Oath Observ. 3. It may be doubted whether this Act ordaining Merchant Accompts to prescrive in 3 years doth reach to Compts owing to Strangers for they seem not oblig'd to know our Law and this would ruin all Commerce locus contractus semper attendendus But it was found that this Act does extend to all Merchant Goods as well when sold in gross as by retail It may be doubted whether these two last Acts run against Minors since it is provided expresly that Prescriptions against Spuilzies and Ejections shall not run against them which shows that if this had been design'd in the other Prescriptions the same Clause had been renew'd since it was under consideration and so seems not to have been forgot only and there seems to be some reason for this since Minors are prejudg'd by SpuilÈies and Ejections and so Prescriptions in these should not run against them but in removings the hazard is only that a new Warning must be used and in other the like debts the only loss is that the debt cannot be prov'd by Witnesses after three years and so since these prescriptions did little hurt to Minors it was not necessary to stop their course It is also observable that though all these Prescriptions run in 3 years yet if actions be once intented they stop the prescriptions and thereafter SpuilÈies Removings or Aliments c. do not prescrive in less time than 40 years as all other debts do and till then violent profits are due or the like debts may be prov'd as if the action had been pursu'd within 3 years 26 January 1622. Herring contra Ramsay As also by our late Decisions if the Pursuer has continued to employ a Merchant the currency of that Compt and trust will preclude the prescription so that many former years preceeding the three last may be craved though this Act ordains all Merchant Compts to prescrive within that time but if a Bond be taken for these posterior years it is thought that cannot be called a current Compt and it may be debated whether in Law one or two Articles will make a current Compt and if it do there may be many wayes taken to elude this Act vid. 16 December 1675. Somerâ—el contra the Executors of Muirhead This currency extends to Brewers Compts of furnishing 13 November 1677. Wilson contra Ferguson Vid. Sand. lib 5. Decis Tit. 6. Though it was alleadg'd that albeit it should hold in Merchant Compts where there are Discharges taken and where a Compt Book adminiculats the recept yet it ought not to be consider'd in furnishing of Ale where neither of these are observ'd and yet this currency was not respected in Servants Feeâ— for these same reasons and because a Servants Fee is alter'd at the Masters discretion 12 February 1680. Ross contra Mr. Salton VId. Crim. Obs. Tit. Forestallers and Tit. 32. IT may be doubted whether this Act that gives power to the Sheriffs and other Judges to throw down Cruives and Yairs ought to be extended to Dykes built over waters or a part of the water for making a Dam to a Miln 2 o. VVhether Sheriffs or Lords of Regality c. may execute this Commission for their own advantage and where they themselves are the parties grieved since that were sibi jus dicâ—re and they would probably be partial whereas they may get others to execute the same THis Act Discharging exportation of Coals is now in Desuetude THis Act Fining such as propone unjust exceptions or lose the Pley within Burgh for the use of the poor is conform to that Title in the Civil Law instit de panis temere litigantium For there can be nothing so absurd and unjust as that men should not at least have their true expenses upon Oath whereas we use to modifie little or nothing even where there is not the least colour for a pursuit or defence and this I think a great iniquity in all Judges who are guilty of it Vid. instit de paen temere litigantium BY this Act the Lords of Session are ordain'd to distribute Justice without respect to any privat writing impetrat from His Majesty and by this His Majesty is freed from importunity and his people from unjustice This was formerly statuted by King David 2. cap. 18. cap. 41. and by the 2. cap. Statut. 1. Rob. 1. Judges are ordain'd to Judge secundum leges antiquas and in the Civil Law per l. 1. 6. C. si contr jus vel util publ per novel 82. cap. 13. and in the Canon Law cap. 5. de Rescript This same Law is also in France and is Learnedly Treated by Rebuff ad constitut Reg. tit de rescript and Plutarch commends Antiochus for having made a Law in these same terms but though the former Statute of King David warrands the Judge not to respect that Command but to indorse and send back the warrand and not execute the unjust Command which is by the 41. cap. of the same Statutes extended so that they are not oblig'd to delay Justice upon any such privat warrand Yet I find by § 10. cap. 20. of these same Statutes that the King may Discharge or Prohibite a Judge to proceed in the case of Perambulation for certain Causes for reconciling which Statutes it must be answered that the King cannot either simpliciter discharge a Perambulation nor any other Process but that he may discharge it for weighty Causes relating to the publick to which all privat interests must cede even as he may remit Crimes for such causes though these be of greater consequence or rather that the King may discharge Perambulations because the publick Peace is oftimes concerned in these since there used to be ordinarly great Convocations at such Perambulations and therefore the Justice General was of old only Judge competent to Perambulations Upon March 4. 1553. The Queen Regent appears in the Session and declares that the Lords should proceed to do Justice notwithstanding of any Letter or Order from her which is marked in the Books of Sederunt Observ. 2. That before this Act the Council us'd frequently to discharge the Lords of Session to proceed in judging privat Causes whereof many Examples are to be seen in Hopes larger Practiques and an instance of it is to be found in the 94 Act of this Parliament but that Custom is here discharg'd and as yet the Council uses frequently to discharge the Justices to proceed And notwithstanding of this Act I find in the Registers of Council 1581. King James Revocks in two several Cases Gifts granted by himself and Discharges the Lords of Session to sustain Action upon them Observ. 3 o. That the Lords are also allowed to proceed not only to decide but also to cause Execute their Sentences notwithstanding of such privat writings Charge or Command so that the Privy Council cannot Suspend the Lords Sentences neither by an Act of Council nor yet by Letters under the Signet But yet
