent of the Chapter is requisite tam in renovatione quam in alienatione feudi yet by this Act it is for the Vassals case ordain'd that the Bishops or Chapters consent is not necessary to the receiving of Vassals upon Composition or otherwise but that the direct Superiour may receive them by himself Nota By that part of the Act it seems that though regulariter Superiours are not bound to receive singular Successours yet Kirk-men being Superiours are If there be no Chapter or Convent the appending of the Seal of the Convent with the Kings Confirmation is sufficient Craig Ibid. The Arch-bishop of Saint-andrews had of old the Conventual Brethren of the Priory of Saint-andrews to be his Chapter but by the 8 Act Par. 19 Ja. 6. power is given him that Priory being supprest to choose seven to be his Convent and ordains that the appending of the common Seal of the Convent shall be sufficient to declare their consent without their Subscription which Act is innovat by this 2 Act Wherein a Convent is particularly set down to him but nothing spoke of the Seal and therefore the appending of the Seal is yet sufficient for this Chapter comes only in place of the seven prescrived by the first Act and the Subscriptions of these seven were not necessary ergo neither is the subscription of this Chapter As the consent of the Chapter or most part thereof is requisite to an alienation made by the Titular as the Bishop Abbot c. so reciprocally the consent of the Titular and most part of the Chapter is requisite to the perfiting of all Rights made by any Member of the said Chapter of his particular Benefices or of any Benefice belonging to them in communi which rule holds in all Conventual Benefices except that of the Arch-bishop of Saint-andrews for it has been decided that by this Act any Member of that Chapter therein Entered may set Tacks c. without consent of the Arch-bishop of Saint-andrews Novemb. 19. 1624. where these Conventual Benefices have Patrons the consent of the Patron is likewise required Craig Nota That the Bishop of Edinburgh is by the Erection of that See in anno 1633. made Chancellour and Vicar to the Arch-bishop of Saint-andrews and so is the first Ordinary or single Bishop which priviledges belong'd to the See of Dunkeld and so the Bishop of Caithness has not now any suffrage in that Election because they must be but eight in this Act. AFter the Arch-bishops and Bishops were restor'd the thirds of Benefices out of which Ministers were provided formerly came to be an unfit and unproportional Stock for providing the whole Ministry of the Kingdom and therefore by this Act there is a Commission granted for planting and providing of Churches and this is the first of the many Commissions which were granted by Parliaments afterwards to this effect and their Decreets are to this day call'd Decreets of Plaâ— in our practice Observ. 1. The lowest Stipend allow'd by the Parliament here is five Chalders of Victual or five hundred merks but by the 19 Act Par. 1 Ch. 1. The lowest Stipend is appointed to be eight hundred merks or eight Chalders of Victual and the Decreet whereby this is appointed is call'd The Decreet of Modification Whereas if the Stipend be divided and proportioned as well as modifi'd the Decreet is call'd a Decreet of Locality and this proportion is so far observ'd that the Victual so modifi'd was found by the Lords to be payable according to the measure of the Shire where the Paroch was and not according to the measure of Linlithgow where the modifi'd Stipend would not have come the length of the quantity allow'd by the Act of Parliament according to the measure of Linlithgow June 27. 1667. Minister of Dalrymple contra the Earl of Cassils Observ. 2. By this Act power is granted by the Parliament to the Commissioners to unite or dis-unite Kirks which Union was likewise allow'd by the Canon Law and is defin'd to be duorum vel plurium benefiâ—iorum cum causae cognitione a superiore ordinarâ—o in perpetuum Canonice sacta connexio cap. exposuisti de Praeb So that of old the Ordinary only could unite Benefices but now the King as having come in place of the Pope grants this Commission to unite with the consent of Parliament but the Bishop who is Ordinary and the Patrons if any be interested must be likewise call'd and the 5 Act Par. 23 Ja. 6. Ordains that all persons interested in the Union be consenting By which I understand the Ordinary the Patron the Incumbent and the Parochioners and this Act appoints that if there be moe Patrons they shall present alternis vicibus and because it may be doubted who should be the first Presenter in that case it is fit to know that the lesser
