would discourage them both from Rebellion and Robbery if they knew they behov'd to be still lyable in Restitution and though the King did remit vindictam publicam privatam by this Proclamation yet that vindicta privata was not to be interpret damnage and interest but that Revenge and Criminal Action which any privat party might pursue without the King and vindicta is still contra-distinguished from damnum interesse 5. When the Law allows to the Prince a power to remit and discharge the Damnage done to privat parties in contemplation of a publick Peace Lawyers acknowledge that this can only be done if Peace cannot otherwise be procur'd for otherwise publick Peace is none of these just Causes for which Property can be inverted and therefore any such Indemnity after the Peace is Established cannot prejudge privat Subjects as to their Restitution as Gail expresly Declares observ 56. num 6. King CHARLES 2. Parliament 1. Sess. 3. BIshops being restored in the former Session of Parliament the King does in this Act Declare That He will maintain and preserve that Government in the Church and not give any Connivance to the prejudice thereof in the least and so all Indulgences are from this still urg'd to be contrary to the Royal Promise and the publick Faith By this Act Ministers absenting themselves without a lawful excuse from the Diocesian meeting or not concurring in the Church-discipline when required by the Arch-bishop are to be Suspended till the next Diocesian meeting and if they conform not then to be Depos'd and though this be design'd chiefly against the Non-conforming Ministers Yet it has been repin'd at by some of the Episcopal Clergy because the Bishops have by it a power to Suspend by themselves and by the present Discipline of the Church the Bishop may Depose by himself without the concourse of the Clergy even in the Diocesian meetings though he usually takes alongs with him the advice of the Ministry In this Act with-drawing from publick Worship as well as keeping of Conventicles is Declared to be Seditious and therefore each Heretor with-drawing loses the fourth part of his years Rent each Yeoman or Tennent may be fin'd not exceeding a fourth of his free Moveables every Burges is to lose his Freedom and may be fin'd in a fourth part of his Moveables and the Council have by this Act a very full and undetermin'd power to inflict Corporal beside the former punishments But it seems that 〈…〉 those Punishments can be inflicted upon With-drawers except where they have first been admonished by their Minister in presence of two Witnesses But since the Minister of the Paroch is not here specifi'd it was thought that persons might be fin'd after an Admonition given by any Minister appointed by the Privy Council or Presbytry This part of the Act is not expresly abrogated but the Fines are altered by the 7 Act of the 2 Sess. Par. 2 Ch. 2. By which every Protestant With-drawer whereas this Act extends both to Papists and Protestants is to be Fin'd thus viz. an Heritor in the eight part of his valu'd Rent a Tennent in six Pounds Scots a Cottar in fourty shilling Scots every person above the Degree of a Tennent but having no real Estate in twelve Pounds Every considerable Merchant in twelve Pounds Every inferiour Merchant and considerable Trades-man in six pounds and the other Inhabitants within Burgh in fourty shilling and His Majesties Privy Council is by this last Act allow'd to force all who shall with-draw from their Paroch Churches for a year together to give bond that they shall not rise against the King nor His Authority and to banish or secure them in case of refusal Whereas by this first Act there is a general power given to the Council by the Parliament to do every thing that they shall find necessary for procuring obedience to this Act and putting the same to punctual Execution upon which Clause was founded the Councils putting Heretors to give Bond for their Wives Tennents and Servants keeping the Church for since the Parliament might have exacted such a Bond for that effect it was thought the Council might since they have by this Clause a Parliamentary power By the other Act also it is appointed That the same shall continue for three years except His Majesty shall think fit it continue longer and it was thought that this power of Fining might be continued by the Council without any new express Order from the King since His Majesty did not Command the contrary as also upon this Clause was founded the Indulgence 1679. The Parliament having put it in His Majesties power to punish With-drawers or not as he thought fit after three years were elapsed THis Act is Explained in the 5 Act of the former Session THis Act against Protections is Explained fully in the Act 47 Par. 11 Ja. 6. THis Act declares the King to have the only Power of Calling or Dissolving Synods and that His Majesty has not only a Negative Voice in stopping Acts to be made in such Synods but even a Negative in not suffering any thing to be Treated or Debated there except what is contained in his Proclamation or Instructions This meeting of the Church is with us call'd a Convocation though it be here only call'd a Synod Nor can it be deny'd but that the Emperors did of old call the Synods and the formula was Visum est mihi jussi Thus Euzeb Speaking of Constantine sayes Cum per varia loca exorirentur inter Episcopos dissentiones ipse seu communis Episcopus a Deo constitutus Synodos ministrorum Dei indicebat And thus Leo writing to the Emperor Theodosius si pietas vestra suggestioni ac supplicationi dignaâ—ur annuere ut intra Italiam haberi jubeatis Episcopale Concilium cito poterunt omnia scandala quae in perturbationem totius Ecclesia sunt commota resecari THis Act is Explain'd in the 10 Act Par. 4 Queen Mary and and in the Observations upon the 226 Act Par. 14 Ja. 6. BY this Act all Strong-waters are Discharg'd to be imported under the pain of Escheating thereof because it prejudged the Sale of Barley which is the great Native Commodity of this Kingdom But yet by the second Act of the 4 Session of the 2 Par. Ch. 2. All these Acts against strong-waters are Rescinded and an Imposition thereon is imposed but yet it was thought by the Council that notwithstanding of that last Act His Majesty might by His Prâ—rogative in the Ordering and Disposal of Trade with Forraigners asserted by the 27 Act of this Session of Parliament Discharge again the Importation of Brandy and other strong-waters and accordingly a Proclamation was issued out Discharging them in March 1680. and it was urg'd that the Parliament thought that the King might Dispose upon these against an express Act of Parliament for though by this Act the Importation of them be absolutely Discharged Yet the King had
puniendi ratio si Dominum se pro Caesaris expeditione instruentem non suerit Comitatus feudum enim eo casu amittet dimidium fructuum illius anni ex feudo domino pendet non enim hic tantum contra dominum sed contra imperium Remp peccatur so that it seems in his time the Vassal who hâ—ld of another Superior then the King forfaulted his Feu for not going to the Host but the immediat Superior had Right to half a years Rent and the reason of this seems to have been because by all our old Laws the Vassal was obliged to attend his immediat Superior in going to the Kings Host and the Proclamation then commanded every man to come with his Vassals and therefore as the King had Right to the Forfaulture for not attending his Host so the immediat Superior had right to this half years Duty for his not attending him and sometimes by the Journal Books it appears that when Vassals were Fined and not Forfaulted the immediat Superior craved the half of the Fine THe punishment of such as ride with moe than their ordinary Houshold is Arbitrary and this Act must only be interpret against such as ride ordinarly with great Trains and which may look like an unpeaceable design nor is any man punished for riding at solemn Occasions with his Friends and Followers and I also think that this Act would only extend to such against whom there lies a presumption that they gather or keep men together upon some sinistrous design either against the Government or their Neighbours for if this were allowed great men might keep Troups together and for this same reason are Convocations discharg'd by other Acts and betwixt these Acts and this there is this difference that by these the Convocating for a time irregularly those in whom the Convocater pretends no interest is discharg'd but by this Act the conveening men upon pretext of a Retinue is discharged and though it may seem that every man may keep as great a Retinue as he pleases yet quilibet tantum in suo facere potâ—st illud quod fieri potest sine aemulatione vicini but multo majus sine aemulatione Reâ—publicae THough by this Law it is only appointed that there be Officers and Ministers of the Law made through all the Realm indefinitly without telling by whom they are to be made yet by the 2. Act Par. 1. Ch. 2. The power of choosing Judges is declar'd to be one of His Majesties Prerogatives It is observable from this Act that none can be Judges who have not sufficiently of their own where-through they may be punished if they transgress which is very just for a Judge who Decerns unjustly by palpable unjustice litem suam facit and therefore it may be well argu'd that when any who is a Judge or has an heretable Office becomes insolvent he may be forc'd to find a Depute who is solvent or else he may be discharged to sit Obs. Though it may seem That if any Heretable Officer be incapable to exerce the King should name Deputs jure devoluto yet by this Act it is ordained That if the Heretable Officer be incapable he shall ordain others for whom he shall be answerable The Design of this Act is to empower the Sheriff to arrest Oppressors and Vagabonds By these words to sojourn Horse is meant to quarter Horse from the French word sejour By Husbands of the Land is still meant Husband-men in our Acts of Parliament By taxing the Kings Skaith is meant to cause modifie what is due to the King and by Assything the King is meant the causing the Malefactors pay what is modified Obs. That the Legislative Words in our Statutes are very various for in this and many other Statutes of this King the formula is the Parliament Statutes and the King forbids which words shew that the Legislative Power is in the King for to forbid is the chief and most vigorous part of a Statute In the 17 th Act it is said It is Statute and the King forbids In the 14 th It is Statute by the whole Parliament and the King forbids In the 13 th It is Statute by the whole Parliament and by the King forbidden In the 30 Act 2 Par. Jac. 1. It is Decreeted by the whole Parliament In the Act 37 It is Decreeted and Statute In the Act 47 Par. 3 d. It is ordained by the King and Parliament Act 50. It is ordained and forbidden Act 60 Par. 3. Jac. 1 Our Soveraign Lord through the whole Ordinance of the Parliament Statutes Act 125 Par 9 Jac 1 Through the consent of the whole Parliament it is ordain'd Act 62 Par 3 Jac 1. It is seen speedful Act 76 Par 5 Jac 1. It is Statute and Ordain'd and Act 78 and 79 It is Ordain'd Act 83 Par 6 Jac 1. Rex per modum statuti ordinavit Act 85 Rex mandavit In the old Statutes of King Robert and King Alexander c. It is said Dominus Rex vult or statuit Rex or desinivit Rex or prohibet Rex or decrevit deliberavit Rex without speaking one word of the Parliament or Estates Act 105 Par 7 Jac 1. The King with the consent of the Council Act 104. The King with the consent of the Parliament and Council Act 108. The King of deliverance of Council But the formula now is Our Soveraign Lord with advice and consent or Our Soveraign Lord and Estates of Parliament which last is not so proper and though in most of the Acts of the 14 th Parliament K. Ja. 3 d It be said That it is Statute and Ordained by the whole three Estates yet it may be easily seen that these Acts were but in effect Overtures propos'd by the three Estates to be Ratified in Parliament and so in effect are conceiv'd rather as Overtures than Acts As also where any thing is to be put in execution by the King there the Act runs in name of the Parliament and not of the King as in the 23 d Act Par. 1 Jac 1. It is said that the Parliament has Determined and Ordain'd that Our Lord the King garâ—mend his Money and in the 6 Act Par 3 Jac 2. The three Estates has concluded that Our Soveraign Lord Ride throw all the Realm c. THere are many wayes whereby the Superior may crave Production of his Vassals Evidâ—nts for the King sometimes gets an Act of Parliament ordaining all the Vassals of such a Countrey to produce their Evidents as 262. Act. Parl. 15 Jac. 6. whereby all the Heritors in the Highlands are ordain'd to produce their Evidents with certification of losing their Rights The Superior may also crave exhibition of these Rights But the ordinaâ— way is by an Imprâ—bation wherein certification is granted against the Papers that are not produced which is deriv'd to us also from the Feudalists who affirm that Vassallus imperari potest sub poena
guilty it is not just to admit Caution and the true speciality upon which the Council founded that Resolution was because above four thousand were delated in that Porteous Roll for Treason and it was almost impossible to Imprison all The Acts 50 51 52 53 are abrogated by the Union of England and so is the 56 but though they be abrogated yet the following Observations may be made from them Obser. 1 o. From the Act 52. that the supplying the Scottish Towns then under the Command of the English is declar'd Treason as is in general the assisting of all Enemies to the State vid. Ja. 1 Par. 13 cap. 141. Ja. 2 Par. 12 Act 50. For though we have no special Statute declaring the assisting of Enemies of the State to be Treason Our Acts running generally against such as assist declar'd Traitors or assure with English men in particular yet it is Treason by the Common Law l. 3. ff ad l. Jul. Maj. And such of our Nation as continued in the Dutch Service during the War with Holland in anno 1666. were forfaulted as Traitors By the second part of this Act it is declared Treason for any who ride with the Warden of the Marches or any other Chiftain to go away with any manner of Goods till they be thirded that is to say till they be divided for one third by the Law of the Borders belongs to the King a second third to the Warden or Chiftain and a third to the Apprehenders For understanding whereof it is fit to know that Lands when taken from Enemies become the Kings or the Common-wealths by the Laws of all Nations but Moveables by the Law of GOD Deut. chap. 20. vers 14. Josh. chap. 8. vers 1. when taken were divided equally amongst the Takers But sometimes there was a Division the one half falling to such as Fought the other to these that stayed with the Baggage and a fiftieth part of their part who Fought not was dedicated to the LORD whereas one of five hundred was only Consecrated out of their part who Fought Num. 31. verse 50. At present Grotius distinction lib. 3. de jur Bell. c. 6 11 12. Is generally observ'd whereby if Moveables be taken by a party led on by an Officer who only knew the design then the Souldiers get no share but all falls to the publick but if the Moveables be taken in Excursions or free Adventures they belong to the Takers And Voet. c. 5. n. 19. de jure milit Sets down the several proportions whereby Goods are divided amongst a Party and Officers in Holland where if the Party exceed 50. the Captain gets a tenth the Leiutenent a fifth the Ensign a third the Quarter-master a double portion the Serjeant one and an half and each Souldier a single share but still the Horse get double of what is due to the Foot BY this Act which is a continuation of the former it is declared Capital for any man to take from another Goods or Prisoners which they are in Possession of from which it is observable in War that Possession or Capture gives only right thus Inst. de rer div Par. 17. It is said Item quae ex hostibus capiuntur statim jure gentium capientium fiunt and therefore a Ship being pretended to belong to the King because one of the Kings Friggots had beat the Convoy that Guarded her and was in pursuit of another and had taken both her and this Ship here controverted if the Privateer had not interveen'd and it being answer'd that an actual Capture could only establish the Property and this Statute requir'd Possession The Lords before answer granted mutual Probation for trying whether this Ship could have escaped from the Friggot if the Privateer had not taken her IT is Treason to raise a Fray wilfully in the Kings Host for this wilfully done shews a Design to ruine the Army and I find that the Master of Forbes was Hang'd for raising a Fray in the Kings Host at Jedburgh July 14. 1537. The words without Cause are added here because if a man doing his duty was the occasion of raising a Fray he ought not to be punish'd as if an Officer punishing a Mutineer should by that occasion raise a Fray this would not be punishable By the Civil Law such as were Authors of Sedition in an Army for a Fray is properly Sedition were punish'd as Murderers l. 3. § 4. ff ad l. Cornel. de sicariis But if the Common-wealth was in danger they were punish'd as Traitors as in this Statute and in l. 1 ff ad l. Jul. Maj. and they are every where now punish'd by Death Sand. Decis 165. tit 9. des 12. vid. Voet. de jure milit c. 4. num 40. And if the Authors cannot be known all involv'd in the Guilt are forc'd to cast Lots Voet. ibidem Sometimes also if the Sedition was carried on sine gravi tumultu intra vociferationem the guilty were only Casheir'd l. 3. § 20. ff de re militi if the Tumult was rais'd upon privat picques or grounds but if it was rais'd upon prejudices against the Common-wealth or Prince it was punish'd even in that case and though no actual prejudice follow'd as Treason d. l. 1. ff ad l. Jul. Maj. King IAMES the second Parliament 13. THis putting the Kingdom in a posture of Defence was formerly ordain'd Stat. Will. cap. 23. Stat. 1. R. 1. cap. 27 But all these Acts are now in Desuetude and the Act concerning the Militia is regularly come in their place but yet the King may call for either vid. observ on 4 Act 1 Par. Ja. 1. By the Kings Letters by Bailis is mean't Letters to raise Fire or Takenings for advertising the Countrey By Out-hornes is mean'd these who follow'd the Sheriffs and whose Office it was to raise the Kings Horn for warning the Countrey to assist the Kings Officers THis Act contains what is fit to be done in time of Pestilence and because it was an Affair to be Govern'd by Christian Charity therefore the Regulation of it was referr'd to the Clergy and upon this account it is that the Act says The Clergy thinks without speaking of King or Parliament it being ordinary in our Acts of Parliament to set down the report without drawing it into the formality of an Act of Parliament and thus in the 91 and 92 Acts Parl. 13 Ja. 3. It is said The Lords thinks it expedient by which word Lords must be interpreted Lords of Articles THere was of old Distresses taken from such as came to Fairs that is to say some thing was taken to be a Surety for their good behaviour and was deliver'd back at the end of the Fair if the Owners committed no wrong during the Fair. THis Act is only to be interpreted of the Fees due to the great Constable of Scotland who is now the Earl of Errol for he only can exact during the time of Parliament but
named by the Pope show his Bulls of Provision to the King and Chapter and though the King should admit to the Temporality a Prelate before showing of his Bulls it will not be prejudicial to the Kings priviledge of presentation that is to say that though the King had admitted a person whom the Pope had rejected as unfit he might yet of new present and the Pope should not have Right jure devoluto FOr understanding this Act it is fit to know that regulariter beneficia vacatura could not be purchast and yet the Pope had reserv'd a power to confer even these ex plenitudiâ—e potestatis cap. proposuit de confer praebend 6. decret But this Act iâ— made to annul all such Provisions to Benefices not yet vacand King IAMES the third Parliament 12. THis Act giving the Warden power to continue his Courts shews that the continuance of Courts is not of its own nature lawful and therefore no Judge may continue his Courts except he have an express Warrand for it since such as are cited may be thus prejudg'd by delays But since the King is the Fountain of Jurisdiction it is thought the King may grant such Warrands tho there be some cases wherein the King has restricted himself by express Statute as in Criminal Courts which are declar'd to be peremptor by the 79 Act 11 Par. Ja. 6. Where it is observable that these Courts are declar'd not to be conâ—inuable by the Kings specâ—â—l will and direction to shew that continuations of Courts depended upon him and generally it is by the will of the Letters that it is known what Actions abide continuation or not and though the Wardens Courts be Justice-Courts yet it is thought they may be continued notwithstanding of that posterior Act. BY this Act the breakers of the King or Wardens safe Conduct are punishable by death which is conform to the Civil Law l. 1. ff ad Leg. Jul. Majest and to the practice of other Nations Christin tit 4. Art 8. What difference there is inter pacem securitatem salvagardiam salvum conductum Vid. afflict lib. 3. tit 16. THough the selling or buying of corrupt Wine after it is found to be such be declar'd punishable by death yet the selling corrupt Wine willingly even before that is punishable and though selling corrupt Wine in the general be punishable yet this must be restricted to the case of knowledge for he who sells or buys without knowing of it to be corrupt or to have been found so is not punishable by death King JAMES the third Parl. 13. OF old every Heretor brought his own men to Weapon-showing and to the Kings Host as is clear by the 81 Act Par. 11 Ja. 3. and all these were commanded by the Sheriffs Lords of Regalities and the Kings other Officers and were call'd together by Letters patent under the Privy Seal directed to these Officers as is clear by this Act But now the Militia is commanded by Colonels and chosen by the King and are call'd together by Proclamation and Letters from the Council subscriv'd only by the Chancellor or President of the Council From this and other old Writs it is clear that the Privy Seal was then the Seal of the Privy Council but now they have a Seal peculiar to themselves which is call'd the Signet of the Privy Council Vid. Annot. on Act 30 Par. 3 Ja. 4. The Kings Rents of old were Govern'd by the Kings Master-houshold and Compt-roller and the Council but now by the Exchequer and the Master-houshold has no interest in them ratione officij that Office belonging Heretably to the Earl of Argile is now extinct by his Foreâ—alture But the Office of Compt-roller is engrossed in the Thesaurers Office By this Act such as detain the Kings Rents are to be distrainÈied that is to say pursu'd in the ordinary way viz. by poynding the ground for their reddendo by Hornings upon their Tacks but though the uplifting the Kings Feu-duties was design'd once to have been by quartering yet this was thereafter found illegal nor could the Excise be so lifted if that way were not warranted by Parliament there is no special punishment exprest here against the Officers who detain the Kings Rents But by the Civil Law these who abstracted publick Money or converted it to their own use Erant rei peculiatus qui olim paenâ quadrupli postea deportatione puniâ—bantur magistratus vero qui durante officio publicas pecunias abstraxerunt capite puniuntur l. un C h. 1. but this Crime only holds in the misapplying of publick Money and not in the withholding the Kings Rents Nota. This and the next Act bear not to be made with consent of the three Estates of Parliament but only that the Lords think expedient by which I think must be mean'd the Lords of the Articles or else this and the next Act being Concessions of the Barons in what related to themselves they were not thought fit to be drawn as Acts of Parliament but only as concessions but I incline rather to think that by Lords here is mean'd the Lords of Articles because the Acts 95 and 96 of this Parliament bear the conclusion of the Lords of the Articles though sometimes by the word Lords are mean'd the three Estates of Parliament as in the 30 Act Par. 7 Ja. 2. BY this Act the Rose-noble was made the standart of all the Gold and it was of twenty two Carrets and ten grain fineness but now our Gold is only of twenty two Carrets fineness that Gold being too soft and consequently subject to be wasted By this Act also the Warden of the CunÈie-house were first instituted for understanding of whose Office it is fit to know that the Master of the CunÈie-house has the care of Coyning and as checks over him are for trying the fineness the Essay-master and for trying the weight are the Warden who trons the Money and the Counter-warden who weighs after him and is his Check and over them all is the General of the Mint BY this Act Respits are discharg'd whereby Justice is delay'd and it 's here said that Respits are more against Justice than Remissions the reason whereof seems to be that Remissions are only granted after some Tryal but Respits are granted more easily and may be sought more frequently and that before the state of the case be examined nor is the Party injur'd assyth'd here as in Remissions For the same reason also Precepts for continuing Justice Courts are discharg'd and the Justices allow'd not to respect them Act 79 Par. 11 Ja. 6. and by the 47 Act of that same Parliament they are discharg'd also for that Act stricks against Respits as well as against Protections THe Act anent Ferries is Explain'd in the observations upon the Act 75 Par. 10 Ja. 3. OBserve 1 o. From this Act that the Silver of Scotland should be 11 penny fine for though this Act says
many of the old Acts yet to be seen in the Records of Parliament are left out Observ. That the Acts of Parliament are call'd the Kings Laws and not the Acts of Parliament for the King has only the Legislative power and the Estates of Parliament only consent The Books of Regiam Majestatem are likewise numbred amongst our Laws but what is mean'd by the words Acts and Statutes added in this Act to the Kings Laws and Reg. Maj. I do not understand except by these be mean'd the Burrow-Laws and the Statutes of the Gildry and these other Books that are bound in with Reg. Maj. K. JAMES IV. Parliament I. BY the twelfth Articl Iter. Just. The Burrows had liberty to repledge their own Burgesses from being upon assizes which priviledge is here regulated but now the priviledge it self is in Desuetude for all Burgesses are oblig'd to pass upon assizes except the Chirurgeons of Edinburgh who have a special priviledge because of their necessary attendence upon sick persons BY this Statute all Ships must come first to free Burghs and no Strangers can fraught Ships but now by the 5 Act 3 Sess. 2 Par. Ch. 2. all â—urghs of Barony and Regality may Traffick in the product of Scotland as freely as Royal Burghs Vid. That Act and the observ thereon That part of the Act discharging strangers to buy Fish that is not salted is now in Desuetude It was argued from this Act in the case of the Town of Linlithgow against Borrowstounness that the Burrows Royal had the only priviledge of having all Goods Liver'd and Loadned at their Ports and which is likewise clear by Act 88 Par. 6 Ja. 4. and by Act 152 Par. 12 Ja. 6. 2 o. Without this priviledge the Burrows were not able to pay the sixth part of the burdens laid upon them in contemplation of their Trade since a Clandestine Trade without this might be carry'd on by the Burghs of Barony and Regality who since they may retail publickly might have the same priviledge as they if they had likewise power to import publickly 3 o. This was most convenient for securing the Kings Customs because where ever there is Livering allow'd the King must have Waiters and upon which consideration the Magistrats of Burghs Royal are by the Acts of Parliament appointed to assist the Kings Customers and whereas it was pretended that the priviledge of Commerce was inter regalia and consequently the King might grant a free Port to any Burgh he pleas'd 2 o. The priviledge of a free Port was different from that of Livering and Loadning 3 o. The Acts of Parliament cited did only discharge Strangers to Load and Liver which is yet more clear by the Act 120 Par. 7 Ja. 6. To which it was reply'd that the King and Parliament having formerly granted the sole power of Loadning and Livering to free Burrows it was no diminution of his power to assert that he could not give a new grant of that to any whereof he was formerly divested To the 2 d it was reply'd that the sole priviledge of a free Port granted by a King to a Burgh of Regality or Barony can extend no further than that thereby they may have the priviledge of bringing into their Port the Goods proper only to be sold by them To the 3 d it was reply'd that this Act discharges Strangers and others to Liver at any place except at the Ports of Burghs Royal and though in that 120 Act Par. 7 Ja. 6. This Act is repeated as relating only to strangers yet in the next line Strangers and others are in that 120 again discharged Likeas by the Acts of Parliament the sole priviledge of losing and loosing is declar'd to belong only to Burghs Royal which in Sea-faring Terms signifies loadning and un-loadning BY the Act 85 Par. 11 Ja. 3. The Rents of Churches or Benefices whereof the King is Patron are declar'd to belong to him sede vacante by the priviledge of his Crown and this was so formerly declar'd by the 7 cap. Stat. 2 Rob. 1. And Skeen there observes that cum alicujus beneficii Ecclesiastici patronatus pertinet ad Regem terra si quae sunt ei annexa pertinent quodammodo ad Regem and therefore by this Act it is appointed that it being declar'd by the best and worthiest Clerks of the Realm that if any Church-man received and purchast such a Benefice at Rome they should be punish'd and these who supplyed them This Declaration from Clerks was requir'd because the Secular would not meddle with Church-men in these days till Church-men had some way declar'd them guilty King JAMES the fourth Parliament 2. THat part of the Act appointing the intromission with the Kirk Rents to be a point of Dittay that is to say to be a Crime is now in Desuetude for they have no other priviledge here more than Laicks but to intromet with their Rents either by Arms or open Force is the Crime of oppression with us and was punish'd by the Romans lege Julià de vi per deportationem in liberos homines ultimum supplicium in servos Observ. That by this Act Parsons and Vicars are founded in jure as to Teinds for it is declar'd a Crime to intromet without a right from them I Understand not how it is said here that the King could not discharge any part of the Taxation granted to him though it was granted for a particular or publick use for it is ordinary and lawful to Kings with us to discharge privat parties their particular proportions except the contrary be expresly provided and the offer be so qualifi'd by the Parliament but here the King was minor as appears by the subsequent Act or rather this Taxation being granted originally for maintaining an Ambassador for the Kings Marriage as is clear by the Act and so ad particularem effectum it could not be diverted from that particular use lest else the Embassie should have fail'd And from this we may observe that what is granted for a general and publick use cannot be otherwise apply'd or taken away IT is observable from this Act that the King was Minor and that is the reason why he could not discharge something here exprest which falls not under his annex'd Property THe Parliament here recommends only to the King that his Majesty shall cause his Wardens observe the days appointed for Truce and they meddle not with it because what concerns Peace and War belongs to the King and not to the Parliament THe restrictions here put upon the King proceeded from his minority Nota Councellours are made accusable to the King and Parliament of their Council till the next Parliament for the words are and shall be responsal and accusable to the King for their Counsel but this was in the Kings minority and therefore there were greater reason that they should have been lyable for their Counsel than when a King is major for then he may judge of
understood Common Bills for Law-burrows upon Common Bills are only raised in course before the Session and there is a particular Servant in the Bill Chamber whose Office it is only to write upon these Bills and take the Bonds and see that the Cautioner be sufficient but the Council and the Criminal Court only exact Caution of Law-burrows when there are Processes intented before them and the Judges there do see that either Party has reason to fear bodily harm because of what has preceeded BY this Act Dismembration is made equal to Slaughter and it is to be try'd within three Suns and seems by this Act to infer death if it be upon Forethought-fellony but I have not observ'd it punish'd by Death but only as mutilation by an arbitrary punishment or Confiscation of Moveable and Assythment to the party Vid. 118 Act Par. 7 Ja. 5. BY this Act the Kings Leiges are to assist at Justice-airs under pain of being punish'd as favourers of the Trespassers and that Dittay is to be taken up against them for that effect but by our present practice though the Heretors of every Shire be by a Proclamation ordain'd to attend the Justices whilst they remain in their Shire yet their absence is never made point of Dittay I find by the Registers of Council that all the Southern Shires were cited to attend the Justice-airs in Q. M. Reign and to bring with them provision for twenty days ALl these Acts are in Desuetude but it 's observable that Park of Foulfoordlies being charg'd to wait upon Hume of Wedderburn his Superior at the Host conform to his Charter and being thereafter pursu'd for not attending him The Lords found the Vassall fineable though he pretended that by this Act 31. he was to attend the Sheriff for he ought to have waited upon his Superior to the Sheriff or the Kings Captain and these obligations were different and very consistent July 1680. Vid. observ on Act 16 Par. 6. and Act 76 Par. 14 Ja. 2. supra for clearing the 30 Act. COnvocations in the Countrey are punish'd only by pecuniary Mulcts or Imprisonment before the Secret Council but Convocations within Towns are more dangerous and therefore punish'd in this Act by Confiscating the Moveables of the Offenders and their Lives are to be in the Kings will so that their lives may be taken but by this Act the rising at the Command of their Magistrats is declar'd no Crime and therefore it may be doubted whether if the Magistrats should raise their Burgesses to invade their Neighbours or to oppose His Majesties Forces if in these cases they can be pursu'd for Convocation since they are by this Act warranted to rise at command of their Magistrats which certainly might defend them in dubious but not in clear cases Observe that by this Act all Burgesses are ordain'd to obey their Magistrats when and in what ways they shall be charg'd either for the defence of the Kingdom or common Good of the Burgh under the pains foresaids but the Magistrats use only to fine such as refuse to Ride with them and I have heard the Lords demure whether Burgesses were oblig'd to attend Prisoners without the priviledge of the Town at the desire of the Magistrats since Sheriffs were bound to receive prisoners there and Burgesses are only bound to Watch and Ward within their own Town and Territory THe Rule laid down in this Act Viz. That wherever the Defender may be punish'd by Infamy he must compear personally holds not still true but wherever he is to be punish'd personally he must compear personally and therefore it is that Defenders before the Criminal Court and Council must compear personally THe Common-Good of Burrows ought not to be Sett without consent of the Deacons of Crafts which is observ'd to this day nam quod omnes tangit ab omnibus debet approbari and by the Act 181 Par. 13 Ja. 6. It is ordain'd that the Common-good shall be Rouped yearly which is also observ'd and though that Act appoints it to be Set by the advice of the Magistrats and Council without speaking of Deacons of Crafts yet that does not exclude them By the Civil Law Bona civitatum non possunt vendi sine permissu principum propositis sacro-sanctis Evangeliis insinuato decreto apud praesidem provinciae l. ult C. de reb Civit. Vendend By this Act also the Rents of Burrows cannot be Set for longer time than three years allanerly but it may be doubted if they may be set from three years to three years for many three years in one Paper or if such Obligations will force Magistrats to renew the Tacks for if this were sustain'd the Act might be easily eluded but the 10 of February 1631. The Earl of Galloway contra Burgesses of Wigtoun The Lords found that this nullity was not receivable ope exceptionis especially not being propon'd by the Town These Tacks seem likewise to be valid if restricted to three years Vide Annot. ad Act 200 Par. 14 Ja. 6. VIde Act 17 Par. 2 Ja. 4. Act 97 Par. 6 Ja. 4. By all which crack'd Gold is commanded to be taken if it be of fineness all which renew'd Acts shew that the people were unwilling to receive such Gold King JAMES the fourth Parl. 4 VIde Annot. ad Act 85 Par. 11 Ja. 3. But for further clearing this Act it is fit to know that the Pope was in use and pretended Right to confer by prevention Benefices which were elective and some whereof the Patronages belong'd to the King and Subjects Vid. Coras specimen Jur. Eccles. lib. 1 cap. 2. as appears by this Act and by the 53 Act Par. 5. Ja. 4. and therefore by this Act the impetration of these in such cases is discharged under the pain of Proscription and Banishment but by the 44 Act 6 Par Ja. 3. and the 4 Act 1 Par. Ja. 4. It is also punisht as Treason IT is against the interest of the Church to unite Benefices because every Union extinguishes some Benefices and lessens the care of the Souls and yet Union is allow'd when the Benefâ—ces to be united are impair'd by Poverty Hostility or by Destruction of the People to be car'd for and least the interest of persons should be more consider'd than that of the Church It is by the Canon Law appointed that all Unions of Benefices must be perpetual but the Pope having reserv'd to himself the power of uniting any Benefices propter plenitudinem potestatis cap. 6. de prebend in 6. Clem. 1. ut lit pend nihil innov Therefore the Subjects of this Kingdom went to Rome and got Benefices united and to prevent this all unions of Benefices are discharg'd by the 44 Act Par. 6 Ja. 3. and the obtaining such Unions and Annexations is declar'd Treason and since our Bishopricks and Abbacies were founded by our Kings it was unjust that they could have been united without his consent
discharges the conducting and fraughting any strangers to the Isles under the pain of tinsel of Life Lands or Goods is in Desuetude BY this Act Lords of Regality and Magistrats of Burrows are appointed to set prices upon all Stuffs but that part of the Act appointing such Magistrats and Judges as are negligent herein to be punished at Justice Airs or Courts is not now observed and yet that would not defend such as might be pannel'd upon this account for the negligence of Judges should not defend them seeing that would invite them to be negligent THis Act appointing the shooters with Guns to be punished is not in Desuetude but is seldome put in execution and it was thought that Fowlers had prescrived an exemption against it shooting being their Trade and their design is not lyable to these suspitions for which the carrying Guns is discharged by this Act but yet since by a Proclamation 9 June 1682. Fowlers are discharged to use Guns and Setting Dogs it seems this favourable construction ceases and the bearing such prohibited Weapons is still sustained as the aggravation of other Crimes but is not so sustain'd as that it takes off the strength of a defence that would be otherwise relevant and thus Nicolson being Pannel'd for Murther 24 June 1673. alledg'd that whilst he was strugling his Gun went off without any accession of his which defence of his was sustain'd though it was reply'd that carrying of Guns was unlawful in a person of his quality and so versabatur in illicito exillicito nunquam exculpatio THough this Act prohibits the carrying Nolt and Sheep out of the Countrey yet it is now allowed and they pay Custome to his Majesty for though before the Countrey was fully laboured and plenished with these it was fit to keep them in the Countrey yet now the Countrey would be too much burden'd with them if they were not exported BY this Act whosoever renders the King's Castles for Money are made lyable to repetition and it is declared that their Heirs shall be lyable which last is the speciality for which this Act was necessary since the persons who received the Money were thereby lyable to restore and yet before this Act Heirs were not lyable by our Law since the Crime was extinguished by Death and thus in Crimine repetundarum repetitio ad Haeredes extendit l. 2. ff h. t. naâ— turpe lucrum ab Haeredibus extorqueri debet licet crimina morte extinguantur l. 5. ff de Calum THat mixing of Wines is justly by this Act made Criminal and declared a point of Dittay and this is by Carpzov Tit. Fals. and other Lawyers declared to be a species of Falshood and to be punishable as such King James the sixth Parliament 8. BY this Act as by all the Acts of this Parliament King James endeavoured to curb the insolence of such Ministers as being dissatisfied with Episcopacy became very seditious and turbulent for at this time Spotswood's History tells us that there being a Convention of Estates holden by King James the Ministers of Edinburgh and others desired that nothing might pass concerning the Church till they were heard and Mr. Pont protested against the Proclamation of these Acts and by this Act such as decline the Kings Council and refuse to be judged by them in any matter whatsoever of whatever degree or Function they be are declared guilty of Treason This Act was occasioned by their frequent declining of the Council upon pretext that the Council were not Judges competent in prima instantia to what was preached by Ministers and particularly by Mr. Andrew Meldrums Declinator and upon this Act Mr. James Gutherie was Convict of Treason for declining the King and his Council at Stirling in anno 1651. and was execute therefore in anno 1662. This Opinion the Presbyterians did borrow from the Romiâ—h Church who make Ecclesiastick persons only Judges in the first instance to what is spoke or written by Church-men and after they have found them guilty then they deliver them over brachio seculari For understanding these Exemptions that are claim'd by Church-men from the Civil Jurisdiction of Laicks it is fit to know that the King Deut. chap. 17. vers 18. is commanded to write the Law and that David Solomon Joash and others did Reform the Priests and others serving at the Altar and judg'd their misdemeanours in imitation of whom Constantin the Great Theodosiu and the first Christian Emperours did regulat the Clergy and judge Crimes till Arcudius and Honorius did by an express Law ordain quoties de religione agitur Episcopos judicare caeteras vero causas qua ad ordinarios cognitores vel ad usum publici juris pertinent legibus oporlet audiri which were just marches betwixt the Secular and Civil powers But Justinian at the instance of Menna Patriarch of Constantinople did in the thirteenth year of his Reign by his 123. Novel ordain that Church-men should be only conveenable in Civil Cases before their Bishops and as to Criminal Cases that they should be only conveenable before their Bishops in Ecclesiastick Crimes Civil Crimes being cognosced by the Judge as formerly From these beginnings did arise the vast pretensions of Church-men whereby they endeavoured to decline the Civil Judge in all Cases as well Civil as Criminal in the first Instance and to that hight that Panor in c. novit 13. Decret Greg. de Judiciis in c. causam 4. Decret Greg. qui filii sint legit asserts that both the Jurisdictions Spiritual and Temporal belongs to the Pope which was first check'd by Peter Cogniers the Learn'd Advocat of Philip 4. King of France 1329. It is Declar'd by the 114. Act 12 Par. Ja. 6. That this Act shall not prejudge the Spiritual Office-bearers as to the power of Excommunication Collation or other essential Church-Censures THis Act declaring that such as shall impugn the Authority of the three Estates or shall seek or procure the Innovations or Diminution of their Power or Authority to be Treason was occasioned by such as endeavoured at that time to exclude Bishops from the Parliament of which they were and are the third Estate and it is observable both by the Narrative and Statutory part of this Act that the designing to exclude one of the three Estates was the chief design of the Act though such as impugn the power of the Parliament in general so far as relates to Cases Spiritual do likewise commit Treason and as in the former Act the controverting of the power of the Council is declared Treason so in this Act the controverting the power of the Parliament is much more Treasonable and yet it is controverted whether the denying any Branch of the Parliaments power be Treasonable such as is the quarrelling the Power or Constitution of the Articles or whether the Subjects may appeal from the Session to the Parliament Or if the Parliament has power to Reduce their Sentences past
to which the Laick Patronage is annext are Woodset as other wayes FOr understanding Ecclesiastical Pensions it is fit to know that of old when the present incumbent was sickly the Synods allow'd him to resign his Benefice reserving to himself a Pension or portion out of it as is clear by Balsamon ad Synodum Ephesinam but thereafter the Pope having reserv'd to himself the power of burdening Benefices with Penesions men did by Simony impetrat from the See of Rome immoderat and causless Pensions though it was pretended that there could regularly no Pension be granted but for one of three reasons 1. The favour of the resigner of a Benefice that he might after the resignation live suitably to the Character he once bore 2. That when two Benefices were excamb'd the greater Benefice might be burden'd with a Pension in favours of the lesser 3. When there was any debate concerning the Benefice it was lawful to burden the same with a Pension But notwithstanding of this Pensions increased so far as to be complain'd of as a Harvest without Sowing and our Law did take very much pains to lessen Pensions and by the 1 Act of K. Ja. 1. his first Parliament in the Black Acts which is not now Re-printed the King reserved to himself the cognition of Pensions obtain'd at Rome And by the 4 Act of the 1 Par. K. Ja. 3. it is appointed that no Pension be purchased out of any Benefice without consent of the possessor which was very just in it self and was made to exclude the Popes power who pretended that he could Arbitrarily impose any Pension he pleas'd as is clear by Gigas de pensionibus Ecclesiasticis Quaest. 4. By this Act it is declar'd that the principal gift of Pension being improven all Confirmations and Decreets following thereon shall fall in consequence By the 29 Act of this Parliament it is likewise appointed that Pensions shall not be prejudg'd by the Act of Annexation they being lawfully authoriz'd by Decreets or Possession and therefore by the 137 Act Par. 12. Ja. 6. It is ordain'd that all Pensions not authorized by Decreet or Possession in the lifetime of the Prelat alledg'd disponer thereof shall be null and by the Canon Law Pensions imposed upon Benefices of Cure extinguuntur morte gravantis but the reason given by this Act is because such Pensions not so confirmed in the granters lifetime are null of the Law and may be presum'd to be false Another reason that may be given is because the Incumbent having no power over the Benefice but during his life it were unjust that any burden granted by him should last longer than his life and if it lasted longer it would prejudge very much the care of Souls because the burden of a Pension would discourage the Intrant and the reason why it is presum'd to be forg'd is because it is very probable that if it had been a true Pension it had been own'd during the lifetime of the granter By the 207 Act Par. 14. Ja. 6. all Pensions and Dispositions out of the Temporalities of vacant Benefices since the Act of Annexation are declar'd to be null which shews that Pensions were never consider'd as solid and unquarrellable rights OBserv. 1. Though this Act appoints the Exchequer to sit till the last of August yet it sits sometimes no longer than the last of July and it being doubted whether the King could notwithstanding of this Act of Parliament ordain the Exchequer Compts to begin upon the first of March it was resolv'd that could not be done because by this Act of Parliament the not Compting till the first of July was introduced in favours of the Subjects who are by this Act liable to no Compt till July and so the King could not anticipat the obligation by making them Compt in March this being rather matter of Property than of Government Observ. 2. That Denunciations at the Mercat Cross of Edinburgh against such as do not Compt in Exchequer they being thereto lyable are equivalent as if the Denunciation had been at the Head Burgh of the Shire but yet I conceive Escheats would not fall upon such Denunciations because no Escheats fall by Denunciations upon general Letters but it is alleadg'd that Escheats may now fall upon such Denunciattons by the 15 Act 3 Ses. Par. 1. Ch. 2. where this Act is renew'd and such Denunciations are there declared to be equivalent to Charges and Denunciations personally and at their dwelling house and head Burgh of the Shire and that as to all intents and purposes and by that Act such Letters and Executions may be Registrated either in the general Register of Hornings or in the Thesaurers Register albeit generally all Letters of Horning ought to be Registrated in the particular Register of the Shire Act 75 Par. 6. Ja. 6. or in the general Register THis Act is explained in the 77 Act 6 Par. Ja. 5. EXecution by this Act may pass at the Kings instance against High landers and Borderers ubi non patet tutus accessus upon Citation at the Head Burgh of the next quiet Shire Though this Act was only in favours of Executions at the King's instance which seems to be a priviledge ob bonum publicum yet by a late custome Dispensations are granted upon common Bills by the Lords to cite at any mans instance though it was not proven that there was not tutus accessus and therefore the Lords did by Act of Sederunt discharge the granting of such priviledges upon common Bills and ordained that something should be adduced for proving that there was not tutus accessus and that such warrands should only be granted in praesentia 29 June 1666 Mepherson against Mccleud Per clem 1. de Judic clem 1. de sor compet citatio potest fieri per edictum ubi locus non est securus vid. Marant de jud part 6. num 84. where he observes well that these edictal citations being so prejudicial cannot be granted by inferiour Judges and thus if any person be to be cited as out of the Countrey at the Peer of Leith this cannot be done before inferiour Courts without Letters of Supplement from the Lords BY this Act the Comptroller is lyable for the Chamberlains whom himself nominats but he is only lyable for diligence against Heretable Chamberlains because he names them not The Thesaurer is lyable in the same manner as the Comptroller was though the Thesaurer be not here nam'd because the Thesaurer is now in place of the Comptroller But it may be doubted if a person who is repute solvent and was really so were nominated a Chamberlain proving afterwards insolvent will make the Thesaurer lyable BY this Act Rentals set by the King not bearing Heirs are not extended to Heirs but resolve in naked Liferents though regularly qui sibi providet haeredibus providisse videtur Nota That our Law has thought that this needed an Act of Parliament and therefore
these Laws by the same reason that in England the Paroch is lyable for the Robberies committed therein betwixt Sun and Sun and thus these who have power of Jurisdiction from the Emperour are lyable vias publicas a latronibus purgare Gail observ 64. lib. 2. vid. etiam l. 3. l. congruit ult ff de officio Praesidis It has been doubted whether the Council could in other cases not warranted by express Acts of Parliament oblige the Subjects to give Bond to live peaceably conform to Law and particulary that their Tennents should not keep Conventicles but should go to Church and pay 50 pound Sterling for every Conventicle kept upon their Ground or should present their Delinquents and it was alleadg'd that the Council cannot because regularly one man is not lyable for another mans Crime nor can this inversion of Property and Natural Liberty be introduced by a lesse power than a Parliament nor had Acts of Parliament in this case been necessary if the King and Council could have done the same by their own authority but yet since the King has by express Act of Parliament the same power here that any Prince or Potentat has in any other Kingdoms and that Government belongs to him as Property does to us nor can the peace be secured otherwayes than by allowing him to take all courses for securing the peace and preventing disorders that therefore this joyned with the practice of the Council is a sufficient warrand for exacting such Bonds the practice of our King and Council being the best interpreter of the prerogative especially where the things for which Band is to be taken are not contrary to express Law and it is implyed in the nature of alledgiance that Land-lords should entertain none but such as will live regularly and if they transgressed the Master could not in common Law thereafter recept them without being lyable as we see in SpuilÈies or if the King pleased he might denounce the transgressors Rebels and so might put the Master in mala fide and though there be no such particular Laws warranding the taking of such Bonds yet it will appear by many instances in this Book that Laws are extended de casu in casum and thus this power seems inherent in the Crown likeas the matter of Property is sufficiently secured by the alternative foresaid of either presenting or paying the damnage which alternative seems to be founded upon the same principle of justice with actiones noxales mentioned in the Civil Law Domino damnato permittitur aut litis aestimationem sufferre aut ipsum servum noxae dedere vid. Tit. 8. lib. 4. Institut I find many instances in the Registers of Council wherein the Subjects are charg'd to secure the peace under the pain of Treason as in the case of the Lord Yester BOnd 's given by Cautioners for broken men do oblige the Heirs and Successors of the Cautioners though they be not mentioned in the Band. Observ. 1. In Law he who obligeth himself to pay a Sum obligeth his Heirs for as in Law qui sibi providet haeredibus providet sic qui se obligat haeredes obligat and therefore a man having bound himself and his Heirs Male it was found that the Creditor was not thereby excluded from pursuing the Heirs Female or any other Heirs but that he was only bound to discuss first the Heirs who were specially named in the Obligation 18 February 1663. Blair contra Anderson but yet Obligations for performing a deed such as to present a Thief are of their own nature personal and therefore this Act was necessary THe taking of Surety from Chief of Clanns doth not loose the Obligation taken from Land-lords e contra and the reason why this Act seemed necessary was because this seemed to be an Innovation and it seemed not just that both the Chiefs and Land-lords should be lyable since they could not both have absolute command over the person to be presented but yet this Act was most suitable to Law since novatio non praesumitur nisi ubi hoc expresse actum est l. ult Cod. de Nov. And the Tennents in the High-lands are influenced both by Chiefs and Land-lords but to make this Law more just the Council gives action of a relief against the Lands-lord if the Lands-lord harbour or to the Lands-lord against the Chief if the Chief recept him BY this Act if Goods be taken away by any Clann'd man and recept in the Country of their Chief for the space of 12 hours to his knowledge the Chief shall be lyable in solidum for all the Goods taken away though there were but very few of his men present as was found in a case pursued by Francis Irwing against Glenurchie before the Council all such Chiefs being lyable in solidum and not pro ratâ only for the wrongs committed by their Clanns BY this Act no Magistrat may keep a Thief or Malefactor in Arms with him albeit he pretend he is his Prisoner but he must deâ—ain him in a closs house both because squalor carceris is a part of the punishment due to Malefactors and because if this were allow'd Magistrats might by collusion suffer Malefactors to enjoy their liberty IS explained Crim. pr. tit Theft THis Act ordaining Masters to present their Tennents upon the Kings closs Valentines or Orders in little Papers like Valentines is observ'd in the whole Registers of Council THese two Acts discharging the Borderers of Scotland to marry with the Borderers of England or to labour their Lands are abrogated by the Union BY this Act the Land-lord doing diligence by obtaining Decreet of removing using Horning and doing all other things that was in his power after the fact comes to his knowledge is no further lyable Nota By this Act the Land-lord must be put in mala fide by intimation of his Tennents Crime 2. Dubitatur whether this priviledge should not likewise extend to Chiefs of Clanns since they have less interest in the Delinquents then the Land-lords BY the 100 Act of this Parliament such as committed Slaughter Mutilation or other hurt upon Thieves are not lyable But by this Act an Indemnity is likewise granted to such as raise fire against them that being there forgot THis Act is explained in the Observations upon the 29 Act of this same Parliament BY this Act the Burrows pay the sixth part of the Impositions of Scotland which is yet in observance and because of this burden they have the only priviledge of Trading and therefore they justly pretended that their priviledge of Trading could not be communicable to the Burghs of Barony and Regality who bore no part in this burden Nota That though by this Act the Taxation of the Burrows is not to be altered that is only mean't of the 6 part which is to be born by the Burrows in general for notwithstanding of this Act the Convention of Burrows do
