Church men it was called The Cannon Law And though it has here no positive Authoritie as being compiled by private Persons at the desire of the Popes especially since the Reformation yet our Ecclesiastick Rights were settled thereby before the Reformation And because many things in that Law were founded upon material justice and exactlie calculated for all Church men Therefore that Law is yet much respected among us Especially in what relates to conscience and Ecclesiastick Rights Our Municipal Law of Scotland is made up partly of our written and partly of our unwritten Law Our written Law comprehends first our Statutory Law which consists of our Statutes or Acts of Parliament Secundo The Acts of Sederunt which are Statutes made by the Lords of Session by vertue of a particular Act of Parliament impowering them to make such constitutions as they shall think fit for ordering the â—rocedur and forms of Adminiâ—trating justice and these are called Acts of Sederunt because they are made by the Lords sitting in judgement But are not properly Laws the legislative power being the Kings Prerogative Tertio The books of Regiam Majestatem which are generally looked upon as a part of Our Law and they and the leges burgorum and the other tractates joyned by Skeen to them are called the old books of Our Law by many express Acts of Parliament Tho the books of Regiam Majestatem were originally but the works of one private Lawyer writing by way of Institution and are now very much abrogated by Custome Our unwritten Law comprehends the constant tract of decisions past by the Lords of Session which is considered as Law the Lords respecting very much their own decisions And though they may yet they use not to reced from them except upon grave considerations Secundo Our Ancient customes make up a part of our unwritten Law which have been universally received among us The tacite consent of the people operating as much in these as their express consent does in making Laws And such is the force of custome or consuetude that if a Statute after long standing has never been in observance or having been has run in desuetuâ—e consuetude prevails over the stâ—â—â—â—e till it be renewed either by a succeeding Parliament or by a Proclamation from the Council For though the Council cannot make Laws yet they may revive them Generally all Laws should look foreward though declaratory Laws regulat what is past since their design is to declare what was Law prior to the statute and to direct Iudges how to decide in cases that needed the decision of a Parliament Laws should command not perswade and though the rubrick or title and narrative of the statute may direct a doubting Iudge yet if the statutory words be clear they should be followed in all cases All Laws should be so interpreted as to evite absurdities and as may best agree with the mind of the legislator and Analogie or general design of the common Law Correctory Laws so we call these which abrogate or restrict former Laws are to be strictly interpreted for we should reced as little as can be from received Laws Honourable Laws are to be extended and the Paritie of Reason often prevails with our Judges to extend Laws to Cases that are founded on the same reason with what is expresly determined by the Statute Tit. II. Of Iurisdiction and Iudges in General HAving resolved to follow Iustinians method to the end there may be as little difference found betwixt the Civil Law and Ours as is possible And that the Reader may not be distracted by different methods I do resolve first to lay down what concerns the Persons of whom the Law treats â—at â—do what concerns the things themselves treated of such as rights obligations c. Tertio The actions whereby these rights are pursued which answers to the Civilians objecta juris viz. Personae res Actiones The Persons treated of in Law are either Civil or Ecclesiastick the chief of both which are Iudges with whom we shall begin And for the better understanding of their Office it is fit to know that Iurisdiction is a power granted to a Magistrate to cognosce upon and determine in causes and to put the sentence or decreet to execution in such maner as either his commission law or practice does allow All Iurisdiction flows originally from the King so that none have power to make Deputs except it be containd in their commission And if a Depute appoint any under him that sub-depute is called properly a substitute and every Iudge is answerable for the Malversation of his depute Iurisdiction is either Cumulative or Privative Cumulative jurisdiction is when two Judges have power to judge the same thing And generally it is to be remembred that the King is never so denuded but that he retains an Inherent power to make other Judges with the same power that he gave in former commissions And thus he may erect lands in a regality within the bounds of an heritable Sheriff-ship and burghs Royal within the bounds of a regality And these bounds within which a Judge may exerce his commission is called his Territory so that if any Judge exercise Iurisdiction without his Territory his sentence is null and among those who have a Cumulative Iurisdiction he who first cites can only Judge and this is called jus Praeventionis Privative Iurisdiction is when one Judge has the sole power of judging exclusive of all others such power have the Lords of Session in judging of all Competitions amongst heritable rights and here there can be no prevention Iurisdiction is founded to any Judge either because the defender dwels within his territory which is called Sortiri forum ratione domicilij or Secundâ— Because the crime was committed within his territory which is called ratione delicti or Tertio If the Person pursued have any immovable estate within his territory though he live not within the same he may be pursued by any action to affect that estate which is called sortiri forum ratione rei sitae A Iurisdiction is said to be prorogate when a person not other wayes subject submits himself to it as when he compears before an incompetent Judge and propons defences All Judges with us must take the Oath of Allegiance and the Test whereby they swear to maintain the Government of Church and State as it is now established and an oath de fideli administratione before they exerce their Office And no excommunicate person nor rebell against the Government can Judge by Our Law If a person be pursued before a Judge who is not competent he may complain to the Lords of Session and they will grant Letters of Advocation whereby they Advocat that is to say call that cause from the incompetent Judge to themselves And if after the letters of Advocation are intimat to that Judge he yet proceed his Decreet will be null as given Spreto mandato Iurisdiction is
