conformis rationi conveniens Voet. de Statut. Sect. 7. cap. 2.116 BY the first part of this Act the Lords of Session are made Judges to the Interpretation of the Act of Oblivion whereas by the Act 67 Par. 9 Q. M. several particular persons were named for that effect There is an unprinted Act saying that because several of the Lords were dead and that because many legal actions arose upon the Indemnity therefore this Act was necessary By the second part of this Act nine Lords of Session are sufficient to be a Quorum and which is now observ'd though by the 57 Act 5 Par. Ja. 5. ten Lords with the Chancellor or President at the first Institution were necessary to make a Quorum THis Act is fully Explain'd in the 78 Act 9 Par. Queen M. except in so far as concerns the Obligation laid by this Act upon the Notars to bring their Prothecals to the Lords of Session and which are to be kept by the Clerk register and his Deputs these Prothecals are the Book wherein Notars set down the Breviats of what Instruments they take protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss in Novel 44. de tabel the reason why they are ordain'd to be brought to the Register is that false Papers may be hereby try'd and lost Papers may be made up for if an Instrument be lost the person in whose favours it was at first made may raise an Action before the Lords craving that it may be made up out of the Notars Prothecal and this being nobilis officii cannot be done before inferiour Courts Vid. 22 Act 22 Par. Ja. 6. Upon the 19 of February 1680. The Lord Register contra Sir William Primerose It was found that the Registers Deput called the Clerk for the Notars was Deprivable for not calling in the Prothecals of Deceassed Notars by the space of five years to which the Lords found him actually oblig'd though it was alleadg'd that by these Acts he was only oblig'd to receive the Prothecals when they were brought in but not to call for them nor was it possible for him to know when Notars dy'd and therefore by this Act Sheriffs c. are ordain'd to acquaint him of the Death of Notars within their Jurisdictions for it was urg'd that the Obligation to bring in the Prothecals being committed to this Clerk and he being only intrusted with it the Act would be elusory if he were not oblig'd to do Diligence since none else could do it and he might easily inform himself at least once a year It was also Debated that by this Act the Clerk to the Notars was oblig'd to understand sufficiently the Office of Notary though it was answer'd that he was no further oblig'd than to draw a Bill for their admission and the Clerks of the Session are not oblig'd to understand the Civil Law which they are oblig'd to Minut MEssengers being grown too numerous therefore by this Act they are restricted to 200. comprehending the seventeen Heraulds Macers and Pursevants in that number which number is here divided amongst the Shires but the number is now increas'd contrary to this Act and to the great loss of the people The Lyon is Constituted by this Act sole Judge to the faults committed by Messengers and to their Cautioners whom they find for their good behaviour at their Entry which power is Ratifi'd by the 125 Act 12 Par. Ja. 6. And the Lyon with his Brethren Heraulds are declar'd Judges to all the Malversations of Messengers in their Offices by the 21 Act 3 Sess. 2 Par. Ch. 2. by which Act though the Malversation of the Messenger be punishable by the Lyon yet he has not power thereby to determine upon the Damnages done to privat parties by Messengers and to determine against the Messenger or his Cautioner for the sums for which the Messenger should have us'd Execution albeit the Lyon has privat Ratifications from the Parliament with this priviledge vide June 27. 1673. Heriot contra Corbet BY this Act all Supersederies are discharg'd for Protections against Execution of the Law were so call'd then This Act is renew'd 13 Act 23 Par. Ja. 6. By which the Granter is declared lyable for the Debt and by the 9 Act 3 Par. Ch. 2. These Acts are Ratifi'd and because the last Act related only to the Session therefore the Privy Council Session Commissioners of Justiciary and Exchequer are declar'd lyable if they grant Protections except to such as are Cited to answer before them and so the Act protects not pursuers for they are not Summon'd and if pursuers were protected any man might raise a summons and thereby grant himself a Protection but yet if the interest of the Common-wealth require that a Crime be prosecuted I think they may after inquiry secure the pursuer during the dependence for though His Majesties Advocat may pursue without an Informer yet an Informer helps much Albeit that Act Discharges the granting Protections and makes the Granters lyable yet the Contemners of the Protection are punish'd and a Writer to the Signet was Suspended in November 1678. for causing apprehend a person notwithstanding of the Lords Protection albeit it was there alleadg'd that though Protections might be granted by the Lords upon depending Processes yet these Protections could not extend to secure them against delivering of Papers which are in their own power and though a Protection granted by the King for Debt does not secure against things that are in the Receivers own power as Exhibition of Papers c. yet if either the King or the Lords grant expresly Protections against all Cases whatsoever then it will secure even against such Exhibitions until the same be expresly re-called though it seems that by that Act Judicatures have only power to grant Protections to such as are Cited before them during the time wherein they may come and return to obey the Judicature in cases wherein their personal presence is necessary for the Administration of Justice not exceeding a month in all It is also clear that even the Defender may be apprehended if he get not a Protection for this Act does not protect but is only a warrand for granting one And there is lately an Act appointing Protections that pass under the Kings Hand to pass the Great Seal per saltum The Council to prevent the granting of Protections whereby the privat interest of the Subjects was so much destroy'd and the execution of Law eluded did by an Act in January 1678. and signed by all of them declare that whoever voted to any such Protections should be lyable to the Debt to elide which they thereafter changing the name of Protections granted Licences to persons to stay in the Countrey free from all Execution and therefore the King by His Letter in July 1679. did Discharge the Council to grant any Licences or Protections except conform
November 1682. Sir William Ker contra Grubet and others Interruption being thus made by the King does last for fourty years so that no Prescription can run against the King till fourty years after the date of this Act and that though the Executions and publication required by this Act of Parliament cannot be found for every particular Shire It may be likewise doubted whether Prescription should run against the King whilst he was out of the Countrey For which vid. observ on the Act of Prescription 1617. BY this Act the Parliament Rescinds all Rights of Regality made by King Charles King James or Queen Mary belonging to Abbots Priors or any Benefic'd person reserving alwise to the Heretable Baillies and Stewarts of the saids Regalities and Stewartries their Rights granted to them prior to the saids Erections for ordinarly even when these Regalities were in Benefic'd persons own hands they made Heretable Baillies but I confess I understand not what is mean'd by the Stewart of a Regality for Stewartries and Regalities are distinct and inconsistent Jurisdictions a Stewart being a Judge in the Kings Property only having the same power that a Lord of Regality has of the Lands Erected in the Regality holding of himself and the Lands holding of him But this Act has in this follow'd the words of the Act of Annexation 1587. By the Act of Annexation 1587. Act 29. All Regalities belonging to Arch-bishops and Bishops were thereby Annex'd because their whole Lands and Temporalities were then Annex'd but being restor'd in anno 1606. their Regalities are hereby reserv'd to them UPon the Submission and Surrender made by the Lords of Erection and other Titulars it is condescended to by this Act That His Majesty shall remain not only Superiour to the Lords of Erection but even to all the Vassals who held formerly of any Abbacy Priory or other Benefice Erected and therefore by vertue of this Act they may hold of the King if they please but according to an express condition in the surrender it self there is by this Act reserv'd to the Lords and Titulars of Erection who subscrived this Surrender the Feu-mails and Feu-ferms due by their Vassals ay and till the King pay to the saids Lords and Titulars of Erection a thousand merks for ilk Chalder or an hundreth merks of Feu-duty payable to them for there is nothing allow'd to them for the Service of Tennents Though the Lords of Erection did not expresly reserve to themselves the Casualities that might fall to them by their Vassals during the not Redemption for they reserv'd only their Feu-mails and Feu-ferms since inclusio unâ—us seems to be exclusio alterius and the Superiority being by this Act declar'd to belong to the King the Casuality should follow the Superiority yet by a Decision the 24 of July 1632. The Lords found that the Lords and Titulars of Erection had Right to the Casualities of these Superiorities ay and till they be Redeem'd but by the 30 Act Par. 1 Ch. 2. It is declared That the Feuars shall be bound to make payment of their Feu-ferms and Duties contained in their Infestments to the Lords of Erection ay and till they be Redeemed but it is not clear whether Escheat and Non-entry will belong to the King or Feuars except it be comprehended under the general word Duties Though the Feu-mails and Feu-ferms be reserv'd to such Lords and Titulars of Erection as subscriv'd the Surrender so that it may seem necessary to prove that these who seek Feu-duties did subscrive or else that these should belong to the King yet because the Surrender cannot be found the Lords found it sufficient that the Titular acknowledg'd the Kings Right conform to this Act But they found that they had not Right to the Arrages and Carrages of these Kirk-lands because by this Act all the Rents and Duties are Declar'd to belong to the King and the Reservation in favours of the Superiour is only of Feu-duties if they found no abatement of the Feu-duty in respect of Vastations since the Feu-duties were small and the Feuar might have gain'd by prior and subsequent years June 27. 