Selected quad for the lemma: war_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
war_n	death_n	king_n	treason_n	2,761	5	9.5559	5	false

Text snippets containing the quad

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

which is oft-times very useful and this publication is for these reasons allow'd by the Civil Law and in most Nations vid. Marant de processus publicatione and in England in all cases and is even with us allow'd in some cases yet as in Falshood CLerks to the Signet are now called Writers to the Signet but their Fees specified by the next Act are innovated by the Regulations at first there was but one Clerk of Session who was called the Clerk of Council as is clear by the 53. Act of this Parliament and he was chosen per vices out of the Writers to the Signet but all the Writers to the Signet or Clerks of the Signet were at first admitted to be present at the decision of Causes whereof this Act is a Vestige Thereafter there were two Clerks of the Session and at last three but lest their number should increase by an unprinted Act of Parliament it was declar'd that they could not be moe than three notwithstanding whereof in Anno 1661. The Register appointed six whereupon the King by his Letter in Anno 1676. reduced them again to three and now again there are six Clerks as before the year 1675. IT is appointed by this Act that deliverance upon Bills presented to the Session be only Written by a Writer to the Council that it to say a Clerk of Session and not by a Writer to the Signet BY the last words of this Act it appears that an Advocat may be ●●mpelled to plead for any man except he can alledge that he 〈…〉 employed for the other Party or the like c. which is 〈…〉 the Civil Law l. 7. C. de postulando 〈…〉 present practice Advocats and all remove at the advising 〈◊〉 the Cause though in England and France Causes are openly advised which discourages very much all arbitrariness THat Advocats should propone all their Dilators together the second time is still ordered but never observed for where the Dilators are of importance or intricat the Lords will allow them to be proponed separatly BY this Act such as misrepresent the Lords or accuse them unjustly either by a formal Process or to the King are to be punish'd Arbitrarly by way of Action for they are here appointed to be called before the King but such as dishonour or lightlie them are to be punished by the Lords themselves and the Lords are in use to send such as contemn them or their orders to the Castle or Tolbooth or to ordain them to crave pardon upon their knees c. suitable to the offence The Lords are to this day free of Taxations conform to this Act but of late if there be no exception of them in the Acts imposing Taxations they are in use to get a Letter from the King declaring them free though this may seem needless because of 23. Act Par. 1. Ch. 1. and the 23. Act Par. 1. Ch. 2. Though the Precedency due to the Wives of Lords of the Session or Advocats be continued with them after their Husbands death which we derive from the Civil Law l faemina 8. ff de Senatoribus yet immunity from Taxes is not extended to their Wives Stockman Decis 65. King JAMES the fifth Parliament 6. THough regularly Crimes die with the Committers and cannot be punish'd after their death yet by this Act it is ordain'd that Treason may be pursu'd after the committers death which holds only in Treason committed against the Kings person and Common-wealth that is to say in perduellion where there is a design against the Kingdom such as raising War bringing in Forreiners c. but holds not in simple Treason or laese Majestie such as are the keeping out of a Castle or in offering to detain the King's Person Prisoner upon any private account for the words against the King's Person or Common-weal are copulative neither does this Act hold in Statutory Treason which are meerly Treasons by vertue of a Statute such as Stealing in Landed men or Murder under trust c. In all cases where Treason is to be pursued after the death of the Committer it is necessary to call the appearand Heir because his right as appear and Heir is to be forefaulted by the sentence but though it is ordinarly believ'd that the bones of the Committer must be raised and brought to the Bar yet this is not necessary Nota That the Common or Civil Law is a sufficient warrand to sustain Actions in this Kingdom because of its great equity except where the same is over-ruled by a contrary Law or Custom The Civil Law to which this Act relates is l. ult ff ad l. Jul. maj Extinguitur crimen mortalitate nisi sorte quis Majestatis reus suerit It has been much doubted amongst Lawyers how far the Delict or Crime of the Predecessor should infer Action against their Heirs which may be resolv'd in these conclusions 1. That all corporal punishment expires with the Committer nam noxa caput sequitur instit lib. 4. tit de nox Act. 8. per tot § 5. 