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A50719 Observations upon the 28. (i.e. 18.) Act, 23. Parl. K. James VI. against dispositions made in defraud of creditors, &c. by Sir George Mckenzie ... Mackenzie, George, Sir, 1636-1691.; England and Wales. Laws, etc. 1675 (1675) Wing M187; ESTC R19315 75,257 223

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Action at the Laird of Garthlands instance contra Sir James Ker upon this Act of Parliament did refuse to reduce an Infeftment albeit a meer Donation and made likewise by the Grand-father to his own Grand-child and that because the granter of the Infeftment was neither at the time of the granting thereof Bankrupt and non solvendo nor was he become such since neither had the Creditor done diligence for his debt and yet it might have seem'd in reason that though dispositions where there was an onerous cause might have been sustained there was no reason to allow the same priviledge in favours of confident persons for meer Donations And upon the 10. February 1665. the Lord Loure having quarrel'd the Lady Craigs Infeftment as being an additional Joynter granted betwixt Husband and Wife to his prejudice who was a Creditor and had comprised the Estate It was answered that the disponer was neither bankrupt nor insolvendo nor did the Compriser sustain any prejudice seing the Lady was content that the Lord Loure should be preferred to his Annual-rents by vertue of his Comprysing providing he would assign the Lady to his Comprising pro tanto that she might recover as much for satisfaction of her additional Joynter which answer the Lords found relevant the Apprisers prejudice being purged as said is but they ordained the Compriser not only to be admitted to have access to the comprised Lands by assignation in manner forsaid during the Legal but they likewise declared that if the Lady redeemed not within the Legal the Lands should be irredeemable and the Lady should be totally excluded which though it was but a trysting Interloquetor do's confirm the former opinion And though it may be alleadged that a Disposition being once valid when it was first granted cannot become thereafter null by the disponers becoming thereafter insolvent yet this holds not in many cases in our Law for we find that Dispositions of less then the half of Ward-Lands without consent of the Superiour become thereafter null if as much of that Barrony be thereafter disponed as will amout to more than the half But in my opinion though the rubrick of our Statutes may found a presumptive argument for explicating the Text yet it is not authoritative for the Rubrick is not read in Parliament and it is added to the Law after it is past carelesly without debate Our Soveraign Lord with advice and consent of the Estates The legislative power of Scotland consists in the Parliament that is to say the King and three Estates of Parliament and though some think it more proper in our Law to say Our Soveraign Lord and Estates of Parliament as in all the Statutes or Acts of the 18. Par. Ja 6 then to say Our Soveraign Lord with advice and consent c. yet I conceive the King Statutes and they but consent though their consent be necessary for his touching them with the Scepter and not the being voted makes them Laws and in England the King statutes with consent of Parliament and upon their supplication and therefore I understand not Craig who Diag 8. affirms Statutes to be constitutiones trium Regni ordinum cum consensu Principis for that is just to invert the statutory words of this and many other Acts. Our old Acts being all past the last day of the Parliament did not express the statuting power in every Act for in effect they were all but branches of one Act and run Item that c. and many of these Acts bear It is statute by the Parliament and the King forbids as Acts. 13. 14. 1 Par. Ja. 1. which Intimats that though the Parliament statutes suffragando consentiendo yet the King only doth statute sanciendo prohibendo Sometimes our Acts bear It is statute by the hail Parliament and sometimes It is statute and ordained without mentioning either King or Parliament sometimes also they bear the determination of Parliament without speaking of the King which was either where the King was to perform what was statuted as 23. Act Par. 1. Ja. 1. It is statute and ordained that our Soveraign Lord shall gar mend his money And by the 6 Act 3 Par. Ja. 2. The Estates has concluded that the King shall ride thorow the Realme or else when the Estates are only to grant what is statuted as in Commissions granted for uniting the two Kingdoms But I find one Statute bear the King statuting without mentioning the Estates of Parliament viz. Act 19. Sess. 1. Par. 1. Ch. 2. but this is but meer inadvertance Ratifies and confirms an Act of the