caducitatis comminatione legali certus terminus statui si â—â—tra eum instrumenta non edat This Commination is our Certifiâ—ation and this Terminus is our Term in Improbations Rosenthal cap. 8. concl 33. num 13. and 14. In these Actions the King needs produce nothing to prove that he is Superior for the King is presum'd to be general Superior and is Infeft Jure Coronae in all the Lands of Scotlaâ—d but though other Superiors must produce a Seasing of the Lands yet they need produce nothing to prove that the Dâ—fender is Vassal who is oblidg'd to produce upon his hazard or else to disclaim and yet if the Superior Libel only that he is Infeft in such an Earldom and that the Defenders Lands are part and pertinent of the Earldom without producing any thing to instruct that he stands expresly Infeft in these Lands as a part of his Earldom the Lords would not put the Defender in that case to produce Simpliciter but allowed the same day to the Pursuer to prove that they were Part and Pertinent of the Lands wherein the Pursuer stands Infeft and to the Defender to produce if that were proved for the Lords thought it hard to force Heretors to propale and lay open the secrets of their Coveyances where it was not certain if the Pursuer had any Interest albeit it was alleadged that this would occasion two Litiâ—-contestations in one Cause viz. One whither the Pursuer had Right and another whether the Defender had sufficient Interest to seclude the Pursuite for the Lords thought that this being an Act before answer did solve this difficulty and the ordinar Maxime that the Vassal must disclaim upon his hazard and the Argument that either the Pursuer was Superior and would be found to be so and then there was no wrong done or else he was not and in that case the Defender was in no danger by disclaiming were both found only to take place where the Pursuer produc'd a special Right to the Lands Libell'd but not where he pretended only that the Land possest by the Vassal was part and pertinent of his Land which any Pursuer might alledge The third and old way of forcing the Vassal to exhibit his Evidents was by a Feudal Tryal per pares curiae that is to say before an Inquest for of old the King summoned his Vassals to appear before an Inquest to bring with them any Right they pretended to such or such Lands and that way is exprest in this Act as well as the other and in Statut. 36. Rob. 3. num 3. but is now in Desuetude The Lords of Session being come in place of the Inquest The Earl of Rothes as Donator to the Ward of the Countess of Buâ—cleugh having pursued the Tutors for inspection of the Charter-Chist that he might know what Lands held Ward The Lords ordained one of their own number to take inspection and to shew to the Donator what Papers could prove the Ward-holding because it is presumed that all Lands hold Ward Decem. 20. 1661. FRom this and the subsequent Acts It s observable that the Parliament may without citing parties discharge priviledges contained in private mens Rights though they cannot without citation casâ—e and annul privat Rights FOR understanding this Act It is fit to know that the distance betwixt the Hecks of Cruivs should be 3. inches wide which is renew'd by the 74. Act Parl. 10. Jac. 3. and should not be 5. inches conform to the 15. Act. Parl. 2. Jac. 4. which the Lords found 29 July 1665. to be ane error in the Printing They there also found that the Mid-stream was in Desuetude notwithstanding that it was reviv'd in all these Statutes but that the Saturndays Slop was to be observ'd in all Cruivs which was to continue by pulling up all the Hecks to the breadth of an ell in every Cruive from Saturnday at six a clock till Sunday at Sun-rising THough Mines of Gold and Silver be by this Act declar'd to belong to the King yet by the 27 Act. Parl. 4. Sess. 2. Car. 1. they were declared to belong to the Heretor he paying to the King the tenth Penny which was the Canon Metallious that was only due out of Mines found in private Fields l. 2. C. de Metal But that Act is resâ—inded in the general Act Rescissory and this Act is conform to the Feudal Law Feud lib. 2. tit quae sunt Regalia 56. It has been doubted whether Lead Copper or Tin belong to the King or the Heretor but the King is in possession of disponing upon these also and when He dispones them in a novo damus even to the Heretor He reserves a tenth part to be payed in to His Exchequer and His Majesty has granted general Gifts of all Copper-Mines and Craig tells us lib. 1. dieg 14. that omnium gentium omniumque aetatum consensu â—odinâ—s omnes auri argenti stanni aris similium in patrimonio principis numerari but yet they are not enumerate in the foresaid Text of the Feudal Law otherwise than by being comprehended under the word argentaria frequens est in jure sub majoribus minora comprehendi and yet I think that if His Majesty dispon'd Land with all the Silver-Mines this would not comprehend Copper Tin c. So that this Rule holds not in all Cases nor doth it hold in any Case where things require special Dispositions as omnia regalia do Nota From this Act to the 23. the Acts are either in desuetude of no import or explained in the Observations upon other Acts. BY this Act it is ordain'd that our Coyn be of the weight and fynness of England which was formerly ordain'd by the Ch. 38. Stat. Dav. 2. and though by the 17. Act. Parl. 1. Ja. 6. It is declar'd that Our Soveraign Lord cause Print and ConÈie Gold and Silver of sick fynness as other Countries doe yet after King James succeeded to the Crown of England He past a Contract betwixt the Mints of both Nations wherein they oblige themselves to keep the same Standart and though the denominations be different now yet the Standart is now the same For the English Denomination is 11. vnces 2. deniers fine which is call'd Sterling fyne ours is 11. deniers and 2. graine and albeit upon a very subtile inquirie It is alleadg'd that the Denominations cannot be adjusted without some difference yet it is so small a fraction as is not to be regarded and there are four indented Pieces two of Gold and two of Silver made of the same fynness and out of the same Essay-pot two whereof are sent to Scotland the one of which is kept by the Thesaurer and the other in the Mint and two are retain'd in England the Denominations are Printed upon these Pieces and in the Lord Hattons case it was found that this common Standart was to be the Rule Vid. Observation on the 249. Act 15. Parl. Ja. 6.