November 1682. Sir William Ker contra Grubet and others Interruption being thus made by the King does last for fourty years so that no Prescription can run against the King till fourty years after the date of this Act and that though the Executions and publication required by this Act of Parliament cannot be found for every particular Shire It may be likewise doubted whether Prescription should run against the King whilst he was out of the Countrey For which vid. observ on the Act of Prescription 1617. BY this Act the Parliament Rescinds all Rights of Regality made by King Charles King James or Queen Mary belonging to Abbots Priors or any Benefic'd person reserving alwise to the Heretable Baillies and Stewarts of the saids Regalities and Stewartries their Rights granted to them prior to the saids Erections for ordinarly even when these Regalities were in Benefic'd persons own hands they made Heretable Baillies but I confess I understand not what is mean'd by the Stewart of a Regality for Stewartries and Regalities are distinct and inconsistent Jurisdictions a Stewart being a Judge in the Kings Property only having the same power that a Lord of Regality has of the Lands Erected in the Regality holding of himself and the Lands holding of him But this Act has in this follow'd the words of the Act of Annexation 1587. By the Act of Annexation 1587. Act 29. All Regalities belonging to Arch-bishops and Bishops were thereby Annex'd because their whole Lands and Temporalities were then Annex'd but being restor'd in anno 1606. their Regalities are hereby reserv'd to them UPon the Submission and Surrender made by the Lords of Erection and other Titulars it is condescended to by this Act That His Majesty shall remain not only Superiour to the Lords of Erection but even to all the Vassals who held formerly of any Abbacy Priory or other Benefice Erected and therefore by vertue of this Act they may hold of the King if they please but according to an express condition in the surrender it self there is by this Act reserv'd to the Lords and Titulars of Erection who subscrived this Surrender the Feu-mails and Feu-ferms due by their Vassals ay and till the King pay to the saids Lords and Titulars of Erection a thousand merks for ilk Chalder or an hundreth merks of Feu-duty payable to them for there is nothing allow'd to them for the Service of Tennents Though the Lords of Erection did not expresly reserve to themselves the Casualities that might fall to them by their Vassals during the not Redemption for they reserv'd only their Feu-mails and Feu-ferms since inclusio unâ—us seems to be exclusio alterius and the Superiority being by this Act declar'd to belong to the King the Casuality should follow the Superiority yet by a Decision the 24 of July 1632. The Lords found that the Lords and Titulars of Erection had Right to the Casualities of these Superiorities ay and till they be Redeem'd but by the 30 Act Par. 1 Ch. 2. It is declared That the Feuars shall be bound to make payment of their Feu-ferms and Duties contained in their Infestments to the Lords of Erection ay and till they be Redeemed but it is not clear whether Escheat and Non-entry will belong to the King or Feuars except it be comprehended under the general word Duties Though the Feu-mails and Feu-ferms be reserv'd to such Lords and Titulars of Erection as subscriv'd the Surrender so that it may seem necessary to prove that these who seek Feu-duties did subscrive or else that these should belong to the King yet because the Surrender cannot be found the Lords found it sufficient that the Titular acknowledg'd the Kings Right conform to this Act But they found that they had not Right to the Arrages and Carrages of these Kirk-lands because by this Act all the Rents and Duties are Declar'd to belong to the King and the Reservation in favours of the Superiour is only of Feu-duties if they found no abatement of the Feu-duty in respect of Vastations since the Feu-duties were small and the Feuar might have gain'd by prior and subsequent years June 27. 1662. Watson contra Elleis Because the Superiorities of these Kirk-lands is by Act declar'd to belong to the King therefore the Lords of Erection cannot pursue a Reduction of these Feus nor is the concourse of His Majesties Advocat sufficient except there be an express Warrand under the Kings Hand for that effect Albeit it be uncontroverted by this Act that the King has no right to the Feu-mails and Feu-ferms due by the Vassals of Erection until he redeem the same as said is yet it may be doubted whether the King has Right to the Feu-mails and Feu-ferms of the Lands which pertain'd in property to the Lords of Erection before the said Surrender and which were mentioned in the old Infestments before the date of the