1662. Watson contra Elleis Because the Superiorities of these Kirk-lands is by Act declar'd to belong to the King therefore the Lords of Erection cannot pursue a Reduction of these Feus nor is the concourse of His Majesties Advocat sufficient except there be an express Warrand under the Kings Hand for that effect Albeit it be uncontroverted by this Act that the King has no right to the Feu-mails and Feu-ferms due by the Vassals of Erection until he redeem the same as said is yet it may be doubted whether the King has Right to the Feu-mails and Feu-ferms of the Lands which pertain'd in property to the Lords of Erection before the said Surrender and which were mentioned in the old Infestments before the date of the Erection and that without paying for the saids Feu-ferms and redeeming them as said is as he is oblig'd to do in the case of the Feu-ferms due by the Vassals of Erection and it may be urg'd for the Lords of Erection that the King has not right to the Feu-ferms of their proper Lands except he Redeem them And that because 1. The Act of Parliament is relative to the Submission made by the Lords of Erection whereupon the Act proceeds but so it is that by the Submission they resign the Superiorities reserving only to themselves the Feu-duties till they receive satisfaction but it is expresly provided that under this Resignation their proper Lands should not be comprehended but that they should hold the same of His Majesty as the same was holden before the date of the Erection and so the meaning is that though they should hold the same in Feu yet they should not be oblig'd to pay the Feu-duties till they receive satisfaction 2. It were absurd that the Lords of Erection should not quite the Feu-duties of their Vassals till they receiv'd satisfaction and yet they should be oblig'd to quite the Feu-duties of their own proportion in which they had far more interest than in the Lands of their Vassals without any satisfaction 3. Custom is the best Interpreter of Law and by the general Custom of the Nation the Lords of Erection have never counted for the Feu-duties of their proper Lands 4. There being a Reservation made in the first part of the Act of the Feu-duties only in case of payment The Reservation in the second part of the Act must in Annalogie of Law be constructed to be burden'd with the same quality except the contrary were expresly declar'd in the Act. but on the other side it may be more strongly urg'd for the King that he has Right to the Feu-ferms of these their proper Lands immediatly without any satisfaction and that for these reasons 1. Because by the Act of Parliament they are expresly to hold their proper Lands of the King and to pay him the Feu-duties mentioned in
THis Act Discharges the Custom of two and a half per cent and all raising of His Majesties Customs directly or indirectly without consent of Parliament and so though by the 27 Act of the 3 Sess. of this Parliament asserting His Majesties Royal Prerogative in the Ordering of Trade with Forraigners It seems that His Majesty may lay what Restraints and Impositions He pleases upon Forraign Imported Commodities and as He pleases yet it seems the Customs by this Act cannot be rais'd for though that Act be posteriour yet this is special and is not particularly abrogated albeit by that Act all Acts and Statutes contrary to that Act are abrogated By this Act likewise His Majesty Discharges the taking Masters Merchants and Mariners Oaths in the matters of Customs but since their Oaths are taken in the matters of Excise this priviledge signifies nothing Vide Observations on the Act 12 Par. 2. Ch. 2. THis Act is Explain'd in the Observations upon the 18 Act Par. 1. Ch. 1. THis Act allows any of His Majesties ordinary Officers to whose Charge the same belongs to Docquet signatures and by ordinary Officers I think are only mean'd Officers of State and this was formerly Established by the 20 Act Par. 10. Ja. 6. But by this Act is added That these who do Docquet shall send a double of the Docquet to the Secretary to be Registrated But yet the Deed is not annull'd though this be omitted and therefore the Deed I think would subsist but the Omitters would be punish'd The Reason why a double is to be Registrated is because by this His Majesty may know what is formerly granted which will prevent double Gifts of the same thing THis Act is formerly Explain'd in the former Commissions for Plantation of Kirks viz. Ja. 6 P. 22 Act 3 Ch. 1 P. 1 Acts 8 19. THis Act for the most part is but Temporary and was made to give some ease to the poor Debitor whose Lands had been so wasted and burdened in the late Rebellion that he could neither pay Annualrent nor Redeem Comprisings or Wodsets as formerly being founded upon the same Reason by which the novae tabula were Introduced in Rome by Julius Caesar after the Civil Wars betwixt Pompey and him But the chief things observable in it are first That the Legal Reversion of all Comprisings to be led or that were led since January 1652. whereof the Legals are Expired and all Comprisings whereof the Legals were not expired before that Moneth shall endure for ten years and though it might have been pretended that this Act does not prorogat the Reversion but only makes the Lands to be Redeemable and so the Rents of the last three years above the seven which was the ordinary Legal was not to be Restored but that the Compriser had Right to them as fructus bona fide percepti consumpti Yet the Lords found that the Compriser was countable for his Intromission even for these three years since in effect these three years are added to the Reversion and so the Compryser is lyable for these three years as he would have been for the other seven January 20. 1666. Clapperton contra Torsonce Albeit by our former Law the Compriser could have possess'd the whole â—ents of the Comprised Lands during the Legal Yet in respect the Rents do often exceed very far the Annualrents Therefore by this Law allowance is given to the Lords of Session to Restrict the Compriser to such part of the Land as will pay him the annualrent of his Sum and Expense The Debitor from whom the Lands were Comprised Ratifying the Apprysers Possession of the rest but it is still to be remembred that after the Legal is expired the Compryser has undoubted Right and cannot be limited Upon this Clause of the Act the Lords upon the 27 of June 1662. Restricted Wilson who had Comprised Sir William Murays Estate to medle with any part of the Estate Comprys'd that he pleas'd esseâ—ring to eight per cent he counting for the superplus above this annualrent and for the publick burdens but thereafter in February 1684. in a case betwixt Wilson and Sir Alexander Hume It was contended that this Clause was a part of the Temporary Regulation past in favours only of such Debitors as had taken the benefit of this Act by payment of their annualrents and was only ill plac'd here amongst the Clauses relating in general to Comprysings for it was against the whole current of our Laws that during the Legal the Creditor who was forc'd to want his Money should be forc'd during the long legal of ten years to accept of naked annualrent especially seing oft-times they got Land at last that they could not nor car'd not for the Possession of it Nor would this ever spur and excite Creditors to pay the sums Comprys'd for and this was a very universal prejudice most part of Rights being now founded on Comprysings and the Practique being single and not upon Debate was not to be respected To which it was answered That the Clause was oppon'd and it was dangerous to alleadge that Clauses were Transplac'd by mistake nor could any thing Gloss a Law better than a Decision past so Recently after the Act made at the making of which Decision many eminent persons were present who had been the very Penners of the Act and the Restriction was most reasonable for since great Estates were to be carry'd away by Comprisings for small sums it wast just that till the Comprising expir'd the poor Debitor should be favour'd Nor was the Creditor a loser since a Comprysing being a legal Pledge only for his Money he got the Annualrent duly pay'd him and a Ratification of his Possession even during the Legal and if his Money was not pay'd cum omni causa with annualrent for his very Expense he got the whole Land though the sum were never so small upon which Debate the Lordâ— adher'd to the former Decision though it seems very strange to the best Lawyers The Lords likewise found upon the 28 of July 1671. That this Power granted to them was only in favours of the Debitor from whom the Lands were Comprysed and could not be extended in favours of posteriour Comprysers who could not upon this Clause crave that the first Compryser should be restricted to his Annualrent for the priviledge is granted to the first Compryser in contemplation of his being oblig'd to Ratifie Nor are the second Comprysers prejudged by the first Comprysers Possession since it will extinguish his Comprysing pro tanto and make way for them By this Act also all Comprysings led since the first of January 1652. before the first effectual Compryser or after but within year and day of the same shall come in pari passu as if one Comprysing had been led for all the Sums Upon which Clause it is observable 1. That Comprysings led since 1652. come not in with Comprysings led before that year though
Riots pursu'd before them King JAMES the fifth Parl. 5. AFter many Alterations observ'd by me in the Annot. on Act 65 Par. 3 Ja. 1. and Act 62 Par. 14 Ja. 2. at last the Session was establish'd in the way it now is by King James the fifth in this his fifth Parliament and is ordain'd to consist of fourteen Lords seven whereof were to be of the Clergy or Spiritual and seven Temporal with the President who was to be of the Clergy but since the abolition of Popery they are all Seculars or Laicks though sometimes Bishops were extraordinary Lords and though this Act of Parliament appoints the half to be Spiritual and the half Temporal with a President yet by the 93 Aâ—t 6 Par. Ja. 6. It is declar'd it shall be lawful to the King to present any able Person whether he be of the Spiritual or Temporal State VId. observ on Act 7 Par. 3 Ch. 2. THe present Lords are ordain'd to have all the priviledges that the Lords of Session for so they were call'd in the Reign of King James the second had formerly and therefore it is alleaged that since Appeals could not be received from them that they cannot be received from the Lords of Council and Session as was formerly observed Act 62 Par. 14 Ja. 2. THe Chancellor when present is to preceed and because he preceeds therefore he gives his Vote last and because it was controverted whether he was to be President in the Parliament therefore by the 1 Act 1 Par. Ch. 2. He is declar'd to be President in all Courts and he did preceed by vertue of this Act in Exchequer till he was discharg'd by His Majesty by a Letter in anno 1663. These words And sicklike other Lords as shall please the King's Grace to subjoyn to them of his Great Council who shall have Vote to the number of 3 or 4. are all the warrand that there is for nominating the extraordinary Lords of Session who cannot exceed 4. They are still named by a Letter from the King as the ordinary Lords are but they are not examined like them and these extraordinary Lords are marked in the Books of Sederunt after all the ordinary Lords THese words And the Lords to subscrive all Deliverances and none other is all the warrand that was for the Lords subscriving all the Bills for raising Summonds before the Criminal Court but I think these general words should be restricted secundum subjectam materiam as all general words in Law ought to be for we see that notwithstanding of these general words the warrands for raising Summonds before the Privy Council are subscrived only by Privy Counsellors and now the Justices are only in use to subscrive their own Bills though the other Lords of Session are not excluded from that power THis Act is the warrand that the Lords have for making Acts of Sederunt which were so called because the Lords sitting are marked Sederunt such and such men but these Acts are to reach no further than the ordering of Forms of Process or the regulating their own House and therefore this Act sayes For advising and making of their Rules and Institutes for the order of Justice This same power is almost allow'd by all Nations to their Supream Judicatures Vin. Comment ad § 9. Inst. lib. 1. tit 2. Christin Vol. 2. Decis 51. num 8. THis division of the Kingdom in order to the calling Causes is now in Desuetude for all Causes are now Enrolled according to the order of the returns of the Process vid. Act. 16. Sess. 3. Par. 2. Ch. 2. Artic. 