Court which is a Spiritual Court and curia christianitatis Obs. 2. It seems that Oaths of Calumnie can only be craved in initio litis in the beginning of the Pley or Cause but yet now an Oath of Calumnie may be asked at any time Obs. 3. That though this Act appoints Advocats to give their Oaths of Calumnie if their Client be absent yet that only holds in matters of Fact as to which the Advocat is not obliged to swear if his Client be present but as to alleageances in point of Law the Advocat is obliged to swear though his Client be present Thir Verses are taken out of Hostiensis tit de jur Calum Gloss. in § 1. just de paen tem litigant which shews amongst other arguments that the Acts of Parliaments as we have them now Printed are not the same as they past in Parliament I have heard it debated in the Process Keith contra Purves March 1684. That an Adocat was not obliged to give his Oath of Calumnie whether he thought the Right upon which he Debated was really to the behoove of the Earl of Marshal but only in general that the Advocats had good reason to Debate it was not to his behoove because their Client said so to them But if this be allow'd an Oath of Calumnie will signifie nothing for Advocats may alwayes find subterfuges to depone that they have good reason to urge such a thing for they may think their Clients Information sufficient warrand for them though they are convinced the same is palpably false whereas the true Design of the Act of Parliament was to debar Advocats from proponing Defences and insisting in Pleas which they thought unjust and Calumnious ARe in Desuetude But I am of Opinion that Brieves with us have not their Origine from the Civil Law as Skeen thinks because sententia erat de brevi recitanda or from the breve testatum of the Feudal Law for these are very different from our Brieves but from the Court of Rome for their Brieves are exactly the same With ours as breve de capienda possessione breve contra intrusum vide Amydenium de stilo datariae cap. 28. lib. 1. Rebuff praex Reg 34. THis Act is abrogated by the Union of both Kingdoms but from it may be observed that to go and live in a Countrey that is in War with the KING is Treason since the Enemy becomes thereby stronger and richer and the Kingdom weaker and poorer UPon this Act is founded the stile of Law-burrows which bears That the Raiser dreads Bodily Harm of him against whom he seeks Law-burrows and that he has given his Oath to that effect This is like that Oath of Calumny Quod tenetur ille prestare qui novum opus nunciat l. 5. § 14. ff de novo oper nunciat But it is the same exactly with the cautio de non offendendo us'd both in France and Flanders in which the Oath of the Party is sufficient ubi expectatio mali juramento ejus qui securitatem petit confirmari sufficiet Christien ad leg Mechlin art 1. tit 4. num 4. And with us such as break Law-burrows are pursu'd by an Action of Contravention Which Term is likewise us'd among them in the same sense art 8. num 16. Ibid. Observe That though the Letters of Law-burrows contain no such Warrand in the Body of them for taking the Chargers Oath that he dreads bodily harm and though the Messenger who executes the saids Letters does not exact the said Oath from him at whose Instance the Letters are to be Execute yet that neither annuls the Letters nor the Act of Caution though it would seem that Caution is only to be found because that Oath is given but yet the Party might have Suspended upon that ground and would not have been oblig'd to have found Caution till the Charger had given his Oath conform to this Act. FRee-holders or their Acturneys should compear at Head-Courts but though this Act sayes That if they be absent upon a necessary Cause they may send their Acturney yet de praxi though they can prove no reasonable Cause they cannot be Unlaw'd if they send any person with a Letter of Acturney which is rais'd out of the Chancellary and the sending of Seals is now in Desuetude for Services and Verdicts in Criminal Causes which are the only Papers that need now to be Seal'd may be Sealed with any borrowed Seal Obs. primo Several Regalities in Scotland have Chappel and Chancery of their own and grants Acturneys themselves Obs. secundo Regalities are still a part of the Shire and therefore the Sheriff may cite the Vassals of the Regality but the Lord of Regality cannot cite these who live within the Shire without Letters of Supplement obtain'd by deliverance of the Lords for that effect vide Act 10 Par 5 Ja. 2. Obs. tertio That the Unlaw warranted by this Act to be impos'd by Sheriffs for absence from Head-Courts cannot exceed 10 pounds February 7. 1624. December 6. 1628. And the same Unlaw of 10 pounds is allow'd for absence from Baron Coutrs March 16. 1622. It has been likewise found that though a Vassal having been in use to have his Servant received as his Acturney at those Courts without a formal Letter of Acturney out of Chancellary cannot be Fined quoad by gains because of the preceeding Custom Yet for the future they will be oblig'd to send formal Letters of Acturney or else they will be Fineable Intimation being made to them that the former Custom will be no more allow'd July 11. 1678. The Bailie of the Regality of Paisley against the Laird of Duntreath THe taking of Salmond at all times is allow'd on the Waters of Saloway and Tweed as long as Berwick and Roxburgh are in the English Mens Hands but it is Rescinded upon our Kings succeeding to the Crown of England by the 5 Act 18 Par. Ja. 6. King JAMES the first Parl. 10. THis Act discharging the selling Salmond abroad except the one half of the price be pai'd in Money is in Desuetude THis Act is Declaratory of the former Law else it could not have been drawn back to the prejudice of the private Right here mentioned and this was suitable to the Common Law for the Governour of the Kingdom is but a Tutor and a Tutor cannot alienat Lands belonging to the Crown King IAMES the first Parliament 11. THese who break the Kings Protections are ordained to be pâ—nish'd and the Protections here mention'd are these Letters which our Kings of old granted to Monastries Burghs c. taking them into his special Protection and discharging all his Subjects to injure them under pain of his highest Displeasure and it is observeable that Assizes were to sit upon these whether the Party accus'd was present or absent Those Protections are now in Desuetude nor can any Pannel be proceeded against now in his absence except in the case of
in other cases where there is no Statute it would seem that Rights granted to a man should regularly extend to his Heirs arg hujus legis Observ. 1. Though this Act mention only Rentals set by the King yet the Rentals set by Subjects are not extended to Heirs except Heirs be therein-mentioned and though a Rental mention Heirs indefinitly yet it will only extend to the first Heir and will neither be accounted null for want of an Ish nor be extended to all Heirs for then it would be equivalent to an Heretable Right THis Act Discharges the Disponing of the Kings Casualties in great as the Casualties of a whole Countrey which is most reasonable and therefore all Gifts of Regalities may be quarrell'd as null because in them all the Escheats are Dispon'd and though this Act Discharges the giving away of Casualties arising from any one Crime yet this Objection was Repelled against the Gift of Usury in which were given away all the profits arising to the King by Usury ALL pecunial pains are ordain'd to be taken up according to the rate the Money gave when the Fine was impos'd or else the Fine is to be augmented according to the augmentation of the Money and this Act was reasonable because it was not just that Delinquents should get advantage by not payment and it was necessary because without this Act Fines as all other Debts might be pay'd according to the current Money at the time the same fell due THe pain of negligent Sheriff-Clerks is tinsel of their Moveables and the principal Sheriffs are to pay 100 pounds for them besides the damnages of parties Observ. 1. That in the time of this Act Sheriffs had the nomination of their own Clerks but now since the Sheriff-Clerks are nominated by and depend upon the Secretary it is not just that the Sheriff should be Fineable for the fault of the Clerk Observ. 2. That though by this Act the Sheriff-Clerk is oblig'd to send an Inventar of all the Registrat Hornings yearly to the Thesaurer yet this is in Desuetude THis Act is in Desuetude as to the price to be taken by Messengers but they still find Caution to the Lyon at their admission de fideli administratione RElief is a Duty due by the Vassal to the Superiour at his Entry for relieving his Fee out of the Superiours hands By this Act it is appointed that when this Casualty arises to the King it may not be compounded for but that all that is due be taken and the true avail is a years Retour-duty in Ward-lands and the double of the Feu-duty in Feu-lands Hope tells us that though a Gift of Non-entry contain the Relief yet the Donatar will not have Right thereto because such is the Custom of Exchequer as he says But I think that the true reason is because this Act Discharges this Casualty to be gifted When ere the Vassal takes out a Precept from the Exchequer for Infesting himself he is lyable for the Relief and the Sheriff may be Charg'd therefore conform to the Responde Book or the party may be Summarly Charg'd for it by this Act and the ground may be also poynded for it as deâ—itum fundi when a party gets a Precept the Servants of the Chancery write down respondebit Vicecomes de c or Respondebit any Judge to whom the Precept is direct and that is call'd the Responde here mention'd by which Responde-book the Sheriffs and their Deputes are Charg'd yearly in Exchequer BY this Act the Sheriff did count for all Escheats yearly for then he might have intrometted summarly and had Letters of Introâ—ission but now he is not countable nor oblig'd to intromet but the Escheats are gifted to Donatars BY this Act all Commissions for judging Crimes are ordain'd to pass the Quarter-Seal but now Commissions are granted by the Council without any Seal and though this Act Discharges justly the granting Commissions for judging Slaughter ordaining that Crime to be Judg'd only by the Justices yet now the Council uses to grant Commissions even for Judging Slaughter Murder Witchcraft and all such Crimes But though the Council may grant such Commissions for Judging these Crimes when they fall in under general Commissions that are granted by the Council yet I see not how they can grant Commissions contrary to this Act for Judging Slaughter in special Observ. 2. That all Commissions of the Justiciary should be under the Quarter-seal to the end as this Act of Parliament observes there may be a Responde made thereupon and yet the Council now uses to grant Commissions which have no other warrand but a Paper subscriv'd by themselves and not by way of Signature as is here ordain'd and the great fault that is committed in granting these Commissions is that the Process is never ordain'd to be returned to the Justice-Clerk to the end that both it may be known whether the Processes be legal and that it may be known what is due to the King for which the Responde mentioned in this Act was to be made vid. observ on 126 Act Par. 12 Ja. 6. Observ. 3. From these words of the Act That no Commission be granted to proceed in Slaughter but that the Justice-general and his Deputs proceed thereupon It uses to be urged that a Council of War cannot be a sufficient Warrand for Souldiers to Judge Murders and other Crimes committed by any of their Number against Countrey-men these not being Military Crimes but being Crimes that should be tryed by our fundamental Law in the Justice-Court where the people have a double security both by Learn'd Judges and an Inquest of Neighbours and a Kings Advocat to be careful of the probation and it may as well be pretended that they may Judge their own Souldiers in civil Cases and that they may judge a Countrey man when he kills a Souldier Vid. Crim. pract Tit. Jurisdiction of Justices over Souldiers and the Council ordain'd Burr a Drummer to be delivered up to the Justice Court for killing a Woman though he had suffered two Councils of War November 3. 1681. But to clear this the King by His Letter to the Council has declar'd that Souldiers are only to be be Try'd for Military Crimes by a Counsel of War and that for ordinary Crimes they shall be judg'd by the Justices c. AS parties may pursue Crimes without concourse of the Kings Advocat so by this Act the King may pursue without an Informer ad vindictam publicam THis Act ordains that no Rests be allow'd to the Thesaurer exceeding 20000 pounds a year but that he shall compt for what is above this sum so that he may do Diligence therefore as accords but this is not observ'd The second part of this Act ordains that the King be not prejudg'd by general Ratifications in Parliament for though Ratifications cannot prejudge third parties yet they might have prejudg'd the King who past them if His Majesties Interest