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
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 Regaâ—â—â—y as to Lords of Regaliâ—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 â—â—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 failÈie 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 repaâ—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. Câ—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 alâ— 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
did fall under the Forefalture of the Vassal though it was not Confirm'd in the Person of the Sub-vassal and it was alleadg'd that the Sub-feu could not be quarrell'd because the King by this Act having invited men to take Sub-feus it was not just that the Invitation given by a publick Law should become a snare and having promis'd to ratifie and approve the Sub-feu that promise being insert in this publick Law was equivalent to a Confirmation and therefore should defend against a Forefalture as well as a Confirmation could have done and though these Words were alleadg'd only to import a promise to Ratifie which did imply that application should have been made for a Confirmation Yet to this it was answer'd that this was an Invitation and the Words subjoyn'd thereto must therefore be considered as a present Approbation especially seing there is no time prefixt for craving of a Confirmation nor any irritancy annex'd to the not craving thereof It was likewise urg'd that by the 91 Act Parl. 6. Ja. 4. This Sub-feuing should be no cause of Forefalture and that since this Act would defend against Ward and Recognition it should much more defend against Forefalture upon Treason for that being a most personal crime of which not only the Sub-vassal is innocent but oft-times concurs with the King against his own Supeâ—iour the poor Sub-vassal ought therefore to be less troubled upon it than upon Recognition to which the Sub-vaâ—sal himself is somewhat accessory because he receives the Right upon which the Recognition is infer'd And whereas it was urg'd that by the 37 Act Parl. 2 Ja. 6. The Sub-vassals of the Kings Vassals who were Forefalted at that time are secured if themselves were innocent which Act had been unnecessary if this Act had secured them and that Act is declar'd to have been only Temporary pro eâ vice by the 201 Act Parl. 14 Ja. 6. To this it was answer'd that by this Act such Sub-feus are only allow'd as are set for the just avail and all other Feus might have been quarrell'd and therefore that Act was made to secure the Sub-vassals of Forefalted Persons whose Rights might have been quarrell'd upon that head or else that Act has been made ad majorem cautelam and to prevent all debate which is most usual Upon this Debate the Lords found that this Sub-feu fell not under the Forefalture this general Law being equivalent to a Confirmation February 12. 1674. Marquess of Huntly contra Cairuburrow It has also been Debated whether Wodsets Feu'd out are secur'd against this Act as well as Lands irredeemably Dispon'd and I think they are since a Wodset Right is as properly a Feu as an irredeemable Right What is meant in this Act by the competent avail for which Ward Lands may be feu'd is dubious but the just avail for which the Kings proper Lands may be feu'd is by several Acts of Parliament declar'd to be the Retour-dewty or new extent and therefore I think that the competent avail here must also be interpreted to be the Retour-dewty and in January 1680. betwixt the same parties it was found that though the competent avail be the Retour-dewty exprest in his Service yet the Sub-vassal getting a part of the Lands feu'd to him he ought to pay no more for the competent avail but his proportion of his Superiours Retour-dewty and that if a Charter was given him blank by his Superiour which he fill'd up himself with a special Reddendo the Charter was not therefore null and he was only lyable in his just proportion of the said Retour'd-dewty and the Vassal if he pleases may by a Process against his Superiour get this competent avail to which his share should extend determin'd and that being specifi'd in his Service will thereafter become his Retour-dewty though ordinarly the Sub-vassal to prevent expence or by mistake uses to Retour the Dewty that was payable by his Superiour especially if the difference be not great THe punishment of such as abuse the power of their Jurisdiction of Regality is left arbitrary by this Act. vid. c. 14. Stat. Rob. 2. THis Act is Explain'd in the 96 Act 6 Parl. Ja. 4. BY this Act all Remissions are null except the Party injur'd be Assythed and he who produces the Remission must either find sufficient Caution to pay the Assythment within fourty days or to stay in Prison till the payment and by the 155 Act 12 Parl. Ja. 6. and 136 Act 8 Parl. Ja. 6. It is provided that if the Remiâ—sion contain not an Assythment expresly in the body of it the Remission shall be null but because these Acts were Temporary therefore by the 174 Act Parl 13 Ja. 6. If any Remission or Respit be granted before the Party injur'd be first satisfi'd the Remission is to be null and though by that last Act it would seem that an Assythment subsequent to the Remission would not make the Remission to convalesce because that Act requires that the Remission shall be null as said is yet the meaning of that Act seems only to be that without an Assythment the Remission shall be null From the same Act exception is made of Remissions granted for quieting the Highlands or Borders which may be valid without Assythment Gratiâ factâ a principâ— nocenti non valet nisi pax sit prius habita ab haeredibus offensi which we call a Letter of Slains vel nisi fiat reparatio damnorum Plot. concil 78. Clar. Quest. 58. num 40. ubi traditur posse Regem tamen gratiare nocentem sine pace privati quando damnandus elaborasset pro bono reipublicae vid. l. non omnes § fin ff de re milit The second part of this Act relates to Remissions for SpuilÈieâ— or Theft as to which the Lords of the Session may restore the Party and Assyth him notwithstanding of the Remission By this Act no Free-holder can be forc'd to come to Parliament except he hold a twenty pound Land of the King but none can be now compell'd and this was only in the time when all Free-holders were oblig'd to compear in Parliament as the Kings Head-Court nor can any now Vot in the election of the Commissioners except they hold a 40 shilling Land of the King immediatly or hold ten Chalders of Victual or a 1000 pound Feu-dewty all deducted off a Bishop or Abbot formerly and hold the same now of the King Act 35 Par. 1 Ch. 2. But now again since the restitution of Bishops the Bishops represent their own Land in particular and so their Vassals are not allow'd to sit in Parliament vid. Act 21 Par. 3 Ch. 2. THe negligence so severely punish'd in Judges by this Act must be negligentia dolosa supina and the distinction here observ'd betwixt the punishment of Heretable Officers and others is ordinary amongst the Doctors Bald. ad l. 1. ff de serv. fugitiv where he says that pro negligentia Judex
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