1. NO Session sits now on Munday and so this Act is in Desuetude Suspensions are called on Tuesday and Wednesday and ordinary Actions upon Thursday Friday and Saturnday The Friday was allotted for the Causes of the King and Queen and the Actions of Ministers and Strangers but by the Regulations the Kings Causes may be call'd on any day the Party Defender being advertis'd 14. dayes before of the particular day on which it is to be called It has been doubted before this Act whether the Queens Causes should enjoy the priviledge of the Kings Causes And the priviledge is by this Act extended to her ita Augusti privilegia ad Augustam sunt extendenda l. 31. ss de Legibus NOw the Lords sit from 9. to 12. and they sit down sometimes before 9. as occasion requires NOta By this Act Parties were allow'd to plead their own cause and they needed not have Advocats except they pleased but no other Party not contain'd in the Summonds can have liberty to speak But the Lords can now hinder Parties to Plead or force them to have Advocats to shun confusion and nonsence It seems also that though an Action be to a mans behove he cannot be allow'd to speak except his name be in the Summonds THe order of Tabulating Summonds is now much alter'd for no Summonds are Tabulated except Actions of Declarators Improbations Contraventions and other Actions at the King 's Advocats instance upon the back of which Summonds he Writes Tabuletur erga diem Veneris proximè sequentem and except this be written upon it the Action cannot be debated and some think that if the Action be called without this a Decreet thereupon pronounced would be null WItnesses are now examin'd by one of the ordinary Lords in the afternoon as here and that Lord who sat last Week in the Outer-house does the next Week Examine Witnesses THe Quorum of the Lords by this Act is ten either ordinary or extraordinary for either make up the Quorum but now eight Lords with the President make a Quorum which alteration proceeds from the 44. Act 11. Par. Ja. 6. Nota 1. By this Act that advising of Processes cannot be recommended to any particular Lord. Nota 2. That by this Act publication of Witnesses is allow'd else how is it ordain'd here that publication of Witnesses should be before the hail Auditor and Advocats were allow'd to see the Depositions and to debate against them till the year 1666. at which time this was discharg'd upon pretext that Advocats did spend too much time in debating against the Depositions and that Witnesses Depositions were more to be credited when no man was to see them or know them than when the persons interested were to see them because it was probable they would take pains to please them But we find great mistakes by not letting Advocats see the Depositions since they might clear many things that seem inconsistent and which depend upon other matters of Fact and it 's rather presumeable that Witnesses knowing that what they say is not to be seen will take liberty to Depone too liberally the not publication also of the Depositions tends much to make Judge Arbitrary since the warrands whereon they proceed is not known and publication of Testimonies iâ— a kind of confronting Witnesses with the Parties
in foro In all which the Parliaments Authority may be alleadg'd not to be controverted but the question seems to reach only to the controverting its fundamental powers and if such Cases as these were Treasonable the people might be discouraged to enquire even into what were otherways lawful and whatever may be said against such Debaits when they are meerly factious and officiously mov'd and prosecuted by such as have no interest yet such Debates in Parliament may be alleadged not Treasonable by the 40 Act 11 Par. Ja. 6. and the votes of Parliament are likewise by this Act declar'd to be free Votes As to all which I shall only say that these and such cases are to be detertermin'd by the respective Circumstances and therefore it is still safer not to approach too near those Rocks on which we may splite THis Act declares the Convocating all Councils Conventions or Assemblies Civil or Ecclesiastick to be punishable by the pains enacted against such as Convocat the Kings Lieges and it was occasioned by the unlawful Church-assemblies holden at that time in opposition to Episcopacy and by the 4 Act Par. 1 Ch. 2. This Act is Ratified and all such Convocations declared punishable though it be pretended by such as hold them that they design nothing but the good of King and Kingdom which Declaration was there made to condemn the false pretences of our late Rebellion IT is observable from this Act that the being once or twice drunk is not a sufficient reason for deprivation of a Minister for the Act requires common Drunkenness and deprives ebriosum sed non ebrium Observ. 2 o. That though this Act say That none residence for the space of four Sabbaths without the allowance of the Ordinary shall be cause of Deprivation Yet though there be no express allowance the None-residence will be no reason of Deprivation if the reason was sufficient and the Ordinary could not be had as the Common Law decides in this case None-residence is a Cause of Deprivation by the Canon Law Decret Greg. de Praeb cap. 17. and Franciscus Forrensis has writ a Learn'd Treatise proving the necessity of Residence to be juris divini The Civil Law had formerly required Residence from Church-men Nov. 6. cap. 2. 123. cap. 9. except where they had liberty from the Emperour and thus with us the King only may dispense with None-residence Observ. 3 o. That plurality of Benefices having Cure is a sufficient Reason of Deprivation which is consonant to cap. adhaec 13. de Praebend But exception is made where one is not able to entertain the Incumbent vid. Alphons Hoieda de compatibilitate beneficiorum The Pope might dispense so now may the King Observ. 4 o. That by this Act Commissioners to be appointed by the King are to have power of depriving Ministers which is abrogated by the first Act 12 Par. Ja. 6. THough this Act declares that Ministers who exerce or officiat as Notars shall be depriv'd yet it does not expresly annul the Writ and therefore a Contract of Marriage Subscrived by a Minister in place of a Notar was the 12 of July 1631. Hassington con Bartilme Sustained though it was found that the Ministers was thereby deprivable This Act discharging Ministers to be Judges was made to exclude Mr. Pont who was then Lord of the Session for after the Reformation Ministers came in place of the Ecclesiastick Lords and though they pretend now that Bishops should not sit in Civil Judicatures yet they desir'd to be there BY this Act the uttering of slanderous and un-true Speeches to the contempt of His Majesty His Councils Proceedings and Progenitors is declar'd punishable as Leasing-making and Leasing-making is punished with tinsel of Life and Goods by the 43 Act Par. 2 Ja. 1. Vid. Act 83 Par. 6 Ja. 5. Vid. etiam tit Cod. si quis imperatori maledixerit For such slanderous Speeches the party is sometimes only Banish'd or Scourg'd as Tweedie was March 13. 1612. But one Fleeming was hang'd for saying that he wish'd the King would shoot to dead May 15. 1615. Spoâ—eswood Relates that this Act was occasioned by Pamphlets and Preachings after Gourie's Execution Observ. 2 o. That all the Subjects are Discharg'd to medle in His Highnesses Affairs or in the Affairs of His Estate that is to say to make inquiry curiously into what His Majesty or His Council does for that is presum'd to be done malo animo And in all ages such curiosity has been punish'd Thus Augustus kill'd Panarus velâ—ti curiosum Sueton. cap. 27. and Plut. l. de curios Observes that the Locrenses fin'd such curious persons Vid. Langl l. 8 Semestr c. 11. who Treats on these Crimes Learnedly BY this Act no Sentence of Forfalture for Treason committed against the King and his Estate can be quarrelled upon Nullity of Process till the Crime for which the Forefalture was led be pardoned Observ. 1. That since this Act speaks only of Crimes committed against the King and His Estate it has been doubted whether this Act can be extended to Treason meerly committed against the Kings Person for by the Kings Estate is ordinarly mean'd His Prerogative and Majesty Observ. 2. That that part of the Act which Discharges Advocats to plead or consult for any person who stands forefalted is abrogated Act 38 and Act 39 Par. 11 Ja. 6. But yet none use to plead for forefalted persons till they get a Licence from the Judge before whom the Tryal is to be There was a Commission granted to consider what nullities could be objected against Swintons Forfalture and it was alleadg'd that the Decreet was null by intrinsick nullities in substantial points and so the Commissioners might proceed since this Act was only to be interpreted of Formalities and alleadg'd nullities which could not be instantly prov'd or did not appear by the Decreet it self yet they would not proceed because the forefalture was not nor could be purg'd and the Crime was notour THis Act declaring all Remissions for Slaughter Fire raising and other odious Crimes to be null is suitable to Stat. Dav. 2. cap. 50. and Act 7. Par. 3. Ja. 5. But this Act is thought Temporary as is likewise Act 63 Par. 6 Ja. 4. and notwithstanding of these Acts His Majesties Remissions for such Crimes has been oft sustain'd vid. crim pract Tit. Remissions THis Act is in Desuetude for His Majesties Guards are paid out of the Excise and I find this Act formerly establish'd by an Act of Council THis Act is fully Explained crim tit Murder BY this Act Decreets of the Lords of Session are discharged to be Suspended without Consignation but this being in Desuetude it is by the Regulations Article 19. appointed that Decreets in foro shall not be Suspended without Consignation or by the whole Lords in time of Session or by three Lords in time of Vacance It may be doubted what this Act means in appointing Letters of