Erection and that without paying for the saids Feu-ferms and redeeming them as said is as he is oblig'd to do in the case of the Feu-ferms due by the Vassals of Erection and it may be urg'd for the Lords of Erection that the King has not right to the Feu-ferms of their proper Lands except he Redeem them And that because 1. The Act of Parliament is relative to the Submission made by the Lords of Erection whereupon the Act proceeds but so it is that by the Submission they resign the Superiorities reserving only to themselves the Feu-duties till they receive satisfaction but it is expresly provided that under this Resignation their proper Lands should not be comprehended but that they should hold the same of His Majesty as the same was holden before the date of the Erection and so the meaning is that though they should hold the same in Feu yet they should not be oblig'd to pay the Feu-duties till they receive satisfaction 2. It were absurd that the Lords of Erection should not quite the Feu-duties of their Vassals till they receiv'd satisfaction and yet they should be oblig'd to quite the Feu-duties of their own proportion in which they had far more interest than in the Lands of their Vassals without any satisfaction 3. Custom is the best Interpreter of Law and by the general Custom of the Nation the Lords of Erection have never counted for the Feu-duties of their proper Lands 4. There being a Reservation made in the first part of the Act of the Feu-duties only in case of payment The Reservation in the second part of the Act must in Annalogie of Law be constructed to be burden'd with the same quality except the contrary were expresly declar'd in the Act. but on the other side it may be more strongly urg'd for the King that he has Right to the Feu-ferms of these their proper Lands immediatly without any satisfaction and that for these reasons 1. Because by the Act of Parliament they are expresly to hold their proper Lands of the King and to pay him the Feu-duties mentioned in
compleating Dispositions and Rights made by the Party where the Granter refuses to compleat the Right himself in that case such Adjudications come not in pari passu upon this Clause July 16 1675. Campbel of Riddoch contra Stuart December 2. 1676. Lady Frazer contra Creditors of the Lord Frazer BY this Act also it is Declared That if the appearand Heir or any person to his behove shall buy in any expyred Comprysings the said Comprysings shall be Redeemable by posterior Comprisers from the appearand Heir or his Confident for payment of the true sums pay'd out by them and that within ten years after the said Right was acquired Observ. 1. That though this be a correctory Law and so ought not to be extended Yet it is so favourable that the Lords extended the same to Rights bought in by Eldest Sons whilst their Father lives though the eldest Son cannot be properly call'd in that case an appearand Heir since an appearand Heir is only he who can succeed in haereditatem jacenâ—em but the Lords would not extend it to the Right of an Apprising bought by the Husband where his Wife was appearand Heir For though the Lords found this reasonable yet they found the Act to be stricti juris and so would not extend it to this Case except it could be alleadged that the sums were truly pay'd for the Wifes behove and the Lands provided to her Heirs and some doubt whether Comprisings bought in by the Tutors and Curators of appearand Heirs be Redeemable upon this Act and since their Pupils may oblige them to Dispone the saids Rights to them though the Comprisings were bought in in the Tutors and Curators own name if they had as much of the Pupils means in their hands It seems that by the same Reason the Pupils Creditors who Comprise omne jus that was standing in their person should have the same priviledge Observ. 2. Though this Clause runs only in favours of Apprysers from which it may seem that they are only allow'd to Redeem Yet the Lords Decided January 9. 1677. Hay contra Gregory That a Creditor having an Infeftment of Annualrent might Redeem from a Compryser who excluded him and it seems by that Decision that any Creditor may have this Benefit as well as Comprisers since they may Comprise Nor are the strict words of the Act to be considered for else Adjudgers could not Redeem since they are not nam'd in the Act. By this Act also not only the Apprising is Redeemable but even Bonds granted for the Sum thereafter Comprised for are null if the Apprising be satisfi'd as said is so that appearand Heirs cannot make use of the Bond or Inhibition upon it and though a Disposition was bought in by the appearand Heir before the Act of Parliament yet if the Infeftment was taken after the Act the Comprising was found Redeemable by the Act for it is the Infestment and not the Disposition which gives the Right because if a third party had been first Infest he had been preferr'd to the appearand Heir notwithstanding of this Disposition July 21. 