the insufficiency of the Victual of these Countreys and so the greatness of the Measure does only equal the intrinsick value This Act having fallen in Desuetude as to the Linlithgow Measure is again renewed by the 16 Act Par. 23 Ja. 6. And many wish that Corn were now sold by the weight and not by measure weight being the only sure rule of the intrinsick worth of Corn but this being propon'd in the Par. 1681. the overture was rejected by a Vote Vide observ on Act 96 Par. 6. K. Ja. 4. supra King James the sixth Parliament 12. FOr understanding this Act it is fit to know that upon the 22 of May 1592. The Presbyterian party taking advantage of the Kings being engag'd against Bothwel and in other difficulties they held a General Assembly at Edinburgh wherein they drew up several Articles to be presented to the King and Parliament whereof Spotswood names only four 1. That the Acts 1584. against the Discipline of the Church should be abrogated and the present Discipline establish'd 2. That the Act of Annexation should be abrogated and the Patrimony of the Church restor'd 3. That Abbots and Priors c. nor none having Commission from them should Vote in Parliament as Representing the Church 4. That the Land should be purg'd of Blood The King rejected the second and third but in complyance with the first Article he did because of his present difficulties as Spotswood observes allow the present Church Discipline by General Assemblies Synods and Presbyteries but yet he does not here expresly abrogat Episcopacy only the Presentations are not ordain'd to be directed to them but to Presbyteries which Presentations are again restor'd to Arch-bishops and Bishops by the 1 Act Par. 21 Ja. 6. And Spotswood tells us that severals of the Bishops possest even then by their Titulars Episcopacy war again restor'd so that the Bishops did sit in Parliament by the 231 Act Par. 15 Ja. 6. but they were not fully restor'd to their Spiritual Jurisdiction till the 2 Act 18 Par. Ja. 6. but in that Act this Act is not abrogated as it would certainly have been if this Act had abrogated Episcopacy but this Act is abrogated by the Act 1 Par. 21 Ja. 6. By this Act the Collation and Deprivation of Ministers is declared to belong to the Church jure divino but these words or any siklike essential Censures having warrand from the Word of God are too general and may be abused This Act is now abrogated totally in all its Heads Clauses and Articles by the 1 Act 2 Sess. Par. 1 Ch. 2. which seems too general for though this Act establishes Presbytery yet there are many Clauses in it in favours of the Protestant Religion and to which no answer can be made but that what this Act has establish'd in favours of the Protestant Religion was formerly establish'd by other Acts but the truth is these Acts are not so full as this PEttie in his History tells us that by the seventh Article of the foresaid Assembly it was desired that Tacks set by the Depos'd Ministers should not stand But by this Act it is only declar'd that when Ministers are depriv'd their deprivation excludes them tam ab officio quam beneficio which has been doubted because Suspensions are only ab officio By this Act though the persons be depriv'd yet it is declar'd that their deprivation shall not be prejudicial to Tacks lawfully set by them before their deprivation and the Lords do expone the word lawfully so as to extend to the Setter himself so that his Successors can only quarrel these Rights upon such reasons as the Setter himself could have quarrelled them Vid. Hopes Major Pract. Tit. Kirk THis Act is explain'd by the 48 Act 3 Par. Ja. 6. BY this Act the Woman Divorc'd for the Crime of Adultery committed by her cannot Dispone her Estate to her Adulterer if she Marry him or to the Children procreat of that pretended Marriage which has been introduc'd not only as a punishment of the Adultery when committed but to discourage any from committing Adultery upon hopes that their Children might succeed to their Estates with whom they committed Adultery which is conform to the Canon Law by which non licet eam ducere in uxorem quam quis polluit adulterio and by the Civil Law that woman could not Institute that Servant her Heir with whom she had committed Adultery Inst. de haered instit in princip These Marriages are likewise declar'd null by the 20. Act 16 Par. Ja. 6. Vid. crim pract Tit. Adultery pag. 1â—2 THough regularly Liferent-Escheats do not fall while after year and day yet such as commit Slaughter within Kirks or Kirk-yards and the Resetters of them lose their Liferent-escheat immediatly after Declarator and this Liferent falls to the King though in other cases Liferents fall to the Superiour of whom the respective Lands hold IT was usual to mortifie to Abbacies formal and established Patronages of Kirks which were formally erected in Parsonages and to these the Monks presented Parsons and were only in place of Patrons at other times Tiends were Mortified and given to them and after the Reformation though Tiends were declared the Patrimony of the Church by the Act of Annexation yet thereafter the Lords of Erection did prevail by their importunity with the King to erect these Tiends in Rectories or Parsonages whereof the Patronage was given to the Lord of Erection but there can be nothing so unjust or illegal as these Patronages were and therefore by this Act the Parliament finding this abuse was growing did declare that all Erections of Kirk-lands and Teinds in Temporal Lordships and Livings to the prejudice of the Kirk and hurt of His Majesties Estate and priviledge of his Crown were null which is founded upon excellent Reason for such Erections of Tiends were extreamly to the prejudice of the Church Tiends being clearly by former Laws declared to be the Spirituality and so the Patrimony of the Church 2. Laicks having power to present whom they pleased such Erections did much hurt the Church since it gave to Laicks the power of presenting 3. It is too well known that such as are presented by these Patrons do ordinarly grant Tacks in favours of the Patron and to his behove which has been always lookt upon as not only Simony but as most prejudicial to the interest of the Church making the Ministry despicable and tempting them to ill shifts and discouraging worthy and honest men from seeking such slavish Benefices and therefore the Church has been always an enemy to such Impropriations even when made in favours of Religious Monasteries for Pope Alexander anno 1170 cap. Avaritiae extra de Praebendis says Intelleximus quod in Ecclesiis vestris pensiones percipere consuevistis antiquos reditus Minorastis ideo mandamus ut antiquos reditus cum consensu Archiepiscopi ad integritatem pristinam revocetis and therefore the same
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
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
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
discharging penal Statutes exception is still made of Decreets already obtain'd for by the obtaining of the Decreet before that Discharge the Debt becomes innovated and a private Debt of the nature of other private Rights By this and many other the like observations we may see that the reading Temporary and even abrogated Acts is not useless since material Observations may be made thereupon THis Act is Explained in the 177 Act Par. 13 Ja. 6. THis Act ordains Arch-bishops and Bishops to build and repair their Houses and Manses and that the Successor shall have action against the Predecessors Executors who suffered them to decay which was very just upon the same Reason that all Liferenters are oblig'd praestare hanc cautionem ususructuariam and where the Houses are in decay and Repair'd by the Predecessor the next Successor is to satisfie therefore at the sight of two or three of the Bishops within the Province providing that the satisfaction exceed not 1000 pound if they be Prelats and 500 merks if they be other inferiour Ministers and by the 21 Act Sess. 3 Par. 1 Ch. 2. This is renewed as to the Maintaining of the Manse but the Heretors of the Paroch where there are no Manse are oblig'd to build Manses for Ministers at the sight of the Bishop or such Ministers as he shall appoint not exceeding 1000 pounds and not under 500 merks so that in effect a Ministers Manse may be as dear by that Act as a Bishops Manse is by this which seems unreasonable but their interveening more than 50 years betwixt the two Acts the price of things and Fees of Work-men was much increased the time of the last Act. Vide Papon Arrest lib. 1. num 15. additiones num 6. King IAMES the sixth Parl. 22. THe Presentation of Bishops by Kings begun in the Reign of Lewes King of France about the Year 821. and was resign'd to the Popes by Philip the first and thereafter by the Canon Law the nomination of Arch-bishops and Bishops did belong to the Pope only as the Canonists affirm but he transfer'd this power to the Chapters of Cathedral Churches C. omnes 22. dist c. fin quaest 7. and at last in France by agreement betwixt Pope Leo the Tenth and Francis the First of France the nomination of Prelacies was after much Debate granted to the Kings of France though it be pretended to be a priviledge belonging to Kings in Synodo Aurel. quinta as the Learned Pithâ—us has proven and after that Concordat made in favours of Francis the first It appears that King James the Fifth who lived in the same age and Married Francis the First 's Daughter did with His Parliament Declare that the Nomination of Bishops did belong to the King of Scotland and the Provision only to the Pope Act 125 Par. 7 Ja. 5. But by this Act it is declar'd That Arch bishops and Bishops shall be by His Majesties Licence Elected by the Dean and Chapter of their own Cathedral-kirk to which they are to be prefer'd who being assembled by His Majesties Warrand shall proceed to the Election of the Person named by His Majesty and the Election being Testified under their Seals and Subscriptions he is to get a right to his Benefice under the Kings Great Seal and to be Consecrated It is fit to know that this Warrand for meeting is call'd with us a conge d'eslire which is a French word signifying a liberty to Elect. It is fit to know likewise that with the conge d'eslire there comes a Letter from His Majesty recommending such a Person whom the Dean and Chapter are oblig'd to Elect by the words of this Act and being Elected the Election is Recorded in the Register of the Chapter in which Register all Deeds done by the Bishop either for Entering Vassals or granting Tacks of Teinds are inserted An Extract of this Election is returned to the Arch-bishop of the Province and inserted in his Register and by him Transmitted to the King who thereupon grants a Patent to the Person so Elected who after this is call'd Bishop Elect of such a See which passes through all the Seals and by which he has right both to Spirituality and Temporality though this Act says It shall only give right to the Spirituality This being signifi'd to His Majesty by the said Arch-bishop the King grants His Royal Mandat to a competent number of Bishops within the Province which cannot be under three by the 3 Canon 1 Concil Nicen. after which there is no new Gift to the Temporality as this Act provides only before his actual Possession he makes his homage either to the King personally or to one Commissionated to receive it of which Oath and Homage no mention is made in Ecclesiastick Story till the fourth Counsel of Toledo anno 633. Nota The Mandat for Consecration passes only the Great Seal per saltum It is natural to all Benefices that they should be vacant before they be fill'd and the Right should express a modus vacandi and therefore His Majesty having sent down two Conge d'eslires in January 1679. one in favours of the Bishop of Edinburgh to be Bishop of Ross and another in favours of the Bishop of Galloway to be Bishop of Edinburgh It was advis'd that the Conge d'eslire in favours of Edinburgh should not be presented till Edinburgh was vacant by his being Elected by the Chapter of Ross. It is observable likewise from this Act that a Bishop has not right to the Temporalities till after Consecration For the Act sayes That after the Consecration His Majesty is to Dispone to the Person elected the Temporality and the same being past under the Great Seal the Bishop shall do Homage and swear Obedience neither shall it be lawful for him who is admitted to intromet with any of the Benefices or Rents of the Bishoprick until he have taken the said Oath and done the said Homage And thus the English Lawyers following as I conceive that notion of the Common Law that Episcopus est maritus Ecclesiae They say that Election is as the Sollicitation the Confirmation is the Contract and the Consecration is the Consummation of the Marriage but where a Bishop is Translated there needs no Consecration either by the Canon Law or ours The old Forms of Election was that the King sent a Visitor to oversee the Election and he return'd to the King the Decree of the Election who Confirm'd it by giving investiture and the Metrapolitan was oblig'd to Ordain the Person Elected the Investituâ—e of the Spirituality was by giving a Bible and the Temporality by a Ring and Baton Vid. sirmund form lib. 2. formul 6. and the Conge d'eslire succeeded in place of these Visitors BY this Act the Dean and Members of the Chapters of the Cathedral-kirks within this Kingdom are restor'd to their Manses Gleibs and other Patrimonies belonging to them The Chapter is to the Bishop what Convents were to other
publicum vid. Act 6 Par. 1 Sess. 3 Ch. 2. It may be argu'd from this Act That if the Town of Edinburgh could have made such Acts by their own authority this Act had been needless THis Act is Explain'd in the 106 Act Par. 7 Ja. 5. THis Act is Explain'd crim pract tit Usury THis Act discharges any man to Hunt or Hauk at any time who hath not a Plough of Land in Heretage under the pain of an hundred pounds but it is now in Desuetude K. CHARLES I. Parliament I. KING CHARLES the First having come to Scotland to be Crown'd in anno 1633. The Parliament does by this Act grant Him not only a Subsidie upon the Land-rent bu◠likewise the sixteen penny of all Annualrents the Annualrent being then at ten in the hundred but because the Annualrent was thereafter brought down from ten to six Therefore by the 49 Act Par 1 Ch. 2. It is Declar'd that the said six of the hundred shall be free of all Retention and other publick Burdens whatsoever There is no Immunity allow'd by this Act to any from this Taxation save the ordinary Lords of the Session and Mortifications to Universities Colledges and Hospitals and this was the first time the Lords were separated from the Advocats and other Members of the Colledge of Justice and yet by the 23 Act of this Parliament all the Immunities and Priviledges that ever were granted to the Colledge of Justice are Ratifi'd and though it may seem that this Act being posterior derogats from the former yet specialia semper derogant a generalibus By this Act likewise the Lords of Erection are to be Taxed in the same way that they were before the Erection THis Act is but a continuation of the first Act and shews the way of uplifting the Taxation thereby given THe Parliament having granted by the 8 Act Par 20 Ja. 6. Power to the King to appoint Apparel for Judges and others because that Act was but Temporary they by this Act continue the same to Our Soveraign Lord and His Successors who now is which certainly is wrong Printed and Reads ill for the words should run Our Soveraign Lord that now is and His Successors Observ. 1. That Acts referring any thing to the Kings Majesty and not mentioning His Successors are but Temporary else this Act had been needless Obs. 2. That these erre who think the Parliament cannot delegat their Power for in the former Act and this it is clear that the Parliament did delegat this Power and it is Declar'd that the Kings Letter Regulating this affair shall be equivalent to an Act of Parliament and this same Parliament 1633. did grant a Commission to Revise the Laws and did Declare that what they did should have the force of Laws without Reporting to the Parliament and the Lords of Articles anno 1681. Did grant a Commission with a Parliamentary Power to some to Revise the Earl of Argiles Rights and the Commission of Teinds is of the same Nature THere having been great Debates in anno 1633. concerning the securing the Protestant Religion it was at last agreed that the old Acts made by King James were in themselves sufficient and the best that could be fallen on as being made when there were greatest fears of Popery and by the help of which the Protestant Religion grew to the consistency it is now at and therefore the Parliament acquiesced in this short Act Ratifying in general the former Acts made for securing the Religion Vid. Act 1 Par. 3 Ch. 2. THe former Parliaments which had determined Ministers Stipends forgot to provide School-masters and therefore the Privy Council did provide them by an Act of Council and though it may seem strange that the Privy Council could impose a burden though for a just Cause yet that their Act is here approv'd and the Secret Council are made Judges to all Processes concerning School-masters dues though now the Lords of the Session are the only Judges nor are there any such Processes intented before the Privy Council Since by this Act the Planting of Schools is refer'd to the Bishop with the consent of the Heretors and most part of the Paroch it would appear that they and not the Kirk-session where they live should have the placing of them and albeit it be alleadg'd that the School-master of the Paroch is by the 17 Act Par. 3 Sess. 5 Ch. 〈◊〉 To be Clerk to the Kirk-session and therefore they should have the chief interest Yet this consequence is not sufficient and the Act whereupon it is founded is likewise abrogated This is conform to the Reform'd Church of Saxonie wherein cura scolarum pastoribus ac superintendenti commissa est Carpz lib. 1. tit def 77. BY this Act all Mortifications by Gift Legacy or otherwise are declar'd not to be alterable to any other use than the special use to which they were Destinated by the Mortifier but yet if that use become unlawful ex post facto so that the persons in whose favours they were Mortifi'd be dissabled to Possess I think they should fall to the King as Caduciary if the Property has been once Transfer'd and the person upon whom it was Transfer'd became thereafter uncapable for quae sunt nullius sunt Domini Regis and thus the Mortifications made to Monastries fell not back to the first Proprietars or their Heirs but to the King But if the Property was never Transfer'd but before the first acquisition the person to whom the same was left was incapable to receive the Right Mortifi'd as if a Man should leave a Legacy to his Brother who were a Capushian whose Monastry and not himself are only capable of Legacies it seems that if the Mortifier knew that his Brother was uncapable and that it would fall to the Monastry that in that case also the Mortification should belong to the King and should not be retained by his Heirs as a due punishment of his Fault But if the Mortifier knew not the same it were more reasonable to determine that the Mortifiers Heirs should retain the Right Vid. Tit. Cod. de caduc tollend Thomas Mudie having left a sum to be employ'd on the building a Church in the Grass-Mercat of Edinburgh The Magistrats thereof were upon their Supplication allow'd to build a Steeple and buy a Pale of Bells with the Money because a Church was useless wanting a Stipend though this Act against inverting Pious Donations was objected for the Parliament thought that if a Mortification be left which cannot take place either because it is against Law or is useless the Parliament may allow the same to be fulfilled by an equipollency that being more suitable to the design of the Mortifier and better for the Common-wealth than if the Mortification should become extinct which is consonant to the Civil Law George Heriot having appointed by one of the Statutes of his Hospital that nothing should be altered though for the
18 Act Par. 1 Ch. 1. But by a Letter in anno 1663. The Chancellour is Discharg'd to preside in Exchequer and this shâ—ws his innate power to dispense with Acts of Parliament which relate only to Government and His own Service Observ. 4. That though by vertue of this Act it may be pretended that the Chancellour may preside in the Justice or Admiral Court if he pleases to be present Yet I conceive he cannot come to any of these Courts without a special Nomination and even this Act says That the Chancellour and such as shall be nominat by His Majesty shall preside This Act likewise sets down the Oath of Allegiance wherein the King is acknowledg'd to be Supream over all Persons and in all Causes which is founded upon the 2 Act Par. 18 Ja. 6. and is the foundation of the Act of Supremacy which is the first Act of the 2 Par. Ch. 2. THe Parliament 1641. had taken from the King the Nomination of the Officers of State Counsellours and Judges and therefore by this Act the power of Nominating these Is declar'd to be a part of the Kings Royal Prerogative which is conform to the Law of all Nations l. unica ff ad l. Jul. de ambitu haec Lex hodie in urbe cessat quia ad curam Principis Magistratuum creatio pertinet non ad populi favorem By this Act also It is Declar'd that our Kings hold their Royal Power over this Kingdom from God which was exprest here to condemn that fundamental Treason of the last age which Taught That the King was subject to His People because He Deriv'd His Power from Them And from that they infer'd their power of Reforming and at last of Deposing the King But lest it might have been obtruded that though by this Act it be Declar'd That the King holds His Power from God alone Yet the holding it from God did not exclude the Interest of the People for all Men hold of God whatever they hold of others Therefore by the 5 Act of this Parliament It is Declar'd that our Kings hold their Crowns from God Almighty alone and lest it might still have been said That though the King holds His Power of God yet he Derives His Power from His People Therefore the Convention of Estates in their Letter to the King 1678. and the Estates of Parliament in the 2 Act 3 Par. Ch. 2. anno 1681. Acknowledge That He Derives His Power from God alone And though Conventions of Estates cannot make Laws yet it may be said that they may Declare and Acknowledge their Obedience as fully as Parliaments may Observ. That these words To hold the Crown from God is ill exprest For by our Law He that Holds from Me Holds not of Me for a me de me are Diametrically opposit in matters of Holdings THe former Rebellious Parliaments especially the Convention of Estates 1643. Did Sit without a special Warrand from His Majesty and therefore by this Act The Power of Calling Holding Proroging and Dissolving of Parliaments is Declar'd to be Inherent only in His Majestie as a part of His Royal Prerogative and therefore the 6 Act of this Parliament annulling in special Terms the said Convention 1643. was unnecessary I conceive that the word Proroguing here is us'd for Adjournment only though the Word in its property signifies only to Adjourn so as to make all the Overtures past in that Session to be null which distinction is unknown to and unnecessary with us The Impungers or Contraveeners of this Act are Declar'd by this Act guilty of Treason BY this the former Acts against Convocations and Leagues or Bonds are Ratifi'd and Discharg'd under the pain of Sedition and the keeping of all Assemblies and Meetings upon pretence of preserving the Kings Majesty or for the publick good are declar'd unlawful notwithstanding of these Glosses except in the ordinary Judicatures The Design of which Act was occasioned by and levelled against such Meetings as the Green Tables in anno 1637. Whereat the Nobility and Gentry did formally meet in great numbers though their Papers did alwise begin We the Noblemen Gentlemen and others occasionally met at Edinburgh THe former Rebellious Parliaments having rais'd Armies Fortifi'd Garisons and Treated with the French King without the Authority of their own King It is therefore declar'd by this Act That the Power of making Peace and War Resides solly in His Majesty and that to Rise or Continue in Arms or to make any Treaties or Leagues with Forraign Princes or amongst themselves shall be Treason Observ. 1. That by this Act the King is Declar'd to have the only power of Raising Armies and making Garrisons the Subjects alwayes being free of the Provision and Maintainance of these Forts and Armies and therefore it was asserted that free Quarter except in the Case of actual Rebellion was unlawful and that even then it behov'd to be warranted by a Parliament or Convention though it seems that Rebellions may be so sudden or Parliaments and Conventions so dangerous that free Quarter may be warranted by the Kings own Authority in cases of necessity and if any part of Scotland should rise in Rebellion it is not imaginable that they will either give Quarter for Pay or deserve to be pay'd and so to refuse the King the Power of free Quartering without Parliament or Convention in that case were to deny Him the Power of raising an Army without which it cannot be maintain'd But free Quarter is expresly Discharg'd by the 3 Act Par. 3 Ch. 2. Observ. 2. Some likewise think by this Clause that though the King may force Towns and adjacent Countreys to carry Baggage and Ammunition of His Souldiers the publick Good so requiring yet He must pay them for it since by this Act the King is to pay for the Provisions as well as Maintainance of the Army and to take away Countrey-mens-horses without pay is as great a Tax upon them as Free-quarter But yet our Kings have still been in use by immemorial Possession to exact such Carriage without payment and so the only Doubt remains Whether this Act Innovats the former Custom And whether the Subjects not seeking payment being merae facultatis prescrives against them jus non petendi Observ. 3. It has been controverted Whether though by this Act the King may Dispose upon all Forts Strengths and Garisons if He can thereby make any privat Mans House a Garison that was not so Originally it being pretended that if this were allow'd no man can be sure of his Dwelling-house which is the chief part of his Property but it cannot be deny'd but that all Houses with Battlements or turres pinnatae as Craig observes are inter regalia and of old could not be Built without the Kings special Licence and as to these the King may Garrison them for since He has the absolute power of making Peace and War it were absurd to deny Him the power of Garisoning convenient
Act is Explain'd in the 6 Act Sess. 2. of this Parliament THis Act is Explain'd in the 17 Act Par. 1 Sess. 1 Ch. 2. THis Act is Explain'd Act 4 Par. 3. Q. Mary IN all Retoures it is usually exprest whether or how the Lands are in his Majesties Hands as if they be in his Majesties Hands by vertue of Ward the Retour bears it but since the Retour did not use to bear the Taxt of the Marriage or of the Feu cum maritagio Therefore this Act appoints these to be exprest and the reason why I think these were not exprest formerly was because Taxt-Ward was a very late invention and Lands holding feu cum maritagio is a very extraordinary thing and so the inquest took no notice of either THis Commission for Plantation of Kirks differs nothing from the Commissions given by the other Parliaments but only in that the Power whereby Titulars were forced to sell to each Heretor his respective Teinds is only to last for three years after this Act so that all that great design ends here except it be reviv'd by the next Commission but if the impediment during that time flow from the Titular by reason of his Minority or other inability in that case the Heretor who offered to buy his own Teind is to have place to buy his Teind as soon as the impediment is remov'd but the Act does not express within what time and therefore it would seem that except the Heretor offer to buy during the Minority and did really renew the offer to buy immediatly after the Minority or inability was over he cannot have place to buy It is also declared that if the Heretor be Minor and his Tutors neglect to buy his Teinds the Minor shall have action for 2 years after his minority to compel the Titular to sell them but the Act is ill conceived not mentioning Curators but the giving power to buy after minority includes both but it may be doubted whether this should extend to Idiots and fatuous persons or where there is tutor bonis datus ob non existentiam haeredis and it seems the liberty to buy should be extended to their Heirs for two years after they succeed or two years after furious persons Reconvalesce THe King in anno 1669. by a Commission under the Great-Seal did impower Noblemen and others to Regulat the Judicatures and these Regulations set down by them are here Ratifi'd But it was objected that this could not have been done in Law because by the Institution of the Colledge of Justice and particularly by the 93 Act Par. 7 Ja. 5. The Session has power to make sick Acts Statutes and Ordinances as they shall think expedient for ordering of Processes and hasty expedition of Justice And it was thought strange how Noblemen and Gentlemen who understood not Forms of Process could Regulat incident Diligences and the ordinary Terms in Reductions and Improbation which with many other things specified in these Regulations were so much matter of Form and were so little to be known by the strongest Reason that the greatest Lawyers did oft-times understand less of them than the ordinary Leaders of Processes The first thing in these Regulations is the Roll in which all Causes are to be taken up and are Ordain'd to be Discuss'd according to the Dates of the Returning of Processes which Roll was formerly in use though by the 12 Article it was here added That if any Cause should be call'd by anticipation out of its due place the Pursuers Advocat might refuse to insist or the Defenders Advocat to answer and upon this Article it was that the Lord Almond appeal'd to the Parliament because in the Action at Dumsermlings Instance against him there having been a Debate in the Outter-house Reported to the Lords they had ordain'd the Cause to be summarly heard before themselves in praesentia Whereas by the 5 Article where the Lords upon intricacy Ordains a Cause to be heard in praesentia the Process should have been insert in the Roll of the Inner-house according to the Date of that Deliverance which Article being controverted It was alleadg'd that by this Article Almonds Procurators were not oblig'd to Debate To which it was answered that though where a Cause is Ordain'd to be Inroll'd it must be heard according to that Date yet that did not hinder the Lords to call in any Cause for clearing the Terms of a Debate in the Outter-house Reported to them before they give their Interlocutor therein which as needing no Inrolment falls not under this Article and this Course of Calling in Advocats summarly for clearing some Points is ordinarly us'd without Inrolling Causes in the Inner-house Roll but after a Cause is once Inrol'd in the Inner-house Roll it must be heard according to its Date The Council sometimes likewise when they sustain themselves Judges Competent to Ryots do if any Defence be propon'd before them in point of Right remit the matter of Right to the Lords of Session but ordain it to be discussed summarly without attending this Enrolment to the end that when the matter of Right is Discuss'd they may know how to Judge the Ryot As to the 16 and 17 Articles Vide Observations upon the 9 Act Sess. 3 Par. 1 Ch. 2. By the 22 Article it is appointed That the Advocat who Returns the Process shall give out all the Papers whereupon he resolves to found his Defences which was done to prevent the Pursuers being forc'd to take a time to see those Papers upon which the Defence was founded but this was found unpracticable because the Defenders Advocats knew not what would be found Relevant or not and therefore the Defenders Advocat does now propone his Defence and if it be found Relevant he takes a Day to prove it as formerly The Difference betwixt Outter-house and Inner-house Advocats which was appointed by the Regulations is omitted in this Act which Confirms the Regulations without that distinction Before this Act in Incident Diligences four Terms were allowed for producing the Writs which were accidentally crav'd to be produc'd The first was Letters with Certification that if the Havers produc'd not other Letters would be direct against them Charging them thereto simpliciter 2. That Letters of Horning would be direct The third was Horning The fourth was Caption But by this Act the first Diligence is appointed to be Horning The second Caption which may seem too short for it is hard that third Parties should without any previous advertisement be Charged with Horning for though no Escheat will fall on this Denunciation yet the Rebel will upon this Denunciation be debarr'd ab agendo beside other inconveniencies As to the Regulations concerning the Justice-Court it has been doubted whether they extended to Justice-airs or Circuit-Courts and therefore it was doubted whether a Citation given to a Pannal who is in Prison might be given upon fewer than fifteen dayes in a Justice-air and the
Clause is here added to this Act and is not in the 4 Act 1 Par. Ch. 1. THis Act is Explained in the Observation on the 8 Act 1 Par. Ja. 6. but more fully in my Jus Regium Cap. The Right of Succession Defended and it is remarkable that it was past without a contrary Vote or the least Objection only most thought it so just that it was unnecessary and really it had been so if some in England had not controverted it THis Act Discharges â—ree-quarter and Localities but because some pretended that by this Act they were free from all necessity of carying Corn or Strae or Grass whereas if this were true the Souldiers Horses had been made unfit for Service by such Carriages and the Troopers and Dragoons might have been easily Murther'd whilest they went out singly to bring it in therefore by Act of Council this is fully regulated THere having been a full Debate before His Majesty how far Masters were answerable for their Tennents the Parliament to prevent the like for the future made this Act being fully convinc'd that Masters in Scotland could command their Tennents and Servants suitable whereto there are many old Statutes Commanding Masters to present them and finding that without this the Peace could not be secured and upon the event it is found that this has secur'd the Peace for Tennents and Servants knowing that their Masters would find out their Crimes which Sheriffs and others could not know and that they could not get Service or Land any where If they were disorderly they have conformed and this hath Restor'd Masters to the just Influence which our Predecessors had over their Tennents and Servants and which they lost by their Fanaticism by which they came to depend only on their Ministers and minding more Conventicles than their Work and in which extravagancy they were so far advanc'd that they would not see themselves till they were secur'd that they should be allow'd to go to these nor is the Master ty'd by this Act to any hard thing since by presenting them to Justice or by putting them out of his Land or out of his service he is free from all danger and this is in his power as also to secure him yet further it is Declar'd that he may break their Tacks and that if any Master take them who are put away he shall be lyable unto three years Duty It having been also Debated before the King that there could be no Deputs nam'd for putting the Laws against Ecclesiastick Disorders to execution within the bounds of Heretable Judges therefore His Majesties Power is Declar'd as to this Point by the Clause of this Act but this is now unnecessary because by the 18 Act of this Parliament His Majesties cumulative Power is Declar'd as to all points IT is very observable that the longer the World lasts Probation by Witnesses-lessens alwise in esteem because men grow alwise more Wicked In our Saviours time out of the mouth of two or three Witnesses every word was to be established Thereafter by our Law and by the Laws of other Nations nothing above an hundred pounds could be proven by Witnesses And albeit of old the affixing of a Seal was probative without a Subscription or Witnesses but as by former Acts the Subscriptions of Parties is Declar'd requisit So though formerly the Designing the Witnesses was sufficient although they did not Subscrive Yet by this Act no Writ is Declar'd Probative except the Witnesses Subscrive and without their Subscriving the Writ is Declared null But the Act of Parliament does not condescend whether this nullity shall be receivable by way of exception Or if it must require a Reduction But I conceive it must be null by way of exception since the Law hath Declar'd such Papers null and the want of Witnesses appears by production of the Paper it self The second thing Established by this Act is that no Witnesse shall sign as a Witness to any Parties Subscription except he know the Party and saw him subscrive or saw or heard him give warrand to the Nottar or touch the Pen The occasion of which part of the Act was among other remarkable Cases that a Gentlewoman pretending that she could not Write before so many Company desir'd to sign the Paper in her own Chamber whereupon she got the Paper with her and at her return brought it back subscriv'd and she thereafter rais'd a Reduction of the same Paper as not truly sign'd by her and though this should hardly have been sustainable at her own instance because she was heard to own it by the subscriving witnesses and the whole company yet this exception of dole could not have secluded her Heirs or Executors from reducing it as said is If witnesses without seeing a party subscrive or giving warrand to subscrive shal subscrive as witnesses they are declared to be punishable as accessory to Forgery which quality some think was added to seclude the punishment of Death it being as may be pretended too severe to punish by Death that which is the effect of meer negligence and unto which very many fall through negligence yet our Law knows no difference betwixt accessories and principals further than ex gratia accessories may sometimes find a mitigation of the punishment I conceive also that a party signing as Witness without seeing the Paper subscriv'd should be lyable to a third party who got assignation to that Paper in Damnage and Interest if it be Reduced ex eo capite since he was a loser by his negligence But quid juris 1. If the party himself to whom the Paper was granted were pursuing such an action for Damnage and Interest since he should have considered his own security and the Witnesses might have trusted to his exactness 2. Quid juris if the Witness heard Command given to one of the Nottars since the Act says That unless they heard him give Warrand to a Notar or Notars and touch the Notars Pen and yet even in that case the Paper may be null because there was not a Command given to both the Notars and a third party may thereby lose his Right 3. It may be doubted if upon a Notars asking if the party will warrand him to subscrive the party do give a Nod whether that Nod will be equivalent to a Warrand and free the Witness who thereupon subscrived as Witness And it seems it should for the Act says except he saw or heard him give Command and a man cannot see a Warrand otherways than by a Nod and nutus was sufficient by the Civil Law to infer a Mandat The third point in the Act is that albeit in all Forraign Nations the Subscription of a Notar proves in all Obligations for there the Notar keeps the Paper sign'd by the Party and gives only a Duplicat sign'd by him and albeit in our Law a Notars Subscription did prove in all Instruments such as Seasins Intimations c. If the Witnesses were
OBSERVATIONS ON THE ACTS of PARLIAMENT MADE BY King James the First King James the Second King James the Third King James the Fourth King James the Fifth Queen Mary King James the Sixth King Charles the First King Charles the Second Wherein 1. It is Observ'd if they be in Desuetude Abrogated Limited or Enlarged 2. The Decisions relating to these Acts are mention'd 3. Some new Doubts not yet decided are hinted at 4. Parallel Citations from the Civil Canon Feudal and Municipal Laws and the Laws of other Nations are adduc'd for clearing these Statutes BY SIR GEORGE MACKENZIE of Rosebaugh His Majâ—sties Advocat for SCOTLAND EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1686. TO THE KING SIR NOne are so much obliged to Laws as Monarchs since by them Millions whom corrupt Inclination and mistaken Interest tempt to shake their Thrones are yet forced by these to defend them and find great satisfaction in the reasonableness and gentlenâ—ss of that kind of force By those Your Majesties Predecessors were able to Govern us very long without any other Arms And when successful Usurpers got the most victorious Armies in Europe these Armies were perswaded by Law to serve You and ruine them tho they saw in Your service a dissolution of that Society for which they had with much Courage but no Justice so often exposed their lives To prevent which for the future provident Law settled on Your Majesty suitable Revenues to defend Your Authoritie and therein shewed that the safety of the King and Law were inseparably joyned It is to our IAMES'S that we owe the great Body of our Laws and so there lyes a special obligation upon Your Majesty to cherish them as their Off-spring to maintain them as Your surest and least expensive Guards and to look on them as the only Counsellours that can neither be byassed by partiality nor interest But because Your Majesty has a special esteem for Heroes and Courage Allow me to represent to you that all those eminent Romans who conquered the World were raised by Pleading and the Command of Armies were rewards bestowed by the suffrages of the People on those who Pleaded best for them nor did Cesar as their Story observes take him to the Camp but because he loved rather to be first there than second to Cicero at the Bar where if he had stayed he had not destroyed his native Countrey which Cicero who continued to Plead so wisely preserv'd That is the most generous heart which is warmed by Reflection elevated by the hopes of Fame and used to Victory And no Reflections are so strong as those of men always imploy'd in reasoning Fame has no such Trumpet as Eloquence nor can Courage give so many and solide Victories as Reason does and such Courage does the love of Justice inspire in those who adore it that our Profession has had its own Martyrs too who dar'd to die for it without being diverted by action from looking fixedly on the terrours of death or comforted by the hopes of escaping it as Souldiers in Battels are The vertuous Papinian is a glorious instance of this who being chief Minister of State to his Emperour after he had illustrated the Law by many learned Volums before he attained to the age of 36. choosed rather to die than justifie a barbarous act even in his Prince Master This only use of our Reason we want under Your Majesties happy Reign you being more unwilling to command what is unjust than any of Your Subjects would be to suffer And it was Sir the attending Your Royal Brother You that hightn'd thus in me an esteem of Law for I could not but admiâ—â— that fixt Justice which govern'd so absolutely two Glorious and Wise Monarchs and made so many thousands happy under them amongst whom none is more sensible of that general Happiness and of Your Majesties special Favours than May it please Your MAIESTY Your MAIESTIES most Dutiful Loyal and Obedient Subject and Servant GEORGE MACKENZIE TO THE READER MY great pleasures are to inform and defend my Countrey the one whereof I do without vanity and the other without humour equally desirous to have my designs succeed and careless how they are censur'd We have an excellent pattern for a Lawyer in the great Labeo tit de Orig. Juris Labeo plurimum studiis operam dedit totum annum ita diviserat ut Romae sex mensibus esset sex mensibus â—ecederet conscribendis libris operam daret In those Observations I have satisfied the ardent desire our Parliaments have had to have the Laws revised I have sincerely endeavour'd to preserve honest men from falling into snares by their ignorance and to instruct my yâ—unger Brothers in a Science by which I wish them to rise for the seâ—vice of their Countrey and their own advantage One of the reasons which mov'd me to undertake this work was that even after I was a Lawyer I found that I understood â—ot our Statutes though these be the chief Pillars of our Law and I wisht often then such an Interpreter as now I hope this Book will be These who have read my Observations upon the Act concerning Bankrupts will find that I might have been more Voluminous and seemâ—d more Learn'd but my design was to write Notes and not Commentaries And this Book as all others of this kind should not be judg'd by any one Page but by the whole and yet oft times a Line which may seem easie now haâ— cost me considerable pains even after I was Kings Advocat The difficult Acts or Questions which sometime I omit shall be largely treated in the Papers I shall leave 1. It is 〈◊〉 for my 〈…〉 to know that I 〈…〉 these Acts â—y Skeens Edition and sometimes by Glendocks anâ— so that Act which for instance is the 3d in the one may be the 4th in the other 2. Sometimes I refer my Reader for the Explication of one Act to the Observations on another and yet sometimes possibly it is not treated there which was occasion'd by my not having all my Papers together but the Reader may look the Index of Glendocks Acts and he will find the Acts omitted treated in one or other of the Acts relating to that Subject and thus also that Index may serve generally for one to this Book also 3. I follow sometimes the ordinary opinion though possibly it is not my own Common opinions being still safe even when they are not well founded 4. The errors of the Transcriber have occasion'd those here corrected and it â—ere very fit that the â—uyer would cause correct the Book before he read it for thus by small pains he may prevent considerable mistakes Errata PAgina 1. Linta 4. for Justimans read Justinians Paâ—â— 8. Act 11. l. 3. r. 74. ibid. l. ult for Sunday r. Moonday P. 14. l. 8 Act 37. for Act 1â— Par. 6. 1. Par. 12. Act 126. P. 25. Act
115. l. 8. r. EsloinÈie P. 26. l. 9. for Reub r. Repub. P. 30. Act 137. l. 17. dele â—n P. 36. insert betwixt the 10 and 11 Acts K. James the 2 d Par. 6. p. 37. Act 17. l. 8. for revetis r. revives P. 38. l. 16. r. one helr P. 46. l. 35. r. person P. 47. l. 5. for â—s r. as P. 65. after the end of the 16 Act add K. James the 3 d. Par. 3. P. 68. Act 31. l. 2. r. get P. 71. l. 31. r. a 3 d. Comprising ibid. l. 34. r. 4 th ibid. l. 38. r. fiâ—th P. 72. l. 3. for prejudged r. perjured ib. l. 8. r. to more than 5. P. 74. l. 31. r. 3 d Session P. 83. dele the whole 20 line from â—y c. P. 87. l. 2â— for null r. quarrellable P. 113. l. 13. Act 74. for of r. under P. 129. l. 44. for reparation r. repetition P. 132. l. 2. r. 15â—5 P. 134. l. 21. Act 57. r. Judges P. 136. l. 5 Act 70. dele 8 P. 138. l. 5. Act 70. â— probioâ—atur P. â—41 to notwithstanding c. Add in the Margâ—n Act 82. ibid. for 82. r. 83. ibid. for 83. r. 92. P. 147. l. 4. Act 118. r. appoints P. 159. l. 7. Act 65. r. l. 1. § 2. ss de legatis 3. P. 170. l. â— Act 88. for Confirmations r. Inâ—estments P. 176. l. 28. r. § sed naturalia P. 185. l. â— r. Par. 9. P. 186. l. 2. Act 55. r. was first P. 187 l. 20. for Acts r. and. ibid. l. 21. r. for one only was only P. 188. l. 9. Act 66. r. their Rights P. 193. l. 18. Act 80. r. is probable P. 226. l. 12. r. quod Clericus in Patrimonialibus ut Laicus tractandus P. 228. l. 44. r. 189. P. 233. l. 4. for Erections r. Kirk lands P. 258. l. â— r. as P. 263. l. 5. r. Hujusmodi P. 276. l. 7. Act 156. r. Par. 11. Act 42. ibid. l. 11. r. l. 43. ss de via pub P. 278. l. 21. Act 166. r. Par. 3. Ja. 5. P. 298. l. 18. Act 251. r. volentibus P. 299. Acts 255 c. l. 8. r. 55. P. 300. l. 3. Act 263. for not in observance r. not put in practice P. 339. l. 7. Act 2. r. gestabat Ibid l. 8. â— tit 17. P. 358. l. 17. r. correctoriae P. 376. l. 8. r. this Act. Ibid l. 38. for proportâ—â—n r. property P. 377. l. 24. dele and for the property that was Feued out the time of 〈◊〉 Erection Ibid l. 29. r. â—nfavourable P. 379. l. 16. Act 17. for Beneficed person r. Heretor P. 396. Act 29. r 177. P. 399. l. 32 add after prerogative these words in matters of Trade and delet all that follows P. 405. l. 41. r. could not sell. P. 406 l. 19. for first Compriser r. Debitor P. 407. l. 42. r. a firâ—â— Compriser P. 413. Margin r. Act 4. P. 415. l. 4. r. l. 1. in â—in P. 416. l. â—â— dele as that P. 427. l. 30. dele refuse to P. 428. l. 10. Act 5. for satisfied r. â—ufilfied P. 4â—9 l. 6 for transact r. tranâ—mâ—â— Ibid. l. 2. r. Improving P. 437. l. 44. r. the half of the Fines of all who are not Heretors P. 448. l. pâ—n dele not Ibid. for short r. foresaid P. 462. all from before Act 16. should have been placed before Act 15. OBSERVATIONS Upon the STATUTES and ACTS OF K. JAMES I. Parliament I. IT is observable that our Parliaments do ordinarily begin with Acts in favours of the Church as Justi 〈…〉 codex Does and this Statute renews the first Statute Robert 1. cap 1. Our History observes that this Act was made to oblige the Clergy to assist the King against Duke Murdoch and this is the first of these Acts upon which the reduction of Erections was founded in anno 1627. It being subsumed there that though by this Act all Deeds done to the prejudice of the Church are declared null yet these Erections were very prejudicial to it being in effect alienations of Church-benefices and Lands in favours of Laicks TO make War against the King is Treason and even to make War against private Persons is punishable conform to the Common Law that is to say conform to the Civil Law for the Civil Law is still called the Common Law in our Statutes which word we have borrowed from the French who call the Civil Law Le droict commun and by the Common Law and our present custom the raising of Men in War-like manner by Mustering them or forming them in Companies or swearing them to Colours though no design against the King be proved is Treason for to raise War is a part of His Majesties Prerogative and whoever makes War usurps the Regal Power The Civil Law to which this relates is l. 3. ad l. Jul. Maj. l. un C. Vt armorum usus inscio principe interdictus sit Nulli prâ—rsus nobis insciis atque inconsultis quorumlibet armorum movendorum copia tribuatur but the Justices refused to sustain the raising of fewer than an hundred men to be Treason or to sustain that the raising them till after Letters of Fire and Sword did infer more than a Convocation Earl of Seaforth contra Assint Feb. 2. 1674. And Invasions made by one Subject upon another with numbers of Men without these qualifications was found only punishable as a Convocation by an Arbitrary punishment but I consider more the design than the numbers REbellion is properly rising in Arms against the Common-wealth openly and notorly It was called Perduellion by the Common Law and that is the species of Treason that is here punished by forefaulture of Life Lands and Goods vid. R. M. l. 4. c. 1. leg Malcol 2. c. 12. quon attach c. 19. THese who refuse to assist the King to punish notor Rebels are by this Act punished as favourers of them Notor Rebels are only such as are denounced Rebels or against whom there are Commissions of Fire and Sword granted by the Council or these who have risen in open Rebellion though there be yet no legal diligence against them as was decided February 1680. and these who refuse to assist against such are punishable as favourers of such Rebels that is to say as Art and Part of their Crimes as is clear by the 29 Act Par. 3. Jac. 4. where favourers of Rebels are declared punishable as Art and Part and consequently the staying from the Kings Host after open Proclamation commanding all Heretors to go thereto is punishable as Treason and it is clear by the Journal Books that this Crime has been punished by Forefaulture Jan. 9. 1577. and the 21 of April 1599. Likewise I find Andrew Naiff in Baldordy pannalled for Treasonable abiding from the Kings Host at the Raid of Bigger 1568. And yet I find that Absents from the Host are Bail'd March 15. 1576. though Treason is not of its own nature Bailable and that these Pannals who
caducitatis comminatione legali certus terminus statui si â—â—tra eum instrumenta non edat This Commination is our Certifiâ—ation and this Terminus is our Term in Improbations Rosenthal cap. 8. concl 33. num 13. and 14. In these Actions the King needs produce nothing to prove that he is Superior for the King is presum'd to be general Superior and is Infeft Jure Coronae in all the Lands of Scotlaâ—d but though other Superiors must produce a Seasing of the Lands yet they need produce nothing to prove that the Dâ—fender is Vassal who is oblidg'd to produce upon his hazard or else to disclaim and yet if the Superior Libel only that he is Infeft in such an Earldom and that the Defenders Lands are part and pertinent of the Earldom without producing any thing to instruct that he stands expresly Infeft in these Lands as a part of his Earldom the Lords would not put the Defender in that case to produce Simpliciter but allowed the same day to the Pursuer to prove that they were Part and Pertinent of the Lands wherein the Pursuer stands Infeft and to the Defender to produce if that were proved for the Lords thought it hard to force Heretors to propale and lay open the secrets of their Coveyances where it was not certain if the Pursuer had any Interest albeit it was alleadged that this would occasion two Litiâ—-contestations in one Cause viz. One whither the Pursuer had Right and another whether the Defender had sufficient Interest to seclude the Pursuite for the Lords thought that this being an Act before answer did solve this difficulty and the ordinar Maxime that the Vassal must disclaim upon his hazard and the Argument that either the Pursuer was Superior and would be found to be so and then there was no wrong done or else he was not and in that case the Defender was in no danger by disclaiming were both found only to take place where the Pursuer produc'd a special Right to the Lands Libell'd but not where he pretended only that the Land possest by the Vassal was part and pertinent of his Land which any Pursuer might alledge The third and old way of forcing the Vassal to exhibit his Evidents was by a Feudal Tryal per pares curiae that is to say before an Inquest for of old the King summoned his Vassals to appear before an Inquest to bring with them any Right they pretended to such or such Lands and that way is exprest in this Act as well as the other and in Statut. 36. Rob. 3. num 3. but is now in Desuetude The Lords of Session being come in place of the Inquest The Earl of Rothes as Donator to the Ward of the Countess of Buâ—cleugh having pursued the Tutors for inspection of the Charter-Chist that he might know what Lands held Ward The Lords ordained one of their own number to take inspection and to shew to the Donator what Papers could prove the Ward-holding because it is presumed that all Lands hold Ward Decem. 20. 1661. FRom this and the subsequent Acts It s observable that the Parliament may without citing parties discharge priviledges contained in private mens Rights though they cannot without citation casâ—e and annul privat Rights FOR understanding this Act It is fit to know that the distance betwixt the Hecks of Cruivs should be 3. inches wide which is renew'd by the 74. Act Parl. 10. Jac. 3. and should not be 5. inches conform to the 15. Act. Parl. 2. Jac. 4. which the Lords found 29 July 1665. to be ane error in the Printing They there also found that the Mid-stream was in Desuetude notwithstanding that it was reviv'd in all these Statutes but that the Saturndays Slop was to be observ'd in all Cruivs which was to continue by pulling up all the Hecks to the breadth of an ell in every Cruive from Saturnday at six a clock till Sunday at Sun-rising THough Mines of Gold and Silver be by this Act declar'd to belong to the King yet by the 27 Act. Parl. 4. Sess. 2. Car. 1. they were declared to belong to the Heretor he paying to the King the tenth Penny which was the Canon Metallious that was only due out of Mines found in private Fields l. 2. C. de Metal But that Act is resâ—inded in the general Act Rescissory and this Act is conform to the Feudal Law Feud lib. 2. tit quae sunt Regalia 56. It has been doubted whether Lead Copper or Tin belong to the King or the Heretor but the King is in possession of disponing upon these also and when He dispones them in a novo damus even to the Heretor He reserves a tenth part to be payed in to His Exchequer and His Majesty has granted general Gifts of all Copper-Mines and Craig tells us lib. 1. dieg 14. that omnium gentium omniumque aetatum consensu â—odinâ—s omnes auri argenti stanni aris similium in patrimonio principis numerari but yet they are not enumerate in the foresaid Text of the Feudal Law otherwise than by being comprehended under the word argentaria frequens est in jure sub majoribus minora comprehendi and yet I think that if His Majesty dispon'd Land with all the Silver-Mines this would not comprehend Copper Tin c. So that this Rule holds not in all Cases nor doth it hold in any Case where things require special Dispositions as omnia regalia do Nota From this Act to the 23. the Acts are either in desuetude of no import or explained in the Observations upon other Acts. BY this Act it is ordain'd that our Coyn be of the weight and fynness of England which was formerly ordain'd by the Ch. 38. Stat. Dav. 2. and though by the 17. Act. Parl. 1. Ja. 6. It is declar'd that Our Soveraign Lord cause Print and ConÈie Gold and Silver of sick fynness as other Countries doe yet after King James succeeded to the Crown of England He past a Contract betwixt the Mints of both Nations wherein they oblige themselves to keep the same Standart and though the denominations be different now yet the Standart is now the same For the English Denomination is 11. vnces 2. deniers fine which is call'd Sterling fyne ours is 11. deniers and 2. graine and albeit upon a very subtile inquirie It is alleadg'd that the Denominations cannot be adjusted without some difference yet it is so small a fraction as is not to be regarded and there are four indented Pieces two of Gold and two of Silver made of the same fynness and out of the same Essay-pot two whereof are sent to Scotland the one of which is kept by the Thesaurer and the other in the Mint and two are retain'd in England the Denominations are Printed upon these Pieces and in the Lord Hattons case it was found that this common Standart was to be the Rule Vid. Observation on the 249. Act 15. Parl. Ja. 6.