aestimatio rei creditae creverit aut decreverit yet in Money perpetua est aestimatio l. 1. ff de contra hend Empt. For clearing of which Question Vid. Vin. Quest. Select lib. 1. cap. 39. and so this Act is in Desuetude Vid. Act 19 Ja. 3 Par. 3. But though Debts upon privat Obligations were to be paid with Money at the same avail that the Money was at the time of the Contract and not the time of the payment Yet the Kings Taxations and publick Dues were by the Kings own Concession to be paid according to the value of the Money at the time of the payment and are not to be exacted in Money according as the Money was worth before it was cry'd up Vid. last Act Par. 3 Ja. 3. It has been much doubted whether it was true Policie to cry up Money for though this seems to be an encouragement to forraigners to Export our Commodity of which we have too much and to Import Money of which we have too little Yet it is urg'd on the other hand that in crying up Money we do but undervalue our own Commoditie and our own Land and raise the value of Money which is the Commodity of a forraign Countrey such as Spain and other places who have Mines as for instance if we have use for carrying our Money abroad Forraigners will only give us Commodities conform to the intrinsick value for they will not consider our raising of it and so he who got the Money which was so rais'â— is cheated in as much as the Money is rais'd above the intrinsick value 2 o. As to our own Commodities at home either they are rais'd to the same proportion with the Money and then forraign Merchants will not bring in Money for our Commoditie because they can gain nothing by bringing it in and so we lose the design of raising our Money or else the Commodities are not rais'd in value to the Money and so the forraign Merchant does only cheat us as for instance if our Money be rais'd a tenth part the forraign Merchant gives us only nine Pieces for ten 3 o. This raises the Exchange to our great loss for he who draws the Bills upon London or Paris considering that our ten Pieces are but nine there he will add the value of a tenth Piece to the Exchange 4 o. If forraign Princes find we have advantage by this raising of our Money they will either raise their own to the same proportion and then we shall have no gain or to a higher and then we shall have loss and at best diâ—ferent raisings of Money will occasion but great variation and uncertainty in Coyns COurts of Guerra here forbidden seem to have been Courts holden upon Neighbour-feid and Riots and Skeen founds them upon § ult tit 17. de pac tenend lib. 2. de feud Si ministeriales alicujus domini inter se Guerram habuerint comes sive judex in cujus regimine eam fecerint per leges judicia ex ratione prosequatur King IAMES the third Parliament 9. THis Act is Ratifi'd by the Act 30 Par. 11 Ja. 6. Vid. Observ. on that Act. King JAMES the third Parl. 10. THough all men be allow'd to bring in Victual from forraign Countries by this Act yet the Importation of Victual from Ireland is Prohibited by Act 3 Sess. 3 Par. 2. Ch. 2. THe Act concerning Cruives is explain'd in the Act 11 Par. 1 Ja. 1. Which is the Act here related to THis Act appointed the taking more than just â—raught to be a point of Dittay because it was oppression and irregular exaction and this is still taken up as dittay in Circuit Courts yet the Council does also punish it and I think the Master of the Ground where the Ferry is may punish such irregular Exactions THe unlaw of such as burn Muires is by this Act five pounds which is renew'd Act 71 Par. 6 Ja. 4. but by the 11 Act Par. 4 Ja. 5. The punishment is five pounds for the first time ten for the second and twenty for the third time and these penalties are Ratifi'd Act 84 Par. 6 Ja. 6. THe using other Barrels than the Hamburg Measure is made point of Dittay because other Barrels were lookt on as false Measure but our Barrel now is ten gallons for Salmond and eight and an half for Herring THe Act here related to is Act 7 Par. 1 Ja. 1. Where this Act is Explain'd PVrprusion is the usurping and appropriating our Superiours Lands or High-wayes and Purpresture is much now in Desuetude The ordinary Remedy now being actions of Molestation or Declarators of Property but Purprâ—sion is not absolutely in Desuetude For by the 5 Act 16 Par Ja. 6. It is ordain'd that such as Till the Kings Parks or Commonties shall be lyable in Purprusion and punish'd according to the old â—aws the same being Try'd either by way of Molestation or before the Lords of Session and the old Punishment was an arbitrary Punishment and the loss of his Lands which he held of the King and the reason why that Act did appoint the Tryal to be by Molestation before the Lords was because of old it was only Try'd by an Assize before the Justices Vid. lib. 1. cap. 5. num 4. lib. 2. cap. 74. R. M. It is doubted whether Vassals of Regalities Building upon the Streets of Burghs of Regalitie may be punish'd for Purpresture or whether the Building a Foot or two furder than formerly even in Burghs Royal would infer that punishment From these words of the Act That nae Vassal nor Sub-vassal or other Tennent under the Baron has Power or Jurisdiction to hold a Court. It is fit to observe that this holds not only in Purprusion though that be the case mention'd in this Act but generally Vassals nor Sub-vassals cannot hold Courts except they be Infest cum curiis and even then they have only power to hold Courts for payment of their own Rents or such other things as necessarly follow the labouring of Land except the Vassal be a Baron in which case he has power to jâ—dge ryots and unlaw for Bloodwits as Sheriffs do This Act is not â—o be found in the black Impression There is an Act omitted by Skeen which is the last in the black Impression whereby the Parliament delegats their full Parliamentary power to some of their Number for hearing some Ambaciâ—itors and deciding some Causes licet delegatus non potest delegare and such Delegations of the Supream Power may be dangerous King JAMES the third Parliament 11. THough this Act appoints Barons and Lords who led their own Men or Vassals at that time to the Host to be lyable for the skaith they do in coming to the KINGS Host Yet this Act is now upon the parity of Reason extended to all Officers who are now come in place of these It may be alleadg'd from this Act that it is not lawful for such
Riots pursu'd before them King JAMES the fifth Parl. 5. AFter many Alterations observ'd by me in the Annot. on Act 65 Par. 3 Ja. 1. and Act 62 Par. 14 Ja. 2. at last the Session was establish'd in the way it now is by King James the fifth in this his fifth Parliament and is ordain'd to consist of fourteen Lords seven whereof were to be of the Clergy or Spiritual and seven Temporal with the President who was to be of the Clergy but since the abolition of Popery they are all Seculars or Laicks though sometimes Bishops were extraordinary Lords and though this Act of Parliament appoints the half to be Spiritual and the half Temporal with a President yet by the 93 Aâ—t 6 Par. Ja. 6. It is declar'd it shall be lawful to the King to present any able Person whether he be of the Spiritual or Temporal State VId. observ on Act 7 Par. 3 Ch. 2. THe present Lords are ordain'd to have all the priviledges that the Lords of Session for so they were call'd in the Reign of King James the second had formerly and therefore it is alleaged that since Appeals could not be received from them that they cannot be received from the Lords of Council and Session as was formerly observed Act 62 Par. 14 Ja. 2. THe Chancellor when present is to preceed and because he preceeds therefore he gives his Vote last and because it was controverted whether he was to be President in the Parliament therefore by the 1 Act 1 Par. Ch. 2. He is declar'd to be President in all Courts and he did preceed by vertue of this Act in Exchequer till he was discharg'd by His Majesty by a Letter in anno 1663. These words And sicklike other Lords as shall please the King's Grace to subjoyn to them of his Great Council who shall have Vote to the number of 3 or 4. are all the warrand that there is for nominating the extraordinary Lords of Session who cannot exceed 4. They are still named by a Letter from the King as the ordinary Lords are but they are not examined like them and these extraordinary Lords are marked in the Books of Sederunt after all the ordinary Lords THese words And the Lords to subscrive all Deliverances and none other is all the warrand that was for the Lords subscriving all the Bills for raising Summonds before the Criminal Court but I think these general words should be restricted secundum subjectam materiam as all general words in Law ought to be for we see that notwithstanding of these general words the warrands for raising Summonds before the Privy Council are subscrived only by Privy Counsellors and now the Justices are only in use to subscrive their own Bills though the other Lords of Session are not excluded from that power THis Act is the warrand that the Lords have for making Acts of Sederunt which were so called because the Lords sitting are marked Sederunt such and such men but these Acts are to reach no further than the ordering of Forms of Process or the regulating their own House and therefore this Act sayes For advising and making of their Rules and Institutes for the order of Justice This same power is almost allow'd by all Nations to their Supream Judicatures Vin. Comment ad § 9. Inst. lib. 1. tit 2. Christin Vol. 2. Decis 51. num 8. THis division of the Kingdom in order to the calling Causes is now in Desuetude for all Causes are now Enrolled according to the order of the returns of the Process vid. Act. 16. Sess. 3. Par. 2. Ch. 2. Artic. 