an Act of Sederunt 16 December 1612. It is declared that ten years possession before the Reformation or 30 after the Reformation should be a sufficient right either to Church-men or to the King 's coming in their place by vertue of this Act and conform thereto the Lords decided July 5 1626. Laird of Kerss against Reid Observ. 4. That because the Romish Clergy were put from their Benefices therefore they are by this Act freed from any warrandice they had given for Church Lands dispon'd by them and by the 110 Act of the same Parliament what is here Statuted as to the warrandice of Lands is there extended to Tacks Pensions and Assignations and so these two Acts are not absolutely co-incident and the last unnecessary as they would seem to be and though this was done in majorem cautelam yet by the common Law they would not have been liable in warrandice since no man is liable in warrandice where the eviction proceeded upon a supervenient Statute for no man can warrand against a supervenient Law Observ. 5. That notwithstanding that the Church-Lands are annexed yet there is a dissolution in the same Act warranding his Majesty to Feu any of the saids Church-Lands during his own time Observ. 6. That though by this Act all prior Dispositions made of Church-Lands by his Majesty to Lords of Erection are excepted from the Annexation yet the Superiority of all the Erections both before and after that Act are annexed to the Crown by the 10 Act Par. Ch. 1. Observ. 7. That the Spirituality of Benefices viz. their right to the Teinds is expresly declared not to be annexed but to remain with Church-men as formerly for though by the 149 Act Par. 13 Ja. 6. it be said that the Teinds of Dumfermiâ—â—g are annexed to the Crown after the form of the Act of Annexation 1587. by which all the Teinds of the remanent Kirk-Lands and Prelacies of the Kingdome are annexed yet that Clause is only insert by mistake in my judgement for that is not the design of the Act. Where Stock and Teind are promiscuously Feued it is declared by this Act that his Majesty remains Superior both as to Stock and Teind the Church-men having only right to the tenth penny of the Feu-duty the other nine belonging to his Majesty for the temporality being only annex'd to the Crown and the Teinds being reserv'd to the Church it was very just that where a duty was payable out of Church-Lands cum decimis inclusis the King should only have right to a ninth part of that duty and the tenth should belong to the Church-man or Titular in contemplation of the Teinds but still decimae inclusae are so fully exempted from all Ecclesiastick payments that though there be not sufficiency of Teinds in the Paroch yet decimae inclusae are never burden'd with the payment of Ministers Stipends though Ministers Stipends be the constant burden of all Teinds and for the same reason it was found 21 January 1633. that no Valuation could be led of Land Feued cum decimis inclusis and not confirmed before this Act and that Laicks might prescrive a right to them but not to other Teinds which shews that decimae inclusae are never lookt upon as Teinds For understanding the origine and nature of decimae inclusae with us it is fit to know that by the Canon Law the Parson or Incumbent and the Paroch Church were founded in the right of all the greater Tithes called decimae praediales and that it was not lawful for any man to abstract their Teinds from it cap. de decimis 16. Quest. 1. And albeit the Popes did pretend that since the Bishops had the management of the Teinds they as universal Bishops might by their supereminent transcendent right appropriat them to the use of Monastries Monks being the best of the poor and Teinds being naturally burden'd with the maintainance of the poor yet our King's who in all the tract of our Parliaments own'd their own Regalia and the Episcopal Order against the invasions of the Popes did by the 7 Act Par. 2. Ja. 4. declare it a point of Dittay that is to say Criminal for any man to take a right of Teinds from any save the Parson Vicar or their farmers so far they acknowledg'd the Parochial Churches to be founded in their right to the Predial Teinds Notwithstanding whereof the Popes to get the Monks to depend immediatly upon them did grant to those Monks exemptions from payment of Tiths for they as well as others paid to the Parson or Incumbent till Pope Paschal the 2 d granted those exemptions but these exemptions did thereafter so far diminish the provision of the Parson very many Lands being either mortifi'd to them or bought in by them that Theodosius and other Emperours were forc'd to make Laws against exorbitant Mortifications and Pope Adrian was forc'd to limit the exemptions to four Religious Orders Cistertians Hospitalers Templars and Knights of St. John still allowing all of them Exemptions for their Novalia or Lands first cultivated by themselves But Pope Innocent the third in the Lateran Council thereafter ordain'd that even these four Orders should pay Tiths for what Lands they should acquire after that time which I the rather observe because it has been decided by our Session July 15. 1664 Thomas Crawford contra Prestoun Grange that Lords of Erection succeeding in place of the Cistertian Monks should be free from Tiths as the Monks were without adverting whether these Lands for which exemption was pleaded were bestow'd on their Monastries after the year 1120. and it seems that this Exemption should not be allow'd to these Monastries since they were not allow'd to the Temple-lands with us and that such priviledges are due to neither because this was a personal priviledge given to the Monks as the Poor and so should not descend to the Lords of Erection The Monks being thus Masters of many Tiths feu'd out their Lands and Tiths promiscuously for the encouragement of the Labourers who have alwayes thought it a loss and a slavery to wait till their Tiths be drawn Laicks also enjoy'd Tiths and alienated them as their own Heretage for many ages together it being generally believ'd as Selden contends that the Tiths were not due to Church-men they having Right only to a Maintainance jure divino though others ascrive these Laical Infeudations to a corruption begun by Charles Martel King of France who to gratifie and pay such as were to assist him in the Holy War Dispon'd to them the Tiths consentientibus Episcopis who knew that if the Saracens prevail'd Religion would be destroy'd and he promising to restore them But after this time it is undenyable that de facto Teinds were Dispon'd to and by Laicks till the Lateran Council 1169. in which the Canon was made prohibemus ne laici decimas cum animarum suarum periculo detinentes in alios laicos possint aliquo modo transferre Si quis vero
perceperit Ecclesiae non reddiderit Christiana Sepultura privetur But yet before that time Laical Infeudations were Discharg'd per Concilium Turon 1096. Though we in this Nation consider only the Discharge in the Lateran Council It remains clear from these Informations that our decimae inclusae are in effect the same with the decimae infeudatae in the Canon Law and these are call'd decimae inclusae where the Stock and Teinds were never separated but were feu'd joyntly before the Lateran Council but yet it seems that all decimae infeudatae are not esteem'd inclusae with us for in a Case betwixt Monimusk and Pitfoddels Teinds were found not to have the priviledge of decimae inclusae though Transmitted by Infestments and call'd decimae inclusae because there was separat a Reddendo paid for the Teind and Stock and so it could be known to be different from the Stock albeit it was contended that decimae inclusae and infeudatae were pares termini and a different Reddendo did not evince that the Teinds had ever been separated from the Stock but only that there was a different Duty as is in Lands of the same holding oftimes and it may in general seem strange why we should add since the Lateran Council for that Council did find that Laicks before that time were incapable of any Right to Teinds and therefore all Feus of Teinds whether before the Lateran Council or after should be null and this Error it seems has been occasion'd by our concluding that because Laicks were declar'd uncapable of them by that Act therefore they were capable of them before it and yet with us a Laick cannot prescrive Teinds because he is not capable of them and Balsour tells us a Decision wherein not only alienations of Teinds but even Tacks of Teinds for three nineteen years were accounted alienations and so null for else Discharging alienations might have been eluded by setting long Tacks But now Teinds pass by Infestments as the Stocks does since the Surrender and His Majesties Decreet thereupon wherein every man may buy his own Teinds and so may set as long Tacks of them as he pleases or Feu them out cum decimis inclusis But it may be alledg'd this tenth part payable to the Ecclesiastick person for Teinds may be made liable to Ministers Stipends since this tenth part must be constructed as Teinds and so should be lyable to all the burdens of Teinds but to this it is answer'd that these decimae inclusae are consider'd as a part of the Stock and so no more liable to Ministers Stipends than the Stock is this division of the Feu-Duty doth not alter the nature of the decimae inclusae but is only insert to regulate the way of payment of the Feu-Duty even as if after a Feu granted of Stock and Teind promiscuously for a Feu-Duty the Church-man should dispone nine parts of the Feu-Duty and reserve only the tenth to himself that tenth part could not be liable to Ministers Stipends 2. Since this Act by the death of the Titular both Temporality and Spirituality came in his Majesties hands and so were dispon'd to the Lords of Erection and return'd to them without this distinction of nine or tenth parts Though by this Act Teinds are declared the Spirituality of Benefices yet they may be sold and are appointed now to be sold by the Parliament 1633. and the Heretors are to be infest in them as in their other Lands which seems inconsistent with their being the Spirituality of Benefices and the Patrimony of the Church but it may be answer'd that they are even in that case burden'd with payment of Ministers Stipends till they be competently provided Observ. 8. By this Act all Lands and others mortified to Colledges are excepted from the Annexation and the reason is because Kirk-Lands remain still to be such albeit they be mortifi'd to Colledges 12 Feb. 2635. Tock contra the Parochiners of Achtergoven and therefore it was necessary to except them Maisons Dieu or Hospitals are also excepted and Maisons Dieu are Hospitals dedicated to the honour of GOD it is a French word signifying the House of God the Canon Law calls them Domus Dei and makes them Hospitals Observ. 9. Pensions likewise out of Church-Benefices are excepted if they be authorized either by Decreets or Possession but possession of a part is repute possession of the whole and by the 137 Act 12 Par. Ja. 6. this Act is ratified and it is declared that all Pensions out of the Spirituality or Temporality neither clad with Decreet nor Possession in the Prelats lifetime who dispon'd the same before this Act of Annnexation shall be null but if they be clad with possession in manner foresaid they are valid against singular Successors though Pensions granted by Laicks are not valid albeit they be clad with possession prior to the singular Successors right as was found the 11 of December 1662. Clappertoun con the Lady Ednem but by the Act 140 Par. 12 Ja. 6. Pensions granted by Church-men should contain the particular names of Tennents and Duties vid. observ on the 62 Act of this Parl. Observ. 10. By this Act it is declared that the Bailie or Steward of the Regality shall have the same power he had before to repledge from the Sheriff or Justice-general in case he hath prevented the Justice-general by apprehending or citing the person before he be apprehended or cited by the Justices but if the Justices have prevented as said is then the Bailie of the Regality or Steward shall not have power to repledge but he may sit with the Justice-general if he pleases so that in effect by this Act there is this difference betwixt the Ecclesiastick and Laick Regalities that there is a right of repledging competent to the Laick Regalities whereas Ecclesiastick Regalities have not this priviledge except they prevent the Justices but otherwise the Bailie of Regality may only sit with them the reason of which difference is that the Regalities having been only granted in favours of the Religious Houses which were supprest the Regalities became extinguish'd with them and his Majesty having ex gratia only reserved their Offices to the Lords of Erection he thought that they were abundantly gratified by this new Concession without allowing them the power to exclude his own Justices in case of prevention and this was also a favour to the Lieges in not troubling them with two Courts nor were the Lords of Regality much prejudg'd for by this same Act they retain the whole right to the Escheats and Fines even of these who are condemned by the Justices Observ. 11. That the Parliament has been so careful of the Vassals and Feuers of Kirk-Lands that because the King who is declared Superior by this Act of all these Lands was a more powerful opposite Therefore by a Clause in this Act it is provided that the King shall not quarrel their Rights to these Kirk-lands save by Improbation or by