Lords of Session c. This was originally an Act past by the Lords of Session when they do sit judicially at which time it is marked in their books of sederunt such and such men did sit Thus the Hebrews disigned the books of the Old Testament by the first words and thus we still mark the Laws from the first words and thus the old books of our Law are called Regiam Majestatem because they begin so His Majesty at the first institution of the Colledge of Justice did allow the Lords of Session to conclude upon sick Rules Statutes and Ordinances as shall be thought by them expedient to be observed and keeped in their manner and order of proceeding at all times as they devise conform to reason equity and justice his Grace shall ratifie and approve the same These are the words of the 43. Act 5. Par. Ja. 5. to the which Act I think this act relates but it would appear both by that Act and by the power as here repeated that the Lords of Session have only power to make orders relating to the regulation of their own house and to the forms of Process For this was indeed necessary for explication of their Jurisdiction and possibly was implyed in their very constitution without any expresse warrand arg l 2. ff de jurisdict but it seems that this general power cannot authorize them to make Statutes and Acts relating to the material distribution of Justice such as that all Writs should be null except subscribed before witnesses though they might have ordained that Papers under the hands of their own Clerks should be so subscribed for if they could make Statutes as to any thing else besides the forms of their own house there needed no Parliament for their Statutes might bind all the people in all things and yet it may be objected that by this argument the Lords of Session could not have made this Law declaring Contracts amongst the Leidges to be null that touching upon one of the fundamentals of humane society albeit they might have declared such a nullity receiveable by way of exception for that concerned only form of Process But the Answer to this is that the Lords in making this Act did not introduce jus novum a new Law but only adapted to our practice the old Roman or Civil Law which they might have followed in their decisions without making any new
A OBSERVATIONS Upon the 28. Act 23. Parl. K. JAMES VI. AGAINST Dispositions made in defraud of Creditors c. By Sir George M ckenzie of Rosehaugh EDINBURGH Printed by His MAJESTIES Printers Anno DOM 1675. THE PREFACE THe easiest and plainest part of our Law are our Statutes for these are by Printing exposed to all mens view and are drawn to instruct the vulgar in what they must obey And this Statute against Bankrupts must be presumed to be amongst the easiest and most intelligible because it is founded upon the evident principles of equity and reason and was first drawn by the Lords of Session and after some years trial was renewed by the Parliament who would have plain'd what was obscure and supplied what was defective And yet I am afraid that albeit the Statute be very full and my Observations upon it be very clear that yet it will appear convincingly that the knowledge of the Law is not easie and that none should pretend to it but such as have illuminated their excellent natural parts with laborious Learning and have polish'd that Learning by a long Experience I have not debated fully the cases here related that being fitter for Pleading then Treatises nor have I set down all the cases that occurred lest the Reader should think I industriously designed to confound him the more to magnifie the necessity of Lawyers It cannot be denyed but many now in my condition could have treated this Subject both more profoundly and delicatly but yet I may say that nothing here is against Law since all these Sheets have had the approbation of one of the ablest Lawyers in our Nation who can neither deceive nor be deceived in his own profession These Sheets are but a part of a greater work wherein I resolve to clear 1. What Acts are in desuetude or abrogated 2. How each Act is interpreted by the Lords decisions 3. What new doubts may arise from each Act though not yet decided 4. Wherein our Statutes agree with the Civil Law or Laws of other Nations And thus I hope to make all our Acts of Parliament intelligible and plain AN EXPLICATION OF THE Act of PARLIAMENT 1621. AGAINST BANKRUPTS The words of the Rubrick or Inscription of this Act are A Ratification of the Act of the Lords of Council and Session made in July 1620. against unlawful Dispositions and Alienations made by Dyvours and Bankrupts FOr the better understanding of the Inscripon or Rubrick it is fit to know that the word Bankrupt which is the translation of the Latine Banciruptor is in the Original but a barbarous word either derived from the