Obligation to do that which is most conducible to these common ends to which we are oblieged yet in the particulars our acting bonafide makes us free Or Thirdly Because though Absolute Obligationslye upon the oblieged yet they relate to duties performable to God whereof he hath given no power nor command to man that there be some such Obligations that God hath authorized or commanded man to vindicate for him and not all such may be gathered from his own Judicial Law in which many such are exprest and many others omitted though these Obligations be to duties relating to man yet there is no correspondent Right or Power of Compulsion in man and so the Creditor is God and man is the third party to whose behoove the Obligation is imposed but who hath neither power of exaction for himself nor of vindication for God such are the Obligations of Beneficence generally and particularly of Charity to the poor assistance to these in hazard and relief of the oppressed for Natural Reason will teach us that though these do naturally obliege us yet they in whose favours they are cannot compel us for example we are bound is give alms to the poor yet none will affirm that the poor can extort it or take it by force It is true that by the positive Law of any Nation by their Consociation together there is in the very Nature of the association a duty of assistance for the common interest into which they are associat but that is not a Natural but a Voluntary Obligation flowing from their voluntar association or union Likewise all the people are bound to concur and assist legal executions and in some places to contribute by such a proportion to the poor but these are only positive Laws having the force and nature of Contracts Legal compulsion is also laid aside in matters of smallest moment and in some things of greater importance wherein a way of procedor is prescribed and as a penalty of none-observance of that order legal remedies are denyed when done any other way as naked pactions among the Romans were ineffectual because they did not interpose Stipulation And with us agreements requiring Write are ineffectual and may be resiled from unless Write be interposed and in most matters of importance Obligations with us are ineffectual unless proven by Oath of Party or Write Civil Obligations are these which have a civil effect and execution though perhaps they be not naturally oblieging as with us an Obligation in Write doth Civilly obliege and hath execution at the Instance of the Creditors Heir or Assignay though the Debt was payed to the Cedent or Defunct because the Debitor hath not been so cautious to keep a Discharge in Write but most part of Obligations are both Natural and Civil There are many such particular Obligations which will occur in their proper places 7. There is a third Distinction of Obligations in Principal and Accessory such are the Cautionary Obligations of Surety and Pledges which are accessory to all other Obligations 8. The fourth Distinction of Obligations is in these which are Pure Conditional and to a day Conditional Obligations are such as do depend upon a condition and so are but Obligations in hope till the condition be existent but Obligations to a day are such as are presently binding but the effect or execution thereof is suspended to a day betwixt which there is this main difference that in Conditional Obligations the Condition must necessarily be uncertain either as being in the power of mans will or an accidential event For if the Condition be a thing certainly to come though it may be conceived under the Terms of a Conditional Obligation yet it is indeed an Obligation to a day as if Titius be oblieged to pay Maevius ten Crowns if an Eclipse shall be such a day upon which day by the certain Rules of Astronomy it is known that it is to be though perhaps it was uncertain to both or either party yet it is not a conditional Obligation but the time of the Eclipse is the term thereof so likewise if the condition be impossible de facto or impossible de jure that is unlawful nam id possumus quod de jure possumus then though the Obligation be conceived in Terms Conditional yet because the Condition is not depending and in it self uncertain the Obligation is not truely Conditional but is void and elusory in the case of the legal impossibility of the Condition and if it be in the power of the Creditor or any third party so that it may be an occasion to move them to do wrong the Obligation is valide and pure and the Condition is void as not adjected nam conditio Illicita est quasi non adjecta Hence it appears that such Obligations as are without conditions are pure and such are simple which are not clogged with the running of a course of time the adjection whereof is always in favours of the Debitor as to the intervenient time and in this also in favours of the Creditor that he needs use no Interpellation or Requisition for performance sed dies interpallat pro homine and the day being past the Debitor is in mora but in simple obligations delay is only upon demand and whensoever it is required upon non-performance the Debitor is in mora Obligations ad diem incertum are in effect Conditioal nam dies incertus habetur pro conditione as a Sum payable at such an age which is frequently in provisions of Children if they die before that age the sum is not due to their Representatives even after they might have attained that age as was found January 17. 1667. Edgar contra Edgar February 22. 1677. Belshes of Toftes contra Belches A Conditional Obligation doth necessarily imply an uncertainty and dependence of the effect of the Obligation upon the existence of the condition for if the Condition fail the Obligation is void and ofttimes Obligations are conceived in conditional terms though in effect there be no uncertainty of the condition as to the beeing thereof though it may be uncertain as to the Contracters knowledge as in Obligations where the condition is made of something past or of something that cannot but come the coming whereof is the Term of Performance and not a Condition and it is an Obligation to a day and not conditional As on the contrair a Conditional Obligation may be when it is not yet conceived in Terms Conditional as when it is conceived to a day if it be uncertain whether by the course of Nature that day will ever come it is no Term but a Condition These uncertain Conditions are of two kinds voluntar which depends upon the free choice of some persons and casual which depends upon the casual event of that which cannot Naturally be foreknown Amongst voluntar Conditions these are not to be numbred which consist in the mutual Obligations of the Creditor which he is positively oblieged to perform and so