The last Act of this first Parliament in the Black Impression is an Inhibition made by King James the First to the Bishop of St. Andrews delegated by the Pope to proceed upon the Dismembration of a Benefice purchased at Rome Nota There are many Acts omitted out of Skeens Impression which were in that Impression because Skeen judg'd them Temporary as this Act and a Taxation impos'd for the Kings Ransome by this Parliament wherein so much was put not only upon every Boll of Victual but upon every Beast of Cattel Some Acts are also to be found in Skeen which are not in that Black Impression as the 80. Act. Parl. 10. Ja. 3. in the old Impression it is Act 79. concerning Purprision As also some Acts which were there only temporary are made by Skeen constant and perpetual Laws as the 29. Act of the 2. Parl. of this King â—uns thus in Skeen It is statute and ordain'd that the breakers of the Acts of Parliament be punish'd after the form and ordinance thereof whereas that Act runs thus in the Black Impression Item that it be enquired by the Kings Ministers gif the Statutes made in his first Parliament be kept and if they be broken in any of their pâ—nctilio's that the breakers of them be punisht after the form and ordinance of the said Parliament The Rubricks also of the Acts of that Black Impression differ almost every where and very much from this Impression which proves that Argumentum à rubro ad nigrum is of no great weight with us the Rubrick being an Inscription made by the Clerk Register and no part of the Act of Parliament King JAMES the First Parl. 2 IN the Inscription of this Parliament it is said and of his Kinrick the 19. year by which word Kinrick is meant his Reign for Kinrick in the Saxon Tongue signifies Reign and sometime Kinrick signifies Kingdome with us as in the 145. Act Parl. 13. Ja. 1. In the Inscription of this Parliament according to the Black Impression it is said that to the three Estates of the Realm there gatherit were propon'd sundry Articles to which was answer'd in manner as after-follows by the Inscription of the first Parliament according to that Impression it is said Electae fuerunt certae personae ad Articulos datos per Dominum Regem determinandos data caeteris licentia recedendi By which it appears that the Lords of Articles being nam'd the Parliament Adjourn'd and the custome was that they never mett again till the last day of the Parliament when the resolution of the Articles was voted 2. The resolution of the Articles is said to be Per Dominum Regem because he is only Law-giver and the Parliament only consents It is said in the Inscription of the third Parliament that these Articles were put to certain persons chosen by the three Estates which insinuats that the Lords of Articles were chosen by the three Estates whereas now the way of choosing the Articles is prescrib'd by the 1. Act 1. Parl Sess 3 Ch 2. BY this Act it is ordain'd that if any Lands or Possessions of Haly Kirk be wrongously annaly'd they should be restor'd by Process of Law For understanding whereof It is fit to know that Regularly the Lands and Goods of the Church are not Annaliable and Church-men are not Proprieters of them but Administrators and Liâ—renters praecarij possessores quibus tanquam commendatis non tanquam proprijs uti debent Salv. lib. 1. And this is clear by the Canon Law Canon sine exceptione 12. Quest. 2. can ult Quest. 1. and the Civil Law l. Jubemus 14. C. de sacro-sanctis Ecclesijs But yet there are three cases excepted in which it is permitted to alienat them exprest in Gloss. causae 12. Quest. 2. viz. 1. In causa necessitatis if the Churches Debts require the same as for maintainig its Fabrick or to maintain the Christian Religion against Infidels or Hereticks 2 do Causa pietatis as to maintain the Poor when starving or to redeem Prisoners from Infidels 3 tio Causa damni vitandi when the Lands are not otherwise improvable for which last there is an Act in the Lateran Council under Alexander the 3 d. Cap. ad aures Extr. de Reb. Eccles non alienand By our Law all Ecclesiastical Persons are discharg'd to lessen the Rental of their Benefices by setting Feues Tacks conversion of Victual for Money or any other Disposition By the 5 th Act. Parl. 22. Jac. 6. Bishops are discharg'd to set in Tacks their Quots and Casualities and though this last Act seems unnecessary because of the former yet it was made least it might have been debaitable whether Casualities fell under the former Prohibition since Tutors may transact for these as we see in Francies Montgomeries case against the Earl of Liven where it was found that Tutors who cannot alienat may transact for Casualities as to give a Liferent to the Husband of the Heretrix in place of the Courtesie and though Prelats aswel as Barrons were allowed to Feu their Ward Lands for the better improvement of them Act. 71. I. c. 2. Parl. 14. Act. 91. Jac. 4. Parl. 6. Yet these Acts are only to be understood of Lands to be Feu'd out for the equivalent Rent when at first they were Barren but they are no warrand to Bishops to Tax their Wards for a certain Dutie for this is contrarie to the Interest of the Church and is so far from being warranted by any Law that there is an express Act. viz. 9. Parl 23. Ja. 6. allowing them only to few out their Ward Lands by a Temporary Statute to endure for three years allanerly which shews that Regularly it was not lawful and this did prejudge the King also who might have right to the Ward and Marriage sede vacante from which he would be debarr'd by Taxing these Casualities And therefore Sharp Arch-bishop of St. Andrews having Taxt the Ward-holdings of the Lands of Blebo that Right was reduced by his Successor 12. March 1684 Though it was alleadg'd that though Church-men cannot alienat Teynds which are the Spiritualities of the Church yet they are domini and not administratores tantum as to the Temporalitie which was said to be also Craigs opinion and Taxing was a more constant Rent to the Church and as a Bishop might Gift a Ward which could not be quarelled by his Successors even for years after his Death or Removal so might he Tax Nota Though by the 41. Act Parl. 10 Ja. 2. The King may resume the annext Property unlawfully Dispon'd but any Process of Law yet in this Act Kirk-men are not to resume the Lands wrongfully annalÈied by them otherwayes than by lawful Process of Law BY this Act Hospitals founded by the King are to be visited by the Chancellor but Hospitals founded by Bishops or other Subjects are to be visited by the Bishop and ordinary which Act is renew'd by the 63. Act Parl. 5. Ja. 6. But by the
101. Act Parl. 7. Jam 5. all the Visiters are to be appointed by the King and by our present Practice All Actions intented for causing Patrons or others Compt for their Intromissions with the Rents of Hospitals are still intented at the instance of the Chancellor By the Canon Law Curis Hospitalitatis Hospitalium ad Episcopi solicitudinem pertinet sed ubi non aedificantur Hospitalia cum permissione Episcopi locus non est sacer nec est sub Episcopi cura HEreticks are by this Act to be punished as Law of haliâ— Kirk requires id est by Excommunication with us they were burnt and by Act 46. Parl. 3. Jam. 6. Church-men who are Hereticks are to be Excommunicated and Depos'd if they revock not their Heresie the punishment by the Common Law is Burning and Confiscation of Moveables Clar. Num. 13. This Act was made against the first of our Reformers called then Lollards for the Rubrick in the Black Impression bears of Hereticks and Lollards Obser. From this Act it is observable that the Kirk was Judge to Heresie in prima instantia and Clarus makes the Tryal so far Ecclesiastick that the Cognition belongs to the Church and the punishment to the secular Judge but with us the Justices are Judges in prima instantia IT may be alledged from this Act that all Transgressions of Law are not punishable as contempt of Authority where there is no express sanction in the Law since by this Act it is appointed that the Breakers of Acts of Parliament are to be punished after the Form and Ordinance thereof By which words also it seems that all Acts of Parliament are with us stricti juris and not to be extended de casu in casum but yet with us Laws are extended by Parity of Reason and by Analogie as in the case of making Men answerable for their Wives not going to Church c. And the meaning of this Act is that Judges shall not have liberty commutare paenam Lege definitam expresse for the best Lawyers acknowledge that though an Statute should say And it is ordained that this Statute shall be understood exactly according to the Letter yet it is capable of even an extensive Interpretation if no unjustice follow on that extension but much more if without this it would be unjust Bald. de stat num 3. Voet. de statut sect 7. cap. 1. And a declaratorie Interpretation is by all Lawyers acknowledg'd to be a Literal Interpretation Voet. ibid albeit in general it cannot be deny'd that these who have power to make Statutes must by a necessarie consequence have power to modifie and qualfie them as they please and as they may allow inferiour Judges a Power to Interpret Statutes in general so they may discharge them in a particular Statute to use that their Power and in that Case an inferiour Judge cannot Extend or Interpret otherways than in the terms foresaid LEagues and Bonds are by this Act only declared null but by the Act. 12 Parl. 10. Jam. 6. and Act 4. Parl. 1. Ch 2. they are declared punishable as Sedition and were punishable by Warding Act 43. Parl. 6. Q. Mary IF any carry Horses under three Years old to be sold out of the Country they Eâ—cheat them by this Act and by the 22 Act Parl. 1. Jam. 6 If Horse without making difference as to their Age be carry'd beyond Sea the Horse and Ship and Goods of the Owner are Escheated and their Persons to be punished arbitrarly It is declared by that Act that there were several Acts before discharging the exportation of Horses whereas I see none save this and therefore these behov'd to have been Acts of Council or unprinted Acts of Parliament though generally all Acts inferring Escheat should be printed for Certioration These Acts are now in Desuetude carrying Horses out of the Country being an Improvement of Rent though that was then discharg'd upon the account of our Wars with England but it would appear that the carrying Horses out of the Kingdom till they be three Years old was not discharg'd upon the account of War but to the end the Horses should be kept till they gave a greater price and so should bring in more Money therefore this Prohibition it seems should still last BY this Act Tallow transported is escheated and the reason hereof is given by the 123. Act. Parl. 7. Ja. 5. because by the transportation thereof it became very dear at home and therefore the escheat of the transporters whole Moveables is added but the ill Increasing the Moveables of the Masters and Skippers of such Vessels in which it is transported are declar'd to fall under Confiscation Act. 40. Parl. 6. Q. M. And this Act extends the former to Strangers It is Observable that though this Act discharg'd all Persons to export yet all other Acts mentions Strangers when it is design'd that the Prohibition shall be extended to them as is also clear by the Act. 22. Parl 1 Ja. 6. and the 31. Act. Parl. 7. Ja. 2 d. So that it may be doubted if such penal Acts should be extended to Strangers where they are not mention'd and if the words all Persons are not in our Acts to be restricted to Natives Though by the Civil Law the owners be lyable for the Skippers fault in so far as concerns the prejudice done in the Ship yet it seems hard that an owners escheat shall fall for the Skippers taking in Tallow else Rich men would not be Owners and Skippers might Maliciously ruine their Owners and therefore it seems that by Masters here should only be mean'd Skippers and by the Civil Law the Skipper was call'd Magister Navis THough this Act punishes only Stealers or Cutters of Green Wood in the night time yet they are punishable for such Faults at all times the punishment is exprest Act. 84. Parl. 6. Ja. 6. but thereafter cutting of Green Wood is punisht as Thift with Death Act. 82. Parl. 11. Ja. 6. and yet I find none ever punished Capitaly for this Crime and the ordinary way of pursuing is by Process before the Sheriffs or the Lords for pecuniarie mulcts BY the Common Law no Judge can cite a Malefactor without his own Territorie and therefore if a man cut my Trees I could only pursue him within my Jurisdiction ratione criminis commissi if I find him within it but yet heâ—e it is enacted that if a man steal my Wood the same shall be punished in the Court within which tâ—e Lands lye out of which the Wood was stolne and none other but it seems that this being only introduced in favours of the Person injur'd he may renunce it and pursue before the Judge of the Jurisdiction in which the Offender dwels who cannot obtrude this Statute FOr clearing this Act Vid. infra Ja 1.9 Parl. Act 131. BY this Act Stalkers of Deer are to pay 40 shilling to the King and their Resetters ten pounds
passes in the Exchequer King JAMES the first Parl 3. IS in Desuetude THis Act was made to exclude all pretentions of the Emperour or Pope and all Laws made or Priviledges granted by them but was not design'd to exclude the Civil and Canon Laws which by many of our Statutes are call'd the Common Law and are followed in this Kingdom and to exclude the Danish Laws in the Isles Jac. 4 Par. 6 c. 79. THis Act against Transporting of Money is after many Innovations severly renew'd and the Merchants ordained to swear thereupon allowing only sixty Pounds to Passengers for their Charges by the 11 Act Par 1. Sess 3 d Ch 2 d. But many think it more reasonable to allow Exportation as in Holland since the hindering Exportation prejudges much all manner of commerce THe first part of the Act discharging Officers in the Countrey wherein any man is Indyted to be upon his Assize seems to be founded upon the suspition that arises from an Interest they may have in having the Pannel Convict since a part of his Escheat belongs to them and therefore I think this should not be extended to exclude any such Officers within the Shire as may expect no share such as Commissars c. The second part of the Act which discharges those who Indyte a man to be upon his Assyze extends also against Informers and these who gave advice for raising the Libel but from this part of the Act it clearly appears that it is not generally true that when a penalty is adjected to an Act the deed is not null though the penalty be due for it is here forbidden that any Officiar or other who Indyts a man shall be on his Assyze under the penalty of ten pounds and yet certainly this Act would sett the informer from being on the Assyze and though to this it may be answered that this is unlawful by the Law of Nations prior to all Law and so this Law is only declaratory yet that cannot be alleadged as to discharging Officers within the Shire to be upon assyzes it may be also alleadg'd that this Penalty is only irrogated in case any should pass on such Assyzes without being known to be such But I do really believe that we in our Parliaments considered not the subtile distinction betwixt Acts which proceed paenam irrogando and these which proceed actum irritando vide Obs on the the 216 Act Par 14 Jac 6. It may be likewise concluded from this Act that the Kings Advocat is oblig'd to condescend who is his informer for else the Informer may be upon the Pannels Assyze and yet because that would discourage men from informing interest Reipublicae ne crimina maneant impunita Therefore the Council has several times found that the Advocat is not oblig'd to condescend upon his Informer further than that if it be referred to the Advocats oath of Calumny that some of the Assyzers or Witnesses were his Informers as to which he will be oblig'd to give his Oath of Calumny THe difference betwixt Forethought-fellony and Chaudmella is only observed as to Murder though this Act seems to extend it to all Transgressions and even as to murder the Murderer is to be imprison'd whether it be committed upon Forethought-fellony or Chaudmella for Chaudmella or homicidium in rixa commissum is Capital by our present Law THis Act appointing all Barons to appear in Parliament may seem abrogated by the 102 Act Par 7 Jac 1. Whereby the Barons of each Shire are allowed to choose two wise Men to Re-present them which is the Custom at this day But it is observable that though by that Act they may for their conveniency choose two yet they are by no expresse Law discharg'd to come in greater numbers Nota It seems by that Act that a Prelat or Earl may send their Procurator to Vote for them if they have themselves a lawful excuse but yet de praxi that is not allow'd but this Act is more fully Explain'd in the Observations on the 7 Act Par 22 Jac 6. OBserve that this Act proves the Books of Regiam Majestatem and Quoniam Attachiamenta to be our Law for they are called the Books of Law ARe Explain'd in the 96 th Act Par 6 Jac 4. THis Act appointing all Ferriers to have Bridges in places where Horses are to be Ferried is renewed by the 20 Act Par 4 Jac 3. Wherein all passages on each side of the Water are ordained to have Bridges whereupon Brunt-Island and Kinghorn rais'd a Process against Kirkaldy to have their Passage-Boats discharg'd as not being able to have such Bridges and for the good of the Kingdom since if all places were allow'd to have Boats Kinghorn and Brunt-Island which in the old Evidents is called Wester Kinghorn could not have sufficient Boats against Storms as now but this being thought by the Council matter of Property was remitted to the Session it being dangerous upon pretext of publict good to discharge Property for else many Innovations might be pretended BEfore this Act the Kings Council were the Supream Judges in civil Causes but by this Act some Commissioners of Parliament are to be chosen by turns who with the Chancellor are to be the Session and are to be pay'd out of the Unlaws so that the Session was then a Committee of Parliament their power is further settled and declared by the Acts 61 62 63 Parl 14 Jam 2 d. By which it is clear that they were to Sit but fourty days at a time and that the Session was then ambulatory and their sitting was Proclaim'd in each Shire where they were to Sit three Moneths before and they were by that 63 Act to bear their own Expenses after which the Sessions were by K James 4 Par. 6 Act 58. turn'd in a dayly Council which was to be chosen by the King and was to Sit at Edinburgh continually and wherever the King Resided they had the same power that the Session had and their Sitting was to be notified to the People by open Proclamation at the Kings pleasure In place of all which The Colledge of Justice and The Lords as they now are were Instituted by King James 5 th Parl. 5 th Act 36. Nota There is power granted by this Act to determine Causes finally which may import an excluding of Appeals but thereafter Appeals are discharged expresly Jac. 2 Par. 13 Act 62. THe Sheriff are not now oblig'd to publish the Acts of Parliament but they are to be published at the Mercat Cross of Edinburgh only and bind not the Leidges till fourty dayes after Publication K. James 6 Par. 7 Act 128. King JAMES the first Parliament 4. ARe Explained in the 96 th Act 6 Par Jac 4. BY this Act wilful Fire-raising is Treason 2. Fire-raising by Mis-governance is punishable in Servants 3. Reckless Fire-raising is punishable either in the Owner or the Mealer or Tennent
By the Civil Law incendium casu fortuito is not punishable but conductor tenetur de levissima culpa incendium praesumitur culpa inhabitantium factum fuisse si intra domum originem habuerit â—o casu pater familias tenetur ex facto delicto familiae sed non tenetur si ortum habuerit incendium extra familiam vide Gail lib 2 Obser 21 22. Though by this Act the Magistrates of Towns are to enquire concerning the skaith suffered by Fire-raising so that this seems to be a matter of Government and consequently proper to be try'd also by the Privy Council yet where the case is intricat in point of Law the Council uses to remit the same to the Session as in Doctor Sibbalds case April 1684. King JAMES the first Parliament 5. FOr Explication of this Act Vid sup Act 39 Par 3 Ja 1. and Act 86 Par 6 Ja 1. THis Combination of Workmen was also punished by the Civil Law and it was found in the case of the Lord Hattoun against the Deacon of the Masons of Edinburgh that a Man might choose any Stranger Mason to build his House and if any Mason within the Town give over the Work any other Mason within the Town might undertake it notwithstanding of their own private Statute King JAMES the first Parliament 6. THe Act here related to is 24 th Act Par 1 Jac 1. DEacons are discharged by this Act as tending to Sedition and in place of them the King did introduce Wardens of Crafts who were to Supervise the Work of the respective Trades-men and were indeed Deacons but were called Wardens quasi Guardians Act 102. par 7. Jac. 1. But thereafter though Q Mary of new supprest Deacons and introduced in place of them Visiters yet thereafter about the time of the Reformation to strengthen the Popish party and to oblige all Trades-men thereto she restored Deacons by a special Gift and a Letter to the Council of Edinburgh since which time they remain still legal Corporations and each private Trade has their Deaconry Confirmed by Parliament Vid. Act 39 Par. 3 Ja. 1. THis Act Regulating the Expenses of unjust Pleas seems to have been first made in a Provincial Synod for it relates to the Official or Commissary Court and ends thus Et quod istud statuatur de authoritate Concilij provincialis But I find that in Voet. de stat that general Laws are call'd jura provincialia THough all Submissions with the Decreets following thereupon be declared null if the Submission be not made to an odd person yet this is now in Desuetude vide R. M. l. 2. c. 5. num 4 5 which sayes that it is ordinary to submit to two though it be difficult to make them agree and therefore the Law recommends to them to submit to an Odd Man THis Act relates only to Processes for by it the Causes of all Merchants dying abroad should be decided by their ordinary Judges within the Kingdom viz. in the respective Commissariots and Shires where they liv'd if they went not abroad animo remanendi but notwithstanding of this Act the Testaments of such as live abroad though animo remanendi must be confirm'd in Scotland by the Commissars of Edinburgh as communis patria else no Pursuite can be sustained for their Moveables that are in Scotland July 18. 1666. in the case betwixt Duff and Bisset ANd if it be Fore-thought-Fellony he shall die therefore This may seem to imply that men die not for Murder committed without Fore-thought-Fellony But this holds not in our Law for Murder though committed without Fore-thought-Fellony is punishable by Death except it was either Casual or in Self-Defence and then it is call'd properly Homicide or Man-slaughter It is observable that Crimes ought regularly to be punished in the place where they were committed that where the Scandal was given there the Reparation should be made vide act 34 par 2 Jac 1. act 148 par 12 Jac 1. and this same Act is renew'd act 98 par 6 Jac 1. THe way prescribed by this Act is now obsolet and in Desuetude but the juster way now used is That when a man is Denunced Fugitive for a Crime there are Letters of Intercommuning got out against him by authority of the Council and these are publish'd at the Mercat Crosses where he uses to reside and if any within these Shires where these Letters were publish'd do reset or speak with him they are pursu'd as Intercommuners Nota The Resetter of a Murderer is punish'd as a Murderer and this by the Civil Law is clear in Resetters as to all Crimes l. 1 ff de receptat l un C de crim pecul which is made our Law by the 144 act par 2 Jac 6. and yet some think some Resetters are only to be punish'd as severely as the principal Offenders who assist in the Crime and then reset for these contract a double guilt but that such as only reset them who are guilty should be more benignly punish'd and this answers d. l un C de crim paec in fine l ult § ult ff abâ—g The Civil Law excuses Parents who reset and punishes less Friends and Allies who reset than others l 2 ff h t and though this Act be general yet it seems that it ought to be restricted by the Common Law OBserve first That though Barons do not use to judge Murderers yet by our old Law such as are Infeft with Pit and Gallows may punish Slaughter Q attach c 77. and this Act allows them if they be Infeft with such freedom Observe secondly That by this Act Judges who are negligent to arrest Malefactors if they escape the being warned in both these cases pays 20 pounds IT is fit for understanding this Act to know that Magistrates within Burghs have not power to judge Murders except they be Sheriffs within themselves as Edinburgh Pearth Innerness and some other Towns are A Lord of Regality and his Deputs have as much power in judging Murder as the Justices have though some contravert whether they can judge Murder under Trust because that is Treason and the Justices are only Judges competent to Treason Nota There is a Case exprest in this Act where moe Witnesses than two are required to prove a Crime The Word Croy here signifies an Assyâ—hment which the Judge should pay to the nearest of Kin if he be negligent in Ministring Justice against the Murderer but this is in Desuetude THe sense of this Act is that if a man has found Law-burrows which was called Assurance by our old Law the Friends of him who has found the Law-burrows are punishable if they wrong him to whom Law-burrows are found He who assaults with Edge and Ure is to be imprison'd that is to say with an Edg'd-tool or any thing made of Metal for Ure in Scots signifies Metal King IAMES the first Parliament 7. THe
Banishing such as pay not Custom is in Desuetude and they now lose only their Goods so stold as by the l. 2. C. de Vectigal ALL Barons might come to Parliament before this Act but by this Act they are allow'd to choose Commissars who are now call'd Commissioners and by this Act their Expences are to be pay'd to them which is now done thus The Clerk Register gives them a Tâ—stâ—ficat declaring That according to the Sederunts of Parliament such Commissioners did Serve so long and by the late Act they get Letters of Horning for five pounds a-day vid. supra Act 52 Par. 3 Jac. 1. Nota That though this Act impowers these Commissioners to choose one to Re-present them as their Speaker yet there is no such Person now chosen and the Chancellor is now constant President of the whole Council by the Act 1. Parl. 1. Ch. 2 d. THis Act ordaining such as Interpret the Kings Laws wrongously to be punished arbitrarly stricks only against such as Interpret the Kings Laws so as to make them a meer Cloak for for doing un-justice but mistakes and probable Errors are not punishable nor are the Lords punishable for such mistakes because ipsorum sententiae pro veritate habentur Nota Laws like Oaths are to be taken according to the meaning of the Imposer else they be elusory and otherwise every man would be his own Law-giver and Judge The Earl of Argile was found guilty upon this Statute 1681. for Mis-interpreting so the Test by an quality adjected to his Swearing of it That he reserved still a power to himself to rise in Arms when ever he judg'd the same fit King IAMES the first Parliament 8. BY this Act all the Prelats Lords and Barons are to swear the same Alleagance to the Queen that they swore to the King and by the 136. Act Ja. 1 they promise Literas retinentia fidelitatis to the same Queen but the Queen being a Subject there is no Oath now made to Her and tho by this Act none were to be allow'd to enter to their Feu till they had given this Oath of Fidelity to the King and Queen which was conform to the Feudal Law yet no such Oath is required as to either King or Queen before the Vassals entry Princeps legibus solutus est Augusta autem licet legibus soluta non sit tamen eadem illi tribuunt privilegia quae ipsi habent l 31. ff de leg BY this Latine Act It is Statute that all such as flee from the King or His Lieutenent are to be punished as Nottor and Publict Rebels which Act stricks not only against such as were sworn to Colours for those are punishable only by Death according to the Military Law But all such as leave the Kings Host being obliged to attend and though it may be alleaged that this Act is to be extended only against such as flee in to the Enemie for else the punishment of Treason were too severe for simple deserters and by the Common Law there is ground for this distinction but by our Law there is no ground for this opinion because the going in to the Enemie is per se Treason Not. This is to be punished as Perduellion and Rebellion but it is not declar'd Perduellion or Rebellion and therefore it may be argu'd that the Fisk has not the same Priviledges as to the way of Procedore here that he has in other Species of High Treason or Perduellion such as that the Person himself may be Pursued and Condemn'd in absence upon Probation and that his Heir may be Pursued after his Death c. Not. It may be argu'd that this Act should only be extended against such as Flee from the Armie when the King or His Lieutenent are there in Person in the Fields because then there is great hazard but not against such as desert any under Officer King IAMES the first Parliament 9 THe Office of Maires was to Execut Summonds and the Kings Maires praeco Regis assisted in Criminal Courts there are yet some Maires of Fee or Heretable Maires in Scotland who have Right by their Charters to so many pairs of Shoes and so much Money c. out of every Pleugh which Fees are now very much regulated by Possession By this Act Maires of Fee are to present Persons to the Sheriff to serve under them and if there be no Mair of Fee id est Heretable Mair in that word or district the Shireff is to present an able Person who shall supplie his place by Summonding and this is the Origine of Sheriffs in that part to whom all our ordinar Summonds are direct by the 51 chap. stat David 2. The Serjeand or Maire for they are the same is ordained to give in his Execution in writ or by word if he cannot writ but he must prove all by Witnesses and there the Sheriff or Mair may make Executions or Records for so Executions were call'd of old THat Witnesses in Executions should dwell in different Baronies is in Desuetude That Witnesses should swear that they by-stood saw and heard is only required now in the Execution of Breives who must swear the verity of their Executions but the Witnesses even in that case needs not swear that they were Witnesses especially required to be Witnesses which is only required now in Seasines which bear that the Witnesses were ad hoc specialiter requisiti and yet by this Act all these qualifications are requir'd in all Executions Not. IT may be argu'd from this Law that the Dates are substantial not only in Breivs but in all other Papers Likeas the rubrick of this Act calls them substantialia and therefore if they be false the whole writ is false and it was so found as to Executions whereupon one Creditor is to be preferr'd to another such as are the Intimations of Assignations 29. March 1628. or the Executions of Arrestments for there to allow Witnesses to make up the Dates were in effect to allow Witnesses to prefer one Creditor to another and to establish considerable Sums by Witnesses but if the Date of any other Writ or Security be blotted the owner is allow'd to astruct it by Witnesses 10. Feb. 1636. And though the Moneth and Day be blank yet if the Year be exprest a Bond or such like Writ is sufficient being in re antiqua 15. January 1662 Grant contra Grant but in such cases the Law presums that the Bond was granted the last day of that Year Vid. Gem Consil. 79. Vid. R. M. l. 1.11 THere is no necessity now that he who propons ane EssonÈie or Excuse shall find Caution to prove it at the next Court for now ane EssonÈie being a Dilator of its own nature must like all Dilators be instantly proven Not. Sicknesse is only allow'd here to be proven by two Leil-men or the Parish-priest or Minister deponing upon it but with us Testificats upon Soul and Conscience
are allow'd in all Courts except the Justice Court where â—ssonzie must be proven by Witnesses present in Court And to allow Testificats is dangerous because they may be forg'd yet they were allow'd even in Treason in E. Laudons case 1 Apryl 1684. but the speciality there was that the Earl was in Holland for it was thought hard to bring Phisicians from thence and yet I think the Seal of the Town should be brought in that case Vid. stat Will. c. 26. num 2. Quon Attach c. 33. THe meaning of this Act is when any Defender finds Caution to answer as Law will which is called here a Borgh upon a Weir of Law he may either answer presently or may have a day to give in his Defences he finding Caution to answer of new this is explained R. M. l. 1. c. 11. num 4. But now with us there is no dyet allow'd in Criminal Courts for the dyets there are peremptor THis falsing of Dooms or Appeal was altered and in place of them are come our Suspensions and Reductions of Decreets for the Doom is a Decreet and in these Reductions and Suspensions it is lawful to insert only one Reason at first and the rest may be now eeked without protesting for a Liberty to eeke new Reasons as is required by this Act and a Borgh or Caution is yet necessary in Suspensions as it was in falsing of Dooms By the Civil Law Appeals were to be interpos'd within ten days after Sentence but by this Act the Appeal was to be us'd immediatly or at least before the Pursuer walkt 40 paces by the Act 99. Parl. 6. Ja. 4. and in place of the words here used viz. That Doom is false stink and and rotten in the self and thereto a Borgh the party leased was to say I am gratumly hurt and injured by the said Doom and therefore I Appeal and this was done because the words here us'd were Rude and Unmanerly THe meaning of this Act is That if the Pursuer be forc'd to find Caution to answer as Law will he may force the Defender to Recounter it That is to say to find Caution also and whosoever is absent after Caution is so found shall lose the cause and shall be unlaw'd also Vid. c. 18. vers 2. 3. l. 1. R. M. THis Act appoints That the Ships which break in this Kingdom shall be Confiscated amongst us if the Ship belongs to a Countrey which uses that Law against us For clearing this it is fit to know that by the Civil Law the Goods of Ship-wrackt Persons fell not to the Fisk. l. 1. C. de naufr si quando naufragio navis expulsa fuerit ad Litius vel si quando aliquam terram attigerit ad Dominos pertineat fiscus meus sese non interponat quidenim jus habet fiscus in aliena calamitate ut de re tam luctuosa compendium sectetur and by the Canon Law qui christianos naufragium sacientes damnata cupiditate râ—bus suis spoliant excommunicantur c. 3. Extr. de Rapt But yet France does Confiscat Ship-wrackt Goods le bris est confisque au segnieur Soveraigne â—odin de 〈◊〉 C. ult Where it is asserted that this was the Law of both Eastern and Western Seas which is false for it is not the custome of Holland nor Pole nor Denmark Vid. Curick ad tit 9. jur Hans with us if no Living Creature escape that was in the Ship the Goods are Wreck and belong to the Admiral by his Gift from the King but if any Living Creature escape neither Ship nor Goods are Wreck as was decided where only ane Ox escapt 12 December 1622. And yet by the present custome of the Admirality though no Living Creature escape the Admiral secures only the Goods and restors them if the true Owner claime them and prove his Propertie within year and day being repayed of his Salvage for which we have no positive Statute And it seems we have borrowed this from the Statute of Hen. 3. anno 1226. cited by Curick tit 9. Though Skeen de verb. sig verb. Wrack cites another Statute viz. Anno 3. Ed. 1. C. 4. So that though the Custome seems unjust yet this Law has seem'd just because of Lex talionis And the Title quod quisque juris in alium statuit ut ipse eodem jure utatur tit 2. lib. 2. ff And yet our present Custome has justly corrected this Law in manner above mentioned And I likewise believe that even after the Year is Elapsed the true Proprietar may recover his Goods if he prove the Propertie and if his Goods be extant for 1. That which is mine cannot be taken from me without my own fact and deed 2. There were as good reason for the King to seize upon Goods that were Robb'd by Land for the Proprietar quytes his Goods as unwillingly in the one case as in the other 3 ly Even in Goods that are thrown over Board for the securitie of the Vessel the Law presums no design in the Proprietar to quite them as de relicta § Fin. Inst. de rer divis And therefore much lesse ought this to be sustained in Goods forced from the Proprietar by a Tempest since there is some consent in the one but none in the other 4 to If any privat man seize on such Ship-wrackt Goods his seizing on them would be a Crime l. 1. l. ult de inâ—end ruin l. de submersis C. de naufrag And it is strange that private men should be punished because they seized on what was anothers and yet the same calamitie which aggrages the Crime in them should establish a Right in the Publick and it may be well argued that either the Propertie is lost by the Ship-wrack and if so why has the Proprietar action against the seizers or if it be not lost how has the Fisk acquyred the Propertie for duo non possunt esse domini ejusdem rei in solidum 5 o. There is lesse reason for a shorter prescription in such than in any other Moveables For in other Goods there may be a presumed design to quite the possession but here there can be none for it is palpably to be imputed to force 6 o. This is destructive to all Commerce and no Nation ought to sustain it because all Nations will loss equalie by it 7 o. The Owners may not know where to seek their Ship-wrackt Goods because lost in very remote Countries and oftentimes the Owners themselves being lost with them leave none to prosecute their Rights so that upon the whole matter it seems that the custome of other Nations can no more justifie ours in this than the eating of our men amongst the Cannibals would justifie our eating them and it seems rather that Letters of Mark ought to be granted in such cases if restitution be refus'd THough this Act appoints Advocats to give their Oath of Calumnie only in Temporal Courts yet this holds also in the Commissar
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
Perduellion allanerly What we now call Protections were called there Supercederes but not Protections By the Civil Law publica tutelae assertio principis solius eratl capital § ad statuas ff de pan nunc salvagardiae dicuntur vid. argentrate pag 190. King IAMES the first Parliament 13. IT was lately doubted whether Theft-boot which is the Transacting with Thieves by a Judge for freeing them from punishment be in Desuetude and it was found a Crime yet punishable There are two kinds of Theft-boot declared by this Act to be punishable the one is to sell a Thief which is to take a Ransom for liberating him 〈◊〉 other to Fine with a Thief that is to take a share of what he has stoln and so dismiss him both which are exprest Act 2 Par. 1 Ja. 5. by concording with the Thief and putting him from the Law The punishment by this Act seems to be the loss of the Right of Regaâ—â—â—y as to Lords of Regaliâ—y but to be death in Sheriffs Justices c. And if so it seems strange that the Lords of Regality shall be 〈◊〉 punished than others But I think the punishment as to both 〈◊〉 of Life and Office and the words of the Act are only ill plac'd And by the Civil Law whoever commits either of these are punish'd as the Thief himself l. 1. ff de Receptator where the two species of Theft boot exprest 〈◊〉 in this Act are also there exprest quia cum apprehendere latrones possint pecunia accepta vel subreptorum parte demiserunt and this Act punishes only Theft-boot in Judges but yet if a private person take a part of the stoln Goods he may be punished as a Resetter albeit the meer letting of a Thief go is not a Crime in him since he is not oblig'd to take him This Act was necessary because formerly Transacting with Thieves was discharg'd but no punishment exprest Quon Attach c. 42. 77. stat 1 Rob. 1. c. 3 stat Will. c. 15 By which last who Redeems a Thief est legem aquae subiturus which is now in Desuetude THis Oath is not now put to Assizers except the Party require that they be purg'd of Partiality for the ordinary Oath now us'd is That they shall Truth say and no Truth conceal in so far as they are to pass upon this Assize CRowners do not now arrest Male-factors for all arrestments are by Messengers or the Macers of the Criminal Court but yet some Heretable Crowners do assist at Justice-Airs to this Day and keep the Bar and secure Malefactors as they go and come from and to it THere is a double interest in all Crimes the Fisk or King has an interest because his Peace and Laws are broke and his Subjects wrong'd and this is call'd by the Civil Law vindicta publica The person wrong'd has another interest which is call'd vindicta privata That the King may pursue without the concourse of the person injur'd is clear by this Act but because this Act allow'd only Sheriffs to pursue without consent of the party therefore this is extended to all cases in â—â—vours of the King Act 76. Par. 11. Ja. 6. THis Act is abrogated by the Union of both Nations but argumento hujus legis the taking Protections from or assurance with any Enemie of the State is Treason and it may be alleadg'd that assuring Merchant Goods or Ships by Hollanders when we had War with them vvas Treason by this Act and by the Common Law for this is a corresponding vvith Enemies A Thief novv by the Regulations must be pursu'd upon 15. days only as all Malefactors VIde Act 50. Parl. 7. Ja. 3. Act 107. Parl. 7. Ja. 6. and such as failÈie to bring in Bullion are punished Act 51. Parl. 7. Ja. 3. Act 65. Parl. 8. And all is novv innovated by the Act 37. Parl. 1. Ch. 2 d. THe Bell rung in Edinbrugh at 9. at night conform to this Act till it was ordain'd to ring at 10. as it does which being altered at the desire of the Earl of Arrans Lady when he was Chancellour it is therefore call'd the Lady's Bell. From her also the Steps leading to St. Giles Church are call'd the Ladies Steps BY this Act the Law is to be holden where the Trespass is done which is most just because by punishing Crymes upon the Place the Scandal there given is taken off by a proportional terror 2. The Friends of the Party injur'd are thereby better repaâ—ed 3. Probation is more easy got and Assysers upon the Place are readier to do Justice as knowing better the matter of Fact Vid. Stat Will. Reg. c. 18. And is conform to the Civil Law l. 3. ff in prin de Re milit tot tit C. ubi de crimine agi oportet and that this was the old Law of Nations is clear by Quint. Câ—rt THe carriers of Gold and Silver except in so far as is necessary for Spending infers also the escheat of the Carriers other Moveables Act 69. Parl. 9. Q. M. But the falling of their Escheat was but 5. lib. after that Act and is now in Desuetude so that the words under the pain of Escheat is to be interpreted of Escheating the Money so carry'd allanerly K. JAMES II. Parliament I. THIS is not an Act but a Declaration concerning the Fidelity Sworn by the Parliament to their young King and I find no such Declraation or acknowledgement in an other Parliament of any other King So this is rather set down as a Narration than as an Act of Parliament For it mentions not Bishops and it expresses the consent of alâ— the Free-holders THis is the first Revocation that I find made by any of our Kings and here Dispositions made by the King of Moveables is Revocked and though no mention be made of Moveables in latter Revocations Since a King who is Minor Disponing Moveables without an onerous Cause may Revock them 2 ly It is observable that the King is as his Subjects Minor till 21 years compleat and that the Parliament is in place of Tutors to Him 3 ly This Inventar is conform to the Civil Law whereby the Tutor was oblig'd to make an Inventar of his Minors Estate and which is made our Law by the Act 2. Sess. 3. Parl. 2. Ch. 2. and to make an Inventar unto Dupois is to make it according to weight Dupois being a French word signifying Weight 4 ly That in this Act rather the Parliament than the King Revocks for the King was then minor but regularly the King's Revocation passes under His Privy Seal first and then is Confirmed and past by an Act of Parliament Vid. Act 9 th Parl. 1 Ch. 1. But sometimes it passes first by Proclamation and then by Act of Parliament Act 51 Par. 4 th Ja. 4 th And sometimes by way of Instrument Act 70. Par. 6 th Ja. 5 th King JAMES the Second
Parl. 2. THE only Act in this Parliament Warrands the Kings Lieutenent to force such as ly under violent presumptions of Spilling and Troubling the Countrey to find Caution that the Countrey and the Kings Subjects shall be unharm'd which shews clearly that the King may upon Presumptions of which He is sole Judge oblige any of His Subjects to give Bond to live Peaceably without which the Government could not Subsist This Act was occasion'd by the great Outrages committed by Archibald Earl of Dowglas in the South during the Kings Minority King IAMES the Second Parliament 3. VID Stat. Dav. 2 d cap. 42. Concerning the Liberties of the Haly-Kirk TWo Justice Courts were to be held Yearly by the Justices at Edinburgh and Peebles c. 79. Quon Attach and two Justice-airs are to be held yearly the one upon the North-side of Forth and the other upon the South-side of Forth c. 30. Stat. Rob. 3 d. And by The Scottis Sea is mean'd here The Water of Forth Secundo That part of this Act which appoints Lords of Regality to hold Justice Courts twice a year is now in Desuetude BY this Act after word is sent to the Council that there is any Rebellion Burning c. The King is to call the Sheriff and see it Re-drest and all the Barons oblige them to assist the King with their Persons and Goods as oft as it shall be seen needful by Advice of His Council From which it is observable That the King needs not call a Parliament to assist Him in a War but that the King and His Council may call for Men and Maintainance in case of War and this was very reasonable for Rebellion may be Invincible before a Parliament be assembled and Parliaments do often give little help in case of Combination if the occasions of it be popular as was too clearly discover'd in our late Rebellion The reason why in the former Act and this the Advice of the King's Council is still exprest as necessary was because the King was then Minor and His Person had been several times surpriz'd In all this Parliament there is no mention made of the Authority of the Regent as uses to be when the King is Minor but only the hail three Estates have Ordain'd which I think proceeded from the Hatred the Nobility had at that time to Alexander Livingstoun who was then Regent I find that in the Ratification of the Acts of Parliament called the black Acts Folio 149. The Duke of Chattelrault then Governour is plac'd before the Queen-Mother then Regent King IAMES the Second Parliament 4. OBserve that Excommunication takes away personam standi in judicio So that Excommunicate persons cannot pursue nor defend for the Act sayes That they shall not be heared nor answered in the Law of Judgement and though the Word answered would import only that they cannot pursue yet the Word Heared Imports both Pursuing and Defending and the Words Heared nor Answered had been superfluous if they had been to express only the Pursuing This Act and the 4 th Act 3 d Par. Ja. 2 d. Were made upon the Earl of Crawfords Cruelty to Kennedy Bishop of Aberdene King IAMES the Second Parliament 5. THis is the first time I find Art and Part mentioned in our Law Nota The time forbidden by Law for killing of Salmond is from the Feast of the Assumption viz. the 13 of August to St. Andrews which is the 30 of Nov. Act 34 Par. 2 Ja. 1. And though the third Fault was death by the 10 Act Par. 1 Ja. 1. Yet by this Act the third Fault is only punishable by loss of Office vid. Act 224 Par. 14 Ja. 6. THe form of causing restore Goods SpuilÈied now is That the Sheriff or any Judge discern and upon this Decreet Letters of Horning are rais'd and the Defenders Denunced We find by this Act that old Rule of the Canon Law Spoliatus ante omnia restituendus here Confirm'd and the meaning of it is That though the Spuilzier have a sufficient and valid Right to what he has SpuilÈied yet being pursu'd his Right will not defend him but he must first restore the Person SpuilÈied to his Possession for the Law will not allow any man to be his own Judge and to Intromet at his own hand Obs. secundo That of old all Decreets were under the Kings Wax that is to say His Seal and till of late and the last Institution of the Session all Decreets even of the Session were under the Quarter-Seal OBserve That all Scotland is divided in Royalty and Regality The Royalty is that which was Judged by the Kings immediat Judges as Sheriffs and they are here and else-where call'd the Lords of the Royal. THese who were Excommunicated were denunced Rebels and Letters of Caption raised against them and this Act as to this point is founded upon cap. 6 th Stat. Rob. 3 d. and is morefully explained Act 53. Parl. 3. Ja. 6. Where these Letters are appointed to be raised by the Authority of the Council after 40. days are expired from the date of the Excommunication Nota. This is the first Act that speaks of Appryzing of Lands and it was done then at the Mercat Cross in the same way that Moveables were then and are yet poyndable Nota. THe punishment of such as break the Peace is left Arbitrary by this Act and by this Act Justices of the Peace are ordained Irenarchae by the Civil Law of which there are whole Titles in that Law VId. Sup. Act 3 d. Parl. 1. Ja. 1. As also by this Act it is clear that Forfaultors for Rebellion were only to be led before the Parliament for it is here said that they shall be punished by the advice of the Three Estates but now open Rebels rysing in Armes may be Tryed and Forfaulted by the Justices by the Act. 11 th Parl. 2 d. Ch. 2 d. THis was Statuted before as to Murder C. 17. l. 3 d. R. M. by a Trespassour justified in this Act is mean't a Person condemned by Law or Justice and it is oft so mean't in all old Laws THere are now no Wardens in the Borders but these affaires are manadged by Commissions from the King cal'd Commissioners for the Borders ALL Officers offending wilfully are to lose their Offices for a Year by this Act but this Act is not the only punishment for if a Judge execut a man wilfully he will die for it and a Judge being partial or refusing to do Justice is to be punished Rigorously Ja. 1. Parl. 2 d. Act 45. and if he be Faulty or Negligent he loses his Office if it be Temporal for a Year or is to be Suspended from it if it be Heretable Ja. 2 d. Parl. 14. Act. 76. vid. Ja. 3 d. Par. 5. Act 27. Ja. 3 d. Parl. 14. Act. 105. And the punishment of Judges offending in their Offices is now Arbitrary suitable to the nature of
private Quarrels if they be Charged by Letters from the Council to render them as use is by Heraulds they are also punishable as Traitors in case of contempt but if these who keep out their Houses upon private Feids do thereafter yield them the keeping them out is only punishable arbitrarly and not as Treason not only are such as keep out their Houses immediatly against the King executed as Traitors as we see in Robert Steuart's case who was Executed January 5. 1615. But such as hound them out to keep their Houses are Executed as Traitors and thus the Earl of Orknay was Executed for hounding out his Son February 1. 1615. Though hounding out be not exprest in this Act for hounding out is still Art and Part But the Justices refused February 2. 1674. In Assints Case to sustain the Garisoning of Assints House to infer Treason except it was Garisoned after the Publication of the Letters of Fire and Sword and that the Garisoning of it before did only infer Deforcement it being commanded to yield by the Sheriff in the Kings Name By which it seems that Garisoning Houses to defend against Execution of the Law infers not Treason except it be done either upon a publick account or after raising and publishing Letters of Fire and Sword 2 do Some argue from Act that since the assailing of Houses where the Kings Person is shall be repute Treason if it be done without consent of the three Estates that therefore it is lawful to assault Houses or rise in Arms with consent of the three Estates But this is a great mistake for no opposition to or Invading of the King can be justified by a Warrand from the three Estates and the meaning of this Act is That though it be pretended that the King is Prisoner in any Castle it is not lawful for any private person upon that pretext to raise Armies and Invade that place without authority of Parliament For it is dangerous to make private persons Judges in such considerable Cases And the rysing in Arms or defending Castles on what pretext soever is declar'd Treason by the 5 Act 1 Par. Ch. 2. The occasion of this Act was because this King had been twice kept in Castles in His Minority once by the Chancellour Sir William Creighton and thereafter by Sir Alexander Livingston Governour and at both times endeavours were us'd to besiege the Castles of Edinburgh and Stirling where he then was Vid. obser on 5 Act 1 Par. Ch. 2. BY this Act Regalities returning to the King in Property viz either by Sale or Forefalture for the Kings property is never erected in a Regality but in a Stewartry shall be judg'd by the Sheriffs and the ordinary Judges and ordinarly when Regalities return to the King they are expresly supprest and Erected of new in Stewartries as Orknay Act 13 Par. 2 Ch. 2. Obser. That regulariter these who dwell in Regalities are not subject to the Sheriff vid. Act 43 Par. 11 Ja. 2. And Erections of Regalities do ordinarly bear a power to Repledge THe meaning of this Act is That the Justice Clerk shall not reveal who raises Summonds or obtains Warrands for apprehending Malefactors c. Least also the Malefactors or Defenders escape before they be cited or apprehended as also that when any man is Delated for one Cryme the Justice-Clerk change not the pursuit and raise it for another Cryme and whereas it is said That it shall not be lawful to him to translate such Actions except it be for the better to the King the meaning is that if the Informer ignorantly Inform in a great Cryme as if it were a small Cryme as if he should Inform only that to be a Ryot which is Treason the Justice-Clerk may raise the Pursuite as for Treason It is clear that since by this Act the name of the giver up of Ditty in the Porteous Roll is to be conceal'd which is done for encouraging Persons to delate that therefore Treason should not be given up in a Porteous Roll or else the paena talionis is lost nor do I remember that Treason was taken up of old so and if this were allow'd discontented Tennents or Servants knowing they were secure against talion might be induc'd easily to destroy their Masters THis Act appoints the Strickers of false Coyn to be punished as Law will and by the Act 124. Parl. 7 th Ja. 5. It is ordained That they who falsify Money or counterfits the Kings Irons shall be punished according to the old Law and yet I find no Law before that time specifying the punishment in general For the 41. Act Parl. 5. Ja. 3. punishes only with Death the Home-bringers of Black-money That is to say Copper-money and by the Act 70. Parl. 9. Q. M. The Home-bringers of the false Coyn should be delated and the Delaters is to have the half of all his Goods Moveable and immoveable but though the punishment of Treason be not specified in any express Act yet it appears that it infers Forfaulture for else the Revealer could not have the half of the Offenders Goods immoveable and I find one Drummond burnt for False Money forging the 27. November 1601. And his Brother Patrick Murray burnt also for Art and Part red counsel and concealing the Treasonable Forging Coyning and Out-putting of false Money and the Sentences upon False Coyn bear ordinarily Forfalture vid. supra Act 49. Parl. 3. Ja. 1. But it were expedient to make an express Act in this case THis Act is now in Desuetude and it was sounded upon the missio in possessionem per primum secundum decretum so much Treated ofâ— in the Civil Law but in place of all these are come our Compryzings and Adjudications whereby if the Debitor pay not the Creditor Compryses and is put in Possession and if he Redeem not within the Legal then the Land belongs absolutâ—ly to the Creditor without Redemption King IAMES the second Parliament 7. BY this Act The Home-bringing of Poyson is discharged under the Pain of Treason and yet I find none punished as Traitors upon this and John Dick in Anno 1649. For poysoning his Brother and Sister is only executed but not Forfaulted but I believe he has had no Lands to Forfault nor do I see how a Judge can proceed less severely in this case than the Law appoints especially seing the Act is so express that this shall remain as an aye lasting Statute And the reason why the Law is severer against Poisoning than Murder is because no man can defend himself against Poison and Poison uses never to be given but by persons who have some Trust and so is Murder under Trust which is likewise Treason by our Law and yet it was only punish'd Capitally by the Civil Law l. 1. § 1. ff ad L. Cornel de sicar Though this Act discharges the bringing home of any Poison for any manner of use Yet Apothecaries are allow'd to bring it home
for their Medecines and this is likewise allow'd by the Common Law and Doctors and there is a venenum bonum as well as malum and though buying and in-bringing of Poison be declared Treason by this Act though it be not given yet by the Opinion of the Doctors it is only punishable in that case paenâ extraordinariâ Gothofred § venenum num 21. THis Act against Strangers bringing home Poison has not been observ'd amongst us and it is hard to punish Strangers for a Law that they are not oblig'd to know and it appears they cannot be lyable except they be advertised by some Magistrate that there is such a Law and that therefore they should carry back these Commodities and yet if a Stranger should actually give Poison he would be punishable though no such Act as this had been made since every man is oblig'd to know that it is unlawful to give Poison King JAMES the second Parliament 8. EIther it is provided that Wodset Lands shall be Redeem'd for payment of ordinary Money of Scotland and then it must be pai'd according to the rate the Money gives at the time when the Redemption was us'd and not according to the rate it gave at the time when the Wodset was granted as for instance if Lands be Wodset for ten thousand pounds and thereafter the Money be cry'd up so that the Dollar that was fifty six shilling is to give a Crown or a Shilling is to give a Merk in that case the ten thousand Pounds is to be Consign'd according to the rate as the Money gave though the Wodsetter pay'd moe Dollars and Shillings than he is to get back This holds not only in Redemption by vertue of this Act but in all payments as is clear by Act 19 Par. 3. Ja. 3. and Act 68 Par. 8 Ja. 3. But if the Money to be Consign'd be tailÈied Money that is to say a specifick kind of Money from the Word Talis as for instance five thousand Merks in Rose-nobles or the like specifick kind of Money then if so much Money cannot be had of that kind in specie it may be pay'd in as much of the present current Coyn as will answer to that kind of Money being of the same value as the Gold and Silver specifi'd in the said Reversion conform to the Common Law which the Lords interpret to be payment according to the price and value that the said tailÈied Money was worth the time of granting the Obligation March 3. 1623. King IAMES the second Parliament 9 THis Act discharging the keeping of old Stacks of Corn and the next Act discharging the Girnaling of Corn seem to have been Temporary and the Justices have refus'd to sustain Dittay upon either THis Act discharging the keeping up of more Victual than will serve a mans Family for a Quarter of a Year and that they shall present the superplus to the Mercat within nine Dayes seems likewise to have been but Temporary because of the scarcity that then was and at any time of scarcity the Magistrates of any Burgh Royal are in use and may lawfully as some think break up the Doors of Victual-houses within Burgh and ordain the Victual to be sold at competent rates if the Merchants be either unwilling or absent but if the Privy Council be sitting it is safer to make application to them King JAMES the second Parliament 11. OBser 1 o. This is the first formal Act of Annexation and though it bear only That it shall not be lawful to the King to AnalÈie any part of His annexed Property in Fee Heretage or Frank-tenement without consent of Parliament yet this extends to long Tacks for it is not lawful to set even long Tacks of the annex'd Property and if it were then the design of Annexation might easily be eluded and the Crown impoverish'd Albeit this Act declares it lawful to the King to intromet with any of the annex'd Property without Process of Law and by the 203 Act Par. 14 Ja. 6. Such as had or should intromet for the future by the Kings Command with annex'd Property are secur'd Yet by our present Custom the King uses to Reduce such Rights and not to intromet with them brevi manu Obser. 2 o. That because this Act bears That the annex'd Property cannot be Dissolv'd except by Deliverance and Decreet of the whole Parliament and for great seand and reasonable Causes of the Realm Therefore a Dissolution contain'd in a Confirmation of the annex'd Property after it is Dispon'd is not sufficient but is Reduceable since Dissolutions should be specially Read and Considered Whereas Confirmations and Ratifications pass in course without Observation Likeas Disposition of the annex'd Property made before the Dissolution are declar'd null by the 236 Act 15 Par. Ja. 6. This was so decided February 25. 1669. The King's Advocat contra the Earl of Mortoun and by the 13 Act 2 Par. Ch. 2. That Decreet bearing this Interpretation of all former Annexations is Ratified and it is appointed That Orknay shall not be Dissolv'd without the Advice of the whole Parliament and for great and weighty Causes relating to the publick interest of the whole Kingdom to be considered before the Disposition least by a previous Disposition the Parliament should be pre-determined in their deliberation and therefore it would appear that where there is a Disposition granted before Dissolution not only is that Dissolution null as being filius ante patrem so that it could not make the preceeding Disposition to Convalesce even from the date of the Dissolution But that a posterior Disposition relating to that Dissolution would be null since by the first Disposition the Parliament is once pre-determined in the Deliberation and therefore it would be fit that such Dissolutions should expresly bear this difficulty and dispense therewith per expressum It is here also fit to observe that Dispositions of Rights made of annex'd Property in the Kings Minority though Ratified in Parliament and after the Kings Majority are null albeit any other Deed done by a Minor in his minority is valid if Ratifi'd in Majority For though it may be alleadg'd that the reason of this Speciality is because Ratifications pass in Course and the Grounds are not considered as ought to be in Annexations Yet the true Reason of the Speciality must be that it is easie to obtain Ratifications of such null Rights and therefore the Parliament to preclude all from seeking them has declar'd That they shall not be valid when obtain'd or else because a lawful Dissolution is pre-requisit and ought to preceed a lawful Disposition of annex'd Property And therefore though the Ratification might supply the defect of the prior Disposition yet it cannot supply the nullity arising from the want of the former Dissolution Obser. 3 o. That when any Dispositions are Reduc'd the person who took such unlawful Dispositions must restore the bygone Mails and Dewties from the very date of his
yet that Exaction by him at Fairs in time of Parliament is in Desuetude and other Constables have Fees which they exact in time of Fairs by special Infestment as the Constable of Dundee and it is observable from this Act that a long Custom of exacting Fees and Customs from the people is not Warrantable except either that old Custom be founded upon an old and express Infestment or warranted by an Act of Parliament King JAMES the second Parliament 14. SPuilzies are here divided in SpuilÈies of Moveables and SpuilÈies of Fee or Heretage but that improper way of speaking is not now us'd for the Dispossessing a man out of Heretage is called Ejection and Ejections are now pursu'd before the Lords as ordinary Actions but not in the special way here prescribed That Maxim of Spoliatus ante omnia restituendus extends to SpuilÈies of both Moveables and Heretage ALL those Forms of Process are to be consider'd at the Institution of the Session by King James 5 th By this Act Appeals to King or Parliament are utterly discharged But the Question is whether only Appeals stopping execution be hereby discharg'd and it is alleadg'd that Appeals were only discharg'd here because the Session was then a Committee of Parliament and there lyes no Appeals from the Parliament but it seems there is likewise no Appeals from the Session as presently Constituted because they are invested in all the priviledges the former Session had and that the 99 Act Parl. 6 Ja. 4. allowing Appeals after this Act must only be interpreted of Appeals from inferiour Judicatures but even these are also in Desuetude Whether Protestations for remeid of Law be allowable notwithstanding of this Act was Debated in Anno 1674. and the King determined by his Letter in Anno 1674. That they were not to be allow'd to Advocats nor Parties after the Lords of Sessions Decisions albeit it was alleadg'd then that by an Act of Sederunt in Anno 1567. Protestations for remeid of Law were expresly excepted in the Act discharging Murmuration against the Lords and that Lethingtoun Balfour and Hope in their Practiques Tit. Lords of the Session do express these as allowable nor are they discharg'd expresly by these Acts and though neither Appeals to the Parliament nor Protestations for remeid of Law before them be not now to be practised by Parties or Advocats yet it is not yet decided how far the Parliament may Rescind the Decreets of the Lords and though they might yet it was urg'd that it is not fit they should since Parliaments may seem more subject to passion and factions then the Session great men have too much influence there and by these and such Appeals the sitting of Parliaments would be very much lengthen'd and because their sitting is uncertain the Sentences of the Lords could not be acquiesced in as a Security and all Pleas would be thereby both endless and expensive and there is as great reason for discharging Appeals to King and Parliament as there was at this time for the Lords then though a Committee of Parliament were not more Learn'd than the Session now and upon these considerations the Parliament 1661. Did by a Letter to the King in a case betwixt Sir Thomas Hamilton and Alrud declare that there could be no Appeal from the Lords of Session THis Act against Litsters buying and selling Cloath is extended so by the 12 Act Parl. 2 Ja. 3. That no Crafts-men may use Merchandise and the reason of this Law is because if they were allow'd to buy they would make none and so neither improve themselves nor the native Commodities of the Kingdom this Act is renewed by the 47 th Act 1 Sessi 1 Parl. Ch. 2 d. EVery Merchant must Sail with at least three Serplaiths of Goods and the Serplaith contains 80 Stone of weight but by the 13 Act Parl. 2 Ja. 3. It is appointed that no man Sail without half a Last of Goods which was introduced because pedling Merchants having very small Stocks were both a discredit to the Nation and were also forc'd to sell at any rate for they could not wait for a price but now all such Acts are in Desuetude Obs. That by this Act it is appointed that none Sail or Trade but free Burgesses which is restricted by the 11 Act Parl. 2 Ja. 3. In which it is declar'd lawful for Prelats Lords Barons and Clerks to send their own Servants and by the 5 Act Parl. 2 Ch. 2 Sess. 3. It is declared lawful for Indwellers in Burghs of Regalities or Baronies and others to send abroad Corn Cattel Neat Hydes and all the Native Commodities of the Kingdom IN all Acts for visiting Hospitals the Chancellor is still one and though by this Act where the foundation of Hospitals cannot be found the Remeid is refer'd to the King Yet by the Act 10 Parl. 1 Ja. 3. It is appointed that where the Foundation cannot be found the Rents shall be bestow'd upon the Poor By the Canon Law Hospitals are not Benefices and yet the care of them belong'd to the Bishop tit 10. quest 2. vid. not on Act 27 Parl. 2 Ja. 1. Supra THis Sumptuary Law is in Desuetude by Musling of Women here is mean'd being Masked FEues being free and gratuitous Donations bestow'd for Service it was just that the Vassal should not have liberty to sell without the consent of the Granter for else others might be obtruded upon him as Vassals and he might want the service of that Family which he particularly chus'd but yet the Feudal Law allow'd the Vassal to grant a Sub-feu which though it may seem a kind of Alienation yet was allow'd by that Law lib. 2. tit 3. § Sed etiam Because in Alienations the Superiour would have lost the Service of the first Family and would have had but one Vassal whereas in Sub-infeudations the first Vassal must still remain Vassal and be lyable to all the Casualities and Services and the Superiour gets likewise another Vassal viz. the Sub-vassal a Sub-feu being likewise but Emphiteusis the Sub-vassal is but in effect a Tennent and therefore by this Act of Parliament the King declares that for better cultivating and labouring of the Kingdom he will allow all his own Vassals to set their Lands which they hold immediatly of him in Sub-feu and it is declar'd that this Act shall be equivalent to a Confirmation And these Sub-feues are by this Act only call'd Assedations and are by the 9 Act Par 6 Ja. 4. ordain'd to be Set for the Policy of the Realm because as I conceive the Kings Vassals being thus freed from the Labouring of their own Lands they might be the abler to serve the King in his Wars and the Land likewise be the better Laboured by these Sub-feuars who could attend the Labouring thereof Upon which Words Our Soveraign Lord shall Ratifie and approve the said Assedation It was Debated whether a Sub-feu set by vertue of this Act
did fall under the Forefalture of the Vassal though it was not Confirm'd in the Person of the Sub-vassal and it was alleadg'd that the Sub-feu could not be quarrell'd because the King by this Act having invited men to take Sub-feus it was not just that the Invitation given by a publick Law should become a snare and having promis'd to ratifie and approve the Sub-feu that promise being insert in this publick Law was equivalent to a Confirmation and therefore should defend against a Forefalture as well as a Confirmation could have done and though these Words were alleadg'd only to import a promise to Ratifie which did imply that application should have been made for a Confirmation Yet to this it was answer'd that this was an Invitation and the Words subjoyn'd thereto must therefore be considered as a present Approbation especially seing there is no time prefixt for craving of a Confirmation nor any irritancy annex'd to the not craving thereof It was likewise urg'd that by the 91 Act Parl. 6. Ja. 4. This Sub-feuing should be no cause of Forefalture and that since this Act would defend against Ward and Recognition it should much more defend against Forefalture upon Treason for that being a most personal crime of which not only the Sub-vassal is innocent but oft-times concurs with the King against his own Supeâ—iour the poor Sub-vassal ought therefore to be less troubled upon it than upon Recognition to which the Sub-vaâ—sal himself is somewhat accessory because he receives the Right upon which the Recognition is infer'd And whereas it was urg'd that by the 37 Act Parl. 2 Ja. 6. The Sub-vassals of the Kings Vassals who were Forefalted at that time are secured if themselves were innocent which Act had been unnecessary if this Act had secured them and that Act is declar'd to have been only Temporary pro eâ vice by the 201 Act Parl. 14 Ja. 6. To this it was answer'd that by this Act such Sub-feus are only allow'd as are set for the just avail and all other Feus might have been quarrell'd and therefore that Act was made to secure the Sub-vassals of Forefalted Persons whose Rights might have been quarrell'd upon that head or else that Act has been made ad majorem cautelam and to prevent all debate which is most usual Upon this Debate the Lords found that this Sub-feu fell not under the Forefalture this general Law being equivalent to a Confirmation February 12. 1674. Marquess of Huntly contra Cairuburrow It has also been Debated whether Wodsets Feu'd out are secur'd against this Act as well as Lands irredeemably Dispon'd and I think they are since a Wodset Right is as properly a Feu as an irredeemable Right What is meant in this Act by the competent avail for which Ward Lands may be feu'd is dubious but the just avail for which the Kings proper Lands may be feu'd is by several Acts of Parliament declar'd to be the Retour-dewty or new extent and therefore I think that the competent avail here must also be interpreted to be the Retour-dewty and in January 1680. betwixt the same parties it was found that though the competent avail be the Retour-dewty exprest in his Service yet the Sub-vassal getting a part of the Lands feu'd to him he ought to pay no more for the competent avail but his proportion of his Superiours Retour-dewty and that if a Charter was given him blank by his Superiour which he fill'd up himself with a special Reddendo the Charter was not therefore null and he was only lyable in his just proportion of the said Retour'd-dewty and the Vassal if he pleases may by a Process against his Superiour get this competent avail to which his share should extend determin'd and that being specifi'd in his Service will thereafter become his Retour-dewty though ordinarly the Sub-vassal to prevent expence or by mistake uses to Retour the Dewty that was payable by his Superiour especially if the difference be not great THe punishment of such as abuse the power of their Jurisdiction of Regality is left arbitrary by this Act. vid. c. 14. Stat. Rob. 2. THis Act is Explain'd in the 96 Act 6 Parl. Ja. 4. BY this Act all Remissions are null except the Party injur'd be Assythed and he who produces the Remission must either find sufficient Caution to pay the Assythment within fourty days or to stay in Prison till the payment and by the 155 Act 12 Parl. Ja. 6. and 136 Act 8 Parl. Ja. 6. It is provided that if the Remiâ—sion contain not an Assythment expresly in the body of it the Remission shall be null but because these Acts were Temporary therefore by the 174 Act Parl 13 Ja. 6. If any Remission or Respit be granted before the Party injur'd be first satisfi'd the Remission is to be null and though by that last Act it would seem that an Assythment subsequent to the Remission would not make the Remission to convalesce because that Act requires that the Remission shall be null as said is yet the meaning of that Act seems only to be that without an Assythment the Remission shall be null From the same Act exception is made of Remissions granted for quieting the Highlands or Borders which may be valid without Assythment Gratiâ factâ a principâ— nocenti non valet nisi pax sit prius habita ab haeredibus offensi which we call a Letter of Slains vel nisi fiat reparatio damnorum Plot. concil 78. Clar. Quest. 58. num 40. ubi traditur posse Regem tamen gratiare nocentem sine pace privati quando damnandus elaborasset pro bono reipublicae vid. l. non omnes § fin ff de re milit The second part of this Act relates to Remissions for SpuilÈieâ— or Theft as to which the Lords of the Session may restore the Party and Assyth him notwithstanding of the Remission By this Act no Free-holder can be forc'd to come to Parliament except he hold a twenty pound Land of the King but none can be now compell'd and this was only in the time when all Free-holders were oblig'd to compear in Parliament as the Kings Head-Court nor can any now Vot in the election of the Commissioners except they hold a 40 shilling Land of the King immediatly or hold ten Chalders of Victual or a 1000 pound Feu-dewty all deducted off a Bishop or Abbot formerly and hold the same now of the King Act 35 Par. 1 Ch. 2. But now again since the restitution of Bishops the Bishops represent their own Land in particular and so their Vassals are not allow'd to sit in Parliament vid. Act 21 Par. 3 Ch. 2. THe negligence so severely punish'd in Judges by this Act must be negligentia dolosa supina and the distinction here observ'd betwixt the punishment of Heretable Officers and others is ordinary amongst the Doctors Bald. ad l. 1. ff de serv. fugitiv where he says that pro negligentia Judex
removetur ab officio sed hoc non tenet in judice perpetuo Farin Q. 3. num 423. says that Majores Officiales non removentur sed minores facile removentur by thâ— cap. 14. Stat. Rob. 2. A negligent Judge viz. a Baillie of Regality is to be punish'd by escheating his Moveables and their life is to be in the Kings will A faulty Judge is also punishable by this Act in the same way as a negligent Judge which must not be mean'd of the meanest fault seing the punishment is so great but whereas by this Act the punishment is the loss of Office for ever if it be not Heretable yet by the 26 Act Parl. 5. Ja. 3. The Heretable Officer loseâ— his Office for three years whereas this Act bears this being lawfully prov'd and notorly kend we must not conclude that a Judge may be convict upon this notoriety without probation for these two are only exegetick of one another and the sense is they being convict upon notor probation Vid. supra observ on Act 16 Parl. 6 Ja. 2. THe Form now to be follow'd in case any man should masterfully possess another mans Lands is that if violence was us'd at the entering then the Council upon a Complaint will restore the party dispossess'd but if the Intrant entred in vacuam possessionem though without any Right he behov'd to be pursu'd before the Session by an action of Intrusion K. JAMES III. Parliament I. BY this Act the third of the KING'S Rents of Assyse that is to say the third of His Lands and Customes belong to the Queen as her Dowrie or Terce allenarly which is conform to the Common Law of this Kingdom by which the Wife has right to a Third of all the Lands in which a man dies Infest and that though she be otherwise provided if she be not expresly secluded from it by her Contract of Marriage so that it seems the Queen would have had right to a Terce of proper Lands belonging to the King though this Act had not been made But now by the 10 Act Parl. 3 Ch. 2. If a Wife be provided to a particular Provision though never so small either in her Contract of Marriage or in any other Write she will be secluded from a Terce except her Terce be expresly reserv'd to her by and attour the particular Provision Nota The Rents of Assize comprehends the Kings Customes and Lands as was found Decemb. 9. 1466. and March 11. 1500. Ogilvie contra Gray It may be doubted whether this Act was Temporary relating only to this Queen or if any Queen of Great-britain will have right as Queen of Scotland to a third of the Property conform to this Act since the Act seems to be reasonable in it self and that the Queen is founded in this right by the Common Law and if this had been only a Temporary Right relating only to this Queen it would not have been inserted amongst the general Laws or at least it would not have been generally conceiv'd as this Act is in these Terms The Dowrie of the Queen for terminus indefinitus aequiâ—ollet universali I find that in the 191 Act Parl. 13 Ja. 6. Queen Ann is provided to the third of the Property but not to the third of the Customes but that being by express paction derogats not from this Law SOmetimes Benefices Ecclesiastick were bestow'd upon secular persons who were call'd Commendators because the Benefice was commended and intrusted to their oversight and they were Procuratores in râ—m sâ—am habebant tantum detentionem possâ—ssionem but were not Proprietars and so could not Dispone Roman Concil 350. And because Commendators were but Trusties or Tutors Therefore Rights made by them though with consent of the Chapter are no longer binding in our Law than during the Commendators own Right And by this Act these Commendams are discharg'd and yet the Deeds done by them are not annull'd and therefore many Rights made by Commendators since this Act are sustain'd as valid though they were not Proprietars By the Canon Law only the Pope could grant commendam perpetuam and the Bishops could only grant Commends for six Moneths c. Nemo Elect. l. 6. THe pain of Lawburrows here exprest is hightned by the Act 166. Par. 13 Ja. 6. by which every Earl or Lords Penalty is made two thousand pounds every great Baron a thousand pounds every Free-holder a thousand merks every Fewar five hundred merks the un-landed Gentleman two hundred merks and the Yeoman one hundred merks which last Act is now observ'd and though Penalties be exprest here against breakers of Lawburrows found to Church-men and that there be no mention made of them in the last Act yet an Arch-bishop or Bishop can pursue now for the same penalty that is due to an Earl and Bishops and their Wives are allow'd the same Solemnities at their Funerals that are allow'd to Noblemen and their Wives by the 14 Act 3 Par. Ch. 2. And though there be no mention made here of Dukes and Marquesses yet the priviledge granted to Earls is extended to them 2 o By this Act the Penalty is to be apply'd to the King and is due by and attour the Reparation due to the person les'd but by the last Act and the present Custom the Penalty is to be divided betwixt the King and the Party and though by this Act the Master is free if he present his Servant who breaks the Law-burrows Less than the Law-burrows that is to say he who found the Lawburrows bring the Trespassors to the King or Sheriff within fourty days Dominus noxali judicio servi sui nomine conventus servum actori noxae dedendo liberatur yet by our present Custom the Master finds Caution that the Raiser of Law-burrows shall be skaithless from him against whom it is rais'd and his Men-Tennents and Servants and therefore the Master seems now lyable though he should present his Servants Albeit these be the ordinary Penalties allow'd where there is no other proof of the Danger then the Oath of the Complainer yet if the Complainer prove Threatnings the Council or Criminal Court may ordain surety of Law-burrows to be found upon such sums as they think proportional to the danger Vid. Not. on Act 129 Par. 9 Ja. 1. Supra THough by this Act all Summons are to be on twenty one days Warning yet all Summons that are priviledg'd by their own Nature or the Lords Deliverance come in upon six days vid. Hope Form of Process and by an Act of Sederunt July 21. 1672. It is declar'd that no Actions can be priviledg'd except Removings recent SpuilÈies recent Ejections Intrusions succeeding in the Vice Exhibitions Causes alimentary Summons for making forthcoming Transferrings Poyndings of the Ground Walkennings special Declarators Suspensions Prevento's and Transumpts all which and all second Summons in all Actions are to come in upon six days warnings except recent SpuilÈies because by the 65 Act Par.