French word Banque or the Italian Banco and the word rumpere because when Merchands became Bankrupts they broke either the seat upon which they did sit or the bank or table at which they did sit as Salmas observes in Pref. de usur pag. 511. But now the word Banciruptor is taken not only pro mensulario foro cedente but for any Merchand or any other person who has contracted more debt then he is able to pay as Vegnern observes pag 8. They are called likewise decoctores quia rem suam coquendo diminuunt decoquere signifying diminuere Bud. ad l. si hominem § quoties ff deposit In Italy they are called falliti cessantes Boer decis 215. but in the Civil Law the true Latine word is fraudatores l. 4. ff de curat bon dand They are likewise by this Rubrick called Dyvour or Dyour from the Irish word Dyer as I conceive which signifies a knave and they are likewise called bairman in our Law l. burg cap. bairman 144. de jud cap. bairman 46. Though our learned Skeen does in de verb signif verb. Dyvour make Bankrupt to be the same with him who has obtained a cessio bonorum qui bonis cessit yet these differ very much for a Bankrupt is he only qui foro cessit sed qui bonis cessit forum retinet bona creditoribus in solutum dedit Hottoman de verb. sig verb. credere caedere for● est facti caedere bonis est juris and he only who has lost his estate by accident without his own ●ault was allowed bonis caedere bancciruptor dicitur qui dolo casuve non solvendo factus est Venger ibid. How the word Banckrupt is taken in this Act may be justly doubted for by the Rubrick of the Act it would appear that this Act strickes only against dispositions which are made by persons insolvent and whose estate is not able to pay the debt due to the reducer for the Rubrick of the Act beares to be against dispositions made by Bankrupts or Dyvours so that these two are made pares termini and therefore since a Dyvour is a person who is insolvent it seems that this Act must only strike against Dispositions made by persons that are insolvent per argumentum à rubro ad nigrum for Lawyers are very clear that where either the Rubrick is an intire sentence or where any term used in the Rubrick is explained by any equipolent or exegetick word that there the general term which is dubious is to be interpret according to the import of both these terms and therefore since the word Dyvour is only applicable to persons insolvent the word Bankrupt must be likewise interpret only of these and so the Rubrick running only against Dispositions made by persons that are insolvent it must follow that only such deeds are reduceable as are done to the prejudice of Creditors by a person that is insolvent 2. This seems likewise consonant to reason for if the Creditor can recover his debt he is not prejudged and so the design of the Act fails and it were most unreasonable to trouble a person who has got a Disposition except there be an absolute necessity 3. This is most suitable to the common principles of Law whereby nunquam recurrendum ad remedium extraordinarium quamdiu locus est ordinario no more then in Physick a member should be cut off where it can be cured and therefore a Creditor who may recover payment by ordinary diligences such as by the comprysing or arresting his Debitors Estate ought not to be allowed to reduce all Dispositions made by his Debtor since omnes actiones rescissoriae and particularly actio Pauliana sunt remedia extraordinariae whereby the Magistrate has been by cheats of Debtors and the fraudulent Dispositions of such as contract with them forced to rescind and annull the private pactions of parties contrary to the ordinar and general principles 4. This seems to be further clear by the narrative of the Act which runs only against dispositions which elude all execution of justice whereby Creditors are defrauded of all payment and many honest families come to utter ruine neither of which expressions are applicable to the case of Creditors who may recover payment otherwise Conform to which arguments I find that the Lords upon the. 6. of March 1632. in an
Act of sederunt as they do in most cases where the Civil Law is founded upon equity as here and where they are not determined by either our former practice or constitutions And by the same principle both the Lords of Session and the Parliament did in this Statute declare that their said Act should extend to causes depending or to be intented whereas Statues regularly are extended only to future cases except where the Act declares what was Law formerly as in this case We may then conclude these differences betwixt these Acts of sederunt and Acts of Parliament that Acts of sederunt can only be made concerning the formes of procedure or to fix a constant decision for the future in cases which they might have so decided