Edinburgh March 18. 1684. IT is ordered by the Lords of His Majesties most honourable Privie Council That none shall Re-Print or Import into this Kingdom the Book intitutled The Institutions of the Laws of SCOTLAND by Sir George Mackenzie of Rosehaugh His Majesties Advocat for the space of nineteen years after the date hereof without the consent of the Author under the pain of confiscation of the whole Copies to John Reid Printer of the said Book Extracted by me Pat. Menzies Cls. Sti. Cli. THE INSTITUTIONS OF THE LAW OF SCOTLAND By Sir George Mackenzie of Rosehaugh His MAJESTIES Advocat EDINBURGH Printed by Iohn Reid Anno DOM. M DC LXXXIV To the Earl of MIDDLETON My Lord THE Natural way of Learning all Arts and Sciences is to know First the Terms used in them and the Principles upon which they are founded with the Origins of the one and the Reasons of the other A Collection of these Terms and Principles is in Law called Institutions and the Natural and Easie way of Writing these is by going from the first Principle to a second and from that to a third The admir'd Method of Euclid in his Elements though much neglected by all who have written Institutions of Law in which not onely many things unnecessary are insert as almost all the third book of Justinians Institutions the Differences betwixt the Sabiniani and Proculiani c. Many Fundamental Titles are ommitted as all the matter of Restitutions And many things are taught in the first Book which cannot be understood till the fourth be read I have therefore in these my Institutions treated nothing save Terms and Principles leaving out nothing that is necessary and inserting nothing that is contraverted in all which I have proceeded building alwayes one Principle upon another and expressing every thing in the Terms of the Civil Law or in the Stile of Ours respectively so that if any Man understand fully this Little Book Natural Reason and Thinking will easily supply much of what is diffused through our many Volums of Treatises and Decisions Whereas the studying those would not in many years give a true Idea of our Law and does rather distract than instruct And I have often observed that moe Lawyers are ignorant for not understanding the first Principles than for not having read many Books as it is not the having travelled long but the having known the way which brings a man to his Lodging soon and securely My Lord You observ'd very justly to me that Institutions are a Grammar and therefore which is a great encouragement to all Readers of Institutions they who understand the Institutions of any one Nation will soon learn the Law of any other For though Terms Forms and Customs differ yet the great Principles of Iustice and Equity are the same in all Nations I send mine therefore to your Lordship not because you need them but that you may judge if my Institutions will be able to justifie your parallel Nec Phoebo gratior ulla est Quam sibi quae Vari praescripsit pagina Nomen The INDEX of the TITLES PART I. Title I. OF Laws in General Page 1 Title II. Of Iurisdictions and Iudges in general Page 9 Title III. Of the Supream Iudges and Courts of Scotland Page 17 Title IV. Of inferiour Iurisdictions and Courts Page 27 Title V. Of Ecclesiastick Persons Page 33 Title VI. Of Marriage Page 46 Title VII Of Minors and their Tutors and Curators Page 47 PART II. Title I. OF the Division of Rights and the several wayes of acquiring Property and Dominion Page 74 Title II. Of the difference betwixt Heritable and Moveable Rights Page 83 Title III. Of the Constitution of Heritable Rights by Charter and Seasin Page 92 Title IV. Of the several kinds of Holding Title V. Of the Casualities due to the Superiour Page 108 Title VI. Of the Right which the Vassal acquires by getting the Feu Page 13â— Title VII Of Transmission of Rights by Confirmation and of the difference betwixt Base and Publick Infeftments Page 14â— Title VIII Of Redeemable Rights Page 15â— Title IX Of Serâ—itudes Page 16â— Title X. Of â—eynds Page 18â— Title XI Of Inhibitions Page 19â— Title XII Of Comprysings and Adjudications Page 20â— PART III. Title I. OF Obligations and Contracts in general Page 217 Title II. Of Obligations by Write or Word Page 228 Title III. Of Obligations and Contracts arising from Consent and of accessory Obligations Page 232 Title IV. Of the Dissolution or Extension of Obligations Page 255 Title V. Of Assignations Page 261 Title V. Of Arrâ—stments and Poiâ—â—ings Page 265 Title VI. Of Prescriptions Page 275 Title VII Of Succession in Heritable Rights Page 282 Title VIII Of Succession in Moveaâ—â—es Page 323 Title IX Of â—â—st Heir and Bastards Page 330 PART IV. Title I. OF Actions Page 334 Title II. Of Probation Page 362 Title III. Of Sentences and their Execution Page 368 Title IV. Of Crimes Page 375 THE INSTITUTIONS Of the Law of SCOTLAND FIRST PART Tit. I. Of Laws in General JUSTICE is a constant and perpetual Will and Inclination to give every Man what is due to him LAW is the Science which teacheth us to do Justice This Law in a large acceptation is divided In the Law of Nature Law of Nations and the Civil and Municipal Law of each particular Countrie The Law of Nature comprehends those Dictats which Nature hath taught all living creatures instances whereof are Self Defence Education of Children and generally all those common principles which are