either Supream inferior or mixt These courts are properly called supream from whom there is no appeal to any higher Iudicatory such as the Parliament Privy Council Lords of Session the Criminal Court and Exchequer Inferior Judges are such whose decreets and sentences are lyable to the reviewes of the supream Courts as Sherriffs Stewards Lords of Regality Inferior Admirals and Commissars Magistrates of Burghs Royal Barrons and Iustices of Peace Mixt Iurisdiction participats of the nature both of the supream and inferior courts such a jurisdiction have the high Admiral and Commissars of Edinburgh Both which are in so far Supream that Maritim Affairs and confirmations of Testaments must come in and be tabled before the high Admiral and Commissars of Edinburgh in the first instance As also they both can reduce the Decreets of inferior Admirals and Commissars But seeing their Decreets are subject to the review of the Lords of Session they are in so far inferior Courts No inferior Iudge can judge in the causes of such as are Cusin-germans to him or of a nearer degree either of affinity or consanguinity But there is so much trust reposed in the Lords of Session that by a special Statute they can only be declined incases relating to their Fathers Brothers Sons Nephews or Uncles which by a late statute is likewise extended to the degrees of affinity and to the Lords of privy Council and Exchequer and the Commissioners of Iusticiary and to all other Iudges within the Kingdom The members of the Colledge of Iustice have this priviledge that they cannot be pursued before any inferior Iudge and if they be the Lords will Advocate the cause to themselves Tit. III. Of the Supream Iudges and Courts of SCOTLAND THE King is the Author and Fountain of all power and is an absolute Prince having as much power as any King or Potentate whatsoever deryving his power from GOD Almighty alone and so not from the people The special priviledges that he has are called His Prerogative Royal such as that he only can make Peace or Warr call Parliaments Conventions Convocations of the Clergy make Laws And generally all meetings called without his speciall command are punishable he only can remit crimes legittimate bastards name Iudges and Councilors give tutors Dative and naturalize strangers And is Supream over all persons and in all causes as well Ecclesiastick as Civil The Parliament of old was only the Kings Barron Court in which all free-holders were oblidged to give sute and presence in the same manner that men appear yet at other head courts And therefore since we had Kings before we had Parliaments it is rediculous to think that the Kings power flowed from them The Parliament is called by Proclamation now upon fourty dayes tho it may be Adjourned upon twenty but of old it was called by brieves out of the Chancellary It consists of three Estates viz. the Arch-Bishops and Bishops and before the Reformation all Abbots and Mitred-priors sat as Church men Secundo The Barrons in which estate are comprehended all Dukes Marquesses Earles Viscounts Lords and the Commissioners for the Shires for of old all Barrons who held of the King did come but the estates of lesser Barrons not being able to defray this charge they were allowed to send Commissioners for every Shire And generally every Shyre sends two who have their charges born by the Shyre Tertio The Commissioners for Burghs Royal each whereof is allowed one and the Town of Edinburgh two Though all the three Estates must be cited yet the Parliament may proceed albeit any one estate were absent or being present would disassent The legislative power is only in the King and the Estates of Parliament only consent and in Parliament the King has a negative voice whereby he may not only hinder any Act to pass but even any overture to be debated The Acts of Parliament must be proclaimed upon fourty days that the Lieges may know them To secure the Crown against factions and impertinent overturs in open Parliament Our Parliaments choose before they proceed to any bussiness four out of each State who with the Officers of State determine what Laws or Overturs are to be brought in to the Parliament and they are therefore called the Lords of Articles We have another meeting of the three Estates called the Convention of Estates which is now called upon twenty days and proceeds in the same way that the Parliament does diffreing only from it in that the Parliament can both impose Taxations and make Laws whereas the Convention of Estates can only impose or rather offer Taxations and make Statutes for uplifting those particular Taxations But can make no Laws And of old I find by the Registers of the Conventions the eldest whereof now extent is in Anno 1583. that the Conventions of Estates consisted of any number of the three Estates called off the Streets summarly by the King And yet they cryed down or up money and judged processes which now they do not The Privy Council is constituted by a special commission from the King and regularly their power extends to matters of publick Government in order to which they punish all Ryots for so we call breach of the peace They sequestrate Pupills gives aliments to them and to wives who are severely used by their husbands and many such things which require such summar procedour as cannot admit of the delays necessary before other courts And yet if any of these dipp upon matter of Law for they are only Iudges in facto they remit the cognition of it to the Session and stop till they hear their report The Council delay Criminal executions and sometime change one punishment into another but they cannot remit Capital punishments They may also Adjourn the Session or any other court It has its own President who preceeds in the Chancellours absence and it has its own Signet and Seal All who are cited to compeat there must be personally present because ordinarly the pursuer concluds that they ought to be personally punished All dyets there are peremptor all debat is in writ no Advocat being allowed to plead because the Council only Iudges in matters of fact The Lords of Council and Session are Iudges in all matters of civil Rights of old they were chosen by the Parliament and were a committy of Parliament But the present modell was fixt and established by King Iames the fifth after the modell of the Parliament of Paris Of old it consisted of seven Ecclesiasticks and seven Laicks and the President was a Church man But now all the fifteen are Laicks And there sits with them four Noble men who are called extraordinarie Lords and were allowed to sit to learn rather then decide But now they vote after the ordinary Lords All the Lords are admitted by the King and by Statute cannot be admitted till they be twenty five years of Age and excepâ— they have a
Edinburgh March 18. 1684. IT is ordered by the Lords of His Majesties most honourable Privie Council That none shall Re-Print or Import into this Kingdom the Book intitutled The Institutions of the Laws of SCOTLAND by Sir George Mackenzie of Rosehaugh His Majesties Advocat for the space of nineteen years after the date hereof without the consent of the Author under the pain of confiscation of the whole Copies to John Reid Printer of the said Book Extracted by me Pat. Menzies Cls. Sti. Cli. THE INSTITUTIONS OF THE LAW OF SCOTLAND By Sir George Mackenzie of Rosehaugh His MAJESTIES Advocat EDINBURGH Printed by Iohn Reid Anno DOM. M DC LXXXIV To the Earl of MIDDLETON My Lord THE Natural way of Learning all Arts and Sciences is to know First the Terms used in them and the Principles upon which they are founded with the Origins of the one and the Reasons of the other A Collection of these Terms and Principles is in Law called Institutions and the Natural and Easie way of Writing these is by going from the first Principle to a second and from that to a third The admir'd Method of Euclid in his Elements though much neglected by all who have written Institutions of Law in which not onely many things unnecessary are insert as almost all the third book of Justinians Institutions the Differences betwixt the Sabiniani and Proculiani c. Many Fundamental Titles are ommitted as all the matter of Restitutions And many things are taught in the first Book which cannot