2. As to any Civil conclusion quoad interesse pecuniarium the Civil Law did only sustain restitution against the Heir in two cases viz. If either Litis-contestation had past in the Defuncts own time or if the Heir had got advantage by the Crime or Delict of his Predecessor as if for instance the stollen Goods or the Money conceal'd by his Predecessor had remain'd with him § Non autem omnes 1. Instit. de perpet temporal Action 3. By the Canon Law the Heir was lyable to refound the damnage done by the Predecessor though there was neither Litis contestation past in his time nor did any advantage remain with his Heir cap ult ext de sepult cap. in literis ext de rapt And though the opinion of the Canonists seem to the Lawyers of this age more equitable they thinking Litis-contestation but a subtilty yet I conceive that there was very much reason for the Civil Law to require Litis-contestation since if the Defunct himself had been pursu'd he might have alleadg'd many things which might have defended him that were unknown to the Heir as for instance he might have alleadg'd that the Sheep alledg'd to be stollen were intrometted with by the Owners warrand and might have cited Witnesses who were present which the Heir could not know and yet our practice follows the Canon Law as more conscionable I find that in the 5. Council at Constantinople it was after debate found that Origin and Theodorus might be Anathematiz'd after their death though Vigilius then Pope of Rome maintain'd neminem post mortem condemnandum and this occasion'd a great Schism There is interpos'd betwixt this and the next Act a distinct Act in the Black Impression whereby the King and Parliament ordain several Acts past in the last Parliament to be now pronounc'd and authoriz'd by his Grace and the three Estates which has been left out because the way

115. l. 8. r. Esloinȝie P. 26. l. 9. for Reub r. Repub. P. 30. Act 137. l. 17. dele ●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 ●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. fi●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 ●y c. P. 87. l. 2● 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. 15●5 P. 134. l. 21. Act 57. r. Judges P. 136. l. 5 Act 70. dele 8 P. 138. l. 5. Act 70. ● probio●atur P. ●41 to notwithstanding c. Add in the Marg●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. ● Act 88. for Confirmations r. In●estments P. 176. l. 28. r. § sed naturalia P. 185. l. ● 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. ● 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. ● tit 17. P. 358. l. 17. r. correctoriae P. 376. l. 8. r. this Act. Ibid l. 38. for proport●●n r. property P. 377. l. 24. dele and for the property that was Feued out the time of 〈◊〉 Erection Ibid l. 29. r. ●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 fir●● Compriser P. 413. Margin r. Act 4. P. 415. l. 4. r. l. 1. in ●in P. 416. l. ●● dele as that P. 427. l. 30. dele refuse to P. 428. l. 10. Act 5. for satisfied r. ●ufilfied P. 4●9 l. 6 for transact r. tran●m●● Ibid. l. 2. r. Improving P. 437. l. 44. r. the half of the Fines of all who are not Heretors P. 448. l. p●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 pr●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

Court which is a Spiritual Court and curia christianitatis Obs. 2. It seems that Oaths of Calumnie can only be craved in initio litis in the beginning of the Pley or Cause but yet now an Oath of Calumnie may be asked at any time Obs. 3. That though this Act appoints Advocats to give their Oaths of Calumnie if their Client be absent yet that only holds in matters of Fact as to which the Advocat is not obliged to swear if his Client be present but as to alleageances in point of Law the Advocat is obliged to swear though his Client be present Thir Verses are taken out of Hostiensis tit de jur Calum Gloss. in § 1. just de paen tem litigant which shews amongst other arguments that the Acts of Parliaments as we have them now Printed are not the same as they past in Parliament I have heard it debated in the Process Keith contra Purves March 1684. That an Adocat was not obliged to give his Oath of Calumnie whether he thought the Right upon which he Debated was really to the behoove of the Earl of Marshal but only in general that the Advocats had good reason to Debate it was not to his behoove because their Client said so to them But if this be allow'd an Oath of Calumnie will signifie nothing for Advocats may alwayes find subterfuges to depone that they have good reason to urge such a thing for they may think their Clients Information sufficient warrand for them though they are convinced the same is palpably false whereas the true Design of the Act of Parliament was to debar Advocats from proponing Defences and insisting in Pleas which they thought unjust and Calumnious ARe in