1. NO Session sits now on Munday and so this Act is in Desuetude Suspensions are called on Tuesday and Wednesday and ordinary Actions upon Thursday Friday and Saturnday The Friday was allotted for the Causes of the King and Queen and the Actions of Ministers and Strangers but by the Regulations the Kings Causes may be call'd on any day the Party Defender being advertis'd 14. dayes before of the particular day on which it is to be called It has been doubted before this Act whether the Queens Causes should enjoy the priviledge of the Kings Causes And the priviledge is by this Act extended to her ita Augusti privilegia ad Augustam sunt extendenda l. 31. ss de Legibus NOw the Lords sit from 9. to 12. and they sit down sometimes before 9. as occasion requires NOta By this Act Parties were allow'd to plead their own cause and they needed not have Advocats except they pleased but no other Party not contain'd in the Summonds can have liberty to speak But the Lords can now hinder Parties to Plead or force them to have Advocats to shun confusion and nonsence It seems also that though an Action be to a mans behove he cannot be allow'd to speak except his name be in the Summonds THe order of Tabulating Summonds is now much alter'd for no Summonds are Tabulated except Actions of Declarators Improbations Contraventions and other Actions at the King 's Advocats instance upon the back of which Summonds he Writes Tabuletur erga diem Veneris proximè sequentem and except this be written upon it the Action cannot be debated and some think that if the Action be called without this a Decreet thereupon pronounced would be null WItnesses are now examin'd by one of the ordinary Lords in the afternoon as here and that Lord who sat last Week in the Outer-house does the next Week Examine Witnesses THe Quorum of the Lords by this Act is ten either ordinary or extraordinary for either make up the Quorum but now eight Lords with the President make a Quorum which alteration proceeds from the 44. Act 11. Par. Ja. 6. Nota 1. By this Act that advising of Processes cannot be recommended to any particular Lord. Nota 2. That by this Act publication of Witnesses is allow'd else how is it ordain'd here that publication of Witnesses should be before the hail Auditor and Advocats were allow'd to see the Depositions and to debate against them till the year 1666. at which time this was discharg'd upon pretext that Advocats did spend too much time in debating against the Depositions and that Witnesses Depositions were more to be credited when no man was to see them or know them than when the persons interested were to see them because it was probable they would take pains to please them But we find great mistakes by not letting Advocats see the Depositions since they might clear many things that seem inconsistent and which depend upon other matters of Fact and it 's rather presumeable that Witnesses knowing that what they say is not to be seen will take liberty to Depone too liberally the not publication also of the Depositions tends much to make Judge Arbitrary since the warrands whereon they proceed is not known and publication of Testimonies iâ— a kind of confronting Witnesses with the Parties
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
secured notwithstanding of the forefaulting of their Superiors yet therefore regulariter the Sub-vassals Right falls to the King by the forefaulture of his Superior or his own forefaulture and that not as Caduciary for then it would only fall to him with the burden of all Rights granted by the Vassal But it falls to the King qua superior so that he is not obliged to acknowledge any Rights except they be Confirmed by himself this was debated in the case of General DalÈel contra Lady Caldwall Nota The said 201 Act 14 Par. Ja. 6. appoints this Act to be delet out of the Records of Parliament and this has been design'd oft-times to prevent our taking abrogated Acts for Acts in force but yet they are still Printed and some think this necessary because men argue oft from abrogated Acts as from this Act in the said case of the Lady Caldwal ALL Monks with us were called Friers from the French word Frere which signifies a Brother The Religious Women were called Nunnes from the Latin word Nonna which signifies a sacred Virgin THe Lands holding of Friers or Nuns are by this Act declared to hold of the King and all the Lands of Monks and Nuns are by the 29 Act Par. 11 Ja. 6. annexed to the Crown quoad their Temporality and though thereafter many of these Benefices were erected in favours of Laick persons Yet by the 14 Act Par. 1 Ch. 1. The Superiority of all Lands belonging to Abbacies Priories and other Benefices belong to the King THis Act is Explain'd in the Act 36. and is drawn back to all Rights made even prior to this Act by the 65 Act 5 Par. Ja. 6. which is a singular Instance of drawing back Acts prior to the dates THese Acts are Explain'd in the Observations upon the third Parliament of Queen Mary King JAMES the sixth Parl. 3. THese Acts of this Parliament are Explain'd in my Criminal Treatise tit Heresie Nota That by the Act 45 Arch-bishops c. were to be punished being found negligent by the General Assembly of the Kirk the Bishops before the Year 1606. being but Titular Bishops and subject to the General Assembly and were to be deprived by them as is clear also by the 46 Act of this Parliament By the 46 Act it is also observable that all the Church-men were then only to give their Oath for acknowledging and recognoscing His Majesty and His Authority the Oath of Supremacy having come in only by the 1 Act Par. 18 Ja. 6. By this Act also non-residence is declared unlawful and is yet a cause of Deprivation except it be dispensed with the habilis modus whereof is by a Letter from the King BY the 72 Act Par. 9 Q. Mary the Minister was to have the Parson or Vicars Manse or so much thereof as should be sufficient for him and no Kirk mans Manse or Gleib could be feu'd yet an Heretor to whom a Vicars Gleib was feu'd a year before that Act was allow'd repetition Feb. 12. 1635. Nota. This Decision is otherwise related by mistake in the observ on the said Act. The Manse comes from the Latin Word Manere vid. Seldens History of Tithes pag. 52. By it we understand the Ministers Dwelling-house and if the Parson or Vicar had a Dwelling-house or Manse it belonged to the Minister but if there was none of these no other House could be design'd though it stood within the precincts of an Abbacy February 11 1631. Minister of Innerkeithing contra John Keir If there be no such Parson or Vicars Manse the Heretors must build one by the 31 Act of Parliament 1644. but thereafter by the 21 Act 3 Sess. Par. 1 Ch. 2. The value is declar'd to be from 500 merks to 1000 pounds so that the Minister may build a Manse to himself and he or his Executors will get repetition of what he bestows in building not exceeding 1000 pounds but if the Minister build only to the value of 500 merks he will not have action against the Parochioners for more though not exceeding 1000 pounds upon pretence that he might have built to that value January 8. 