a great difference in our Law betwixt these persons being free to Trade and so not lyable to the pains of un-free Traders and their being free from paying of Customs and the first two Acts cited do certainly Militate only in the first case by granting them a freedom to Trade but not a freedom from paying of Customs And as to the 251 Act 15 Pâ—r. Ja. 6. It does not grant an exemption from Customs And albeit it may be urg'd that the first part of that Act having imposed Customs on all and this being an exception it must be an exception from the Rule yet consequential Arguments should not take away express Laws nor is this an exception but rather a Cautionary Reservation and these use to be insert ad majorem Cautelam and should never be extended beyond the Terms of the Reservation But so it is that the Reservation is not conceiv'd absolutely but only conform to the Laws and Liberties granted to them before And therefore since it cannot be subsumed that there are any former Laws granting this exemption from Customs it must be restricted to the priviledge of their bâ—ing free from the pains of un-free Trading only 2 o. It is to be consider'd that the former Laws allows them only the liberty from being punish'd as un-free Traders as to what they import by their own Servants for their own privat use and as the return of Commodities of their own product exported by them Nor does the 143. Chap. Leg. Burg. extend further than to exeem Barons from in-land Customs due to Subjects 3 o. The time of that Act the Customs were justly impos'd upon exported Goods But thereafter His Majesty was graciously pleas'd to lay the greatest part of the Customs upon the imported Commodities and so having very much freed the Barons of a Duty that burdened their product it was not reasonable that their product and imported Goods should be both free Likeas so convincing was this Argument that albeit some shadow of an exemption was subjoyn'd when the Customs were imposed upon their product by the first Constitution in that Act 251. yet when this burden was transferred by the Act 1670. from the export to the import the Barons did require no such exemption nor does the Act bear any And so this Act is innovated by the said posterior Act. As to the Excise there can be no pretence for any exemption from it since there being no such Duty extant the time of the Act 251. That Act cannot be extended to the Excise And whereas it is pretended that by the Act 3 Sess. 2 Pa. Ch. 2. This exemption is renewed after the imposing of Excise It is answered that the said Act Ch. 2. does not express any such priviledge but only says that the Regulation of the differences betwixt the Burghs Royal and Burghs of Barony introduced by that Act shall be but prejudice to the Noblemen Prelats and others of their priviledge of importing any of the Goods allowed to be then imported for their own and families use allenarly Which can only be interpreted to relate to their freedom of Trading that being the only design of the whole Acts in which there is no design of Restricting or innovating any thing with relation to Custom or Excise And thereafter since at all times the King is founded quoad the payment of Customs much less ought we to Debate this with him at this time when His Majesty is content to lessen his uncontroverted Right in the Customes for the enriching these who controvert this his Right by consenting at their desire to discharge more imported Goods than would pay him more Customes then he can expect from these not exeemed Notwithstanding of these Reasons yet by the present Tacks Noblemen and Gentlemen are exeem'd from paying Customs for what they bring for their own use but they are not exeem'd from Excise nor the additional Duties because these were granted to the King in contemplation of what the King lost by the want of the Custom due to him upon Goods now prohibited vid. Gimnas de vectig p. 76. Where it is told us that by the Laws of Germany Illustres generosi sunt immunes pro his quae sunt pro victu cultu suo vid. l. omnium C. de Vectigal VId. Annot. Act 66 Par. 14. Ja. 2. VId. Annot. Act 67 Par. 14. Ja. 2. OBser 1 o. This Act appoints all Ships to have Chartor Parties and because there was no penalty against these who had no Chartor Party therefore by the 109 Act Par. 14 Ja. 3. The penalty of twenty pounds is adjected and yet both these Acts are in Desuetude for within the Kingdom no Chartor Parties are used nor are they found necessary even for these who Sail abroad Observ. 2 o. That though it be said in this Act that when any Debate happens betwixt Master and Merchant that they shall underly the Jurisdiction and Ordinance of the Burgh to which the Ship is fraughted without any exception yet by the Custom now observ'd such Pursuites may be intented against the Defender wherever he dwells or before the Lords even in the first instance Observ. 3 o. That though by this Act it be ordain'd that no Merchant Goods be riven or Spilt with unreasonable stowing or the Masters fault under pain of tinsel of the Fraught and amending of the Skaith yet the Skipper is lyaâ—le if the Goods be spilt though without his fault ex casu fâ—rtuito as by Water from a Pomp though the Pomp had a Stellage about it and was proven to have been a sufficient Pomp before the Ship set forth so that this danger could not have been foreseen quamvis locator non tenetur ex casu fortuito and the words in a Bill of Loadning obliging the Skipper to restore the Goods well conditioned can only bind ad exactissimam diligentiam Vid. Peckium pag. 34. Yet the Lords thought that if such Defences were allow'd Merchants could have no Security for they were neither oblig'd to know nor could they prove the secret frailties of Ships November 7. 1677. Lowrie contra Angus This Act in so far as it appoints a Seek-Fraught to be paid to the Chaplain of the Nation is in Dâ—suetude And by the Chaplain of the Nation here is mean'd the Kings Almoner which was to be given to him for the use of the poor for in the next line it appoints a Tunn Fraught to be paid to the Kirk-work of the Town to which they are Fraughted but I know there are some who say that Capellanus noster mentioned among the Witnesses to the Kings Deeds is mean'd the Director of the Chancellary the Chancellary being call'd in all our old Writs Capella Regia BRuges was the first Staple of this Nation but it 's discharg'd by this Act to be the Staple for the future and our Ships are allow'd to go to the French Ports by the following Act because of the Alliances we had with France
Delegat some of their number not only in some particular cases but with a general power to represent them in all things which seems hard for that were to make and create a new Parliament but here their power was Delegated only as to Debatable cases for these Lords were then in place of the Session and I have heard it Debated if the Council could Delegat their Power to any of their number as to all things for that were to make a new Council and since the King impower'd only nine to be a Quorum they might not impower a fewer number nor were it fit for the People to have the Supream Power committed to so few nec potest delegatus delegare Nor can the Justices nor Commissioners for Teinds make such Committees though they are as Supream as the Council vid. Observ. on the last Act 10 Par. Ja. 3. BY this Act it seems that the Council may reduce the Verdicts of Inquests and Sentences of the Justices though the regular way of questioning Assizers who assoilÈe be by a Summons of Error before the Justices and a new Inquest of fourty five persons and de facto the Council do cancel such Verdicts and Sentences before themselves as they did in George Grahames Case and ordinarly they mitigat the Sentences of the Justices Nota The Books of Regiam Majestatem are by this Act called His Majesties Laws and the place here related to is lib. 1. R.M. cap. 14. BEcause the Riches of this Realm consists chiefly in our Fishing therefore Bushes are ordain'd to be made since these are able to ride out in Storms which lesser Vessels cannot do and it is best fishing when the Waters are troubled this is renew'd by the 49 Act Parliament 4 Ja. 4. THough by this Act he who tines his Action is to pay fourty shilling of expences yet the modification is left arbitrary to the respective Judges conform to the Civil Law which appoints condemnationem in expensas litium damna contra temere litigantes Inst. hic depen temerè litigantium § 1. And by the 43 Act Par. 11 Ja. 6. The Defender pays twelve pennies out of every pound to the Lords and the Defenders expences at the Lords modification King IAMES the third Parliament 7. BY the Civil Law he who is to succeed as Heir is still to be Tutor of Law but because this could not well be where the immediat Heir was himself under twenty five yeaâ—s and therefore by this it is appointed that the age of a Tutor of Law or Tutor legitimus shall be the age of twenty five years though the age of majority be twenty one because it requires greater experience to Govern other mens Affairs than our own and if the immediat Heir be not of that age the next Heir who has attain'd to that age is to be Tutor And by the Civil Law no man could be a Tutor even by a Testament till he attain'd to that age Inst. qui testament tutor § 2. By this Act also the nearest Agnat that is to say the nearest of the Fathers side is to be Tutor which was conform to the old Civil Law but Justinian by the Nov. 118. did take away this difference betwixt Agnats and Cognats both as to Succession and Tutories and we in both follow the old Law and not this Novel BY this Act the Laws called leges burgorum bound in with Reg. Maj. are declard a part of our Law and the Chapter particularly related to is cap. 125. Though this Act appoints only the Heirs of Barons Gentlemen and Free-holders to have Heirship-moveables Yet by our Law all Prelats Barons and Burgesses may have Heirs and these Heirs have right to the best of every thing that belong'd to their Predecessor as their heirship-moveable conform to a Roll expressing what is heirship-moveable a copy of which Roll may be had from the Clerk of Edinburgh the reason why moveable-heirship was allowed only to Prelats Barons and Burgesses seems to be either because these being the only three States of Parliament they only ought to be allow'd such considerable Plenishing as heirship-moveables or else because in those dayes none but persons of these qualities could have such moveables under the word Prelats are comprehended all benefic'd persons By Burgesses are understood all Trades-men and others Traffecking or working within Burghs but not honorary Burgesses By Barons are understood all who are Infest in Lands though not erected in a Barony and that maxime semel baro semper baro is to be interpreted presumptive so that he who is Infest in Lands is presum'd to die Infest But if he was devested before his death either by Comprysing Resignation or otherwise he cannot be counted a Baron and have an heir January 27. 1636. Straton contra Chirnside These words of the best of ilk thing must be interpreted de corporibus but not de quantitatibus rebus â—ungibilibus quae pondere numero vel mensurâ constant as Money Cloath c. and so the Stool of a Salt-pan which was out of use was accounted but Iron and fell not under moveable-heirship Had. 1497. Reid contra Thomson Item where there are a dozen of Spoons or moe the Heir shall have a dozen if they be fewer he gets but one Spoon Dict. cap. 125. l. burg which Custom hath extended not only to other things that go by dozens but likewise so as these things that go by pairs and are of one use must belong to the Heir and thus the heirship of Oxen was found to be a yoke July 20. 1610. Black contra Kincaid Dubitatur 1 o. If the appearand heir of a man who has only a Disposition but is not Infest may have moveable heirship Dubitatur 2 o. If the appearand heir of him who has an Assignation to a reversion of Lands may have moveable heirship since Assignations to Reversions are real Rights BY this Act it is declar'd that the Act ordaining personal Obligations to prescrive in fourty years was to be interpreted so as to extend to all Obligations prior to that Act which seems hard for these who had these Obligations were in bona fide not to do diligence and therefore some time should have been allow'd to do Diligence as thirteen years were allow'd in the Act of Prescription 1617. and therefore it would seem that the Act 29 Par. 5 Ja. 3. Ordaining personal Obligations to expire in fourty years rather declares what was Law before and that such Prescriptions have been formerly allow'd hereupon the common Law or some old Act for this Statute likewise says the time of the making of the said Acts so that it appears there have been other Acts besides that one to which this relates REtours to this day express the old and new extent by the old extent is meant that to which the whole Lands of Scotland were valu'd by the first general Valuation And by the new extent is understood the second Valuation which was long
as go to the KINGS Host to take free Quarter or Meat and Drink gratis which we call Free-quarter which may be further clear from cap. 5. Stat. 1. Rob. 1. Where these that come to the Host are ordain'd to be serv'd for their Money and that they take nothing but at the sight of the Baillies and others there mention'd under the pain of being punish'd as Robbers But it is still doubted whether the Countrey may be put to be the first advancers when the Militia is rais'd in such haste that these who are remote cannot provide present money and the Countrey into which they are sent have by their irregularities occasion'd their coming it being unjust that innocent Shires who send in their Militia should be put to expences in levying and entertaining men to repress the irregularities of others IT is observable from this Act that it is not the Parliament but the KING without mentioning consent of Parliament who commands the Proprietars of Castles to furnish them for Defence against the Enemy with Victual and Artillery and the reason of this is because there was no Fort nor Strength or turris pinnata call'd Tower-houses allow'd to be build in Scotland without an express Warrand under the Kings own hand this being one of the effects oâ— his Prerogative in the sole disposing and making of Peace and War and since Arms cannot be born without his Licence much less should Strengths be built and from these grounds and the practise of other Nations it was contended lately that the King may Garrison any mans house when he and his Council find the having a Garrison in that place for maintaining the Peace of the Countrey is necessary But Craig is of opinion that it is Treason or at least Purpresture to deny the King the use of our Castles or Towers in such cases Jure anglorum turres omnes quia ad defensionem sâ—u munitionem regni extructae tantum praesumuntur ad regem pertinent ad quem regni defensio quod si idem jure nostro observari quis dicat non ut opinor aâ—errabit cur enim qui turrim sive fortalâ—â—tium suum regi denegat crimen laesae Majestatis incurrit magis quam si equum aut aedes aut rem aliam nulla alia ratio probabilis reddi potest nisi quod negatio haec ex jure feudali regem dominum videtur privare jure fui dominij species quaedam purpresturae est alias res nostras principi poscenti possumus negare sine perduellionis periculo Which agrees with the opinion of forraign Lawyers who treat of the power of Kings in general Fritz de jur praesidij penes quem Monarchia is urbes arces occupare potest â—isque pro tuenda securitate publica praesidia imponere potest But in this as in all such cases the prerogative should not be made use of except in cases of extream necessity and even then the Heretor is to be repaid if he must hire another House as at Sea in Storms all the parties concern'd in the Ship are to contribute for repairing his loss who for lightning and securing his Ship is forc'd to throw his Goods over-board IF a Woman who has a Conjunct-fee alienat it during her marriage the alienation is 〈◊〉 except she ratifie the same judicially outwith the presence of her Husband upon oath never to revock it and then the alienation is valid but though this Act sustains a judicial Instrument under the Seal of the Judge as a sufficient probation yet now something must be produc'd under her own hand or by two Notars and the Lords would not sustain the Act of Renunciation though under the hand of both Judge and Clerk February 15. 1678. Gordon contra Maxvel The reason of which Decision I conceive to be not because this Act to which the Decision is contrary is only set down as a Memorandum and relates a Decision of Parliament without Statuting any thing thereupon for confirming the same for the meer setting down this Decision among the Acts of Parliament gives it the strength of an Act but because the time of that Act one Notar was sufficient but now either a Woman must subscrive her self or two Notars for her Observ. 1 o. That Decisions of Parliament bind as Laws though they be not set down as general Laws for the inserting them amongst Laws make them equal to Laws Some times Decisions by the King are inserted amongst the Acts of Parliament as cap. 16 David 2. Observ. 2 o. That though an oath is sufficient to confirm the Renunciation of a Joynture stante matrimonio Yet it is not sufficient to confirm a personal obligation granted by a Woman stante matrimonio as is decided November 8 1677. Sinclar contra Richardson and his Spouse the reason of which disparity seems to be that in Conjunct-fees she is domina and the Obligation is not to take effect till after her Husbands death But in other Obligations where the design is to bind her self the Obligation is invalid because she being sub potestate mariti cannot oblige her self and upon the same ground it is that Dispositions granted by Heretrixes stante matrimonio will be sustained they having therein plenum dominium as to the Property and even personal Obligations for sums of Money granted by a Woman who was an appearand Heir there being a Back-bond granted to her declaring that she should not be thereby personally oblig'd was sustain'd to be the foundation of a Comprizing for as she might have dispon'd her own Heretage expresly so she might have lawfully granted an Obligation whereby the same might have been Adjudg'd January 23. 1678. Pringle and Bruce contra Paterson vid. Stockman decis 59. BY the Canon Law Laicks have no power of choising or electing â—hurch men c. Quisquis 43. c massana 56. de elect elect potest So that the priviledge here granted seems contrary to the Canon Law But as the King of France had power by the Concordata with Pope Leo 10 th to nominat Bishops and Abbots so our King had the nomination of Bishops and Abbots and the provision of them belong'd to the Pope as is clear by the 125 Act 7 Par. Ja. 5. Which though this Act says did belong to our Kings by the Priviledge of their Crown for prerogative was then call'd priviledge yet it is conâ—eâ—â— that they deriv'd this priviledge from the Pope Act 53 Par. 5 Ja. 4. For understanding this Act it is necessâ—ry to know that if the Kings who had these priviledges did not nominat within six Moneths the Pope might confer the Benefice as he pleas'd and if the King did nominat an unfit person the Pope might refuse him and the King was oblig'd to nâ—me another within three Moneths vid. past de benefi cap. 8. But our Kings not acknowledging this power of precluding It is Statute by this Act that our Kings may present at all times till the Prelate
that it shall be the fineness of 12 penny fine yet the meaning of that Act is because 12 penny fine is the finest imaginary value but there must be still a twelfth part allow'd of alley to make the Siver malleable and albeit the punishment in the Act against these who work not up to this fineness be arbitrary yet it is declar'd to be punishable by death by the 56 Act Par. 6 Q. M. Observ. 2 o. That the ordaining this Act to take effect after forty days Proclamation implys that regularly Acts may be put in execution sooner as by the 20 Act Par. 3 Ja. 3. King JAMES the third Parliament 14. THis Act is only a Temporary Statute ending with these who swore to observe it but the bringing Malefactors to the Bar in sober manner without assisters is commanded by many Acts and though by this Act it seems that the Justices cannot hinder some of the Pannels friends to stand with him upon the Pannel that is to say to stay at the Bar and that four friends are allow'd to the Pursuer and ten to the Defender by the 41 Act Par. 6 Q. M. Yet the Justices do suffer few or none to stand with the Pannel as they see occasion for it THe Crowner of old received the Porteous Rolls that is to say the names of such Malefactors as were to be pursu'd at Justice-airs but now the Justice Clerk keeps it himself and gives it to the Macers of the Criminal Courts or Messengers who cite the persons to be pursu'd THe Defenders in slaughter are by this to be cited upon six dayes to find Caution or else are to be denunc'd Rebels but now if the Criminals be not in prison they are to be cited to find Caution upon fifteen dayes but if they be in prison they may get an Indictment to answer upon twenty four hours BY this Statute it is clear that a person apprehended and incarcerated must first be maintain'd upon his own expences and if he be not able to aliment himself the Sheriff is to aliment him upon his Majesties allowance and by a late Act of the Justice Court The Keeper of the Tolbooth of Edinburgh is discharg'd to receive any Criminal Prisoner till he who enters him Prisoner find Caution to aliment for before that Act poor people were starv'd and ruin'd by their Imprisonment THis Act is in Desuetude for nothing is due now to Crowners because they do not attach as formerly and this was the price of their pains or Fee THis Act is in Desuetude for no Sheriff tholes now an Assize the last nor no day of a Justice-air except he be pursu'd for some particular Crime or for Malversation in his Office BY this Act if the Sheriff hear of any Convocations he should charge them to cease and if they refuse he should continue the Court and pursue them and the punishment is Imprisonment for a year from which Act it was argu'd justly in the Earl of Caithness case that though men refus'd to dissipat at the Sheriffs desire he could not summarly fall on them and kill them for that were too dangerous a power to be given to any Sheriff and all that he could do by this Act was to acquaint the King and then pursue them THis Act ordaining the Causes of Widows and Orphans Kirk-men c. only to belong to the Cognition of the Lords is in Desuetude and these Actions do properly belong to the Commissariot Court THe Burrows of Scotland have liberty to meet in time of Parliament and to propose as a Body and third Estate any overtures for Trade but no other state of Parliament can lawfully meet this being a singularity indulg'd to them for the good of Commerce and the subsequent Acts are propos'd by that Estate to the Parliament and by them turn'd into Acts as appears by the Rubrick it self VId. Act 12 Par 2 Ja. 3. Vid. observ on 47 Act Par. 1 Cha. 2. and on Act 66 Par. 14 Ja. 2. THe Act here ratifi'd though not exprest is Act 30 Par. 5 Ja. 3. THough this Act allows the Burrows to meet every year at Inner-â—eithing only yet thereafter they are allow'd to meet four times in the year at what place they shall think most expedient Act 64 Pa. 5 Ja. 6. and the burgh of Edinburgh with six of the rest may conveen them Act 119 Par. 7 Ja. 6. Now they meet in July at Edinburgh Pearth Dundee Aberdene Stirling and the Provost of the Town in which they meet being always President without Election and though the Fine of each absent Burgh be here five pounds yet it is made twenty pounds Act 119 Par. 7. Ja. 6. THis Act adds to the ordinary annexations that the King shall be bound by his oath at the Coronation that he shall not alienat the annext Property which oath is given by all the succeeding Kings It is observable also in this Act that the Kings great Seal and the Seals of all the Prelats Lords Barons and Commissioners for Burrows are appended which was usual in these days in all Concessions granted in Parliament and I have several Patents of honour granted by the King in Parliament wherein the Kings great Seal was appended as now it is to the Patent and the Seals of all the Ecclesiasticks were appended upon the right side and these of the Laicks on the left side each Seal hanging from a Label or Tag on which the owners Name was writ and in anno 1558. a Commission to the Lord Seton to be Ambassador in France was thus Seal'd by the King and Sign'd by the Nobility and by the 191 Act Par. 13 Ja. 6. The Morning-gift of the Abbacy of Dumfermling is said to have been under the Kings great Seal and the Seals and Subscriptions of the Estates in favours of Q Ann. THis priviledge was granted by Malcolm 2 leg M. c. 3 num 4. but both that priviledge and this Statute are now in Desuetude so that now the Crowner has none of the Malefactors Horses THis Act appointing that strangers be well us'd and that no new Customs Impositions or Exactions be put upon them seems to limit the Kings prerogative acknowledg'd by the 27 Act Sess. 3 Par. 1 Ch. 2. by which it is declar'd that the King may dispose and order Trade with Forraigners as he pleases a consequent of which Prerogative is that he may either discharge Trade with Forraigners or burden it as he pleases since by this Act no new Imposition can be laid on But the answer to this is that this Act relates to strangers and not to the Kings own Subjects so that though Strangers come they should be civily us'd by this Act yet they may be debar'd by that Act. THis Act granting a Commission to Examine the Laws and put them in one Book took effect in Skeens Edition of the Acts of Parliament and Regiam Majestatem in which
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
reparation Obs. 1. Notwithstanding of this Act a Retour or the execution of a Brieve or any other piece of the Process may be improven at any time within fourty years and the Process it self may be reduc'd in consequentiam by Reduction of any Writ whereupon it followed Hope tit Reductions of Decreets Obs 2. That this short Prescription of three years runs not against such as are Minors or out of the Realm in imitation of the Civil Law which allow'd immobilia praescribi inter praesentes decennio inter absentes viginti annis Obs. 3. That these words be rais'd and pursu'd imply not that the Process must be ended but that it must be begun within three years and the Process is said to be pursu'd when the Summonds is executed Vid. Observ. on Act 64. Par. 8. Ja. 3. King JAMES the fourth Parliament 6. IT is observable that though this Parliament is exprest in the Printed Acts as held upon the 11 th of March and all these Acts are exprest as past upon that day yet I find by the Records themselves that they were all past upon the 15 th of March which is also called quinta dies Parliamenti Item It is observable that all the Acts of this Parliament are only set down in way of breviat and thus the 62 Act is thus exprest in the Original Record Item It is Statute and ordain'd that where any person happens to get a Remission in time to come that the said Remission shall not extend nor save the taker for greater Crimes be any general clause nor is contain'd especially and that the greatest action shall be specified or else it shall not be comprehended and that the general clause shall not include greater nor the special clause THis Act is formerly explained In the Observ. on Act 65. Par. 3. Ja. 1. and Act 62. Par. 14. Ja. 2. THese Acts are useless for all these Jurisdictions are now otherwayes divided and established THe Shires of Inverness and Ross having been again after this Act united they were and are now disjoyned and whereas this Act makes the Town of Thane and Dingwall to be the head Burghs of the Shire of Ross the Town of â—orteross is added as another head Burgh to the other two by an Act of Parliament 1661. IT is appointed that general Clauses in Remissions remitting all Crimes shall not be extended to greater Crimes than the Crimes specially condescended upon in the Remission but to evite this Remissions do now express specially all the great Crimes and then a general is subjoyned and upon this Law it was controverted in Glenkindies case whether a Remission for slaughter should be extended to Murder since Murder was pretended to be a greater Crime as proceeding upon forethought Fellony to which it was answer'd that Slaughter was a general term comprehending both Slaughter and Murder It may be argued from this Law by a parity of Reason that Discharges granted for a special Sum and thereafter discharging generally all debts shall not be extended to other Sums greater than that which is specially discharged but yet the 24 th February 1636. It was found that such general Clauses did cut off all Sums even though greater than the Sum discharged in special THis Act ordains all Remissions for Slaughter to be null if the Slaughter was premeditated and upon forethought Fellony nor is this Act temporary being to last in all time coming till the King revock the same specially but yet this excellent Law is not de praxi now observed though it be most reasonable Vid. Act 169. Par. 13. Ja. 6. And the same reason given here for it viz. because many in trust to get Remissions did commit slaughter is set down to the same purpose Canon injusta Quaest. 4. Nonne etiam cum uni indulget indigno ad prolapsionis contagium provocat universos facilitas enim veniae incentivum tribuit delinquendi By the cap. 50. Stat. Dav. 2. It is ordain'd that no Remission for Murder upon forethought Fellony shall be given except in Parliament and for a publick good Observe here the discreet stile wherein Kings are limited in the exercise of their Royal Power for here the King declares it is his pleasure that such an Act be past and desires the Estates to pass it and since this Act is to last till it be revocked by the King it may be doubted if the King alone may revock it without Authority of Parliament The like Act discharging Remissions for burning Corns Ja. 5. Par. 7. Act 118. THough Bishops are by this Act to appoint and deprive Notars yet they are now both tryed and deprived only by the Lords of Session Though this Act appoints Bishops and their Ordinars to take inquisition who uses false Writs yet none but the Lords of Session are now Judges to improbation which is the only Process competent for trying falshood of Writs in the first instance and the Commissar who is the Bishops Depute can never Judge of falshood now except where the falshood falls in only incidenter and by way of exception as if I were pursuing any Action before the Commissars and it were alleadged that the Execution of the Summonds were false there the Commissar would be Judge competent to try the falshood of the Executions for else his Jurisdiction were useless and all Sheriffs Lords of Regalities Stewards and the like have the same priviledges BY this Act Summonds for recent SpuilÈies must be executed upon 15. days whereas all Summonds were to be executed upon 21. days by the 6 Act Par. 1. Ja. 3. which is the Act here related to though not cited and by an Act of Sederunt 21 July 1672. this priviledge is extended to recent Intrusions which is a kind of SpuilÈie in immoveables Observ. 1. That since the Parliament thought that the former Act of Parliament could not be derogated from without an express Statute it may seem strange why the Lords do priviledge any Summonds by their own power or if they had power why they did not make actions of recent SpuilÈie and Intrusions to come in upon 6 days as well as Exhibitions Poynding of the Ground and other less favourable Causes to which nothing can be answered but that there was an old custome for the one but not for the other Observ. 2. That the last words of the said Act viz That there shall be no exception dilator admitted against that Summonds it being lawfully indorsed seem to imply that the Judge should grant no continuation though that properly cannot be called an exception dilator or else that the Judge should restore spoliatum ante omnia and admit no exception upon property nor compensation c. but these are not properly dilator defences or that the not continuation of the Summonds upon 21 days warning should not be objected but that is likewise unnecessary since the first part of the Act did that sufficiently and so these words with that sense had been
no Procurators are admitted for absents further than to excuse their absence which is done by a Letter to the Commissioner or Chancellor or by a Member Vid. obs Act 52 Par. 3 Act 101 Par. 7 Ja. 1. Act 75 Par. 14 Ja. 2. supra and Act 21 Par. 3 Char. 2. infra THis Statute is explained Act 48. Par. 3. Ja. 1. But the reason why it is here added that the Isles especially shall be govern'd by the Kings Laws was because the Kings of Denmark pretended that the Isles of Orkney and Shetland should be govern'd by their Laws for the King of Denmark renounced all right to these Isles in favours of K. James the third his Son in Law in Anno 1461. Vid. Skeen de verb. sig verb. Annuel THat all Officers should be chang'd yearly is formerly gloss'd in the observ on Act 30 Par. 5. and Act 5 Par. 7 Ja 3. That none have Jurisdiction within Burgh but such as use Merchandise is by some interpreted to be sufficiently satisfied in those who once used Merchandise even as semel Baro is semper Baro and few present Provosts are actual Traders and therefore it was doubted whether one who has been a Merchant but was thereafter a Senator of the Colledge of Justice might not be a Provost Vid. infra observ on Act 26 Par. 4 Ja. 5. IT is fit to know that the Dukes of Burgundy gave the Scots the first priviledge of Staples which was transferr'd to Camphire at the Christening of Prince Henry The Conservator is by a right under the Great Seal constituted Judge there betwixt Merchants and he must have by this Act six Assessors or at least four which is still observ'd and the Decreets run in his name with the consent of his Assessors and of late by articles with the Prince of Orange The Conservator has the sole Criminal Jurisdiction when Crimes are committed by Scots Merchants he is likewise by his Patent Constituted Agent for all affairs relating to Scotland as well as for Trade By an Act of the Burrows at Air 1602. It is declar'd that all Goods that pay Custom either when they are carri'd out from or in to the Kingdom shall be accounted Staple Goods and so being under the Protection of the Conservator he claims to have Fees for them but in anno 1612. There is a List of Staple Goods made by the Burrows and in 1647. they made a new List declaring and ratifying the former THis Act is still observ'd for the Conservator uses to come or send in July But by twenty pounds great here exprest are mean'd twenty pounds Fleems THis Act forbidding Mercats to be holden on holy days is in observance but this part which forbids Mercats in Kirk-yards under pain of escheating the Goods is not observ'd though renew'd Act 70 Par. 6. Ja. 6. and Mercats are discharg'd in Churches decret pars 1. distinct 42. But I find them not discharg'd expresly in Church-yards though Church-yards had in other things the same immunity with Churches and thus they were Sanctuaries as Churches were Can. sicut antiquitus Canon definivit 17. Quest 4. and their extent was to be fourty paces in greater Churches thirty in lesser Vid. observ on Act 36 Par. 5 Ja. 3. THis Act is useless for no Taxation can be laid on except either in Parliaments or Conventions of Estates and to these all the three Estates must be call'd but it shews that of old Taxations were laid on in Conventions which consisted of any the King call'd summarly off the Street nor were the Burrows oft-times call'd Therefore this Act was made declaring that no Taxation or Contribution should be given without warning the Burrows as one of the three Estates Taxations are properly Burdens laid on by Parliaments and Contributions are our voluntar offers made by Conventions but we use now the word Taxation for both what burdens are laid on by Parliaments and Conventions though this Act requires indefinitly the Burrows to be call'd yet by the 82 Act 9 Par. Q. M. It is only requir'd that six of the Burrows be call'd The Burrows Royal pay a sixth part of the Taxation of Scotland and they divide their proportion amongst themselves according to 100 pounds scots which is their As or imaginary total according to which every Town pays their proportion and though any Burgh resign their priviledge in Parliament they must pay till they Dispone their Common Good to the rest and then their proportion is divided amongst the rest THis Act appointing no Burgesse or Gild-brother to be made without consent of the great Council of the Town is in Desuetude VId. leg burg cap. 122. The pain now is arbitrary and punishable either before the Council or Criminal Court vid. Act 27 Par. 4. Ja. 5. THis Act is useless because of the Act 1617. ordaining all Seasines to be registrated and this Act is thereby in Desuetude THese Acts are but Temporary and yet they serve to clear the Act 71 Par. 14 Ja. 2. And the Lords found that by Forfalture in the Act 91. is mean'd not only Recognition which is sometimes call'd a Forfalture but Forfalture for Treason c. and by this we may see that abrogated Laws and Laws that are in Desuetude should be read and consider'd and may be of great use in Decisions and arguings THe reason of making this Act was because Lands united are fictione juris one and the same and so should properly answer to the Court to which the principal messwage answers and therefore this Act was made to secure the interest of the ordinary Judge which declares that notwithstanding Lands are united in a Barony yet they shall answer as formerly to their own Jurisdictions but the Baron whose Lands are united needs only compear by this Act in that Jurisdiction where the principal messwage by the Union is and yet de praxi they are still call'd in all the Suterols of the other Shires where any of their Lands ly and are forced to send Acturneys which seems contrary to this Act. THere are two kinds of Brieves one call'd a â—rieve of pley which is our ordinary Summons another call'd a Brieve of Inquest which is yet in use as in Services of Heirs Tutors c. vid. For clearing this Act lib. 3. R. M. cap. 28 29. Stat. Rob. 3. cap. 1. And because the Service of Heirs is no Brieve of Pley therefore no exception is to be admitted against it except it be instantly verified This Act appoints all Brieves to be executed upon fifteen days and the Lords have found that all such Acts as these appointing Citations upon such a number of days do not require that both the day of Citation and Compearance be free but it is sufficient that either of them be free July 27. 1626. Meculloch con Meculloch If the Brieve be not proclaiâ—'d upon a Mercat day then it must be proclaim'd before the Town Officers and six honest
to the Party injur'd for Assythment may be called before the Lords of Council either in Session or out of Session but this is now abrogated by the late Constitution of the Session who are come in place of the Lords of Council who then were The meaning of these words in the Act And as for Slaughter and Mutilation to keep the order of the Act made thereupon of before Is that Slaughter and Mutilation are not comprehended under this Act because by the 63. Act Par. 6. Ja. 4. No remission can be granted for these Crimes and therefore there can be no Assythment THis Act is further explained in Crim. pract tit Fire-raising but it is fit here to observe that in these words that particular Justice Courts shall be set thereto as shall please the Kings Grace his Council and the Justices the word And is taken disjunctive as is often in the Civil Law and our Statutes l. 66. ff de haered Instit. Nota The killing of Thieves is declared no Crime King JAMES the fifth Parl. 4. EXcommunication is here called the Process of Cursing and Excommunication used in time of Popery to be granted for not payment of Civil debt or not performing of Contracts or not restoring of spuilÈied Goods is now in desuetude for all these were held to be mortal sins and by this Act Letters to Poynd or Appryze were to be granted thereupon And by the 7. Act Par. 4. Q. M. their Moveable Escheat falls to the King if they ly under the Process of Excommunication for a year the Creditor being first payed which Acts are further enlarg'd by the 3. Act 20. Par. Ja. 6. By which their whole Rents and Revenues are to be applyed to the use of the Publick and all Gifts of Escheat granted to the behove of the Wife Children or Confidents of such as are Excommunicated for Popery are declared null Act 197. Par. 14. Ja. 6. It may seem strange that Excommunication repells ab agendo sed non a defendendo and yet Horning debars from both though the person Excommunicated be the greatest Delinquent being at Gods Horn 8. July 1636. Colstoun contra Cranstoun Vid. observ on Act 11. Par. 6. Ja. 2. supra THis Act is innovated and enlarged by the 1. Par. Ch. 2. Sess. 1. Act. 41. THis Act is in observance to this day but it holds only in Forrests notoâ—ly known to be such for if there was probable reason of doubting whether it be a Forrest the Goods feeding in it will not be escheat for bygones vid. Leg. For. c. 2. § 2. sequen Because this Act sayes if any person be found putting their Goods in Pasturage in the Kings Forrest they shall escheat the same therefore it seems reasonable that if Goods be only found there this is not sufficiâ—nt to escheat them since they might have strayed there Dominus non tenetur ad poenam si animal ex seipso ingrediatur in locum prohibitum ut est Forresta Borel de Magistrat Edict lib. 4. cap. 6. num 18. VId. Annot. on Act 61 Par. 7 Ja. 3. supra THis Act relates to Act 88 Par. 14 Ja. 2. Whereby Hares are not to be kill'd in time of Snow and Act 59 Par. 11 Ja. 6. and Act 266 Par. 15 Ja. 6. whereby Hares are not to be kill'd at any times by Guns Girns Nets or Cross-bows which last is yet in observance and all these Acts are reviv'd by a Proclamation of Council in Febr. 1680. BY the 25 Act 3 Par. Ja· 4 It is ordain'd that the Superior of Ward lands or his Donatar shall find Caution to leave the Houses Orchyards Woods Stanks Parks c. in as good condition as they found them they taking their Sustentation or using them in needful things without waste or destruction which is extended to all Liferenters and Conjunct-feers who are ordain'd to find the like Caution by this Act. By which also all Sheriffs Stewards Magistrats within Burgh and Spiritual men within their bounds are also commanded to exact this Caution These Acts are also extended to all such as have Life-rent Tacks from the Heretors without payment of any considerable duty though the words of this Act run only against such as have Liferent Infeftments but this Act should not be extended to such as have Liferent-Tacks for payment of an equivalent Duty Qui sunt conductores non usufructuarii for the Heretor is rather oblig'd to entertain the Houses to such Tacks-men than they to him January 23. 1635. Laird of Laidly contra Boyd But this is to be understood of such Tacks-men as pay a Dewty equivalent to the Rent for else Relicts would in place of Liferents take Tacks during their life for any imaginary Dewty which should not free them from the finding of Caution In that case it was also found that this Act did oblige Donatars of Liferent-Escheats to find Caution to maintain the Houses Orchyards c. which fall under his Gift but quid juris if the Fisk retain Liferents so faln in his own hands peregr de jur fisc tit 1. num 35. is of opinion that usufructu sisco legato siscus non satisdat de utendo fruendo arbitrio boni viri but it is hard that the Heir should be in a worse case by the Crimes of the Liferenter or their going to the Horn so that his Estate should be thereby expos'd to mis-managment and albeit where a Liferent is left to the Fisk Caution may seem to be remitted by the intention of the Party yet that should not be extended to the case of its falling to the Fisk without his consent and it rather seems that since a Donatar is ty'd to find Caution that therefore the Fisk should Nota There needs no precognition to be taken by an Assize of the condition the Houses were in conform to the 226 Act. Par. 14 Iâ— 6. For that Act only ordains such precognitions to be taken when Houses are ruinous within Burgh and the Liferenters refuse to concur in Re-building them in which case the Heretor is allow'd to repair he finding Caution to pay the Liferenters the Dewty that these Houses pay'd formerly March 23. 1626. Foulis contra Allan Though this Act ordains the Sheriffs and others who refuse to exact this Caution to be lyable to the Heretor of the Ward-lands without mentioning that they shall be lyable to Liferenters or Conjunct-fiars yet doubtless they are lyable to them also for the damnage sustain'd in not exacting this surety Though in some cases cautio juratoria be allow'd yet it would not be allow'd here Gail lib. 2. obs 47. for that Caution cannot secure the Heretor and there is as little reason to receive it in this case as in Removings But Perez is of opinion that cautio juratoria is receivable si offerens sit probatae honestae vitae There was likewise cautio usufructuaria by the Civilians introducta est per senatus
Riots pursu'd before them King JAMES the fifth Parl. 5. AFter many Alterations observ'd by me in the Annot. on Act 65 Par. 3 Ja. 1. and Act 62 Par. 14 Ja. 2. at last the Session was establish'd in the way it now is by King James the fifth in this his fifth Parliament and is ordain'd to consist of fourteen Lords seven whereof were to be of the Clergy or Spiritual and seven Temporal with the President who was to be of the Clergy but since the abolition of Popery they are all Seculars or Laicks though sometimes Bishops were extraordinary Lords and though this Act of Parliament appoints the half to be Spiritual and the half Temporal with a President yet by the 93 Aâ—t 6 Par. Ja. 6. It is declar'd it shall be lawful to the King to present any able Person whether he be of the Spiritual or Temporal State VId. observ on Act 7 Par. 3 Ch. 2. THe present Lords are ordain'd to have all the priviledges that the Lords of Session for so they were call'd in the Reign of King James the second had formerly and therefore it is alleaged that since Appeals could not be received from them that they cannot be received from the Lords of Council and Session as was formerly observed Act 62 Par. 14 Ja. 2. THe Chancellor when present is to preceed and because he preceeds therefore he gives his Vote last and because it was controverted whether he was to be President in the Parliament therefore by the 1 Act 1 Par. Ch. 2. He is declar'd to be President in all Courts and he did preceed by vertue of this Act in Exchequer till he was discharg'd by His Majesty by a Letter in anno 1663. These words And sicklike other Lords as shall please the King's Grace to subjoyn to them of his Great Council who shall have Vote to the number of 3 or 4. are all the warrand that there is for nominating the extraordinary Lords of Session who cannot exceed 4. They are still named by a Letter from the King as the ordinary Lords are but they are not examined like them and these extraordinary Lords are marked in the Books of Sederunt after all the ordinary Lords THese words And the Lords to subscrive all Deliverances and none other is all the warrand that was for the Lords subscriving all the Bills for raising Summonds before the Criminal Court but I think these general words should be restricted secundum subjectam materiam as all general words in Law ought to be for we see that notwithstanding of these general words the warrands for raising Summonds before the Privy Council are subscrived only by Privy Counsellors and now the Justices are only in use to subscrive their own Bills though the other Lords of Session are not excluded from that power THis Act is the warrand that the Lords have for making Acts of Sederunt which were so called because the Lords sitting are marked Sederunt such and such men but these Acts are to reach no further than the ordering of Forms of Process or the regulating their own House and therefore this Act sayes For advising and making of their Rules and Institutes for the order of Justice This same power is almost allow'd by all Nations to their Supream Judicatures Vin. Comment ad § 9. Inst. lib. 1. tit 2. Christin Vol. 2. Decis 51. num 8. THis division of the Kingdom in order to the calling Causes is now in Desuetude for all Causes are now Enrolled according to the order of the returns of the Process vid. Act. 16. Sess. 3. Par. 2. Ch. 2. Artic. 1. NO Session sits now on Munday and so this Act is in Desuetude Suspensions are called on Tuesday and Wednesday and ordinary Actions upon Thursday Friday and Saturnday The Friday was allotted for the Causes of the King and Queen and the Actions of Ministers and Strangers but by the Regulations the Kings Causes may be call'd on any day the Party Defender being advertis'd 14. dayes before of the particular day on which it is to be called It has been doubted before this Act whether the Queens Causes should enjoy the priviledge of the Kings Causes And the priviledge is by this Act extended to her ita Augusti privilegia ad Augustam sunt extendenda l. 31. ss de Legibus NOw the Lords sit from 9. to 12. and they sit down sometimes before 9. as occasion requires NOta By this Act Parties were allow'd to plead their own cause and they needed not have Advocats except they pleased but no other Party not contain'd in the Summonds can have liberty to speak But the Lords can now hinder Parties to Plead or force them to have Advocats to shun confusion and nonsence It seems also that though an Action be to a mans behove he cannot be allow'd to speak except his name be in the Summonds THe order of Tabulating Summonds is now much alter'd for no Summonds are Tabulated except Actions of Declarators Improbations Contraventions and other Actions at the King 's Advocats instance upon the back of which Summonds he Writes Tabuletur erga diem Veneris proximè sequentem and except this be written upon it the Action cannot be debated and some think that if the Action be called without this a Decreet thereupon pronounced would be null WItnesses are now examin'd by one of the ordinary Lords in the afternoon as here and that Lord who sat last Week in the Outer-house does the next Week Examine Witnesses THe Quorum of the Lords by this Act is ten either ordinary or extraordinary for either make up the Quorum but now eight Lords with the President make a Quorum which alteration proceeds from the 44. Act 11. Par. Ja. 6. Nota 1. By this Act that advising of Processes cannot be recommended to any particular Lord. Nota 2. That by this Act publication of Witnesses is allow'd else how is it ordain'd here that publication of Witnesses should be before the hail Auditor and Advocats were allow'd to see the Depositions and to debate against them till the year 1666. at which time this was discharg'd upon pretext that Advocats did spend too much time in debating against the Depositions and that Witnesses Depositions were more to be credited when no man was to see them or know them than when the persons interested were to see them because it was probable they would take pains to please them But we find great mistakes by not letting Advocats see the Depositions since they might clear many things that seem inconsistent and which depend upon other matters of Fact and it 's rather presumeable that Witnesses knowing that what they say is not to be seen will take liberty to Depone too liberally the not publication also of the Depositions tends much to make Judge Arbitrary since the warrands whereon they proceed is not known and publication of Testimonies iâ— a kind of confronting Witnesses with the Parties
of authorizing Acts now is only by His Majesties touching them with the Scepter and if they be Voted in a former Session they may be touch'd without any new Vote or Act but if they were past in a former Parliament they must have a Vote else they cannot be call'd the Acts of the present Parliament THe King here Revock'd when he was in France and his Revocation is subscribed by a Notar which was at that time sufficient but his supplying the Solemnities by His Kingly power was unnecessary for the King cannot supply the want of Solemnities either in his own or other mens Acts or Deeds there is little in this Revocation different from what was in former Revocations save that 1 o. The King Revocks all Tacks and Assedations made for longer space than five years which Article is also repeated in the 31 Act Par. 11 Ja. 6. and the reason of it is because there is too great a restraint laid upon the King by these long Tacks hindering Him thereby to improve His Property or Casualty for which Reason likewise long Tacks set by Tutors are not allow'd and though this may seem only to extend to Tacks sett by Kings in their Minority Yet by the same Reason and upon the same Act a Tack of the Customs set by the King in His Majority to Fleming and Peebles was Reduced before the Exchequer November 17. 1634. because the Tack was sett for seven years 2 o. The King here Revocks all Rights made by Him by evil or false Suggestion or by expreeming of a false Cause though ordinarly false Narratives do not Reduce Deeds betwixt Majors this Lawyers terms ex suppressione veri expressione falsi and this article of Revocation agrees with the Civil Law Vid. tit C. de precib offerend tit C. si contra jus vel utilit public His Majesty here Revocks all Tacks and Assedations made in his minority for longer space than five years which is likwise a Clause repeated in all the posterior Revocations and though it may seem that no Deed done by a Minor in his Minority is Revockable except Lesion could be alleadg'd yet Craig is of opinion that the very setting of a Tack is a Lesion though it be not set under the true value Minorem enim laedi puto quod rei suae liberâ administratione prohibentur lib. 2. dieg 10. THe three Head-Courts to be held by Sheriffs c. conform to this Act are as follows the first is upon the first Tuesday after the fourteenth of January which is the first Tuesday after the twelfth day of Yule The second Court is upon the first Tuesday after Law-sunday The third is upon the first Tuesday after the twenty ninth of September which is Michaelmas day but now they need not writ any excuse to the King or Council if they be not personally present This Act makes a difference betwixt such as owe sute and presence and these who owe sute only all such Barons and Free-holders as owe sute and presence ought to be present in these head Courts but this Act determines not who owe sute and presence and though the 2 cap. 2 Stat. Rob 1. Statutes that none owe sute and presence but these who are expresly lyable thereto by theâ—r Infeftments yet by our present practice Vassals of Ward Lands and consequently of taxt Ward Lands are also lyable to compear in the Superiours head Courts without any Citation though they be not Câ—ted and though this be not exprest in their Infeftment for hoc mest in the nature of their holding but Vassâ—ls who hold bleâ—sh or â—eu are not oblig'd to compear without Citation except they be thereto ty'd by their Infeftment March 12. 1630. Bishop of Aberdeen contra his Vassals And by this Act also the Infeftment is made the rule of compearance these who owe sute only are only oblig'd to send an able man to attend and serve upon Inquests and ordinarly Charters bear tres sectas curiae THis Act appointing Sheriff-deputs and all other Deputs to be sworn yearly is in Desuetude THis Act appointing all Executions even of Letters by warrand of inferiour Courts to be stamped was running in Desuetude till it was revived by a Decision in January 1681. where an Execution proceeding upon a warrand before an inferiour Court was found not sufficient because not stamped and Horning and other Executions before the Lords were always null by way of action if not stamped July 2. 1630. This Act appoints that all Mayors and Officers shall have a Signet bearing the first Letters of their Name or some other Mark that shall be universally known and therefore though the Executions bear that they were stamped yet if they do not appear to be stamped the Executions may be quarrell'd as null especially if they be recent even as Testaments were null by the Civil Law if they did not appear to have formam insculptamque signi imaginem l. 22. § 6. qui testament fac but on the contrary if the Executions bear not that they were stamped they will not be valid though they appear to be stamped because another than the Messenger might have affix'd that stamp Vid. observ on 33 Act Par. 5 Ja. 3. ALbeit this Act appoints all such as execute Sheriffs or Barons Precepts c. to leave Copies yet it has been found that the execution of a Barons verbal Precept needs no Writ but mâ—y be prov'd by Witnesses But this was betwixt a Baron and his Tennents where there needed no written Precepts whereas this Act requiring written Executions is only to be interpreted ' where there are written Precepts because it says they shall indorse their Executions and there can be no Indorsation where there is no written Precept It is requir'd by this Act that the Executor should show the Letters which are his Warrand and that he should offer a Copy to the Servants and yet both these are in Desuetude This Act requires six knocks and the affixing of a Copy upon the most patent Door of the Defenders Dwelling house which the Lords found was only in the case where there could be no entry but found that there was no necessity of knocking when the Door 〈◊〉 patent and Servants found therein December 11. 1679. Counte◠〈◊〉 Cassils contra the Earl of Roxburgh but it may be doubted still whether six knocks be necessary where the Door is patent but no Servants within and the Act says only that if they get no entress they shall knock though a man may be cited in an ordinary action by a Copy left at the Inn where he stayed fourty days yet a man cannot be Denunc'd upon a Copy left at his Inn which is so determined in odium of his Escheat November 20. 1672. It has been doubted whether a Messengers Execution bearing that he came to the Defenders House and was by force keeped out so that he could not give a personal Citation if in that case the Defender should be
Rob. 1. They who take Lands to Champart are to be in the Kings will and lose their employment for all their life-time Champart is a â—rench word signifying a part of the Land controverted so that whosoever takes part of the thing controverted per pactum de quotâ litis falls under that Law By this Act whoever takes Rewards or Buds are punishable by tinsel of Honour Fame and Dignity and by the 93 Act 6 Par. Ja. 6. the taking by their Wives and Servants which was here omitted is punishable by Infamy Deprivation and Confiscation of all the Defenders Moveables By this Act giving of partial counsel that is to say consulting is declared a species of Bribing though nothing be taken at least it is punishable as bribing so that it seems a Judge may not consult albeit he abstain from judging in that cause These words That he shall take no further Rewards nor Buds than is permitted of the Law are set down to shew that Judges may lawfully take the Quota allowed by Law to Judges which we call Sentence-money and the Civil Law Sportulae The taking Bribes was in the Civil Law punish'd per l. Jul. repetundarum l. 1 3 6. d. t. And the punishment was death if Money was taken to pronounce a Capital Sentence or Confiscation of Goods and Banishment in other cases l. 7. § 3. eod tit but by the Doctors and in our Law this Crime is called Barratrie Such as defame Judges as Bribers are punished here as Bribers but besides the poena talionis which is inflicted upon all such as murmure against Judges there is likewise an Arbitrary punishment adjected and either the King or his Council are Judges competent to the cognition of this Crime by this Act. Nota That if a Spiritual Man murmure against any Judge he has the priviledge to be called before his own Judge ordinar by this Act but this revocatio sori is not now in use since the Reformation BAse Infeftments are these which are given to be holden of the Disponer which are valid Rights in themselves though they never attain possession for else they could not give good Interest to reduce the Rights that may hinder them to attain possession These base Infeftments are introduced with us contrary to the principles of the Feudal Law which allows no Feudal conveyance without the Superiors consent and were introduc'd rather by accident than upon design This Act upon which they are founded being introduc'd rather to suppress simulate Infeftments than to strengthen base Infeftments and the great priviledges arising to them now did insensibly grow from the favour which our Law shewed alwayes to lawful Creditors even as the priviledge of necessitating Superiors to receive Comprizers did Base Infeftments though yet wanting possession are preferable to posterior Arrestments but they are not preferred to posterior Life-rent Escheats except they attained possession in cursu rebellionis Feb 21. 1667. Miln contra Clerkson and before this Act of Parliament 1540. they were still preferr'd to posterior publick Infeftments But by this Act it is statuted that publick Infeftments cloathed with Possession for year and day shall be preferr'd to base Infeftments not cloathed with possession though prior which praesumptione juris de jure are by this declared to be simulate Rights But though this Act requires that the publick posterior Infeftment be granted for onerous Causes yet a publick posterior Infeftment though gratuitous will be preferr'd 3 March 1626. Law con Balgownie But this may be doubted because of this Act and in that Decision the publick Infeftment was preferr'd because Inhibition had follow'd thereupon for any Act that can take off the presumption of simulation and which will make the Infeftment any way to be known doth fortifie the Infeftment as well as if possession had follow'd and so an Inhibition following upon the debt for which the base Infeftment was granted will prefer that Infeftment to a posterior publick Infeftment without necessity to reduce ex capite Inhibitionis and an Infeftment following upon an Appryzing was without reduction ex capite Inhibitionis preferr'd to a prior base Infeftment though clad with possession because the Appryzing follow'd upon a debt whereupon Inhibition was serv'd before that base Infeftment the said 3 of March 1626. And likewise if other diligence was done or the time was so short that a years possession could not be attain'd then a Terms possession was sustain'd or though there followed no possession at all the base Infeftment will be preferr'd to a posterior publick Infeftment interveening before the possession could be acquir'd 13 Feb. 1624. Possession likewise of a part of the Land sustains the Infeftment for all but this should hold only in Lands erected in a Barony or such wherein one Seasing may serve 5 Feb. 1668. Ker contra Ker. Hope in his lesser Practiques is of opinion that in the concourse of two base Infeftments the prior will be preferr'd in petitorio though no possession follow'd thereupon which seems to be reasonable because before this Act of Parliament jus illud obtinebat and by this Act Nihil quoad hoc est innovatum yet de practicâ a base Infeftment is as null till it be cloathed with possession as an Infeftment à me is before it be confirmed If neither of the two base Infeftments be cloathed with possession prior in tempore est prior in jure The Husbands possession was alledg'd to be the Wifes possession as to her principal but not quoad her additional Joynture 7 Decemb. 1664. Lady Craig contra Lord Loure and in our Law the Husbands possession is accounted the Wifes possession whether the Husband possest by himself or by Wod-setters or Comprizers deriving right from him though it was alledg'd that this was not the Husbands possession they having possest proprio jure which priviledge is not only introduc'd ob savorem detis but because she could not possess for which reason likewise a base Infeftment for relief is preferr'd to a posterior publick Infeftment upon a Comprizing albeit the Cautioner was only charged to make payment which was found a sufficient distress 28 July 1625. As also after a solemn dispute the Lords did prefer a prior base Infeftment for warrandice though not cloathed with natural possession to a posterior publick Infeftment 9 January 1666. Brown contra Scot. But here the Infeftment of warrandice was given simul semel with the Infeftment of the principal Lands so that there remains still a doubt as to Infeftments of warrandice given ex intervallo but Infeftments for relief were not found sufficiently cloath'd with possession by payment of the Sums for which they were granted as Infeftments of warrandice are by possession of the principal Lands because it was alledg'd that it was more natural that the possession of one Land should cloath the Infeftment of another than that possession of Annualrents should cloath an Infeftment of Land and that there might be greater collusion in payment