Desuetude But I am of Opinion that Brieves with us have not their Origine from the Civil Law as Skeen thinks because sententia erat de brevi recitanda or from the breve testatum of the Feudal Law for these are very different from our Brieves but from the Court of Rome for their Brieves are exactly the same With ours as breve de capienda possessione breve contra intrusum vide Amydenium de stilo datariae cap. 28. lib. 1. Rebuff praex Reg 34. THis Act is abrogated by the Union of both Kingdoms but from it may be observed that to go and live in a Countrey that is in War with the KING is Treason since the Enemy becomes thereby stronger and richer and the Kingdom weaker and poorer UPon this Act is founded the stile of Law-burrows which bears That the Raiser dreads Bodily Harm of him against whom he seeks Law-burrows and that he has given his Oath to that effect This is like that Oath of Calumny Quod tenetur ille prestare qui novum opus nunciat l. 5. § 14. ff de novo oper nunciat But it is the same exactly with the cautio de non offendendo us'd both in France and Flanders in which the Oath of the Party is sufficient ubi expectatio mali juramento ejus qui securitatem petit confirmari sufficiet Christien ad leg Mechlin art 1. tit 4. num 4. And with us such as break Law-burrows are pursu'd by an Action of Contravention Which Term is likewise us'd among them in the same sense art 8. num 16. Ibid. Observe That though the Letters of Law-burrows contain no such Warrand in the Body of them for taking the Chargers Oath that he dreads bodily harm and though the Messenger who executes the saids Letters does not exact the said Oath from him at whose Instance the Letters are to be Execute yet that neither annuls the Letters nor the Act of Caution though it would seem that Caution is only to be found because that Oath is given but yet the Party might have Suspended upon that ground and would not have been oblig'd to have found Caution till the Charger had given his Oath conform to this Act. FRee-holders or their Acturneys should compear at Head-Courts but though this Act sayes That if they be absent upon a necessary Cause they may send their Acturney yet de praxi though they can prove no reasonable Cause they cannot be Unlaw'd if they send any person with a Letter of Acturney which is rais'd out of the Chancellary and the sending of Seals is now in Desuetude for Services and Verdicts in Criminal Causes which are the only Papers that need now to be Seal'd may be Sealed with any borrowed Seal Obs. primo Several Regalities in Scotland have Chappel and Chancery of their own and grants Acturneys themselves Obs. secundo Regalities are still a part of the Shire and therefore the Sheriff may cite the Vassals of the Regality but the Lord of Regality cannot cite these who live within the Shire without Letters of Supplement obtain'd by deliverance of the Lords for that effect vide Act 10 Par 5 Ja. 2. Obs. tertio That the Unlaw warranted by this Act to be impos'd by Sheriffs for absence from Head-Courts cannot exceed 10 pounds February 7. 1624. December 6. 1628. And the same Unlaw of 10 pounds is allow'd for absence from Baron Coutrs March 16. 1622. It has been likewise found that though a Vassal having been in use to have his Servant received as his Acturney at those Courts without a formal Letter of Acturney out of Chancellary cannot be Fined quoad by gains because of the preceeding Custom Yet for the future they will be oblig'd to send formal Letters of Acturney or else they will be Fineable Intimation being made to them that the former Custom will be no more allow'd July 11. 1678. The Bailie of the Regality of Paisley against the Laird of Duntreath THe taking of Salmond at all times is allow'd on the Waters of Saloway and Tweed as long as Berwick and Roxburgh are in the English Mens Hands but it is Rescinded upon our Kings succeeding to the Crown of England by the 5 Act 18 Par. Ja. 6. King JAMES the first Parl. 10. THis Act discharging the selling Salmond abroad except the one half of the price be pai'd in Money is in Desuetude THis Act is Declaratory of the former Law else it could not have been drawn back to the prejudice of the private Right here mentioned and this was suitable to the Common Law for the Governour of the Kingdom is but a Tutor and a Tutor cannot alienat Lands belonging to the Crown King IAMES the first Parliament 11. THese who break the Kings Protections are ordained to be p●nish'd and the Protections here mention'd are these Letters which our Kings of old granted to Monastries Burghs c. taking them into his special Protection and discharging all his Subjects to injure them under pain of his highest Displeasure and it is observeable that Assizes were to sit upon these whether the Party accus'd was present or absent Those Protections are now in Desuetude nor can any Pannel be proceeded against now in his absence except in the case of