be understood till the fourth be read I have therefore in these my Institutions treated nothing save Terms and Principles leaving out nothing that is necessary and inserting nothing that is contraverted in all which I have proceeded building alwayes one Principle upon another and expressing every thing in the Terms of the Civil Law or in the Stile of Ours respectively so that if any Man understand fully this Little Book Natural Reason and Thinking will easily supply much of what is diffused through our many Volums of Treatises and Decisions Whereas the studying those would not in many years give a true Idea of our Law and does rather distract than instruct And I have often observed that moe Lawyers are ignorant for not understanding the first Principles than for not having read many Books as it is not the having travelled long but the having known the way which brings a man to his Lodging soon and securely My Lord You observ'd very justly to me that Institutions are a Grammar and therefore which is a great encouragement to all Readers of Institutions they who understand the Institutions of any one Nation will soon learn the Law of any other For though Terms Forms and Customs differ yet the great Principles of Iustice and Equity are the same in all Nations I send mine therefore to your Lordship not because you need them but that you may judge if my Institutions will be able to justifie your parallel Nec Phoebo gratior ulla est Quam sibi quae Vari praescripsit pagina Nomen The INDEX of the TITLES PART I. Title I. OF Laws in General Page 1 Title II. Of Iurisdictions and Iudges in general Page 9 Title III. Of the Supream Iudges and Courts of Scotland Page 17 Title IV. Of inferiour Iurisdictions and Courts Page 27 Title V. Of Ecclesiastick Persons Page 33 Title VI. Of Marriage Page 46 Title VII Of Minors and their Tutors and Curators Page 47 PART II. Title I. OF the Division of Rights and the several wayes of acquiring Property and Dominion Page 74 Title II. Of the difference betwixt Heritable and Moveable Rights Page 83 Title III. Of the Constitution of Heritable Rights by Charter and Seasin Page 92 Title IV. Of the several kinds of Holding Title V. Of the Casualities due to the Superiour Page 108 Title VI. Of the Right which the Vassal acquires by getting the Feu Page 13â— Title VII Of Transmission of Rights by Confirmation and of the difference betwixt Base and Publick Infeftments Page 14â— Title VIII Of Redeemable Rights Page 15â— Title IX Of Serâ—itudes Page 16â— Title X. Of â—eynds Page 18â— Title XI Of Inhibitions Page 19â— Title XII Of Comprysings and Adjudications Page 20â— PART III. Title I. OF Obligations and Contracts in general Page 217 Title II. Of Obligations by Write or Word Page 228 Title III. Of Obligations and Contracts arising from Consent and of accessory Obligations Page 232 Title IV. Of the Dissolution or Extension of Obligations Page 255 Title V. Of Assignations Page 261 Title V. Of Arrâ—stments and Poiâ—â—ings Page 265 Title VI. Of Prescriptions Page 275 Title VII Of Succession in Heritable Rights Page 282 Title VIII Of Succession in Moveaâ—â—es Page 323 Title IX Of â—â—st Heir and Bastards Page 330 PART IV. Title I. OF Actions Page 334 Title II. Of Probation Page 362 Title III. Of Sentences and their Execution Page 368 Title IV. Of Crimes Page 375 THE INSTITUTIONS Of the Law of SCOTLAND FIRST PART Tit. I. Of Laws in General JUSTICE is a constant and perpetual Will and Inclination to give every Man what is due to him LAW is the Science which teacheth us to do Justice This Law in a large acceptation is divided In the Law of Nature Law of Nations and the Civil and Municipal Law of each particular Countrie The Law of Nature comprehends those Dictats which Nature hath taught all living creatures instances whereof are Self Defence Education of Children and generally all those common principles which are common to Man and beasts and this is rather innate instinct than positive Law The Law of Nations is peculiar to Man-kind onely dictated by right Reason and is divided into the Original and primarie Law of Nature that flows from the first and purest principles of right Reason Such as Reverence to GOD respect to our Country and Parents And the secundarie and consequential Law of Nature consisting of these general conclusions in which ordinarly all Nations agree and which they draw by way of necessary consequence from those first principles And under this part of the Law of Nations are comprehended the Obligations arising from promises or contracts The liberties of Commerce the ransoming of Prisoners securitie of Ambassadours and the like Civil or Municipal Law are the particular Laws and Customes of every Nation or people who are under one Soveraign Power The Romans having studied with great exactness the principles of Equity and Iustice. Their Emperour Iustinian did cause digest all their Laws into one body which is nowcalled by most polit Nations for its Excellency the Civil Law And as this Civil Law is much respected generally so it has great influence in Scotland except where Our own express Laws or Customes have receded from it And by the common Law in our Acts of Parliament is meant the Civil Law The Popes of Rome in Imitation of the Civil Law made a body of Law of their own which because it was compiled by
1000 lib. or 20 Chalders of victual in yearlie rent Nine are a Quorum Crimes of old were judged by the Iustice General Iustice Clerk and two Iustice Deputes but now five Lords of Session are joyned to the Iustice General and Iustice Clerk and they are called the Commissioners of justiciary Because they sit by a special commission only Four of which number make a Quorum in time of Session three in time of Vacance and two at Circuit Courts The Exchequer is the Kings Chamberlain Court wherein he judges what concerns his own revenues It consists of the Theasurer in whose place are sometimes named Commissioners of the Theasury the Theasurer Depute and as many of the Lords of Exchequer as his Majestie pleases The High Admiral has a commission from the King to judge in all Maritime affairs not only in Civil but also in Criminal cases where the crime is committed at Sea or within flood-mark nor can the Lords of Session Advocat causes from him tho they can reduce his Decreets as he does the Decreets of all inferior Admirals or Admiral Deputes for many Heritors are constitute Admirals within themselves by a right from the high Admiral since his Gift or from the King before it Tit. IV. Of Inferior Iurisdictions and Courts THe Sherriff is the Kings chief and Ancient Officer for preserving the Peace and putting the Laws in execution he has both a Civil and Criminal Iurisdiction and his Commission is under the Great Seal he is obliged to raise the huy and cry after all Rebels and to apprehend them when required To assist such as are violently disposâ—est To apprehend such as say Mass or trouble the Peace and take caution for their appearance He nor no Inferior Iudge can hold Courts in time of Vacance in Civil cases without a dispensation from the Lords of Session But in Criminal cases he needs no dispensation because crimes should be instantly punished He is Iudge in all crimes Except the four Pleas of the Crown to wit Murder Firâ— rasing Robery and ravishing of Women but murder he can judge if the Murderer was taken with red-hand that is to say immediately committing the murder In which case he must proceed against him within three Suns And in Theft he may judge if the Thief