a Reduction only for a diminution of the old Penny-mail de liquido ad liquidum that is to say that though such rights may be quarrelled as granted with diminution of the Rental or by unlawful conversion yet no diminution shall reduce their Feus except where the diminution is of old Rentals because about the time of the Reformation Feus were granted for high Feu-duties and these being renewed again for less than were once payed the Feu might have been question'd because though the Feu-duty was less than was once payed yet it was not below the old Rental de liquido in liquidum as if five Merks were taken when ten was of old payed without consideration of Conversions so that though ten Merks were taken in the Feu quarrelled in place of ten Bolls that would be no relevant reason of Reduction and since by the Act of Parliament 1633. Erections are annex't to the Crown The Lords found that the Lords of Erection cannot now pursue Reductions or Improbations of their Vassals Kirk-lands and that his Majesties Advocat could not insist in any such actions except he had an express warrand from the King though it would appear that this Act is a sufficient warrand to pursue Improbations or Reductions for diminution in the terms of this Act 24 of June 1664. Laird of Prestoun contra Nathaniel Ebred Observ. 12. That Lands belonging to the Benefices of Laick Patronages are excepted also from this Annexation by which are meant only such Laick Patronages as were lawfully establisht before the Reformation and not such as were Dispon'd by the King to Laicks and to which he had Right as coming in place of the Pope who was Universal Patron in dubio before the Reformation for these are still accounted Ecclesiastick Patronages since they were so originally and so ought not to have been excepted from this Act but whether all the other Patronages which belonged formerly to Monasteries were annexed to the Crown by this Act was fully Debated November 1677. in the Case of Steuart contra the Laird of Watertoun and that they were annexed was urg'd because by the first words of this Act the Abbacies c. and all Profits Emoluments whatsoever belonging to them were annexed and there being nothing that the King and Parliament was more concerned in than to have the Patronages depend upon the Crown thereby to prevent the influence that Schismatick privat Patrons might have It was most reasonable to think that when all things belonging to Monasteries were annex'd these should have been annex'd Likeas Sir Thomas Hope among other Rights crav'd to be reduc'd crav'd likewise that all the Rights made to the Lords of Erection of the Patronages belonging formerly to Monasteries should be reduc'd as contrary to this Act upon which Reduction the Lords of Erection did submit their Rights to these Patronages and in the Kings determimination upon that Submission His Majesty determined that the Lords of Erection should have only Right to the converted prices of their own feu Mails and feu Ferms of their Superiorities c. It was likewise there contended that the saids Patronages were likewise annexed by the 13 and 14 Acts of the first Parliament Ch. 1. To which it was answered That Patronages were never annexed as parts and pendicles but where it was design'd they should be annexed they were still annexed per expressum as in the annexation of the Abbacy of Dumfermling Act 189 Par. 13 Ja. 6. and it were absurd to think that since the foresaid general Clause did annex things of the meanest consequence such as Service of Tennents c. that it would have omitted things of so great consequence as were the Patronages of many Monasteries nor did any of the Leiges who had Right to such Ecclesiastick Patronages from the King crave ever a Dissolution of them in Parliament which certainly they would have done if they had looked upon them as annex'd nor were they annexed by the 13 and 14 Acts Par. 1 Ch. 1. Because these Acts do not mention Patronages per expressum nor can they be comprehended under the general word pertinents exprest in these Acts for the reasons foresaids and to evidence that His Majesty had determined nothing as to the Patronages belonging to the Lords of Erection His Majesty does in the 1 Parliament 12 Act Ch. 2. express these words Likeas also the the remanent points of our said Commission anent the patronage of Kirks c. are not yet begun to be Treated therefore c. This Debate came not to a Decision What the condition of our Teinds is since this Act shal be Treated fully in my Treatise of Teinds as also whether the Obligation of paying Teinds proceeds from the Moral Judicial or Common Law is not agreed to but the most ordinary opinion is that they are due to Church men before any positive Law and the quota of Tenths proceeds from positive Law and D. Thomas part 3. Quaest. 6. makes the Tenth to be due because as all Digits under ten are imperfect and do tend to ten as their perfection so man being naturally lost we pay our Tiths to these Ministers by whom our perfection comes and thus some School-men conclude that Tiths flow from the Moral Law in so far as they are a necessary Maintainance for Ministers from the Judicial Law in so far as concerns the number of ten and Cerimonial in so far as concerns the foresaid Typicals nor can it be deny'd that Abraham paid Teinds before any positive Law to Melchisedeck though the Learned Selden Interprets this place only to be the Tenths of what was taken by the War and that from Josephus and from Heb. cap. 7. v. 2. and the Greek word there us'd does properly signifie spoils call'd by Sulpitius Severus decimam praedae but yet I see not why that alleadg'd Custom among the Jews of giving the Tithes of their Spoils could have proceeded from any other ground than that which was common to all Tithes nor can I believe Selden who asserts that Tithes were not paid in the primitive Church till the days of St. Augustin and S. Ambrose for if we do not controvert the Truth of all Authority we will find the payment of Tithes much older Teinds were likewise accounted Spirituality by the Canonists vid. Rebuff Quaest. 2. num 9. How these Teinds came to belong to Monastries may be doubted since naturally the Curats of the respective Parochs are founded in jure communi quoad the Right to their predial Teinds so that they need not prove their Right thereto and this was very just because they having the Cure of Souls ought likewise to have had that which was given as an encouragement of that Cure and though to this the ordinary answer be that the Pope who had only Right to alienat such Teinds did use to give them to Monastries nam licet ille jus divinum tollere non potest tamen modificare potest yet I conceive that our Kings and even
at eleven of of the Clock in the forenoon yet it does not irritat and annul all Courts holden at any other hour and Courts are ordinarly held at other hours but it may be doubted whether a party cited to a peremptory Diet and staying till twelve of the Clock and taking Instruments thereon could be unlawed in the afternoon for absence but if the Court once sit parties are obliged to attend THough this Act appoints the Expences of parties accus'd and acquitted to be modifi'd by the Justice-Clerk and his Deputs yet they are now only modifiable in full Court by the Justices but it is doubted whether the Justices can modifie Expences where the Defenders are absent since the only Certification against absents is that they shall be Denunc'd Rebels But yet the modifying Expences seems to be the necessary result of all Processes and that inest officio judicis It is also doubted whether the Justices can ex intervallo modifie Expences none having been sought the time that the Letters were brought back and the party declar'd Fugitive and the Justices are in use to do both but the case has not been yet fully Debated BY this Act the Roll of Assizers was to be given by the party accuser or a Notar in his name but now by the third Article of the Regulations for the Justice-court the Assizers are nam'd and the List subscriv'd by the Justices for it was thought too severe that the Kings Advocat or the party accuser should have the naming of the Assizers BY this Act Customers passing Customable Goods for Gratitude are to be Try'd Criminally and their Moveables to be Escheated in case they be convicted Observ. 2. That the Kings Servants are only to be punish'd in case they transgress for Money so that negligence is not punishable except it be gross but yet if Customers should wittingly and willingly pass Goods for Friends or Relations I think it would be punishable by a Fine And since the stealing of Customs is Theft this connivance in strict Law seems a Theft-bute or accession to theft Observ. 