competent to a Cautioner who in a new Bond of Corroboration had ingaged for the Debt with the Principal and that against the Cautioners in the first Bond though he had no Assignation to the Clause of Relief granted to the first Cautioners Spots Cautioners Lubra contra david Vauns The same must hold in Con-tutors Co-curators and wherever more Debitors are lyable in solidum for the same Debt or deed TITLE IX Reparation where of Delinquences and Damnage thence arising 1. The Obligation of Reparation of Damnages by Delinquence a Natural Obligation 2. Delinquence infers the Obligation of Punishment and Reparation of the Injured 3. Damnage Described 4. Kinds of Delinquence 5. Concurrers in Delinquence how lyable 6. Special kinds of Delinquences by our Customes 7. Assythment 8. Extertion vi majori metus causa 9. Circumvention by Fraud dolo malo 10. The Edict de dolo malo 11. Circumvention rarely inferred by witnesses 12. Simulation 13. Collusion 14. The effect of Fraud as to the party Contracting 15. Deeds done in fraudem Creditorum contrair the Act of Parliament 1621. anent Bankrupts 16. The Nature of Spuilzie 17. The Title of Possession 18. Oath in litem in Spulzies 19. Spuilzie eleided by any colourable Title Warrand or bona sides 20. Spulzie eleided by voluntar Delivery 21. By lawful Poynding 22. Replyes against Poynding 23. Spuilzie eleided by Restitution within twenty four hours 24. Prescription of Spuilzies 25. Intrusion and Ejection described and distinguisbed 26. Ejection propper to the Natural Possessour 27. Exceptions against Ejections 28. Mollestation 29. Breach of Arrestment and Deforcement 30. Contravention AMONGST Obligations Obediential we have placed these which are by Delinquence because they arise without any Convention Consent or Contract either particularly or by vertue of any Positive Law and therefore they must needs have their Original from the Authority and Will of God and of our Obedience due thereto for though they do proceed from our Fact and from our Will whence that Fact is voluntarly committed yet it is not from our Contracting Will and therefore these Obligations do not receive their measure or extent by our will 1. That Obligations of Delinquence are introduced by the Law of Nature the Suffrage of all Men and all Nations will evince who do every where acknowledge the Reparation of Damnages and Punishment of Crimes and Injuries as having by Nature a clear Evidence and sharp Sense thereof and thereupon can without Reluctancy concur with the Magistrate in the Punishment of Citizens and of Enemies by the sword But it may be doubted how the Law of Nature which is perpetual and had place chiefly in Innocency can prescribe any thing in relation to Delinquency or Malifice which was not to be found in that condition This will be easily cleared if it be considered that though Man was made in the state of Innocency yet had he a natural Instability for which God did warn and arm him and though the Principal and direct Law of Nature did teach Man to love his Neighbour as himself yet he could not but by consequence know though he had stood in Innocency as do the Angels that any who acted against that Royal Law of Love by doing evil to his Neighbour and taking away from him that which is his ought to Repair him and to be lyable to Divine Justice which is that Certification which God put upon his Natural Law as he did more expresly upon the forbidden Fruit morte morieris 2. An Obligation of Delinquence is then that whereunto Injury or Malifice doth obliege as the meritorious cause thereof as the Will of God thereupon is the efficient cause and it is twofold either that which relateth to God or that which relateth to Man the former is the Obligation of Punishment Pain or Penalty for unto God there can properly no Reparation be made by the Creature whose duty and service is due to him so that to him the Creature is oblieged to underly the Punishment In reference to Man is the Obligation of Reparing his Damnage putting him in as good condition as he was in before the Injury and this only is Mans part for himself for the inflicting of Punishment is for God in so far as it is Authorized or allowed by him but it is not for or from Man of himself Revenge is mine and I will repay saith the Lord For as hath been said before an Obligation in the Debitor hath a correspondent power of exaction in the Creditor which is the personal Right So in Delinquence the power of exaction of Reparation of his Damnage is Mans for himself but the power of exacting Punishment is in God and as for him or 〈◊〉 it is 〈◊〉 to Man it is but a Ministerial Power and not Dispensible at 〈◊〉 pleasure and hath an Obligation whereby Man 〈◊〉 bound to God for doing his duty therein Though Positive Law and 〈◊〉 of 〈◊〉 and in some things the Positive Law of God it self may 〈◊〉 a 〈◊〉 and imploy it for the proper use of the Injured yet it is not a proper punishment that hath its force by Paction or Positive Law and nor by the Law of Nature The Obligation to Punishment arising from 〈◊〉 and Mans Power and duty to inflict the same is a publick Right which though naturally did concern every man yet it is now with Divine approbation for most part devolved upon Publick Authority which is said Rom. 13. 〈◊〉 3 4. To be a terrour to evil doers and not to bear the sword in vain for be 〈◊〉 the Minister of God a Revenger to execute wrath upon him that 〈◊〉 〈◊〉 by which it is clear that the Magistrate as he Executeth Revenge doth 〈◊〉 not of or for himself nor for or from the people as their proper Right or power of exaction but therein as he is the Minister of God he doth 〈◊〉 for and from God even though his Authority and Commission were not immediatly from God but from Man yet he stands in the place of these Men to God to Execute that Revenge which they themselves are naturally oblieged unto But how far Mans Natural Duties or the Magistrats in the Punishment of Crimes reacheth the Lines of the Law of Nature are become dark in many Points It is manifest and agreed by all that though in all Damnages done to man there are also Punishments which may be inflicted by God yet where the matter is chiefly Mans Interest and so Repairable to him none will think that it is a duty in all of these cases to inflict vengeance on such neither doth any own a Power and necessity to inflict Punishments for Mans Spiritual Delinquence standing in his Mind and Affection as for want of Love and Confidence Hope c. In somethings also the power of Punishment is no less evident even when there can be no Reparation to man as in that general Precept of equal Crimes and Punishments Life for Life Eye for Eye Tooth for Tooth c. But
Ferms or to other Services but those are fixed to and follow those Ferms and they are conveyed therewith such are the English villains but in Scotland there is no such thing 12. There was formerly a kind of Bondage called Man-rent whereby free persons became the men or Followers of these who were their Patrons and Defenders and these were rather in clientele than in Bondage but it is utterly abolished both by Act of Parliament 1457. cap. 78. and by Custome 13. From Servitude arise Manumission and the Right of Patronage Manumission is the dimission of Servants and the making of them Libertines whereby they become Free but with remaining thankfulness reverence and obsequiousness and some other Duties and Offices to their former Masters then become their Patrons and if in these they failed they forefaulted their new acquired Liberty and returned to their former condition of Servitude 14. In these therefore stood the Right of Patronage and from this condition of Libertines arose that distinction of men into these who were always free who were called ingenui and in these who were bound who were called servi and in these of a middle condition who having been Slaves became Free and so were neither fully free but had some duties lying upon them to their Patrons neither were fully bound as Servants 15. The Servants which now retain that name are judged free persons and have at most but hired their labour and work to their Masters for a time which is a Contract betwixt them of which afterward 16. The Customs of this Nation have little peculiar in relation to Liberty directly but the injuries done against the same especially constraint fall under the consideration of Delinquencies and are so punished The Romans had express Laws de libero homine exhibendo and de privatis carceribus inhibendis the English have their Action of false Imprisonment determining with much