1670. Charters contra the Parochioners of Curry Where it was also found that the Reparation or Building of the Manse affects not singular Successors and is not debitum sundi By that Act likewise it was found that since Manses are ordained to be built by the Heretors that therefore Liferenters are not lyable which Decision may be very dangerous to Ministers since it may oftimes disappoint or at least for many Years suspend their Relief as for Instance if a Father should denude himself of his Estate in favours of his Son an Infant reserving only his own Liferent and it may be doubted whether such Liferenters per reservationem may not be lookt upon as Heretors in this as they are in some other cases and yet though Liferenters were not bound to build Manses yet they were found lyable to repair them these being but minores impensae which required to be presently done but neither Heretors nor Liferenters will be oblig'd to pay what is to be bestow'd upon Building or Repairing nor to stent themselves for that effect if they have materials of their own It has been also found that Manses are to be built and repaired where they were burnt or wasted casu fortuito A Gleib is that portion of Land that is to belong to the Minister Gleba terrae or a little piece Land and is by this Act to comprehend four Aikers of arable Land or 16 soums Grass where there is no arable Land Act 7 Par. 18 Ja. 6. These four Aikers are to be design'd out of Lands formerly belonging to the Parson or Vicar and if there be none such they are to be design'd out of Abbots Prioresses Bishop Friers or any other Kirk-land lying within the Bounds of the Paroch Act 161 Par. 13 Ja. 6. which order is exactly to be observed in the way set down by this Act as Dury observes July 13 1636. Halyburton contra Paterson yet I find that Bishops Lands were design'd before Abbots Lands because that Bishops have greater interest in the Cure and albeit it may seem that the designing the most ewest or nearest Lands to the Manse for a Gleib be in favours of the Minister and for his ease yet the Lordsfound a Designation null at the instance of the Heretor whose Lands were designed because there were other Lands nearer to the Manse for else any Heretors Lands within the Paroch might be designed for a Manse out of prejudice By the 116 Act 12 Par. Ja. 6. It is ordained that Ministers who are provided to Churchs where there was no Parson or Vicar formerly such as Cathedral Kirks or Abbacies shall have a sufficient Manse within the precinct of the Cathedral or Abbay except the Heretors of the precinct provide them to as good a Manse and as commodious These Designations are to be expede according to
Grant contra Grant Nor was for the same cause the breaking up the Tennents House and taking some Goods out of his Chest found a Contravention February 9. 1633. Lindsay contra Denniston But since it was not a Contravention because the Master was not concerned in the Injury as these Decisions bear I see not how the Tennents concourse could have altered the case quoad the Contravention though in both cases the Tennent may pursue damnage and interest All Lawyers are clear that there must be clear grounds of Injury alleadg'd and therefore feeding bestial upon controverted Lands is not sufficient December 20. 1592. But in mutual Contraventions upon that head The Lords allow'd both parties to turn their Libel in a Molestation and granted Commission to Examine Witnesses hinc inde January 24. 1663. Rouchlay contra Wood. Nor would the Lords find that pasturing upon waste High-land-ground should infer contravention except it had been done by the Masters Command or frequent herding to his knowledge July 8. 1664. Earl of Airly contra M cintosh But yet if Deeds of Violence be done even upon debateable Lands that will infer Contravention such as the hoching of Oxen. This animus injuriandi is so necessary that Deeds done by drunken-men are by many Lawyers thought not to infer a Contravention Christin Tit. 4. Art 8. and the adulterating the pursuers Wife will not infer a Contravention because this is not done animo injuriandi but animo libidinoso Christin Art 7. He likewise thinks that threatning real injuries is sufficient and threatning is a great breach of the Peace especially when it is by a man who uses minas prosequi but verbal injuries per se are not thought sufficient by Lawyers nor have we any Decision sustaining a Contravention on that head Since by this Act the King and the Party have different interests therefore Imprisonment or paying of a Fine to the King by prior Sentence will not exclude a pursuit of Contravention at the parties instance March 20. 1623. Futhie contra Carmichael and January penult 1622. Johnston contra Laird of Westnisbit And certainly that Decision related by Hope tit contravention Forrest contra Turnbul Where it was found that the Kings Advocat could not insist alone in a Contravention if the party injur'd discharged the Deed though after the intenting of the Cause is an illegal Decision for seing the King is injur'd crimine fractae pacis and that by this Act the King has right to the half of the penalty and had formerly right to all by the 5 Act Par. 1 Ja. 3. The party cannot Discharge the Kings part Contravention is a penal action even at the privat parties instance and therefore titulus coloratus will defend against it and thus a Contravention being libelled as infer'd from the casting of a Ditch whereby the pursuers Land was overflow'd The Lords found that a consent from the pursuers Father though he was but Liferenter did defend against that action January last 1633. L. Weyms contra L. Gairntilly Without prejudice to pursue an Action of Damnage and Interest to which the Lords turned this Libel without necessity of a new Process And this action is likewise elided for the same reason by subsequent Dissimulation and therefore a pursuit of Contravention founded upon cutting of Trees in the pursuers Wood was elided by the same pursuers granting Licence thereafter to the same Defenders to cut in the same Wood which posterior Licence the Lords found did infer a presumptive Remission January 11. 1633. Denniston contra Lindsay Nor is this Contravention infer'd by Injuries done upon provocation or self-defence but though provocation seems to be good against the provocker yet it seems not to be good against the King and it may be doubted whether the penalties of the Acts of Parliament may be sought by and attour the damnage and interest or if the damnage is to be a part of the penalty HOpe observes from the Narrative of this Act that as only Landed men can be Judges in Perambulations so Landed men ought only to be received Witnesses in Heretable Debates but this Observation holds not in our Practique which allows any habile Witnesses in perambulations and all other Heretable Debates BY this Act all Heretable Obligations or Writs of importance are to be subscriv'd and seal'd before two famous Witnesses if the parties can Write or by two famous Notars before four famous Witnesses if they cannot write Observ. 1 o. That Sealing is not necessary but Subscription is sufficient in parties and is not necessary in witnesses by this Act though it be requisit by the 5 Act 3 Par. Ch. 2. even in Witnesses also and though the Sealing be only remitted in Papers to be Registrated by the 4 Act 9 Par. Ja. 6. Yet it is not necessary in any Writ by our present Custom Observ. 2 o. That in our practice all Writs exceeding an hundred pounds are Interpreted to be Writs of importance and so to need Witnesses January ult 1623. But if any sum be to be annually pay'd that Writ whereby it is to be pay'd requires Witnesses though never so small because yearly Prestations may arise to a considerable sum July 4. 1632. and though sums above 100 pounds require Writ Yet Intromission with Victual or any thing else probable by witnesses as all other things consisting in facto are as also intromission with uncoyn'd Money or Silver in mass is probable by Witnesses though exceeding 100 pounds But promises nuda emissio verborum though for less sums than 100 pounds are only probable by Writ because By standers may mistake the position and force of Words January 19. 1672. Douchar con Brown Observ. 3 o. This Act is only to be extended to such things as require Writ ex sua natura and to which Writ uses to be adhibit for Merchant-bargains made in Mercats do not require Wâ—â—t and so are probable by Witnesses for men use not nor cannot adhibit Writ in such cases nor are Witnesses requisit in Discharges granted to Tennents by the Masters because of their Rusticity and the smalness of the sums Nor are Witnesses requisit in Contracts of Marriage upon which marriage has followed nam notorietas facti habetur pro testibus July 1. 1662. Breidie contra Breidie But it may be doubted whether this holds in Strangers such as are third parties and I think they are not oblig'd to pay the Tocher though it certainly holds in the Man and Wife themselves who Contract and though it hold not in third parties who are meer Strangers yet it should hold in the Father when he obligeth himself to pay the Tocher where there is a tripartite Contract subscriv'd by many parties they are in place of Witnesses to one another all parties having subscriv'd July 19. 1676. Forret contra Veitch And a Writ having the Substantials filled up with the Granters own hand is equivalent to its being Subscriv'd by Witnesses January 23. 1675. Vans contra Malloch Observ. 4
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.