18 Act Par. 1 Ch. 1. But by a Letter in anno 1663. The Chancellour is Discharg'd to preside in Exchequer and this sh●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

Perduellion allanerly What we now call Protections were called there Supercederes but not Protections By the Civil Law publica tutelae assertio principis solius eratl capital § ad statuas ff de pan nunc salvagardiae dicuntur vid. argentrate pag 190. King IAMES the first Parliament 13. IT was lately doubted whether Theft-boot which is the Transacting with Thieves by a Judge for freeing them from punishment be in Desuetude and it was found a Crime yet punishable There are two kinds of Theft-boot declared by this Act to be punishable the one is to sell a Thief which is to take a Ransom for liberating him 〈◊〉 other to Fine with a Thief that is to take a share of what he has stoln and so dismiss him both which are exprest Act 2 Par. 1 Ja. 5. by concording with the Thief and putting him from the Law The punishment by this Act seems to be the loss of the Right of Rega●●●y as to Lords of Regali●y but to be death in Sheriffs Justices c. And if so it seems strange that the Lords of Regality shall be 〈◊〉 punished than others But I think the punishment as to both 〈◊〉 of Life and Office and the words of the Act are only ill plac'd And by the Civil Law whoever commits either of these are punish'd as the Thief himself l. 1. ff de Receptator where the two species of Theft boot exprest 〈◊〉 in this Act are also there exprest quia cum apprehendere latrones possint pecunia accepta vel subreptorum parte demiserunt and this Act punishes only Theft-boot in Judges but yet if a private person take a part of the stoln Goods he may be punished as a Resetter albeit the meer letting of a Thief go is not a Crime in him since he is not oblig'd to take him This Act was necessary because formerly Transacting with Thieves was discharg'd but no punishment exprest Quon Attach c. 42. 77. stat 1 Rob. 1. c. 3 stat Will. c. 15 By which last who Redeems a Thief est legem aquae subiturus which is now in Desuetude THis Oath is not now put to Assizers except the Party require that they be purg'd of Partiality for the ordinary Oath now us'd is That they shall Truth say and no Truth conceal in so far as they are to pass upon this Assize CRowners do not now arrest Male-factors for all arrestments are by Messengers or the Macers of the Criminal Court but yet some Heretable Crowners do assist at Justice-Airs to this Day and keep the Bar and secure Malefactors as they go and come from and to it THere is a double interest in all Crimes the Fisk or King has an interest because his Peace and Laws are broke and his Subjects wrong'd and this is call'd by the Civil Law vindicta publica The person wrong'd has another interest which is call'd vindicta privata That the King may pursue without the concourse of the person injur'd is clear by this Act but because this Act allow'd only Sheriffs to pursue without consent of the party therefore this is extended to all cases in ●●vours of the King Act 76. Par. 11. Ja. 6. THis Act is abrogated by the Union of both Nations but argumento hujus legis the taking Protections from or assurance with any Enemie of the State is Treason and it may be alleadg'd that assuring Merchant Goods or Ships by Hollanders when we had War with them vvas Treason by this Act and by the Common Law for this is a corresponding vvith Enemies A Thief novv by the Regulations must be pursu'd upon 15. days only as all Malefactors VIde Act 50. Parl. 7. Ja. 3. Act 107. Parl. 7. Ja. 6. and such as failȝie to bring in Bullion are punished Act 51. Parl. 7. Ja. 3. Act 65. Parl. 8. And all is novv innovated by the Act 37. Parl. 1. Ch. 2 d. THe Bell rung in Edinbrugh at 9. at night conform to this Act till it was ordain'd to ring at 10. as it does which being altered at the desire of the Earl of Arrans Lady when he was Chancellour it is therefore call'd the Lady's Bell. From her also the Steps leading to St. Giles Church are call'd the Ladies Steps BY this Act the Law is to be holden where the Trespass is done which is most just because by punishing Crymes upon the Place the Scandal there given is taken off by a proportional terror 2. The Friends of the Party injur'd are thereby better repa●ed 3. Probation is more easy got and Assysers upon the Place are readier to do Justice as knowing better the matter of Fact Vid. Stat Will. Reg. c. 18. And is conform to the Civil Law l. 3. ff in prin de Re milit tot tit C. ubi de crimine agi oportet and that this was the old Law of Nations is clear by Quint. C●rt THe carriers of Gold and Silver except in so far as is necessary for Spending infers also the escheat of the Carriers other Moveables Act 69. Parl. 9. Q. M. But the falling of their Escheat was but 5. lib. after that Act and is now in Desuetude so that the words under the pain