1671. Maxwel contra Maxwel In which case it was also found that thogh the Act bears that expired Comprisings bought in by the appearand Heir should be redeemable Yet if the appearand Heir buy in a Comprising in cursu the same will be Redeemable if it expire whilst he had Right to it so that upon the whole matter it is observable that even Correctory Laws with us are to be extended in favourable cases so far as to make them answer the Design of the Legislator which is to help the ill that was to be Corrected Observ. 3. That this Priviledge is allowed to the second Compriser not only by way of Order of Redemption but even by raising an ordinary Action so that if he raise that Action within ten years the Lords will find the same sufficient providing he has rais'd a Declarator concluding Compt and Reckoning within the ten years which the Lords will sustain by way of Reply being propon'd upon incidenter in the ordinary action for payment June 26. 1677. Kincaid contra Laird Abergeldie Observ. 4. That these ten years run from the Infeftment taken by the appearand Heir or some other publick Deed as Decreets c. Done upon the Right so bought in else the appearand Heir might keep his Rights latent for ten years and consequently the Creditors could not Redeem because they could not know them It is fit to know that by our Law Wodsets are either proper or improper A proper Wodset is where Lands being impignorated for a sum the Rents of the Land are accepted in satisfaction of the Annualrents of the Money and that without any Restriction upon either side and as to these Wodsets it is by this Act ordain'd that the Wodsetter shall be oblig'd upon offer of sufficient surety by the Lender either to quite his Possession or Restrict himself in his Possession to his Annualrent counting for the superplus But this Act innovating the privat Paction of Parties was found only to oblige the Wodsetter to be countable from the Date of the Offer of Surety and not from the Date of the Act of Parliament February 21. 1666 Lord Borthwick contra his Wodsetters But in this Computation the Wodsetter is to get Defalcation of what he hath depursed upon Reparations or hath lost by Quarterings or any other manner of way Improper Wodsets are these whereby it is expresly Declar'd That the Wodsetter shall not be lyable to any hazard of the Fruits Tennents Wars or Troubles so that the Wodsetter is to have Re-payment of these by and attour the Rents of the Lands which are Declared to be Usurary in time coming and the Wodsetter in all such Wodsets taken since the year 1649. is obliged to count for the superplus more than pays his Annualrent and to impute the same pro tanto in payment of his principal Sum. NOta This Act of Adjournment is the first that I find in all the present Impression of the Acts of Parliament For Parliaments were of old Dissolv'd but now they are ordinarly Adjourned and the Act of Adjournment is neither touched with the Scepter because it is an Act of the Kings and He needs not touch His own Acts nor is it Read in Parliament because by the very Adjournment the Parliament is dissolv'd and it being no more a Judicature nothing can be Read in it But by the 12 Par. Ja. 1. By the black Acts I find that de mandato domini Regis Parliamentum suit continuatum usque ad sestum beati Joannis Babtistae sub praemonitione 15. dierum Whereas though our Adjournments bear now no dayes upon which Premonition is to be made yet when the King Adjourns Parliaments by Proclamations beyond the days to which it was Adjourned by Act of Parliament He uses to Adjourn them upon the Premonition of fourty dayes and fifteen was too short It was doubted whether if the Day to which the
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
Clause is here added to this Act and is not in the 4 Act 1 Par. Ch. 1. THis Act is Explained in the Observation on the 8 Act 1 Par. Ja. 6. but more fully in my Jus Regium Cap. The Right of Succession Defended and it is remarkable that it was past without a contrary Vote or the least Objection only most thought it so just that it was unnecessary and really it had been so if some in England had not controverted it THis Act Discharges â—ree-quarter and Localities but because some pretended that by this Act they were free from all necessity of carying Corn or Strae or Grass whereas if this were true the Souldiers Horses had been made unfit for Service by such Carriages and the Troopers and Dragoons might have been