did write such a hand and for proving of this must produce the Hand-writs of all these Servants at that time February 7. 1672. Kirk-hill contra Ketlestoun IT was Debated upon this Act whether the Lands of Duncow though here annexed by a publick Law were sufficiently annexed so as to exclude the Earl of Nithisdale who pretended that a year before this Act he had a valid Right under the Great-Seal from the King and so could not be prejudg'd by a posterior annexation which behov'd to be salvo jure quoad him To which it was Reply'd that this annexation being by a publick Law was not of the nature of Ratifications which were salvo jure and such Acts of annexation were in effect the Kings Charter and being granted by a publick Act of Parliament in favours both of King and People they could not be taken away but by another Act of Parliament sibi imputet he who had the prior Right and compeared not at the time of this publick Law and objected it but now after so many years the King had at least prescrived a Right by vertue of this Act this case was not decided but the Lords inclined to think that there was a great difference betwixt original annexations where special Lands were annexed as falling in the Kings Hands by a special Forefalture or other cause which they thought could not be quarrelled by the Session or other Inferiour Judicatory and general Acts where Lands formerly annext are only repeated such as this is in which Lands belonging to privat parties may be by mistake repeated Nota The Lands of Duncow annexed by this Act came to the King upon Forefalture of Robert Lord Boyd anno 1477. BEfore this Act Decreets pronunced by Magistrates within Towns could not be the ground of a Charge of Horning till a Decreet conform had been first obtained before the Lords but by this Act Letters of Horning are summarly appointed to be granted upon such Decreets It is observable that though this Act says That Letters of Horning shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts yet it would seem that Commissars had no such priviledge at the time of granting this Act for that priviledge is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered but that Commissars had that priviledge even at the time of this Act de praxi though de jure it was only granted them by that Act for their further Security VId. Act 155. 12 Par. Ja. 6. THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer is Explained in the Observations upon the 2 Act 4 Sess. Par. 2 Ch. 2. IT is observable that by this Act the Dean of Gild is founded in the power of judging all Cases betwixt Merchant and Merchant and is here declar'd to be the most competent Judge because the most knowing Judge in such cases and declar'd to have the same power that the like Judges have in France and Flanders and in France such Cases are Judg'd by these who are call'd les consuls des marchants The Lords have found that according to this Act the Dean of Gilds Court is a Soveraign Court in suo genere and not subordinat to the Towns Court July 21. 1631. and they use to Advocat Causes from the Admiral to the Dean of Gild's Court upon this Act it being declar'd that he is Judge to all actions betwixt Merchant and Mariner though it be alleadg'd by the Admiral that these general words should be restricted by the nature of the respective Jurisdictions and so the Dean of Gild should be only Judge competent betwixt Merchant and Mariner in cases which fall out at Land but not at Sea THe Act related to here is the 36 Act 3 Parl. Ja. 4. IT is observable from this Act that it is there declar'd in geneneral that Acts of Parliament should only in reason and equity extend ad futura for regulating future cases for though Declaratory Acts may oft-times extend ad praeterita yet Statutory Acts should only extend ad futura THis Act differs not one word from the 170 Act of this same Parliament and has been only repeated here by mistake BEfore this Act such as were at seid with one another us'd ordinarly to fight together upon the Street of Edinburgh and us'd to beat the Magistrates or their Officers when they came to red them and that truly gave rise to this Act though the Narrative here bears only that several persons used to Deforce the Magistrates in their Execution of their own or the Councils Decreets By the Act it is declar'd That whosoever disobeys or opposes the Command of the Provost and Baillies of Edinburgh when they are Executing the Kings Commands or Letters from the Secret Council or Session or the Ordinances of their own Burgh shall be punished as Committers of Deforcement as Seditious and Perturbers of the Common well It has been found that naked assistance at such Tumults without Arms is not punishable by Death though a person be killed in the Tumult December 1666. But Convocation at all such Tumults with Arms is punishable by Death if a person be Murdered as was found September 11. 1678. And the acting any thing either by word or deed was found to infer Death Observ. That the using Fire-weapons within Town is discharged by this Act and long weapons that is to say Halbards Picks c. are only allow'd lest innocent persons passing on the Street might be kill'd but yet if Souldiers shoot in defence of their Prisoners on the Streets they are not punishable and this Act was found not to militat against the Kings granting Commissions to the Magistrates of Edinburgh to raise a Company with Fire-locks within Town for the Act discharges only Fire-locks without the Kings consent and a Commission implys his consent THe Act here related to is the 159 Act 12 Par. Ja. 6. THis Act is Explain'd in the 7 Act 9 Par. Ja. 6. VId. Obs. on the 29 Act Par. 11 Ja. 6. THe Abbacy of Dumsermling was Dispon'd by Ja. 6. in a morning Gift to Queen Ann. This Lawyers call Morganeticum and King Charles the First was Infeft in these Lands as heir to His Mother Observ. That this Confirmation was under the Great Seal and under the Seals and Subscriptions of the States King IAMES the sixth Parl. 14. THis Act seems very ill conceived for it appears that wilful hearers of Mass shall be executed to the death how soon they shall be found guilty or declared Fugitive since no man by our Law dies upon his being Denunced Fugitive except in the case of Treason and wilful hearing of Mass is not Treason even by this Act. Observ. 2. That as this Act is conceiv'd the wilful hearing or concealing is punishable by death either by Conviction or being denunced Fugitive before
other Church-men had when they possessed the same is inconsistent with Law and with the Respect and Priviledges belonging to that Sacred Order 11. Whereas it is pretended that since His Majesties Restitution and the said Act of Parliament containing His Promise and Resolution not to raise any more Cess A Taxation hath been pay'd to the Lords of Session in the way of Cess that pretence is of no weight it being considered that the said Taxation is granted not to His Majesty but for an honorary allowance to the Lords of Session and by an Act of the same Parliament wherein His Majesty Declar'd that no more Cess should be rais'd so that the said Act being in the same Parliament and it being an exception from the said Act firmat regulam in non exceptis and shuts the Door as to the future upon that manner of Raising of Impositions 12. Whatever a Parliament may do as to the repelling of former Laws and Customes a Convention of Estates though a meetting most eminent has not that Legislative Power And albeit the Commissioners from Shires has power by their Commission to offer and condescend to a Taxation Yet they have not power to alter and take away the fundamental Laws and Customs of the Kingdom as to the manner of uplifting of Taxations being the Birth-right of the people and which cannot be taken away but by a Law made in Parliament King James the sixth Parliament 16. THe Earl of Gowrie having endeavoured Treasonably to Murder King James the sixth he was Forefaulted in the beginning of this Parliament and after his Death his Brother and Posterity were disabled to succeed and the Name of Ruthâ—â—n aâ—olished as is to be seen in the first three Un-printed Acts of this Parliament and a publick day of Thanksgiving is appointed by this Act which is yet constantly Celebrated upon the 5 of August which was the Day upon which the Murder was to be committed The malice of the Fanaticks in those times is most remarkable who pretend that he was unjustly Forefaulted albeit the Depositions of the Witnesses are yet extant whereby the Traiterous Dâ—sign of having contriv'd and accordingly attempted to kill that excellent King is prov'd by his own relations and many eminent Witnesses of intire Reputation It is also observable that Witnesses of old in Processes before the Parliament were only led before the Articles and repeated in Parliament Item That the Summons was still in Latin sub testimonio magni sigilli they were at the Instance of the Justices and of the Kings Advocat and the Summons in all such cases were still rais'd before the Parliament did sit for our Parliaments sat very short time and so they err who think that such Processes can only be rais'd by a Warrand from the Articles though that be ordinary now And now likewise the Summons is in Scots and under the Signet only THe Earl of Gowrie being Forefaulted his Lands are by this Act annex'd to the Crown and though by the former Acts of Annexation Lordships and Baronies were only in general annexed yet here all the particular Baronies of the Lordship and all Tenements of the Lordship are expressed with all the Pertinents thereto belonging which are here specially enumerated and amongst the Pertinents Patronages are enumerated which shews that Patronages in our Law are comprehended under the word Pertinents which is also clear by the Author of the Book call'd The Parsons Law See more of this in the Notes on Act 29 Par. 11 Ja. 6. The Regalities and Heretable Offices belonging to Gowrie are likewise supprest expresly and the saids Lands erected in a Stewartry for a Regality is properly the Erection of Lands holding of Subjects and a Stewartry is only in Lands which are the Kings Property THis Act is Explain'd in the 37 Act Par. 2 Ja. 6. and that is the Act related to in this Statute BY this Act Invading or pursuing any of His Highness Session Secret Council or Officers it being verifi'd that they were pursu'd or Invaded for doing His Highness Service is Declar'd punishable by Death and upon this Act Mr. James Mitchel was Hang'd for Invading the Bishop of Saint Andrews in which Process it was upon debate found that the Pursuing and Invading for doing His Highness Service was sufficiently proven by presumptions except the Pannel could have condescended upon another reason which provockt him to the attempt arising from private quarrel or grudge and that because it is impossible to imagine that the Design of the Invader can be otherwise prov'n that being an occult and latent Act of the mind By the Civil Law the Invading a Counsellor was Treason for sayes the Emperour sunt pars corporis nostri l. 5. C. ad l. Jul. Maj. It may be questioned from this Act 1 Who are to be call'd the Kings officers 2. If the Invading them when they are out of the