of Escheat is to be interpreted of Escheating the Money so carry'd allanerly K. JAMES II. Parliament I. THIS is not an Act but a Declaration concerning the Fidelity Sworn by the Parliament to their young King and I find no such Declraation or acknowledgement in an other Parliament of any other King So this is rather set down as a Narration than as an Act of Parliament For it mentions not Bishops and it expresses the consent of al● the Free-holders THis is the first Revocation that I find made by any of our Kings and here Dispositions made by the King of Moveables is Revocked and though no mention be made of Moveables in latter Revocations Since a King who is Minor Disponing Moveables without an onerous Cause may Revock them 2 ly It is observable that the King is as his Subjects Minor till 21 years compleat and that the Parliament is in place of Tutors to Him 3 ly This Inventar is conform to the Civil Law whereby the Tutor was oblig'd to make an Inventar of his Minors Estate and which is made our Law by the Act 2. Sess. 3. Parl. 2. Ch. 2. and to make an Inventar unto Dupois is to make it according to weight Dupois being a French word signifying Weight 4 ly That in this Act rather the Parliament than the King Revocks for the King was then minor but regularly the King's Revocation passes under His Privy Seal first and then is Confirmed and past by an Act of Parliament Vid. Act 9 th Parl. 1 Ch. 1. But sometimes it passes first by Proclamation and then by Act of Parliament Act 51 Par. 4 th Ja. 4 th And sometimes by way of Instrument Act 70. Par. 6 th Ja. 5 th King JAMES the Second

guilty it is not just to admit Caution and the true speciality upon which the Council founded that Resolution was because above four thousand were delated in that Porteous Roll for Treason and it was almost impossible to Imprison all The Acts 50 51 52 53 are abrogated by the Union of England and so is the 56 but though they be abrogated yet the following Observations may be made from them Obser. 1 o. From the Act 52. that the supplying the Scottish Towns then under the Command of the English is declar'd Treason as is in general the assisting of all Enemies to the State vid. Ja. 1 Par. 13 cap. 141. Ja. 2 Par. 12 Act 50. For though we have no special Statute declaring the assisting of Enemies of the State to be Treason Our Acts running generally against such as assist declar'd Traitors or assure with English men in particular yet it is Treason by the Common Law l. 3. ff ad l. Jul. Maj. And such of our Nation as continued in the Dutch Service during the War with Holland in anno 1666. were forfaulted as Traitors By the second part of this Act it is declared Treason for any who ride with the Warden of the Marches or any other Chiftain to go away with any manner of Goods till they be thirded that is to say till they be divided for one third by the Law of the Borders belongs to the King a second third to the Warden or Chiftain and a third to the Apprehenders For understanding whereof it is fit to know that Lands when taken from Enemies become the Kings or the Common-wealths by the Laws of all Nations but Moveables by the Law of GOD Deut. chap. 20. vers 14. Josh. chap. 8. vers 1. when taken were divided equally amongst the Takers But sometimes there was a Division the one half falling to such as Fought the other to these that stayed with the Baggage and a fiftieth part of their part who Fought not was dedicated to the LORD whereas one of five hundred was only Consecrated out of their part who Fought Num. 31. verse 50. At present Grotius distinction lib. 3. de jur Bell. c. 6 11 12. Is generally observ'd whereby if Moveables be taken by a party led on by an Officer who only knew the design then the Souldiers get no share but all falls to the publick but if the Moveables be taken in Excursions or free Adventures they belong to the Takers And Voet. c. 5. n. 19. de jure milit Sets down the several proportions whereby Goods are divided amongst a Party and Officers in Holland where if the Party exceed 50. the Captain gets a tenth the Leiutenent a fifth the Ensign a third the Quarter-master a double portion the Serjeant one and an half and each Souldier a single share but still the Horse get double of what is due to the Foot BY this Act which is a continuation of the former it is declared Capital for any man to take from another Goods or Prisoners which they are in Possession of from which it is observable in War that Possession or Capture gives only right thus Inst. de rer div Par. 17. It is said Item quae ex hostibus capiuntur statim jure gentium capientium fiunt and therefore a Ship being pretended to belong to the King because one of the Kings Friggots had beat the Convoy that Guarded her and was in pursuit of another and had taken both her and this Ship here controverted if the Privateer had not interveen'd and it being answer'd that an actual Capture could only establish the Property and this Statute requir'd Possession The Lords before answer granted mutual Probation for trying whether this Ship could have escaped from the Friggot if the Privateer had not taken her IT is Treason to raise a Fray wilfully in the Kings Host for this wilfully done shews a Design to ruine the Army and I find that the Master of Forbes was Hang'd for raising a Fray in the Kings Host at Jedburgh July 14. 