exactness in what cases Imprisonment is lawful and in what not and how remeidable It is also provided in the Judicial Law against stealers of men but amongst us as these Crimes are very rare so if unlawful Restraint or unjust Imprisonment should fall out it remains among Delinquencies to be punished according to the Circumstances and Attrocity and according to Equity and thence also a civil Action for damnage and interest ariseth TITLE III. Of Obligations 1. Personal Rights and Obligations described 2. Kinds of Obligations 3. Obediential Obligitions described 4. Divided 5. Enumerat 6. Obligations Natural and Civil 7. Obligations Principal and Accessory 8. Obligations pure conditional and to a day RIGHTS Personal or Obligations being in Nature and Time for the most part anterior to and inductive of Rights 〈◊〉 of Dominion and Property do therefore come under consideration next unto Liberty 1. The same Right as it is in the Creditor it is called a Personal Right but as it is in the Debitor it is called an Obligation Debt or Duty which is retained as the more proper name Inst. de Obligationibus in principio Obligation is a Legal Tye by which we may be necessitate or constrained to pay or perform something this Tye lyeth upon the Debitor and the power of making use of it in the Creditor is the personal Right it self which is a power given by the Law to exact from persons that which they are due 2. Obligations by the Romans are distinguished in four kinds in Obligations ex contractu vel quasi ex contractu maleficiovel quasi ex malificio which distinction insinuats no reason of the cause or rise of these distinct Obligations which is requisite in a good distinct division and therefore they may be more appositly divided according to the Principle or Original from whence they flow in Obligations Obediential and by Ingagement or Natural and Conventional or by the will of God and by the will of man 3. Obediential Obligations are these which are put upon men by the will of God not by their own wills and so are Natural as introduced by the Law Nature before any addition made thereto by Ingagement are 〈◊〉 which we are bound to perform solely by our obedience to God as Conventional Obligations are such as we are bound by and through our own will Ingagement or Consent 4. Obediential Obligations are either by the will of God immediatly or by the mediation of some fact of ours such are Obligations by Delinquence whereby we become bound to reparation and satisfaction to the party injured and are lyable in punishment to God which may be exacted by these who have his Warrand for that effect of these Obediential Obligations there be some which tye us to God alone whereby there is no right constitute in man to exact the same as his own due or any Warrand or Command given him by God to exact them on his behalf and some though they constitute not a right in man yet man is commanded and warranted to vindicate them as the Crimes of Witchcraft Blasphemy Beastiality and the like for which there is an express Command to inflict punishment though there be no injury done therein to man of which there could be any reparation for the Command Thou shalt not suffer a Witch to live takes place though the Witch have committed no Malifice against the Life or Goods of man But these Obligations being among the publick Rights belongs to the Magistrate on whom is devolved that Authority to vindicate for God as his Vicegerent We shall not here insist on them nor on these other Obligations whereby no right of execution is constitute in man for vindication quae solum Deum habent ultorem being only now about the private Rights of men such are the Love and Fear we owe to God and dependence on and confidence in him 5. We shall therefore insist only on the Obediential Obligations that are betwixt Husband and Wife Parents and Children Tutors and Pupils Curators and Minors and the Obligations of Restitution and Remuneration and the Obligations of Reparation of Delinquence and damnage and then we shall proceed to Conventional Obligations 〈◊〉 There is another distinction in the Law of Obligations viz. Natural and Civil Natural Obligations are these which have a tye by the Law of Nature and do raise a Right in the person to whom they relate but the Civil Law or Customs and Constitutions of men do not second them with legal remedies or executions but they remain only as bonds upon the good will and honesty of these who are thereby bound First There be many Natural Obligations which have no civil effect either because they obliege to inward duties of the mind which Law doth not consider as Cicero saith Philosophum spectant quae mente tenentur juridicum quae manu tenentur Or Secondly Because though they obliege to outward performances yet the manner and measure is left to the discretion and arbitriment of the oblieged as before hath been showen though that in matters of expediency or utility there be an
Pupils and Minors cannot conveniently be separated If there were no Positive Law the natural infirmity of Pupilage would not want its natural remedies provided by Him who is the Father of the fatherless and layeth his Obediential Obligations upon these whom by the Law Written in their hearts he hath bound to the performance of these Duties as is before shown There is a Common Obediential or Natural Obligation upon all Men of Love Mercy and relief of the distressed among whom Infants and Pupils who have no discretion and cannot at all Preserve or Govern themselves are the first It hath been also shown that there is a more special Obligation put upon those of one Blood one Family from one common Parent to help and support each other and that in order 2. The first and nearest degree is first and most oblieged hence ariseth that orderly and comely natural substitution of Tutors for the preservation of Pupils first the Fathers Tutory and lawful Administration whereof we have spoken already and these failing by death or incapacity the nearest degree of Agnats are in the place of Parents and are all joyntly bound to this natural Duty unless the Parents by their Parental power have appointed and ordained others whom they trust to undertake that work And lastly the common Obligation that lyeth upon people hath devolved upon the Magistrate as representing them the duty of being or appointing Tutors for Pupils hence doth arise the distinction of Tutors in Testamentar constitute by the Parent in his Testament legittime appointed by the Law which is of the nearest Agnats and dative which are ordained by the King 3. The Natural Obligations of these Tutors to their Pupils are first to preserve their persons and defend them against injuries and prejudices and therefore are they named Tutors quasi tuitores l. 1. § 1. ff de tutelis 2. To Aliment them out of the Pupils own Means according to the condition thereof and to Educate them for a station in the Common-wealth according to their quality and capacity 3. To mannage their Affairs with such diligence as provident men use in their own Affairs that nothing may be lost but every thing improven to the best advantage in all which they are not to exerce voluntary Acts of Dominion at their choise as disposing of what is secure but only necessar Acts for the preservation and recovery of what will or may perish and for improving the profits of it 4. They are bound to give an accompt and restore to the Pupil what is his own so soon as he attains to the Age of discretion 4. And on the other part the Pupil is oblieged to the Tutor by the obediential Bond of Remuneration or recompense of one good deed for an other to make up to the Tutors whatsoever