Kingdom or Suspended or when they are only nam'd and not yet admitted to their place will infer the punishment of this Act. 3. If these words in the Narrative of this Statute that they are oft quarrelled without any just cause will excuse the Invader if he can show that he was truly wrong'd by that party either in Voting or deciding against him or otherwayes Scipio Gentilis in his Books de conjurationibus adversus principes explains the l. 5. cod ad l. jul Majest and shews how far the Invading of the Kings Counsellours is Treason Sir Francis Bacons observes that an Act of this Tenour was made at the suggestion of the Chancellor in the Reign of Henry 7. because of the danger the Chancellour was then in from the Courtiours drowning the envy of it in a general Law and I am sure that was also our case for our Chancellour was in ill Terms then with our Nobility but their Conspiring was made a Crime whereas with us Invading is necessary THis Act is Explained in the 80 Act Par. 10 Ja. 3. THis Act is formerly Explain'd in the 248 Act Par. 15 Ja. 6. THis Act Discharging Herring to be carried abroad before Michaelmas under the pain of Confiscation is now innovated by the Priviledges granted to the Fishing Company and that very justly for the sooner Herring be carryed abroad they give the better price And though there were not Herring enough taken to serve the Countrey the time of this Act which was the reason of the Prohibition yet now there are sufficiently for serving both the Countrey and Strangers THough the slaying Salmond in forbidden times be Theft by this Act yet none has ever been pursu'd capitally therefore but the same is only punish'd as a penal Statute by an arbitrary punishment The reason why the Rivers of Tweed and Annand are excepted from this Act is because the killing Fish upon them prejudges only the English Fishing but after the Union of the two Kingdoms this exception as to these two Rivers is also taken away by
this Act is in Desuetude but I believe neither for where the Council names jure dâ—voluto because Magistrates accept not they come only in place of the old Magistrates and Council and therefore they can only do what these could have done ex regula surrogatorum and this Act having been made in favours of the King and Monarchy it cannot run in Desuetude without their consent and it is thought that by vertue of it none who are Lords of the Session can be Provosts these being incompatible Employments and inconsistent with the design of this Act which bears to be made to hinder the dissipation of their Common Good and perverting of their Priviledges which is much more easie for Lords of the Session and persons in publck Employment than for others beside that publick Traffique and Merchandising is inconsistent with that exact distribution of Justice which is necessary in His Majesties Judges vide Lampridium in vita Severi as to the distinction of Habits amongst Magistrates THis Act is Explain'd crim pract tit Injuries To which I shall only now add that not only what is destructive to the Government but what may tend to the prejudice of the Government is here punished and this I have thought fit to observe because tending has been oftimes Debated not to be Relevant It may be also doubted whether speaking against the House of Commons or their Resolutions is punishable by this Act since it punishes all reproachful Speeches of the People or Countrey of England and they are the Representatives of the People and since these are punishable who speak against a Councellour of England much more ought they to be punish'd who speak against the House of Commons But in my opinion this Act reaches only such as speak reproachfully of their Nation Countrey and Counsellours but the whole Act ought to be abrogated by our Parliament as being past by us in expectation that England would make such an Act in their Parliament which they never did and upon which account it was never in observance with us It is likewise observable that though in our Law Concealing and not Revealing is only punishable in Treason yet by this Statute the hearing any thing spoke against the people of England or any Privy Counsellour in that Nation and the not Revealing is declared to be equally punishable with inventing such Calumnies THis Act is Temporary as to many things but it is observable from it that the using false Testimonials is punishable by death as Falshood And the power given to the Commissioners of the Borders to apprehend Fugitives and to send them or their marks and tokens to the Kings Commissioner is founded on l 4. ff de Fugitivis Where Limenarcha which is our Commissioners of the Borders debent inquirere in fugitivos and to send them with their notae which is our Tokens to the next Magistrats THe Customs being annex'd to the Crown by the 8 Act Par. 1 Ja. 1. They are by this Act dissolved from the Crown in so far as concerns 10000 pounds yearly to be pay'd to the Lords of Session in place of Quots of Testaments and therefore the Lords of the Session do conform to this Act Decern summarly the Tacks-men and Collectors to pay this 10000. pounds and ordains them to be Charged with Horning BY the 4 Act Par. 18 Ja. 6. It is Declar'd That Restitutions by way of Grace shall not prejudge those who acquired the Forefaulted persons Lands either by a Lucrative or an onerous Cause but because both by an inference from that and by the Principles of the Common Law these who are restored by way of Justice might pretend to quarrel those who during their Forefaulture were presented to Benefices to which they were Patrons upon pretext that they were to be restor'd intirely Therefore it seems that this Act has been made whereby it is declar'd that such as are presented to Benefices which were at the Presentation of Forefaulted persons shall not be prejudg'd by their Restitution and which was very just since Patrons are not prejudg'd because it is presum'd that the Ordinary would not Collate persons that were insufficient nor were Patrons allow'd to make any advantage by the Presentations and upon the same principle it seems reasonable to conclude that a Minor cannot Revock a presentation granted by him with the consent of his Curators during his Minority THis Act Ratifies an Act of Privy Council whereby Aegyptians were commanded to depart the Kingdom betwixt and the first of August thereafter under the pain of Death but it may be justly doubted how the Council had power to make Acts inferring the pain of Death Since it is a received Principle in our Law as is clear by Craig and others that the Secret Council can make no Act which may infer forefaulture of Life or Estate and though by the Acts 124 and 147. Par. 12 Ja. 6. Judges be ordain'd to punish Aegyptians and that by the 268 Act Par. 15 Ja. 6. Vagabonds and Aegyptians are to be employ'd in Common Works yet by neither of these Acts is the pain of Death to be inflicted and therefore it was lately Debated that this Act was but at best a Temporary Act and so Aegyptians could not be impannelled for their Life but yet this Act has been still repute a sufficient Warrand for punishing by Death such as were known holden and repute to be Aegyptians And I find that upon the last of July 1611. Moses Schaw and others were Hang'd as Aegyptians and it is notour that immediatly after this Act Sheriffs and others did Hang very many by warrand thereof and the Act is not Temporary for it appoints them to be Executed in time coming after the first of August and the Act has ordain'd Aegyptians to be proceeded against as Sorners and common Thieves who are by our Law to be punish'd with Death as is clear by the Narrative of this Act which bears that the Council had Commanded That the Sorners and common Thieves commonly call'd Aegyptians c should depart forth of the Kingdom So that the Council has not inflicted the pain of Death upon a new Crime but has only declared That Aegyptians fell under the old Crime that was punishable by Death Nor can it be deny'd but that from this and many other Acts it is clear that the Council has a power to extend and interpret Statutes even relating to Life and Forefaulture since the Act appoints only such to be punishable by Death as are known holden and repute to be Aegyptians It may be doubted what can prove that the Aegyptians pannell'd are known holden and repute to be such For which beside the common Inferences of notoriety adduc'd by Mascardus and others in probatione notorij Our Law allows that such as call themselves Aegyptians or go up and down the Countrey bleaking their Faces telling Fortunes and speaking the Gebrish peculiar to those people shall be punished as Aegyptians and
ordinarly His Majesties Advocat chooses such Assizers as know the persons impannelled to be commonly repute to be Aegyptians These who are call'd Aegyptians in Scotland are call'd Zigeni Tartari Bohemij all which are remarked as idle Beggars going about oppressing the people and cheating them by vain Superstitions and Fortune tellings of which sort of people Fritschius has written a Treatise call'd de origine Zygenorum eorum coercitione where are to be found upon what pretext they were first suffered in several Nations which was because they did assist several Princes in their great difficulties having from being Vagabonds gathered themselves under Captains for that effect but continuing after Peace made to grow insolent they were ordain'd to be banish'd in Germany by an Imperial Constitution anno 1500. and in France by the Act of Orleance anno 1561. and thereafter anno 1612. which is about the time of this Act and in Spain 1492. THe time of this Act the Secret Council had a Commission from the King to receive Resignations and all the Procuratories of Resignations then did still bear a Power to Resign in the Hands of the Secret Council But now Resignations can only be made in His Majesties own Hands or in the hands of His Exchequer THis Act extends to the Decreets of the Admiral and his Deputs the priviledge of having Letters of Horning granted upon them without the necessity of a Decreet conform as was the old Custom and in this it equals the Decreets of that Court with the Decreets of Sheriffs and Baillies of Burghs But by the 29 Act Par. 1 Ch. 2. Whereby poinding is ordain'd to be granted upon their Decreets the Parliament has forgot to extend that priviledge to the Decreets of the Admiral Observ. 1. That this Act declares the Admiral to be a Supream Judge and therefore it has been decided that he may reduce the Decreets of inferiour or Admiral-deputs and that he may reduce his own Decreets upon just Reasons such as noviter provenientes ad notitiam c. And which kind of Jurisdiction is competent to no Inferiour Judge and yet the Lords of Session do suspend and reduce his Decreets also and Advocat Causes from that Court Observ. 