1537. The words without Cause are added here because if a man doing his duty was the occasion of raising a Fray he ought not to be punish'd as if an Officer punishing a Mutineer should by that occasion raise a Fray this would not be punishable By the Civil Law such as were Authors of Sedition in an Army for a Fray is properly Sedition were punish'd as Murderers l. 3. § 4. ff ad l. Cornel. de sicariis But if the Common-wealth was in danger they were punish'd as Traitors as in this Statute and in l. 1 ff ad l. Jul. Maj. and they are every where now punish'd by Death Sand. Decis 165. tit 9. des 12. vid. Voet. de jure milit c. 4. num 40. And if the Authors cannot be known all involv'd in the Guilt are forc'd to cast Lots Voet. ibidem Sometimes also if the Sedition was carried on sine gravi tumultu intra vociferationem the guilty were only Casheir'd l. 3. § 20. ff de re militi if the Tumult was rais'd upon privat picques or grounds but if it was rais'd upon prejudices against the Common-wealth or Prince it was punish'd even in that case and though no actual prejudice follow'd as Treason d. l. 1. ff ad l. Jul. Maj. King IAMES the second Parliament 13. THis putting the Kingdom in a posture of Defence was formerly ordain'd Stat. Will. cap. 23. Stat. 1. R. 1. cap. 27 But all these Acts are now in Desuetude and the Act concerning the Militia is regularly come in their place but yet the King may call for either vid. observ on 4 Act 1 Par. Ja. 1. By the Kings Letters by Bailis is mean't Letters to raise Fire or Takenings for advertising the Countrey By Out-hornes is mean'd these who follow'd the Sheriffs and whose Office it was to raise the Kings Horn for warning the Countrey to assist the Kings Officers THis Act contains what is fit to be done in time of Pestilence and because it was an Affair to be Govern'd by Christian Charity therefore the Regulation of it was referr'd to the Clergy and upon this account it is that the Act says The Clergy thinks without speaking of King or Parliament it being ordinary in our Acts of Parliament to set down the report without drawing it into the formality of an Act of Parliament and thus in the 91 and 92 Acts Parl. 13 Ja. 3. It is said The Lords thinks it expedient by which word Lords must be interpreted Lords of Articles THere was of old Distresses taken from such as came to Fairs that is to say some thing was taken to be a Surety for their good behaviour and was deliver'd back at the end of the Fair if the Owners committed no wrong during the Fair. THis Act is only to be interpreted of the Fees due to the great Constable of Scotland who is now the Earl of Errol for he only can exact during the time of Parliament but

thereto and de facto the Justices only or such as have Commissions from the Council use to judge this Crime Vide. crim observ Tit. Witch-craft NOtour Adultery is by this Act declar'd punishable by Death and by the 105 Act 7 Par. Ja. 6. That is only declar'd to be notour Adultery Where 1 o. There are Bairns one or more procreated betwixt the Adulterers 2 o. When they keep company or bed together notoriously known 3 o. When they are suspected of Adultery and thereby gives Slander to the Kirk whereupon being admonish'd to satisfie the Kirk they contemptuously refuse and for their refusal they are Excommunicate if either of which three degrees be prov'd before the Justices the Committers are punishable by death From which Act it is to be observed 1 o. That by the first Act premonition to abstain was still to be made in all cases yet in neither of the two first cases here related it is declar'd necessary but since it is not lawful to kill him who was premonished and thereafter conversed except they conversed in suspect places Gribald de Homicid num 11. It seems that in neither of these Statutes Conversation should be Criminal even after prohibition except it be in suspect places 2 o. The Justices are only declared to be Judges to the notoriety of Adultery and therefore it may be controverted if Lords of Regalitie be Judges competent to the Cognition of it and this seems to be restricted to the Justices because it is an arbitrary Inquiry in a capital case 3. This Act does not exclude capital punishments in other cases of Adultery but only ordains that these three degrees shall be punish'd by Death and since there are other cases more grievous to the party injur'd and more scandalous to the Common-wealth It may be argued that the