easily Murther'd whilest they went out singly to bring it in therefore by Act of Council this is fully regulated THere having been a full Debate before His Majesty how far Masters were answerable for their Tennents the Parliament to prevent the like for the future made this Act being fully convinc'd that Masters in Scotland could command their Tennents and Servants suitable whereto there are many old Statutes Commanding Masters to present them and finding that without this the Peace could not be secured and upon the event it is found that this has secur'd the Peace for Tennents and Servants knowing that their Masters would find out their Crimes which Sheriffs and others could not know and that they could not get Service or Land any where If they were disorderly they have conformed and this hath Restor'd Masters to the just Influence which our Predecessors had over their Tennents and Servants and which they lost by their Fanaticism by which they came to depend only on their Ministers and minding more Conventicles than their Work and in which extravagancy they were so far advanc'd that they would not see themselves till they were secur'd that they should be allow'd to go to these nor is the Master ty'd by this Act to any hard thing since by presenting them to Justice or by putting them out of his Land or out of his service he is free from all danger and this is in his power as also to secure him yet further it is Declar'd that he may break their Tacks and that if any Master take them who are put away he shall be lyable unto three years Duty It having been also Debated before the King that there could be no Deputs nam'd for putting the Laws against Ecclesiastick Disorders to execution within the bounds of Heretable Judges therefore His Majesties Power is Declar'd as to this Point by the Clause of this Act but this is now unnecessary because by the 18 Act of this Parliament His Majesties cumulative Power is Declar'd as to all points IT is very observable that the longer the World lasts Probation by Witnesses-lessens alwise in esteem because men grow alwise more Wicked In our Saviours time out of the mouth of two or three Witnesses every word was to be established Thereafter by our Law and by the Laws of other Nations nothing above an hundred pounds could be proven by Witnesses And albeit of old the affixing of a Seal was probative without a Subscription or Witnesses but as by former Acts the Subscriptions of Parties is Declar'd requisit So though formerly the Designing the Witnesses was sufficient although they did not Subscrive Yet by this Act no Writ is Declar'd Probative except the Witnesses Subscrive and without their Subscriving the Writ is Declared null But the Act of Parliament does not condescend whether this nullity shall be receivable by way of exception Or if it must require a Reduction But I conceive it must be null by way of exception since the Law hath Declar'd such Papers null and the want of Witnesses appears by production of the Paper it self The second thing Established by this Act is that no Witnesse shall sign as a Witness to any Parties Subscription except he know the Party and saw him subscrive or saw or heard him give warrand to the Nottar or touch the Pen The occasion of which part of the Act was among other remarkable Cases that a Gentlewoman pretending that she could not Write before so many Company desir'd to sign the Paper in her own Chamber whereupon she got the Paper with her and at her return brought it back subscriv'd and she thereafter rais'd a Reduction of the same Paper as not truly sign'd by her and though this should hardly have been sustainable at her own instance because she was heard to own it by the subscriving witnesses and the whole company yet this exception of dole could not have secluded her Heirs or Executors from reducing it as said is If witnesses without seeing a party subscrive or giving warrand to subscrive shal subscrive as witnesses they are declared to be punishable as accessory to Forgery which quality some think was added to seclude the punishment of Death it being as may be pretended too severe to punish by Death that which is the effect of meer negligence and unto which very many fall through negligence yet our Law knows no difference betwixt accessories and principals further than ex gratia accessories may sometimes find a mitigation of the punishment I conceive also that a party signing as Witness without seeing the Paper subscriv'd should be lyable to a third party who got assignation to that Paper in Damnage and Interest if it be Reduced ex eo capite since he was a loser by his negligence But quid juris 1. If the party himself to whom the Paper was granted were pursuing such an