is wanting to them through their faithful Administration This is all the substance of the Interests and Obligations of Tutors and Pupils which the positive Law doth no more but declare apply and ascertain by the form of entring that Office the security for performance of it the fixed time of indurance thereof which naturally is the Age of Discretion in some sooner in some later in some never But for certainties cause positive Law determines a particular year in which for the most part Discretion cometh That there are such Interests and Obligations even naturally the Light of Nature will so easily go along that it will rather need Consideration than Confirmation the grounds thereof being commonly acknowledged and accustomed by all Men who are led by Reason and it is so insinuate by the ordinar Term of Law whereby these Obligations are called quasi ex contractu as arising from no Contract betwixt the Tutor and the Infant or Pupil as not capable of Contracting and yet are not simply by the constitution of Law and therefore these Obligations not being by the will of Man must needs be Obediential Obligations by the will of God The Romans have in this matter keeped clearly and clossely by the Law of Nature and therefore our Customes have keeped as near by them and so have the Customes of other Nations So sayes Gudelinus de jure noviss l. 10. cap. 8. § ff that the Custome of France and Netherlands hath very little altered in this from the Roman Law we shall therefore interweave the Civil Law and our Customes that it may appear how far they do agree and differ and how they do quadrat to the Law of Nature following this order 1. What kind of Tutors they be and what order of the same 2. What the Tutors Duties are in their Entry Administration and Accompts 3. How Tutories end 4. The Pupils Obligation to them therefore And last of that Resemblance that Curatours and Minors have Tutors and Pupils 5. As to the first there be three kinds of Tutors by the Civil Law and our Custome befide that of the Father who is called for distinctions sake lawful Administratour of which formerly The first is Tutor Testamentar or nominate The second is the Tutor of Law And the third is the Tutor Dative all which follow in course in the same order 6. A Tutor Testamentar by the Civil Law behoved to be either named in the Testament or Codicills confirmed by Testament l. 3. ff de testamentaria tutela and could only be given to such as were in patria potestate § 3. Inst. de tutelis But by our Custome a Father may nominate Tutors to his Children in any writ he pleases but it is of a Testamentary nature always ambulatory and mutable during his Life a Grand-father cannot name Tutors to his Oyes because his Son being Emancipat by Marriage they are not in his Paternal Power Neither can a Mother or Grand-mother who have also no such power but any person that gives or dispones any thing to a Pupil may in that Disposition name Tutors who are not properly such but only have the trust and charge of that thing disponed and as to it exclude all other Tutors which taketh place because that nomination is a quality and condition in that Donation November 17. 1627. Fleming contra Brown January 31. 1665. Kirktouns contra Laird of Hunthill 7. A Tutor Testamentar requires no preparatory solemnity to capacitate him to Act but the very nomination it self is sufficient and if it be in a Testament it is valide though the Testament be never confirmed or be rejected by the Executors and so there needs no making of Faith or finding Caution because it is presumed the Father that did name him did sufficiently know his faithfulness and fitness and the Confirmation of a Testament bearing that a Tutor nominate accepted and made faith was not found to instruct his acceptance with out the principal Act subscribed by him were produced or Acts of Administration proven though it was thirty seven years since the confirmation January 31. 1665. Rutherfords contra Laird of Hunthil Neither was a Tutory found instructed by a Discharge as
intestat The ancient way of testing amongst the Romans was either in peace and solemne which was done in presence of the People being convocat callatis comitiis or otherways by a simulat Sale per aes libram wherein the Testator in presence of five Witnesses Romans did hold a Ballance and weighed Money therein and under that form as it were sold his Inheritance for the Money and asked Witnesses Or otherwayes Testaments were made in precinctu when they were standing in Battaile before the Fight without other Solemnity than three or four Witnesses This was the ancient form of testing The matter and power of testing was very absolute according to Equity concerning which this was the Law of the twelve Tables uti quisque rei suae legasset ita jus esto But the after-course of the Civil Law changed both this ancient manner and power of testing and redacted Testaments into three kindes Solemne Nuncupative and Military 3. Solemne Testaments were so called because they required the most Solemnities as First That the Testaments were in writ the Name of the Heir at least being written by the Testator or one of the Witnesses Secondly There behoved to be seven Witnesses specially required all present and subscribing by themselves or another and sealing the Testament at the foot thereof none of which might be Women Pupills Servants Prodigalls or furious Persons neither the Heir himself or any of his Domesticks each Subscription bearing I Titus c. being called and required to be a Witnesse to this Testament which is contained in this Schedule have subscribed it with my hand and sealed it with such a Seal Thirdly The Testator also behoved to subscribe thus I Mevius c. declare this Schedule to be my Testament and I have tested as is contained therein or by another if he could not write who stood as the eighth Witnesse Fourthly The Testament behoved to be made by one continued Act without interruption of any extraneous act least by extraneous acts the mind might be diverted or inconsiderat in so solemne an Act. So the Testament was closed up and sealed And if the Testator opened the Testament it was presumed he changed his mind But after his Death the Witnesses were called together to acknowledge their Seals and Subscriptions at the opening thereof Or otherwayes it was opened by the authority of a Judge before other honest Witnesses And if any of the Witnesses acknowledged not their Subscriptions the Testament was held suspect 4. A Nuncupative Testament is that which was by Word only before seven Witnesses qualified as aforesaid Yet two Witnesses were sufficient in a Father's Testement amongst his Children and a Woman might be Witness therein Or in a Testament for pious Uses five Witnesses did suffice where there was penurie of Witnesses 5. A Military Testament was that which was made by the Souldiers in Warre wherein they had these Priviledges First when they were in procinctu ready to joyn Battaile any declaration of their mind by word or writ though it were written but in the sand was sufficient It was also valid if made during the Expedition with such Solemnities as can be had for the time Yet so that if the Testator lived a year in which he might make it more Solemn it became void Military Testaments have this further Priviledge that the Testator may institute for a time and may institute in a part and so die partly testat and partly intestate which is against a Principle of their common Law 6. The ancient absolute power of testing was by the subsequent course of Law cleared and restrained not only by the declaratory Laws finding testing and otheracts invalide