of Sums than in possessing of Lands because Creditors might alter their Sums and take new Assignations or retire old Rights whereas no man could quite his principal Lands 26 June 1677. Cramond contra the Tennents of East-barns But a Fathers possession as Life-renter was not sufficient to prefer a base Infeftment given to the Son to a posterior publick Infeftment granted to a second Wife or to any Creditor the like in a base Infeftment granted by a Good-sir to his Oye by the Daughter which was not found sufficient being cloathed with the foresaid Civil possession of the Good-sirs reservation of Life-rent to exclude a posterior publick Infeftment 17 of July 1635. And this possession by the Husband or Father or Disponer is called possessio per constitutum and is not favourable in a competition with other Creditors and therefore a Factory granted by the Father to the Son to uplift the Mails and Duties of Lands dispon'd to be holden base by the Son of the Father was not found sufficient to cloath the Sons Infeftment though there were several Processes intented upon the Factory 10 July 1669. This Act requires natural possession by labouring the Land or Civil by uplifting the Mails and Duties and before Registers were invented that kind of possession was only able to put their Creditors in mala fide but though Civil possession hath been found sufficient such as obtaining of Decreets and payment of Annualrents albeit the same had no relation to the Infeftment of Annualrent but was only relative to the Bond whereupon the Infeftment followed yet the setting of a Back-Tack by the accepter of a Wodset hath not been found sufficient to maintain a base Infeftment except payment of the Back-Tack-Duty had likewise followed so that it appears that possessio Naturalis vel Civilis sufficit sed non illa quae a doctoribus dicitur civilissima as is a Back-Tack By this Act also such as make double Dispositions to defraud their Creditors shall be declared infamous and shall be punished in their persons and Goods at the Kings pleasure and this punishment is extended against such as make double Assignations and the 140 Act Par. 12 Ja. 6. bears That no Dewty shall be Dispon'd to two sundry persons which is Crimen stellionatus by the Law and though this Act does not make double Dispositions to be crimen Stellionatus yet it is so in effect but the Civil Law distinguisheth thus l. Quin. duobus ff ad l. Corn. de falso Qui rem unant duobus vendidit dicens rem esse suam tenetur falsi at si non dicat esse suam tenetur Stellionatus Though by this Act Superiours receiving double Resignations are guilty and punishable as said is and seing to receive such Resignations is a great prejudice because it puts the Parties to great expences and that the Superior is presum'd to get and may get advantage by accepting such double Resignations or contributing to the making of such double Rights therefore they ought likewise to be lyable in Damnage and Interest to the Party injured BY this Act it is Statuted that a Charge to enter Heir may be directed against the Successors of the Defuncts they being of perfect age to enter to their Lands within fourty days Year and Day being first past after the Decease of the Predecessor and a Comprizing being led upon their failÈing to enter the same shall be as valid as if they were Infeft Nota Though this Act bears the being of perfect age yet Minors may be validly charged to enter Heir de practica but seing this Act is only made against such as may enter but wilfully ly out It might have been doubted whether Minors in Ward-Lands may be Charged to enter Heir for these cannot enter till they be twenty one years compleat but by our constant Practique they may be Charged since this is necessary for compleating the Creditors Diligence Nota That this Act does not appoint that generally such Execution should pass against the appearand Heir as if he were entred but only that his Land may be apprized and therefore quaeritur what execution may be gotten against his moveable Heirship and it may be urg'd that the same may be affected as the Defuncts other moveables for though they be Heirship respectu haeredis yet they are but moveables respectu Creditoris for they become only Heirship after they are drawn and yet it hath been found that the moveable-heirship may be adjudg'd and by that Decision it would appear that they can only be affected by apprising but there is a Warrand wanting in this Act for apprising them there is an Act of Sederunt anno 1613. allowing Charges to enter Heir to be rais'd within the Year and Day but the Summons thereupon must be execute after the Year and Day expire but not till the fourty days expire after the execution of the Charge but this annus deliberandi being introduced in favours of the appearand Heir he may omit the same and Renunce within the year if he pleaseth Neither can an Adjudication following within the Year be challeng'd ex eo capite July 14. 1631. albeit that the said Act appoints that a Charge to enter Heir may be rais'd after Year and Day expire after the Defuncts Death Yet the Year and Day must only be computed from the appearand Heirs birth if he was posthume Spots tit Heirs Livingstoun contra Houlerton de jure civili posthumus non habetur pro nato cum de incommodo ejus agitur l. etiam § Ille ff de minor THough the meaning of this Act seems to be that where Tradesmen who are Free-men either desert their work or delays the same the Owner of the Work may choose other Free-men or complain to the Deacon Yet it was found in July 1675. by the Council in the case of Borlands against the Masons of Edinburgh that where a Free man either deserted or delay'd the Owner of the work might imploy any even Unfree-men though it was alleadg'd it was not just to punish all the Free-men for the fault of one Nor was it convenient for the Common-wealth that Unfree-men should be admitted for whose work none can be answerable THis Act is Verbatim formerly set down Act 90 Par. 6. Ja. 4. BY the Civil Law Testaments and all Writs of importance were to be Seal'd and with us the appending of the Seal without the Subscription of the Party was sufficient R. M. lib. 3. cap. 8. num 3 4. and Papers were then Tri'd by comparison of Seals as now by comparison of Subscriptions but by this Act the Subscription of the Party and Witnesses is likewise to be added with the Seal and thereafter K. Ja. 6 Par. 6. Act 80. all Papers of importance are to be both Seal'd and Subscrived but now they need only be Subscrived without being Seal'd and though by this Act the Subscription of the Notar is sufficient Yet by that Act two Notars
habetur pro completo does yet hold good in other Beneficiary cases for though it be altered by Act of Parliament quoad Annats yet where there is no Act of Parliament why should not the old Rule hold But I rather think that the Act extends to all Benefic'd Persons albeit the Rubrick mentions only Bishops and Ministers and so there are two Errors in the Rubrick of the said 13 Act one in that it mentions only Bishops and Ministers another in that it mentions only their Executors and not their Relict or nearest of Kin and the Rubrick should have born Act Regulating the Ann of Benefic'd Persons which shews also how weak the argument is a rubro ad nigrum The ancient Bishops allow'd sometimes the uplifting of the first years Rents of Benefices for assisting Christian Princes against Infidels but the Popes thereafter reserv'd them to the use of the Roman See upon pretext to supply the general necessities of the Church Pope John 22. extravag suscepti de elect was in this follow'd by Boniface the 9. who stated them in an ordinary Revenue till the Council of Basil oppos'd the same and still many Learn'd Doctors of the Romish Church it self condemn'd them as Simoniacal whereupon the French Kings did by Concordats force the Pope to pass from the same in France They were call'd Annats Anns or Annals because they were fructus primi anni and it seems with us they were not at the Popes disposal absolutely else this Act of Parliament could not have dispos'd upon them But it seems our Kings have in Parliament assum'd to themselves what others settled by Concordats with the Popes as may appear in all the Regalia throughout the whole old Acts of Parliament The whole Doctrine of Annats is excellently Treated by Antonius Nassa de materia annatarum But I conceive our Ann which is a half Years Stipend comes from the Saxon reform'd Church wherein ultra Salarium quod defunctus Aecclesiae minister promeruit ex singulari beneficio viduae ac liberis dimidius gratiae annus assignetur Carpzov Jurisp. Consistor lib. 1. tit 12. It was introduc'd there in anno 1580. a little before King James introduc'd it here by the Letter to the General-Assembly in Montrose BY this Act such as did dy in that Army were to have their Ward Non-entress Relief and Marriage freely from the Queen It is observable that though usually such Acts are made when our Armies are in procinctu going to Battel and though the King nor his Exchequer seek no advantage by Casualties in such Cases yet regularly it is no Defence in Law against a Ward or Marriage that he by whose Death they were sought were killed in the Kings Service THough where there is a Governour the style of Acts of Parliament made by him is The Governour with the advice of the three Estates Yet this Act says by the consent of the Governour and the consent of the Noblemen both Spiritual and Temporal By which words also it is clear that the Lords of the Clergy are to be accounted as Noblemen and so are to find Caution under the same pains as Noblemen and to pay publick Burdens as Noblemen c. Queen MARY Parliament 4. BY this Act these who are Excommunicated and continues so for a Year for any cause lose their Moveables Creditors being first paid and by the 3 Act 20 Par. Ja. 6. They are to lose their Liferent-Escheats if they be Excommunicated for Religion Vid. supra observ on 9 Act 4 Par. Ja. 5. VId. My Criminal Tract tit Treason THis Act inflicting the pain of Death and Confiscation of Moveables upon such as shoot at Deer Wild-fowl or Wild-beasts is deservedly in Desuetude Vid. infra observ on Act 51 Par. 6 Q. Mary THis Act and the Instructions subsequent to it were but Temporary Remedies for repairing Lands burnt at that time by the English Invasion But though only Parliaments can regularly invert Property yet the Privy Council do force Heretors to sell burnt Tenements if they will not repair them themselves to the end other Heretors and the publick advantage of the Burgh may not be prejudg'd and this the Council did in anno 1675. when all the Houses near the Parliament Closs were burnt and this is conform to a power granted by the 6 Act 3 Sess. Par. 1 Ch. 2. by which it is appointed that the Provost and Baillies may Charge all persons who have the property of such ruinous Lands to repair them within Year and Day and if they refuse the Magistrats may value and sell Vid. observations on the 226 Act Par. 14. Ja. 6. Queen MARY Parl. 5. THis Act as to the prices of Wine is in Desuetude but not in so far as concerns the mixing of Wines which by the opinion of the Civilians is a species of Falshood and is punishable as such Carpz de falso THis Act against abominable Oaths is enlarg'd Act 103. Par. 7. Ja. 6. Vide my Crim. observ Tit. Blasphemy § 6. THis Act against perturbers of the Kirk is enlarg'd Act 27. Par. 11. Ja. 6. For that Act reaches all tumults in Kirk-yards and the punishment in that Act extends to confiscation of all the offenders Moveables It is observable from this Act that Children are only to be scourged for such Crimes minority lessening the punishment and all within 14 years are accounted Children VId. Crim. obs Tit. Bigamie VId. Crim. obs Tit. Adultery VId. Crim. Tit. Falshood NOtars are still according to this Act examined and admitted by the Lords but are not presented by the Sheriffs for now they are presented by the Clerk to the Notars who gives in a Bill for them to the Lords By this Act the Instruments of such as exerce the Office of Notar not being lawfully admitted are null but yet if the pretended Notar was habite and repute a Notar his Instruments will be sustained Such as usurp the Office of Notars are punishable by this Act as Falsaries or Forgers yet I never observ'd that for this Crime death was inflicted upon them Nota It is observable from this and many other Acts that the Acts are call'd the Kings Laws and not Laws made by the Parliament and the Act related to made by King James the 5. but not condescended upon here is the 81 Act Par. 6. Ja. 5. IT is observable from this Act that the Secret Council used by their own Authority to make Sumptuary Laws both as to Meat and Cloathing and by the Act of Council here related to the contemners of the said Act of Council are to be punished in their persons and goods at the Lord Governours will and yet one of the accusations against the Earl of Middleton was that the Lord Lorn being found guilty of Treason the time of the Execution was referr'd to him as being then the King's Commissioner which it became no Subject to accept PRinting is Inter Regalia and so the
King may discharge any man to Print without his Licence vide Fritch de Typographiae abusu where he makes the regulation of the Press to depend upon every Magistrat by the Law of Nations and Printing may do as much mischief to the Government as Arms and so the Magistrate should have the command of the one as well as of the other though I know it is most unjustly pretended by some Republicans that Printing being a Trade no man can be debarr'd from the free use of it except by Parliament in which their own consent is imply'd We see also that the King allows his own Printer only to Print Bibles and other School Books c. vide Act 25 Par. 11 Ja. 6. against the Sellers of erroneous Books Queen MARY Parliament 6. IT is observable that this Revocation of Q. M. was under the Privy Seal whereas other Revocations are only under the King's Hand it differs in nothing else from the other Revocations IN the first part of this Act Reversions which were formerly as all other Writs sufficient if sealed by the granters Seal are declared null if they be not Sealed and Subscrived and though it is here declared that if the Party cannot Subscrive a Notar may Subscrive for him yet by the 80 Act Par. 6 Ja. 6. it is requisite that there be two Notars and four Witnesses in matters of importance or Heretage where the Party cannot write By the second part it is declared that all Reversions are null if they be not Registrated except Reversions of Land within Burgh which need no Registration and this is again enacted Act 16. Par. 22. Ja. 6. By this Act Reversions taken by way of Instrument in the hands of the Notar that gave the Seasine are as valid as Reversions subscrived by the Party himself and Registrat for according to the Law then standing Reversions were sufficient if subscrived by one Notar though the Party did not subscrive and Instruments taken in the hand of the Notar that gave the Seasine were as sufficient as a Reversion under a Notars hand but since that Act all Reversions both without and within Burgh should be Signed by the Party himself or by two Notars and no Reversion within Burgh needs to be Registrated 11 Feb. 1681. Irwine contra Corsen which being found inconvenient was thereafter first corrected by an Act of Sederunt Feb. 22 1681. and now by the 11 Act 3 Par Ch. 2. By which they are ordain'd to be Registrated in the Town Clerks Books within 60 dayes after the date thereof except they be incorporated in the Body of Rights THough this Act runs only against Committers of Slaughter yet it holds in all Criminal Causes IF any man be out of the Countrey he must be cited upon 60 days but if he was in the Countrey the time of the first citation it is sufficient by this Act that he be cited upon 15 days and though this Act says that if he was eight days cited before his departure he may be cited upon 15 days to the second dyet yet it holds if he was in the Countrey at the first Citation though he went immediatly out of the same VId. Crim. obs Tit. 21. of Libels Part 2. VId. Notes upon Act 77. Par. 6. Ja. 5. THe form of citing the nearest of Kin is now introduced in the choosing of Tutors Dative by the Exchequer and is establish'd most iustly by the 2 Act Sess. 3. Par. 2. Ch. 2. though formerly the King might have granted Tutories Dative without any citation of the nearest Kins-men Nota By this Act it is clear that a Curator cannot by a privat Renunciation of his Office free himself but he can only be freed by the Judge for though by the Civil Law Tutors and Curators were forced to accept yet by our Law they are not but if they once accept or administrat though without a formal acceptance they are still lyable from the date of their administration and not from the date of their nomination and that which was at first voluntary becomes necessary THough this Statute anent Lentron be renewed Act 221. Par. 14. Ja. 6. and that the Council used lately to grant Dispensations yet these Penal Statutes concerning Lentron are now in Desuetude VId. observ on Act 36 Par. 8. Ja. 2. and on Acts 68 and 69. Par. 8. Ja. 3. THese Instruments of Resignations are not only to be Sealed by this Act but to be Registrated by the 3. Act Sess. 1. Par. 2. Ch. 2. ALL Warnings are by this Act to be made only upon 40 days which holds though the Party be out of the Countrey because the Act is general though in other cases a Party out of the Countrey must be cited on 60 days 20 Feb. 1666. M cbrair contra Crighton and yet though this Act be general there needs no formal Warning conform to this Act from a Tower or Fortalice turris pinnata even though the Possessor had a Tack Nor in Lands Liferented for in these the Heretor will get upon a Bill Letters from the Lords charging the present Possessor to remove upon 6 days because Towers and such Houses belong not to Labouring nor are useful for it and this Act was made in favours of Labourers and it were unreasonable that the Heretor after a Life-rentrix is dead should be put to all these delays for removing those who possess by a right that is ipso jure expired These words of this Act appointing Warnings to be made either Personally or at their dwelling Houses and at the Ground of the Lands are so to be interpreted as that there must be still a Copy left upon the Ground of the Land or at his dwelling House and upon the Ground of the Land which citation upon the Ground of the Land was as it seems made necessary because in all real Executions quae praedia tangunt Copies must still be left upon the Ground and to the end that all who pretend to have real Rights and even Sub-tennents may be thereby certiorated 25 Feb. 1680. Craw contra Craw. Because this Act ordains all Warnings to be made 40 days before Whitsunday and speaks not of another Term therefore the Warning must be made before Whitsunday though the person warned be not oblig'd to remove by his Tack till the Martinmass but Execution must be superceeded till then vid. 8 July 1626. and 16 December 1628. Fowles contra Tennents and Inglis contra Tennents 15 June 1631. Ramsay centra Weir Though this Act appoints these Warnings to be made at the Kirk doors of the Paroch within which the Land lyes yet the Lords have sustain'd Warnings to be made at that Kirk which was reputed the Paroch and where Warnings were used to be made though it was not truly the Paroch Kirk 24 January 1667. Earl of Argyle contra Campbel and though by this Act such Warnings should be read in time of Divine Service that is to say
immediatly after Sermon yet they sustain'd the Warning the Execution bearing that it was lawfully used and the user mending his Execution at the Bar 25 of January inter eosdem Though the reasons of Advocation here exprest seem to hold only in actions of removing because they are annex'd to this Act yet they hold generally in all Advocations vid. my Crim. observ Tit. Advocations and though the priviledge granted to Advocats here of being only pursuable before the Lords may only seem competent in removings yet it is extended to all cases and now they may Advocat any Action intented against them before inferior Courts I find that the Advocats of Vtright have the same priviledge Rub. de Advocatis Art 13. vide Voet. de statutis Sect. 7. cap. 3. num 16. where likewse he determines that this priviledge of exemption extends not to Criminal cases but that in these they may be pursu'd before inferiour Judges for these are not properly comprehended under the word Actions nor are Statutes to be extended de casu in casum THis Act is Explain'd in the observations upon the 32 Act Par. 2 Ja. 1. supra and 11 Act Par. 1 Sess. 3 Ch. 2. VId. crim obser tit Pursuers OF old when any Right was quarrell'd as null the nullity was sustain'd by way of Exception or Reply and a day was allow'd to the Defender to call his warrand that is to say the person who was his author and who was bound in warrandice but now few Nullities are regulariter received by exception but by way of Reduction to the end the Authors may be call'd who may defend him and ordinarly the Defender intimats at the Bar the pursuit to his Authors Advocats to the end they may defend him and if they do not they are lyable in an action of Eviction for damnage and interest but the old form of calling Warrands is in Desuetude THough Bonds of Man-rent are hereby discharg'd yet former Heretable Bonds are excepted VId. crim observ tit Falshood num 8 IT is observable that there needed a particular Act of Parliament for cutting down the Wood of Falkland because as I think the Queen was then a Minor and it was to be cut down by the Regent and the Regent being but a Tutor it has been thought he needed a Decreet or Act of Parliament for his warrand even as the Tutor of a private party cannot alienat his Pupils Lands without a Decreet of the Lords of the Session and it may be argu'd from this Act that though a Wood be old yet it cannot be cut down by a Tutor without the warrand of a Judge for this Act bears that this Wood was old and ready to perish It may be likewise doubted whether since the Kings Parks are a part of the annext Property the King or any having Right from him may cut down the Wood without an express Act of Dissolution or other warrand from the Parliament since the King is only but a Liferenter of the annex'd Property and a Liferenter can only cut down what is necessary for his own use But since Woods would perish if they were not cut I think there needs no previous Dissolution THough by this Act Deacons are Discharg'd as tending to Sedition and Visitors appointed to be chosen in their place yet the very next year the same Queen Mary allows Deacons to be chosen by a special grant to the Crafts-men of Edinburgh because as that grant bears expresly the Act was never in observance and since the making of it it was found by experience that Deacons were necessary in Towns from which it may be argu'd that when a Law is found absolutely inconvenient the King may dispense with it till the next Parliament especially where the Law had never been observ'd But I think the speciality of that grant lys in this that this being an Act of Parliament relating to Government and made for the security of the Crown the Monarch may use it or dispense with it as he pleases as every person may dispense with what is introduced in his own favours though to this it may be answer'd that what is introduced for the good of the Common-well as the Act bears this was cannot be dispensed with without the consent of the three Estates To which it may be Reply'd that matters of Government doe not concern them directly but by consequence Government being the interest of the King as Property is of the Subject THis Act is inlarg'd by the Act 156 Par. 12 Ja. 6. by which the Lords of Session are ordain'd to grant Letters summarly on six days against such as stop High-ways THis Act is Explain'd in the Act 13 Par. 2 Ja. 4. THough by the 5 Act 2 Par. Sess. 3 Ch. 2 The Burghs of Regality or Barony are allow'd to bring home Timber Iron c. as the return of the native Commodities of the Kingdom yet it was controverted if they might bring home Salt and it was found that they could not bring home Wine nor Salt nor Brandy even as the return of their native Commodities so that none can Trade in these save the Burghs Royal. THe Acts here related to are the 60 Act 7 Par. Ja. 3. and 13 and 14 Acts Par. 4 Ja. 5. which declares the breaking of Dove-cots Parks and Ponds to be Theft and upon the 25 of July 1623. Raith and Dean are ordain'd to be hang'd for breaking of Yards stealing of Bees-skeps and Sybows and it was Theft by the Civil Law lege Pomponius 8. par Pomponius 1. ff Fam. erisc Vide Crim. observ tit Theft num 15. THis Act against the speaking evil of the Queens Grace or French-men was made when the French-men came over to assist the Queen against the English and though it be Temporary quoad the French yet it is still a standing Statute quoad our Monarchs and it is observable by it that the hearers of false Reports against the Queen and not reporting the same are punishable as the principal speakers but it may be doubted if Hearers are obliged to Dilate when they cannot prove THough this case in so far as concerns these Temporary Pleys have now no force yet that part of the Act appointing Women and others who make perturbation in the passage to Towns is still in observance and the punishment is by our practice arbitrary Queen MARY Parliament 7. BY this Act the Judge is allow'd to exact Caution from such as propone Improbation and this Act was found to extend as well to exceptions of Improbation as to actions of Improbation and though it appoints Caution only to be found yet the Lords ordain oftimes the Money to be Consign'd and fourty pound is the ordinary Sum and sometimes they sustain cautio juratoria where the party cannot find Caution but this cautio juratoria is never allow'd except where there are previous and strong presumptions of Falshood or else the Lieges might
be extreamly vex'd ordinarly the same day is appointed by the Judge for the proponer of the Falshood to consign and for the producer of the Writ to bide by the same like to these Consignations were the Sponsions mentioned in the Civil Law whereby Litigators sponsionem faciebant certae pecuniae quae ejus lucro cederet qui judicio vicisset l. paen ff de alcae toribus l. 17. § ult ff de praescript verb. Nota By this Act where Improbation is propon'd at the Kings instance the informer is to find Caution but if the Kings Advocat insist ad vindictam publicam I conceive he is oblig'd to find no Caution because he is never presum'd to pursue Calumniously WHen any thing is to be proven by Writ if the Writ be not produc'd this Act appoints that Protestation shall be given against the probation of that part of the exception but now the form is to call upon the Act and crave Circumduction of the Term which circumduction is here call'd Protestation but if the Writ be produc'd this Act appoints that the other party shall be heard against the same after Renunciation of probation and the form is that when any Writ is produc'd in modum probationis the other party protests to be heard against the same at the advising of the Cause and the producer puts up an Act renuncing further probation THis Act appoints the expences of Plea to be Tax'd and insert in Decreets which is conform to the Ch. 68 and 69. Quon Attach and though by the Civil Law expences of Plea ought not to exceed the principal sum pursu'd for Bart. in l. 8. Cod. de indiction Yet I have seen more expences allow'd than the sum pursu'd for extended to and it were very unjust that if a person of quality were pursu'd unjustly by a mean Rogue for a small matter that his expences should not be determined according to what he was really forc'd to expend for the necessity of expending is the only just rule in such cases Queen MARY Parliament 8. THis Act of Parliament doth enable French-men to bruik Lands and Estate in Scotland and Naturalizes them so as that they may enjoy all the priviledges here as any Scots-man may do but though quoad the point of Succession strangers have by many Nations been debarr'd and that by the Roman Law cum peregrinis Testamenti factio non erat l. 1. C. de hared instituend l. 1. § 2. ff de ◠yet Craig pag. 96. observes that strangers were not debarr'd from Succession in Scotland and I find it so decided 13 January 1575. in the case of one Richardson These priviledges granted by this Act are likewise confirmed to the Frenches by an Act of Sederunt the 11 of June 1595. From these first words in this Act appointing Letters of Naturality or Naturalization to be given to such of the French Subjects as shall happen to be in the Kingdom of Scotland It may be doubted that French-men cannot pretend to this right except they live here but this is expresly contrary to the French priviledges there granted to us It may be also urg'd that Dutch-men or others cannot pretend to it though they be Naturalized in France for to Naturalize them because they are Naturaliz'd in France were to allow the French King to Naturalize any he pleas'd in Scotland though enemies to us 2. Only French-men are Naturaliz'd which is to be interpreted only of such as are properly so 3. This were fictio fictionis which is reprobated by Law It seems also just that except this priviledge be continu'd to us in France French-men ought not to have it in Scotland Quaer If Merchants though not naturaliz'd will not have right to heretable Rights granted for security of their Money for without this there could be no Commerce THis Act contains the French priviledges to us communicated by the French whereby the Scots may succeed in France in the same way that the French-men themselves did and they are by this Act Naturaliz'd to that and all other effects and which was very necessary for us since by the Law of France the Fisk excludes the true Heirs of strangers except as to Goods brought in by them which priviledge is call'd by the French droict d' anbeine beside this right of Succession the Scots likewise are free to be preferr'd to all Ecclesiastical Dignities The Gentlemen are free from Taxes and the Scottish Ships free from Imposts albeit of late the French exact from us 50 Sols per Tun as from other Strangers As to which I drew this Memorial as Assessor to the Royal Burrows A Memorial concerning the Priviledges due to the Scots in France THe French Nation finding themselves oblig'd to have forraign Recruits for maintaining their Wars pitch'd upon Scotland as a Nation very sit to furnish them Levies and so old was their Alliance that a League offensive and defensive was enter'd into betwixt Charles the Great King of France and Achaius King of Scotland in Anno 787. at which time Charles the Great bestow'd upon the King of Scotland the Double Tressure garnish'd with Flower de Luces or as the French call it Fleurie Contre fleury born by them at this day as all the French Historians and Heraulds do acknowledge After this the French being ingaged in constant Wars with the English they imploy'd the Scots on all occasions in which their great succours and services are set down by Favin a learned French Author in his Theatre of Honour and to ingage that Nation the more as well as to reward their services the guarding of the King's Person was bestowed upon them by Charles the 5 th and they were holden as Naturalized French-men and were exempted from payment of all Customs and though many of these Contracts and Leagues be lost yet these following Papers are still extant A Treaty containing these priviledges betwixt Alexander the 2d and Lewis of France called St. Lewis Another betwixt King Robert le Bruce and King John An Act of Parliament 1558. relative to the like Act in France wherein Q. Mary who was then Married to Francis Dolphine of France doth with the consent of Parliament Naturalize all the French in Scotland and enable them to succeed to Estates moveable and immoveable here and free them from all Taxes payable by strangers In which Act of Parliament the Copy of the priviledges granted by the French to the Scots is verbatim ingrossed Item A Patent by Francis King of France dated May 1510. exeeming the Scots Nation from paying Custome in Normandie Item An Act of Exchequer approving thereof dated the said year Item An Act of the Thesaurers in France consenting to the same Item Letters Patent from the said King to his Great Council for expeding the former Patent dated the said year Item Act of the Great Council consenting thereto Item An Act of the Cour des aides at Paris approving the said Patent Item Charter by King Henry the
exegetick only of the Coronation and by them is meant the recept of his Authority in the Coronation This Act is Ratified by the 99 Act 7 Par. Ja. 6. vid. Act 2. Par. 3. Ch. 2. IT is fit to know that whatsoever of the thirds was not assign'd to Ministers did appertain to the King and it was called Superplus whereof there was yearly a Book made which altered and was more or less according to the Assignation to the Ministers and according to the Superplus-Books the Kings Collector did charge for the Superplus for the King's use and with it also the omitted Benefices which the Prelats and Beneficed persons omitted in the up-giving of their Rentals and also for common Kirk and Friers Lands which also with the thirds were appointed for the uses aforesaid The Rent of the thirds for the King's use is altogether extinguished partly by restitution of Bishops who have right to their own thirds and partly by erection of Abbacies and Priories in which the thirds are discharg'd in favours of the Lords of Erection they planting the Kirks Likewise in Parliament 1617. and 1621. And in our late Parliaments there was Commission granted by the Parliament for planting of Kirks which has made the old Book of the Assignations of Ministers Stipends and yearly Plat thereof to be out of use Many of these Books of Assumption are still preserv'd and they are very useful for clearing what the old Rentals of Benefices were so that it may be known whether Benefices be set with diâ—â—â—nution of the Rental FOr the better understanding this Act it is fit to know that a Provost with us is that which praepositus is in the Canon Law praepositura est dignitas quando est Collegiata alias non Fed. de sen. Consil. 80. Alia ergo est Jur. Can. praepositura Collegiata alia non Collegiata But with us where there was a Colledge Kirk it was govern'd by a Provost and Prebends and generally it was institute for Divine Service but there are Colledges institute for instructing of Youth as the old Colledge of St. Andrews which is governed by a Provost A Provost is in our Law no Prelat and therefore Tacks set by him are null without consent of the Patron 12 July 1616. Hope tit Kirk but è contra the Patron may gift Prebendaries without consent of the Provost or Prebends except it be otherwayes provided by the Foundation The Collegiat Kirks Provostries Prebendaries having been founded by Noblemen for their own ease and advantage they retain still a greater power over them than over any other Benefices and therefore by this Act the Patrons of these may provide them to Bursers or others notwithstanding of the Foundation which is ratified by the 158 Act. Par. 12 Ja. 6. and by the 54 Act Sess. 1 Par. 1 Ch. 2 vid. observ on that Act. FOrnication is now punish'd only by the Kirk Session and this Act is not exactly observed for the offenders now only pay an Arbitrary Fine and stand upon the Stool of Repentance THis Act and the next are explained in my Criminal Treatise Tit. Incest THe melting down of any Money already Coined within the Kingdom under the pains here exprest is punish'd with us because our Coyn being as fine as our Plate it would be thus melted down and so the Stock of the Money would be impoverished and as the 66 Act Par. 8. Ja. 3. observes it would waste and minish by translation in the fire but the Question being agitated whether forreign Coyn may be melted for Bullion it was urg'd that by this Act no Gold nor Money already Coyn'd within this Realm was to be melted for by the said 66 Act no Gold nor Money that bears Form and is Printed should be melted but to reconcile these the answer is that if Money be once allow'd to be current here by direct allowance as by Proclamation it is not thereafter to be melted down and so it was decided in the Lord Hattons case Feb. 1683. THough the Lords of Session are not Judges competent to reduce Sentences past in Parliament as the more Soveraign Judicature yet they are Judges competent to reduce Rights confirmed in Parliaments whereby the Confirmation falls in consequence quia confirmatio nihil novi juris tribuit vid. 25 March 1631. Bishop of Dunkell contra the Lord Balmerinoch This Act against forbidden Weapons is explained by me in my Criminal Treatise Tit. 32. VId. the Criminal Treatise tit Falshood THis Act was to supply the nullities which could have been objected against such Rights by the Court of Rome who pretended to the only right of bestowing Church-benefices so that our separation from the Church of Rome was first authorized by the Parliament in the year 1560. VId. Crim. tit Theft But it is now fit to observe that when any-man cryes for help against Thieves all who are desired are obliged to concur with the Owners of the Goods under the pain to be holden partakers of the Theft which Huy and Cry with us was called Quiritatio by the Romans by the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vid l. 1. 2. Cod. de his qui lat l. 1. ff de serv. fugitiv ALthough by our Law Pactions for Gifts or Rights to accresce to private men though not actually as yet fallen to them are valid and thus it has been found that a man may renounce or sâ—ll haereditatem futuram yet by this Act a gift of Escheat when a Party shall be denounced is declared not to be valid because this may occasion the person whose Escheat is so gifted to be denounced viis modis and this proceeds upon the same reason that the Civil Law discharges such deeds quae praebent votum captandae mortis alienae and by the Canon Law a Benefice cannot be promised or bestowed when the same shall happen to vaik nec confirmatur sequenti vacatione colâ—atio C. proposuit de con preb Ca. 2. de preb in 6. argumento hujus legis it seems that the survivances of Offices should be null by the same parity of reason for these preclude the King from his free Gift and are the occasion of snares Likeas such Gifts by our Law and Style should express modum vacandi which cannot be done where there is no vacation and though we have no express Statute yetâ—by our Practice which observes Styles as Statutes if a Gift express not modum vacandi it will be null so a Gift of Escheat not mentioning the Horning whereupon it proceeded was not sustained though a Horning year and day before the date of the Gift was Libell'd on in the Declarator and though the Gift was past the King 's own Hand at Court where Hornings could not be got 20 November 1628. Welston contra Stuart For if this had been sustain'd no Horning had ever been exprest thereafter but the Donatar had still choos'd out one of the meanest Debts since he is
bound to pay the Debt in the Horning by his Gift THough this Act requires that Seasins within Burgh should be subscrived by the Clerk and given by the Bailie of the Burgh yet the Lords sustain'd a Seasine of Lands within Burgh given by the Sheriff and Sheriff-Clerk where there were no Magistrats or Town Clerk in Office at the time that the Seasine was given 21 July 1666. Thomson contra Mackitrick This is one of the instances that necessitas non habet legem vid. 11 Act 3 Par. Ch. 2. THis Act was but temporary and so is useless now THis Act is Ratified by the 15 Act 2 Par. Ch. 2. and the reason why Maltmen are discharg'd to have a Deacon is because at their meetings they might easily conspire to set a price upon the Victual and upon the Ale and Beer at their pleasure and force the Gentlemen to sell at any rates IT may seem strange that this Act made by Q. Mary should be insert here but that Parliament holden upon the 19 day of April 1567. is not at all Printed and therefore it has been thought fit to insert this Act in favours of the reform'd Religion amongst her Sons Acts and to let it continue in her name because it might clear that her Majesty had consented thereto in her own Reign This Act bears an acknowledgment of the Queens deriving her Authority Royal from God which has been insert by our Reformers to show their abhorrency of their opinion who think that our Monarchs derive their power from the people THere is no such Parliament as that here mention'd to be held upon the 29 of December 1567. and therefore the 33 Act is here renew'd but it was needless to have made a special Act for allowing this to be Printed for both these Acts 32 and 33 might and should have been one vid. obs on this Act in my Crim. Tit. Treason King JAMES the sixth Parliament 2. BY this Act it is clear that Commissions for Regents of the Kingdom were then subscrived whereas they are now superscrived and were then past under the Privy Seal as all Factories Assignations or other private Rights granted by the King are as yet but now all such publick Trusts are past under the Great Seal Nota What was then a Regent is now a Commissioner which word is but late and the Regent was then called Protector The first Commissioner mention'd in our Laws is the Earl of Montrose for the Parliament 1604. but that Inscription speaks nothing of a Commission under the Great Seal as all subsequent Inscriptions do from the year 1607. and downwards Many Acts in this and the ensuing Parliament bear With advice of the Regent three Estates and hail Body of the Parliament which words the hail Parliament seems superfluous for the King and the three Estates are the hail Parliament But this was probably inserted either to show the unanimity of the Parliament or to include the Officers of State because they are not comprehended under any of the three Estates and this may be adduc'd to redargue their opinion who think that the Officers of State did not sit in Parliament till the Parliament 1633. nor do they yet sit as such in the Parliament of England For I find them marked in the Sederunts very anciently but differently for though now they are called and are also marked down in the Sederunts after the Lord Barons and are therefore called Lords yet sometimes the Sederunt adds after the Burghs Together with the Officers of State and the Sederunt of the Par. 15 bear That the Kings Majesty and Officers of State declare the Parliament to run and ordain the Articles to meet IT is fit to know that all Alienations and Dispositions made by persons who were thereafter forfeited for Crimes of Treason are null if they be made post commissum crimen though they be made before Sentence or Declarator and that though it may be pretended that in some latent Crimes of Treason such as where Treason is inferr'd for concealing and not revealing Treason the Subjects could not know the Committers guilt and so might bargain with them or take rights from them but yet such Heretable Rights are declar'd null because the King having Feued out his Lands he is not obliged to acknowledge any singular Successors except their Rights were confirm'd sibi imputent who did not confirm This Act is ratified by the 65 Act 5 Par. Ja. 6. and all former practiques contrary thereto are rescinded which clause in that Ratification was necessary because as Sinclair observes in his old Practiques there had been several Decisions past in favours of the Earl of Mortouns Creditors sustaining Rights made by the Earl of Mortoun who was after 20 years latent guilt convict for concealing the design of murthering the Earl of Lennox Queen Maries Husband As these Acts strike against Heretable Rights made by forfeited persons so by the 202 Act 14 Par. Ja. 6. all Bonds Obligations Factories Pensions and Assignations granted by forfeited persons are declared null except these Rights be confirmed by the King or authorized by a Decreet of the Judge before the citing of the persons forfeited from which Act it may be inferr'd Arg. legis that such Rights granted post commissum crimen but before citation are valid though not confirmed by a Decreet if they were granted for true debts prior to the committing of the Crime since this Act runs only against fraudulent Dispositions as also for the same reason it may be urg'd that where such personal Rights are granted meerly to defraud the Fisk they would be null though confirmed as said is for else a man being to commit the Crime of Treason might purposely dispone his Moveables to prejudge the Fisk. Nota That such Moveable Rights Confirmed as said is will only be a ground for diligence against the forefaulted persons Moveables even as if the saids Moveables had fallen to the King by single Escheat but they will not be a ground of diligence against a forefaulted persons real Estate Nota That as Gifts of forefaulted Lands can only be past under the great Seal so the forefaulted persons Moveables should be regularly Gifted under the Privy Seal being as to the King the same way of Transmission that an Assignation is to a privat party but in the Earl of Argil's case it was found that the Moveables of the forefaulted person might be likewise transmitted under the Great Seals THough by this Act the Superiors forefaulture does not prejudge the Vassals who are innocent yet this Act is expresly abrogated by the 201 Act 14 Par. Ja. 6. and by our Law the Vassals Rights are null except they be Confirmed or unless he has originally consented to them or unless the Feus be set in the Terms of the Act 71 Par. 14 Ja. 2. From this Act it may be urg'd that since by a special Law Vassals of persons forefaulted in this Parliament are
and yet the Commissars ordinarly make them run from the date of the withdrawing and desertion simply though neither cited nor required and though it would seem by this Act that four years should interveen before the Decreet of Adherence yet the Commissars will grant a Decreet of Adherence upon a years desertion or less if it can be proven to be malicious or design'd for they think it is enough that four years run before the Decreet of Divorce Since the Act of Parliament requires malicious desertion to preceed the Divorce it may be doubted whether Citations at the Peer and Shore of Leith to those that are out of the Countrey or at the dwelling house to these that are within the Countrey be sufficient since they may be so cited without being malicious deserters and it were hard that a man being taken with Pirats or Robbers or necessarily absent without knowing of any such Citation should for 4 years absence lose his Wife and though in the Romish Church where there is no dissolution of the Marriage this might be sufficient since upon his return he might recover his own Wife yet it is most dangerous with us and though these Citations be sufficient in other cases yet there is no parity of reason for their being sufficient here where malice is required and where the loss is irreparable It may be also doubted if a Wife remaining in her Husbands House but refusing him all access to her may be said to have diverted and I conceive she may for all the reasons in the one case conclude against the other The form of Process here set down seems to be borrowed from the Saxon Law related by Sâ—edvin ad tit Instit. de nupt Par. 4. de divert Harprech ad part 11. de nupt num 131. seq and lest this Process may proceed from Collusion by the Husbands being desirous to divert upon design to obtain a Divorce therefore by our Law the Pursuer is obliged to swear that there is no such Collusion In place of Letters in the four Forms mentioned in this Act Letters of Horning are now summarly granted on all Commissars Decreets Act 7. Par. 21. Ja. 6. as also on the Decreets of Sheriffs Stewards Aâ—ts Bailies c. Act 177.13 Par. and Act 10 Par. 18 Ja. 6. for of old Horning being under the Sessions Signet 〈◊〉 only granted on Decreets of the Lords THis Act is in Desuetude for Salt may now be lawfully transported but then we had not enough to serve the Countrey BY this Act every Cowper is to put his own mark upon his own Barrel but by the 141 Act 8 Par. Ja. 6. there are Staples appointed for Salmond where a Gadge and mark is to be kept THis Act relates to the time wherein Grange kept the Castle of Edinburgh for the Queen King IAMES sixth Parliament 5. BY this Act Ministers Gleibs are not to pay Teind which is extended by the 162 Act Par. 13. Ja. 6. so far that Ministers Gleibs are thereby to be free from all Impositions whatsoever and it was found the 9 of June 1676. Burnet contra Gib that not only Gleâ—bs of Kirks establish'd by Law were to be free but even Gleibs of Chappels where there was Divine Service ordinarily and this priviledge of being free from Teinds was to be extended not only to Ministers Gleibs whilst they were possess'd by the Ministers themselves but that even the Gleibs of Vicars were to be free from Teinds when come in the hands of Laicks except it could be alleadg'd that within these 40 years bypast these Laicks had payed Teinds for these Gleibs albeit this Act of Parliament be only conceived personally in favours of Ministers but not really in favours of Parsons or Vicars Manses 16 July 1678. Earl of Queensberry contra Dowglass This Act is conform to the reform'd Churches abroad vid. Carpz jus consist BY this Act the Lords are ordain'd to direct Letters of Horning at the Chancellors and Bishops instances for charging the havers of Writs belonging to Hospitals summarly to produce them and the Clerk of the Bills having refused to pass a Bill upon this Act as being in Desuetude and as having been at first but temporary because it ordains a report to be made betwixt and Pasch next yet the Lords ordain'd such Letters to be granted and found the Act neither temporary nor in Desuetude January 1667. Hospital of Northberwick VId. observ on the 111 Act 14 Par. Ja. 3. and on the 119 Act Par. 7 Jam. 6. THis Act is explain'd in the 36 and 39 Acts 2 Par. Ja. 6. THough by this Act it is declared only that in the competition betwixt such as have obtained Confirmations from the King the last Right first Confirmed shall be preferr'd yet this holds also in Rights holden of other Superiors because if the Right be given to be holden of the Superior a me it is no compleat Right till it be confirmed and the first compleat right is to be preferr'd Nota From this Act that the Lords of Exchequer ought not to refuse to grant Confirmations de praxi if they refuse the Kings Vassals protest that their refusal shall not prejudge his right But I find that where many Creditors were confirmed in one day the Lords preferr'd them according to their diligence and there having taken Seasine and not according to the date of presenting the Signatures since neither were negligent nor had used precipitation for they shun'd to determine that the Exchequer had not preferr'd or brought in all justly for that were to make the two Courts interfeer 6 December 1678. Mill contra Pasoules But in the competition betwixt two Confirmations the Lords found that the first who had past the Seals was to be preferr'd and that the preference of the Confirmation was to be judged by the passing the Seals and not by the date of the Signature since it is not the Signature but the Charter that preferrs because a Charter first past the Seals though upon a posterior Signature will be preferr'd as the more compleat diligence the Seal being in place of the King's Subscription and consequently the date of the Charter is not still to be looked to since the Charter bears still the date of the Signature and the date of the passing of the Seals is proven in our Law by an attestation under the hand of the Keeper of the Seal for though that attestation may seem to be the testimony of only one Witness yet it is actus officii and the Minut-Book is a sufficient check upon his attestation 26 February 1680 Clackmannan contra Earl Wigtoun It is also observable from this Act that albeit the Keepers of the Seals are discharged to pass double Confirmations of Rights of the same Lands yet de praxi the Exchequer and Seals pass very frequently such double Rights periculo petentis and though where the obtainer of the first Right cannot instantly exclude the second as
Oath Observ. 3. It may be doubted whether this Act ordaining Merchant Accompts to prescrive in 3 years doth reach to Compts owing to Strangers for they seem not oblig'd to know our Law and this would ruin all Commerce locus contractus semper attendendus But it was found that this Act does extend to all Merchant Goods as well when sold in gross as by retail It may be doubted whether these two last Acts run against Minors since it is provided expresly that Prescriptions against Spuilzies and Ejections shall not run against them which shows that if this had been design'd in the other Prescriptions the same Clause had been renew'd since it was under consideration and so seems not to have been forgot only and there seems to be some reason for this since Minors are prejudg'd by SpuilÈies and Ejections and so Prescriptions in these should not run against them but in removings the hazard is only that a new Warning must be used and in other the like debts the only loss is that the debt cannot be prov'd by Witnesses after three years and so since these prescriptions did little hurt to Minors it was not necessary to stop their course It is also observable that though all these Prescriptions run in 3 years yet if actions be once intented they stop the prescriptions and thereafter SpuilÈies Removings or Aliments c. do not prescrive in less time than 40 years as all other debts do and till then violent profits are due or the like debts may be prov'd as if the action had been pursu'd within 3 years 26 January 1622. Herring contra Ramsay As also by our late Decisions if the Pursuer has continued to employ a Merchant the currency of that Compt and trust will preclude the prescription so that many former years preceeding the three last may be craved though this Act ordains all Merchant Compts to prescrive within that time but if a Bond be taken for these posterior years it is thought that cannot be called a current Compt and it may be debated whether in Law one or two Articles will make a current Compt and if it do there may be many wayes taken to elude this Act vid. 16 December 1675. Somerâ—el contra the Executors of Muirhead This currency extends to Brewers Compts of furnishing 13 November 1677. Wilson contra Ferguson Vid. Sand. lib 5. Decis Tit. 6. Though it was alleadg'd that albeit it should hold in Merchant Compts where there are Discharges taken and where a Compt Book adminiculats the recept yet it ought not to be consider'd in furnishing of Ale where neither of these are observ'd and yet this currency was not respected in Servants Feeâ— for these same reasons and because a Servants Fee is alter'd at the Masters discretion 12 February 1680. Ross contra Mr. Salton VId. Crim. Obs. Tit. Forestallers and Tit. 32. IT may be doubted whether this Act that gives power to the Sheriffs and other Judges to throw down Cruives and Yairs ought to be extended to Dykes built over waters or a part of the water for making a Dam to a Miln 2 o. VVhether Sheriffs or Lords of Regality c. may execute this Commission for their own advantage and where they themselves are the parties grieved since that were sibi jus dicâ—re and they would probably be partial whereas they may get others to execute the same THis Act Discharging exportation of Coals is now in Desuetude THis Act Fining such as propone unjust exceptions or lose the Pley within Burgh for the use of the poor is conform to that Title in the Civil Law instit de panis temere litigantium For there can be nothing so absurd and unjust as that men should not at least have their true expenses upon Oath whereas we use to modifie little or nothing even where there is not the least colour for a pursuit or defence and this I think a great iniquity in all Judges who are guilty of it Vid. instit de paen temere litigantium BY this Act the Lords of Session are ordain'd to distribute Justice without respect to any privat writing impetrat from His Majesty and by this His Majesty is freed from importunity and his people from unjustice This was formerly statuted by King David 2. cap. 18. cap. 41. and by the 2. cap. Statut. 1. Rob. 1. Judges are ordain'd to Judge secundum leges antiquas and in the Civil Law per l. 1. 6. C. si contr jus vel util publ per novel 82. cap. 13. and in the Canon Law cap. 5. de Rescript This same Law is also in France and is Learnedly Treated by Rebuff ad constitut Reg. tit de rescript and Plutarch commends Antiochus for having made a Law in these same terms but though the former Statute of King David warrands the Judge not to respect that Command but to indorse and send back the warrand and not execute the unjust Command which is by the 41. cap. of the same Statutes extended so that they are not oblig'd to delay Justice upon any such privat warrand Yet I find by § 10. cap. 20. of these same Statutes that the King may Discharge or Prohibite a Judge to proceed in the case of Perambulation for certain Causes for reconciling which Statutes it must be answered that the King cannot either simpliciter discharge a Perambulation nor any other Process but that he may discharge it for weighty Causes relating to the publick to which all privat interests must cede even as he may remit Crimes for such causes though these be of greater consequence or rather that the King may discharge Perambulations because the publick Peace is oftimes concerned in these since there used to be ordinarly great Convocations at such Perambulations and therefore the Justice General was of old only Judge competent to Perambulations Upon March 4. 1553. The Queen Regent appears in the Session and declares that the Lords should proceed to do Justice notwithstanding of any Letter or Order from her which is marked in the Books of Sederunt Observ. 2. That before this Act the Council us'd frequently to discharge the Lords of Session to proceed in judging privat Causes whereof many Examples are to be seen in Hopes larger Practiques and an instance of it is to be found in the 94 Act of this Parliament but that Custom is here discharg'd and as yet the Council uses frequently to discharge the Justices to proceed And notwithstanding of this Act I find in the Registers of Council 1581. King James Revocks in two several Cases Gifts granted by himself and Discharges the Lords of Session to sustain Action upon them Observ. 3 o. That the Lords are also allowed to proceed not only to decide but also to cause Execute their Sentences notwithstanding of such privat writings Charge or Command so that the Privy Council cannot Suspend the Lords Sentences neither by an Act of Council nor yet by Letters under the Signet But yet