common to Man and beasts and this is rather innate instinct than positive Law The Law of Nations is peculiar to Man-kind onely dictated by right Reason and is divided into the Original and primarie Law of Nature that flows from the first and purest principles of right Reason Such as Reverence to GOD respect to our Country and Parents And the secundarie and consequential Law of Nature consisting of these general conclusions in which ordinarly all Nations agree and which they draw by way of necessary consequence from those first principles And under this part of the Law of Nations are comprehended the Obligations arising from promises or contracts The liberties of Commerce the ransoming of Prisoners securitie of Ambassadours and the like Civil or Municipal Law are the particular Laws and Customes of every Nation or people who are under one Soveraign Power The Romans having studied with great exactness the principles of Equity and Iustice. Their Emperour Iustinian did cause digest all their Laws into one body which is nowcalled by most polit Nations for its Excellency the Civil Law And as this Civil Law is much respected generally so it has great influence in Scotland except where Our own express Laws or Customes have receded from it And by the common Law in our Acts of Parliament is meant the Civil Law The Popes of Rome in Imitation of the Civil Law made a body of Law of their own which because it was compiled by
name to dispossess him by the Sword to raise Fire and use all other severities for which the Commission does indemnifie them If such as have debatable Rights choose rather an amicable than a Iudicial decision they subscrive a Submission to Arbiters and if they please to an oversman and another blank on the back of the Submission wherein they may fill in their Decreet Arbitral And though it be free to these Arbiters to accept yet if they once accept the Lords will grant Letters of Horning to force them to decide Though these Arbiters are not tyed to the strict solemnities of Law yet they must observe material Iustice and therefore they must advertise Parties that they may give in claimes for a claime to Arbiters is in place of lybels to Iudges and must allow Terms to prove And though Equity is to them a Rule as Law is to other Iudges yet if either Party be enormly lesed the Lords will suspend and reduce their Decreets If the Submission bear no special day betwixt and which they are tyed to decide they must decide within a year of the Submission and if Witnesses will not voluntarly appear before them the Lords will upon a Bill grant letters of horning to force them to appear Title IV. Of CRIMES CRIMES are either Private where the injury is committed against private Persons or Publick where it is committed immediately against the Common-wealth Private Crimes called also delicta in the Civil Law oblige the Committers to repair the Dammage and Interest of the private Partie Crimes are in Scotland either punished capitally by death or pecunially by a certain fine or Arbitrarly at the discretion of the Iudge Capitale Crimes are Treason which is punished by forefaulture of life lands goods It is Treason in any man to Plot contrive or intend death or destruction to the Kings Majesty or to lay any restraint upon his Royal Person or to deprive depose or suspend him or to endeavour the alteration or diversion of the Succession to Levy warr against the King or any Commissionated by him or to intyse others to invade him to make Treaties or Leagues with Forraign Princes or amongst themselves without his consent To rise in fear of warr against the King to raise a frey in his hoast to Assaile Castles where he resides to impugne the Authority of the three Estates to decline the Kings Authority not to come out to the Kings Hoast or to desert it to maintain or reset Treatours to conceale Treason to countersite the Kings coyne and to raise wilful fire all which are Species of high Treason We have a kind of Treason in Scotland which we call Statutory Treason because it is meerly introduced by statute and not by common Law viz. Theft in landed men because of the danger of that kind of theft murder under trust as if one man should kill another when he invites him to his house or a Tutor should kill his Pupill which because of the easiness and attrociousness of the Crime is made Treason The fireing of Coals heughs assassination the pursueing another for Treason without being able to prove it All Iesuits Seminary Priests and traffecking Papists and all thieves who take bonds from lealand honest men for re-entering when they please All who purchase benefices at Rome are guilty of Treason No Crime can be pursued against a man or his heirs after his death except that Treason which is committed against the Kings Person or Common-wealth The other Capital crimes are Blasphemie Mans slaughter or Homicide for all Homicide is Capital with us except it be Casual or Homicide in self defence Theft is punishable by death but we call small theft pickery and it is only punishable arbitrarly Notour Adulterey that is to say where there are Children of the Marriage or where the adulterers converse openly at bed and board or being discharged by the Church to converse do continue to converse is punishable by death but simple adultery is only punishable arbitrarly Incest * Buggery Duells the invading of any