as done by furious Persons out of their lucid intervalls and by Idiots and by Pupills who have not the use of reason or those made by Fraud or Error in the Substantialls or by extortion but more particularly it is limited in these particulars 7. First Filii familiâs Persons in the power and family of their Fathers could not test upon their Goods whether profectitious from their Father or adventitious aliunaè even though their Father consented but only on their bona castrensia acquired in Warre or quasi casirensia as in militia togata 8. Secondly Captives with publict enemies or Persons given in pledge to them or Persons condemned to capital Punishment whose goods are con fiscat or those condemned of Infamy could not test 9. Thirdly by Testament some Persons can neither be institute nor substitute Heirs such as the spurious Children of the Defunct to put a restraint upon such unlawful Procreations But Children begotten on Concubins while those were tollerat could not be institute or substitute these being lawful Children in more then a sixth part of the heretage Only there could be left to spurious Children Legacies for their necessary Aliment Neither could Persons guilty or condemned of Treason be institute or substitute Heirs 10. Fourthly power of Testing is restrained in those who have lawful Children who were necessitat either to institute their Children their Heirs or expresly to exheredat or disheirish them expressing the Cause of so doing For if these institute others and past over their Children in silence the Testament was void And if they unjustly exheredated them they had Quaerelam inofficiosi testamenti to annul the Testament as done against the natural Dutie of Fathers without just Cause 11. Fiftly the power of Testing was restrained in favour of lawful Children that the Testator could not by Legacy or fidei commissum abate from the Children their Portions natural due to them by the Law of Nature obliging Parents to entertain their Children which the Law defyned to be the fourth part of the Inheritance Debts deduced when there were fewer than four Children a third part when four and a half when more If there be no Children this Legittima is due to the Parents Grand Father and Grand Mother but not to Brethren unlesse a base Person be institute Which Portion natural the Testator could not prohibite the Children to withdraw from the Heretage 12. Sixthly the Falcidian Law did restrain Legacies that they might not exceed three fourth parts of the Inheritance so that there behoved to remaine one fourth part to the Heir which therefore was called portio Falcidia And therefore if the Legacies did exceed three Quarters of the free Inheritance Debts being deduced they were abated proportionally that the Falcidia might remain to the Heir 13. This Portio Falcidia differs from the natural Portion in this that the Testator could not prohibite the Heir to take the benefit of the Portion natural but he could effectually prohibite the Heir to take his Falcidia The Reason whereof was because the Falcidia was introduced to the effect that the Wills of the Defuncts might be execute which could not be if the Legacies left nothing to the Heir considerable but trouble as oft-times it falls out So that this being a Remedy in favour of the Testator to make his Will
death Yea a Wife was found to have right to the expenses of Child-bed of a posthumus Child born after the next Term against the eldest Son though he was not Heir but having an universal Disposition of his Fathers means which was very considerable which Disposition was granted after the Posthumus Childs Conception November 10. 1671. Thomas Hastie and Barbara Ker his Mother contra William Hastie A Wife has also her Mournings if her quality require it out of her Husbands Executry November 12. 1664. Nicolas Murray Lady Craigaffie contra Cornelius Neilson July 7. 1675. Agnes Wilkie contra Christian Morison And likewise if the Wife predecease her Executours have the half or third of her Husbands Moveables the best of every kind being set aside as Heirship Moveables though there could be no Heir for the time the Husband being alive December 8. 1668. Agnes Guidlet contra George Nairn TITLE V. Obligations between Parents and Children 1. Obligations betwixt Parents and Children are Divine by the Law of Nature 2. The Power of Parents over their Children 3. In Infancy 4. In Minority 5. In Majority 6. Oeconomical Government 7. Provision of Children 8. Obligations of Children to their Parents 9. Aliment due to Parents 10. Obligations mutual of Children 11. Patria potestas amongst the Romans 12. Amongst other Nations especially as lawful Administrations 13. Forisfamiliation and Emancipation THAT there be Natural Obligations betwixt Parents and Children not proceeding from the consent of either Party or from the Constitution of any humane Law but from the obedience Man oweth to his Maker who hath Written this Law in the Hearts of Parents and Children as to their Interests and Duties with Capital Letters Is evident by the common consent of all the Nations of the World how Barbarous soever though evil custome hath put out the Eyes of Natural Light in other things yet in this the Rays of the Sun of Righteousness are so direct that their illumination cannot be extinguished These Obligations are so firm that in most things they cannot be taken off nor discharged by Men though Children would discharge their Parents of Natural Affection Education Provision c. Or Parents would free their Children of Reverence Obsequiousness and of Intertainment of Parents not able to Intertain themselves yet would these Obligations still be binding upon either These Obligations are placed in the Common Nature that Man hath with other Animals and so is given as an evident Instance of the Law of Nature l. 2. ff de justitia jure We shall then consider what these are And first What Interest the Parents have in the Persons of their Children Secondly In what they are Naturally bound-to to their Children Thirdly What interest the Children have in the Goods of Parents Fourthly What they Naturally do owe to their Parents Fifthly what they are bound in to each other 2. For the first ere we can distinctly know the power Parents have over their Children we must distinguish the Capacity and Ages of the Children whereof there are three Infancy or Pupilarity Minority or less Age and Majority or full Age So doth Aristotle distinguish Polit. 1. cap. ult Ethic. l. 4. cap. 3. l. 5. cap. 10. And after him Grotius de jure belli pacis l. 2. cap. 5. 3. Infancy is when the Children are without Discretion and then are wholly in the power of their Parents who not only may but must carry them whither and keep them where they will and must also breed and order them according to their capacities means and qualities And this is rather an Act of Dominion in the Parents the Children being then capable of no Obligation and therefore it cannot be received by them from the Parents as an Obligation as it may thereafter be done during the Childrens Minority wherein there is a Natural Levity for want of fixedness and experience while the Light of Reason is but drawing towards its Meridian clearness 4. It will not much be debated but the direction of Children in their Minority is naturally stated in their Parents But the greatest Question will remain of their full Age when the Children become able to govern themselves and their own Affairs And as to that it is the opinion of some that it standeth alone inpietate reverentia Steph. oeco.juris civilis cap. 7. and Vinnius partitionum l. 1. cap. 7. in principio sheweth that the Custome of Holland dissolveth the power of Fathers by the Childrens age of 25. 