2. That by this Act the Admiral is declar'd to have power of summar Execution because Strangers and Sea-faring men cannot attend as others may and therefore it is that such as obtain Decreets before that Court may use Execution thereupon within three Tides Vid. Observ. on the 16 Act Par. 3. Ch. 2. King JAMES the sixth Parliament 21. HIs Majesty held a General Assembly at Glasgow and in anno 1610. drew up some Articles to be presented to the Parliament which are set down by Spoteswood and many whereof are here confirm'd By this Act His Majesties Power to call Assemblies is declar'd a part of His Royal Prerogative Vid. 114 Act Par. 12 Ja. 6. The Bishop is to be Moderator and in his absence any whom he shall Name The Bishop only can Excommunicat and with such Ministers as he associats to himself He only can Depose In this Act likewise is set down a formula of the Oath of Supremacy As to the manner of presenting Ministers it is formerly fully Treated in the Observations upon the 7 Act of the 1 Par. Ja. 6. AFter King James the sixth came to the Crown of England it was necessary that the Laws concerning the Borders should have been alter'd by both Kingdoms and by this Act there is a power granted to His Majesties Officers in England to remand from the Courts of Scotland that is to say to require His Majesties Officers in Scotland to deliver up English Malefactors who had fled into Scotland and another Act of the same Tenor verbatim was past in England about the same time In place of the old Wardens of the Borders there is now a Commission granted under the Great Seals of both Kingdoms to an equal number of Scots and English who have in effect a Commission of Justiciary and it was found by the Council of Scotland that they could not quarrel the Decreets of the Borders because they proceeded by a Warrand under the Seal of both Kingdoms but the Laird of Haining having Charged Elliot for payment of a sum for not presenting of a Thief to the Commissioners of the Borders conform to a Decreet of the Commissioners finding that he had Forefaulted the Bond there was a Bill given in to the Council craving that this case might be remitted to the Commissioners of the Borders and not Suspended by the Session because First These Decreets being pronounced by the English as well as the Scots Commissioners the Session could not be Judges to what was done by vertue of an English Commission and because they could not cite the English Commissioners therefore they could not Reduce their Sentences 2. The Commission of the Border is a Criminal Court and the Lords of the Session are only Supream Judges in Civils 3. The Border is judg'd by a Law unknown to us and therefore since the Lords of the Session behov'd to Consult them though they were Judges it but multiplies Processes and Expences to allow the Lords to be Judges in prima instantia 4. If the Lords were Judges all Thieves or their Cautioners would offer to Suspend or Reduce which would much hinder that expeditness of Tryal which is requisit to stop Thieving in the Borders 5. If the Lords here review'd such Decreets the Judges at Westminster would do the like which would be very troublesome and expensive to us The Council upon this Debate recommended to the Lords to remit the Tryal in so far as it was Criminal to the saids Commissioners By this Act Remanding is only to be granted after full probation of the offences of the persons Remanded in open Courtâ— but this is now antiquated and in Desuetude because it was found by the Commissioners of both Kingdoms to be unpracticable if either the Names or proofs were published in open Court the persons to be Remanded would flee and the Witnesses might be corrupted Therefore it was ordered by common consent that the Commissioners of either Kingdom might Remand privatly from the Commissioners of the other Kingdom and that the person so delated might be immediatly seiz'd upon THis Act is fully Explain'd crim pract tit Rapt THis Act is Explain'd in the Observations upon the 73 Act Par. 6. Ja. 6. THis Act Discharging all Actions of SpuilÈie committed upon the Borders prior to His Majesties coming to the Crown of England is but Temporary But from it it may be observed First That the King and Parliament may dispense with the privat interest of parties upon a publick account nor does the Act salvo jure subjoyn'd to the several Parliaments prejudge or derogat from this Act upon pretext that the parties whose interest was remitted and discharg'd were not call'd 2. In all such Discharges of privat interest and Acts of Grace
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
because even by the Canon Law Benefices cannot be united without consent of the Laick Patron Bengeus de Benefic cap. 3. § 3. num 7. Unions are now made by the Commission of the Kirk and the ordinary reasons upon which Churches are united with us are the meanness of the provision the meanness of the two Parochs and the paucity of the hearers To the granting of which Unions the Patrons must still be call'd because of the above-cited Constitution of the Canon Law but they may be united though the Patron consent not if he shew no good reason for his dissent The Popes also us'd to value Benefices upon new informations whereby the value was much hightned and therefore by that Act it is ordain'd that no Benefices be higher than they were in Bagimonts Roll which Bagimont was a Cardinal who had made a Rental of all the Benefices in this Kings time as Skeen de verb sig observes Verb Bagimont and this Taxation of Benefices is founded on Extravag suscepti Regiminis lib. 6. It is therefore appointed that none supply with Money those who are to go to Rome to make such purchases Act 86 Par. 11 Ja. 3. But that Act seems unnecessary for the Purchasers being declar'd Traitors it was certainly Treason to assist them with Money so that the said Act was made to certifie and clear ignorant people which the Law calls ad majorem evidentiam THis Act is formerly Explain'd and that part of it which appoints the Hosts with whom strangers lodge to be comptable for their uncustomed Goods is in Desuetude except they were conscious to the guilt Vid. observ on Act 3 Par. 1 Ja. 4. supra CRafts men who exact from these of their Craft are to be punish'd as oppressors but I doubt what is the meaning of these words and shall buy their life as common oppressors and the most probable meaning is that they shall be bound to take Remissions for so doing as for a capital Crime Nota Common oppression is capital by this Act and such Statutes or Impositions laid on by Crafts-men for extortioning the Leiges are reprobated by the Laws of all Nations as a species of Monopoly Vid. Tritz de monopoliis cap 12 Vid. observ on Act 21 Par. 2 Ja. 4. Supra CRafts-men leaving off mens work if others refuse to compleat it because of Statutes among themselves forbidding them to undertake any such work such are punishable as oppressors but if they refuse upon any other account they are not punishable for this Act punishes only such as make use of such unlawful Statutes and if Crafts-men should come in to cheat this Act by a general resolution not to suffer any to compleat what another had begun I believe that the Magistrat might punish this as a cheating contravention of this Law Nota That Trades-men who make Statutes against the Common-well of the Leiges are punishable as Oppressors for otherwise Crafts-men might extortion the people at their pleasure This is also discharg'd l. un C. tit 59. lib. 4. de monopoliis nov 122. cap. 1. Aedificiorum quoque artifices vel Aergolabi aliorumque operum professores penitus arceantur pacta inter se componere ut ne quis quod alteri commissum sit opus impleat vid Trith cap. 12. and observ on Act 80 Par. 5 Ja. 1. supra IT is free to sell Victual in all Burrows any day of the Week though it be no Mercat day by this Act yet now every Burgh has its own Mercat days for Corn as well as for other things THough by this Act the users of false Measures and Weights be only punish'd as Falsaries yet the Justices found that the havers of false Measures should be also punish'd as Falsaries though using could not be proven since these who had them are presum'd to have had them only for use except the presumption were taken off as by proving that the Weights were only borrow'd or laid aside upon Tryal May 1671. In the case of Porteous at a Justice-Court in Jedburgh but by the 14 cap. Stat. Dav. 2. The users of false weights were only to pay 8 Cows to the King IT is clear from this that the Masters commanding his Servants or Cottars to break Laws such as Muir-burning specifi'd in this Act does not free the Servants but makes both lyable albeit Ignorance and Command when joyn'd might seem to excuse the breach of a penal Statute at least a poenâ ordinaria but the Masters Command should not excuse from the punishment where the Transgression is either against the Law of God of Nature Nations or the Crime is atrocious in it self SOme of the Nobility having most Rebelliously fought against King James the third upon a false pretext that he was bringing in the English upon the Kingdom they advanc'd his Son King James the fourth to be Leader and having prevail'd they secur'd themselves by several Acts yet extant in the black Impression but which are omitted in this Impression except this one THe King Revocks all TailÈies made to Heirs-male in prejudice of heirs general because as Craig observes this is against Conscience and is defrauding of the Righteous Heir and I have seen old Licences granted by the Pope to make such TailÈies and Alienations for reasons exprest in the Bull and upon Consideration whereof the Pope dispences with the matter of Conscience and in the Act 50 the Estates without the King revock all such Rights quod notandum Nota The King here Revocks all change of holdings from Ward to blench and not from Ward to Feu because it was lawful at that time to change from Ward to Feu by the Act 71 Par. 14. Ja. 2. Nota Union of Lands in Barony is revocked by this and all the posterior Revocations of our Kings because one Seasine serves after the Union and the Proprietar is only oblig'd to answer at one Court so that the King loses several Casualties Vid. Act 93 Par. 6. Ja. 4. King JAMES the fourth Parl. 5. BY this Act Barons are to cause their Sons learn Latin jure that is to say Law because the Act sayes that they may have knowledge of Law to prevent needlesse coming before the King 's Principal Auditor for which reason also Advocations are much discourag'd by many subsequent Acts Auditor was not a proper term for the Session for Andientia is properly allow'd only to such as have not Jurisdiction as is clear by Gothesr ad Rubr. C. de Episcopali Audientia BY this Act all Actions of Error against Brieves or inordinate Process are to be pursued within three years else they prescrive And by the Act 13. Par. 22. Ja. 6. It is declared that the prescription secures only the Assyzers against wilful Error but that the Retour may be quarrelled within 20 years as to the right of Blood prejudg'd by the said wrongous Retour And it is observable that the Law favours still revenge less than
our Laicks with the consent of our Kings did think they could bestow the Teinds belonging to these Kirks whereof they were Patrons upon Religious Houses whereof I have seen very many Instances in our old Charters one whereof I shall set down for an Example Alexander Dei gratia Rex Scotorum c. Sciant tam posteri quam praesentes nos concessisse c. Deo Ecclesiae sanctae Mariae de Dryburgh Ecclesiam de Lanarch now Lanerk cum terris decimis omnibus rebus juste ad illam pertinentibus Item How the other Church-lands became first to belong to Monastries I shall God-willing clear in an express Treatise concerning Kirk-lands and Teinds THis Act is Explain'd in the former Revocations only here the Fees and Pensions granted to the Officers of the Crown are excepted from this Revocation and the Officers of the Crown are declar'd to be the Thesaurer Secretary the Collector which Office is since joyn'd to the Thesaurer the Justice that is to say the Justice-General Justice-Clerk Advocat Master of Requests Clerk of Register and the Director of the Chancellary the Director of the Rols is but his Deput The Order wherein they are set down makes the Advocat to preceed the Register and though the Justice Clerk be named before the Advocat yet that is only because in all this enumeration these of one Court are still set together and therefore the Justice Justice Clerk and their Deputs are still set together but it would appear that the Justice-General should by this preceed both the Register and Advocat But by Ch. 1. His Revocation which is the 9 Act of his first Parliament the Register and Advocat are rank'd before the Justice and Justice-Clerk posteriora derogant prioribus Nota The Privy-Seal and Thesaurer-Deput are not here marked though they be both Officers of the Crown The Precedency amongst the present Officers of State was by Act of Council February 20. 