of his Majesties Officers for doing his Majesties service Forgery Witchcraft and the consulters of Witches Sorners that is to say such as masterfully take Meat and Drink from the Kings People without payment All wilfull hearers of Mass and conceallers of the same Mutilation which is the disabling of a member though de praxi this be ordinarly punished with an arbitrary punishment Or the Authours of infamous Lybells Seditious Speeches tending to sedition the strickers of any Iudge in judgement mixers of Wine and committers of hame-sucken by which we understand the assaulting or beating any man in his house The Crimes to be pecunially punished are the slayers of Red-fish killers of Daes Deer Roes destroyers of Bee-hyves Fruit-trees Greenwood kindlers of Mure-burn except in the Moneth of March Steeping of Green-Lint in runing Waters or Loches such as are guiltie of abominable Oaths and Furnication Crimes to be arbitrarly punished at the discretion of the Iudge are negligence in the Kings Iudges and Officers and such as unjustly murmure against them breakers of the Kings protection the bringing home of erroneous Books and the troublers of Church-men Crafts-men who wrongously refuse to fulfil the work which they have taken in hand verbal injuries and scandals against private Parties It is fit to know that no punishment left arbitrary by the Law to the discretion of the Iudge can be by him extended to death and that where-ever the Law appoints death to be inflicted the offenders moveables fall to the King though the Law does not express the same and though the sentence express not the confiscation There are other Crimes whereof the punishment is not reduceable to any of these kinds and thus perjury and Bigamie which is a kind of perjury because a man who marries two wives breaks his Matrimonial oath are punishable by confiscation of all the Offenders Moveable Goods Imprisonment and Infamy Deforcers of Messengers and breakers of arrestment are punishable by confiscation of all their Moveables Forestallers of Mercats by buying things before they be prâ—sented to the Mercat or before the Mercat be proclaimed are punishable by Imprisonment and Confiscation of what is bought Ocker or Usury which is the taking more than the annualrent allowed or the taking annualrent before the term of payment is punished by loss of the principal sum for the Debitor is to be free from the Obligation and the write being reduced the sum belongs to His MAIESTIE Stellionat or the making of double Rights is punished by infamy and their persons are at the Kings will The Keepers of Victual to a dearth are punishable as Ockerers and by the Civil Law per leg Iul de Annona Bribing of Iudges is
Church men it was called The Cannon Law And though it has here no positive Authoritie as being compiled by private Persons at the desire of the Popes especially since the Reformation yet our Ecclesiastick Rights were settled thereby before the Reformation And because many things in that Law were founded upon material justice and exactlie calculated for all Church men Therefore that Law is yet much respected among us Especially in what relates to conscience and Ecclesiastick Rights Our Municipal Law of Scotland is made up partly of our written and partly of our unwritten Law Our written Law comprehends first our Statutory Law which consists of our Statutes or Acts of Parliament Secundo The Acts of Sederunt which are Statutes made by the Lords of Session by vertue of a particular Act of Parliament impowering them to make such constitutions as they shall think fit for ordering the â—rocedur and forms of Adminiâ—trating justice and these are called Acts of Sederunt because they are made by the Lords sitting in judgement But are not properly Laws the legislative power being the Kings Prerogative Tertio The books of Regiam Majestatem which are generally looked upon as a part of Our Law and they and the leges burgorum and the other tractates joyned by Skeen to them are called the old books of Our Law by many express Acts of Parliament Tho the books of Regiam Majestatem were originally but the works of one private Lawyer writing by way of Institution and are now very much abrogated by Custome Our unwritten Law comprehends the constant tract of decisions past by the Lords of Session which is considered as Law the Lords respecting very much their own decisions And though they may yet they use not to reced from them except upon grave considerations Secundo Our Ancient customes make up a part of our unwritten Law which have been universally received among us The tacite consent of the people operating as much in these as their express consent does in making Laws And such is the force of custome or consuetude that if a Statute after long standing has never been in observance or having been has run in desuetuâ—e consuetude prevails over the stâ—â—â—â—e till it be renewed either by a succeeding Parliament or by a Proclamation from the Council For though the Council cannot make Laws yet they may revive them Generally all Laws should look foreward though declaratory Laws regulat what is past since their design is to declare what was Law prior to the statute and to direct Iudges how to decide in cases that needed the decision of a Parliament Laws should command not perswade and though the rubrick or title and narrative of the statute