5. Whatsoever may arise from the Custome of Nations whereby the power of Parents over their Children in their full Age is much diminished yet by the Original and pure Law of Nature not only the Tutory and Protection of Childrens Infancy with the Cure and direction of their Minority is in their Parents But there is also an oeconomick Authority in the Father of the Family over all his Children and Descendants remaining in his Family whom he hath not Elocat by Marriage which is also a Natural Bond unto other Families whereby the Females do naturally change their Families and become under the power of another Family 6. This is the only Natural Authority and Government which had in it self all Authority Publick Private Civil and Criminal till by Humane Constitution and Divine Approbation most of that power is now devolved into Magistracy This Power was not only before Magistracy but even thereafter remained with subordination thereto in most Nations as Caesar de bello Gallico lib. 2. Writes that among the Gauls and Belgae Parents had the power of Life and Death The like power had the Romans anciently l. in suis haredibus 11. ff de liberis posthumis l. libertati 10. Cod. de patria potestate Aristotle testifieth the like of the Persians lib. 8. Ethic. cap. 12. And by the Judicial Law Deut. 21. vers 18. The rebellious son who obejed not the voice of his Father and Mother was to be brought forth before the Elders of that place and stoned to death without other proof than the parents testimony So that the sentence was the Parents though the execution was to be publick Such Authority was that of the Patriarchs Abraham Isaac and Jacob who with Divine Approbation made War Peace and Confederacys which are the publick and proper Rights of Magistracy and Governed their own Families without any Authority derived from any other And though Jacobs Family arose to that greatness that in it were many Families yet he remained the Father and Prince of them all so that the several subordinat Families had their subordinat Authority over their Wives and Children and so their Children were bound in Obedience to them but with the exception of their Superior Parents to whom the first Obedience was due This Native Authority reacheth all Children whether procreat of lawful Marriage or not so that they be truely known to be Children because the same Foundation and common Principles and Duties are in both though they have not the same Interest
of the Statute being to Satisfie Creditors by a Judicial alienation of the Debitors Lands ex paritate rationis it was extended against the Debitors appearand Heir who being Charged to Enter Heir did not Enter and therefore Lands were Adjudged from him to which he might have Entered either for his Predecessors debt or his own whereupon the Superiour is descerned to receive the Creditor Adjudger whether for sums of Money or for Implement of Dispositions and Obliegements to Infeft But the Custom allowed not a years Rent to Superiours for receiving Adjudgers till the years Rent was also extended to Adjudications by Act of Parliament Decem. 3. 1669. The Lords of Session have always taken latitude in the modification of the years Rent especially if the sum Appryzed or Adjudged for be small and the Lands he great and they have allowed the Appryzer or Adjudger his option during the legal to take Infeftment or not and yet not to be excluded from the Rents of the Lands till he be satisfied Decem. 3. 1672. Mr. Hendry Hay contra Laird of Farlstoun Vide Tit. 13. § 29. But the Appryzer runs that hazard that if the Debitor die before he be satisfied if the Land be holden Ward it will fall in Ward and relief by the Debitors death and in Non-entry for there is no reason that the Casualities of the Superiority should neither fall by the Appryzer nor by the Debitor There is not the like reason that the Liferent-escheat of the Debitor should exclude the Appryzer if it fell after the Appryzing and Charge for the Liferent-escheat falls to the Superiour with all the burdens which affected it by the Vassal even with the burden of his Tacks and therefore Appryzing with a Charge way be as effectual as these July 24. 1632. James Rule con Laird of Billie The Superiour can have only one years Rent from all the Appryzers or Adjudgers But now since Appryzers and Adjudgers within year and day come in pari passu where one needs only to be Infeft or to Charge there is less reason to give an easie modification of the years Rent to the first Appryzer or Adjudger insisting for Infeftment then before because one Infeftment serves for all and he who advanceth the same gets relief of the rest before they have access to the Rents 33. The prime Casulity of Fees is Ward which is not competent to all Superiours Ward is only competent in Fees holden in Military Service which have their Denomination from this Casuality being therefore called Ward-holdings and that not by the Tenor of the Investiture which seldom mentioneth Ward but by the Nature of it for when the Fee is holdeu for Military Service or as the English better express by Knight Service extending not only to following in War but to Council and Assistance in Peace then when the Vassal is unfit for such Service the Fee is open and remaineth in the hands of the Superiour or his Donatar and though this capacity might be in some sooner yet it is fixed in men to their majority at twenty one years compleat and in Women till they become fourteen years compleat for then they are capable of Husbands who may do the Service required in the Fee Decem. 20. 1609. and Jan. 27. 1610. Lady Kilbirnie contra the Heirs of Fairlie What Fees are holden Ward we have cleared in the former Title It now remains that we hold forth the effect of this Casuality 24. Ward reacheth the Custody of the Person and of his Lands holden Ward it hath its denomination rather from the former for Ward is as much as Guard or Custody The Superiour or his Donatar is by the Nature of this Right as a Tutor to the Vassals Heir Craig observeth that he is preserable to all other Tutors except only the Father of the Heir whose Fee descends by the Mother or some other person and that he is oblieged as other Tutors to pursue the rights of the heir but the course of time having turned this Right from its ancient Institution so that the Superiour hath less enjoyment of Service but more of Profite of the Fee there is the less regard to the Pupils Education with or by the Superiour to the effect he might be fitted for his Service and therefore other Tutors not only for the administration of the Pupilsmeans but even for the Custody and Education of his Person will be preferred though of old the Donatar of the Ward was preferred to the Tutor in Custody of the Pupils Person Sinclar June 15. 1543. Laird Auchnames contra Laird of Elphinstoun Ledingtoun March 16. 1565. and July 12. 