2. Though this Act declares this accession punishable in a Justice-air yet the Exchequer and Council do also punish the same by arbitrary punishments THis Act is Explain'd fully crim pract tit Assizes but it is fit to add that His Majesty having written a Letter in anno 1683. desiring the Justices to Examine Witnesses in Treason when the Council requir'd them at any time before insisting in the Process to the end His Majesties Advocat might know how to Libel and to prevent the absolving of Rebels who were truly guilty by the mistake of citing the wrong Witnesses it was alleadg'd that the desire of that Letter was contrary to this Act ordaining all probation to be receiv'd only in presence of the Pannel 2. That this would ingage Witnesses to adhere to the Depositions that might be Elicited from them by the too great zeal of His Majesties Servants or the influence of others To which it was answer'd that as to the first the Depositions to be taken in that previous Tryal were not to be made use of to the Assize which was all that was discharg'd by this Statute As to the second It was not to be imagin'd that the Judges to whom only this was to be intrusted would prejudge any Pannel or be corrupted by any influence and before the Witnesses Depon'd these Depositions should be destroy'd so that the Witnesses could be under no apprehensions upon that account and the people were in a better condition by this Letter than formerly for it was securer to trust previous examinations to the Judges than to the Kings Advocat who did alwayes Examine alone formerly and this would prevent unjust trouble when there were no Witnesses who could Depone against the persons accus'd through error or malice THis Act is also Explain'd in the Title Assizes But it is fit to add that Blair and others being Convict of Error for assoilÈying some Traitors wrongously and their Escheats being gifted they rais'd a Reduction of the Gift as founded upon a Verdict that was null by this Act in so far as the Kings Advocat had spoke with the Assyzers after they were inclos'd which reason was repell'd because the Justices had declar'd that the Advocat had only spoke to the Assyzers in their presence when the Assyzers were desiring to be solv'd of some doubts which was ordinary and allowable December 21. 1682. It may be also doubted whether such Verdicts can be reduceable for though the Act declare that the Assizers may assoilÈe if any speak to them yet if they and the Justices proceed it seems not quarrellable or at least before the Session for I remember that the Justices having declar'd a Bond of Glenkindies forefaulted for not producing some Witnesses against himself the Lords declar'd that the Justice-court being a Supream Court their Acts and Sentences were not quarrellable before the Session Queritur if both these may not be quarrell'd before the Parliament and I think they can not except the Decreets of the Session can THis and the following Acts to the end of this Parliament were made for quieting the Borders and Highlands as to which the same courses are to be taken though now the Borders are Governed by a Commission of both Kingdoms so they are not put to find Caution as they were by these Acts but the Acts here set down are generally observ'd as to the Highlands still except in so far as I shall here observe upon the respective Acts. Observ. 1. Though this Act appoints that the first day of every Moneth shall be appointed for hearing Complaints concerning the Borders and Highlands yet that is in Desuetude as to both Observ. 2. That that part of the Act ordaining a special Register to be made for Borders and Highlands is in observance quoad the Highlands by a late Act of His Majesties Privy Council BY this Act all the lands-Lands-lords contain'd in this Roll are ordain'd to find Caution which Roll is subjoin'd to the Acts of this Parliament but that Roll is now very much alter'd for many others are now ordain'd to find Caution who are not therein specifi'd but are now in the Proclamations of Council March 17. 1681. c. because the Heretors mention'd in the Acts of Parliament are often extinct and the Lands for which they were to be bound are dispon'd to others And whereas by these Acts these Landlords and Chiefs of Clans were ordain'd to produce their Delinquents before the Justice or his Deputs they are now to produce them before the Council or else to pay the Debt which are great arguments to prove that in matters of Government de facto we consider more the Reason than the Letter of the Law Though this and the 103 Act of this Parliament which is coincident with this may seem severe because the innocent is bound for the guilty yet necessity and publick interest has introduc'd
Gentlemen within the said Western Shires be above all exception and be more eminent that there are so few of sound Principles there yet to speak modestly the generality of the Inhabitants of these Shires has not been so forward to desire or promote His Majesties Restitution and Interest that now after His Majesties happy Re-establishment they should obtain what they could never effectuate in any time and should be gratifi'd to the prejudice of other Shires of undoubted and constant Loyalty and the overturning the ancient Law and Way of the Kingdom 8. As to the pretence of inequality in the old Way it is to be considered that though an Arithmetical proportion and exactness is not to be expected in any Way Yet there is more reason to presume for the justice and equity of a legal way venerable for antiquity warranted by express Laws and immemorial Custom which for any thing known had its beginning in the time of Freedom and has been continued in the best most peaceable and pureest times notwithstanding any endeavours to the contrary than for a way contriv'd and hatch'd in the Heart and fury of Trouble and Distempers and brought forth and obtruded upon the Countrey with so much partiality and factiousness that it is well known that the Shires and persons who were in opposition to His Majesty had so great and prevalent interest for the time that the valuations both as to the Quota of Shires and proportions and Rents of private persons were carry'd on by the instruments and Commissioners most inequally to the advantage of their party and the evident prejudice and pressure of whole Shires and all persons who were sincere or had the least Affection for the Royal Interest 9. By the Common and Feudal Law and Law of the Kingdom where the Heir of the Vassal Dieth not Entered the Superiour during the None-entry has right to the Duties of the Land holden of him and when the Heir of Ward-lands doth Enter the Superiour hath Right to the Duties for a year under the notion of Relief which in both these Cases of Relief and Non-entry are payable according to Retoures and the New Extent if the old way of Retoures should be altered in relation to the payment of Taxations why not in order to None-entries and Relief so that they should be payed not according to Retour but Valuations there being no reason that the saids Casualities are not exacted in rigour but the ancient Law and Custom for Retoures How dangerous the preparative may be if the way of Retoures should be altered even to those who are for Novations and what Combustion and Disorder it may occasion in the contrary it is so apparent that it needs not to be represented 10. Whereas it is pretended that the Lords and others of the Clergy will have prejudice by the Old Way both as to their own proportion and the proportion of the Vassals and that they are in another condition than formerly by reason that their Rents are impaired by Valuations and Ministers Stipends it is humbly conceived with all tenderness and respect to the reverend Clergy that whatever others for their own interest do suggest under pretence of theirs The Lords of the Clergy and others will not decline to contribute and be Taxt for His Majesties Service as the other Estates and as to the pretended way of paying Taxation according to the Valuations in these late times they cannot be Taxed in that way because the Rents of the Bishops being for the most part in these times of Usurpation mortified to Universities and other pious uses they were not valued nor lyable to Cess and such like burdens it must then follow that either they must be Taxed in the old Way or else not at all as to the proportion of the Clergie it is designed by all the Laws concerning Taxations and it is not higher than it was at any time since Taxations were granted to His Majesties Predecessors and it is to be observ'd in all Acts of Parliament concerning Taxations The Lords of the Clergie do in the first place before the rest of the Estates make a chearful offer of the same proportion without any grudging and though there needs no reason to be given for clear Law and Practice yet that the said proportion is Defin'd and settled upon good Reason it is obvious seing the same is impos'd in order both to their Spirituality consisting in Tiths and their Temporality consisting in Lands and others and it is known that the Tiths are more than the fourth part of the Rent of Scotland and Temporalities and Church-lands will extend to a considerable part of Scotland at least to a fourth part The Clergie having their Benefices and Living not in Property as the other Estates but of His Majesties immediat favour and grant and for their lifetime so that it is not strange that upon the considerations foresaid they pay'd such a proportion of the Taxation the case is not altered upon the account of Valuations and Ministers Stipends that course for Valuation of Tiends and augmentation of Stipends being procured and taken at the earnest desire of the Reverend Bishops and Clergy so that it ought not to be represented as being to their prejudice and de facto the Reverend Bishops and Mâ—nisters have no prejudice by that course by reason the Bishops and Ministers and Benefic'd persons who ought only to be looked upon as Clergie are secur'd by divers provisions contained in the Acts of Parliament anent the Valuation of Tiths and in special that what they were in possession of actually and really the time of the Submission made by them should remain with them in quantitate qualitate unprâ—judged by any Valuation so that the Valuation and augmentation of Stipends being only in Relation to and affecting the Spirituality and Tiends the case neither is nor can be altered as to the Clergie they being secured by the saids Provisions and the burden of augmentation of Stipends and prejudice by Valuations doth only ly upon the Lords and Titulars of Erection and Tacks-men of Tiths as the case is not altered in relation to Benefic'd persons so Stipendiary Ministers cannot be prejudg'd by the good old Way seing by an Act of Parliament 162 Ja. 6 Par. 13. They are freed and exempted of all Taxations and Impositions the burden of the proportion of the Clergie doth not ly upon them but for the most part upon the Vassals and Tacks-men against which they have by the Law a present and summar way of Relief as to the Lands and Temporality of the Clergie they are the same and in the same case as in time of former Taxations and that the Vassals of Erection or of Church-men should be in better case than formerly as to the payment of Taxation It is contrary to Law and Reason seing res transit cum onere causa and that Lay-men acquiring Lands from Church-men should have more case of Taxation as to such Lands than