before their own Act and it is their prudence and our hapinesse that they should rather decide in hypothesi then in thesi But Acts of Parliament should mainly be made to regulat new substantial grounds of justice and commerce But though this power of making orders for administration of justice be properly and principally their province yet they have in this but a cumulative jurisdiction with the Parliament who may and do likewise make such orders but the Parliament ought to do so sparingly since forms are better known to the Lords of Session then to them and therefore it seems that the power of making Acts relating to forms or of regulating forms already made belongs particularly to the Lords of Session both because of ther constitution and experience The Lords have been in use not only to regulat their own Court by Acts of sederunt but they have by the same power prescribed regulations to other Courts and thus as to the Justice Court in anno 1591. years they made an Act that women and socii criminis might be received witnesses in cases of Treason and we find that they have likewise regulated inferiour Courts without any previous warrand as is clear by the 19. Act 23. Par. Ja. 6. where the Parliament ratifies an Act of Secret Councel and Session which did ordain and command that no Process should be granted before inferiour Judges on the first Summonds but upon lybelled Precepts and citations of fifteen dayes warning And in anno 1636. they made an Act of sederunt appointing that no consent of any inferiour Court should bind the consenter except it were subscribed by himself and that the assertion of the Clerk of that Court was not sufficient Nor should this extention of their power seem unwarrantable for since they may reduce the Decreets of inferiour Courts it seems most consequential that they may regulat their procedure but though the Lords of the Session pass the Bills before the Justices and advocat Causes from before that Court it may seem strange that they should have power to make Acts of sederunt for regulating that Court the jurisdictions Civil and Criminal being most distinct and different It may likewayes seem both by the former Act allowing the Lords of the Session this power and the Ratification of their Statute specified in this Act that it is necessar that all the Acts of sederunt which relate not meerly to the regulating their own forms should be ratified by the Parliament though in the interim of Parliaments these Acts should bind And yet de facto we see very many Acts of sederunt to have full vigour and force without any such confirmation Before I begin to explain the words of the Act of Parliament I shall offer this Analysis of it Either the Creditors who are defrauded are such Creditors as have done no diligence or such as have done diligence if they be such as have not done diligence then either the Dispositions quarrelled are made to conjunct persons or not if they be made to conjunct or confident persons either they are made for necessary and onerous causes or not if they be made for an necessary and onerous cause they are valid though made to conjunct or confident persons 2. If these Dispositions be made without an onerous cause then either they remain with the conjunct confident to whom they were made or not if they remain with him they are reduceable either by way of exception or reply But if any third party no way partaker of the fraud has lawfully purchast any of the Bankrupts Lands for a just and true cause then the Right is not quarrelable but the Receiver is only lyable to make the same forthcoming to the Bankrupts true Creditors 3. The fraud is probable by writ or oath of the party receiver 4. If the Creditors have done diligence by Inhibition Horning c. Then the Bankrupt cannot in prejudice of these Creditors who have done diligence dispone voluntarily any part of his Estate to defraud that diligence in favours of another concreditor who has done no diligence or posterior diligence or in favours of any interposed person to their behoof And in this part of the Act it is not considered whether the interposed person be a person conjunct or not 5. The Bankrupts the interposed persons and all such as have assisted them in advising or practising these frauds are declared infamous Conform to the Civil and Canon Law c. BEcause the Act of Parliament and Act of sederunt bear that they have in this Act followed the Civil and Canon Law We may justly assert that it were ●●t the Lords of Session understood exactly the Civil Law and that it is the great foundation of our Laws and Forms Thus we see that Robert Leslies Heirs are by the 69. Act Parl. 6. K. Ja. 5. ordained to be forefaulted for the crime of treason committed by their Father according to the Civil Law and forfaultor in absence was allow'd