was taken with the fang The Shireff is also judge competent to punish Bloodwits for which he may syne in 50 pounds Scots but no higher and for contumacy he can fine no higher than 10. pounds A Lord of Regality is he who has the land whereof he is Proprietar or Superior erected with a Iurisdiction equal to the justices in Criminal cases and to the Shirreff in civil causes he has also right to all the moveables of Delinquents and rebels who dwell within his own Iurisdiction whether these moveables be within the regality or without the same And because he has so great power therefore no Regality can legally be granted except in Parliament The Lord of Regality has also by his erection power to repledge from the Sherriff and even from the Iustices in all cases except treason and the pleas of the Crown that is to say to appear and crave that any dwelling within his Iurisdiction may be sent back to be iudged by him and he is obliged to find caution that he shall do justice upon the Malefactor whom he repledges within year and day and the caution is called Cul reach The Stewart is the Kings Sherriff within the Kings own proper Lands and these were erected where the lands had been erected before in Earledoms or Lordships For else the King appointed only a Baillie in them and these Iurisdictions are called Bailliaries the Baillies of the Kings proper lands having the same power with the Sherriff And all these viz. the Sherriff the Stewart and the Lord of Regalitie proceed in their courts after the same way and each of them has a Head Burgh where they hold their courts and where all letters must be executed and Registrate The Prince of Scotland has also an Appange or Patrimony which is erected in a Iurisdiction called the Principality The revenues comes in to the Exchequer when there is no Prince but when there is one he has his own Chamberlain Iustices of Peace are these who are appointed by the King or Privy Council to advert to the keeping of the peace and they are judges to petty ryots servants fies and many such like relateing to good neighbour-hood exprest in the instructions given them by the Parliament and are named by the Council allbeit be the foresaid Statute the nomination is to be by His Majestie and His Royal Successors which the King has now remitted to the Privy Council The Iustices of peace do name Constables within their own bounds from six months to six months Their Office is to wait upon the Iustices and receive injunctions from them delate such Ryots and Crimes to the Iustices as fall under their Cognisance Apprehend all suspect Persons Vagabounds and night Walkers as is at length contained in their injunctions given them be the foresaid Act. Every Heritor may hold courts for causing his Tennents pay his rent And if he be infeft cum curijs he may decide betwixt Tennent and Tennent in small debts and may judge such as commit blood on his own ground tho his land be not erected in a barronie But if his land be erected in a barronie which the King can only do he may like the Sherriff unlaw for blood-wits in 50 lib. and for absence in 10. And if he have power of Pit and Gallows he may hang and drown in the same manner as the Sherriff can Tit. V. Of Ecclesiastick Persons SInce the Reformation the King is come by Our Law in place of the Pope and all rights to Kirk-lands must be confirmed by him else they are null His Majestie only can call convocations of the Clergie for so we call our National assemblies and His Commissioners sits in them and has a negative We have two Archbishops and twelve Bishops and they are thus elected the King sends to the Chapter a Conge de Eslire which is a French word signifying a power to elect and with it a letter recommending a person therein named And the Chapter returns their electing Whereupon the Kings grants a Patent to the persons and a mandate to the Archbishop or Bishops to Consecrate him Both which pass the great Seal The Archbishops and Bishops have the sole power of calling Synods within their own Diocies and in these they name the Brethren of the conferance Who are like the Lords of Articles in the Parliament and by their advice the Bishops depose suspend and manage Bishops have their Chapters without whose consent or the major part the Bishop cannot alienate which Major part must sign the deeds done be the Bishops And it is sufficient if those of the Chaper sign at any time even after
but are Iuris Divini which are either sacred such as the Bells of Churches for though we have no consecration of things since the Reformation yet some things have a Relative Holiness and Sanctity and so fall not under Commerce that is to say cannot be bought and sold by Private Persons Quinto Things that are called sanctae so called because they are guarded from the injuries of Men by speciall Sanctions as the walls of Cities Persons of Ambassadours and Laws Sexto Things Religious such as Church-Yeards As to those things which fall within Commerce we may acquire right to them either by the Law of Nature and Nations or by our Civil and Municipal Law dominion or propertie is acquired by the Law of Nations either by our own fact and deed or Secundo by a connexion with or dependence upon things belonging to us the first by a General term is called Occupation and the last Accession Occupation is the apropriating and apprehending of those things which formerly belonged to none And thus we acquire propertie in wild Beasts of which we acquire a Right how soon we apprehend them or are in the prosecution of them with probabilitie to apprehend them as also we retain a right to them whilst they remain in Our possession and evenafter they have escapt if they be yet recoverable by us Secundo Propertie comes by Accession as for instance a House Built upon or Trees taking root in our ground and the product also of our beasts belong to us and ground that grows to our ground becomes insensibly ours and is called Alluvio by the Civilians And it is a general Rule in Law that accessorium sequitur Naturam sui principalis and yet a Picture drawn by a great Master upon another mans Sheet or Table belongs to the Painter and not to the Master of that whereon it is drawn the meanness of the one ceding to the nobleness of the other There are many other wayes of acquiring Right and Property which may be referred either to Occupation or Accession as if a Man should make a Ship of my Wood it would become the Makers and would not belong to me to whom the wood belonged and this is called Specification in which this is a general rule that if the species can be reduced to the rude masse of matter then the Owner of the matter is also owner of the species or thing made As if a Cup be made of another mans Silver the cup belongs not to the maker but to the owner of the Mettle because it can be reduced to the first Mass of Silver but if it cannot be reduced then the Species will undoubtedly belong to him that made it and not to the owner of the matter as Wine and Oyl made of anothers Grapes and Olives which belongs to the maker seing wine cannot be reduced to the Grapes of which it was made Propertie is likewise acquired when two or moe Persons mixe together in one what formerly belonged to them severally and if the matterials mixed be liquid it is called by a special name Confusion as when several Persons Wines are mixed and confounded together but if the particulars mixed be dry and solid so as to retain their different shapes and Forms it is called commixtion and in both cases if the confusion or