action for Damnage and Interest since he should have considered his own security and the Witnesses might have trusted to his exactness 2. Quid juris if the Witness heard Command given to one of the Nottars since the Act says That unless they heard him give Warrand to a Notar or Notars and touch the Notars Pen and yet even in that case the Paper may be null because there was not a Command given to both the Notars and a third party may thereby lose his Right 3. It may be doubted if upon a Notars asking if the party will warrand him to subscrive the party do give a Nod whether that Nod will be equivalent to a Warrand and free the Witness who thereupon subscrived as Witness And it seems it should for the Act says except he saw or heard him give Command and a man cannot see a Warrand otherways than by a Nod and nutus was sufficient by the Civil Law to infer a Mandat The third point in the Act is that albeit in all Forraign Nations the Subscription of a Notar proves in all Obligations for there the Notar keeps the Paper sign'd by the Party and gives only a Duplicat sign'd by him and albeit in our Law a Notars Subscription did prove in all Instruments such as Seasins Intimations c. If the Witnesses were
or Son in Law to him which is most just since these may have an equal influence upon him and sometimes greater then those formerly Discharged It may be doubted whether this Act should extend to Cases caryed on in the Names of Confidents and Trusties for the behove of the Persons Comprehended in this Act and it seems rational to extend it for a Cause cannot so much be said to be his in whose name it is pursued as the persons to whose behove it is pursued and if this were otherwise the design of this excellent Act might be altogether evacuated But yet I remember that the Earl of Rothes in Exchequer gave by his vote the gift of Non-entry of the Estate of Levin to Sir William Bruce though it was alleaged that it being to his own behove he could not jus sibi dicere To which it was answered that he did not Vote for himself but that he was necessitat to sit to make up a quorum because there behoved still to be such a number of Commissioners of the Thesaury present in Exchequer as sine quibus non AS Laws do ordinarly show the Genius of the Nation so do they likewise show the Genius of the Time wherein they are made and this Law was occasion'd by a dreadful Principle whereby the Fanaticks had declar'd That it was lawful to Kill all who Serv'd the King and though none were punish'd in Scotland for meer principles of Religion Yet it is very lawful to punish those who maintain Principles which tend necessarly and naturally to the raising of Rebellion or committing of Crimes Whereof this and the 2 Act 2 Sess. Par. 1 Ch. 2. are just Instances It may be doubted whether Judges may be declined where their Relation is equal to the Pursuer and Defender or in Cases of Affinity where the Affinity has ceased by the Dissolution of the Mariage Item It may be doubted if a Judge can be declined where he is related only to one who is a Member of a Society which is Pursuer or Defender as for instance if the Process be against a Colledge and the Judge be Brother to one of the Masters of the Colledge Observ. From these words The Exchequer and other Judicatures That the Exchequer is a Judicature in our Law BY this Act It is declared That the high Court of Admirality is a Soveraign Judicature in it self and imports summar Execution by which last words is meant only that execution of Horning may pass upon their Decreets immediatly without seeking a Decreet conform before the Lords as of old conform to the 15 Act Par. 20. Ja. 6. which is here wrong cited and call'd the 12 Par. But this summar execution is no mark of its being a Soveraign Court for Sheriff and Bailiff Courts have the same priviledge But that which makes this Court a Soveraign Court is that by this Act it is declar'd that they may not only review the Decreets of inferiour Admirals but their own and the reason why they are allow'd to review their own is because it is their custom to grant oft-times Decreets summarly for not finding Caution and it were hard not to allow the persons concern'd to be heard upon an offer to find Caution as also It is declar'd by this Act that no Advocations shall be granted from them to the Session but even this is not observ'd tho it was the great design of this Act for this Act restricting this Priviledge to maritim and Sea-affairs the Lords Advocat Causes from that Court as not maritim it not being determin'd what Cases are maritim and so can be comprehended under that Term. The Lords are still allow'd to Suspend the Decreets of the Admiral in praesentia or by three Lords in the