may direct a doubting Iudge yet if the statutory words be clear they should be followed in all cases All Laws should be so interpreted as to evite absurdities and as may best agree with the mind of the legislator and Analogie or general design of the common Law Correctory Laws so we call these which abrogate or restrict former Laws are to be strictly interpreted for we should reced as little as can be from received Laws Honourable Laws are to be extended and the Paritie of Reason often prevails with our Judges to extend Laws to Cases that are founded on the same reason with what is expresly determined by the Statute Tit. II. Of Iurisdiction and Iudges in General HAving resolved to follow Iustinians method to the end there may be as little difference found betwixt the Civil Law and Ours as is possible And that the Reader may not be distracted by different methods I do resolve first to lay down what concerns the Persons of whom the Law treats â—at â—do what concerns the things themselves treated of such as rights obligations c. Tertio The actions whereby these rights are pursued which answers to the Civilians objecta juris viz. Personae res Actiones The Persons treated of in Law are either Civil or Ecclesiastick the chief of both which are Iudges with whom we shall begin And for the better understanding of their Office it is fit to know that Iurisdiction is a power granted to a Magistrate to cognosce upon and determine in causes and to put the sentence or decreet to execution in such maner as either his commission law or practice does allow All Iurisdiction flows originally from the King so that none have power to make Deputs except it be containd in their commission And if a Depute appoint any under him that sub-depute is called properly a substitute and every Iudge is answerable for the Malversation of his depute Iurisdiction is either Cumulative or Privative Cumulative jurisdiction is when two Judges have power to judge the same thing And generally it is to be remembred that the King is never so denuded but that he retains an Inherent power to make other Judges with the same power that he gave in former commissions And thus he may erect lands in a regality within the bounds of an heritable Sheriff-ship and burghs Royal within the bounds of a regality And these bounds within which a Judge may exerce his commission is called his Territory so that if any Judge exercise Iurisdiction without his Territory his sentence is null and among those who have a Cumulative Iurisdiction he who first cites can only Judge and this is called jus Praeventionis Privative Iurisdiction is when one Judge has the sole power of judging exclusive of all others such power have the Lords of Session in judging of all Competitions amongst heritable rights and here there can be no prevention Iurisdiction is founded to any Judge either because the defender dwels within his territory which is called Sortiri forum ratione domicilij or Secundâ— Because the crime was committed within his territory which is called ratione delicti or Tertio If the Person pursued have any immovable estate within his territory though he live not within the same he may be pursued by any action to affect that estate which is called sortiri forum ratione rei sitae A Iurisdiction is said to be prorogate when a person not other wayes subject submits himself to it as when he compears before an incompetent Judge and propons defences All Judges with us must take the Oath of Allegiance and the Test whereby they swear to maintain the Government of Church and State as it is now established and an oath de fideli administratione before they exerce their Office And no excommunicate person nor rebell against the Government can Judge by Our Law If a person be pursued before a Judge who is not competent he may complain to the Lords of Session and they will grant Letters of Advocation whereby they Advocat that is to say call that cause from the incompetent Judge to themselves And if after the letters of Advocation are intimat to that Judge he yet proceed his Decreet will be null as given Spreto mandato Iurisdiction is
1000 lib. or 20 Chalders of victual in yearlie rent Nine are a Quorum Crimes of old were judged by the Iustice General Iustice Clerk and two Iustice Deputes but now five Lords of Session are joyned to the Iustice General and Iustice Clerk and they are called the Commissioners of justiciary Because they sit by a special commission only Four of which number make a Quorum in time of Session three in time of Vacance and two at Circuit Courts The Exchequer is the Kings Chamberlain Court wherein he judges what concerns his own revenues It consists of the Theasurer in whose place are sometimes named Commissioners of the Theasury the Theasurer Depute and as many of the Lords of Exchequer as his Majestie pleases The High Admiral has a commission from the King to judge in all Maritime affairs not only in Civil but also in Criminal cases where the crime is committed at Sea or within flood-mark nor can the Lords of Session Advocat causes from him tho they can reduce his Decreets as he does the Decreets of all inferior Admirals or Admiral Deputes for many Heritors are constitute Admirals within themselves by a right from the high Admiral since his Gift or from the King before it Tit. IV. Of Inferior Iurisdictions and Courts THe Sherriff is