commixtion be by consent of the Owners the body or thing resulting from it is common to them all but if the Commixtion be by chance then if the matterials cannot be separated the thing is yet common as when the Graine or Corns of two persons are mixed together by chance here there must necessarly be a community because the separation is impossible but if two Flocks of sheep belonging to different persons should by accident mix together there would be no community but every man would retain right to his own Flock seing they can be distinctly known and separated and these two ways of acquisition are by accerssion The last and most ordinarie way of acquiring of property is by tradition which is defyned a delivery of possession by the true owner with a design to transfer the property to the Receiver and this translation is made either by the real delivery of the thing it self as of a horse a cup c. or by a Symbolick delivery As is the delivery of a little Earth and Stone in place of the Land it self for where the thing cannot be truely delivered the Law allows some symbols or marks of tradition and so far is tradition necessary to the acquiring of the prorerty in such cases that he who gets the last right but the first tradition is still preferr'd by our Law If he who was once Proprietar does willingly quite his Right and throw it away which the Civil Law calls pro derelicto habere the first finder acquirs a new Right per inventionem or by finding it by which way also men acquire right to Treasures and to Iewels lying on the Shoare and generally to all things that belonged formerly to no man or were thrown away by them But it is a general Rule in Our Law that what belongs to no man is understood to belong to the King Prescription is a chief way of acquiring Rights by the Civil Law but because that Title comprehends many things which cannot be here understood I have treated that Title amongst the ways of loosing Rights it being upon diverse considerations modus acquirendi amittendi We also acquire Right to the Fruits of those things which we possess bona fide if these Fruits were gathered in or uplifted and consumed by us whilst we thought we had a good Right to the thing it self for though thereafter our Right was found not to be good yet the Law judged it unreasonable to make us restore what we lookt upon as our own when we spent it and therefore whenever this bona fides ceaseth which may be several wayes especially by intenting an action at the true owners instance we become answerable for these Fruits though thereafter they be percepti consumpti by us Tit. II. Of the difference betwixt Heritable and Moveable Rights HAving in the former Title cleared how we acquire Rights we come now to the division of them The most comprehensive division of Rights amongst us is that whereby they are divided into Heritable and Moveable Rights Heritable Rights in a strict sense are only Lands and all summs of money and other things which can be moved from one place to another are moveable but that is only counted Heritable in a Legal Sense which belongs to the Heir as all other things which fall to the Executor are moveable and so sums of money albeit of their own nature they are moveable yet if they were lent for Annualrent they were of old repute heritable For understanding whereof it is necessar to know that albeit by the Cannon Law all Annualrents were forbidden as being contrare to the Nature of the thing money being barren of its
own nature yet the reformed Churches do generally allow it nor were the Iews prohibited to take Annualrent from Strangers Before the year 1641 all Bands and sums bearing Annualrent were Heritable as to all effects so that the Executor who is Haeres in mobilibus had no interest in nor share of such Bands but they belonged intirelie to the Heir but that Parliament finding that the rest of the Children beside the Heir had no provision by Our Law except an equall share in the moveables they therefore ordained that all Bands for summs of money should be moveable and so belong to the Executors except either the Executors were secluded or the debitor were expresly obliged to infest the Creditor which is likewise renewed since the Kings Resturation For in these cases it was clear that by the distination of the defunct which is the great Test in this case these sums were to be Heritable and yet all sums bearing Annualrent are still Heritable in so far as concerns the Fisk or the Relict so that if a band bear Annualrent to this day the Fisk cannot claime any right to it as falling under the Rebells single Escheate whereby when he becomes Rebel all his Moveables fall to the King nor has the Relict any right to a third of it as she has to a third of all moveables the Law having presumed that Relicts will be still sufficiently secured by their contracts but whether the sum be Heritable or moveable all the bygone Annualrents and generally all bygones are moveable as to all intents and purposes and so fall to Executors and to the Fisk and to the Relict because bygone rests are lookt on as money lying by the debitor they being already payable as all obligations bearing a tract of future Time belong to the Heir So far does the Law defer to the will of the Proprietar in regulating whither a sum should be Heritable or Moveable the Law thinking that every man is best Iudge how his Estate shal be bestowed that if a man destinate a sum to be imployed upon Land or Annualrent this destination will make it Heritable and to belong to his Heir or though the sum was originally secured by a moveable band yet it may become heritable by the creditors taking a superveening heritable security for it or by comprising for his security but yet the Creditors design is more to be considered than the supervenient right as for instance a sum may be moveable ex sua natura and yet may be secured by an heritable surty as in the case of bygone annualrents due upon infeftment of annualrent which are unquestionably moveable of their own nature and yet they are heritably secured and even Executors may recover them by a real Action of poynding of the ground And if a Wedset bear a provision that notwithstanding of Requisition the Wedset shall still subsist the requisition will make the sum moveable though it continue secured by the Infeftment as also sumes ab initio Heritable may be secured by an Accessory moveable security without altering their Nature as for instance if one take a Gift of Escheat for securing himself in Heritable sums this does not alter the Nature of the former Heritable Right Though a sum be Heritable yet if the Creditor to whom it is due require his money either by a charge or requisition it becomes moveable for the Law concludes in that case that the Creditor designs rather to have his money than lying in the Debitors hands upon the former security and if it were lying in money beside him it would be moveable and a requisition to one of the Cautioners will make it moveable as to the Principal and all the other Cautioners But a charge on a band wherein Executors are secluded will not make the sum moveable for the design of the Creditor is presumed to continue in favours of the Heir till the sum be payed or the Band innovated but it has been otherways decided of late And for the same Reason a requisition used by a Wife who has a heritable sum that falls not under the Ius Mariti will not make it moveable since it is presumed she designed only to get payment but not to give it to her Husband But if the