Vacance which is hardly to be reconciled with its being a Soveraign Court And yet in some Cases the Lords Suspend the Decreets of the Justice-Court and of the Commission of the Kirk which are certainly Soveraign Courts The Admiral Court has got also power by this Act to apply the Fines and Amerciaments of their own Courts to their own use which formerly belong'd to the King and they have also the sole power to grant Passes and safe Conducts to Ships which by a special priviledge was granted immediatly before this Act very irregularly to Magistrats of Burghs Royal and in the time of the late Dutch War it was granted to a particular person named by His Majesty who was called Surveyer-general and was bound by his Instructions not to grant a Pass to any Ship till he was aboard and Surveyed all that was in it only he had power to make a Deput for Aâ—erdeen and beyond it BY this Act because common things are neglected and Creditors are disappointed of all the Rents where the same are controverted amongst them therefore they are allow'd to roup the Lands of the common Creditors when become Bankrupts which is now done by Summons Narrating this Statute in which all the real Creditors are Cited and thereupon the Lords grant a Commission for trying the value of the Estate and then they determine what shall be the least price and they name a Lord before whom the Roup is to be made and Letters are raised Charging Creditors to appear on twenty one dayes at such an hour at the New-Session-House to offer before such a Lord at which Day he comes to the Outter-House and the Clerk Reads the Acts and Commission to that Lord and the Macer offers the Lands at the price put on them by the Lords three several times and if none offer more he who raised the Summons gets them at that price After all this the Creditors go on in their multiple poinding and being rank'd according to their due preference the price is distributed amongst them accordingly tho it may be Debated that this preference should be first determined since till then Creditors will not willingly offer It seems more reasonable that Roups should be in the Shires where the Lands to be sold do ly for there will be more buyers found there than at Edinburgh I could likewise wish that where any of the Lords of the Session are Pursuers they would name Commissioners in the Countrey to make the Roup for Societies should shun sibi jus dicere where the same can be supply'd by others I think also that it were fit that Roups were made three several dayes and not all at one time as is required by the Doctors for this would give all persons concerned time and opportunity to appear and consider what is fit to be offered for men may be surprised or be sick or busie at one hour or time I conceive also that the Lord who makes the Roup should stay all the two hours allow'd not only to the last moment but from the first as we see the Judges do in Roups abroad and before our Admirals where the Roups are therefore appointed to be made ad candelam or clepsidram and in Orders of Redemption we
that it shall be the fineness of 12 penny fine yet the meaning of that Act is because 12 penny fine is the finest imaginary value but there must be still a twelfth part allow'd of alley to make the Siver malleable and albeit the punishment in the Act against these who work not up to this fineness be arbitrary yet it is declar'd to be punishable by death by the 56 Act Par. 6 Q. M. Observ. 2 o. That the ordaining this Act to take effect after forty days Proclamation implys that regularly Acts may be put in execution sooner as by the 20 Act Par. 3 Ja. 3. King JAMES the third Parliament 14. THis Act is only a Temporary Statute ending with these who swore to observe it but the bringing Malefactors to the Bar in sober manner without assisters is commanded by many Acts and though by this Act it seems that the Justices cannot hinder some of the Pannels friends to stand with him upon the Pannel that is to say to stay at the Bar and that four friends are allow'd to the Pursuer and ten to the Defender by the 41 Act Par. 6 Q. M. Yet the Justices do suffer few or none to stand with the Pannel as they see occasion for it THe Crowner of old received the Porteous Rolls that is to say the names of such Malefactors as were to be pursu'd at Justice-airs but now the Justice Clerk keeps it himself and gives it to the Macers of the Criminal Courts or Messengers who cite the persons to be pursu'd THe Defenders in slaughter are by this to be cited upon six dayes to find Caution or else are to be denunc'd Rebels but now if the Criminals be not in prison they are to be cited to find Caution upon fifteen dayes but if they be in prison they may get an