the Kings chief and Ancient Officer for preserving the Peace and putting the Laws in execution he has both a Civil and Criminal Iurisdiction and his Commission is under the Great Seal he is obliged to raise the huy and cry after all Rebels and to apprehend them when required To assist such as are violently disposâ—est To apprehend such as say Mass or trouble the Peace and take caution for their appearance He nor no Inferior Iudge can hold Courts in time of Vacance in Civil cases without a dispensation from the Lords of Session But in Criminal cases he needs no dispensation because crimes should be instantly punished He is Iudge in all crimes Except the four Pleas of the Crown to wit Murder Firâ— rasing Robery and ravishing of Women but murder he can judge if the Murderer was taken with red-hand that is to say immediately committing the murder In which case he must proceed against him within three Suns And in Theft he may judge if the Thief was taken with the fang The Shireff is also judge competent to punish Bloodwits for which he may syne in 50 pounds Scots but no higher and for contumacy he can fine no higher than 10. pounds A Lord of Regality is he who has the land whereof he is Proprietar or Superior erected with a Iurisdiction equal to the justices in Criminal cases and to the Shirreff in civil causes he has also right to all the moveables of Delinquents and rebels who dwell within his own Iurisdiction whether these moveables be within the regality or without the same And because he has so great power therefore no Regality can legally be granted except in Parliament The Lord of Regality has also by his erection power to repledge from the Sherriff and even from the Iustices in all cases except treason and the pleas of the Crown that is to say to appear and crave that any dwelling within his Iurisdiction may be sent back to be iudged by him and he is obliged to find caution that he shall do justice upon the Malefactor whom he repledges within year and day and the caution is called Cul reach The Stewart is the Kings Sherriff within the Kings own proper Lands and these were erected where the lands had been erected before in Earledoms or Lordships For else the King appointed only a Baillie in them and these Iurisdictions are called Bailliaries the Baillies of the Kings proper lands having the same power with the Sherriff And all these viz. the Sherriff the Stewart and the Lord of Regalitie proceed in their courts after the same way and each of them has a Head Burgh where they hold their courts and where all letters must be executed and Registrate The Prince of Scotland has also an Appange or Patrimony which is erected in a Iurisdiction called the Principality The revenues comes in to the Exchequer when there is no Prince but when there is one he has his own Chamberlain Iustices of Peace are these who are appointed by the King or Privy Council to advert to the keeping of the peace and they are judges to petty ryots servants fies and many such like relateing to good neighbour-hood exprest in the instructions given them by the Parliament and are named by the Council allbeit be the foresaid Statute the nomination is to be by His Majestie and His Royal Successors which the King has now remitted to the Privy Council The Iustices of peace do name Constables within their own bounds from six months to six months Their Office is to wait upon the Iustices and receive injunctions from them delate such Ryots and Crimes to the Iustices as fall under their Cognisance Apprehend all suspect Persons Vagabounds and night Walkers as is at length contained in their injunctions given them be the foresaid Act. Every Heritor may hold courts for causing his Tennents pay his rent And if he be infeft cum curijs he may decide betwixt Tennent and Tennent in small debts and may judge such as commit blood on his own ground tho his land be not erected in a barronie But if his land be erected in a barronie which the King can only do he may like the Sherriff unlaw for blood-wits in 50 lib. and for absence in 10. And if he have power of Pit and Gallows he may hang and drown in the same manner as the Sherriff can Tit. V. Of Ecclesiastick Persons SInce the Reformation the King is come by Our Law in place of the Pope and all rights to Kirk-lands must be confirmed by him else they are null His Majestie only can call convocations of the Clergie for so we call our National assemblies and His Commissioners sits in them and has a negative We have two Archbishops and twelve Bishops and they are thus elected the King sends to the Chapter a Conge de Eslire which is a French word signifying a power to elect and with it a letter recommending a person therein named And the Chapter returns their electing Whereupon the Kings grants a Patent to the persons and a mandate to the Archbishop or Bishops to Consecrate him Both which pass the great Seal The Archbishops and Bishops have the sole power of calling Synods within their own Diocies and in these they name the Brethren of the conferance Who are like the Lords of Articles in the Parliament and by their advice the Bishops depose suspend and manage Bishops have their Chapters without whose consent or the major part the Bishop cannot alienate which Major part must sign the deeds done be the Bishops And it is sufficient if those of the Chaper sign at any time even after