by the Lords of Session in Anno 1669. because it was conform to the Civil Law and falshood is ordained to be punished according to the Civil and Canon Law Act 22. Par. 5. Q. M. And that the Civil Law is our rule where our own Statutes and Customs are silent or deficient is clear from our own Lawyers as Skeen Annot. ad l. 1. R. M. c. 7. ver 2. and by Craig l. 1. Diag 2. As also from our own Historians Leslie l. 1. cap. Leg. Scotor Boet. l. 9. Hist. Camer de Scot. Doctr. l. 2. cap. 4. And the same is recorded of us by the Historians and Lawyers of other Nations as For●a● lib. 7. de gal imper Polid. lib. 1. Hist. Angl. Petr. d● amitis Geograph Europ tit di Escosse and Duck de auth jur civ lib. 2. cap. 10. And though the Romans had some customs or forms peculiar to the genious of their own Nation yet their Laws in undecided cases are of universal use And as Boet. well observes Leges Romanas à Justiniano collect as tanta ratione sermonis venustate esse ut nulla sit natio tam fera vel ab humanitate abhor●ens quae eas non fuerit admirata And K. Ja. 5. was so much in
love with the Civil Law as Boet. observes lib. 17. that he made an Act that no man should succeed to a great Estate in Scotland who did not understand the Civil Law and erected two professions of it one at St. Andrews and another ar Aberdene and when K. James the second did by the 48. Act 3. Parliament ordain that his Subjects should be governed by no foraign Laws he design'd not to deny the respect due to the Roman Laws but to obviat the vain pretences of the Pope whose Canons and Concessions were obtruded upon the people as Law by the Church-men of these times It is also fit to know that by the Civil Law many remedies were provided to secure Crditors against the cheats of their Debitors As first Actio Pauliana so called either from Paulus the Praetor who did introduce it or from Paulus the Lawyer who did first advise it by which Action Creditors might recall either the Estate moveable or immoveable dispon'd by their Debitor to their prejudice 2. Actio in sactum by which bona incorporalia such as jura servitutes were recalled when alienated l. 14. ss quae in fraudem creditorum 3. Actio faviana whereby Patrons might revoke that which was done by their freed men to the prejudice of that fourth part or legittim which was due to them by the Law 4. Actio faviana utilis by which Minors who were adopted or arrogated might revoke what was done in prejudice of their fourth part due to them But though Snedwine calls this utilis faviana yet it is a mistake for Hottoman Gomezius and others do much more properly make this a species actionis Calvisia●ae 5. Actio Calvisiana which was granted indifferently to Patrons and others 6. Edictum fraudatorium which was competent when the Creditor was to revoke what the Debitor had alienated and which belonged to another and not to himself as if a Tutor had alienated the goods belonging to his Pupill which Pupill and not himself was Debitor The Action competent by the Civil Law was called Actio revocatoria so called because the Judge revoked what was done and with us it is called an Action of Reduction because the deeds so done are reduced or rescinded And I find the word Reduction used by Civilians even in this sense as by Panormitan Concilio secundo and others And reducere does properly signifie informam pristinam instaurare as is clear by Ulp. l. 3. ss de Itin. act privato § 15 And therefore we have elegantly called this an Action of Reduction because the Judge was to restore the thing alienated in prejudice of the Creditor to its former condition whereas the Reduction of Decreets was a term unknown to the Civil Law they using only Appeals and Revisions but Reductions of Sentences is used amongst the Doctors even in the same term and sense that we use it as is clear by Gail lib. 1. observ 141. 150. And the reason why it was necessar for Lawyers to introduce the necessity of such Reductions or Revocations was because in the subtility of Law the alienation did ipso jure transferre Dominum l. si sciens ss de contra empt And therefore it is that if such Reductions be not raised before the years of prescription the alienation it self is valid though within that time it might have been rescinded by this Action of Reduction Though this Statute only declares all Alienations Dispositions Assignations and Translations whatsoever made by the Debitor of any of his Lands Teinds Reversions Actions Debts or Goods whatsumever to be null yet this is extended to Bonds granted and to Tacks set by the Debitor to the prejudice of his Creditor for though neither Tacks nor Bands be comprehended under the Letter of the Law yet the same parity of reason extends the Act to them and in Laws which are founded upon the principles of reason extensions from the same