1623. thus determined Lord Chancellor Lord Thesaurer Lord Privy-Seal Lord Secretary Lord Register Lord Advocat Lord Justice-Clerk Lord Thesaurer-Deput by Act of Parliament 1661. the President of Session was then and not till then ordain'd to preceed the Register Advocat and Thesaurer-Deput and the Register and Advocat then were ordain'd to preceed the Thesaurer-Deput By this Act of Revocation all the Exceptions in any former Acts are likewise Revocked but under this part of the Revocation do not fall the Exceptions in the former Act of Annexation for King James was then major and though he had not been major yet these Exceptions being made by a publick Law it may be said that publick Laws cannot be taken away by a Revocation for the Revocation is but a privat Act of the Kings whereby His Majesty secures Himself against privat Deeds done by Himself in His Minority but not against what He consented to as publick Laws By the last Clause of this Act it is provided that his Majesty shall not be prejudged by suffering any party to possess any Lands or others fallen under the Revocation but that his Majesty may put his hand thereto at any time but any obstacle by the first part of which Clause it is not meant that prescription shall not be valid against the King but only that the possessors shall not have the benefit of a possessory judgement and by the last Clause it appears that our King 's having revock'd they needed not intent Reductions ex capite minoritatis but may brevi manu intromet with what falls under Revocation even as they may do in their annex't property for this same Clause is like to that contain'd in the Annexation Ja. 2. Par. 11. Cap. 41. and which is repeated in all the other Acts of Annexation See Observ. upon that Act but it is more reasonable to think that the King needs no Reduction because he must prove Lesion in case of Reductions ex capite minoritatis but the King needs prove nothing in the case of Annexation yet our King is still in use to pursue Reductions and not summarly to dispossess these who have right WHilst our Parliaments grew very factious in the time of Q. Mary the Popish and Protestant Party contending who should prevail in Parliament the Popish Clergy who were very numerous in Parliament since all the Bishops and Miter'd Abbots did sit there as Church-men each of them who had Lands and Heretage craved two Votes one as Church-men and another as Barons To prevent which for the future this Act was made discharging any of the three Estates to take upon him the Office of all the three Estates or any two of them but the following words are not so clear viz. That every man shall only occupy the place of that self same estate wherein he lives and of which he takes the style which was designed to keep Barons who could not get themselves chosen to represent their Shires from being chosen as Burgesses of Parliament though they were Provosts or Magistrats as they then ordinarily were and by it also a Burgess who is ordinarily so design'd may be debarr'd from being chosen as a Baron of a Shire This Act was long in Desuetude but of late by Acts of Burrows all Burgesses are discharged from electing Gentlemen to represent them in Parliament under the pains specified in these Acts for they found that Gentlemen did not adhere to nor understand the true interest of Burghs and the King found that none desired to be so elected except such as had private designs albeit upon the other hand it is represented that this is the way for Burgesses to have their interest maintain'd by Lawyers or able States-men either of which they may choose and the people of England who are very jealous of their priviledges do choose such by which likewayes their Parliament is so considerable and their Laws are made by so judicious Lawyers But by an Act of the 3 Par. Ch. 2. it is determin'd that only actual Trading Merchants can represent Burghs-Royal in Parliament and that Act was founded upon an express Decision of the Session THe unlaws for absents from Parliaments here set down are 300 pounds for every Earl 200 pounds for every Lord 100 pounds for every Prelat and 100 Merks for every Burgh but there is no penalty appointed for Barons and I think that they are comprehended under the word Lords for the Lords and Barons make but one State of Parliament and Laird is but a corruption of the word Lord of old 10 pounds only was the unlaw or amerciament as is to be seen by the Preface of all the Acts of Parliament which bears ordinarly these words alii vero quasi per contumaciam se absentaverunt quorum nomina patent in rotulis sectarum quorum quisque adjudicabitur in amerciamento decem librarum THis Act appointing every State of Parliament to have three Apparels conform to a pattern to be made was not made that every man might have three several Habits
have here insert because they tend very much to the clearing many of our old Laws and Customs The Reasons were 1. That the Rule and Way for uplifting Taxations has in all ages been according to Retours and the Taxed Rolls until these late unhappy and irregular times from which it is humbly conceiv'd a Rule and Presedent ought not to be taken It is beyond all question this being the good old way though it were upon no other account ought not to be changed the danger and inconveniency of the alteration of ancient Laws and Customs being so great and obvious from the late experience of these Kingdoms that this age needeth not to be put in mind of the same but may be a sad remembrance to posterity 2. The foresaid way is only now the legal way wherein Taxations can be uplifted at this time seing the same is determined and authoriz'd by ancient and uncontroverted Customs in all ages and beyond memory and by the Law of Nations and the fundamental Law of this Kingdom ancient National Custom is Law and of as great force as Statute and is the great Basis and foundation of the Power and Rights and Property of the Prince and People which for the most part are warranted and secured by the Common Law and Custom and not by express Act of Parliament and Statute 3. This way of uplifting Taxations and the proportions of the same payable by the respective Estates is designed and established by express Laws and Acts of Parliament so that the same cannot be altered but by a Parliament which only has power to repeal as appears by the 56 Act Ja. 3 Par. 7. intituled These Retours should contain the Old and New Extent and the Act 229. Ja. 6 Par. 14. Ordaining all Feu-lands annex'd and other Feu-lands vvhatsomever to be retour'd and vvhen any Taxation or Impost is to be rais'd that the Feuers shall be charged according to the Retour and by the 229 Act Ja. 6 Par. 14. Ordaining His Majesties Property to be Retour'd and such Lands as are dissolv'd and dismembered from Baronies to be Retour'd and charged according to the Retours in order to the payment of Taxation and divers others and in special all the Acts of Parliament concerning the granting and uplifting Taxations 4. Whereas it is pretended by the Heritors of the Western Shires that their Retoures are higher than in other Shires and that it should be a more equal way that the Taxation should be uplifted as Câ—sses according to the Valuation without respect to Retours these Gentlemen have no reason to complain being their own Deeds procured by them upon the verdict of their own Friends and Neighbours per fideles homines patriae and according to which they have pay'd not only Taxations according to the old extent but His Majesties Casualities of None-entry Relief and siklike according to the New Extent contain'd in the said Retours and has been also in use to uplift the like Casualities from their own Vassals according to the said Retoure That the Retours should be altogether taken away both as to Old and New Extent it is conceiv'd that they will not desire seeing if their Retour should be lessened as to the New Extent it would be an irrepairable prejudice to His Majesty as to his ordinary Benefite and Casualities of None-entry Relief and siklike a prejudice to themselves as to the same Casualities due and payable to themselves by their Vassals and what incongruity should it be that the same Retour should be altered as to the Old Extent and should be stated as to the New and that it should be still a Rule as to their own interest and benefite and not as to the payment of the Taxation to his Majesty as it has been in all ages it being also considered that they cannot say that the Lands are valued unjustly by their Retours and extend to more than the true value the time of the Retouring of the same and since that time they cannot deny that they are improven for the most part above any proportion 5. The interest and consequently the way of proceeding of Lawful Princes and Usurpers being so different and opposite that as Princes are patres patriae and do cherish and intend the flourishing of their Subjects so by the contrary it is the interest and practice of Usurpers deglubere to squize and oppress the people that they should not be in a capacity to shake off the Yoke it is neither the honour nor interest of the Countrey to take a pattern and rise from the Usurpers to overturn the ancient Law of the Kingdom especially in the matter of Taxations seeing the necessity and fatal course of these times in order to maintaining of War against his gracious Majesty and his blessed Father did not only require a Taxation which was an easie burden to the people and were chearfully granted and oftimes offered to his Majesties Royal Predecessors as an aid and subsidie when their occasions did call for the same but the Usurpers were driven to exact a considerable part of every persons Estate as a constant Tribute under the notion of Taxt and Loan Maintainance Cess and such like burdens which cannot be remembred without horrour and in order to the same to introduce a new way by Valuation whereas his Majesty is to have an ordinary Taxation and therefore there is no reason but that the same should be rais'd in that good old and ordinary way that has ever been used in the time of his Majesties Father and his Royal Predecessour 6. The way of Cess both as to the manner and thing is so hateful to the Body of the people of this Kingdom that though exhausted in a low condition they did offer and chearfully grant to His Majesty a constant yearly Taxation and Annuity during His Majesties Life of 40000 pound Sterling upon consideration expresly mentioned in the said Act that His Majesty had signified His Royal Resolution not to raise any more Cess it cannot be expressed how great dissatisfaction and apprehension it would beget in the hearts of the people if that unhappy way of Cess should be reviv'd under what name or notion soever now after His Majesties Restitution and that the people had just reason to think themselves secur'd by the ancient Laws and Custom of the Kingdom and His Majesties gracious Resolution so recently and solemnly expressed by His Majesties late Commissioner in Parliament and recorded in a Printed Act being the 14 of His Majesties late Parliament and first Session thereof 7. The Western Shires being only five and the remnant Shires who plead for the good old Way according to the ancient Laws of the Kingdom being five times more it is humbly represented that the interest and number of so many other Shires should weigh down the pretences and desires of so few Shires for a Novation contrary to the Law and Liberty of the Kingdom it being also considered that though the Loyalty of some Noblemen and
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