other Church-men had when they possessed the same is inconsistent with Law and with the Respect and Priviledges belonging to that Sacred Order 11. Whereas it is pretended that since His Majesties Restitution and the said Act of Parliament containing His Promise and Resolution not to raise any more Cess A Taxation hath been pay'd to the Lords of Session in the way of Cess that pretence is of no weight it being considered that the said Taxation is granted not to His Majesty but for an honorary allowance to the Lords of Session and by an Act of the same Parliament wherein His Majesty Declar'd that no more Cess should be rais'd so that the said Act being in the same Parliament and it being an exception from the said Act firmat regulam in non exceptis and shuts the Door as to the future upon that manner of Raising of Impositions 12. Whatever a Parliament may do as to the repelling of former Laws and Customes a Convention of Estates though a meetting most eminent has not that Legislative Power And albeit the Commissioners from Shires has power by their Commission to offer and condescend to a Taxation Yet they have not power to alter and take away the fundamental Laws and Customs of the Kingdom as to the manner of uplifting of Taxations being the Birth-right of the people and which cannot be taken away but by a Law made in Parliament King James the sixth Parliament 16. THe Earl of Gowrie having endeavoured Treasonably to Murder King James the sixth he was Forefaulted in the beginning of this Parliament and after his Death his Brother and Posterity were disabled to succeed and the Name of Ruthâ—â—n aâ—olished as is to be seen in the first three Un-printed Acts of this Parliament and a publick day of Thanksgiving is appointed by this Act which is yet constantly Celebrated upon the 5 of August which was the Day upon which the Murder was to be committed The malice of the Fanaticks in those times is most remarkable who pretend that he was unjustly Forefaulted albeit the Depositions of the Witnesses are yet extant whereby the Traiterous Dâ—sign of having contriv'd and accordingly attempted to kill that excellent King is prov'd by his own relations and many eminent Witnesses of intire Reputation It is also observable that Witnesses of old in Processes before the Parliament were only led before the Articles and repeated in Parliament Item That the Summons was still in Latin sub testimonio magni sigilli they were at the Instance of the Justices and of the Kings Advocat and the Summons in all such cases were still rais'd before the Parliament did sit for our Parliaments sat very short time and so they err who think that such Processes can only be rais'd by a Warrand from the Articles though that be ordinary now And now likewise the Summons is in Scots and under the Signet only THe Earl of Gowrie being Forefaulted his Lands are by this Act annex'd to the Crown and though by the former Acts of Annexation Lordships and Baronies were only in general annexed yet here all the particular Baronies of the Lordship and all Tenements of the Lordship are expressed with all the Pertinents thereto belonging which are here specially enumerated and amongst the Pertinents Patronages are enumerated which shews that Patronages in our Law are comprehended under the word Pertinents which is also clear by the Author of the Book call'd The Parsons Law See more of this in the Notes on Act 29 Par. 11 Ja. 6. The Regalities and Heretable Offices belonging to Gowrie are likewise supprest expresly and the saids Lands erected in a Stewartry for a Regality is properly the Erection of Lands holding of Subjects and a Stewartry is only in Lands which are the Kings Property THis Act is Explain'd in the 37 Act Par. 2 Ja. 6. and that is the Act related to in this Statute BY this Act Invading or pursuing any of His Highness Session Secret Council or Officers it being verifi'd that they were pursu'd or Invaded for doing His Highness Service is Declar'd punishable by Death and upon this Act Mr. James Mitchel was Hang'd for Invading the Bishop of Saint Andrews in which Process it was upon debate found that the Pursuing and Invading for doing His Highness Service was sufficiently proven by presumptions except the Pannel could have condescended upon another reason which provockt him to the attempt arising from private quarrel or grudge and that because it is impossible to imagine that the Design of the Invader can be otherwise prov'n that being an occult and latent Act of the mind By the Civil Law the Invading a Counsellor was Treason for sayes the Emperour sunt pars corporis nostri l. 5. C. ad l. Jul. Maj. It may be questioned from this Act 1 Who are to be call'd the Kings officers 2. If the Invading them when they are out of the Kingdom or Suspended or when they are only nam'd and not yet admitted to their place will infer the punishment of this Act. 3. If these words in the Narrative of this Statute that they are oft quarrelled without any just cause will excuse the Invader if he can show that he was truly wrong'd by that party either in Voting or deciding against him or otherwayes Scipio Gentilis in his Books de conjurationibus adversus principes explains the l. 5. cod ad l. jul Majest and shews how far the Invading of the Kings Counsellours is Treason Sir Francis Bacons observes that an Act of this Tenour was made at the suggestion of the Chancellor in the Reign of Henry 7. because of the danger the Chancellour was then in from the Courtiours drowning the envy of it in a general Law and I am sure that was also our case for our Chancellour was in ill Terms then with our Nobility but their Conspiring was made a Crime whereas with us Invading is necessary THis Act is Explained in the 80 Act Par. 10 Ja. 3. THis Act is formerly Explain'd in the 248 Act Par. 15 Ja. 6. THis Act Discharging Herring to be carried abroad before Michaelmas under the pain of Confiscation is now innovated by the Priviledges granted to the Fishing Company and that very justly for the sooner Herring be carryed abroad they give the better price And though there were not Herring enough taken to serve the Countrey the time of this Act which was the reason of the Prohibition yet now there are sufficiently for serving both the Countrey and Strangers THough the slaying Salmond in forbidden times be Theft by this Act yet none has ever been pursu'd capitally therefore but the same is only punish'd as a penal Statute by an arbitrary punishment The reason why the Rivers of Tweed and Annand are excepted from this Act is because the killing Fish upon them prejudges only the English Fishing but after the Union of the two Kingdoms this exception as to these two Rivers is also taken away by
to any Church-lands and all Infestments of Erections of Abbacies Prelacies c. Spirituality or Temporality and a Reduction of these Rights was thereupon rais'd Notwithstanding that by the 2 Act Par. 18 Ja. 6. His Majesty to remove all mistrust does for Him and His Successors perpetually Confirm all Erections Confirmations Patronages of the saids whole Benefices and promises in verbo principis never to quarrel the same But what was done afterwards being voluntar and upon the submission of all parties concern'd did not at all impinge upon the former Statute It is likewise declar'd in the end of this Act that the possession of any thing hereby Revocked shall not prejudge His Majesty and therefore it may be urg'd that fourty years possession of any Lands or others falling under this Revocation would not debar the King by Prescription and yet it was found That if the King be Denuded in favours of a Donatar This Revocation does not interrupt Prescription without a Reduction THis Act is wrong plac'd for it should be after the 14 Act for the Superiorities of Kirk-lands being by the said 14 Act Declared to belong to the King The saids Superiorities are by this Act annex'd to the Crown but they could not have been annex'd to the Crown till they were first declar'd to belong to it THere is here a Dissolution of the Annexation made in the former Act in which it is Declared That this Dissolution shall not warrand the Alienation of His Majesties Castles Woods Parks Meadows and Offices which is conform to the 235 Act Par. 15 Ja. 6. Whereby all Dispositions of these are declar'd null and though the Lomonts of Falkland be Dissolv'd particularly by the 19 Act Par. 18 Ja. 6. Yet it is Declar'd particularly in this Act that they shall remain inseparably with the Crown BEcause by the Act of Prescription 1617. It is appointed that such as might be prejudg'd by that Prescription of fourty years run before that Act 1617. might intent Actions within thirteen years after the Date of that Act and because the King could not intent particular Summons against every person whose Rights he might challenge Therefore it is allow'd by this Act that His Majesty might interrupt the said Prescription by open Proclamation at the Mercat Cross of Edinburgh and other particular Mercat Crosses where the Lands lye and at the Mercat Cross of Edinburgh Peer and Shore of Leith against such as are out of the Kingdom But least this interruption might have too much alarm'd the Subjects It is upon the Kings own Concession declar'd that the said interruption should be Restricâ—'d to the annulling of Rights of the annext Property of the Crown and the un-annex'd whereof account hath been made in the Exchequer and of the principality unlawfully Dispon'd by His Majesties Predecessors against the Laws and Acts then standing and to the annulling of Erections and other Dispositions of whatsoever Lands Tiends Patronages and Benefices formerly belonging to the Kirk and since annex'd to the Crown and of any other Lands or Patronages which should any way justly belong to the Kirk or Crown and of whatsoever Lands and Benefices mortifi'd and devouted to pious Uses and of Regalities and Heretable Offices and of the change of holdings from the ancient holding of Ward and Relief to blench and Taxt Ward since the year of God 1540. years The Earl of Southesk having Right to the Muire of Montromant as Heretable Forrester intented a Declarator against the adjacent Heretors concluding that they should be debar'd from Pasturing therein Against which it being alleadg'd 1. That they had prescriv'd the right of Pasturage It was Reply'd that the Prescription was interrupted by this Act. To which it being Duply'd that this edictal Interruption was introduc'd without a Warrant the Act 1617. having allow'd thirteen years for the Subjects to interrupt without any Reservation in favours of the King 2. This is neither His Majesties annext Property nor is it a part of that un-annext Property whereof the Ferms or Feu-duties have been counted for in Exchequer since the year 1455. and so the interruption which is restricted to these reaches not to this case 3. This Pasturage is but a Servitude and this Interruption extends only to Alienations but not to Servitudes or things of so small moment To which it was Triply'd that as to the first there was no necessity that there should have been a Reservation in favours of the King by the Act 1617. since the King not being mention'd in the Act which was the Rule There was no necessity to reserve His Right by way of exception but this Act of Parliament has supply'd that want though there had been an omission in that Act. To the second it was Triply'd That the interruption 1633. being to secure His Majesty against Prescriptions upon the Act 1617. It was just that it should extend as far as the Act 1617. And these words Whereof the Ferms have been Compted for in Exchequer are only Demonstrative and not Taxative the compting in Exchequer being only a publick Evidence of His Majesties Right and therefore where there were other publick Evidences of His Majesties Right as strong as this His Majesties interruption by this Act behov'd to take place else it should not extend to secure His Majesty as to any thing for which there were blench or Ward-holdings This Act mentioning only Feu-ferms it should not extend to His Majesties Castles or other things for which he gets no advantage 3. This has been compted for in so far as the Sheriff compts for the Blench-duties and Southesk payes Blench-duties for his Forrest 4. By an Act of Parliament in King Davids time 1357. and another 1367. All the Kings Forrestries are ordain'd not to be Dispon'd without consent of Parliament and so are to be lookt upon as a part of the annext Property To the third it was Duply'd That this Act as the Act 1617. was to be extended to Prescriptions and there were things of less consequence than Servitudes secur'd against by this Act such as change of holdings Patronages c. This case is not decided The reason why this Act restricts it self in this Clause to the year 1455. is because in that year was the first Act for annexing any Property to the Crown viz. The 41 Act Par. 11 Ja. 2. It being alleadg'd upon this Act that the King behov'd to produce the Letters of Publication at the several Mercat Crosses and the Executions thereof else His Majesty could not have the benefite of the Interruption It was answered That the Act of Sederunt of the Session did indeed appoint Letters of Publication but two years after that Act this Act of Parliament was made allowing the King this Interruption wherein the Parliament did certainly consider the Publication as having preceeded statuit lex hoc casu super praesumpto and so the Letters of Publication and Extentions need not now be produc'd Which Answer the Lords found Relevant