principles are very natural and in Laws which are introduced for obviating of cheats extensions are most necessary because the same subtile and fraudulent inclination which tempted the Debitor to cheat his Creditors will easily tempt him likewise to cheat the Law if the wisdome and prudence of the Judge did not meet him where ever he turned But yet Bands in so far as they are personal do not prejudge the Creditor nor fall they under this Statute but only in so far as they tend to and may be the ground of legall Alienation by Comprizing Poynding or other diligence to the prejudice of the Creditors and by affecting the Debitors Estate By the word Alienation is meant not only an express transferring of the right but any act whereby the dominium or property is loosed to the Debitor as if the Debitor should in prejudice of his Creditor habere rem pro de relicto ut alius ●um occupet if he should relinquish any thing upon design that a conjunct or confident person might possess it Discharges likewise by the Debitor of a right competent to him are reduceable upon this Act of Parliament though the word Discharges be not exprest in the Act for by the common Law Competebat Pauliana quando Creditor liberabat Debitorem suum acceptilatione vel per pactum de non petendo Wherein l. 1. § 2. ff h. t. agrees with l. 5. Basil. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I doubt not but upon the same parity of reason if a Debitor suffered a Decreet to go against him dolose and connived so far in prejudice of his Creditor as to omit a competent defence but the Creditor might reduce that Decreet upon this Act of Parliament if he could instruct the connivance and collusion and verifie the defences that were omitted but without this collusion were clearly instructed it were very hard to reduce a Decreet at the instance of a party who needed not to have been called I likewise think that if the Debitor should in prejudice of his Creditor suffer the term to be circumduced against him for not compearing to depon that Decreet were likewise reduceable And this was so found at the instance of Marjory Halyburton contra Morison where though Morison was a singular Successor and had got an Assignation to the Decreet obtained by collusion against Watte by his Brother yet the Lords ordained Witnesses before answer to be led for proving the collusion and repon'd Watte to his oath and ordain'd him to depon But the difficulty there would be how a Debitor could be compelled to swear and I doubt not but in this case if the collusion were offered to be proven by the oath of him who obtained the Decreet that the Decreet would be reduced though the Debitor compeared not to depon or if the Creditor pursu'd him that ●o casu he would be forced to depon and that if he refused personal Action would be obtained against him l. 3. § 1. h. t. which allows Action to the Creditors Si data opera ad judicium non venerit 〈◊〉 〈◊〉 〈◊〉 〈◊〉
conceal'd or may be forced to discover them when revealed As for instance a Client not knowing that he can be defended against an pursuit for murder by proving it was committed in self-defence will conceal from his Advocat that he killed at all least his confession and his Advocats testimony might be made use of against him 2. This might afford to Advocats great matter of prevarication and might occasion much prejudice to the Clients for an Advocat having discovered the weakness of his Clients Cause might discover it likewise to his adversary and to cover his prevarication he might suggest to his said adversary that he might be examined and so impute the discovering of these secrets to the cogency of the Law and not to his own privat inclinations which made Rob. Annaeus say that si tamen de inceps Advocato liceat Clientium secreta pandere causarum arcana fidei suae commissa palam publice proferre eaque parum fido pectore effutire In foro deinceps non equitatis cognitio sed latrocinium exercebitur tribunalia murices erunt quibus litigantium simplicitatem undique circumvenire imputare licebit in judicio non templum ●hemidis sed spoliarium erit si clientes tacita confessionis side captare irretire permittetur Whereas now if a Clients secret be discovered he can blame no man but his own Advocats who are by their honour and interest oblieged to keep up a secret whose discovery can be ascribed to none but them The designe of all Probation is to convince the Judge whereas because of the great Relation that is betwixt an Advocat and his Client Law and Experience cannot but presume that hardly Truth can be discovered this way And this way rather opens a door to lying or gives occasion to fallacious and ambiguous concealing of Truth then helps the discovery of it Upon which account the Law has shunned to force men to depon against themselves or