Indictment to answer upon twenty four hours BY this Statute it is clear that a person apprehended and incarcerated must first be maintain'd upon his own expences and if he be not able to aliment himself the Sheriff is to aliment him upon his Majesties allowance and by a late Act of the Justice Court The Keeper of the Tolbooth of Edinburgh is discharg'd to receive any Criminal Prisoner till he who enters him Prisoner find Caution to aliment for before that Act poor people were starv'd and ruin'd by their Imprisonment THis Act is in Desuetude for nothing is due now to Crowners because they do not attach as formerly and this was the price of their pains or Fee THis Act is in Desuetude for no Sheriff tholes now an Assize the last nor no day of a Justice-air except he be pursu'd for some particular Crime or for Malversation in his Office BY this Act if the Sheriff hear of any Convocations he should charge them to cease and if they refuse he should continue the Court and pursue them and the punishment is Imprisonment for a year from which Act it was argu'd justly in the Earl of Caithness case that though men refus'd to dissipat at the Sheriffs desire he could not summarly fall on them and kill them for that were too dangerous a power to be given to any Sheriff and all that he could do by this Act was to acquaint the King and then pursue them THis Act ordaining the Causes of Widows and Orphans Kirk-men c. only to belong to the Cognition of the Lords is in Desuetude and these Actions do properly belong to the Commissariot Court THe Burrows of Scotland have liberty to meet in time of Parliament and to propose as a Body and third Estate any overtures for Trade but no other state of Parliament can lawfully meet this being a singularity indulg'd to them for the good of Commerce and the subsequent Acts are propos'd by that Estate to the Parliament and by them turn'd into Acts as appears by the Rubrick it self VId. Act 12 Par 2 Ja. 3. Vid. observ on 47 Act Par. 1 Cha. 2. and on Act 66 Par. 14 Ja. 2. THe Act here ratifi'd though not exprest is Act 30 Par. 5 Ja. 3. THough this Act allows the Burrows to meet every year at Inner-â—eithing only yet thereafter they are allow'd to meet four times in the year at what place they shall think most expedient Act 64 Pa. 5 Ja. 6. and the burgh of Edinburgh with six of the rest may conveen them Act 119 Par. 7 Ja. 6. Now they meet in July at Edinburgh Pearth Dundee Aberdene Stirling and the Provost of the Town in which they meet being always President without Election and though the Fine of each absent Burgh be here five pounds yet it is made twenty pounds Act 119 Par. 7. Ja. 6. THis Act adds to the ordinary annexations that the King shall be bound by his oath at the Coronation that he shall not alienat the annext Property which oath is given by all the succeeding Kings It is observable also in this Act that the Kings great Seal and the Seals of all the Prelats Lords Barons and Commissioners for Burrows are appended which was usual in these days in all Concessions granted in Parliament and I have several Patents of honour granted by the King in Parliament wherein the Kings great Seal was appended as now it is to the Patent and the Seals of all the Ecclesiasticks were appended upon the right side and these of the Laicks on the left side each Seal hanging from a Label or Tag on which the owners Name was writ and in anno 1558. a Commission to the Lord Seton to be Ambassador in France was thus Seal'd by the King and Sign'd by the Nobility and by the 191 Act Par. 13 Ja. 6. The Morning-gift of the Abbacy of Dumfermling is said to have been under the Kings great Seal and the Seals and Subscriptions of the Estates in favours of Q Ann. THis priviledge was granted by Malcolm 2 leg M. c. 3 num 4. but both that priviledge and this Statute are now in Desuetude so that now the Crowner has none of the Malefactors Horses THis Act appointing that strangers be well us'd and that no new Customs Impositions or Exactions be put upon them seems to limit the Kings prerogative acknowledg'd by the 27 Act Sess. 3 Par. 1 Ch. 2. by which it is declar'd that the King may dispose and order Trade with Forraigners as he pleases a consequent of which Prerogative is that he may either discharge Trade with Forraigners or burden it as he pleases since by this Act no new Imposition can be laid on But the answer to this is that this Act relates to strangers and not to the Kings own Subjects so that though Strangers come they should be civily us'd by this Act yet they may be debar'd by that Act. THis Act granting a Commission to Examine the Laws and put them in one Book took effect in Skeens Edition of the Acts of Parliament and Regiam Majestatem in which