the 5 Act Par. 18 Ja. 6. THis Act declaring the Provocker and Provocked in Duels to be punishable by Death is Explain'd Crim. pract tit Duels and since fighting Duels is only declared Death by this Act it appears that naked Provocation is not Capital but yet even the sending of Cartals may be arbitrarly punished by the Privy Council but Fighting is Capital though no killing follow and fighting by Rencounter may be punished as a Duel though there was no formal Cartal for by this Law all single Combats are declared punishable by Death vid. crim pract tit Duels This Act was renewed by a strict Act of Secret Council in anno 1674. THis Act is Explained in the Act 265. Par. 15 Ja. 6. BY this Act it is Declared that the negligence of the Kings Officers in Pursuing or Defending a Cause shall not prejudge the King and therefor competent and omitted is never received against the King though it be against private parties and by this Act it would appear that the King may propone a Nullity of a Decreet obtained against him even in foro before the Lords of Session by way of Exception or Suspension without a formal Reduction but yet Prescription runs against the King notwithstanding that it may be alleadged that by this Act he cannot be prejudged by the negligence of His Officers in not pursuing since Prescription is a general Remedy introduced for the final quiet both of King and People and as to Heretage it is introduced by an Act posteriour to this Act wherein there is no exception made in favours of the King but the Act introducing Prescription of Moveables is prior to this Act and so it may be the more doubted whether Prescription of Moveables runs against the King since by this posteriour Act it is Declared that the negligence of His Officers in not pursuing shall not prejudge him nor is there so great hazard to the Lieges in their Moveables as in their Heritage THe Transporting or In-bringing of forbidden or Un customed Goods that is to say Goods that should pay Custom without paying Custom is punishable not only by Forefaulture of the Goods but by Confiscation of the In-bringers whole Goods moveable albeit by the Civil Law ea res tantum in commissum cadit quam quis non est professus by which Law the naked Entry or sola possessio was sufficient to Defend against the Forefaulture imputandum est publicano qui non exegerit Perez tit C. de vect num 10. both by that Law and ours the Customers may recover the Goods un-entered even from singular Successors who have bought the same bona fide for a competent price and in that Law Error excus'd from Confiscation but in that case it exacted double Custom Perez ibid. I have not observed any mans Moveables Escheated upon this Act. THis Act fining such as will not Communicat once a Year when he is thereto desired by his Pastor is ill observed but not in Desuetude and therefore was renewed by Proclamation in January 1679. Observ. That the having Rancour against their Neighbour is Declar'd no relevant excuse and justly because it is a fault and so should be no Defence argumento hujus legis a Fanatick having prejudice at his Minister even though reasonable is no legal Defence for he should still hear Observ. 2. Though this Act say That no other excuse whatsoever shall Defend yet certainly inability to Travel madness c. will Defend and general words are still to be understood in subjecto capaci THis Act is Explain'd crim pract tit Heresie THis Act is Explained crim pract tit Beggars and Vagabonds THis Act is Explained crim pract tit Adultery THis Act is but a Temporary Commission THis Act against slaughter of Wild-fowl is renewed by an Act of Privy Council June 9. 1682. years whereby Masters of the Game are appointed for putting these Acts in Execution though by this Act the Sheriffs Stewarts and the Kings ordinary Magistrats have a particular Commission of Justiciary for this effect and it was questioned in the time how the Council could take away a Right establisht in them by the Parliament By this Act the killing of Mure Pouts is Discharg'd before the third of July and Partridge Pouts before the eight of September and by that Proclamation Mure Pouts are allow'd to be kill'd after the first of July and Heath Pouts after the first of August and Partridge and Quail after the first of September and whereas by the 109 Act Par. 7 Ja. 1. No Partridges Plovers Black-cocks c. are to be kill'd till August this Proclamation allows them to be killed from the first of July THis Act ordaining all English Cloath to be Seal'd by a Seal the Form whereof is here condescended on was thought to have been in Desuetude but now found not to be so in anno 1666. at which time it was found that the Customers might enter the Shops and Seal or Confiscat what was not so Seal'd This Sealing was formerly appointed by the 129 Act Par. 12 Ja. 6. THis Act appoints that no Letters of Horning shall be Direct against persons Dwelling on the other side of Dee upon shorter space than fifteen Dayes which Act was found only to be extended to Actions before the Privy Council but not to Charges before any other Court because the Narrative of this Act sayes That severals of the Lieges were drawn in inconveniencies by Charges before His Majesty and His Council though the Rubrick and Statutory part be General and though the reason whereupon this is inferred extends to all Charges as well as Charges before the Council SUch as Invade any of His Majesties Subjects within a Mile to the place of His Highness Residence or whoever resort thereto Armed with Jacks or Corslets under their Coats are to be Imprisoned for a Year and punishable by an arbitrary fine Observ. That the attrocity of the Crime is much hightned from the circumstance of place as well as time as is likewise clear by the 173 Act Par. 13 Ja. 6. It may be doubted whether this Act can be extended against such as Invade Strangers since the Act sayes only such as invade Subjects since the Invading of Strangers is more attrocious in it self than the Invading of Subjects the Crime being there aggredged by the breach of Hospitality It may be likewise doubted how long a time of Residence by the King makes the Invaders punishable and it would appear that if the Invasion be not within a mile of that which is known to be the place of the Kings ordinary Residence that then it must be proven that the Invader did reside there for the time BY this Act Sheriff-Courts should be kept in the middle of the Shire for the ease of the people but this is not observ'd OF old Pledges were taken in the Borders that is to say one man entered himself Prisoner for
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
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
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