be no Burgh Royal July 10. 1623. The reason of which Exception was founded upon the exactness of Town Clerks and the constant Custom thereof Booking how soon the Seasin is granted and so far are Seasins within Burgh exeem'd from such Solemnities that the Lords sustain'd a Seasin within Town being subscribed by the Town Clerk though there was no Vestige of it in the Towns Register nor the Notars Protocal and was Latent for many years June 30. 1668. and thus singular Successors were not sufficiently secur'd by this Statute within Burghs for though Town Clerks use to Registrat yet there being no necessity upon them to Registrat and the Seasin not being annulled for not Registration it follows clearly that there is no security and therefore by the 11 Act Par. 3 Ch. 2. This is alter'd and the necessity of Registration is thereby extended to Seasins within Burgh and to all other Writs which by this Act must be Registrated THe Form us'd in loosing Arrestments of old was by the Messengers giving a Testificat under his Hand that the Arrestment laid on by him was loos'd this being too great a Trust for a Messenger and they receiving oftimes irresponsal Cautioners By this Act it is ordain'd that Arrestments shall be loos'd only by Letters on Bills past by the Lords which is now observ'd and Caution is found to a particular Servant in the Bill-Chamber to whom the Trying that the Caution is sufficient is referr'd and the ordinary way to hinder an unsufficient Cautioner is by getting a Warrand in praesentia from the Lords of Session for that Effect after presenting whereof to that Servant if insufficient Caution be receiv'd The Lords will give Warrand to Arrest de novo but if the Caution be once found and the Letters exped The Lords will not allow upon a Bill Arrestment to be made de novo nor recal their Letters though the Caution be insufficient the Clerk of the Bills being answerable by his Office for the sufficiency of the Caution THis Act grants power to all who are Infeft in â—oâ—â—estâ—ies to Judge such as shoot and kill Vennison and Wild-fowl therein and that by an Inquest which seems to exclude all other wayes of Tryal for inclusio unius est exclusio aâ—â—â—rius and this Inquest was ordain'd to prevent the partiality and passion of the Heretor THis Act punishing Drunkards by sining is not well enough observ'd though it be renew'd Act 19 Par. 1 Ch. 2. It seems by this Act that the Kirk is regulariter founded in the judgeing and sining of Drunkards though it may be alleadg'd that this were to secularize too much Kirk Sessions which is properly an Ecclesiastick Judicature and by the Commission granted to the Justices of Peace The Justices seem to be made the only Judges as appears not only by the Instructions given to them but by the said 19 Act Sess. 1 Par. 1 Ch. 2. Though it be alleadg'd that Kirk-sessions have likewise a cumulative Jurisdiction for punishment of all Scandals for which the 22 Act 3 Sess. Par. 2 Ch 2. is alleadg'd and the constant practice of the whole Nation and it was found by the Council May 1681. The Kings Advocat contra the Justices of Peace of Dumfermling that the Kirk-sessions might uplift such fines as were voluntarly pay'd to them for such Scandals without being countable to the Justices of Peace for them THe difference betwixt a Caulp and HereÈeld is that a Caulp is is the best aught or Beast that a man has which is due to the Chief or Master after his Death for protecting his Bairns given by express paction whereas a HereÈeld is the best Beast due to the Master only by Law after his Tennents Death Caulps are here Discharg'd but HereÈelds were allow'd Quon Attach cap. 23. But it would seem that HereÈelds and all taking of the best Beast is discharg'd by this Act albeit indeed they are not THis Act is Explain'd in the 45 Act Par. 11 Ja. 6. To which is to be added that by this Act the Relicts and Bairns of Notars being oblig'd to bring in their Protocals to the Clerk-register within fifteen dayes after any Notars decease the Register uses to appoint a Deput call'd now the Clerk of the Notars who draws their Bill and receives Caution from them and is by his admission oblig'd to do Diligence to mark the Books of Notars and to receive Band for their returning their Books and therefore Sir William Primrose for not doing Diligence was Depos'd upon a Bill to the Lords February 19 1680. Though he alleadg'd that the Wives and Bairns only of the Notars were oblig'd to bring in their Protocals but not he and he was content for the future to follow what Instructions should be given him King IAMES the sixth Parl. 23 THere being a General-Assembly held at Pearth in August 1618. by Hadingtoun Southesk and Scoon as His Majesties Commissioners there were five Articles therein past in order to uniformity with England viz. Kneeling at the Sacrament Privat Communion Privat Baptism Confirmation of Children and the observing some Festival Dayes for conformity with the Church of England as far as was possible Which Articles are here Ratifi'd in Parliament nor is there any standing Law made since to abrogat them albeit for Peaces sake they have not been much observ'd VId. observ on Act 3 Par. 22 Ja. 6. Supra IN this Act it is warranted that such as Compris'd great Estates for small sums did notwithstanding possess the whole Rents for payment of their small Annualrent and therefore to Correct this it is ordain'd by this Act that the Comprizer shall impute in payment of his principal sum the superplus of the Rents of the Lands intrometted with by him and the true reason of the former Custom was because by the 37 Act Par. 5. Ja. 3. The Lands Comprized were to be adjusted by the Sheriff with the sums Comprized for and so the Rent was at first but answerable to the Annualrent though thereafter all being Comprised the Compriser appropriated all the Rents without imputing as said is Observ. 2. That this Act makes only the Compriser lyable for his actual intromission and it has been found that the Compriser is not bound to intromet But yet this is so severe to the poor Debitor and the other Comprisers all whom the first Compriser may debar and so suffer the Tennents to Bankrupt and the Lands to become waste that therefore if a Compriser once intromet he is bound to continue his intromission and where there are Tacks standing he is bound to do Diligence February 9. 1639. or where there are moe Comprisers the Lords may force the first Compriser to do Diligence or if he do not betwixt and such a time yearly they may allow access for the second to enter to the Possession February 11. 1636. July 1662. Or if the first Compriser exclude any Diligence that the second is using he will eo ipso
Land Parsonage Vicarage or other Living belonging to the said Dignity dissolved from the same without express Warrand from His Majesty and Parliament shall be null For understanding this Act it is fit to know that in every Bishoprick there are several Dignities allow'd by the Canon Law by which Law the Word Dignity is either taken largely so as to comprehend all Ecclesiastical Dignities as in cap. denique dist 4. But properly it imports administrationem Ecclesiasticam cum honore vel jurisdictione conjunctam Glâ—ss in cap. 1. de consuetud in 6. and generally all such to whom the Cognition of Causes could be delegated were accounted Ecclesiastick Dignities cap. cum olim de offic legat There are in every Chapter and Bishoprick with us some of those Dignities but of a different Rank and Jurisdiction not only from those in the Canon Law but the Dignities in our own Bishopricks differ from one another though all of them agree in this that those Dignities which were appointed at the foundation of the Bishopricks continue to this day and the foundations are the Rule and are very different The ordinary Dignities common to all are the Dean the Arch-dean the Chanter the Chancellour and the Thesaurer The Office of the Dean has been fully Explain'd in the Act 2 Par. 22 Ja. 6. The Arch-deacon call'd improperly by us Arch-dean is the Archidiaconus of the Canon Law who though they be inferiour to Deans yet they are in effect the Bishops Vicar and have the Chief Jurisdiction next to him being in the Canon Law oculus Episcopi their Office in that Law was to examine such as were presented to the Bishop and to put them in possession of their Benefice after their admission as also to visit the Diocy every three year if the Bishop be not present and to oversee the Manners and Living of the Clergy The Chanter is in the Canon Law called Primicerius because he is first of the Order of the Singers and by the Greek Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his employment was to oversee such as sung and read in the Church and with us the Sub-chanter is a dignity called Succentor in the Canon Law and that likewise he was allow'd a dignity by the Canon Law is clear Innocent cap. 3. inter dilectos de excess prael The Chancellor was so called because he kept the Seal of the Church Cujac ad tit ut Eccles. bon sine diminut conserv he was likewise Superviser of the Bibliotheck of Schools and of these who taught the Clergy cap. penult ult de translat Epis. cap. veniens de reg trans ad monast In England the Chancellor is in effect a Church-Lawyer who judges for the Bishop through the whole Diocy and is universal Commissary whereas these only are called Commissars by that Law to whom the judging in particular Places or Cases is committed But with us the Chancellor is still a Church-man and the Province of Saint Andrews has its Chancellor as well as the special Bishopricks the Bishop of Edinburgh being the Chancellor of the Province of Saint Andrews The Thesaurer is he who did oversee the Thesaury and all things else belonging to the Church who in the forecited cap. cum olim is accounted to have Ecclesiastick Dignity It is observ'd by Bengeus de beneficiis Ecclesiasticis Renat Chopin and other Canonists that both the Jurisdiction and Precedency amongst those Dignities is now consuetudinary and alter'd much according to the custom of the several Places and it is so with us where they are regulated according to the special Foundations or Custom if these be wanting or lost THis Act is Explain'd in many other Acts concerning the priviledge of Burghs Royal. THis Act is formerly Explain'd in Act 47. Parl. 11. Ja. 6. BY this Act all playing at Cards or Dice in any Inn or Ale-house is discharg'd under the pain of fourty Pounds and all playing at Cards or Dice even in privat Houses is forbidden except where the Masters of the Families play and all playing at Cards and Dice even though the Master play and all Horse-Races are so far restrain'd that the Gainer cannot have Action for any thing he wins above an hundred Merks But yet it was found that the Loser is still lyable in payment and therefore the Kings Advocat was found to have interest to compear and crave the Money to be consign'd November 12. 1668. Park contra Somervel Where it was debated if this was vitium reale and might be taken from an Assigney though he knew not how the Money was dew for else this Act might be eluded by filling up the name of an Assigney By the Civil Law Tit. 43. lib. 3. l. 1. Cod. de aleatoribus he that is overcome at such Games is not oblig'd to pay and though he pay he or his heirs have repetition and by the Canon Law Church-men who use such Games cannot be promoted to Benefices cap. 11. de excess prelat but yet wagering seu sponsio was by that Law allowed l. 17. § ult ff de prescript verb. and so our Horse-races were not condemn'd by that Law though they are by ours for that Law did think that nullam turpitudinem continet in se spoâ— sio nam inde rixae oriri non solent but our Law did condemn Horse-Races because they occasion'd great Idleness and Expence This Act is still exactly observ'd but is not extended to other Wagers such as that Ships will arrive at such a day or in such a place which was not found to fall under this Act which speaks only of Cards Dice and Horse-Races it seems that this Act would not be extended to any other Game ex paritate rationis but yet I find that by the late Decisions of most Nations these are not sustain'd tanquam otiosi aleatorii contractus qui nihil in se continent praeter inanem animorum concertationem Stockman decis 134. Molin tract de usur quest 3. num 97. By the Civil Law likewise though wagering was allow'd yet where either of the Parties did certainly know the thing whereupon he wagered but conceal'd his knowledge as for instance if a man should wager that such a man should be dead before a year elapsed and that he knew him to be already dead the Law would not allow Action upon that Wager because in effect that were to cheat and accordingly our Courts in Scotland have most justly decided Wagers likewise upon the deaths of Princes are discharg'd as giving occasion of jealousie as also Wagers concerning the event of Publick Undertakings for the good of the Countrey such as the success of Arms c. and that lest men should be tempted either to wish the Armies of their native Country not to prosper or to reveal their Secrets to the end they may not prosper vid. Zipeum in not juris belli lib. 3. in fin there is such an Act as ours made by Lewis 13. of France amongst his Statutes cap. 138.