1566. Weir contra Lochart Yet later Decisions have favoured Tutors more and preferred them Nicol. ubi pupuli educari Mr. James Chalmers contra Elizabeth Howstoun Lady Gadgirth Neither have I ever observed that Superiours or their Donatars were made lyable as Tutors for Administration of their Pupils Affairs 35. The main effect of Ward then is that thereby the Superiour or his Donatar have during that time the full fruits and profites of the Fee and may remove Tennents and do all other deeds that the Proprietar might have done and was accustomed to do as to continue the profites of a Wood if there be constant cutting as being divided in so many Hags that the first is ready by the last be cut Or going Heughs as they were accustomed by the Vassal but he cannor cut more then the accustomed yearly Hags of Wood or put in more Coalziers then the Vassal had at his death and ordinarly before and he may remove and in put Tennents and that without any preceding declarator or favourable account esteeming the retour Mail for the Rent as in Non-entry but he may immediatly pursue actions for Mails and Duties removing c. unless the Ward be Taxed and then the Superiour can have no more then the Duties to which it is Taxed But for it he hath not only the Vassal and all Intromettors with the Fruits personally But he may also Poynd the Ground for the Taxed Duty as Craig affirmeth in this Title 36. Yet the reach of the Ward by the Nature of the Fee cannot extend to alienation or consumption of the Substance of the Fee or any part or pertinent thereof and this is cleared by the Statute Parliament 1491. cap. 25. Whereby Donatars must find Caution not to destroy the Biggings Woods Stanks Parks Meadows or Dovecoats but to keep them in such kind as they get them Ward is also restrained by the Statutes confirming Feues of which formerly and these stand valid against the Superiour during the Ward so do also all Infeftments holden of him either by Resignation or Confirmation but not Infeftments to be holden of his Vassal unless Confirmed by him for albeit Confirmations by the King which pass of course do not take away the Casualities of Ward c. of the Kings Vassals which affect the Fee of the Sub-vassals yet the Confirmation of other Superiours of Sub-vassals
for he who is not invested cannot be divested or if by his Infeftment he hath no valid right 7. Craig discusseth this question also in that place Whether consent of one who is infeft and thereby hath right will validat the Resignation of another who is not infeft and hath no right Which he determineth in the affirmative with good reason for though the consent alone would not be sufficient yet seing the form of the resignation is done though in the name of him who hath no right yet by consent of him who hath right here is both the substance and solemnity of the act and it is alike as if the Resignation had been by the consenter which I doubt not will hold though the consent be but adhibit in the beginning of the Disposition or Contract And though the consenter for all right he hath doth not dispone as is ordinary for further security yea if the consent be not repeated in the Procuratory of resignation or mentioned in the Instrument of Resignation for being exprest generally in the entry of the Disposition or Contract it reacheth to every Article thereof and all done conform thereto Consent hath the same effect in the constitution of Fees and so the consent to an Annualrent by a party having right and infeft was found to validate the Annualrent though the Disponer was not infeft and so did exclude a Tack set by that consenter afterward December 15. 1630. Jean Stirling contra Yet if more persons should dispone for their several rights without consenting one to another if any of them be omitted out of the Procuratory or Instrument of Resignation in whom truly the right standeth Nonthing will be validly done though that party be also in the Disposition And this is the reason why when many persons dispone or resign they do it all with one mutual consent for thereby each of their rights doth contribute to the deed of the rest though some of them were omitted to be repeated in the Procuratory Instrument of Resgination or Infeftment following thereupon the deed would be valid But it is safest to repeat their consent in the Resignation and Infeftment 8. Infeftments are also extinct when the Superior adjudgeth or appriseth from his Vassal for thereby it was found that the Property was consolidat with the Superiority Spots Apprising Stevinson contra Laird of Craigmillar Or if the Superiour succeed as heir to the Vassal in which case though the Superiour upon supplication obtained Precepts out of the Chancelary to infeft him in the Fee it was thought as Superior he might have infeft himself as Vassal But he would not have been so secure by a Declarator of Consolidation upon the Superiours special Retour as Heir to his Vassal in the Lands because that way would make a defect in the security of Land-rights by the Negisters in which Decreets of Consolidation are not required to be recorded whereas the Superiors Seasine either on the Kings Precept or his own behoved to be registrat and if the Superiour acquire the property by Apprifing or Adjudication the allowance thereof must also be registrate The The like effect will follow if the Vassal become Heir or singular Successor to the Superiour whereby being infeft in the Superiority he may as Vassal resign to himself as Superiour ad remanentiam 9. It is more disputable how and under what consideration Fees are extinct otherwayes then by consent Some hold that they are extinct by the attrocious delinquency of the Vassal against the Superior as the penalty or punishment thereof and others conceive that acknowledgement and fidelity being necessarly involved in all Fees as is shown before though it be not exprest So this is implyed as a legal resolutive or irritant Clause that if the Vassal failie in his duty his Fee becomes void And others hold that Fees being of their own nature gratuitous even though there be a cause onerous yet they retain the nature of a Donation and therefore as all Donations are revocable propter ingratitudinem So are these which soever of these be the ground the consequences and effects are much to the same purpose But I incline to the middle opinion for unless it were evident by Law that the penalty of that delinquence were such and so applyed it would hardly be consistent upon that ground seing otherwayes as we have shown before of delinquences the punishment is publick and would belong to the Magistrate And therefore for several delinquencies forfaulture of Fee is introduced without benefite to the Superiour who as a private party can have no more but a reparation equivalent to the damnage sustained by him and so the alienation of the Fee without his consent or incroaching upon the border of his property would not infer for its reparation the return of the Fee how great soever And for the last though Fees of their nature be gratuitous yet they are oft-times for an equivalent price and so the less ingratitude can be alledged yea though it be true Si ingratum dixeris omnia dixeris yet fidelity and trust is a much stronger bond then gratitude and the breach thereof hath the most powerful consequence betraying of trust being most hurtful and hateful to mankinde and therefore seing fidelity is necessarly and properly in all Fees and is essential thereto and inseparable therefrom it looketh likest the surest ground from whence the eviction hereof may flow And if it be truly gratuitous it is an aggravating circumstance making the deed more odious But whatsoever it be it is agreed by all that the deed must be of knowledge moment and attrocity though there be many such heaped up by the Feudists yet many of them have no place with us where both such deeds are rare and therefore the decisions thereupon are few and certainly our Fees being ordinarly onerous are not evacuated but by such as are either named and known in Law or which are very attrocious There be three such wayes of extinction which have peculiar names in Law Recognition Disclamation and Purpresture Of which therefore in the next place Recognition is the Superiours returning to own the Fee and therefore may be extended to all the wayes by which it returneth through the Vassals infidelity as is hereafter exprest But the least culpable and yet most ordinary way of incurring Recognition is by the Vassals disponing irredeemably or under reversion his Fees holden Ward for by this he renders himself incapable to serve his Superiour and in a manner renunces and disclaims him This kind of Alienation makes recognition of Ward-lands but Fees feu or blensh do not recognosce by such Alienations but by the attrocious infidelity of the Vassal 10. The nearest cause of Recognition is the Vassals alienation of the Fee without consent of the Superiour which is a legal clause irritant implyed in the nature of proper Fees or Ward-holdings though it be not exprest that though the Vassal alienat the Fee it shall return to the