Creditor who required his Money take annualrent after that Requisition it is presum'd that he again altered his Inclination and resolved to have it Heritable to continue due by vertue of the first Security Though a Band be heritable as bearing annualrent yet before the terme of payment it is moveable as to all persons From all which it is clear that some sums are moveable as to the Executor but not as to the Fisk or Relict and some may be moveable as to the Debitor and his Executors and yet may be Heritable as to the Creditor and those representing him as for instance an obligation to imploy a sum due by a moveable band upon Land or annualrent for the Heirs of a Marriage that sum as to the Creditor would be Heretable yet quo ad the Debitor it would remain moveable Title III. Of the Constitution of Heritable Rights by Charters and Seasins HAving treated in the former Chapter of the difference betwixt Heritable and Moveable Rights it is now fit to begin with Heritable Rights as the more Noble Our Heritable Rights are Regulate by the Feudal Law by which Feudum which we call a few was defined to be a free and Gratuitous Right to Lands made to one for service to be performed by him he who grants this Few is in Our Law called the Superiour and he to whom it was granted is called the Vassal the Superiours Right to the Fie is called Dominum directum and the Vassals Right is called Dominum utile and if that Vassal dispone the Land to be holden of himself then that other Person who receives that Few is called the sub-Vassal whereas the Vassal who granted the Few becomes the immediate Superiour to this sub-Vassal and the Vassals Superiour becomes the Sub-vassals mediate Superior and is so called because there is another Superiour interjected betwixt him and the sub-Vassal The Superiour dispons ordinarly this Few to be holden of him by a Charter and Seasâ—n The Charter is in effect the disposition of the Few made by the Superiour to the Vassal and when it is first granted it is called an Original Charter or Right and when it is renewed it is called a Right be progress and proceeds either upon Resignation when the Lands are Resigned in the Superiours hands for new Infeftment either in favours of the Vassal himself or of some third partie or by confirmation when the Superiours confirms the Right formerly granted and if it is to be holden from the Disponer of the Superiour that is called a me and is a publict Right and is still drawn back to the date of the Right Confirmed But if the Confirmation be onely of Rights to be holden of the Vassal it is called de me
duty be payed for two years even though the whole was offered or though the Vassal was minor then the Vassal looses his Feu ob non solutum Canonem for the Feu duty is called Canon and if this provision be exprest in his charter he will not be allowed to purge this irritancy by offering the bygones at the Barr but though this provision be not exprest in the charter yet the feu will be annulled for not payment of the Feu-dutie by an express act of parliament but the Vassal in that case will be allowed to purge at the bar and the reason of this difference is because the express paction is thought a stronger Tye than the meer statute A clause irritant in Our Law signifies any provision which makes a penalty to be incurred and the Obligation to be null for the future as here where the Superiour gives out his Feu upon express condition that if the Feu-dutie be not payed the Feu shall be null and reduceable and a clause resolutive is a provision whereby the Contract to which it is assixt is for not performance declared to have been null from the beginning The Casualities that are due by all manner of holdings and which arise from the very nature of the feu without any express paction are None-entry Relief and Liferent Escheate None-entry is a casuality whereby the Superiour has right to the Meals and Duties of the Lands when there is not a Vassal actually entered to him and the reason why this is due to him is because he having given out his Feu to his Vassal or service when there is no actual Vassal entered the Law allowes him to have recourse to his own Feu that he may therewith provide himself with a Vassal who may serve him but though the full Rents of the Lands be due to the Superiour from the very time that he cites his Vassal to hear and see it found and declared that the Land is in None-entrie yet before that citation the Superiour gets onely the retoured duties and the reason of the difference is because after citation there is a greater contempt than before and so is to be more severely punished For understanding which retour dutie it is fit to know that there was of old a general valuation of all the Lands of Scotland but thereafter there was a new valuation the first whereof is called the old and the second the new Extent and both are called the Retour duty because they are exprest in the Retour or Return that is made to the Chancellary when an Heir is served but both are very far below the Value to which Lands are now improved though in Our Law the new extent be constructed to be the Value But in an infeftment of annualrent the whole annualrent is due as well before declarator as after because the annualrent is the retoure dutie it being retoured valere seipsum and that is called an infeftment of annualrent when the Vassal is not infeft in particular lands but is infeft in an yearly annuity of money to be payed out of the lands as for instance if a man should be infeft in the sum of five hundred merks yearly to be payable out of any particular Lands being worth 5000. merks yearly how soon the Vassal who had right to the 500. merks dyed the Superiour would have right to the whole 500 merks yearly until the Heir of the Vassal be entered vide infra Tit. Servituds § annualrents There is no Nonentry due in Burgage Lands because the Burgh it self is Vassal and never dyes and so therefore neither does the Burgh nor any private Burgess pay nonentrie the duty payable by a Burgh being onely by Watching and Warding When the Vassal enters he pays an acknowledgment to the Superiour which is called relief because it s payed for reliving his land out of the Superiors hands It is debitum fundi and affects not only the ground really but the Vassal Personally who takes out the precept for infefting himself though he never takes infeftment thereupon The value of this Casuality varies according to the nature of the holding for in Blench and Feu holdings it is only the double of the Feu or Blench duties but in Ward-holdings it is the full duty of the land if the Superiour be in possession the time of the Vassals entrie but if the Superiour was not in possession though the Vassall was minor or if the Vassall be major before his Predecessor dye then the Superiour gets only the retour dutie and it is so far from being presumed to be remmitted by the Superiours entering his Vassal that it is still exacted though it be gifted with the other Casualities For understanding Life-rent Escheates it is fit to know that when any man does not pay a debt or perform a deed conform to his Obligation his Obligation is Registrated if it carry a consent to the Registration in the body of it or if it do not there must be a sentence recovered and upon that Registrated writ or decreet for a Registrated writ is a decreet in the Construction of Law there will be Letters of horning raised and the Partie will be charged and if he pay not within the dayes allowed by the charge he will be