punishment of Death should likewise be extended to them as for instance to commit frequent Adulteries THis Act declaring that the raising of Bonds of Men of War and the rising in that manner is punishable by Death is formerly explain'd Act 2 Par. 1. Ja. 1 Vid. crim observ pag. 44 45. and this Act is ratified by the 12 Act 10 Par. Ja. 6. BY this Act the building of Kirk-Yard-Dikes is refer'd to the Lords of Secret Council who are to take such course therein as they shall think fit but by the 232 Act 15 Par. Ja. 6. The Parochioners are ordain'd to build them to the hight of two Ells. And the Lords of Session are ordain'd to grant Letters of Horning for that effect which they use now to do THis is fully Explain'd at the 7 Act 9 Par. Ja. 6. and the first part of it was enacted formerly by Act of Secret Council December 21 1561. and that begins It is Statute and ordained by the Queen which seems strange seing to Statute is only proper to Parliaments but Acts of Council do oft-times bear Statute and ordain Vid. Costal de Imperator Quest. 73. num 25. This Act mentions three kinds of Bishops the Bishop Elect the Bishop Postulat and the Bishop Consecrat a Bishop Elect is he who is Elected by the Chapter upon a congé d'és●ire from the King but is not yet Consecrat A Bishop Postulat is he who was only call'd but not Elected and cannot be Elected as a Minor a Bastard c. Vid. cap. innotuit § habile de elect and it is observable from this Act that both these us'd to Dispone Kirk-lands or set the same in Tacks else they needed not to have been Discharg'd by this Act But though we have now Bishops Elect yet we have no Bishops Postulat and these Elects exercent solum ea quae sunt jurisdictionis sed non ea quae sunt ordinis BY this Act Notars are to be admitted only by the Lords of Council that is to say the Lords of Session as de facto they now are and by the Act of Sederunt 1595. The Lords ordain'd that yearly in November one of their Number should be Named by them to receive Notars who shall only receive such as are past twenty five can write an Evident in Latin or English and be Prentice five years to a Notar though now they are admitted before twenty five and without having been Prentice at all By this Act such as exerce the Office without being admitted by the Lords or after they are Discha●g'd by them may be punish'd arbitrarly and even to Death But it has been found that Evidents subscribed by Notars once admitted though thereafter discharg'd are valid they having still been habite and repute to be Notars THough this Act appoints that all Notars shall be admitted by the King yet now they need no Letters from the King but do depend upon the Clerk of Register and his Depute the Clerk to the Notars The Clerks of Session are by their admission as such Notars though they be not admitted in manner mention'd in this Act and Instruments under their hands in judicial Acts makes as much Faith as the Instrument of any Notar. THe Act here dispensed with is the 46 Act Par. 6 Q. Mary and it is observable by this Act that when former Laws have not been universally observed no advantage is taken upon them and this is one of these Cases in quibus communis error sacit jus THe observation in the former Act holds also in this and the Act here dispensed 〈◊〉 is the 38 Act Par. 6 Queen Mary BY this Act it is declar'd that five or six of the principal Burrows shall be call'd to the concluding Peace and War and to the laying on Taxations It may be doubted whether by the Council to which they are to be call'd be mean'd here the Parliament or Privy Council and though ordinarly the Parliament be call'd the Kings Council and that it may seem they only should impose Taxations yet it m●y be urg'd that by Council is here mean'd the Privy Council because all the Burrows must be cited to Parliaments and the King and his Council us'd before to lay on such general Taxations and de facto His Majesty did so in many cases without either Parliament or General Convention of Estates as in laying on the Taxation for defraying the expence of the Baptism of King James the 6. December 6. 1562. which Taxation was laid on by eight Earls five Bishops and four Burrows not mentioning Barons because it seems the Earls were accounted Barons the Taxation was 12000. pounds whereof 6000. pounds by the Spiritual Estate four thousand pounds by the Barons and Free-holders and two thousand pounds by the Burrows and another Taxation for defraying King James the sixth's expence in his Journey to Denmark and many other such Taxations and this was then necessary because Taxations behov'd to be impos'd His Majesties Revenue being then very mean and to have call'd a Parliament or Convention would have put the people to more expence than these necessary Taxations were worth

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 ●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