were not null though not Confirm'd and January 20. 1666. Rentoun contra Feuers of Coldinghame The Lords found that Gifts of an Office of Forrestry granted by Kirkmen needed not be Confirmed these not being properly Feus of Kirk-lands ibid. THis Act Appoints that all Money and Victual assign'd to the Captains of the Kings Castles and whereof they have been in possession for five years shall remain with them unquestionably and this is like the Quinquennial Possession given to the King in cases of Forefalture Nota That the King has a Duty paid to him in Exchequer called The Castle Wards so call'd because they are paid in forwarding or keeping His Castles and he has no Right to them but constant payment conform to the Exchequer Rolls and therefore yearly the Sheriffs are charg'd with them and they get Letters of Relief and it was found in a case betwixt the Sheriff of Haddingtoun and Sir John Nisbet January 11. 1678. That the said Sir John had not prescriv'd an exemption as to these Castle Wards neither against the King nor Sheriff though he had paid none for fourty years since there were Letters of Relief yearly granted 2 o. It was alleadg'd that his Lands of Dirletoun having come once in the Kings hands by Forefalture and His Majesty having of new given them out that Servitude was thereby extinguish'd since res sua nemini servit but was repell'd because the King did of new only Dispone the said Lands as when they fall in his hands by the Forefalture King IAMES sixth Parliament 10. MR. Nicol Dalgleish and some other Presbyterian Ministers having reproached the King and His Government this Act declaring slanderous Speeches and Writs punishable by Death as Sedition was made and is more fully explain'd in the Act 134 Par. 8 Ja. 6. and in my crim pract tit Injuries Observ. 1 o. Sedition is a Name that receives different punishments according to its different Degrees of guilt and therefore where it is destructive of the Kings Authority immediatly and designedly it is punishable by Death as here though l. 3. C. de seditiosis the punishment of these qui ejusmodi voces emiserunt is more moderat and as that Law well observes words spoke in civitatibus tumultuosis clamoribus are more punishable than the same expressions would be if spoken in private places or without tumult but yet by this Act such seditious Speeches whether spoken privately or publickly are punishable by Death Observ. 2 o That when His Majesties Advocat designs not to pursue the Authors of such Speeches to the Death he Libels only that the Pannel did speak or write what tends to Reproach or Slander His Majesties Person or to misconstruct his Proceedings but not that they actually did so and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same Observ. 3 o. That though by this Act the Depraving His Majesties Laws and Acts of Parliament is declared punishable by Death as Sedition yet all misconstructing Acts of Parliament is not so punishable and thus though a Sheriff or other Judge would misinterpret a Law so as to make it infer a higher mulct or penalty than the Law design'd that could not infer Sedition or Death though it be likewise punishable but the design of this Act is to declare the depraving and misconstructing of Laws so as thereby to reproach the King or Government to be Sedition and Spotswood tells us pag. 243. That this Act was made for punishing these Ministers who had declaim'd against the Acts of the former immediat Parliament as destructive to their Discipline Upon this Act the Lord Balmerino was found guilty in December 1634. for having dispersed a Petition that reflected upon the Government in which Process it being fully Debated that dolus malus should be found in such cases where the design of defaming makes only the Crime this was repelled because where the words may of their own nature move dislike of and Sedition against the Government the design needs not be proved for if the people be irritate the Author ought to be punished and this Law considers the effect and not the design and he ought to blame himself who meddles in matters of Government without his Sphere It was likewise alledged in this Process that a Petition to the King Himself could not be interpret a misconstructing but this was also repell'd because both by the Common Law and ours it has been found that great affronts have been put upon the Government by way of Supplication Upon this Act also Francis Tennent was found guilty in anno 1680. and Mr. Thomas Ross in anno 1618. and the Earl of Argile both in the Year 1662. and 1681. Observ. 4 o. That in this Act mention is made of raising dislike betwixt His Highness His Nobility and loving Subjects which word Nobility was expresly put in by the Lord Hamilton and other Noblemen who then turned out Captain James Steuart against whom this Act was partly designed whereas in the Act 134 Par. 8 Ja. 6. made the year before by the said Captain James's influence against slanderers there is no mention made of the Nobility as is observed by Mr. Robert Macgil in Balmerino's Process THis Act discharging all Dilapidations of Benefices runs only in the words of the Act against such as dilapidat Benefices that are at His Majesties presentation but yet de praxi no Benefices that are even at the presentation of Laick Patrons or Ecclesiastick Subjects can be dilapidated Dilapidations of Benefices were formerly discharg'd by the 101 Act Par. 7 Ja. 6. but to elude that Act Benefic'd persons us'd not to give down any of the Bolls payable to the Benefice but to convert these Bolls in Money and to make these who were lyable in payment only lyable in very small prices and therefore such Conversions are discharg'd by this Act But it may be alleadg'd that where the Conversion is for less than the present price as Victual now gives it is unlawful since that Conversion was unnecessary and the Benefic'd person is prejudg'd because if no such Conversion had been made he had got the Bolls presently which could have maintained him better than the small prices which these Bolls were worth the time of the Conversion and yet by our Decisions the price that the Bolls gave the time of the Conversion are only considered because both parties took their hazard and the price mentioned in the Conversion is presum'd to be the full price except it could be proven that the Victual gave then greater prices for in antiquis there can be no other probation Vid. observ upon the said 101 Act 7 Par. Ja. 6. BY this Act all Leagues and Bonds made amongst His Majesties Subjects without his consent are discharg'd Observ. 1 o. That though the Rubrick bears that all such Bonds and Leagues are null yet they are not expresly annulled in the body of this Act but they
are expresly annull'd by the 4 Act Sess. 1 Par. 1 Ch. 2. Observ. 2so That the punishment is not here exprest but in general under the pain of being holden as movers of Sedition and punished with all rigour nor is it more special in the foresaid 4 Act Ch. 2. which I admire but yet I think that such Bonds and Leagues are punishable by Death from the Words all rigour which may be very well extended to Death especially in subjecto capaci as Sedition is for certainly some Seditions may be punish'd with Death as we see in the first Act of this Parliament and by this same Act such Leagues are declar'd to be against all Law and Allegiance Likeas by the 7 Act Par. 1 Ch. 2. The Subjects are discharg'd to take or renew the Covenant which is a Bond or League upon their highest peril and I wish the Act had determined what was the highest peril for generally Lawyers do not extend such Statutes to Death I find that the Nobility and others having enter'd into Bonds amongst themselves whereupon His Majesty was surpriz'd at Ruthven there are several Acts of Council and particularly a Proclamation issu'd out in April 1582. discharging all such Bonds so enter'd into and that none enter into such Bonds for the future and that gave occasion to this Act which says that these Bonds have given occasion to a great part of the Troubles that have occurr'd since The Certification in that Proclamation is under the pain of being repute favourers and partakers with the Conspirators against His Highness Majesty The Act here related to is the 43 Act 6 Par. Queen Mary but that Act properly extends only to Bonds of Man-rent but not to Bonds of Combination as this does so that this Act should rather have been founded on the 30 Act 2 Par. Ja. 1. There is in that Proclamation and this Act exception made of Bonds enter'd into with the Kings consent which was added because the Nobility and Estates at the Kings desire entered in a League and Bond for preservation of Religion which is Registrat in the Council Book June 8 1585. But this Bond is subscribed by very few of every Estate BY this Act Charges super inquirendis are discharged but it is a mistake to think that by that Act the King or other Judges cannot examine men without a formal Process for the design of that Act is only to discharge the denuncing men Rebels upon such Charges without previous tryal and yet if the Chief Officers of State or at least four of them concur it would seem that by that Act even such Charges are yet lawful and where the King or Magistrat has previous informations of Crimes latent it were against the interest of the Common-wealth that they should not be allowed to clear these by particular Interrogators It was urg'd from this part of the Act that no man could legally be Imprisoned even by a warrand under the Kings own hand and that this was very just in it self since as Liberty is very precious and the best part of Property it was sit to secure it so as that none could take it away but these who will be answerable and the King could not in Law be made answerable and therefore it was justly by this Act appointed that no man could be imprisoned by any Letter even under the Kings own hand except it were subscrived by the Officers of State who should be answerable to which it was answered by His Majesties Advocat that this Act did not debar the King from granting such privat warrands under his own hand for there might be some cases which he could impart to none of his Officers of State as for instance if all his Officers were upon a plot against him or if the Crime were the being upon a Plot with a forraign State which the King were not yet in a condition to resent though he might justly apprehend his Subjects who were in accession to it but the design of this part of the Act was only to discharge the passing ordinary Letters in common course under the Signet except in this Method and it might be much rather retorted that since only Letters under the Signet are discharged to be past except in this method therefore privat warrands from the King himself are not discharged for if the King and Parliament had designed any such thing they would have expresly discharged all warrands under the Kings hand which is not done in this Act and it is clear by the 184 Act 13 Par. Ja. 6. That the King may give Warrands out of his own mouth to apprehend Rebels or others whom Magistrats are obliged to apprehend I find also that this Act was past formerly in the Privy Council the 23 of June this year 1585. and there the Act bears To have been made to prevent the obtaining of unformal Letters at the importunity and malice of privat persons which clearly evinces that it was not design'd to preclude the King from securing such persons who he had reason to believe were obnoxious to the Government It is observed in the Acts of Sederunt that the King 8 June 1581. by his Letter ordain'd several Advocats to be imprison'd indicta causa By the second part of this Act Writers to the Signet are ordain'd to keep the old Style unalter'd for Arguments brought from Style are a great part of our Fundamental Law and in all our Decisions Argumentum a Stylo is still very strong as from the wills of Inhibitions Interdictions from the Forms of the Chancery c. and yet in some cases this Argument is not concluding and thus Gifts of single Escheat bear all Moveables present and to come and yeâ— they give only right to what Moveables the Rebels have or shall possess within a year after rebellion and though by the Style of Gifts of Wards the relief is discharged yet that discharge will not be valid As also the Style of Inhibitions and Interdictions bears a prohibition to alienat either Heretage or Moveables and yet it extendeth only to Heretage Stilus Curiae is by Justinian call'd forma observantia whence comes our word Form of Process Stilus consuetudo fori vel judicii pro lege observari dâ—bet l. 1. § in honorar de var. extraord cog vid. Vâ—et de Stat. Sect. 3. c. 3. Observ. That though by this Act every Writer should write his name upon the back of the Signature which he writes which doubtless was introduced to the end that every Writer might be answerable for his errors in Style or otherwise yet if at the passing of the Signature in Exchequer the Writer subscribes his name the Signature will be sustain'd which was found necessary though it was alledg'd that this Act was in Desuetude as to this point for it was found not to be in Desuetude THis Act explains the 141 Act 8 Par. Ja. 6. and dispenses with a part of it and that is the Act to which this
quo casu either it must be said that albeit the Exchequer make him Tutor Dative yet he is not properly Tutor or Curator but only a Curator ad lites or else if he be once properly Tutor the next Agnat cannot thereafter serve himself nam Tutorem habenti Tutor non datur vid. observ on the 67 Act 8 Par. I. 3. IT is to be observ'd from this Act that Laws ought not to be extended ad praeterita but only ad futura and as the Act sayes most reasonably Subjects cannot observe what is not yet made and not only so but Argumento hujus Legis it may be concluded that Processes are to be decided according to the Laws that were made before the Process was intented though the Law be made before the Decision in the Process which is very observable a notable instance may be seen in Act 94. Par. 6. Ja. 6. where the Parliament makes an Act upon occasion of a Process depending before the Session to be a rule in like cases for the future but leaves the case depending to be decided as they think just Vid. Observ. on 10 Act P. 3 Ch. 2. IT is by this Act appointed that no Signatures or other Writs shall be prâ—sented to his Majesty but by his ordinary Officers to whose Office the same properly belongs And it appears by the Registers of Council that this Act was a part of the remedy of that complaint mentioned in the 13 Act of this Parliament Observ. 1. That by Officers here are mean't Officers of State for none else can present Signatures and though a General Major or a President be his Majesties Officers they cannot present Signatures and yet any Officer of State may present promiscuously any Signature though it would seem by these words By his Majesties ordinary Officers and to whose Office the same properly belongs that every Officer of State may not promiscuously offer but that the Thesaurer or Thesaurer-Depute can only present Papers relative to the Thesaury the Justice-Clerk to the Justice Court c. Observ. 2. That though any Officer of State may present Signatures yet by the 60 Act 1 Sess. 1 Par. Ch. 2. any Officer who presents such Papers is obliged to send the Registrat Docket to the Secretary to the end his Majesty be so informed as that he may not grant double Rights King James the sixth Parliament 11. BY this Act the King 's lawful Age is declared to be 21 years compleat which Act was made to prevent a debate that had fallen out in France a little before that time where the Parliament of Paris had declared that the French King was not Major till he had compleated the last year of his Minority whereas the Parliament of Rouen had declared him to be of lawful age when he had begun the last year of his Minority nam in favorabilibus annus inceptus habetur pro completo and though Minors may revocke deeds done at any time before the last moment of their Minority and that Minoritas computatur de momento in momentum yet it is advantagious for a King to enter upon the Government of his Kingdom as soon as can be And though this be the age for reducing of deeds done by them they have another Majority in relation to the Government for we find that Josias entered upon the Government at 8 years and Solomon at 11. Cicero Philip. 5. tells us that the Kings of Macedon entered very early and in Anno 1375. the Kings of France were declared to be Majors and capable of the Government at 14. but by the Commission of Regency set down in the Act 1. Par. 1. Ja. 6. The Regency is declared to continue till 17. at which time the King is to take upon him the Government but yet King James 6 took it upon him sooner nor do I find any particular time limiting the King as to this point and therefore there may be many doubts amongst us whether the King or the Governour should be obeyed betwixt the Kings ages of 14 and 21. but before 14 no Pupil is thought fit by Law for administration and it may be strongly urg'd that 17 is the Legal age for why was the Commissions insert it being only a temporary right and such use not to be insert amongst our Laws By our Law minority runs in all persons to the last moment of 21 years whereas by the Civil Law it runs till 25 years compleat and in this our King differs not from others but because by the 2 Act Par. 1 Ja. 2. Our Kings were declared to be in minority till 21 years therefore by the 87 Act Par. 10 Q. Mary 21 years of age compleat was declared to be the perfect age of our Queens and by this Act it is declar'd to be the perfect and lawful age of our Kings It were to be wished that for proving the age of all Minors there were authentick Registers appointed as in other Nations and in some parts of our own since for want of this true probation of their birth perisheth and false probation is adduced OBserv. 1. That by this Act the receipting persons of the Romish Religion is not simply made Criminal except they did reset them for three days together or at three several times knowing that they were such which may be urg'd in all cases of Intercommuning and resetting of Rebels and yet in other cases once and short Intercommuning is sufficient to infer a Crime Observ. 2. That by the 164 Act 13 Par. Ja. 6. The resetting excommunicat Papists or Traffecting Jesuits for three nights together or three nights at several times is made sufficient to infer that they knew they were such per presumptionem juris de jure nor could the knowledge of their being such be otherways proven and if it had been necessary to prove their knowledge the Law might have been easily eluded by industrious ignorance and by that Act likewise the third fault is declared punishable as â—reason and because the punishment was so great it was just the presumptions whereby it was to be infer'd should be strong THough by this Act only the Sellers and Dispersers of erroneous Books are to be punished at our Soveraign Lords will and such Books to be burnt yet by our practise the Bringers home of Crucifixes Popish-beads c. are to be used in the same way and though there is only warrand here given to a Minister and Magistrats of Burgh to seize and burn such Books yet Magistrats use frequently to seize without a Minister and Sheriffs and other Officers do likewise seize but since burning seems to be an extraordinary power and so not to be assum'd without a special Statute I think that no Officers save Magistrats of Burghs with the concourse of a Minister can burn· THe reason why Ministers Benefices under Prelacies are declared to be free of the first Fruits and fifth penny of their Benefices is because in time of Popery the first years
Fruits of every Benefice were due to the Pope and are call'd by the Canonists Annata against which several Councils have made large but ineffectual Representations and the fifth penny was payable to the King and though this Act discharges only the exaction of these in Benefices under Prelacies yet now even Prelacies are free from these exactions in Scotland though in England the first Fruits belong still to the King Though the Priests were free from Subsidies amongst the Aegyptians Genes 47. vers 22. and that l. placet C. de Sacr. Eccles. nihil extraordinarium abhinc superinductumve ab Ecclesia slagitetur Yet this was only as to Tiths and things meerly Spiritual but the Lands of the Church were lyable to Impositions laid on for the common Defence of the Countrey and therefore the Canonists ad c. 1. de immun Eccles. give as a Rule that in bonis Ecclesiasticis ut Cleriâ—â—s in patrimonialibus ut laicos tractandos and such was this fifth penny here mentioned and with us Ministers stipends but not Bishops Lands are now ordinarly freed from Impositions OBserv. 1. That though such as invade Ministers for the Causes therein exprimed viz. for seeking their Stipend or because the Minister inflicted Church-censures upon them or any other forged quarrel are to be punished with all rigour yet if they invade them upon any account that is not Ecclesiastick or premeditat as in an accidental scufle they are only in these cases punishable as for wrongs done to other Subjects Observ. 2. Since the Act appoints that they may be punished with all rigour and the tinsel of their Moveables It is clear that such Invaders may be punish'd likewise personally besides the Confiscation of their Moveables yet the words with all rigour should not be extended to death but by the 4 Act Sess. 2 Par. 2 Ch. 2. The assaulting the lives of Ministers or the robbing of their Houses is declar'd punishable by death and by the 5 Act 1 Sess. of the said 2 Par. The Parochioners are made lyable for the Outrages done to Ministers if the Actors cannot be got Observ. 3. From these words That they may be punished at the Instance of the Minister or any other that will pursue This Crime is made so far crimen publicum that it may be pursu'd per quemlibet ex populo though he be not otherways interested Observ. 4. That this Act being only against Invaders of Ministers it is extended to Invaders of Bishops and all such as have power to administer the Sacraments 7 Act Par. 1 Char. 1. In which Act there are many other Extensions of this Law THe Popish Clergy had right to Lands that were mortifi'd to or bought by them and to Teinds which belonged to them as Church-men The Teinds were call'd the Spirituality of their Benefices because they belonged to them as Church-men and the rest was all comprehended under the Designation of the Temporality of their Benefices and upon the abrogation of Popery the King did begin to erect some of the Temporality of their Benefices in Lordships which He Dispon'd to several Noblemen who were most active in the Reformation Or to these whom He resolv'd to oblige by their Interest to be active in it and these were called â—ords of Erection but thereafter the Parliament resolving to fix a constant Rent to our Kings thereby to preclude the necessity of Taxes and to ingage future Kings not to return to Popery they annext the Temporality of all the Church-lands and Benefices to the Crown by this Act. Observ. 1. The reason whereupon this Act is founded is that the former Kings having mortifi'd a great part of their Revenue to Church-men and having thereby impoverish'd themselves and their people it was therefore just that the ends for which these Mortifications were made being declar'd unlawful the Benefices should return by this reason such Mortifications as were made by privat Families should have returned to them whereas here all returns to the King But in Law these Religious Houses being demolish'd all ought to have fallen in to the King for qua nullius sunt ea sunt domini Regis and these were such for they belonged not to the old Proprietars since they were once Dispon'd nor to these Houses since they were extinguished and that being found a false Religion what belong'd to it did by the Law fall under Confiscation Observ. 2. Though all Benefices belonging to Arch-bishops or Bishops are by this Act annexed yet they are restored by the 2 Act Par. 18 Ja. 6. And though all Benefices belonging to Chapters are annexed yet these are restored by the 2 Act Par. 22 Ja. 6. Observ. 3. From these words in the Clause of Annexation viz. All and sundry Common-lands bruiked by Chapters of Cathedral Kirks or whereof they have been in possession as Commonty That Possession in Church-lands is very often repute a sufficient Right and to be loco tituli For understanding whereof it is fit to know that both before and after the Reformation a Churh-man being in possession by the space of seven years though without a Title has the benefit of a possessory Judgement so that his Right cannot be quarrelled without Reduction nor needs he produce a Title as Laicks are oblig'd to do in possessory judgements July 18. 1671. Earl of Hume contra the Laird of Rislaw And if he be thirteen years in possession that possession is to him in place of a Title for by a rule of the Chancery as we believe docennalis triennalis possessio habetur protitulo though I find no such Rule in the Roman Chancery but yet these thirteen years induce only a presumptive Title which does not exclude the true Proprietar if he can instruct that the Benefic'd person possessed either by a redeemable Right and produce the Reversion as was found in the case of Francis Kinloch contra the Bishop of Dumblane July 11 1676. Or by a precarious Right as was found in the case of a Minister who had casten Peits for thirteen years by tolerance from the Heretor and though there be no difficulty where the Right mortifi'd does expresly bear that it is Redeemable or Precarious yet in absolute Rights there is greater doubt whether after thirteen years they can be qualifi'd by correspective Obligations The reason of this priviledge given to Church men is that they being imploy'd in Divine Matters are ignorant and careless of their Right especially since their Rights are not to descend to their own Heirs It is fit here to take notice that by a vulgar error triennalis possessio was thought to give the benefit of a possessory judgement 12 March 1629. Marshal contra the Laird of Drumkilbo and decennalis of a petitory and thus did they interpret the former rule At the Reformation also the Popish Clergy did either send their foundations to Rome or did by collusion with the Laicks interested or in hatred of the Reformed Clergy destroy their Rights and therefore by
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
conformis rationi conveniens Voet. de Statut. Sect. 7. cap. 2.116 BY the first part of this Act the Lords of Session are made Judges to the Interpretation of the Act of Oblivion whereas by the Act 67 Par. 9 Q. M. several particular persons were named for that effect There is an unprinted Act saying that because several of the Lords were dead and that because many legal actions arose upon the Indemnity therefore this Act was necessary By the second part of this Act nine Lords of Session are sufficient to be a Quorum and which is now observ'd though by the 57 Act 5 Par. Ja. 5. ten Lords with the Chancellor or President at the first Institution were necessary to make a Quorum THis Act is fully Explain'd in the 78 Act 9 Par. Queen M. except in so far as concerns the Obligation laid by this Act upon the Notars to bring their Prothecals to the Lords of Session and which are to be kept by the Clerk register and his Deputs these Prothecals are the Book wherein Notars set down the Breviats of what Instruments they take protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss in Novel 44. de tabel the reason why they are ordain'd to be brought to the Register is that false Papers may be hereby try'd and lost Papers may be made up for if an Instrument be lost the person in whose favours it was at first made may raise an Action before the Lords craving that it may be made up out of the Notars Prothecal and this being nobilis officii cannot be done before inferiour Courts Vid. 22 Act 22 Par. Ja. 6. Upon the 19 of February 1680. The Lord Register contra Sir William Primerose It was found that the Registers Deput called the Clerk for the Notars was Deprivable for not calling in the Prothecals of Deceassed Notars by the space of five years to which the Lords found him actually oblig'd though it was alleadg'd that by these Acts he was only oblig'd to receive the Prothecals when they were brought in but not to call for them nor was it possible for him to know when Notars dy'd and therefore by this Act Sheriffs c. are ordain'd to acquaint him of the Death of Notars within their Jurisdictions for it was urg'd that the Obligation to bring in the Prothecals being committed to this Clerk and he being only intrusted with it the Act would be elusory if he were not oblig'd to do Diligence since none else could do it and he might easily inform himself at least once a year It was also Debated that by this Act the Clerk to the Notars was oblig'd to understand sufficiently the Office of Notary though it was answer'd that he was no further oblig'd than to draw a Bill for their admission and the Clerks of the Session are not oblig'd to understand the Civil Law which they are oblig'd to Minut MEssengers being grown too numerous therefore by this Act they are restricted to 200. comprehending the seventeen Heraulds Macers and Pursevants in that number which number is here divided amongst the Shires but the number is now increas'd contrary to this Act and to the great loss of the people The Lyon is Constituted by this Act sole Judge to the faults committed by Messengers and to their Cautioners whom they find for their good behaviour at their Entry which power is Ratifi'd by the 125 Act 12 Par. Ja. 6. And the Lyon with his Brethren Heraulds are declar'd Judges to all the Malversations of Messengers in their Offices by the 21 Act 3 Sess. 2 Par. Ch. 2. by which Act though the Malversation of the Messenger be punishable by the Lyon yet he has not power thereby to determine upon the Damnages done to privat parties by Messengers and to determine against the Messenger or his Cautioner for the sums for which the Messenger should have us'd Execution albeit the Lyon has privat Ratifications from the Parliament with this priviledge vide June 27. 1673. Heriot contra Corbet BY this Act all Supersederies are discharg'd for Protections against Execution of the Law were so call'd then This Act is renew'd 13 Act 23 Par. Ja. 6. By which the Granter is declared lyable for the Debt and by the 9 Act 3 Par. Ch. 2. These Acts are Ratifi'd and because the last Act related only to the Session therefore the Privy Council Session Commissioners of Justiciary and Exchequer are declar'd lyable if they grant Protections except to such as are Cited to answer before them and so the Act protects not pursuers for they are not Summon'd and if pursuers were protected any man might raise a summons and thereby grant himself a Protection but yet if the interest of the Common-wealth require that a Crime be prosecuted I think they may after inquiry secure the pursuer during the dependence for though His Majesties Advocat may pursue without an Informer yet an Informer helps much Albeit that Act Discharges the granting Protections and makes the Granters lyable yet the Contemners of the Protection are punish'd and a Writer to the Signet was Suspended in November 1678. for causing apprehend a person notwithstanding of the Lords Protection albeit it was there alleadg'd that though Protections might be granted by the Lords upon depending Processes yet these Protections could not extend to secure them against delivering of Papers which are in their own power and though a Protection granted by the King for Debt does not secure against things that are in the Receivers own power as Exhibition of Papers c. yet if either the King or the Lords grant expresly Protections against all Cases whatsoever then it will secure even against such Exhibitions until the same be expresly re-called though it seems that by that Act Judicatures have only power to grant Protections to such as are Cited before them during the time wherein they may come and return to obey the Judicature in cases wherein their personal presence is necessary for the Administration of Justice not exceeding a month in all It is also clear that even the Defender may be apprehended if he get not a Protection for this Act does not protect but is only a warrand for granting one And there is lately an Act appointing Protections that pass under the Kings Hand to pass the Great Seal per saltum The Council to prevent the granting of Protections whereby the privat interest of the Subjects was so much destroy'd and the execution of Law eluded did by an Act in January 1678. and signed by all of them declare that whoever voted to any such Protections should be lyable to the Debt to elide which they thereafter changing the name of Protections granted Licences to persons to stay in the Countrey free from all Execution and therefore the King by His Letter in July 1679. did Discharge the Council to grant any Licences or Protections except conform
such as are in Prison there needs no Solemnâ—y and yet for the more security Inditements of Treason are also executed against Prisoners by a Herauld That part of the Act which relates to the Deprivation of Messengers is formerly Explain'd Act 46 Par. 11 Ja. 6. Only it may be observ'd that though the Lyon by this Act is ordain'd to deprive Messengers by advice of the Lords of Session yet he uses to Deprive them by his own Authority and in his own Court and though he publishes the Deprivation at the Mâ—reat Cross yet Executions after that Publication have been sustain'd if the Messenger after that Publication was habite and repute a Messenger November 10. 1676. Stenart contra Hay And though it may be alleadged that this Publication should put the Lieges in mala side as well as the Publication of Interdictions and Inhibitions yet the answer is that there are publick Registers in these cases which may inform these who are to Transact which cannot clear them as to the Deprivation of Messengers THough this Act appoints that the Justice-Clerk or his Deputs shall within six days after Criminal Letters are returned deliver the names of the persons Denunced with a brief Note of the cause of their Denunciation to the Thesaurer as also the Names of such as are Unlawed for absence from Assizes yet this is not now in observance all that is observed now being only that upon a Command from the Thesaury these Lists are given in so that this Act is rather forgot than in Desuetude By the last part of this Act all Commissions of Justiciary for longer space than the particular affair for which it is granted are Discharged and therefore by this Act it would appear that Commissions for Justiciary granted for a year or any definite time and not for a particular Business are null It is likewise appointed by this Clause that such as procure Commissions of Justiciary shall find Caution to Re-produce the Process and to pay that part of the Commodity which by the Commission is destinated for the Kings use which is most rational because this would likewise oblige these who get the Commission to do Justice knowing that the Process may be revis'd when it is lying in publica custodia that is to say in the Books of Adjournal for such Processes ought to be brought back and are usually Registrated there but this is oftimes neglected and it was Debated in the Case Turnbul against the Lord Cranstoun July 1678. That the Tenor of a Decreet of Forfalture pronunced upon a Commission granted to the Earl of Dumbar could not be proven except the Process were produced whereupon it proceeded conform to this Act since all that the Witnesses could prove was that they had seen such a Decreet which is not sufficient for else an unjust Decreet of Forefalture might be pronunced and lost to the end the Tenor thereof might be proven without any possibility of quarrelling the VVarrands whereupon it proceeded It may be doubted what is meant by that part of the Commodity which belongs to the King and I conceive that when such Commissions of Justiciary are granted the whole Escheat belongs to the King and the Commissioners have only Right to their necessary Expence tanquam mandatarii except a particular Quota be condescended on in their Commission though some are of opinion that these Commissioners have right to the same Quota's that Sheriffs have since they are Sheriffs in that part BY this Act the Comptrollers consent is requisit in all Infeftments of Feu-ferm or Confirmations of the Kings proper Lands and though there be no Comptroller now yet the consent of the Commissioners of the Thesaury or Thesaurer if he were supplies the same Hence it is that this Act appoints all Feu-ferms and Confirmations to pass the Comptrollers Register which is likewise Ratifi'd by the 171 Act 13 Par. Ja. 6. It is sit to know that the Thesaurer and Comptroller had different Registers but now there is but one Clerk to all the Exchequer who is called the Thesaurers Clerk and he keeps but one Register each Volumn whereof is divided in two parts the one whereof contains only Gifts that pass the Exchequer and the other all other Signatures of Confirmation c. BEasts found in His Majesties Forrests or Parks may be brevi manu intrometted with Vid. Act 12 Par. 4 Ja. 5. But since Forrests are not now Fenc'd it seems unreasonable that a Beast straying should be Escheated though where Beasts are designedly driven into a Forrest it deserves punishment and this Act seems only to speak of Fenced Forrests for it says Parks or Forrests and it requires advertisement before Beasts even found in these can be Escheat Vid. Argent Tit. des Assize where this matter is fully Treated ALL English Goods may be searched for and if they be not Sealed by the Customers may be Confiscated which Act being put in practice at Edinburgh in anno 1664. occasioned a great Tumult and the Act was alleadged to be in Desuetude The word Selling in this Act is wrong Printed in the last Impression for it should be Sealing Nota This Act Ratifies only an Act of Privy Council which ordained formerly Confiscation and this shews how great the Kings power was of old in the matter of Trade Vide Act 24 Par. 16 Ja. 6. which renews again this Act. VId. last Act 1 Par. Ch. 1. THis Act is Temporary but from it it is observable that as the King may as Superiour call for production of any Vassals Rights and Infeftments in a Reduction or Improbation and even by way of Exhibition which is conform to the Feudal Law and to c. 24. Quon Attach so the King may by Act of Parliament sometime call for production of all the Rights of His Vassals of Kirk-lands together as in this Act or of all the Rights of any particular place as of the Isles Act 262 P. 15 I. 6. And I think the King might have call'd for them without this Act by Proclamation and albeit it be said c. 25. Quon Attach That the Vassal shall only be oblig'd to shew his Evidents once in his Life to the King this is not now observ'd and the true meaning of it is only design'd against too frequent troubling of the Liedges which as no Calumniousness is never to be presumed in the King or His Officers THis Act appoints Lords of the Session not to be admitted till they be twenty five years of age which agrees with the Law of France Langlei Semâ—str c. 10. and with that of Venice Contar. L. 3. c. 3. Whereas of old the Romans admitted no Senators till thirty five which Augustus retrenched till thirty Sweton c. 32. Vid. 93. Act Par. 6 Ja. 6. But that part of the Act appointing that none shall be admitted Lords but such as have a thousand Merks of Rent or twenty Chalders of Victual is not now strictly observ'd though this was an Act
suffering the Rebel to possess three years has been found to be presumptio juris for inferring Simulation June 1666. Oliphant contra Oliphant There is a Title in the Civil Law de collusione detegenda which though it run there only against Collusion inter dominos servos yet the whole matter of Collusion is there Treated by the Doctors and it is defin'd to be sub specie litis lusus Vide Barthol Caâ—oll de simulationibus where this Subject is fully Treated By the last Clause in this Act it is provided that the Thesaurer or his Deputs may cause secure the Houses of the Committers of the Crimes upon the expences of the readiest of the Escheat Goods that is like that annotatio bonorum allow'd by the Civil Law in Criminals against absents and though the Act of Parliament specifies only that this may be done in Crimes yet I conceive that all Rebellion is comprehended under the word Crimes for in all cases even for civil Rebellion not only may the Thesaurer Seal till Caution be found but even the Lords of Session will upon a Bill allow the Sealing of the Rebels Goods at the Donatars instance till Caution be found WIlful setting of Fire in Coal-heâ—ghs is Treason vid. crim pract Tit. Fire-raising THis Act is Explain'd crim pract Tit. Beggars and Vagabonds THis Act against Forestalling is fully Explain'd crim pract tit Forestallers TAis Act punishing the Carriers of Wool Nolt and Sheep into England by Escheating the Transgressors Moveables is not abrogated by the Union of the Crowns the Nations being still distinct THis Act against Deforcers is Explain'd crim pract tit Deforcement THis Act is Explain'd crim pract tit Art and Part num 2. THis Act declaring that none but actual Burgesses shall Traffick is fully Explain'd 5 Act 3 Sess. 2 Par. Ch. 2. BY this Act all manner of persons Inhabitants of Burghs exercing any manner of Traffick or having Change therin shall bear Stent Which Act was found not to extend to Indwellers though they have the benefit of the Mercats and had never any other Residence but within Burgh and have the benefit of Seats in the Kirks and so should at least pay Contribution for the Ministers Stipend January 11. 1678. Town of Alerdene contra Lesk And by the 275 Act 15 Par. Ja. 6. All such as have an hundred pounds of yearly Rent may be Stented but by 276 Act of that Parliament they are only to be Stented according to the value of what Rent they have within that Burgh and not according to what they are worth else-where but it may seem that by the 275 Act all who have an hundred pound to spend ought to be Stented that therefore Indwellers are to be Stented though they have not an hundred pound of Rent in House-mail or Trade for the Act sayes if they may spend and not if they have and therefore that the persons who come in accidentally to live in Town should not pay yet if they have no other constant Dwelling save in Burgh that in that case they ought to pay because it is just all Subjects should bear some burden and they bear none else-where to which nothing can be answered but that the Act ordains only such to be Stented as have Rents and Livings copulative Observ. That by this Act one of every Craft is to be exeemed as His Majesties Servant from all Taxation Watching and Warding such as the Kings TailÈour His Smith c. And yet this Act does not exeem them actually but only allows His Majesty to exeem if He pleases so that except these be actually exeemed by their Gift this Act will not exeem them This priviledge is renew'd Act 275 Par. 15 Ja. 6. And His Majesty by His Gifts to His Work-men declares them to be exeem'd conform to these Acts whereupon the Council in anno 1680. did find they should not be stented and all these priviledges are again Ratifi'd in the Parliament 1681. But there being a Declarator rais'd of these priviledges before the Lords of Session in anno 1684. It was objected first That because these Acts being made in favours of the Kings Servants whilst our Kings liv'd in Scotland and they actually ty'd to Service the saids Acts should not now take place but should cease with the Service whereupon they are sounded 2. Though Wrights Masons c. Who are actually at present ty'd to serve may plead this priviledge yet the same cannot be crav'd by the Kings Barbers Shoe-makers c. who never serve 3. The said Exemption could extend no further than to the value of the imployment they had from the King but if the Kings Smith c. have from the people the imployment that other poor Smiths should have it were not just that he should be exeem'd which were to make them pay the value of the Impositions that should be put upon him 4. That these Laws could not exeem from paying for their other Trades So that if the Kings Mason be likewise a Vintner he should pay for his gain in that Trade 5. These Acts of Parliament could only free from Watching and Warding which are inconsistent with personal attendence but should not be extended to Stents and Impositions which were not usual before these Acts since the general words of Laws are ordinarly restricted to what ordinarly happens in the time 6. Though these Exemptions could secure against Impositions laid on by the Town yet they cannot secure against Impositions laid on in Parliament by voluntar offers made by the Subjects themselves in which those Trads-men must be considered as voluntary Offerers as well as others since they are re-presented in Parliament as well as others And in which Act Colledges and Hospitals are only exeem'd and not they this Debate is as yet come to no Decision BY this Act the Crafts-men living in Suburbs of Free and Royal burrows are discharg'd to work and their work declared conâ—â—â—â—able but this Act is not extended to Suburbs that are erected in a Burgh of Barony for these are priviledged by their erection and are not meer Suburbs but distinct Jurisdictions July 21. 1629. and there is a Decreet arbitral betwixt Edinburgh and the Suburbs wherein there is a Liberty allow'd to these who live in their Suburbs to work to Strangers but not to Towns-men This Act of Parliament has likewise been extended not only to Suburbs but to all who were within the Liberties and Priviledges of Burrows Royal though the saids places be not properly Suburbs and that the Act of Parliament discharges only the exercise of such Crafts in Suburbs adjacent to the saids Burrows July 7. 1671. Town of Stirling contra Polmais whose Tennents and Trads-men in Saint Ninians lived a mile from the Town of Stirling vid. etiam Durie March 21. 1628. and the reason of this Decision was because such Un-free men as live within the Priviledges do as well abstract the Trade of the Inhabitants as
to the sum specifi'd for an Earl or for a Feuar and it was found that Caution should be found for five hundred merks only according to the condition of the Defender Observ. 2. The quality of a Burges is not here specifi'd and if he hold Land Burgage he is de praxi considered as a Free holder else he is considered as an Un-landed Gentleman and if he holds feu of the Burgh he is considered as a Feuar Observ. 3. The Unlaw of such as compear not at the first Justice air is to be twenty pounds that is to say the Master who presents not his Tennents is to pay twenty pounds over and above all other punishments which is relative to the 6 Act 5 Par. Ja. 6. and is there Explain'd Vid. supra obs on Ja. 1 Par. 11 Act 129. Ja. 3 Par. 1 Act 5. Ja. 4 Par. 3 Act 27. THis Act annexing all annualrents payable to Prelacies to the Crown is abrogated in so far as concerns Bishops by the Act restoring Bishops in anno 1606. NOta That such Customers and Searchers as cheat the Customs are only punishable by Deprivation and escheat of their Moveables and therefore it seems that they are mistaken who think that such may be punished by Death this being an extraordinary Theft both as to the value the preparative and the ordinary punishment not excluded It may be likewise doubted whether such as enter in Compacts with Customers and Searchers to defraud the Customs may be punished by the same punishment because they are art and part REmissions are notwithstanding of this Act past without previous Letters of Slayns or consents from the parties but the party may get an assythment albeit the Remission be past all Remissions are at present Registrated in the Thesaurers Register conform to this Act and in the Secretaries Register also as all Papers are that pass His Majesties Hand THough this includes the Members of the Colledge of Justice in the priviledges granted to the Colledge of Justice with the Senators yet of late by the 8 Act 2 Sess. 2 Par. Ch. 2. Freedom from Impositions is renew'd to the Senators only vid. obs on that Act where it is Debated that though Advocats be not there mention'd yet they are not thereby excluded IT would seem by the Narrative of this Act that all Patronages Gifted after this Act should be discharged and yet the Act discharges only such as are granted without the consent of the Benefic'd persons nor can I see how these Patronages should have been declar'd null for want of the Benefic'd persons consent since the Benefiâ—'d person being once provided the Kings Disponing the Right of Patronage could not prejudge them who were already entered though the Act says That these Rights were granted to the great hazard of the persons provided for they being once entered no posterior Right could prejudge them and Declarators upon prior Rights might have prejudg'd them however but it seems that the reason why the consent of the living Incumbent is requisite is because it is presumable that he would and could inform truly to whom the Patronage belong'd and in all Church Benefices when Dispon'd either the Demission Resignation or consent of Church-men has been thought requisite The Statutory part of this Act was wrong Printed in Skeens Impression for whereas it sayes That all such Rights where the Beneficod person was alive and their consent had and obtained thereto shall be null It should have said Not had and obtained thereto but this is helped in the last Impression VId. Crim. Pract. Tit. Murder But it is fit to add that this Act ordaining such as strick or hurt a man within the Kings Palace to be punished with Death is consonant to praetor cum l. sequen ff de injuriis vide etiam l. 23. § 2. ad leg juliam de adulteriis and to the Law of Nations Fritz de palatiis principum cap. 12. Where he cites as the Law of Scotland cap. 6. Stat. Will. By which he who draws a Knife in the Kings Court is to be struck through the Hand and he that draws Blood is to lose the Hand and he that kills any man is to pay twenty nine Cows to the King and to assyth the party which certainly is meant of a Slaughter committed where the Killer should not die as in accidental Slaughters or Slaughter committed in self-defence for otherwise that Statute had been ridiculous as it is now obsolet and innovated by this Act of Parliament and yet I think that even by this Act of Parliament he who stricks any man in self-defence would not die and if the King be absent some think that Statuts punishing Offenders within the Palace extend not to such cases as Placa l. 1. â—pit delict cap. 8. Though Menochius does extend those Statutes even to that case but to prevent this Debate this Act 173 bears expresly The King's Palace where His Highness makes His Residence for the time and it expresses the Inner-gate to cut off the ordinary Debates de consiniis palatii Though this Crime may be pursu'd Criminally yet the Lords may take a Precognition of it to the end it may be known how far they will remit the same to be punished by the Criminal Judges in so far as concerns the stricking any man in their presence as in Sir John Hay's ease and Sibbalds VId. Crim Pract. Tit. Remissions Vid. supra observ on Act 74 Par. 14 Ja. 2. IT would seem by the Narrative that only such Writs as were not Written by Notars and common Clerks who are notourly known should have been declar'd null for want of the Writers Name and yet the Statutory part declares all Writs to be null without exception which want the Writers Name Observ. 1. This Act is not by the Lords found to annul Seasines and other Acts of Office Written by Common-clerks and Notars though the Writers Name be not design'd in them but only Writs amongst privat parties June 6. 1634. Observ. 2. That though the Writers Name be not condescended on yet the Lords will allow the User of the Writ to condescend who was the Writer and though this Act of Parliament appoints that before the inserting of the Witnesses yet if it be insert in any place it is sufficient and though the Act appoints that it shall condescend upon the VVriters Name particular remaining place and Diocy yet Diocies are now only condescended on in Instruments of Notars but still there must be some Designation beside the Name and Sir-name such as A. B. Servitor to such a man which is sufficient and if there be moe of one Sir-name who where Servitors at that time yet is not the User of the VVrit oblig'd to condescend which of the Servants it was but he who offers to improve the said VVrit must relevantly alleadge that of the Date of that Bond he whose Servant the VVriter is Design'd to be had no Servant at that time who
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
both as to time and sums and therefore though by the 36 Act Par. 3 Ja. 4. Tacks of the Rents of Burghs be declar'd null if set for longer space than three years yet by the same reason they should be sustained if restricted to three years THese Acts are Explain'd in the 36 Act 2 Par. Ja. 6. THe design of this Act has been as I conceive to secure such as had intrometted with the Kings annex'd Property summarly by vertue of the 41 Act 11 Par. Ja. 2. Because it is probable the Warrand granted by that Act was thought dubious and somewhat severe in the Analogy of Law vid. observ upon that Act. A Provost is in our Law no Prelat and therefore Tacks sett by him are null without consent of the Patron Hope Tit. Kirks THis Dissolution of the Kings annex'd Property has several specialities in it as that it shall not extend to the setting in Feu-ferm of Castles Forrests Coal-heughs and Offices c. But that these shall remain inseparably annex'd to the Crown and from this it may be observ'd that to this day all Castles Palaces Woods Parks Forrests Pastures Coal-heughs and Offices are to remain inseparably with the Crown and therefore except they be expresly dissolved they fall not under Dissolution This part of the Act is renewed by the 235 Act 15 Par. Ja. 6. This Dissolution is likewise only in favours of kindly Tennents and ancient Possessors and of such as should pay their Composition betwixt and the first of August 1595. THis Act is Explain'd Crim. Pract. Tit. Injuries num 6. BY this Act the Duty granted by the States to the King upon Wines is to be charg'd for by Letters of Horning and I find by Act of Council February 21. 1581. That a Commission is granted to the Kings Master-housholds to break up the Doors of such Merchants as refus'd to let the Kings Servants Taste their Wines to the end they might chuse the best for the Kings own use but this certainly presupposed that the King would pay for the Wines FRom this and many other Acts it is observable that the Parliament may and does by a general Law annul Rights granted to privat persons without calling them and without the hazard of the Act salvo though any one privat mans Right cannot be declar'd null by the Parliament without citing him BY this excellent Act a Horning or Escheat following thereupon cannot be taken away and declar'd null upon acquittances and Discharges which were alleadg'd to be prior to the Horning so that the Escheat could not fall the Debt being pay'd except the producer of the Discharge make Faith that it is of a true Date because such Discharges with ante Dates use to be granted by the Creditor when himself is paid It has been doubted whether Assigneys be bound to swear in this case but since this is factum alienum which they are not oblig'd to know and if this be necessary the Cedent by refusing to swear may destroy the Assigney but yet the Act of Parliament obliges indefinitly the producer of the Discharge to swear and so it seems whether he be Cedent or Assigney he is still bound since his Oath is solemnly requir'd by Act of Parliament Quaeritur whether it can be remitted to Quakers Anabaptists c. who think swearing unlawful THis Act giving many priviledges to the Kings Forrests seems not communicable to all Forrests though it be pretended that all Forrests are the Kings Forrests it having been very ordinary to erect Forrests in privat mens Lands in imitation of the Kings Forrests but because these Erections of Forrests were very prejudicial to Neighbours since they might fine their Neighbours and poind their Beasts therefore the Lords of the Session did in July 1680. give their opinion to the Lords of Exchequer that all such new Erections should be stopt and it appears to me very clearly that all Forrests are not the Kings Forrests by comparing cap. 17. leges forrestarum which Treats of Crimes committed in the Kings Forrest with cap. 21. which Treats of the Delicts committed in the Forrests of Barons and wherein they are Infeft cum libera forresta Observ. 2. That that part of the Act which ordains all that Hunt within six miles to His Majesties Castles VVoods Parks or Palaces to be fin'd in an hundred pounds is in Desuetude and it seems then only to be observ'd when the King Himself Dwells in his Castles and uses actually to Hunt in His VVoods or Forrests this Act bearing To be made for His own Royal Pastime or at least this priviledge should not be continued to Castles or Forrests which the King has Dispon'd to privat Subjects VId. observ on the 13 Act Par. 3 Ch. 2. THough this Act say That the Lords of Session were not oblig'd to sit down till nine a Clock yet it appears clearly that they were oblig'd to sit down at eight by the 49 Act 5 Par. Ja. 5. IT is observable from this excellent Act that where Evidents are not thought necessary to be kept there is no reason to grant Certification against them after many years and therefore the Lords refuse oft times to grant Certification against the Grounds and VVarrands of Appryzings such as Executions though they cannot be produc'd after twenty or thirty years ex paritate rationis though the Act secures only against the not producing of Procuratories and Instruments of Resignation and Precepts of Seasâ—nes and July 1680. Strowan contra Earl of Athol This Act was extended to secure against the production of the Decreet of Compryzing and Decreet whereupon it was led albeit this extension seems dangerous since thereby great Estates may be carryed away by null Compryzings and small Debts which might be satisfi'd by less than a years intromission whereas none or small prejudice can be infer'd from not producing Instruments of Resignations c. It is observable that this priviledge 〈◊〉 â—ot being oblig'd to produce such Papers is only allow'd to such as are and were in Possession for fourty years There is likewise in this Act a presumptio juris founded that these from whom Lands are Appryz'd will industriously abstract their Evidents and therefore the Lords use to be very favourable in granting Certification against Compryzers THe Act salvo jure is still subjoyn'd to Parliaments except here where it is insert in the midst of the Acts of this Parliament BY this Act Lords of the Session Advocats Clerks Writers and their Servants nor no other Member of the Colledge of Justice nor no Judges Clerks c. of inferiour Courts may take Assignations to Pleys which is conform to the Civil Law lib. 2. cod tit 14. ne liceat potentioribus patrocinium litigantibus praestare vel actiones in se transferre Nota The Right taken by them is not declar'd null but themselves only punishable and the reason seems to be because when they are depriv'd from being