Husbands against their Wives or Children against their Parents in Criminal cases And therefore Virgil equals those two pulsatusve parens fraus innexaclienti Upon which place Servius observes that Clientes quasi colentes Patroni quasi patres tantundem ergo est Clientem quantum filium fallere and such was the respect due to Clients that the Law allowed less liberty in deponing against them then against Blood Relations and thus M. Cato is brought in by A. Gell. saying adversus cognatos pro cliente testatur testimonium adversus clientem nemo dicit And the Law has still been rather inclined to evite the hazard of Perjury then to follow too far the Interest of the Common-wealth or of private Parties since God Almighty suffers by the one and men only suffer by the other 5. The Law L. nimis grave C. de testibus tells us that Mandatis cavetur ut presides attendant ne Patroni iu causa cui Patrocinium prestiterunt testimonium dicant And though Bartolus and some others do expon this Law so as if a Judge were thereby only discharged to admit an Advocat to depon for his Client This Gloss seems to be most absurd both because the words of the Law are general and since they extend to both cases and that no Posterior Law has restricted them there is no reason why both should not be equally comprehended As also Laws are presumed to be made still against the more doubtful case but that Advocats could have been received to depon in favours of their Client was so clearly against the whole Analogy of Law that there needed no special Law to have been made against that case but there was necessity to inform Judges whether Advocats could be forced to depon against their Clients which gloss is approved by the learned Heraldus de Rer. judicatar auctor lib. 2. cap. 4 And conform thereto the Parliament of Paris did find in December 1619. that an Advocat could not be oblieged to depon against his Client for clearing of a Fraud for which his Client was pursued By Justinians 80. Novel cap. 8. It is appointed that though witnesses may be forced to depone both in Civil and Criminal matters yet those who had been imployed as Mediators who are called there 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 should not be forced to depone as witnesses except both parties consent for which no other reason can be given but because the parties had entrusted their secrets to them And accordingly the Senat of Savoy decided the 23. November 1596. as Faber observes lib. 4. tit 15. def 56. and the reason there given is solent enim qui litigant agere liberius cum istis mediatoribus quasi cum confessore causae patrono Then which nothing can be more convincing Idem etiam in proxeneta observavit papiensis in form jur test num 15. And in this the Cannon Law agrees with the Civil for by Can. statut Caus. 2. quest 6. It is ordained that no Clergy-men shall be obliedged or can be compelled to bear witness in a case which has been referred to him by two Laicks And therefore since that trust is held so Sacred that the secrets even revealed to Arbiters are not to be extorted from them much less ought an Advocat to whose patrocinie his Clients slee and from whose faithfulness they seek protection to violat that trust and disappoint that confidence sane id à Romana virtute animi magnitudine erat plane alienum And how much secresie they allowed to witnesses who had got any thing entrusted to them is clear l. 1. § 38. ff deposit si quis tabulas testamenti apud se depositas pluribus presentibus legit ait Labeo depositi actione recte de tabulis agi posse ego arbitror injuriarum agi posse si hoc animo recitatum testamentum est quibusdam presentibus ut judicio secreta ejus qui testatus est divulgarentur Nor can there be a solid reason given why Confessors cannot be forced to discover the secrets revealed to them sub sigillo confessionis And yet Advocats shall be oblieged to reveal what is consigned to them under the sacred assurance of Trust and Secrecy Especially seeing that Law which is alledged against them does acknowlepge them to be juris justittae Sacerdotes l. 1. ff de just jur Since the Common wealth is more concerned in the secrets of Affairs then in secrets of Devotion and there are greater temptations to provoke the Trustee to discover the one then the other for few can have advantage by what a Confessor can reveal but many could gain by that an Advocat can discover I must here beg leave to represent that the rise of this great trust betwixt Clients and Patrons was that first when Rome was founded Romulus finding the error the Grecians had committed in tyranizing over their Clients whom the Athenians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the Thessalians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he did introduce a mutual Friendship and tye betwixt