Customs rule ordinarly according to the Feudal-books The doubt remaineth which may be cleared thus First Though in some cases alienation be extended to Location yet it is not so by the common feudal Customs Secondly If the Subfeu-dation be a real Feu-ferm whereby the Feu-duty is considerable and competent to intertain the Vassal such Sub-feudation is thereby accounted only Lacation Nor doth it infer recognition being in effect no more then a perpetual Location whereby the Antinomy in the Feudal Law is sufficiently reconciled that such Sub-feudations are not alienations But if the Sub-feudation be Ward Blensh or in Mortification or though it be under the name of Emphyteosis yet for an elusory or an inconsiderable and unproportionable Feu-duty which by no estimation can be correspodent to the profite of the Fee but within the half of the true worth in these cases the Sub-feudation is alienation inferreth recognition 14. As to our own Customs in this point they do agree to the common Feudal Customs as to Subaltern Infeftments Blensh Ward or in mortification or Elusory or unprofitable Feus But as to Feues by which the major part of the profite of the Ward or Fee is not taken away though such cases have not occurred to be contraverted they seem not to infer recognition for if the major part be not alienate Subaltern Infeudations though Blensh or in Mortification infer not recognition when these rights are disjunctim of parts of the Fee There appears no reason that the Subfeudation of the whole with a Feu-duty equivalent to the half of the true Rent whereby in effect the half is not alienate seing the dominium directum of the whole and the profite of the half is retained should infer recognition especially now when generally Fees are granted for Causes Onerous 15. And by the Statute allowing Feues Par. 1457. cap. 72. It is provided that the Feu be set to a competent avail which by the said Statute is cleared to be without diminution of the Rental and which is commonly interpret the retoure duty because it was the publick valuation and rate at that time And by the said statute such Feues are confirmed and declared not to be prejudged by the Ward without mention of the hazard of recognition as not being consequent upon such Feues But this Statute being abrogate as to the Leiges Par. 18. Ja. 6. cap. 12. All Sub-feues of Ward-lands holden of Subjects without the Superiours consent are declared null and void But there is no mention of recognition to be incurred thereby And Feues are only prohibited as being in prejudice of the Over-lords who are not prejudged if the major part be not alienate seing all Subaltern Infeftments not exceeding the half are allowed by Law And albeit the Narrative of the Act respect Feues preceeding it yet the Statutory part is only as to Feues granted thereafter And the like prohibition is appointed for the King and Princes Vassals Par. 1633. cap. 16. The effect of this Act as to the Vassals of the King and Prince was suspended till the next meeting of Parliament and the Vassals exempted therefrom in the interim Par. 1640. cap. 36. And the said Act was wholly repealed Par. 1641. cap. 58. And so remained until all these Parliaments were Rescinded seing the private rights of parties acquired thereby by the general Act Rescissory Par. 1661. cap. 15. But it hath been found that alienations during these Acts now rescinded and during the usurpation when Wards were discharged did infer recognition seing the Vassal did not seek Confirmation after the Kings return December 15. 1669. Maitland of Pittrichy contra Gordoun of Gight The like was found in the recognition at the instance of Sir George Kinard contra the Vassals of the Lord Gray The like though the base Infeftment inferring recognitien was in Anno 1643. when there was a Statute then standing allowing such Infeftments seing after rescinding that Statute no application was made to the King for Confirmation January 7. 1676. Cockburn of Riselaw conira Cockburn of Chouslie But recognition was excluded where the Vassal required the Superiour to confirm the subaltern right debito tempore or did purge the same by procuring resignations ad remanentiam to himself from the Sub-vassals February 12. 1674. Viscount of Kilsyth contra Hamiltoun of Bardowie But recognition was not found against a Pupil upon his Tutors taking Infeftment for him during the Usurpation July 15. 1669. Jack contra Jack Whereby it is clear that Feues have no effect against the Superiour as to the Ward Non-entry more then Tacks 16. Whether the alienation be by Infeftment holden from or of the Vassal there is no recognition with us except in Ward-holdings yea if the holding be dubious and soa probable ground of error of the Vassal as being a payment of Money in the Reddendo with Service used and wont which though truly Ward yet because the payment of Money may render it dubious Craig holdeth in the said Dieg. l. 3. that it would not infer recognition yet this will not give ground to think that alienation of Lands Taxt-ward would excuse from recognition because Ward is more clear and expressed nominatim in that case in it self for the Casualities thereof being Taxed as the Marriage and ward-Ward-duties Which 〈◊〉 is but a Liquidation or Location of these casualities when they occur and no alteration of the nature of the Fee and therefore in the said pursuit at the instance of the Lady Carnagie contra the Lord Cranburn it was not found relevant to exclude the recognition that the Ward was Taxed 17. It is also clear that alienation whether by Infeftment holden of or from the Vassal not exceeding the half of the Fee inferreth not recognition so much being indulged to the vassals for his conveniency or necessity but if together or by parcels or by Annualrent the major part be alienat not only that which then was in the vassals person falls under recognition But as Craig holdeth in the forecited place Dieg. 3. l. 3. even the whole Fee So that parcels alienat validly but without the Superiours consent before become void and return But though the vassal grant Infeftments exceeding the half of the fee yet if some of them were extinct before others were granted so that there was at no time rights standing together exceeding the half of the see recognition is not incurred February 23. 1681. Iohn Hay contra Creditors of Muirie But Deeds done by Predecessors and their Heirs or Authors and their Successors were in that case conjoyned Upon the same ground an Infeftment of the see in Liferent would not infer recognition because it exceeds not the half of the value Yea recognition was found not incurred by granting an Infeftment in Warrandice for Warrandice is but a hazard in case of Eviction not equivalent to the half of the worth of the Lands granted in warrandice unless the right of the principal Lands were manifeftly defective Feb. 21. 1623. Cathcart contra