Members the advantage they had over others is taken away and which advantage was the reason inductive of this Act nor should the punishment be extended beyond the Cause which is also conform to the opinion of the Civilians vid. vin select Quest. jur cap. 1. But it may be doubted if he who takes such Assignations should not be lyable to resound the damnages which are occasion'd by taking such an Assignation since it is a principle that Damnage is still due where the injury is done to any man against a positive Law though that Law ordain not Damnage and Interest to be repay'd and in this case the taking such Assignations is declar'd unlawful and so an injury is done against a positive Law 2. Without this the party injur'd is not repair'd for though the publick Interest vel vindicta publica be repair'd by the Deprivation yet the interest of the person les'd which is chiefly to be considered is not 3. Deprivation is oft-times no punishment and seldom a Commensurable Punishment for many Members of the Colledge of Justice lose nothing by Deprivation and a Plea may be worth a great sum and their Imployment worth nothing whereas Damnage as it is a natural so it is a most Commensurable Punishment Because this Act Discharges only Members of the Colledge of Justice to buy Plea's Therefore it is still lawful for them to take Assignations to Plea's gratis as a Donation July 30. 1678. for as this falls not under the express prohibition of the Act so it is noâ— presumable that they will be as keen in pursuing such Processes as these for which they have pay'd out Money nor were it just to make the Members of the Colledge of Justice incapable of their Friends and Relations Liberality By this Act Advocats Servants do pretend they are Members of the Colledge of Justice because this Act says their Servants and other Members Though this Act and the Rubrick Discharges only the buying Debateable Lands Teinds or Possessions and speaks nothing of Moveables nor even Heretable Bonds mobilia being ordinarly accounted vilioris naturae yet the Lords do now ob paritatem rationis extend this Act to such as take Assignations to Moveable Debts or any other debateable Rights This Act uses to be so Interpreted as to be extended only to the Members of the respective Courts who take Assignation to Plead before the Court where they serve and thus if an Advocat should take an assignation to a Plea depending before an Inferiour Court it may be urg'd that this Act should not reach them because he has not influence before that Court but if he should go and Plead before that Court as an Advocat may before any Court then the Act would reach him also Item Though this Act does not speak of Procurators before Inferiour Courts yet the word Advocats seems to comprehend them BY this Act Caution is to be found in actions of Ejections for the violent profits and though cautio juratoria be ordinarly sustain'd where persons cannot find other Cautioners yet it is not sustain'd in this case July 17. 1630. Because this Act says that by the proponing of these Defences against Ejections delays are granted therefore the Defender either in Removings or Ejections is not oblig'd to find Caution where the Defence can be instantly verifi'd and although it has been doubted whether this Caution is to be found at the proponing of the Defence or at the first Term assign'd by the Act yet it is clear that the Caution should be found at the first Term assigned by the Act both because this Act says that the Caution shall be found at the first Dyet of â—itis contestation and because there must be some time given to find Caution Nota That in the Brieves of Dissasine which was the same thing of old that Ejection is now Caution was to be found as here by the Defender Quon Attach cap. 53. num 2. For clearing some mistake in the Printing of my Criminals pag. 294. my meaning was that there may be Perjury in cautione juratoria as for instance if a person should Depone that he could not find Caution for the violent Profits and yet it could be prov'd that such a person who was very responsal offer'd to be Caution this I think would infer Perjury BY this Act it is appointed that twenty dayes after the Parliament is proclaim'd and before it meet four of every Estate should meet to receive Articles to be presented to the Parliament but this is now in Desuetude for no State can now meet except the Burrows and yet sometimes the King writs down to call whom He pleases to name to meet and consult previously what Laws are fit to be made in the future Parliament By this Act also it seems that nothing can be presented in plain Parliament by any of the Members of Parliament but that every thing must be first presented in the Articles for eviting confusion and this Act was made use of to that purpose in the Parliament 1674. against a proposal made then for having a Commitee of grivances To which it was then answered that the Articles being but a Committee of Parliament they could not restrict their own Constituents and this Act was rather directive than restrictive THis Act is fully Explain'd crim pract tit Jurisdiction of the Lords num 7. THis Act is explain'd crim pract tit Paricide THis Act is formerly Explain'd 15 Act 4 Par. Ja. 5. where Liferenters are to find Caution By this Act also a power is granted to the Magistrats of Burghs to cause repair Burnt and Waste Lands but yet ordinarly the Magistrats of Burrows use to give in Petitions to the Council craving liberty to force the Heretors of such Burnt Lands to repair their Burnt Lands themselves or else to sell their part and when there are many small Heretors concern'd the Council grants Warrand to the Magistrats to regulat their Venditions though I know it hath been alleadg'd that the Council could not do this because it was an Inversion of Property and that this was only competent to the Parliament and yet the Council have still been in use to do so for the common good of the people nor is any man a loser since he may repair by himself and if he will not he gets his just price This was granted to the Magistrats of Edinburgh in anno 1678. publice enim interest ne civitatis aspectus deformetur ideo constitutum est l. 4. C. de jur reipub aream collapsam posse a fisco distrahi si proprietarius monitus eam reficere non curaverit vid. l. 46. ff de dam. insect I have seen a Decreet in anno 1636. at the Town of Edinburghs instance against several Heretors before the Lords of Session for ordaining the Heretors of these Houses upon which the Trone-Church now stands to denude themselves of their Right in favours of the Town ob utilitatem publicam and to
Property It was more proper for the Session to have made such Acts than for the Exchequer who raise the Kings Rents conform to Law but declare not what is so THis Act declares that all alienations of the annext Property are null if they be set otherwise than in Feu-ferm and therefore if any part of the annext Property be Dispon'd to be holden Blench or Ward the alienation is null and I conceive the true reason to be because originally the annext Property was allow'd to be Dispon'd for improving His Majesties Rent which cannot be except where there is a yearly Rent pay'd and albeit sometimes the King and Parliament may dissolve the annext Property in order to a Disposition to be made to a person who has deserv'd well of the King and Estates in which the improving His Majesties Revenue is not design'd yet the general nature of Annexations ought not to be altered upon such accidental accompts THis Act annulling all Rights of the Kings Castles Parks Coal-heughs c. being annext was formerly Statuted 204 Act 14 Par. Ja. 6. THis Act is fully Explain'd in the 41 Act 11 Parliament Ja. 2. THis Act declares that the Assize Herring is a part of the annext Property and so cannot be set in Tack nor Dispon'd Assize Herring is a certain measure of Herring due to the King out of every Boat and the meaning of this Act is that it cannot be set in Tack without a competent Duty for it is set in Tack for a just avail and could not be well otherways Collected but this being a Casuality it is jactus retis and so except the Duty be almost elusory it is hard to quarrel it ex hoc capite they were formerly annext by the 176 Act 13 Par. Ja. 6. THis Act Discharges all Offices of Heretable Chamberlainries and all free Gifts and Discharges of the Kings Property but to cheat this Act the Feuars suffer the bygones to ly unpay'd and then obtain Discharges or else they obtain Tacks of their own Feu-duties for payment of a small and simulat Tack-duty call'd by the Romans as Cassianus BEcause the annext Property could not be Dispon'd without Dissolution therefore some to cheat these excellent Laws obtain'd Dispositions of the Feu-ferms payable to the King for payment of a Feu-duty and therefore these feudisirmae feudisirmarum are here discharg'd and annull'd THese Acts are formerly Explain'd in the Act concerning the thirds of Benefices viz. Ja. 6 Par. 1 Act 10. which are now obsolet Ministers being otherways provided OBserv. That Acts of Parliament are to be observ'd by the Lords of the Session except they be particularly abrogated in express terms vid. Gen. obs THis Act is now useless Ministers being otherways provided ALL Vassals are oblig'd to Exhibit their Evidents to their Superiour not only by Improbations but in Exhibitions though in Law nemo tenetur edere instrumenta contra se and the reason of this Speciality is because the Superiour is dominus directus and so has a true interest in the Land and if the Vassal pretend any interest he is oblig'd docere de titulo to shew his interest and to instruct the Superiour in what is due to him and the King in our Law is presum'd to be Universal Superiour of all Lands and therefore may by a Proclamation or by way of Action or by a Statute as here ordain all Evidents to be produc'd betwixt and such a day but nothing save a Statute or Improbation can declare the Evidents to be null if not produc'd as here and since an Improbation could not be universal this Statute was necessary in these times when His Majesties Revenue was not established nor known FEus are declar'd null for not payment of the Feu-duty either by the Clause irritant contain'd in the Infestments declaring that if two Terms run the Feu shall be null or by this Statute declaring that if the Feu-duty be unpay'd for two years together the Feu shall be null But there is this difference betwixt Irritancies upon this Act and these contained in the Infestment that the Irritancy upon this Act may be purg'd at the Bar but Irritancies upon Clauses in Infestments cannot be purg'd at the Bar because they are incurr'd by paction betwixt parties which the Lords cannot alter for the Superiour having given out the Feu upon that express condition it is not just to alter what was expresly Treated amongst parties December 1. 1664. Laird of Pourie contra Hunter But yet I see no reason for this distinction since this Act appoints expresly that they shall be null in the same manner as if there were a Clause irritant contained in the Infestment nor do I see how the Lords can alter what is so expresly introduced by a clear Statute If offer was made of the Feu-duty but refus'd yet this will not be sustain'd when Reduction is pursu'd ex hoc capite except it be instantly offered of new at the Bar nor will a Term be allowed for purging as was found in the former case in which the Lords also inclin'd to think that compensation will not be sustain'd to take off this irritancy for though Compensation tollit debitum yet there is a reverence due by the Vassal and which is considered more than the value of the Feu-duty it self but yet if the Vassal come and offer humbly to his Superiour before the Term of payment Compensation of as much as is due to him in payment of the Feu-duty Quaeritur if this will not be sufficient it may be doubted whether a minor will be restored against the not payment of his Feu-duty since it is not just that the Superiour should be prejudged by the minority of his Vassal or that the nature of the Feu should be thereby inverted and it may be also doubted whether this irritancy will be incurr'd by him who was hindred vi majori from payment as by being taken and detained Prisoner or carryed to remote Countreys since by the Feudal Law in other cases this does excuse a mora and from all the inconâ—eniencies that follow upon it 4. It may be doubted if this legal irritancy will be incurr'd where the Charter bears another special penalty and Certification in case of the Vassals failÈie in payment of his Feu-duty without substituting the same in the room of the Legal one or expresly renuncing it 5. Quid juris Where there are more Heirs-portioners if the failÈie of one of them will prejudge the rest seing quoad the Superiority he is oblig'd to own none but the eldest Daughter 6. If an offer made of the Feu-duty not by the Vassal but by a third party will stop this caducity seing the Feudal Obligation on the Vassals part is a personal Recognizance and ought to be perform'd personally and on the other hand these irritancies are unfavourable and ought not to be extended 7. Quaeritur If the Vassals offering Feu-duties for years yet to
to one another and that upon six hours advertisement under the pain of Rebellion vid. the Council Registers July 26 1582. and which is a great instance of the Kings power allow'd him by Law against those whom he has reason to suspect THe Rubrick of this Act is wrong for Sheriff Clerk bring not their Books to the Exchequer but to the Lord Register BY this Act it is appointed that all such as are Commissioners for Parliament shall be authoriz'd by the Subscription of a great number of the Barons then present and the Subscription of the Clerk of the Convention else to be null which Act was found not to be in Desuetude by a Decision in the Convention July 1678. where it was found likwise that this Act extended to Commissions for Conventions as well as to Parliaments for though this Act speaks only of Parliaments yet Parliaments and Conventions being called the same way the Commissions should have the same Solemnities and the reason why the Sheriff-Clerks Subscription is requisit is because he is the publick Servant of the Shire and so it is presumable that he will mark exactly all that was done and will not suffer counterfited Subscriptions to be put to Commissions being to be lyable himself whereas otherwise Commissions may be obtruded upon the Convention with false Subscriptions as was done in that same Meeting and which dangerous falshood cannot otherwise be well fastened upon any other since the Commissioner may justly alleadge that the Commission was so granted to him and one may be chosen a Commissioner who is absent in which case he cannot know who sign'd BUrrows having great Freedoms and Priviledges from the King are therefore oblig'd to have sufficient Prisons for receiving such as are attached for Crimes and Debts which Act was found to oblige Baillies of Burghs of Regality as well as Burghs Royal July 7. 1668. and Stewarts of Stewartries June 18. 1670. and these words of this Act By the Sheriffs to Stewarts and Baillies of Regality are wrong Printed for the word to should be or But this Act was not found to oblige Baillies of a Burgh of Barony March 13. 1623. Nor Bishops Baillies March 21. 1627. But the Baillies of the Head Burghs of Stewartries were thought to be oblig'd by this Act of Parliament to receive Prisoners albeit the Act of Parliament appoints them to be presented only to Stewarts and Baillies of Regality but speaks not of Baillies of the Head Burgh of the Stewartry June 18. 1670. Cheap contra the Baillies of Falkland Where it vvas likevvise found that the Baillies keeping a Rebel eight or ten dayes in a privat House and thereafter Imprisoning him vvere not lyable super hoc medio except he escaped by their negligence or the insufficiency of the Prison and it seems by the Act of Parliament that these Burghs are only oblig'd to have Prisons vvhich have Provosts and Baillies for the Act appoints the Prison to be upholden by the Provost Baillies c. though the Rubrick sayes that Prisons should be Bigged within all Burghs and it may be doubted from the vvords of the Act vvhether Burghs vvhich have no Common-good should be lyable especially seing Magistrats are oblig'd to keep Prisons for the Kings use because they have a Common-good from Him If the Magistrats do not receive Rebels or have not sufficient Prisons they are lyable for the Debt and that vvithout calling the principal Debitor since the Magistrats are lyable ex suo delicto and these Jails are found not to be sufficient vvhich vvant Cat-bands and outward Chains because the Prisoner cannot force those from vvithin but the Prison being sufficient and sufficiently Guarded vis major is a sufficient Defence and though this Act says only That they shall secure persons presented to them yet they are found to be oblig'd to search any House vvhere the Rebel is said to be July 2. 1669. Farquhar contra Magistrates of Elgin and though this Act bears That they shall detain all such Prisoners upon their own Expence yet this is only extended to Prisoners taken ob vindictam publicam but it is indulg'd to the Tolbooth of Edinburgh That they shall not be oblig'd to receive any who are offered to Prison by privat parties till the presenters find Caution to aliment them This Act appoints those Prisons to be made for sure Imprisoning Keeping and detaining of such Prisoners as are presented and therefore the Magistrats cannot let them out either to Church or to go about any of their Affairs hovv important soever though vvith a Keeper since squalor carceris is thus eluded and therefore in such cases the Magistrats must be authorized by a Warrand from the Secret Council or Lords of the Session and that by an Act of Sederunt in anno 1671. and if the Rebel be suffered to escape or go abroad the Magistrats vvill not only be lyable but they vvill get no relief from the Cautioner though they take Assignation to the Debt since tenentur ex proprio delicto and the Cautioner is prejudg'd of his relief by that their Delict January 24. 1668. THis Act is formerly Explain'd in the 1 Act Par. 9 Ja. 6. THis Act is formerly Explain'd in the 153 Act Par. 12 Ja. 6. SInce by this Act all Burgesses are to be Stented according to their Rents and holding within Burgh it may be doubted if a Burges have no actual Trade but only Money owing him by persons without the Burgh if he may be Stented according to that Estate since it is no Rent nor holding in Burgh but the answer is that mobilia semper sequuntur personam and therefore he may be Stented according to that Money it may be doubted if Gentlemen who never had any Trade but dwell in the Town very long may be Stented though they be honorary Burgesses only Item If they can Stent for Ministers Stipends Strangers within Burgh who are not at all Burgesses and this Act seems to imply that Inhabitants as well as Burgesses may be Stented according to their Estates within Burgh and that all who have advantage by the Ministry should pay Ministers THere are two ways of Levying Subsidies in Scotland the one is by Taxation which was the old way and which Taxation was uplifted according to the Retour The other is by way of Cess in which the Subsidie is uplifted according to the late Valuations wherein every mans Land Rent was given up as presently possess'd The Subsidie granted by this Act is by way of Taxation and the old way of uplifting Subsidies by Taxations may be fully herein seen and which is very fit to be Read upon that accompt and in which it is evident that the Clergy pay'd the one half including the Erections but in anno 1666. a proposal being made that the Subsidie then offered should be uplifted by way of Cess and not by way of Taxation These ensuing Reasons were represented against that proposal and which I
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
said to be no more when they make but a part of the Parliament of Great-Britain for Scotland cannot be called Britain nor a part of a Parliament cannot be called a Parliament no more than the Commissioners for the North of Scotland can be called the Parliament of Scotland but how our Commissioners could sit in the Parliament of Great-Britain by vertue of their former Commissions I see not and therefore it seems to be both fit and just that the Commissioners of Shires and Burrows should be sent home to their respective Constituents to crave their advice and consent in so weighty and comprehensive an Affair nam quod omnes tangit ab omnibus debet approbari It may be likewise contended that this Great Determination of Uniting both Parliaments requires at least the full assent of the Members of both Parliaments and that though the Parliament had power to alter its own Fundamentals yet if any one dissent the Union of both Parliaments must stop for both in Law and Reason the power of making Laws and the Right to retain or resign Priviledges are two different things the one is a Legislative Power which is regulated by plurality of Voices the other is founded upon Dominion or Property and is not subject to Suffrage no more than other Properties are for as every Member has Right so his Right cannot be taken away from him without his own consent though all these who are in the Society with him should renounce what is theirs in re pari melior est conditio prohibentis in re communi nemo dominorum jure quicquam sacere potest invito altero L. Sabinus ait 28. ff com divid thus if the Members of a Society were by Law free from Impositions though all the Society save one should submit to pay yet plurality would not in that case oblige the Refuser and if all who had interest in a Commonty should condescend to Resign their Right therein in favours of another yet if one were refractory that one would not be prejudged by the consent of all the remanent partners whence it seems consequential that as the Parliament cannot Debar any Member from sitting in Parliament so that if one Member by advice from his Constituents oppose the Union of Parliaments it could not be carry'd by plurality for what ever Reason militats why plurality should not oversway in the one does likewise militat in the other and if the right of every Member is given as the cause why he cannot be debar'd from sitting Why should not the same Right empower him much more to stop the total alteration of the Parliament even as a man cannot be Debar'd from using a Commonty It will likewise operat that the Commonty cannot be altered in its Nature without his consent and the Right of these who sit in Parliament is as much prejudg'd by extinguishing the being of a Parliament as by debarring them from sitting or Voicing in it Our Shires and Burghs have Right to be Represented in no Parliament save that of Scotland and therefore if the Commissioners had power to overturn the being of the Parliament of Scotland they could have debar'd our Shires and Burghs from being Re-presented in the Parliament of Great-Britain seing they could pretend no Right to sit there so that it seems either plurality of Voices may exclude any particular Member and may retrinch that Member Or else by the same Reason no plurality can establish an Vnion of both Parliaments and if our Parliament could by plurality of Voices overturn the Fundamentals and destroy the very being of our Parliament How shall it be possible to secure our Parliament when it is joyn'd in with the Parliament of England into one Parliament of Great-Britain so as that the Parliament of Great-Britain may not by the plurality of Voices likewise overturn any Fundamentals that shall be condescended on but that the Fundamental Constitution and priviledges of Parliament are not subject to Suffrage and cannot be abrogated nor innovated without the universal consent of all its Members and Commissioners may be clear likewise from many Instances for it is most certain that the Parliament as now Constitute could not by any Statute Ordain that there should be no more Parliaments or resign over their Parliamentary power in the hands of the Council nor could they Transmit the Power they possess in favours of their own Heirs or exclude any of the Three Estates and sure if Fundamentals be not subject to plurality of Voices the power of Uniting of Parliaments and suppressing of Monarchies is not for these comprehend all other Priviledges and Fundamentals and if the priviledges of one of the Three Estates cannot be altered by plurality I see not how the priviledges of all the Three can be and we have seen Parliaments in the last age do such irregular things that the succeeding Parliaments have been forc'd not only to abrogat their Laws but even to find that they had exceeded their power which implyes that it was not arbitrary King IAMES the sixth Parl. 18. THis Act Declares His Majesties Royal Prerogative by way of acknowledgement without any new Concession in these words They all in a voluntar humble faithful and united heart acknowledge His Majesties Soveraign Authority Princely Power Royal Prerogative and priviledge of His Crown over all Estates Persons and Causes and Confirms to His Majesty His Imperial Power and whatever Soveraign Authority any of His Predecessors had and Casses annuls and abrogates all any way done to the prejudice of His Authority any manner oâ— way so that it seems that all former Acts of Parliament lessening any way the Royal Power are hereby abrogated By this Act likewise the Estates of Parliament promise to maintain defend and advance the Life Honour Soveraign Authority Prerogative Royal and priviledge of His Crown with their Lives Lands and Goods to the outmost of their power But because this Act was too general therefore by the 2 3 4 and 5. Acts of the first Parliament Charles the Second His Majesties Royal Prerogatives in the choice of the Officers of State Counsellours and Judges in Calling and Dissolving of Parliaments and making of Laws in making of Peace and War and ordering the Militia c. are expresly acknowledged and Ratified and by the second Act of the second Session of the first Parliament All endeavours to restrain His Royal Person to Depose or Suspend Him and all endeavours tending thereto are Declared Treasonable and all stirring up of the People to the hatred or disâ—ike of His Royal Prerogative are punishable in manner therein mentioned and by the 27 Act of the 3 Sess. of the 1 Par. Ch. 2. His Majesty is Declared by His Prerogative Royal To have the only Power of Ordering all Trade with Forraigners Nota This is the first Act that mentions the word Prerogative which was formerly call'd the Priviledge of the Crown and therefore this Act mentions both the Old and the New Words by asserting
Prelats that is to say their Council of which the Dean or Decanus was the Head under the Bishop By the Civil Law decanus erat ille qui defunctorum lectos seu feretrum gestabant vid. Tit. de Decanis lib. 12. Cod. tit 17. But by the Canon Law Decanus comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the Dean proceeded over ten Canons or Prebends and their decani especially in the Cathedral Churches succeeded in place of the Archipresbyter and therefore these two are taken in the same sense cap. ad haec 7. de off Archid vide Bengeum de beneficiis pag. 29. And with us Deans are Created by the King He being only Patron of that Benefice The Chapter is call'd Capitulum by the Canon Law because it is the little or inferiour Head of the Diocy and is defined to be Clericorum congregatio sub uno Decano in Ecclesia Cathedrali A Bishop in our Law nor no other Dignifi'd Person who hath a Convent can alienat without the consent of their Convent or the greatest part of them beside himself who is the Disponer in which number Minors nor absents are not counted March 14. 1622. If one of the Chapter have two Benefices he will have two Votes and albeit the Law Ordains them to be capitulariter congregati yet now sufficiunt eorum suffragia licet emendicata vel sevaratim impetrata which is not only by meer custom as Craig observes but by Law likewise Act 3 Par. 18. Ja. 6. and thus an Instrument of Resignation of a Benefice was found sufficient though some of the Convent subscriv'd not before the Date of the Instrument November 16. 1624. Providing alwise that none of their subscriptions be obtained after the Death of the Granter for then they cannot be said to consent seing they are not all alive together from which it follows likewise that the alienation is not valid if any of the Convent or Subscrivers be Dead before the rest subscrive where many subscrive separatly the consent of the last is drawn back to the consent of the first Craig pag. 91. and albeit Craig be clear that the consent of the Chapter is requisite tam in renovatione quam in alienatione feudi yet by this Act it is for the Vassals case ordain'd that the Bishops or Chapters consent is not necessary to the receiving of Vassals upon Composition or otherwise but that the direct Superiour may receive them by himself Nota By that part of the Act it seems that though regulariter Superiours are not bound to receive singular Successours yet Kirk-men being Superiours are If there be no Chapter or Convent the appending of the Seal of the Convent with the Kings Confirmation is sufficient Craig Ibid. The Arch-bishop of Saint-andrews had of old the Conventual Brethren of the Priory of Saint-andrews to be his Chapter but by the 8 Act Par. 19 Ja. 6. power is given him that Priory being supprest to choose seven to be his Convent and ordains that the appending of the common Seal of the Convent shall be sufficient to declare their consent without their Subscription which Act is innovat by this 2 Act Wherein a Convent is particularly set down to him but nothing spoke of the Seal and therefore the appending of the Seal is yet sufficient for this Chapter comes only in place of the seven prescrived by the first Act and the Subscriptions of these seven were not necessary ergo neither is the subscription of this Chapter As the consent of the Chapter or most part thereof is requisite to an alienation made by the Titular as the Bishop Abbot c. so reciprocally the consent of the Titular and most part of the Chapter is requisite to the perfiting of all Rights made by any Member of the said Chapter of his particular Benefices or of any Benefice belonging to them in communi which rule holds in all Conventual Benefices except that of the Arch-bishop of Saint-andrews for it has been decided that by this Act any Member of that Chapter therein Entered may set Tacks c. without consent of the Arch-bishop of Saint-andrews Novemb. 19. 1624. where these Conventual Benefices have Patrons the consent of the Patron is likewise required Craig Nota That the Bishop of Edinburgh is by the Erection of that See in anno 1633. made Chancellour and Vicar to the Arch-bishop of Saint-andrews and so is the first Ordinary or single Bishop which priviledges belong'd to the See of Dunkeld and so the Bishop of Caithness has not now any suffrage in that Election because they must be but eight in this Act. AFter the Arch-bishops and Bishops were restor'd the thirds of Benefices out of which Ministers were provided formerly came to be an unfit and unproportional Stock for providing the whole Ministry of the Kingdom and therefore by this Act there is a Commission granted for planting and providing of Churches and this is the first of the many Commissions which were granted by Parliaments afterwards to this effect and their Decreets are to this day call'd Decreets of Plaâ— in our practice Observ. 1. The lowest Stipend allow'd by the Parliament here is five Chalders of Victual or five hundred merks but by the 19 Act Par. 1 Ch. 1. The lowest Stipend is appointed to be eight hundred merks or eight Chalders of Victual and the Decreet whereby this is appointed is call'd The Decreet of Modification Whereas if the Stipend be divided and proportioned as well as modifi'd the Decreet is call'd a Decreet of Locality and this proportion is so far observ'd that the Victual so modifi'd was found by the Lords to be payable according to the measure of the Shire where the Paroch was and not according to the measure of Linlithgow where the modifi'd Stipend would not have come the length of the quantity allow'd by the Act of Parliament according to the measure of Linlithgow June 27. 1667. Minister of Dalrymple contra the Earl of Cassils Observ. 2. By this Act power is granted by the Parliament to the Commissioners to unite or dis-unite Kirks which Union was likewise allow'd by the Canon Law and is defin'd to be duorum vel plurium benefiâ—iorum cum causae cognitione a superiore ordinarâ—o in perpetuum Canonice sacta connexio cap. exposuisti de Praeb So that of old the Ordinary only could unite Benefices but now the King as having come in place of the Pope grants this Commission to unite with the consent of Parliament but the Bishop who is Ordinary and the Patrons if any be interested must be likewise call'd and the 5 Act Par. 23 Ja. 6. Ordains that all persons interested in the Union be consenting By which I understand the Ordinary the Patron the Incumbent and the Parochioners and this Act appoints that if there be moe Patrons they shall present alternis vicibus and because it may be doubted who should be the first Presenter in that case it is fit to know that the lesser
seq THis Act is fully Explain'd in Act 200. Parl. 14. Ja. 6. THis Act is fully Explain'd in the 114 Act Par. 11 Ja. 6. THis Act Discharging that a Peck should be taken to the Boll though with consent of Parties was made to prevent extortion upon the same Ground that Usury is Discharg'd but yet it not having been observ'd for a long time the Council stopt a Gift that was granted thereof as to bygones till His Majesty should be acquainted THis Act concerning Dispositions made by Bankrupts is fully Explained by me in a Treatise a-part already Printed upon this single Act. THis Act Regulating the Prices of all Writs and Seals is for the most part either in Desuetude or is innovated by the 16 Act Sess. 3 Par. 2 Ch. 2. Wherein new Regulations are set down and from this Act it is observable that the Secret Council may make prices in all such Cases for this Act Ratifies only their Act and though the Act Ratifi'd bear this Act to have been made by the Secret Council and Session yet the Act of Parliament which does Ratifie that Act Ratifies it only as an Act of Privy Council and so insinuats that the Privy Council hath power to Regulate both the price of Session and Exchequer These Regulations of Prices in our Law are like to the notitiâ—â— mentioned Cod. de ann cap. lib. 1. Tit. 52. quae singulis offiâ—iis delegabantur quibus continebatur quantum singuli pro dignitate â—fficio pro libellis mandatis codicillis accipiendis vel insinuandis pendere quantum pro annona capite accipere deberent FOr understanding this Act it is fit to know that Annualrents are only due by our Law either by Statute or Paction so that regularly they are not due otherwise They are due by Statute either by the Act of Sederunt 1613. appointing That where Cautioners are distressed and forced to pay they shall have Annualrent from the Term that they pay though the Bond wherein they are Cautioners bear none yet this is in effect ex pacto because it arises from the Clause of Relief this being a Damnage incur'd by them or by this Act of Parliament by which Annualrents are due after the Party is Denunc'd though the Bond whereupon he is Denunc'd bear no Annualrent upon the same ground that in the Civil Law usurae debentur ex mora in bonae fidei contractibus l. 32. § 2. ss de usuris So that as by the Civil Law they were due ex pacto vel ex mora they are due only with us ex pacto vel ex lege which is the same thing almost since lex in hoc casu apud nos sundatur in mora for though there may be mora sine usuris yet by this Act there are never usurae sine mora But this Denunciation must be at the Head Burgh of the Shire where the Debitor lives Denunciations at the Mercat Cross of Edinburgh being a Warrand only for Caption but not inferring Annualrent which may seem strange since Annualrents are by this Act infer'd after Denunciation because of the Debitors negligence but the reason of the Decision is that the Lords thought the Debitors did not know exactly when they were Denunc'd at Edinburgh but it has been found that the Debitor is lyable in Annualrent after he is Denunced at the Head Burgh of the Shire though the Horning be not Registrated since the Act only appointed Denunciation and yet there can be no Caption till the Horning and Executions be Registrated and thus it is clear that Caption and Payment of Annualrents are very different effects of a Horning since sometimes Caption will follow where Annualrent cannot and sometimes Annualrent will follow where Caption cannot February 11. 1673. Smith contra Wauch Annualrents are sometimes due without either express Law or Paction because of the tacite and presumable consent of the Party as if a Party pay Annualrent for one Term or if he promise to pay bygone Annualrents though he promise not for the future yet January 13. 1669. Hume contra Seaton The Lords found that he ought to pay constantly Annualrent for the future though the obligation did bear no Annualrent or from the Principles of Natural Equity as in the price of Lands which pay Annualrent though none be pactioned because the Buyer has the Rents of the Lands Or in Tochers because they are given ad sustinenda onera matrimonii and the Husband intertains the Wife Or where the sum is ordain'd to bear Annualrent after her Marriage to whom it is left quo casu before Marriage the Lords found that Annualrent was due since matrimonia debent esse libera but yet regulariter annualrent is not due in cases alimentary And a Father providing his Daughter to a Sum for her Portion without mentioning any thing of annualrent the Lords would not decern annualrent though annualrent was only said to be omitted there through the ignorance of the Notar but because of the presum'd will of the Father they modifi'd the aliment equal to the annualrent But so unfavourable are usurae usurarum call'd usurae judaicae by the Doctors of the Civil Law that an obligation to pay annualrent for annualrent if it were not pay'd at the Term was not sustain'd though it was alleadg'd that here pactum mora were joyn'd with Equity the Woman to whom they were due being a poor Widow who behov'd to borrow Money to live upon if her annualrent were not pay'd and to pay annualrent for that Money which she so borrow'd January 26. 1669. Lady Braid contra the Earl of Kinghorn It is fit to know that the Statute 2. Robert 3. appointing annualrents not to run against Minors is now in Desuetude though it would seem reasonable that their mora should not prejudge them but Minors Money do still bear annualrent by our Law The King uses to pay Annualrents for the ballance of his accounts de facto but is not oblig'd thereto by Law THis Act is Explain'd Crim. pract tit Falshood NOta That Usury is excepted from this Commission to uplift Money due by penal Statutes c. Ergo Acts against Usury seem penal Statutes It is observable that though by this Act it be Declar'd That Commissions for penal Statutes be not put to Execution till they be authoriz'd by the Lords of Secret Council yet this is too much in Desuetude but the Lords of Secret Council do use to Discharge them till they acquaint the King THe Laws of the twelve Tables contain'd several Sumptuary Laws though there was then little Luxury and particularly at Burials and Saint Chrisostom condemns feign'd Mourners whom we call Saulies because they pray for the Souls of the Dead Vid. 14 Act Par. 3 Ch. 2. THis Act appointing Houses in Edinburgh to be Sklated and Letters of Horning to be direct to that effect shews that the Parliament may Dispose upon privat Estates ob bonum
to any Church-lands and all Infestments of Erections of Abbacies Prelacies c. Spirituality or Temporality and a Reduction of these Rights was thereupon rais'd Notwithstanding that by the 2 Act Par. 18 Ja. 6. His Majesty to remove all mistrust does for Him and His Successors perpetually Confirm all Erections Confirmations Patronages of the saids whole Benefices and promises in verbo principis never to quarrel the same But what was done afterwards being voluntar and upon the submission of all parties concern'd did not at all impinge upon the former Statute It is likewise declar'd in the end of this Act that the possession of any thing hereby Revocked shall not prejudge His Majesty and therefore it may be urg'd that fourty years possession of any Lands or others falling under this Revocation would not debar the King by Prescription and yet it was found That if the King be Denuded in favours of a Donatar This Revocation does not interrupt Prescription without a Reduction THis Act is wrong plac'd for it should be after the 14 Act for the Superiorities of Kirk-lands being by the said 14 Act Declared to belong to the King The saids Superiorities are by this Act annex'd to the Crown but they could not have been annex'd to the Crown till they were first declar'd to belong to it THere is here a Dissolution of the Annexation made in the former Act in which it is Declared That this Dissolution shall not warrand the Alienation of His Majesties Castles Woods Parks Meadows and Offices which is conform to the 235 Act Par. 15 Ja. 6. Whereby all Dispositions of these are declar'd null and though the Lomonts of Falkland be Dissolv'd particularly by the 19 Act Par. 18 Ja. 6. Yet it is Declar'd particularly in this Act that they shall remain inseparably with the Crown BEcause by the Act of Prescription 1617. It is appointed that such as might be prejudg'd by that Prescription of fourty years run before that Act 1617. might intent Actions within thirteen years after the Date of that Act and because the King could not intent particular Summons against every person whose Rights he might challenge Therefore it is allow'd by this Act that His Majesty might interrupt the said Prescription by open Proclamation at the Mercat Cross of Edinburgh and other particular Mercat Crosses where the Lands lye and at the Mercat Cross of Edinburgh Peer and Shore of Leith against such as are out of the Kingdom But least this interruption might have too much alarm'd the Subjects It is upon the Kings own Concession declar'd that the said interruption should be Restricâ—'d to the annulling of Rights of the annext Property of the Crown and the un-annex'd whereof account hath been made in the Exchequer and of the principality unlawfully Dispon'd by His Majesties Predecessors against the Laws and Acts then standing and to the annulling of Erections and other Dispositions of whatsoever Lands Tiends Patronages and Benefices formerly belonging to the Kirk and since annex'd to the Crown and of any other Lands or Patronages which should any way justly belong to the Kirk or Crown and of whatsoever Lands and Benefices mortifi'd and devouted to pious Uses and of Regalities and Heretable Offices and of the change of holdings from the ancient holding of Ward and Relief to blench and Taxt Ward since the year of God 1540. years The Earl of Southesk having Right to the Muire of Montromant as Heretable Forrester intented a Declarator against the adjacent Heretors concluding that they should be debar'd from Pasturing therein Against which it being alleadg'd 1. That they had prescriv'd the right of Pasturage It was Reply'd that the Prescription was interrupted by this Act. To which it being Duply'd that this edictal Interruption was introduc'd without a Warrant the Act 1617. having allow'd thirteen years for the Subjects to interrupt without any Reservation in favours of the King 2. This is neither His Majesties annext Property nor is it a part of that un-annext Property whereof the Ferms or Feu-duties have been counted for in Exchequer since the year 1455. and so the interruption which is restricted to these reaches not to this case 3. This Pasturage is but a Servitude and this Interruption extends only to Alienations but not to Servitudes or things of so small moment To which it was Triply'd that as to the first there was no necessity that there should have been a Reservation in favours of the King by the Act 1617. since the King not being mention'd in the Act which was the Rule There was no necessity to reserve His Right by way of exception but this Act of Parliament has supply'd that want though there had been an omission in that Act. To the second it was Triply'd That the interruption 1633. being to secure His Majesty against Prescriptions upon the Act 1617. It was just that it should extend as far as the Act 1617. And these words Whereof the Ferms have been Compted for in Exchequer are only Demonstrative and not Taxative the compting in Exchequer being only a publick Evidence of His Majesties Right and therefore where there were other publick Evidences of His Majesties Right as strong as this His Majesties interruption by this Act behov'd to take place else it should not extend to secure His Majesty as to any thing for which there were blench or Ward-holdings This Act mentioning only Feu-ferms it should not extend to His Majesties Castles or other things for which he gets no advantage 3. This has been compted for in so far as the Sheriff compts for the Blench-duties and Southesk payes Blench-duties for his Forrest 4. By an Act of Parliament in King Davids time 1357. and another 1367. All the Kings Forrestries are ordain'd not to be Dispon'd without consent of Parliament and so are to be lookt upon as a part of the annext Property To the third it was Duply'd That this Act as the Act 1617. was to be extended to Prescriptions and there were things of less consequence than Servitudes secur'd against by this Act such as change of holdings Patronages c. This case is not decided The reason why this Act restricts it self in this Clause to the year 1455. is because in that year was the first Act for annexing any Property to the Crown viz. The 41 Act Par. 11 Ja. 2. It being alleadg'd upon this Act that the King behov'd to produce the Letters of Publication at the several Mercat Crosses and the Executions thereof else His Majesty could not have the benefite of the Interruption It was answered That the Act of Sederunt of the Session did indeed appoint Letters of Publication but two years after that Act this Act of Parliament was made allowing the King this Interruption wherein the Parliament did certainly consider the Publication as having preceeded statuit lex hoc casu super praesumpto and so the Letters of Publication and Extentions need not now be produc'd Which Answer the Lords found Relevant
the old Infestments without any Clause obliging the King to make satisfaction Ergo The King is not oblig'd 2. The Parliament having had that Reservation of making satisfaction under their view in the case of the Vassals they had certainly renew'd it in the immediat subsequent case of the property if they had not expresly design'd the contrary 3. By the Charters granted under the Great Seal to the saids Lords of Erection since the Surrender and this Act of Parliament they are expresly by different reddendo's made lyable both to the general blench Duty due for the whole Lands of the Erection both Property and Superiority and for the Feu-dutie of their own proper Lands Ergo This Feu-duty of their proper Lands is due by their Charter which is a Feudal Contract and that without any Reservation of payment 4. The blench-duty of the Erection and this Feu-duty is due upon different accounts Ergo The payment of the Blench-duty is not sufficient for the Blench-duty is due by the Lords of Erection for the interest that they have in the Vassals Lands and for the Tiends and for the property that was Feu'd the time of the Erection Whereas this Feu-duty is due only for their own proper Lands Feu'd out before the Erection And to the contrary Objections it may be answered That Acts of Parliament are not to be extended de casu in casum especially in such favourable Cases as this which tends most ungrately to take from the King a part of that which himself gave freely 2. There was very good Reason why they should be lyable to pay the Feu-duties of their proper Lands without any satisfaction because the King having rais'd a Reduction of all the saids Erections The Lords of Erection did Redeem themselves from the hazard of this Plea by this surrender and the reason why the quality of satisfaction was adjected as to the Vassals and not as to the property was because the Lords of Erection had no interest in their Vassals Lands but the Feu-duties and so it was fit they should get a satisfaction for these though the satisfaction was made easie for the King But as to their proper Lands it was just because of the great advantage they had by them and that they were by this Act secur'd in the property of them It was just that the King should get the Feu-duties without any acknowledgement and without this the King had got nothing for securing them when he might have with Success quarrell'd their Rights And the pretence of the Vassals not having pay'd these Feu-duties for their proper Lands formerly is of no import since the negligence of the Kings Officers cannot prejudge him and the Times were Rebellious since the year 1633. Nor is this true though it were Relevant for the Earls of Roxburgh and others have pay'd Because these Arguments and Difficulties gave some Colour to the Lords of Erection to think that they were not lyable therefore they us'd to get ease as to bygones but they are made lyable still for the future in the payment of these Feu-duties The Superiorities belonging to Bishops and their Chapters is reserv'd to secure them against the Annexation 1597. and their Superiorities are likewise reserv'd from the Annexation mention'd in the tenth Act of this Parliament Some think it fit for His Majesties Interest that these Superiorities should be Redeem'd for he might thereby have a great and sure Revenue and a great dependence of Vassals and it seems also fit for the interest of the poor Vassals HIs Majesty having oblig'd so far the Heretors as to get them the leading of their own Teinds It was thought fit by this Act to give him some small interest in the Teinds viz. Out of every Teind-boll of the best Wheat ten shilling of the best Tiend-bear eight shilling of the Teind-meal Oats Pease and Ry six shilling and where the Oats will not render half Meal three shilling Where the Victual was of inferiour goodness power is granted to the Commissioners to modifie accordingly and in order thereto they did proportion the price on the several Shires which stands as a rule in the payment of Annuity to this day Though it be said in this Act that the Annuities shall be pay'd out of all Teinds except the Teinds pay'd to Bishops Ministers Colledges Hospitals and other pious uses yet it was thought January 3 1632. Renton contra Ker. Though there was no formal Decision that decimae inclusae are lyable in payment of no Annuity for they did not belong to the Titular nor needed the Heretor buy them in contemplation of which Liberty this Annuity is granted and in effect they are likewise lookt upon as incorporat with the Stock and participating of its Nature This Annuity was found to be made debitum fundi by this Act of Parliament and so to oblige all singular Successors because the Act says generally that the King shall have Right to all the Annuity bypast and to come though it be not expresly declared that singular Successors shall be obliged as our Law ordinarly uses to do when it resolves to make any thing debitum fundi It is Declar'd by this Act That Annuity shall not be annex'd to the Crown whereby the Crown got a great prejudice since thereby the King would have oblig'd every man to a Dependance upon him whereas Commissions having been granted to sell to every man his own Annuity the King made no advantage thereby THis Act is formerly Explain'd in Act 71 Par. 14 Ja. 2. BY this Act it is Declar'd That every man shall have the leading of his own Teind the Teinds being first valued and all Teinds in Scotland may be valu'd except 1. Where the Lands are Feu'd cumdecimis inclusis and Confirm'd before the year 1589. as was found January 21. 1631 2. Teinds belonging to Ecclesiastick Persons and whereof they were in possession the time of the Submission as is clear by the foresaid Determination upon their Submission conform to which by the 9 Act 2 Sess. 1 Par. Ch. 2. All Valuations led against the Bishops or Benefic'd Persons being Ministers since the year 1637. of any Teinds Parsonage and Viccarage wherein they were in possession by Leading or drawing of Rental-bolls are declar'd null but by a Letter the 13. of May 1634. It is declar'd that where such Teinds are set by Bishops or Benefic'd persons to Tacks-men that eo casu the Heretors shall have the buying of their own Teinds but prejudice to the Bishop c. to enjoy the same after expiration of the Tacks as they were accustomed the benefic'd persons always having the prerogative of buying if he pleas'd and this to be extended to the Heretors and Tacks-man of the Teinds of Laick-patrons And conform to this the Lords of the Commission decided February 1679. Hamilton contra Earl of Roxburgh though it was there alleadg'd that this would prejudge Church-men since it would discourage Laicks to take Tacks from them
Parliament was Adjourned by Proclamation was elapsed a new Parliament behoved to be called Or if the current Parliament ought to be Adjourned by a new Proclamation notwithstanding the Day was elaps'd and it was found that it might be Adjourned since the power of Calling and Dissolving Parliaments is the Kings Prerogative and a Letter to this purpose from the King is Registrated in the Council Books in July 1683. King CHARLES 2. Parliament 1. Session 2. EPiscopacy having been Restor'd in anno 1606. Bishops were by the Rebellious Parliaments abolish'd and therefore are by this Act Restor'd to their undoubted Priviledge in Parliament that is to say to be a third Estate their Function Dignities and Estates but before this Act of Parliament the Secret Council by their Act in June 1662. Discharg'd any Person to meddle with their Estates or Revenues in Obedience to a Letter directed by His Majesty which gave the first rise both to that Act of Council and this Act of Parliament By the first Act Par. 12. Ja. 6. King James had permitted the Church to be Govern'd by General-assemblies Synods and Presbytries Which Act was not expresly abrogated by the 2 Act Par. 18. Ja. 6. and therefore it is by this Act expresly abrogated They are also Restor'd to their Commissariots and Quots of Testaments but the present Commissars Rights are reserv'd and albeit they be Restored to the Superiorities Yet Vassals having Entered by or having pay'd to the Superiors for the Interval are secur'd BY this Act taking up Arms though in Defence of Religion is Declar'd Treason and conform to this Clause all going to Field-conventicles in Arms was Declar'd Treasonable though it was alleadg'd that this was not a Rising in Arms since every man went without knowing of his Neighbour for the Council and Justices thought that at this rate a multitude of Arm'd men might easily assemble and the Levying War or taking up Arms being impersonally Discharg'd it reaches every single man and though there were only one single man in Arms yet he would be guilty of Treason especially after that Proclamation for he knew not but others might be there versabatur in illicito By this Act also all accession to the Suspending His Majesty or His Successors or to the Restraining their Persons or inviting Forraigners to Invade their Dominions is declar'd Treason There is one Branch of this Clause which may seem hard but was necessary viz. Or put limitations upon their due Obedience for the former age and this having invented new Treasons in asserting they would own the King in as far as He would keep the Covenant or own Jesus Christ But reserving still to themselves to judge how far the King did so they did by a necessary consequence conclude that they were no further oblig'd than they pleas'd and so made themselves in effect Judges above the King than both which nothing can be more Treasonable And I remember that Sir Francis Bacon in his History of King Henry 7. Tells us That the Judges of England found Sir Robert Clifford guilty of Treason because he said that if he knew Perkin Werbeck were King Edward 's Son he would never bear Arms against him though the Words were alleadg'd to be only conditional for they thought it a dangerous thing to admit ands and ifs to qualifie words of Treason whereby any man might express his malice and blanch his danger The denying His Majesties Supremacy as it was then Established is declar'd punishable by in-capacity and such other punishment as is thereto due by Law But it had been fitter to Determine that punishment and from the words as it is now Establisht It may be doubted whether the Impugning the Supremacy absolutely be punishable by this Act since the Supremacy is extended by a posterior Act viz. The 1 Act 2 Par. Ch. 2. But that Act being only an Explication of this all such as Impugn the Kings Supremacy absolutely are punishable From these words also That they shall be punishable by such other pains as are due by Law in such cases It may be doubted what punishment is due to such as Impugn the Kings Supremacy besides incapacity and it seems they may be pannal'd upon the 129 and 130 Acts 8 Par. Ja. 6. It has been urg'd That all speaking against the Kings Prerogative is only punishable by incapacity and arbitrary punishments because this Clause sayes That if they Speak Print c. against the Kings Supremacy in Causes Ecclesiastick or to justifie any of the actings or practices abovementioned they shall be so punished But so it is that all rising in Arms to Depose the King c. are above-mentioned Ergo say they The speaking or Preaching in Defence of these is only to be so punished and they urge this from the Principles of Reason and the practice of other Nations and that excellent Law si quis imperatori maledixerit lib 9. tit 7. C. but this were a most absur'd Gloss For certainly if this Objection prov'd any thing it would prove that no words could infer Treason which is expresly contrary to the very Act whereby all these Positions are Declar'd Treason and consequently all words whatsoever which express these Positions are punishable as â—reason and it is fit to know that it is not that very formula or words which are condemn'd but these Positions are condemn'd for else it were easie to make the Act elusory and to evade it by using other words than the words here set down and the Analysis of that part of the Act is that first the Positions are Declar'd Treasonable 2. The speaking against the Kings Supremacy and the Ecclesiastical Government as now Establish'd c. is forbidden 3. The Plotting or Contriving any thing against the King consequentially to these Positions is Declar'd punishable by Forefaulture 4. That the speaking c. against the Supremacy and the Establish'd Government of the Church is to be punish'd arbitrarly and the words Or to justifie any of the Deeds declar'd againstly this present Act are to be restricted to words relative to the Supremacy c. mention'd in that Clause only It is also observable That the Impugning the Government by Bishops or the Kings Supremacy are only punishable if they be pursu'd within eight Moneths and Sentenc'd within four Moneths thereafter and are only punishable by this Act if it was done by malicious and advis'd Speaking and therefore it appears that such as were Drunk when they spoke these words are not punishable by this Act nor such as are reputed fatuus and Fools though they be not declared Idiots or Furious and yet it seems that all Writing Preaching and Prayers and such malicious Expressions to stir up the people to a dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastick are punishable indefinitly and that because either the Law presumes they are premeditated or because of the great danger arising therefrom and therefore it will have them punish'd as such
for the Act runs disjunctively Writing Preaching Praying or advis'd and malicious Speaking THis is the first Act whereby Conventicles are Discharg'd and in it they are call'd Nurseries of Sedition But yet there is no penal Sanction against them in this Act but by the 2 Act of the 3 Sess. of this Parliament they are Declar'd to be fineable in a fourth part of the yearly Rent every Burgess being to lose the priviledge of his Burges-ship and Merchandizing beside the payment of a fourth part of his Moveables Observ. 1. I see by this Act no Fine impos'd upon such as live within Burgh and are not Burgesses Observ. 2. By this Act it is requir'd That before with-drawers from publick Ordinances be punish'd they must be first admonisht by the Minister before two Witnesses which is not observ'd Observ. 3. The Council are empower'd by this Act to impose such arbitrary punishment as they please upon With-drawers But it is thought that such general powers cannot extend to Life nor Limb. Observ. 4. That these Acts are only to last for three years and are by the 5 Act of the 2 Sess. of the next Parliament continu'd for other three years and further if His Majesty pleases so that it is in His Majesties Power to Discharge these Acts when He pleases By the Laws of the twelve Tables privat and clandestine Meetings under pretext of Religion were Discharg'd and the word Conventiculâ— is oft mention'd in the Civil Law l. 1. 3. ff de collegiis illicitis Plin. lib. 10. Complains of them as the Pest of the Empire In these Words Haec tempora serio docent magna monstra talibus parentibus alii nec quicquam in tota re-publica magis esse perniâ—iosum vid. de crimine conventicula Farin quaest 113. inspect 4. There is a Proclamation extant in the Registers of Council in King James the sixths Reign Declaring all privat Convocations without the King's consent and particularly Conventicles which is the first time I see them nam'd in our Law to be punishable as Treason For collegia conventicula permittere valde quidem est regale Argen art 56. num 37. THis Act appoints the Declaration thereto subjoyn'd acknowledging the League and Covenant to have been unlawfully impos'd and not to have been Obligator c. To be taken by all persons in publick Trust or Office under His Majesty and which seems to be very strange all Members of the Colledge of Justice are declar'd to fall under this general and such as offer to exerce before they take the Declaration are Declared to be punishable as Vsurpers of His Majesties Authority and this punishment is de facto arbitrary and is impos'd by the Privy Council This Act is extended to Baillies of Regality by the second Act of the 3 Sess. of this Parliament and by a Decision of the Council both these Acts are extended to Baillies in Burghs of Barony though they be exprest in neither of these Acts and that because of these words in this Act and all who enjoy any other publick Charge Office or Trust within the Kingdom which is as all general Clauses ought to be extended to particulars that are of the same nature with these to which the general Clause is subjoyn'd and there was as great reason to extend this to Baillies of Burghs of Barony as to Baillies of Burghs of Regality By that Act also such as refuse to accept Offices within Burgh are punishable by losing their Burgesship and they may be also compell'd to accept though the Act mentions not this expresly for by the Common Law cives cogi possunt ad suscipiendum munera reipublicae l. ss de decurio But with us they cannot be oblig'd to continue longer than a year January 2. 1668. Wilson contra Magistrats of Queensferry Though this Act of Parliament obliges all who are Privy Counsellors c. to take the Oath of Allegiance and this Declaration Yet His Majesty by a Letter to the Council in November 1679. Declares that the lawful Sons and Brothers of the present King are oblig'd to take no Oathes because of their presumed Fidelity and that Loyalty is their Interest as well as Duty and upon this Ground it seems to be that His Royal Higâ—ness had not formerly taken these Oaths as Admiral We see likewise that both the Sons and Brothers of Kings are Serv'd not as Subjects but as the King Himself and though they be Dukes or Earls yet they take not place as other Subjects but as the Sons and Brothers of the Royal Family and thus the Sons of Kings were call'd adminicula augusti subsidia dominationis and in St. Matthew St. Peter affirms that the Sons of Kings are exempt from Tribâ—t nor are they in France ever Subjected to any corporal punishment or put to Death vid. Le Bret. Tit. des enfans freres du Roy leur Praerogatives And they are exempted by the Parliament 1681. from taking the Test. THis excellent Act does appoint all Sheriffs and Justices of Peace to assist such as are Robbed or Opprest in taking back their Goods immediatly upon intimation and to restore them within fifteen days or otherwise to be lyable but the word immediatly does restrict the Act so as that Sheriffs are not thereby empowered after a long interval to bring back Goods or make such Intimations or raise the people for concurrence and therefore the Gentlemen of Caithness were found lyable in a Spuilzie for Robbing and away taking an Heirship out of Strathnaver though they alleadg'd that they were Convocated and Commanded by the Earl Caithness so to do he being Sheriff and Justice General and they conceiv'd that they might have been punishable if they had disobey'd which Defence was Repell'd because though that Convocation was since this Act yet so long a time having interveen'd the Sheriff could only have proceeded via ordinaria It may be doubted from this Act whether when any man complains of Oppression as that a Robber or Neighbour sits violently down upon his Land The Sheriff and Countrey are not oblig'd to concur by this Act since the Act seems to be restricted to the way of taking of Goods though it speaks generally of oppression and I think they are lyable in the one case as well as in the other and this case being a permanent Act is more easily redress'd By this Act likewise the Heretors Wodsetters and Feuars within the Paroch where the Goods are found to have been Disposed or sparpelled are declar'd lyable for the value of the Goods but from the context of the Act it is clear that they are only lyable subsidiarly in case the Goods cannot be otherwise recover'd The words Wodsetters and Feuars needed not to have been subjoyn'd to Heretors for both these are Heretors But it seems to have been more necessary to have added Liferenters since it was just that men who are Liferenters should be lyable for a Father may put his Son who is minor