pag. 206. Observes well that formula illa quae est in titulis Dei gratia utuntur illi soli qui nulli mortalium imperium suum debent vid. obs on the 251 Act Par. 15 Ja. 6. THis Act allowing the Government by Synods Presbytries and Sessions is Rescinded by the 1 Act of the 2 Sess. of this Parliament THis Act appointing a Solemn Aniversary Thanksgiving for His Majesties happy Restauration was scrupled at because this Act did appoint it to be set a-part as a Holy-day and therefore it was thought fit by the 12 Act of the 3 Sess. Par. 2 Ch. 2. To renew it as an Anniversary Thanksgiving leaving out the words Holy-Day THis Act against Cursing and Beating of Parents is fully Explain'd crim pract tit Paricide THis Act is Explain'd crim pract tit Blasphemy THis Act concerning casual Homicide is Explain'd crim pract tit Homicide but it is fit to add here that the Rubrick of this Act of Parliament bearing Act concerning the several Degrees of casual Homicide is very rediculous for the degrees mentioned in the Act are casual Homicide Homicide in lawful Defence and Homicide committed upon Thieves and no sober Lawyer can think that either Homicide in Defence or Homicide committed upon Thieves are degrees of casual Homicide BY this Act the whole priviledges belonging to the Colledge of Justice that is to say Senators Advocats Clerks Writers and remanent Members or whereof they have been in use or in possession at any time bygone are expresly Ratifi'd and that notwithstanding of whatsoever Act Custom or Practice to the contrary Vid. Act 8 Par. 2 Sess. 2 Ch. 2. Where the priviledge of Immunity from Taxes is only given to the Lords of Session Upon which Act it was Debated in December 1678. Whether Advocats should not be free from the Annuity impos'd by the Town of Edinburgh since they were by this Act freed from all Impositions and though by a special Act of this same Parliament Ch. 2. The Colledge of Justice was made lyable to the Annuity Yet they being free by this Act and the other Act being but an un-printed Act and an Act to which they were not call'd their priviledge could not be thereby taken away albeit it was contended that the being free from Annuity was no priviledge ever expresly Declared in their favours But on the contrary was a Debt upon them as Hearers of the Word of God and so the Parliament might very well by a general Law declare this Priviledge not to prejudge the Annuities nor was that Law concerning Annuities a special but a general Law binding all the people who came to live in Edinburgh and therefore there needed no party be cited nor was it necessary to the Essence of an Act of Parliament that it should be printed BY this Act the Creditors of the Defunct are prefer'd to the Creditors of the appearand Heir as to all Execution against the Defuncts Estate they doing Diligence within three years after the Defuncts Death which three years was found to be tempus continuum and not utile and that these three Years did run even contra non valentem agere December 19 1678. Paterson contra Bruce The reason of which Act of Parliament is that it is just that every mans Estate should pay his own Debt though upon the other hand it is likewise just that in the next place the appearand Heirs Creditors may likewise do Diligence even against that Estate to which their Creditor may succâ—ed Nor ought his voluntary lying out to prejudge them for which cause likewise it is that they may Charge the appearand Heir to Enter and Comprise or adjudge the Predecessors Estate BY this Act it is ordain'd that fourty dayes after the Sentence of Excommunication Letters may be rais'd at His Majesties Advocats instance for Denuncing the persons Excommunicat Rebels the Process being first revis'd by the Lords of the Session but this power of the Lords of the Session being made before the Bishops were Restor'd is abrogated by the 23 Act of the 3 Sess. of this Parliament BY this Act the person from whom Goods were Stollen is to have his Goods or the value thereof restor'd to him out of the readiest of the Thiefs Goods he alwise pursuing the Thief to Sentence Observ. 1. Since this Act reserves to the Sheriff or Takers of the Thief the expence war'd out by them in taking the Thief and putting him to â—xecution It seems that they ought to be prefer'd to the Owners of the Goods though the Act sayes that he is to be pay'd out of the readiest Observ. 2. It may be doubted whether the Justices or the Judge ordinary should Restore and though the Justices have no civil Jurisdiction yet I have seen them Restore in such Cases and this is in effect an incident Jurisdiction â—b continentiam causae Observ. 3. That it has been doubted whether third parties buying the Goods though in a publick Mercat are oblig'd to restore THis Act pardoning penal Statutes seems by a mistake to except Usury for Usury is properly a Crime punishable by all Law at all times Whereas a penal Statute is properly a Statute which punishes a Delinquency that is only punishable upon some occasions by an arbitrary punishment and therefore Acts of Grace or general Indemnities Discharging the Execution of penal Statutes should no more be extended to Usury than it should be extended to Murther or Adultery and Usury is by the Act of Indemnity which is the 29 Act 3 Sess. of this Parliament excepted from that Indemnity amongst Murderers Thefts and other Crimes of that Nature and it was excepted only in this Act ad majorem cautelam because the Chancellour had then the Gift of Usury What are properly counted penal Statutes may be seen Act 9 Par. 21 Ja. 6. Where amongst other Crimes Usury is ordain'd to be punish'd and not to be pardon'd as a penal Statute and if Usury fell under penal Statutes it would very much encourage Usury for men would still expect a Discharge of it because penal Statutes are frequently Discharg'd But yet the Lords in the case betwixt the Laird of Haining and Cruick found that Usury was Discharg'd by the Act of Grace 1674. because of the special conception of that Act. BY this Act the Quots of Testaments are taken from the Commissars but upon the Restoring of Bishops this Act is abrogated by the 1 Act and 2 Sess. of this Parliament THis Act is formerly Explain'd Act 77 Par. 13 Act 10 Par. 18 Ja. 6. THis Act is formerly Explain'd in the 14 Act Par. 1 Ch. 1. BY this Act all Comprisings are to be allow'd within sixty dayes after the date thereof with Certification that if they be not allow'd and Recorded within that space a posterior Comprising first Recorded shall be prefer'd thereto and upon the 8 of June 1665. The Lords upon a Supplication ordain'd a Comprising to be allow'd
Act that the Militia is come in place of the old Weapon-showings and that there being 20000 Foot and 2000 Horse granted as a Militia by the 26 Act 3 Session of the first Parliament which does specifie the particular proportion of Horse and Foot to be given by every Shire It might have been thought that these proportions could not have been altered but by the Parliament and yet the King and Council having Converted the Foot of some Shires unto Horse seems to be founded upon the last Clause of the former Act whereby His Majesty is intreated to give Directions to His Privy Council for mannaging of that whole affair as His Majesty shall think fit which Acts of Council and the said alteration of the proportions are hereby Ratifi'd as having been Legal and in the last Clause of this Act His Majesties Subjects are Commanded to obey whatever Orders and Directions they shall receive from the Privy Council relating to the Militia and upon these Clauses was founded the overtures of the late Conversion of the said 22000 to 5000 augmenting the number of the days wherein the said 5000 are to serve according to what might have been exacted from the whole 22000 so that the 5000 are to meet the number of 176 dayes because the 22000 were oblig'd to meet fourty dayes though this last model was by some objected to be a standing Force and all Laws are stricti juris and to be fulfill'd in forma specisica but especially Taxations which are a Gratuity founded upon the free Offer of the people as this is to allow Conversions in such Cases would discourage the Subjects from future offers This Act likewise did Ratifie the Acts of Council which appointed the Shires to provide at their own Charge Colours Standarts Drums and Trumpets though that might seem an Imposition but these being necessars and the natural Consequents of the first Grant and the Parliament having granted to the Council the former power as said is these Acts of Council are therefore hereby approven as Legal Both this and the former Act doe ordain the Militia to be furnished with fourty Dayes Provision which was the old provision that was ordinarly to be made by such as came to the Host albeit sometimes twenty dayes provision be only appointed as in the 90 Act 13 Par. Ja. 3. And of late the Council has ordain'd this provision to be made in Money though it was contended that the Parliament having appointed only provision to be made it was in the power of the persons obliged to furnish their own men according to their conveniency But Money being thought fitter for expedite Marches the Council thought they were authorized by the former Clauses to make this Conversion and some have thought that by the same power the Council could ordain the Shires from whom no proportions of Militia was sought to advance free Quarter to such of the Militia as could not furnish themselves or at least might force them to be the first advancers in Cases of necessity This Act concerning the Militia is further clear'd by the first Act of the third Session of this Parliament appointing such as 〈…〉 serve either as Officers or Souldiers in the Militia to accept and to take the Oath of alleadgeance and that those who are set a-part for the Militia be not altered c. NOtwithstanding of all our former excellent Acts for securing singular Successors yet they were still un-secure because they could not know if the Vassal had Resigned his Feu ad remanentiam in his own Superiours hand for in that case there was no Seasin requisite which is the only Register whereby singular Successors know if Lands were formerly Dispon'd and therefore by this Act it is appointed that these Instruments of Resignation ad remanentiam which are equivalent to Seasins be Registrated in the Register of Seasins within sixty dayes which is the time appointed for Registrating of Seasins by the 16 Act Par. 22 Ja. 6. By this Act likewise as in that Act Instruments of Resignation of Lands holding Burgage are excepted but it seems that they must be Registrated within the Town-Court-Books within the same sixty dayes for the Act sayes only That such Instruments being Registrated there shall not fall within the Certification BY this Act it is Declared unlawful to poind Moveables upon Registrat Bonds or Decreets for personal debts till the parties be first Charged and the dayes of the Charge expire The reason of which Act was because Noblemen and persons of quality were oft-times poinded and so affronted and Merchants surprized and thereby Ruined before they knew that a Decreet was recovered against them or their Bond was Registrated But this Act was found not to extend to other Diligences ex paritate rationis this being an Act restrictive of former Laws and Customs From this Act are expresly excepted poindings used against Vassals for their Feu-duties But this Exception was very unnecessary and unproper for such poindings did not at all fall under the prohibition of the Statutory part of the Act which only prohibits the poinding Moveables for personal Debts Exception is likewise made of Decreets obtained by Heretors against their own Tennents in their own Courts only and therefore it has been doubted whether Tennents may be Remov'd and Ejected without a previous Charge and though upon Decreets before the Lords previous Charges are necessary Yet upon Decreets of Removing before inferiour Courts it is the Custom to eject immediatly and though this may seem hard yet it is necessary because the intrant Tennent must Remove immediatly and so must have a place to which he may remove sibi imputet the Tennent who being warned did not provide himself timeously IT is fit to observe from the Narrative of this Act that the Parliament thought the King and Council had power to emit Proclamations Commanding the Parochs to Protect and Defend their Ministers and to be lyable to such Fines as the Council should think fit besides the Ministers Reparation if the Offenders were not brought to condign punishment which shows what great power the King has in the like Cases and the Council are hereby authorized to proceed in taking such courses for the future which general power may go very far especially where these courses are otherwise satisfied by necessity This Act is more fully Explain'd in the observations upon the 27 Act Par. 11 Ja. 6. FRom this Act Discharging Suspensions against Bishops Ministers and other Benefic'd persons without Consignation It is observable from comparing the Narrative and Statutory part of the Act that Vniversities and Colledges are still accounted a part of the Clergy and have still the same priviledges with them SInce we find that the Parliament grants Acts for Naturalization of Strangers as is clear by this and by the 65 Act Par. 8 Q Mary It may be doubted if the King can Naturalize Strangers by a Deed of His for else those Acts were unnecessary and in