denounced Rebel and put to the Horn and from the very day of the denounciation all his moveables falls to the King by a casualitie which is called single Escheate but now single Escheates fall likewise to Lords of Regalities if the persons denounced live within a Regality because the King has gifted all single escheates when he erected those Regalities If the Vassal continue year and day Rebel without Relaxing himself which Relaxation is expede by Letters under the Kings signet expresly ordaining him to be relaxed from the Rebellion then he is esteemed as Civilly dead and consequently not being able to serve the Superiour the Law gives the Superiour the meals and duties of his Feu during all the dayes of the Vassals life and this casuality is called Liferent Escheat so that every Superiour aswell as the King has right to the meals and duties of the lands holden of himself if his Vassal was once infeft and even though he was not infeft if he was appearand Heir and might have been infeft for his lying out should not prejudge his Superiour but if a man have right by disposition whereupon no infeftment followed the King only will have right to his Life-rent Escheate as he has for the same reason to the Manses and Gleebs of Ministers when they are Rebells since they are not infeft in these but all heritable and Life-rent Rights requiring no infeftment of their own nature such as a terce and Liferent-tacks fall not to the King and the Life-rent tacks fall to the Master of the ground and the Life-rent by Terce pertains to the Superiour during the Life-renters Lifetime This Life-rent Escheate comprehends only Rights to which the Vassal himself had right
not execute the Testament in their own Lifetime that is to say have not obtained Decreets for the goods belonging to the Defunct there will be place for a new Executor for executing these and they are called Executors quoad non executa or if the Executor ommit to give up any thing in the Inventar or do not give up the saids moveables at the full rates there will be another Executor Dative made by the Commissar who is called an Executor Dative ad ommissa vel male appretiata The Executor onely has power of Administration and the Creditors and Legators can onely pursue him except where there is a special Legacy left of such a particular thing or a sum owing to such a particular person For then the special Legator has the dominium transmitted to him and so he may himself pursue for his special Legacy but the Executor must be still called in the pursute to the end it may be known whether the Debts exhaust the special Legacies For no Legacy can be payed till the Debts be payed and therefore if all the Legacies cannot be payed the Legators suffers a proportional defalcation for payment thereof but if there be as much free goods as will pay the special Legacy it will be preferred without defalcation An Executor cannot dispone till he obtain a sentence but even the sentence states him not in the absolute right of the moveables otherwayes than that he may discharge and assign to the respective persons having interest For if he were denounced Rebel the Executory goods even after sentence would not fall under his Escheate nor would his Executors or his Creditors have right thereto in prejudice of the nearest of kin of the Defunct to whom he was Executor If there be moe Executors whom we call Co-Executors one cannot pursue without the rest for all of them represent the Defunct only as one person but if any of the rest will not concurr they may be excluded from their Office by a process before the Commissars nor can an Executor for the same reason discharge a debt wholly since the rest have an equal share in each debt but if the other Executors have got as much as their share will extend to the discharge even from one of the Executors will be sufficient nor are for the same reason Co-Executors lyable for the whole debt and so cannot be singlely pursued unless they have intromitted with as much as may pay the debt pursued for An Executor is lyable to do diligence for recovering the debts due to the Defunct and the diligence required upon his part is a sentence and Registrated horning against the defuncts debitors but if there be an universal or special legatar whereby an Executor confirmed has no advantage then the Executor is not lyable in diligence but only to assign the Creditors that they themselves may pursue The Executor likewise cannot pay any debt without sentence least otherwayes he might prefer one Creditor to another but yet the Executor may pay those debts that are acknowledged in Testament without Process providing the same be payed before the Creditors intent a persute or these which we call priviledged debts because they are preferred to all others viz. servants fies medicaments on death-bed house-meal and funeral-expenses After the Executors have executed the whole Testament they may get a Decreet of Exoneration before the Commissars against the Creditors and all having interest wherein they may prove that all they got is exhausted by lawful sentences but it is not necessar to have such a decreet when they are pursued before the Lords for it is sufficient when they are pursued there to alledge that they are exhausted by way of Exception If any Person intromit with the Defuncts moveables without being confirmed they are lyable to the Defuncts whole debts whether they were related to himor no and though their intromission was very small and this was introduced to prevent the fraudulent and clandestine abstracting of the Defuncts moveables without inventary in prejudice of Creditors and therefore this passive title is only introduced in favours of Creditors but of none others such as Legatars Bairns c. But if the intromitter confirme before any Action be intented this purges the Vitious intromission and the intromitter is only lyable for the value of the thing intromitted with or if there be an Executor confirmed no Person can be pursued as Vitious Intromitter for the Intromitter then is only lyable to the Executor But the Relict or the Defuncts Children confirming within year and day after the Defuncts death does thereby purge the vitiosity though they confirm not till after citation nor will necessar Intromission infer vitiositie and that is called necessar intromission when either the Husband or the Wife continue their possession of one anothers Goods after one anothers decease for preservation and that because there is no other person to look after them and this is for the advantage of the Creditors since it hinders the Goods from perishing If there be moe vitious Intromitters they are each lyable in solidum if they be pursued in several Actions and pro virili if they be pursued together but none of them get Relief for wrong in our Law has no warrant The Heir is obliged to relieve the Executor of all heritable debts and the Executor is bound to relieve the Heir of all moveable debts as far as the Inventar will reach Title IX Of last Heirs and Bastards WHilst there is any alive who can prove even the remotest contingencie of blood to the Defunct they succeed to him but if there be none the King succeeds as last Heir for quod nullius est est Domini Regis and so the King succeeds to the Defunct as last Heir both in Heritage and Moveables and is preferred to all Superiours and others whatsoever for which end he makes a Donatar who must obtain a Declarator before the Lords of Session against all who are supposed to have any Relation whereupon a Decreet being obtianed before the Lords declaring that the King has right as last Heir the Defunct having dyed without any Relation This Decreet is equivalent to a service but if lands be taken by a man to himself and his Heirs Male simply the King will succeed as last Heir if there be no Heirs Male though there be Heirs Female since the land was not provided to them and therefore men ordinarly in their tailzies adject the Clause whilks failzing to their Heirs whatsomeever Because the King succeeds here as Heir therefore he is lyable to pay the Defuncts debts but he is only lyable as farr as the Estate will extend and therefore the Creditors may adjudge the Real Estate and serve themselves Executors Creditors in the Moveables A Bastard by Our Law has neither Heirs nor Executors but yet he may dispone upon either his Heritage or Moveables inter vivos though he cannot make a Testament except