in Fee and reserve the whole Liferent to himself or a person of quality may Marry one who Liferents the whole Paroch and so this Remedy becomes ineffectual because the Act mentions not Liferenters and in such cases Liferenters are found not to be comprehended November 14. 1679. Minister of Morum contra the Lady Beanstoun By this Act such as Kill Slay Hurt or Mutilat the away-takers or their associats in prosecution of their Goods are Indemnified Observ. That all who kill in such pursuits are not Indemnifi'd but such only whose Goods are taken or who are oblig'd to rise for else such as had privat Grudge might upon that Grudge follow and kill but yet it seems just that if men were desir'd though not oblig'd or if Gentle-men being in the House when Robbed should pursue and kill that they should also be indemnifi'd This Act is generally so well conceiv'd that if it were well prosecuted as that it alone might settle the Highlands THis Revocation seems to be very ill conceiv'd for it had forgot the Lands of the Principality which are still comprehended under all other Revocations and therefore the Parliament thought fit to add this to the Revocation and if this be valid there needs no Revocation under the Kings Hand but an Act of Parliament shall be sufficient without a Revocation It is likewise observable from this Act that the Parliament qualifies the Kings Revocation in sua far at His Majestie Revocks all Deeds done by His Father by Declaring that such only are Revocked as were made against the Laws standing in force before the Year 1637. For otherwise all Deeds done by the late King might have been challeng'd upon that Head of vis metus exprest in this Revocation but however Acts extorted vi majori either from King or Subject are null ipso jure by the Common Law without any special Revocation but Revocations are naturally only extended to Deeds done in Minority but not to Deeds extorted vi majore though this Revocation comprehends both WHen the Clergy submitted their Rights to the King both the Submission and Decreet Arbitral provides that the Bishops and others of the Clergie should enjoy the Fruits and Rents of their Benefices as they were Possessed by them the time of the Submission and therefore by this Act it is Ordain'd That any Valuations of â—einds whereof the Bishops and other Benefic'd Persons were in Possession either by Leading Drawing or Rental-bolls since the year 1637. should be null and yet this Priviledge is meerly personal in favours of Church-men for by a Missive Letter from King Charles the First the 9 of May 1634. It is Declar'd that this Favour shall not be extended to the Tacks-men of Bishops and other Church-men they being Laicks but that during these Tacks the Heretor may lead he finding Caution and accordingly a Valuation was sustain'd to James Hamilton of the Lands of Hetherwick against the Earl of Roxburgh the Bishops Tacks-man of the Tiends of these Lands though it was alleadg'd there that the Submission and Decreet Arbitral having no such quality but the Tiends whereof they were in possession being absolutely reserv'd no posterior Letter could have prejudg'd them and it was a great prejudice to them to have their Tiends valu'd during the Tacks for this could not but lessen the Tack-duty and the Grassoums In this Cause it was likewise doubted what way these Tiends should be valued during the Tack GOvernment belongs to the King and Property to the People Yet since the publick Interest must over-rule the privat all being still preferable to any one Therefore Government does so far Influence Property that all Lawyers are of opinion that the Prince may for a just Cause invert or take away Property res privatorum auferre jus alteri quaesitum tollere and thus we see that the King may make a Cittadale upon any mans Ground paying the just price c. And sometimes he may throw down the Houses of Suburbs when there is either actual War or fear of War in which Towns may be besieg'd so that He is the sole Judge of this justa causa by which Property may be inverted and amongst other just Causes one is the procuring of Peace amongst the Subjects for procuring whereof the Prince may remit both the Civil and Criminal Reparations due to Subjects that are wrong'd during the time of the War Gail lib. 2. observ 56 57. But with us general Indemnities are ordinarly granted in Parliaments wherein certainly all privat interests may be Discharg'd because every privat man is presum'd therein to be represented and this Act of Indemnity is one of the most full and formal that ever we had and in it all such are Indemnifi'd as acted by vertue of the publick pretended authority of these times and though an order be necessary to be produc'd in cases where Orders use to be given yet the benefit of this Indemnity was extended to such as were in Arms though they could prove no Orders since Souldiers use to get no written Orders except it were offered to be proven by their Oaths that they had no Order or that they converted the Goods pursu'd for to their own privat use February 15. 1666. Murask contra Gordon and that any promises made to restore such Goods did not bind after the Act of Indemnity though it was alleadg'd that the promise did Innovat the Debt from a military to an ordinary Debt because the Lords thought that that promise might have been given and emitted upon the Supposition that the Souldier thought himself lyable before the Indemnity and therefore the Lords found him not lyable notwithstanding of the promise except it could have been prov'n that he apply'd the Goods to his own use or that he wanted a warrant Sometimes also the King does by His Proclamation grant general Indemnities as He did in 1666 and 1679. to the Western Rebels but in this case it was controverted whether such as had Robbed privat mens Horses were lyable in Restitution notwithstanding of that Indemnity and it was urg'd that they were Because 1. What ever might be alleadg'd where the King had once acknowledg'd Rebellion to be a pretended Authority speâ—iem belli by exchanging of Prisoners and making of Truces with them c. Yet here there was not even those pretexts and so they were only to be considered as a Company of privat Robbers 2. Even this Act Indemnifies only such as acted by vertue of pretended authority Therefore since even the Parliament did not Indemnifie such privat Robbers much less should they be secur'd by Proclamations 3. Whatever an Act of Parliament might do because all persons injur'd were therein represented Yet those Proclamations were but general Remissions and no Remission could prejudge the Party injur'd of his Reparation and Assythment 4. This would incourage all Rogues to be Rebels that they might robb and thereafter be enriched by an Indemnity Whereas on the other hand it
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