For though these be Heretable yet they are but Temporary Rights being Redeemable there is another Paper Register likewise for Retours Of old the precept of Seasin did pass the Quarter-Seal But because that was expensive and troublesome therefore they are now ordain'd to be ingrossed in the Charter and so pass the Great Seal only By this Act likewise Charters which were formerly in a large Skin of Parchment are by this Act ordain'd to be Written by way of a Book that they may thereby be the more commodiously Read the Line being very much shorter in the one than in the other BY an old Custom in Scotland Burgesses might have arrested Strangers if they found them within their Burgh till they faud Caution to pay them what was due But by this Act this is Restricted to Horse or Mans Meat AbuilÈiments or other Merchandise for which they have no security which Act was found not to extend to such as lived upon the Borders of either Kingdoms The Custom having been amongst the Borderers of each side to cause one another find Caution judicio sisti judicatum solvi lest otherwise the English might have drawn the Scots to London or the Scots the English to our Session Laws unknown to either and therefore since the English continued this Custom after this Act of Parliament it was fit that the Scots should have the like priviledge of arresting such as dwell in England January 13. 1676. Bell contra Robertson and it was found by the Council that the same Custom had been and therefore should be allow'd to Sheriffs and other Magistrates without Burgh so that the Sheriff upon the borders may arrest any English-man till he find Caution judicio sisti judicatum solvi By this Act Burghs of Regality and Barony are discharged to arrest or Incarcerat any person who are not Burgesses or Inhabitants in their Burghs for any manner of Debt which seems to imply that they may arrest their own Burgesses who are Inhabitants Likeas de facto they use to arrest such This Act having Discharg'd all such arrestments except for Horse or Mans Meat AbuilÈiments or other Merchandize The Lords February 22. 1677. Found that a Merchant could not arrest a stranger within Burgh until he should find Caution to answer as Law will for payment of the price of a Bargain of Victual which had fallen to the said Burges as a part of his Fathers Stipend and consequently was of the nature of other Ferms though it was alleadged that this did fall under the word Merchandise and that Corn so falling to be due might as well fall under this Act as a Merchands Shop falling under Executry or Legacy THis Act Ordains that no person shall Ordain or be Ordained Ministers except in the way prescriv'd by the present Government of the Church under the pain of Banishment and Confiscation and whosoever shall be married within this Kingdom by the foresaid persons or any not authorized they shall amit and lose any Right or Interest they may have by that Marriage jure mariti vel jure relicti and that by and attour the penalty contained in the Act 1661 which is the 34 Act Par. 1 Ch. 2. Upon this Act His Majesty having Gifted the jus mariti of Hume of Kimmorghame who had Marâ—ied the young Lady Aiton and a Declarator being pursu'd at the Donatars Instance· It was alleadg'd That first The person who Married them had a Licence from the Arch-bishop of St. Andrews to Preach 2. That the jus mariti was not declared by this Act to fall to the King but only that the Husband had amitted the same and that the King can have Right to no Confiscation except where the same is expresly declared to belong to Him by the Statute which inflicts the Confiscation To which it was answered That as to the first no man could Marry any within the Paroch of any Minister without leave from that Minister who could only understand whether the parties might be Married lawfully nor is the being ordained a Presbyter sufficient since that gives only power to Preach but not to Baptize or Marry Marriage especially requiring Proclamation of Bonds which is de officio Parochi To the second it was answered that by Law all Confiscations cedunt fisco whether the Act appoint so or not this being the very nature of Confiscation as is clear by Peregrin de jur fiâ—â— lib. 4. cap 8. num 9. For cui competit accusatio ei desertur poena nam poena est effectus tantum accusationis and Penalties being introduc'd in solâ—â—ium ejus cui fiâ— injuria that should belong to the King to whom the Injury was done 2. The design of the Act was to punish such as Transgressed and contemned the Government of the Church whereas it were no punishment for the Husband to lose his jus mariti if the same fell to the Wife 3. If it fell to the Wife she was uncapable of it being in the same Delict 4. Nothing by our Law can subsist in the person of the Wife and therefore if the Husband do Renounce his jus mariti in favours of the Wife it does by our Law return to the Husband 5. If this were allow'd not only might the Wife in other Cases and particularly in this be Rewarded for Transgressing the Law since for Marrying irregularly she would have â—â—ight to the jus mariti of her Husband but this would prompt all humorous Women to Marry irregularly that they might get a jus mariti and Administration of their Husbands Estate and Dominion over him 6. If this were allow'd the Husbands Creditors might be easily cheated for they might Marry disorderly and so their Creditors could have no Right to the jus mariti and this would open a Door to those Frauds against which our Law has so seriously guarded It may be doubted from these words of the Act Whosoever shall be married within this Kingdom that such as are Married without the Kingdom incur not this Penalty though they should go upon Design which if it were allow'd would frustrat absolutly the Act for the Transgressors might still go over the Border and be Married and by the said 34 Act Par. 1. All persons having their Residence in Scotland are discharged to get themselves married in England or Ireland without Proclamation in Scotland and since the Law looks upon actus elusorios as inefficaces so that if a man should go out of Scotland to shun a Citation to the end another Compriser may be prefer'd coming back after he is Cited by the first upon sixty Dayes to the end the second may Cite him upon a shorter time and so be able to lead the first Comprising the first Citation would be preferr'd and consequently it were unjust that this which is a greater Collusion should be allow'd THis Sumptuary Law against Apparrel is restricted and Explained by the 3 Act Sess. 4. of this Parliament and the whole Act is now in Desuetude THis
might scruple to pursue a Reduction of a Writ that they themselves had granted upon Oath and albeit this Act Declares only such Contracts to be null yet it will certainly extend to Bands Dispositions and other Writs for as the Reason is the same so both the Narrative and the last words of the Act has the word Writs which comprehends all these and I conceive the Remedy of this Act will extend likewise to promises though these be not comprehended under the word Writs for if it were otherwise the Act might be eluded by taking of Promises upon Oath from Minors As also albeit the Narrative Relates only to Writs of Importance by which are only mean'd in our Law such wherein the sum exceeds an hundred pounds Scots yet since the Statutory part is general and that an hundred pounds may ruine poor people nor should men of Substance Lasâ—le an Oath by interposing it to mean matters therefore I think that this Remedy should be extended to all cases whatsoever BY this Act for facilitating the course of Trade Bills of Exchange are ordain'd to be Registrated within six moneths after they are due and tho the Bill bear no consent to the Registration as Bands do yet they are registrated by vertue of this Act which is Narrated in the beginning of the Paper that is Registrated but this is of no great use and therefore Merchants choose rather to pursue summarly before the Dean of Gilds Court who is with us le consul des Merchans and even these Pursuits are disappointed by Advocations nor have they so much as the priviledge of being Discust summarly without attending the course of the Roll as was crav'd by the draught of the Act that was first under consideration It was also crav'd that Compensation should not be receiv'd against Bills of Exchange as is Customary abroad and a Bill is in effect in the construction of Law a bagg of Money trusted by the Drawer and to be redelivered in another place and Compensation is not even by the Common Law received against Depositations The reason why this Act was only extended to Bills drawn from abroad or in favours of persons abroad and not to Bills drawn from one place within the Kingdom to another was because if that had been allow'd all Debts had still been constituted by Bills and not by Bands and so had been priviledged by too summar execution BEfore Parliaments can proceed to publick Affairs all the controverted Elections must first be cleared and determined which being the occasion of great delayes in the dispatch of business gave the rise to this Act whereby it is ordain'd that none shall have vote in the Elections of Commissioners for Shires or Stewartries except those who are publickly Infeft in Property or Superiority Life-rent or proper Wodset and in possession of a 40 shilling Land of old Extent holden of the King or Prince or in Lands of 400 Pounds Valuation whether Kirk-lands or other Blench Few or Ward-lands and that appearand Heirs being in possession by vertue of their Predecessors Rights and Husbands for the free-holds of their Wives or as Life-renters by the courtesie of Scotland of the Extent and Valuation foresaid have right to Vote The Shire of Berwick having made cross Elections of Commissioners to the late Parliament the Committee for controverted Elections decided these points for clearing this Act which report was approven in Parliament 1. That a Charter confirmed by the King of a 40 shilling Land does not give a party right to vote except his Seasin thereupon be produced and that the Confirmation be of the Seasin since the Confirmation of a Charter imports no more but the Confirmation of a personal obligment 2. Vassals of Kirk-lands of the Extent and Valuation foresaid have no vote unless they hold their Lands of the King as their immediat Superiour for since it is optional to them either to hold of the King or Lord of Erection by the 53 Act 1 Parl. Ch. 2. it is presumed they still hold of the Lord of Erection unless they instruct that they hold of His Majesty 3. Where Vassals produce Rights to a part of a Barony that will give them no right to vote except they can instruct that their Lands are Retour'd to such a proportion as put them in the terms of the Act of Parliament 4. Life-rents not constitute by Infeftments but by personal obligments give not the Life-renters right to vote 5. Persons Interdicted seem to be debarr'd from voting since they who were not fit for managing their own affairs ought not to be trusted to vote for Commissioners to Parliaments but this I think should only hold in Interdictions causa cognita very judicious men consenting to voluntar Interdictions 6. If the King be only Superiour supplendo vices of the immediat Superior by his not entering to the Superiority this will not give the Vassal a vote since the immediat Superior retains all the casualities and consequently remains still Superiour albeit pro hac vice the King supplies the defect of the Immediat Superiours lying out by infefting the Vassal 7. Appearand Heirs albeit in the terms of this Act have no right to vote if they have renounced or if their Predecessors were denuded albeit they were in possession the famine being only by a tollerance from the Party in whose favours the Predecessor was denuded 8. Appearand Heirs by the Mothers side gives not a Title to vote except they be actually entered Heirs since it is presumed there are Heirs Male except the contrair be proven by a Service 9. Vassals who have expired Apprisings or Adjudications have liberty to vote albeit by an Act of the Lords of Session the Lands are declared to be redeemable for the Sums truly due since by this Act Apprisings Adjudications and proper Wodsetts are not to be questioned upon pretence of any order of redemption payment or satisfaction unless a Decreet of Declarator voluntar Redemption Resignation or Renunciation be produced 10. It was found in the Election of the Commissioners of East Lothian that no votes are sustained but these who voted and signed before the Meeting was dissolved and the votes of those who came immediatly after were not sustain'd tho the Preses return'd with some of the number But in the Elections for the Mers it was found that a person was capable to vote albeit he was detained Prisoner by a mis-information from one of the Competitors he having given an account of the way and manner of his Imprisonment to the Meeting and declared his vote to them and after his enlargement did immediatly take the Test and sign the Commission FINIS Several Additions and Supplements to the Observations on the Acts of Parliament BY this Act the Wardens are discharged to judge which is here called very odly to intromet with any thing that pertains to the Dittay of the Justice-Air saving the points that are needful for conservation of the Trews or Truce that is to say