name to dispossess him by the Sword to raise Fire and use all other severities for which the Commission does indemnifie them If such as have debatable Rights choose rather an amicable than a Iudicial decision they subscrive a Submission to Arbiters and if they please to an oversman and another blank on the back of the Submission wherein they may fill in their Decreet Arbitral And though it be free to these Arbiters to accept yet if they once accept the Lords will grant Letters of Horning to force them to decide Though these Arbiters are not tyed to the strict solemnities of Law yet they must observe material Iustice and therefore they must advertise Parties that they may give in claimes for a claime to Arbiters is in place of lybels to Iudges and must allow Terms to prove And though Equity is to them a Rule as Law is to other Iudges yet if either Party be enormly lesed the Lords will suspend and reduce their Decreets If the Submission bear no special day betwixt and which they are tyed to decide they must decide within a year of the Submission and if Witnesses will not voluntarly appear before them the Lords will upon a Bill grant letters of horning to force them to appear Title IV. Of CRIMES CRIMES are either Private where the injury is committed against private Persons or Publick where it is committed immediately against the Common-wealth Private Crimes called also delicta in the Civil Law oblige the Committers to repair the Dammage and Interest of the private Partie Crimes are in Scotland either punished capitally by death or pecunially by a certain fine or Arbitrarly at the discretion of the Iudge Capitale Crimes are Treason which is punished by forefaulture of life lands goods It is Treason in any man to Plot contrive or intend death or destruction to the Kings Majesty or to lay any restraint upon his Royal Person or to deprive depose or suspend him or to endeavour the alteration or diversion of the Succession to Levy warr against the King or any Commissionated by him or to intyse others to invade him to make Treaties or Leagues with Forraign Princes or amongst themselves without his consent To rise in fear of warr against the King to raise a frey in his hoast to Assaile Castles where he resides to impugne the Authority of the three Estates to decline the Kings Authority not to come out to the Kings Hoast or to desert it to maintain or reset Treatours to conceale Treason to countersite the Kings coyne and to raise wilful fire all which are Species of high Treason We have a kind of Treason in Scotland which we call Statutory Treason because it is meerly introduced by statute and not by common Law viz. Theft in landed men because of the danger of that kind of theft murder under trust as if one man should kill another when he invites him to his house or a Tutor should kill his Pupill which because of the easiness and attrociousness of the Crime is made Treason The fireing of Coals heughs assassination the pursueing another for Treason without being able to prove it All Iesuits Seminary Priests and traffecking Papists and all thieves who take bonds from lealand honest men for re-entering when they please All who purchase benefices at Rome are guilty of Treason No Crime can be pursued against a man or his heirs after his death except that Treason which is committed against the Kings Person or Common-wealth The other Capital crimes are Blasphemie Mans slaughter or Homicide for all Homicide is Capital with us except it be Casual or Homicide in self defence Theft is punishable by death but we call small theft pickery and it is only punishable arbitrarly Notour Adulterey that is to say where there are Children of the Marriage or where the adulterers converse openly at bed and board or being discharged by the Church to converse do continue to converse is punishable by death but simple adultery is only punishable arbitrarly Incest * Buggery Duells the invading of any of his Majesties Officers for doing his Majesties service Forgery Witchcraft and the consulters of Witches Sorners that is to say such as masterfully take Meat and Drink from the Kings People without payment All wilfull hearers of Mass and conceallers of the same Mutilation which is the disabling of a member though de praxi this be ordinarly punished with an arbitrary punishment Or the Authours of infamous Lybells Seditious Speeches tending to sedition the strickers of any Iudge in judgement mixers of Wine and committers of hame-sucken by which we understand the assaulting or beating any man in his house The Crimes to be pecunially punished are the slayers of Red-fish killers of Daes Deer Roes destroyers of Bee-hyves Fruit-trees Greenwood kindlers of Mure-burn except in the Moneth of March Steeping of Green-Lint in runing Waters or Loches such as are guiltie of abominable Oaths and Furnication Crimes to be arbitrarly punished at the discretion of the Iudge are negligence in the Kings Iudges and Officers and such as unjustly murmure against them breakers of the Kings protection the bringing home of erroneous Books and the troublers of Church-men Crafts-men who wrongously refuse to fulfil the work which they have taken in hand verbal injuries and scandals against private Parties It is fit to know that no punishment left arbitrary by the Law to the discretion of the Iudge can be by him extended to death and that where-ever the Law appoints death to be inflicted the offenders moveables fall to the King though the Law does not express the same and though the sentence express not the confiscation There are other Crimes whereof the punishment is not reduceable to any of these kinds and thus perjury and Bigamie which is a kind of perjury because a man who marries two wives breaks his Matrimonial oath are punishable by confiscation of all the Offenders Moveable Goods Imprisonment and Infamy Deforcers of Messengers and breakers of arrestment are punishable by confiscation of all their Moveables Forestallers of Mercats by buying things before they be prâ—sented to the Mercat or before the Mercat be proclaimed are punishable by Imprisonment and Confiscation of what is bought Ocker or Usury which is the taking more than the annualrent allowed or the taking annualrent before the term of payment is punished by loss of the principal sum for the Debitor is to be free from the Obligation and the write being reduced the sum belongs to His MAIESTIE Stellionat or the making of double Rights is punished by infamy and their persons are at the Kings will The Keepers of Victual to a dearth are punishable as Ockerers and by the Civil Law per leg Iul de Annona Bribing of Iudges is