in Fee and reserve the whole Liferent to himself or a person of quality may Marry one who Liferents the whole Paroch and so this Remedy becomes ineffectual because the Act mentions not Liferenters and in such cases Liferenters are found not to be comprehended November 14. 1679. Minister of Morum contra the Lady Beanstoun By this Act such as Kill Slay Hurt or Mutilat the away-takers or their associats in prosecution of their Goods are Indemnified Observ. That all who kill in such pursuits are not Indemnifi'd but such only whose Goods are taken or who are oblig'd to rise for else such as had privat Grudge might upon that Grudge follow and kill but yet it seems just that if men were desir'd though not oblig'd or if Gentle-men being in the House when Robbed should pursue and kill that they should also be indemnifi'd This Act is generally so well conceiv'd that if it were well prosecuted as that it alone might settle the Highlands THis Revocation seems to be very ill conceiv'd for it had forgot the Lands of the Principality which are still comprehended under all other Revocations and therefore the Parliament thought fit to add this to the Revocation and if this be valid there needs no Revocation under the Kings Hand but an Act of Parliament shall be sufficient without a Revocation It is likewise observable from this Act that the Parliament qualifies the Kings Revocation in sua far at His Majestie Revocks all Deeds done by His Father by Declaring that such only are Revocked as were made against the Laws standing in force before the Year 1637. For otherwise all Deeds done by the late King might have been challeng'd upon that Head of vis metus exprest in this Revocation but however Acts extorted vi majori either from King or Subject are null ipso jure by the Common Law without any special Revocation but Revocations are naturally only extended to Deeds done in Minority but not to Deeds extorted vi majore though this Revocation comprehends both WHen the Clergy submitted their Rights to the King both the Submission and Decreet Arbitral provides that the Bishops and others of the Clergie should enjoy the Fruits and Rents of their Benefices as they were Possessed by them the time of the Submission and therefore by this Act it is Ordain'd That any Valuations of â—einds whereof the Bishops and other Benefic'd Persons were in Possession either by Leading Drawing or Rental-bolls since the year 1637. should be null and yet this Priviledge is meerly personal in favours of Church-men for by a Missive Letter from King Charles the First the 9 of May 1634. It is Declar'd that this Favour shall not be extended to the Tacks-men of Bishops and other Church-men they being Laicks but that during these Tacks the Heretor may lead he finding Caution and accordingly a Valuation was sustain'd to James Hamilton of the Lands of Hetherwick against the Earl of Roxburgh the Bishops Tacks-man of the Tiends of these Lands though it was alleadg'd there that the Submission and Decreet Arbitral having no such quality but the Tiends whereof they were in possession being absolutely reserv'd no posterior Letter could have prejudg'd them and it was a great prejudice to them to have their Tiends valu'd during the Tacks for this could not but lessen the Tack-duty and the Grassoums In this Cause it was likewise doubted what way these Tiends should be valued during the Tack GOvernment belongs to the King and Property to the People Yet since the publick Interest must over-rule the privat all being still preferable to any one Therefore Government does so far Influence Property that all Lawyers are of opinion that the Prince may for a just Cause invert or take away Property res privatorum auferre jus alteri quaesitum tollere and thus we see that the King may make a Cittadale upon any mans Ground paying the just price c. And sometimes he may throw down the Houses of Suburbs when there is either actual War or fear of War in which Towns may be besieg'd so that He is the sole Judge of this justa causa by which Property may be inverted and amongst other just Causes one is the procuring of Peace amongst the Subjects for procuring whereof the Prince may remit both the Civil and Criminal Reparations due to Subjects that are wrong'd during the time of the War Gail lib. 2. observ 56 57. But with us general Indemnities are ordinarly granted in Parliaments wherein certainly all privat interests may be Discharg'd because every privat man is presum'd therein to be represented and this Act of Indemnity is one of the most full and formal that ever we had and in it all such are Indemnifi'd as acted by vertue of the publick pretended authority of these times and though an order be necessary to be produc'd in cases where Orders use to be given yet the benefit of this Indemnity was extended to such as were in Arms though they could prove no Orders since Souldiers use to get no written Orders except it were offered to be proven by their Oaths that they had no Order or that they converted the Goods pursu'd for to their own privat use February 15. 1666. Murask contra Gordon and that any promises made to restore such Goods did not bind after the Act of Indemnity though it was alleadg'd that the promise did Innovat the Debt from a military to an ordinary Debt because the Lords thought that that promise might have been given and emitted upon the Supposition that the Souldier thought himself lyable before the Indemnity and therefore the Lords found him not lyable notwithstanding of the promise except it could have been prov'n that he apply'd the Goods to his own use or that he wanted a warrant Sometimes also the King does by His Proclamation grant general Indemnities as He did in 1666 and 1679. to the Western Rebels but in this case it was controverted whether such as had Robbed privat mens Horses were lyable in Restitution notwithstanding of that Indemnity and it was urg'd that they were Because 1. What ever might be alleadg'd where the King had once acknowledg'd Rebellion to be a pretended Authority speâ—iem belli by exchanging of Prisoners and making of Truces with them c. Yet here there was not even those pretexts and so they were only to be considered as a Company of privat Robbers 2. Even this Act Indemnifies only such as acted by vertue of pretended authority Therefore since even the Parliament did not Indemnifie such privat Robbers much less should they be secur'd by Proclamations 3. Whatever an Act of Parliament might do because all persons injur'd were therein represented Yet those Proclamations were but general Remissions and no Remission could prejudge the Party injur'd of his Reparation and Assythment 4. This would incourage all Rogues to be Rebels that they might robb and thereafter be enriched by an Indemnity Whereas on the other hand it
Par. Ch. 2. THis Act is Explain'd in the 62 Act Par. 1 Sess. 1 Ch. 2. THis Act is Explain'd in the 25 Act of the 1 Sess. Par. 1 Ch. 2. THe Bishops having consented by this Act to the Imposition upon themselves in favourâ— of Universities it is Declar'd That this Act shall be no preparative for laying on any burden upon the Clergy hereafter without their own consent From which it may be argu'd that though all the rest of the Parliament should consent to an Imposition upon the Clergy yet that would not be valid except they themselves consented to it though the Imposition were carry'd by plurality of Votes but this Inference is not concluding for the Parliament is a Collective Body Compos'd of the King and three Estates in which the major part determines the rest and if this were granted to the Clergy they being but a third Estate every one of the other two Estates might pretend the like and so each Estate should have a Negative as well as the King Whereas not only Craig has Determined that the Parliament may make an Act without the consent of any one of the States having stated this question expresly But we see that the Burrows having unanimously dissented from the 5 Act of the 3 Session of the second Parliament concerning the Priviledges of Burghs-Royal the same was notwithstanding past in Parliament and we all remember the memorable story of the Burrows rising and leaving the Rebellious Parliaments 1649. before the Parliament passed the Act for allowing the value of Annualrents whereupon a worthy Peer said that since they had sitten so long without the Head they might well enough sit without the Tail BY the 14 Act of the 1 Sess. of this Parl. the Annuity of 40000 pounds Sterling being granted to His Majesty to be uplifted out of the Excise in manner mentioned in the said Act by this Act the proportion of the said Excise is Regulated and laid on upon the several Shires and Burghs accordingly Nota. This is the only Act wherein I find the word Grievances BY this Act the Militia of 20000 Foot and 2000 Horse is Establish'd which was found not to take off the Obligation of rising betwixt 60 and 16 according to the ancient Laws for attending the Kings Host when called for This Act Declares That if His Majesty have further use for their service they will be ready every man betwixt sixty and sixteen to joyn and hazard their Lives and Fortunes as they shall be call'd for by His Majesty and though it be pretended that at least they cannot be called betwixt sixty and sixteen by this Act without an express Order from the King The words running When call'd for by His Majesty without adding or the Council in this Clause as it did in the former immediat Clause of this same Act and which shews that this was designedly omited in this Clause yet we see that the Council does call to the Host all betwixt sixty and sixteen without express Warrand from the King and that the Justices fine such as are absent upon these Proclamations and which is very just because the King is still presumed to be in the Council sictione juris they Re-presenting by their Commission His Royal Person and we see by many Instances that Rebellions may rise before any such Warrand can come from the King By this Act it is Declar'd That these Forces shall be in readiness as they sâ—all be call'd fâ—r by His Majesty to march to any part of His Dominions of Scotland England or Ireland for suppressing of any Forraign Invasion Intestine Trouble or Insurrection or for any other service wherein His Majesties Honour Authority or Greâ—tness may be concerned Which Clause was much excepted against by some in the Parliament of England as if Scotland had thereby design'd to Authorize the Invading of them but it cannot be properly said to be an Invading of them if we be call'd by the King and the Calling of Subjects etiam extra territorium is inter reservata principi and a just Right of all Kings as is clear by Castal de Imperatore quaest 57. num 57 And the Subjects of this Kingdom have been oft-times fined and Foâ—efaulted for not attending the Kings Host when they were called to Invade England nor could any War be mannaged or Rebellion supprest even in the justest Cases without this BY this Act the Ordering and Disposing of Trade with Forraign Countâ—â—â—s is Declared to be His Majesties Prerogative and though it be alleadged that this Act was only Design'd as a power to His Majesty for the better Debarring English Commodities whereby to bring both the Nations to an equal ballance of Trade which Design was said to have been then represented to the Parliament as the only Motive for making this Act and that if this were allowed in its full extent our Kings might by Debarring us from Iron Copper Timber Spices and other necessars force us to any Condescendencies or might by this Prerogative grant Monopolies at their pleasure Yet I see not how this Gloss is consistent with the general words of the Act or with our Declaring that this by the Law of Nations belongs to all free Princes Or with subsequent Parliaments allowing the priviledges granted to the Fishing Company the prohibiting of Brandy and other strong Waters and several other things which are founded solely upon this Act. It may be Debated whether under the word Forraigners the English may be comprehended since we are not Treated by them as Forraigners in the point of Succession it being frequently decided amongst them that the Scots may succeed to Heretage in England notwithstanding of their Statute debarring alibi natos and why then should they be repute as Forraigners to us in the matter of Trade and this were indeed solid Reason for both Nations but since the English debar us from their Plantations and look upon us as Forraigners in the point of Trade it is just that we should give them the same measure King CHARLES 2. Parliament 2. Session 1. IT is observable that in all the Sessions of this Parliament the particular day of the Month whereupon the respective Acts were past is set down and yet since the Acts are to take effect not from the passing but from the publication as is clear by the 3 Act of this Parliament it would have seem'd more rational to have set down the day of the Publication To which nothing can be answered but that the Laws are presum'd to be publish'd the day they were past in In no former Parliament the day is set down but the whole Parliament is said to be held upon such a day and the old use was that the Articles prepar'd all the Acts and they were all past in one day THis Act Declaring the Kings Supremacy in Ecclesiastick Causes is formerly explain'd in the Observations upon the 2 Act Par. 18. Ja. 6. IT is observable from this
Proclamation in the years 1677. and 1680. By this Act Malt-men are likewise discharged to have a Deacon and least this Act should be eluded it is appointed That no Malt-man shall keep Correspondence nor meet upon any pretext whatsoever and therefore I conceive that such Towns as appoint that none shall brew except Gild-brothers and in meettings of the Gildry Treat of and settle the Prices of Malt Seed and Bear do thereby contraveen this Statute vid. Act 29 Par. 1 Ja. 6. THis Act having appointed That Sheriffs and others may conveen all Tennents and Cottars c. for Repairing High-ways and Bridges at any time betwixt Seed-time and Harvest and that being found too short a time It is therefore appointed by the 9 Act of the second Session of this Parliament that they may be called the same number of dayes in any Season of the Year Seed-time and Harvest excepted THis Act is Explain'd in the Observations upon the 41 Act Par. 1 Ch. 2. THis Act is Explain'd in the Observations upon the 7 Act Par. 23 Ja. 6. THis Act is Explain'd in the Observations upon the 6 Act Par. 20 Ja. 6. BY this Act the Shires of Ross Sutherland Caithness Argile and Inverness are Declared to be lyable in the double of the Excize and of the Taxation then current laid on by the Convention in case of their being Deficient against which Act it was alleadged at the passing thereof that this seem'd very unjust since as to both these one Shire could not be put in a different Condition from the rest in a common concern but that the legal way was to use stricter Execution against them and whatever might be done at the first laying on of an Imposition yet after it is laid on this seems hard for probably these Shires would not have Consented if they had foreseen any singularity nor did they consent to the Excize but upon equal Terms with other Shires and this was yet much harder because both these Taxations were voluntar Offers and consequently should not be otherwise exacted than in the Terms in which they were offered Likeas this would discourage any Shire for the Future to offer or consent to Taxations because they could not know but a prevailing party or the passion of some leading men might raise to the double what they consented to which Reasons were so convincing that this Act was never put in Execution nor do I think it could without a previous Declarator finding that these Shires had incurâ—ed the Duplication by failing to pay their Shares for otherwise His Majesties Collectors and Cash-keeper might exact the double when it was not incurred and we see that all other Irritancies even Imposed by the Parliament such as ob non solutum canonem require a previous Declarator and are purgeable at the Bar. King CHARLES 2. Parliament 2. Sess. 2. THis Act is Explained in the Observations upon the only Act of the Par. 17 Ja. 6. SOme Phanaticks having against the Laws and Customs of Nations Refused to Depone when they are call'd as Witnesses against those of their own Opinion It is Declared by this Act That such as refuse shall be banished and fined Qui testimonium dicere recusant paenalibus mandatis compelli possunt l. si quando auth seq C. de Testibus Vid. Ruland de Commiss part 2. lib. 2. c. 7. mortaliter peccant c. quisquis 11 quaest 3. cap. 1. X de Test cogend It may be Doubted whether such as refuse to Depone in matters of Treason may not be punished as concealers of Treason for this is in effect the worst kind of concealing for others may conceal because they fear want of Probation or upon other Designs without any malice but this still proceeds from Design and it seems that in all other Crimes he who refuses to Depone against a Delinquent is as guilty as he who Rescues him by force from the hand of Justice for the contempt of Authority is equally great in both and the prejudice arising to the Common-wealth is the same It is Declared by this Act That nothing that any man Depones against another shall operat against himself as to the loss of Life or member or Banishment which seems to be ill conceiv'd for nothing that a man Depons as a witness can operat against himself de jure as to any effect but it seems the Design of the Parliament has been that parties should be obliged to Depone upon Conventicles and Resetting off and Intercommuning with Rebels not only as Witnesses but as Parties and in the words immediatly before it is said that they should be forced to Depone in those things for the more speedy Execution of Justice But to take off all scruple in this the King by His Letter in anno 1674 allowed His Advocat to Declare that He did insist only ad paenam pâ—cuniariam arbitrariam and that thereupon they might be forced to Depone in these Cases but it being alleadged that this Declaration was not sufficient to force people to Depone Because 1. Resetting of Rebels imported Infamy because it was Treason nemo tenetur jurare in suam turpitudinem 2. No Declaration without a Remission past the Great Seal can secure a man in such Cases yet both these Defences were Repelled by the Privy Council in the case Kings Advocat contra Laird of Duntreath June 30. 1681. For as to the first It was answered That some Crimes did defame omni jure as Incest Adultery c. and in these a man could not be oblig'd to Depone against himself because the Kings Declaration could not take away the Stigma impressed by the Laws of God and Nature But in Crimes Introduc'd only by the Municipal Laws in favours of the King and His Government the Infamy may be taken away by the Declaration and where the Kings Advocat Declares he insists not in it as a Crime but as an irregular Transgression The Confession does not Defame because no Crime is acknowledged To the Second it was answered That there needed no Remission where the irregularity was not pursued by way of Crime Remissions being only of Crimes and there was nothing more ordinary than for His Majesties Advocat in all Courts to restrict his pursuits to arbitrary punishments as in the Cases of Mutilations Hamsucken c. SUch as assault the Lives of Ministers or Rob their Houses or actually attempt the same are to be punished with Death and Confiscation of Goods By actually attempting I understand not nudum conatum but what the Law calls actum proximum as the shooting a Pistol which misgave and this further Justifies the procedure against Mr. James Mitchel who shot actually at the Bishop of St. Andrews for though this Act was posterior to that Deed though not to the Process yet it shews what was the Thoughts of of our Parliament as to attempts and so was sufficient to inform Judges how to Explain the dubious word Invade or Pursue
us'd in the 4 Act Par. 16 Ja. 6. BY this Act the Fines appointed for House-Conventicles are for every Man and Woman having Land and Heretage Liferent or proper Wodset a fourth part of their valued yearly Rent each Tennent twenty five Pounds each Cottar twelve Pounds each Serving-man a fourth part of their Fee each Merchant or chief Trades-man to be Fin'd as a Tennent and each inferiour Trades-man as a Cottar if their Wives or Children be present at House-Conventicles they are to pay the half of the respective Fines and if themselves be present at Field-Conventicles they are to be Fin'd in the double of these Respective Fines so that though the Act do not specifie Wives and Children yet they are to be comprehended under the word others Field Conventicles are by this Act Declared to be Meetings where any shall without Licence or Authority Preach Expone Scripture or Pray in the Fields or in any House where there are more persons than the House contains so that some of them are without Doors which last alternative was added because some to shun the double avail Preached within a little House many thousands being without It has been doubted whether those who were within and knew not that any were without can be punished as a Field-Conventicle for though versabantur in re illicita yet it was such a res illicita as had a determined and different punishment and it were hard that where the punishment is Death as it is for the Minister Preaching at a Field-Conventicle that he could be overtaken where he could not know his Guilt It seems by this Act that if the House could hold more though some were known to be without Doors yet that Meeting could not be call'd a Field-Conventicle since the Act sayes or in any House where there be more persons than the House contains and the Reason inductive of the Act ceases in this case By this Act Magistrats of Burghs-Royal are Fineable at the Councils Pleasure for each Conventicle keeped within their Burgh but that which was thought somewhat severe by the Burrows was that they should have been Fin'd where they discovered the Conventicles themselves since in Law Diligence can only be requir'd in Magistrats and in Policy it seems that this would discourage Magistrats from doing Diligence to discover Nor is it sufficient that by this Act they have Relief from those who were present at the Conventicle since these oft-times are neither known nor able to Relieve The Master and Mistres of the House likewise where the Conventicle was kept are lyable to relieve the Magistrats upon which ground an Act of Council was made making the Heretor lyable for the Fines against which it was objected that the Parliament 〈◊〉 not the Heretor lyable but the Master which is the Lands-lord who because he is present may hinder the Keeping of Conventicles in his House which the innocent Heretor who may be very remotely absent cannot By this Act the Minister who Preaches at Field-Conventicles is punishable by Death but the Minister who keeps House-Conventicles cannot be so much as Fin'd for he is only ordain'd to find Caution not to do the like thereafter under the pain of five thousand Merks or to enact himself to go out of the Kingdom and not to return By this Act the half of the fines are declared to belong to Sheriffs Stewarts Lords of Regality and therefore by the 17 Act of the 3 Sess. Par. 2. They are ordained yearly to give an account of their Proceedings to His Majesties Privy Council under the pain of five hundred merks In which Act this Act is Explained as to some other points BY this Act such as offer their Children to be baptized by any but their own Ministers or by such as are authorized by the Council in absence of their own Minister upon a Certificat from their own Minister or in his absence from one of the Neighbouâ—ing Ministers are to be fin'd iâ— an Heretor in a fourth part of His valued Rent Every person above the degree of a Tennent having only a personal Estate in an hundred pounds Scots Every inferiour Merchant considerable Trades-man and every Tennent labouring Land in fifty pounds Scots Every meaner Burges Trades-man and Inhabitant within Burgh and every Cottar in twenty pounds Scots and every Servant in half a years Fee But because upon this Act these who would not conform did to shun these fines delay to Baptize their Children Therefore by the 11 Act Sess. 3 of this Parliament the same fines are Impos'd upon such as keep their Children unbaptized for thirty dayes THis Act is formerly Explain'd in the 1 Act Sess. 3 of the 1 Par. Ch. 2. But for further clearing thereof it may be observ'd that since by this Act Husbands are not made lyable for their fines as by the 5 Act of this Parliament It was urg'd that therefore they could not be fin'd for them since it was presumeable they were designedly left out here because tho a man may hinder his Wife to go to a Conventicle and therefore was justly punished by that for her going whereas no man can force his Wife to go to Church and therefore he was not to be punish'd for her in this Act it was also urg'd that Laws should not be extended de casu in casum where it was probable that the ommission was design'd and so tho Adjudications and Comprisings were equipollent Diligences by our Law yet it was found that an Adjudger was not lyable to pay a years Rent for his Entry as a Compryzer was because the Statute appointing the one had not exprest the other and therefore an express Statute was made for extending this to adjudications which is the 18 Act Par. 2. Ch. 2. and this extension was less favourable because it was a penal Statute and it was against the principles of Law that one person should be punished for another To which it was answered That the Parliament had refer'd the Regulation of Conventicles to the Council and had invested them for this end with their own full power to prevent the Cheats that might be invented and the dangers that might ensue 2. This being a matter of Government must be interpreted so as to preserve the Government and if Wives who were the half and the more humorous half of Scotland were allow'd to abstract all the other Remedies would be ridiculous and they would debauch their Children Tennents and Servants as well as influence their Husbands 3. In all other Cases they were lyable for their Wives for Conventicles by the said 5 Act for Popish withdrawing and Superstitions by the 104 Act 7 Pa. Ja. 6. For their VVives swearing and cursing by the 3 Act Pa. 1 Sess. 1 Ch. 2. In all which Acts the Parliament considered more the good of the Kingdom than the advantage of private parties and extensions are allow'd in favourable Cases and there is none more favourable than this especially since the VVomen
unsecure during a whole Minority yet the said Legal in Adjudications will not run against Minors for Adjudications having come in place of Apprisings are to be regulated by the same Rules except where it is otherwise provided by express Law and therefore Adjudications cannot be led upon Bonds bearing Requisition except Requisition be first used this being formerly necessary in Comprisingâ— February 11. 1680. Gordon contra Hunter albeit it was there alleadg'd that an Adjudication was a more solemn Action requiring previous Citation of Parties than a Comprising and so there needed no Requisition in Adjudications as in Apprisings Observ. 3. That where Land is Decern'd proportionally to the sum with a fifth part more the Creditor is to possess the Land in satisfaction of his annualrent during the not Redemption without being lyable to Restitution or Compt and Reckoning and therefore when the Act does thereafter say that he shall be pay'd of his principal sum and annualrent that must be understood in the Terms foresaid viz. that the Rent of the Land shall be allowed for his annualrent without Restriction Observ. 4. If the Creditor acquire once Possession he cannot thereafter use personal Execution which I think should be understood only where the Debitor compears both because this Clause is adjected to that part of the Act which presupposeth Compearance and before the Clause punishing his absence and because it were unjust that a Debitor should have advantage when he will not consent It may be also doubted whether though the Debitor compear he may be free of Personal Execution when the Land adjudged is not able to pay the sum according to the Terms of the Act for the reason of the Law ceaseth viz. That a man should not use Execution when he has attain'd payment and thus albeit of old in Comprisings the Compriser could not use personal Execution where he was in possession except he Renunced the same July 23. 1633. yet where he had not attained the possession albeit the Comprising was expir'd he might have us'd personal Execution by Horning and Caption though not by arrestment and poinding December 7. 1631. Observ. 5. That since this Act Declares that neither the Superiour nor Adjudger shall be prejudged by this Act it clearly follows that the Superiour may in this case as in Comprisings Redeem the Adjudger by payment of the sum it being unjust that a stranger Vassal should be forced upon him when he is content to pay what is due Quaritur Whether albeit by this Act no Comprisings can be led of Lands not already Comprised if yet Adjudications may not be led even where Lands are formerly Comprised for this is not expresly discharg'd and this seems to have been introduc'd in favours of the Creditors who may make their own Election and I think they may Whereas it is Declar'd That the Superiour and Adjudger shall be in the same case after Citation in the Process of Adjudication as if Apprising were led and a Charge given It may be doubted how a simple Summons can be equivalent to an Apprising and Charge for if that were sustained he who had rais'd the first Summons would be preferr'd to him who having rais'd a posterior Summons had got the first Decreet because the first Summons would be equivalent to an apprising and consequently to a Decreet of Adjudication But the Lords have very justly found that the meaning of this Clause is That the first step in an Adjudication shall be preferable to the second step in a Comprising and so forth But not that the first step in an Adjudication shall be equivalent to a compleat Comprising and yet it still remains that a Summons in an Adjudication is equal to a Denunciation in an Apprising for tho a Denunciation be the more solemn Act yet a Summons publickly call'd in the House does likewise make the Diligence very notour King CHARLES 2. Parliament 2. Sess. 4. THE King having Designed to improve Salt made in Scotland whereby poor people were maintained and the Money kept in the Countrey did buy the Salt made in Scotland and ordain it to be sold out at reasonable Rates which was called the pre-emption of Salt but the Servants and Officers imployed in venting the Salt having taken exorbitant prices as was alleadg'd and remote places such as Galloway and the Highlands being ill furnisht since it was difficult to keep Store-houses every where and many fearing that this might be a preparative for the pre-emption of Coal Corn c. His Majesty was therefore pleased for removing all such jealousies and prejudices to condescend by this Act to discharge the said pre-emption and all pre-emption of Salt in time coming but to give some advantage to our own Salt above forraign Salt our own Salt is declared free of all Excise and imported Salt is to pay fourty shilling upon every Boll THis Act is Explain'd in the Observations upon the 7 Act 3 Sess. Par. 1 Ch. 2. Nota That before this Act the King had right to twenty shilling of Custom for every Tunn of imported Beer by the 179 Act Par. 13 Ja. 6. MAny Noblemen and Gentlemen having been ingaged for Debts contracted by our late Rebellious Parliaments and Committees and not being able to shun these Debts because they had given their privat Security for the same the Parliament 1661. and posterior Parliaments suspended Execution upon them but could not in Justice take away the Debt Therefore for payment of this Debt an Imposition was granted upon Tobacco to be imployed for payment thereof as being the most unnecessary Commodity that was imported and yet this being complained of as a Monopoly or at least a great Imposition upon a Commodity which though at first useless was now by Custom necessary His Majesty did therefore Discharge the said Imposition and allow the importing of Tobacco in all time coming free of all Custom and Imposition except the ordinary Custom King CHARLES 2. Parliament 3. AFter many Draughts of an Act to secure the Protestant Religion wherein His Royal Highness allow'd all Liberty and Encouragement many of them were found great snares to the Subjects and thereupon it was remembred that in anno 1633. King Charles who was a very zealous Protestant and dyed a Martyr for our Church resolv'd to make new Laws for its Defence but it was found that the Laws made by King James Sixth were so full that nothing could be added and that was very probable for that King being a most Learned and Zealous Protestant and the dangers arising to the Protestant Religion being then so Recent and urgent it cannot be thought that any thing would have been omitted and therefore as that Parliament satisfied themselves with a general Ratification of all former Acts so did this Parliament but to shew their earnestness this Act appoints the old Laws against Popery and for securing the Protestant Religion to be put to Execution according to the Tenor and proport of these Acts which
see that the Redeemer must wait from Sun to Sun and tho where the Common Good is to be Rouped in Towns or the Customs in Exchequer the same use to be done in half an hour or so yet it is a different thing where Creditors are to offer for getting payment of their own just Debts and for the same reason it seems though a just Creditor come somewhat late yet if he offer more he ought to be preferred nam de minimis non curat praetor and the interest of lawful Creditors ought to have greater favour It is doubted if a part of the Bankrupts Lands may be Rouped since the Act ordains in general his Estate to be Roupt and a part of the Estate cannot be call'd the Estate and it were hard to choose out the Mannor-place and some little part of the Land by the want whereof the rest would become of little value The Act also by ordaining the price to be distributed among the Creditors insinuats that one Creditor cannot choose a part to be Roupt for payment of his particular Debt Whether the Lords may stop offers when they grow exorbitant in prejudice of offers of a just price made by lawful Creditors and whether a Creditor should be preferr'd to a stranger both offering the same price tho the stranger made the first offer and if a Creditor in passion may be allow'd to repent and if he should get Deductions in case of supervenient War Pestilence or vis major may be seen with many other intricat questions fully discust by Matheus de auctionibus and Postillus de sub-hastationibus where all the matter of Roups are excellently Treated WHen Field Conventicles and other Insolencies grew insupportable the Privy Council required the Sheriffs Baillies of Regalities and other Magistrats to call together these within their Jurisdictions for repressing the same but they answered that this was not possible whereupon the Council being justly jealous that the Sheriffs did not their Duty gave Commissions to the Commanding Officers and other Gentlemen to be Conjunct-Sheriffs as to all Ecclesiastick Disorders and found that these contributed much to quiet the Countrey but this being complained of as a streach of the Prerogative This Act was made Declaring That His Majesty may by Himself or others Commissionated by Him take Cognizance and Decision of any Causes He pleases notwithstanding of any Jurisdiction bestowed by Him and His Predecessors For understanding whereof it is fit to know that all Jurisdictions granted by absolute Princes are cumulative and not privative for tho they empower others to distribute Justice to their people for their and their Peoples greater Conveniency yet they never thereby denude and debar themselves from judging or appointing others for the King may see and the People may find Judges very unfit and that the Government is ruined by them and yet a Crime cannot be prov'd whereby Deprivation may be infer'd whereas there is no inconveniency on the other hand 2. This is clear by Craig to be our Law lib. 2. diag 8. Illud tamen generaliter observandum quod jurisdictio nunquam privative sed cumulative delegari potest non est enim quasi translatio juris ex una persona in aliam sed tantum mandata jurisdictio quae non obstante delegatione adhuc remanet in delegante 3. This is no more than what was allow'd to the King by the 27 Act Par. 5 Ja. 3. Whereby it is Declared That it shall be lawful to the King at his empleasance or pleasure To take Decision of any matter that comes before him likeas it was wont to be as of before 4. This keeps Heretable Officers in a just aw and secures People for if they will be partial or remiss they know that others may be nam'd to supply their Defects THe occasion of this Act was a Solemn Debate betwixt Provost Curry and Charles Oliphant in December 1677. In which the said Provost rais'd a Reduction of a Right made by the Mr. of Mordingtoun to the said Charles of the Lands of Nether Mordingtoun and Edringtoun as made by a Minor and though an Oath was adjected by the Minor to Ratifie at his majority Yet that was likewise null since by the same facility that Minors will Contract to their Laesion they will likewise swear to their Laesion and therefore it is the publick interest as well as the interest of the Minor that such Oaths should not bind To which it was answered that though the World whilest Pagan did Rescind such Oaths yet by the famous Law sacramenta puberum such Oaths were to be observ'd and though Oaths given against a publick Law were not to be observ'd yet in such a Case as this where the publick was not concerned and where there was no Statute against the interposing such an Oath the Oath ought to be observed as being a matter of far greater consequence than the Contract Nor should Judges favour Perjury or ensnare people who trusted Oaths and even in Countreys where Statutes were made against the validity of such Oaths they ordained the Minor to be first absolved by a Church-man and since we had no such Absolutions we could admit of no Restitution To which it was Reply'd that the Laws Restoring Minors were founded upon publick Good and Interest and therefore it were absurd to suffer the Contravention of them to be secured by an Oath and that an Oath adjected by a Minor should no more bind than an Oath adjected by a Wife which has been by many Decisions found not to be binding and even in these Countreys where the Canon Law takes place this authentick Constitution is not observ'd viz. in France Flanders c. as is observed by Guidilinus de jure novissimo lib. 3. cap. 12. It was 2 ly alleadged That such Oaths ought not to secure where the Deed is in it self invalid and illegal as here where the Father authorizes the Son to Confirm a Deed to the Fathers own advantage nam nemo potest esse author in rem suam 3. It ought not to be respected even by the opinion of the Civilians where there is aenorm laesion which aenorm laesion is dolus praesumptus and no oath can secure against fraud or dole 4. Though the Minor might have prejudged himself by that oath and thereby have secluded himself from craving Restitution yet he could not prejudge the Provost who was a third Party and was his Creditor for the effect of the oath being only personal could not reach him The Lords upon this Debate sustained the Contract and Repelled the Reason of Reduction though rais'd by a singular Successor But they caused draw this Act of Parliament Discharging for the future the exacting of such oaths annulling likewise the Contract and Declaring the Elicitor of the Oath to be infamous Nota These words in the Act That it shall be competent to any person related to the minor to obtain the Writs to be declared null were adjected because some minors
to these His Laws and the 9 Act Par 3 Ch. 2. Ordains all such Licences Protections c. to be sign'd and the Signers to be lyable c. It may be likewise doubted whether the Commission of the Kirk can grant Protections since there is only allowance by this Act granted to the Privy Council Session Exchequer and Justice Court but since the 61 Act 1 Par. Ch. 2 Declares that the Acts Decreets and Ordinances of that Commission shall have the strength of the Acts and Decreets of Parliament they are really a Commission of Parliament And therefore as the Parliament can grant Protections so can they especially since without this they cannot exerce well the Jurisdiction intrusted to them by the Parliament and it seems inherent in all Courts that they should be able to protect all whom they Cite and it is clear by this Act that the Supream Courts of Scotland have power before this Act of Parliament to grant Protections for this Act reserves only their former power but grants them no new power These Protections are thought the same with the induciae moratoriae granted by the Civil Law l. 4. C. de precibus Imperator c. which are not valid by that Law nisi idonea fideijussio super debiti solutione praebeatur But I think these to be rather Suspensions and that Cautioners in Suspensions with us arose from this THis Act anent Teinding of Corns is Explain'd fully in Act 73 Par. 6 Ja. 6. BY this Act he who accuses another for Treason and proves not commits Treason Observ. This is only in case of malicious accusation for the Act says That malicious accusers c. and therefore if the pursuer had probable grounds for his accusation he seems not to incur the hazard of this Act. Observ. 2. That though the Act says Whoever accuses yet the Kings Advocat runs no such hazard for he accuses ratione officii but to prevent this he gets alwayes in Treason a warrand from the King or Council upon Reading the Depositions of the Witnesses taken by way of Precognition or else he has an Informer who finds Caution to insist sub poena talionis Observ. 3. That the pursuer is only lyable if the party calumniat be call'd accus'd and acquit therefore the Accuser repenting and not insisting it seems that he will not be lyable in this pain but for not insisting he will be only lyable in the sum under which he has found Caution and possibly in poenam arbitrariam if malice appear and yet it may be urg'd that he should be lyable to the pain of Treason since not insisting was the pursuers fault and no man ought to have advantage by his own fault nam qui dolo desiit pâ—ssidere pro possessore habetur Dubâ—â—atur If this Act extends to such as pursue only Statutory Treason and sure it does not if they pursue not the same as Treason though upon the event it may prove so It may also be doubted if a Witness who has Deponed against a man in a previous Tryal as guilty of Treason and thereafter Depons he knows nothing of it commits Treason for this wrongs the party as much as an accusation yet if this Deposition was not emitted ultroneously but on a Citation it cannot be call'd an accusation nor punisht as such but it seems punishable by Death by l 1. in prin ff ad L. Cor. de fals LAnded men Convict of Theft Reiff or Reset commit Treason It may be doubted if an appearand Heir be punishable in that case as a Landed man or if a person once a Landed man but denuded be lyable Though Landed men may be thus punished as Traitors yet they are ordinarly pursu'd for single Theft and the Kings Advocat does restrict his Libel to ordinary Theft But because it may be punishable as Treason therefore the Lords Advocate Thefts against Landed men though the Libel bear only single Theft THe murthering any person who is under the trust power or assurance of the slayer commits Treason Assurance is extended to such as we have invited to our house or such as we are under trysting and capitulation with This Act is likewayes extended to Husbands killing Wives Bairns Servants e contra THis Act determining what is Usury is explained in my Criminal Pract. Tit. Usury THis Act declares that such as exact other Customs from the people than what is warranted by express Law or express warrand or immemorial possession shall be punished as oppressors It is thought that possession for 40 years is equivalent to immemorial possession and warrands such exactions by prescriptions SHips transporting Victual are confiscated and the Masters and Clerks imprisonable during pleasure This is now abrogated for it is lawful to transport Corn even without a warrand from the Exchequer except where the same is discharged by special Proclamation because of Dearth THis Act discharging the eating of Flesh in Lentron is in Desuetude tho till of late eating of Flesh was discharged without a previous warrand under the hand of the Clerks of the Privy Council THis Act appointing the slayers of Deer Cunnings to be punished as Thieves is explained crim pract Tit. Theft num 15. BEcause the people were oft times mistaken in executing their Brieves Legally through the difference arising from several Jurisdictions therefore some places are here appointed to prevent mistake and a General is subjoined appointing Brieves to be executed either at the head Burghs of Shires or Stewartries or where Brieves were most usually served From which last words it may be observed that Executions are sufficient though they be not at the real head Burghs if they be at the place where they used to be executed and thus Executions at Dunce were sustained for the Shire of Berwick though Greenlaw was really the head Burgh by the Erection and Executions of a Warning were sustained though not at the right Paroch Church within which the Lands lay since it was executed at the place at which Warnings used to be executed 24 January 1667. The Earl of Argile contra George Campbel so far the presumption of habite and repute prevails even over truth BY this Act the granter of a Woodset is declared not to be prejudged by his negligence though he suffer an Ecclesiastick quietly to intrude and to continue long yea even 100 years in the possession of Laick Patronages to which he has right because during the none-redemption the Woodsetter did not look upon himself as Heretor The reason of this Act has certainly been because Church-men possessing per decennalen triennalem possessâ—onem prescrived a right and the Act seems to imply that because the granter of the Woodset was not valens agere whilst the Woodset stood therefore his negligence should not prejudge him but I conceive that Church-men now prescriving a right by 40 years peaceable possession will exclude all the rights of Laick Heretors as well when the Lands
appoint four for them and four for the Town for valuing the Lands that the price may be pay'd accordingly But to prevent all such Debates it is appointed by the 6 Act 3 Sess. Par. 1 Ch. 2. That the Magistrats of Burghs Royal shall cause cite all such as pretend Right to any such Waste or Ruinous Lands as have not been inhabited for three years or shall be waste and not inhabited for other three years to Repair the saids Lands with Certification to them that if they do not the Magistrats will cause value the same by certain persons to be chosen for that effect and to sell the same which sale shall never thereafter be quarrelled So that it appears that after this Act the Privy Council can grant no Warrand to sell except in the Terms of this Act at the least they cannot grant any such warrand to build or sell upon any privat account or even for beautifying the Town but the Privy Council has since this Act granted a Warrand to force privat Heretors to sell and accept their price for making the Entry to the Parliament-House more large and convenient though it it was alleadg'd that this could not otherwise be done than after three years and in the way prescriv'd by the Act of Parliament which has made no exception of any such case as this and if the Council could do this they might as well have made the Act of Parliament it self for the power granted to Magistrats by Act of Parliament proceeds upon the same motive of publick Good It might likewise have been alleadged that whatever the Council might have done in cases of absolute necessity as if the Parliament-House had wanted an Entry altogether yet they could not invert Property meerly for the conveniency of enlarging the Entry beyond what formerly serv'd in our Predecessors time BY this Act Chiefs of Clans are not made lyable but all Land-lords and Bailies are oblig'd to make their Men-tennents and Servants answerable to Justice and to redress the party skaithed which Obligation is not alternative and therefore the Council in the case of Leith and Grant August 1680. did find that the Land-lord was lyable for the Skaith though he should present his men King JAMES the sixth Parliament 15. BY this Act Bishops are in effect restored to sit in Parliament though the Act is cautiously conceived in favours of Ministers who shall be provided to Bishopricks by the King but yet the Bishops themselves were not restored to their Jurisdictions in spiritualibus till the 2 Act 18 Par. Ja. 6. in anno 1606. This Act gave occasion of calling a General Assembly at Dundee to whom the King proposed several Overtures and it was condescended on that fifteen Ministers should sit in Parliament because so many Re-presented the Church in time of Popery but remitted to a Committee to consider what Revenue each Church-man should have for defraying that expence and who should be elected In this Act likewise it is declar'd That this Restitution shall be without prejudice to the General and Provincial Assemblies and Presbyteries and the Act of Parliament here related to Establishing these is the 114 Act 12 Par Ja. 6. IT is observable that Kirk-yeards have in many things in our Law the same priviledge as Kirks and therefore the killing or wounding of men within Kirks and Kirk-yeards are punishable in the same way 118 Act 12 Par. Ja. 6. and the Raisers of Frays in Kirks and Kirk-yards are punished in the same way 27 Act 11 Par. Ja. 6. and by the 83 Act 6 Par. Ja. 4. Fairs and Mercats are prohibited to be kept within Kirk-yards as well as within the Kirk as also by the 86 Act Quon Attach Courts Civil or Criminal within Kirks or Kirk-yards are forbidden all which is conform to the Canon Law cap. 5. de immunitate ecclesiarum cap. 2 h. t. in sexto decretal By this Act Letters of Horning are to be directed by the Lords of the Session for bigging of Kirk-yard-dykes and for making Stiles and Entries to Kirks and Kirk-yards By which last Clause it would seem also that Heretors would get Letters of Horning against any Heretor who lyes betwixt him and the Kirk to give him a sufficient way to the Kirk through his Land albeit the words bear only That there shall be sufficient Stiles and Entries in the saids Kirk-yard-dykes But when any thing is allowed in Law all is understood to be allowed without which that which is expresly allow'd cannot be useful Yet I find by a Decision June 27. 1623. betwixt Neilsâ—n of Carcassiâ— and the Sheriff of Gallâ—wâ—y that the Lords refus'd to grant a Servitude through a privat Mans Lands even for a way to the Church except the Pursuer could prove immemorial Possession and to reconcile this Difference it seems that every man must have some way to the Church but that he will not have Right to any special way if he seek the same upon the account of nearness except he can prove immemorial Possession Mornatius ad l. penult ss de just jur shews that this Law is observ'd in France Quaeritur to whom a Coal found in a Church-yard or Trees growing there will belong whether to the Heretor the Poor or the Patron or if the Trees will belong to the Minister THis Act declares all Alienations of the annexed Property to be null except where they are set with augmentation of the Rental and therefore to this day there is still some small augmentation made but it has been doubted whether if the Charter bear an augmentation but yet it can be proven by the Exchequer Rolls that the Lands pay'd more formerly than is exprest in the new Charter if in that case the alienation will be null and I conceive it should for though the Feuer may alleadge that he was in bona fide because of the former Charters yet seeing the hazard by this Act of Parliament he ought to have looked to the Exchequer Rolls I find the 233 and the following Acts till 240. of this 15 Parliament of King Ja. 6 were at first Statutes of Session inserted in the Books of Sederunt upon the 14 of March 1594. and here in 1597. they are turn'd in Acts of Parliament without mentioning that they had been Acts of Sederunt formerly as uses to be done when the Parliament Ratifies such Acts it seems that it was rather the Exchequers part than the Sessions to have Regulated the Kings Revenue and Property whereunto all the above cited Acts relate but about this time I find in the Sederunt Book several Acts ingrossed bearing to have been made by the Lords of Secret Council Session and Exchequer met together which is like the several Chambers whereof the Parliaments of France consist who conveen all together when any solemn arrest or Decision is to be pronunced in purpuris as they call it and these Acts being Declarations of what was Law in relation to the Kings
4. Armal vid. observations on the 15 Act Par. 1 Ch. 2. where our Parliament acknowledges that our Kings hold their Crowns from God immediatly Vid. Act 31. Par. 5 Ja. 3. I know some pretend that the Kings power is here declar'd to be absolute only in opposition to the Pope and implyes no more but that he did not depend upon the Pope but this is very groundless for he is here declared absolute in relation to his laying on of Customs in which the Pope is no way concern'd and generally the Kings power in relation to Ecclesiastick Rights is said to be supream not absolute and in Civil Rights is said to be absolute and not supream BY this Act English Cloath and all other English Commodities made of Wool are forbidden for the incouragement of our own Manufactures but since the Union this prohibition is taken off and a great Custom is only impos'd by the 13 Act Par. 1. Sess. 3 Ch. 2. but are thereafter upon the erecting of our Manufactures absolutely discharg'd by the 12 Act Par. 3 Ch. 2. THese Acts ordaining all Ships to have special Cocquets containing an Inventar of the Goods which they bear and the names of the Merchants and Owners are yet in observance but the Merchants do not still make Faith upon these points as is appointed by this 257 Act and if the Keepers of the Cocquet absent themselves to the prejudice of the Merchant or take more for the Cocquet than the sum of fourty shilling they are to lose their place and repair the Merchants damnage by the 50 Act Par. 1. Ch. 2. THis Act and the seven following Acts till the 61. are very clear and need no Observation only by lossing of Goods in these Acts is meant breaking of Bulk THis Act is but a Branch of the 245 Act. THis Act appointing three Burghs-Royal to be made one in Kintire one in Lochaber and one in the Lews is not only not in observance but the Erection of a Burgh-Royal in the Lews was unjustly oppos'd by the Burrows in anno 1636. upon pretext that it would communicat their priviledges to Forraigners and Strangers viz. Hollanders who offer'd to come and settle there whereas it would only have dilated and improv'd our Trade and these Forraigners had presently become Scottishmen BY the 119 Act Par. 7 Ja. 6. Inhibitions and Interdictions are to be Registrated in the Sheriff-Clerks Registers but by this Act all Letters of Horning Inhibitions Interdictions and their Executions are to be Registrated in the Registers of the respective Bailliaries Stewartries or Regalities within which the persons dwell against whom these Executions are but if these persons be out of the Countrey they must be Denunc'd at the Mercat Cross of Edinburgh and Peer and Shore of Lieth and not at the Head Burgh of the Stewartry Bailliary or Regality July 4. 1666. Cunninghame contra Cunninghame and that because this Act of Parliament speaks only of persons dwelland within the Kingdom but it may be yet doubted whether the single Escheats of persons out of the Countrey may fall upon Denunciations at the Mercat Crosâ— of Edinburgh and Peer and Shore of Lieth or whether Liferent-Escheats will fall except the Rebel be Denunced at the Head Burgh of the Shire Regality or Stewartry wherein his Lands lyes since if he had been within the Countrey he ought to have been Denunced in the Respective Jurisdictions within which the Lands ly Albeit this Act appoints all Letters to be executed within Regalities and Stewartries yet if these Jurisdictions have no known Head Burgh the Escheat will be sustained upon a Denunciation at the Head Burgh of the Shire January 7. 1677. Scot contra Dalmahoy BY this Act all Hornings Relaxations Inhibitions and Interdictions that were to be Registrated in inferiour Registers are ordain'd to be presented Judicially before a Notar and four Witnesses which formality is thereafter found not to be necessary and is abrogated by the 13 Act Par. 16 Ja. 6. VId. crim pract tit Theft BEcause the Money had risen at this time to a great value so that the same piece of Money which passed formerly for one penny was worth ten the time of this Act therefore it is justly appointed by this Act that all the Unlaws shall be raised so that the same Delict which was Fined only in twelve pennies before the first of March 1542. that is to say before the first Parliament of Queen Mary should be Fineable in ten shilling of the Money current the time of this Act Gel. lib 20. c. 1. tells us that the Romans were in this same manner forc'd to augment the penalties of the twelve Tables because Lucius Veracius took pleasure to beat all that past him because he was only to pay twenty five Asses for every blow according to that Law THis Act is Explain'd crim pract tit Beggars FRom this Act it is observable that he that is charg'd with Lawborrows shall be as lyable in the Contravention as if he had found Caution though he has not found Caution it being unjust that by his contempt he should put himself in a better condition and it is by the same reason that an appearand Heirs Liferent escheat falls to his Superiour in the same way as if he had entred since it is unjust that the Superiour should be prejudg'd by thâ— appearand Heirs lying out Observ. 2. That by this Act when any man finds Caution being charged with Law-borrows he who raises Lawborrows has action against either principal or Cautioner at his option as in other pecunial Obligations which words viz. as in all other pecunial Obligations are added because by our Law he who is a Cautioneâ— ad factum praestandum such as they are who become Cautioners for Executors Messengers or Tutors c. is only lyable after the Principal is discuss'd because they being only Cautioners for the Principals performance It must be first known whether the Principal has performed and thus the beneficium discussionis that was of old competent by the Civil Law to all Cautioners is only competent by our Law to such Cautioners only as become Cautionerâ— ad factum praestandum THis Act appointing that the pains of the general Bond shall be divided betwixt the King and the party is to be understood of the general Bond of Lawborrows which is appointed by the 3 Act Par. 2. and 12 Act Par. 6 Ja. 2. even as the pain of special Lawborrows is to be divided betwixt the King and the party by the 77 Act Par. 6. Ja. 6. for that Act 77 related only to privat Lawborrows at the instance of privat parties and therefore this Act was necessary in the case of general Lawborrows exacted at the Kings instance for the security of all His Subjects from such as he thinks lyable to suspition It was and is ordinary for the King and Council to Charge Heretors who are at feid to give Bonds of assurance