at due Rates but Teinds holden of Collegiat Kirks are subject to buying and selling as other Teinds the 3. of February 1632. Though it would appear by this Act that every man shall only have the Leading and Drawing of his own Teind after the same is valu'd since the Act sayes the same being first truly and lawfully valued Yet if the Heretor intent a Pursuit for Valuation he will during the Dependence get liberty to lead his own Teinds if he offer Caution to pay his Teinds conform to the Valuation that shall be led July 14. 1630. But this benefit of leading is only granted to Heretors by the the foresaid Act and therefore no Liferent Tacks-man hath this benefit except the Liferent be Constitute by Infestment of Conjunct-fee or the like November 30. 1631. Neither can Rentallers or Tennents crave this benefit ex eodem capiâ—e March 8. 1630. It is only granted likewise to such Heretors whose Teinds were drawn before but not to these who pay'd Rental-bolls July 24. 1635. And yet the contrary is found the 3. of July 1643 But the Heretor may have the leading of his own Teinds though he does not instruct a publick Infeftment if he shew that he is not in mora to be Infest and that he is the person who should be Infest July 6. 1642. But the Teinds belonging to Church-men whereof they were in possession the time of the Submission are not to be led upon Caution and yet by a Missive the 9. of May 1634. His Majesty declares His Favour not to be extended to their Tacks-men being Laicks but that during these Tacks the Heretor may lead he finding Caution as said is By the Submission the Decreets following thereupon and the express words of this Act Ministers are to be provided before the Heretors have liberty to buy or value and therefore the Titular may allocat what Teinds he pleases towards the Maintainance of the Minister and the Heretor eo casu cannot force the Titular to sell February 17. 1645. But though the Kirk be not provided yet the Heretor may buy his Teinds if he be content to undergo his part of the augmentation when it shall be granted the 20. of January 1645. Earl of Hadington contra the Laird of Bairfuird So that it appears that albeit a Titular may assign any one mans whole Teinds towards the Ministers Maintainance when there is no present provision yet if there be any though it be small he may not but the same should burthen proportionally the whole free Teinds of the Paroch where there is a present provision and where the Teinds are once bought the Heretor will not be burdened as long as there is any Tack-duties free in the Titulars hands February 15. 1643. But the Tacks-man will not be found lyable in the said Relief January 27. 1635. But if there be no free Teinds in his hand then the Buyers and all the Heretors must be burdened with the augmentation January 16. 1635. It seems that the Titular cannot assign the Teinds of one Paroch for paying the Stipend of another For by this Act it is said That the Teinds shall be burdened with the Stipend of the Minister serving the Cure of the Kirk But the Commission allocats sometimes the Teinds of one Paroch to make up a Stipend to the adjacent Paroch if the Minister of the Paroch out of which the free Teinds are allocated be competently provided for the Commission thinks the Teinds as the Spirituality of the Church to be burdenable in general and yet if this argument prove any thing it will prove there can be no free Teinds as long as there is any Minister in Scotland unprovided competently BY this Act the Exchequer is Declar'd a Soveraign Court and power is given them to pass and discuss Suspensions and to Decern in all things concerning His Majesties Property and all things concerning the Annuities of Teind which was the particular reason of making this Act at this time but because of this Act giving them power to decide every thing relating to the Property therefore by the 59 Act Par. 1 Sess. Ch. 2. It is declared that the deciding concerning the validity and invalidity of Infestments shall only belong to the Session And whereas this Act allows the Exchequer only to proceed in things relating to His Majesties Property and others depending thereon that Act declares they have liberty to judge in all things relating to His Majesties Rents and Casualities as they might have done before the year 1633. And it being doubted whether the Lords of the Session were Judges competent to the Discussing Suspensions rais'd against the Customers by the Masters of Manufactories who pretended that as to goods imported for the use of their Manufactories they were free from Custom the Lords did justly determine that thogh the Exchequer were only Judges Competent to Discuss Suspensions as to Customs or any part of His Majesties Revenue where the same were due by a clear Law or constant use of payment yet the Lords of the Session were Judges Competent to clear what was due by Law and to interpret Acts of Parliament Nota The Act of Parliament alleadg'd to be made upon the 22. of May 1584. Concerning the Exchequer Ratifi'd by this Act can neither be found amongst the Printed nor the Un-printed Acts. Though by vertue of this Clause and a Letter from His Majesty It is declar'd That the Exchequer are Judges competent to liquidat Wards and Marriages and that the Exchequer has decided in some such cases Yet regulariter the Session are only Judges Competent to such Actions and albeit the Session be only Judges Competent to Contravention of Law-borrows yet after the Contravention is Decided in His Majesties favours if the party against whom the Decreet is obtain'd Suspend the same the Charge being at His Majesties Instance it ought only to be Judg'd by the Exchequer that being a Casuality already stated and the point of Law being already determin'd although it be alleadg'd that this being a Suspension of the Lords of the Sessions Decreet it should only be Discuss'd before them ob continentiam causae Though by the 25. Act Par. 16. Ja. 6. It is appointed that all Hornings henorth d ee shall be upon no less than fifteen Dayes Yet that is to be restricted as has been there observ'd in Cases before the Council for by this Act all Charges of Execution before the Exchequer are to be upon twenty dayes upon the North-side of Dee and ten days upon the South-side of Dee THis Act is the first Commission granted for valuing of Teinds conform to the Surrender and Decreets Arbitral pronunced thereupon which Commission is renew'd in several subsequent Parliaments And for clearing somewhat of The Form of Process before that Court it is fit to know that all Dyets before the Commission are with Continuation and because of their uncertain sitting there needs no Wakening all Procurators appearing before them should have Written
pag. 206. Observes well that formula illa quae est in titulis Dei gratia utuntur illi soli qui nulli mortalium imperium suum debent vid. obs on the 251 Act Par. 15 Ja. 6. THis Act allowing the Government by Synods Presbytries and Sessions is Rescinded by the 1 Act of the 2 Sess. of this Parliament THis Act appointing a Solemn Aniversary Thanksgiving for His Majesties happy Restauration was scrupled at because this Act did appoint it to be set a-part as a Holy-day and therefore it was thought fit by the 12 Act of the 3 Sess. Par. 2 Ch. 2. To renew it as an Anniversary Thanksgiving leaving out the words Holy-Day THis Act against Cursing and Beating of Parents is fully Explain'd crim pract tit Paricide THis Act is Explain'd crim pract tit Blasphemy THis Act concerning casual Homicide is Explain'd crim pract tit Homicide but it is fit to add here that the Rubrick of this Act of Parliament bearing Act concerning the several Degrees of casual Homicide is very rediculous for the degrees mentioned in the Act are casual Homicide Homicide in lawful Defence and Homicide committed upon Thieves and no sober Lawyer can think that either Homicide in Defence or Homicide committed upon Thieves are degrees of casual Homicide BY this Act the whole priviledges belonging to the Colledge of Justice that is to say Senators Advocats Clerks Writers and remanent Members or whereof they have been in use or in possession at any time bygone are expresly Ratifi'd and that notwithstanding of whatsoever Act Custom or Practice to the contrary Vid. Act 8 Par. 2 Sess. 2 Ch. 2. Where the priviledge of Immunity from Taxes is only given to the Lords of Session Upon which Act it was Debated in December 1678. Whether Advocats should not be free from the Annuity impos'd by the Town of Edinburgh since they were by this Act freed from all Impositions and though by a special Act of this same Parliament Ch. 2. The Colledge of Justice was made lyable to the Annuity Yet they being free by this Act and the other Act being but an un-printed Act and an Act to which they were not call'd their priviledge could not be thereby taken away albeit it was contended that the being free from Annuity was no priviledge ever expresly Declared in their favours But on the contrary was a Debt upon them as Hearers of the Word of God and so the Parliament might very well by a general Law declare this Priviledge not to prejudge the Annuities nor was that Law concerning Annuities a special but a general Law binding all the people who came to live in Edinburgh and therefore there needed no party be cited nor was it necessary to the Essence of an Act of Parliament that it should be printed BY this Act the Creditors of the Defunct are prefer'd to the Creditors of the appearand Heir as to all Execution against the Defuncts Estate they doing Diligence within three years after the Defuncts Death which three years was found to be tempus continuum and not utile and that these three Years did run even contra non valentem agere December 19 1678. Paterson contra Bruce The reason of which Act of Parliament is that it is just that every mans Estate should pay his own Debt though upon the other hand it is likewise just that in the next place the appearand Heirs Creditors may likewise do Diligence even against that Estate to which their Creditor may succâ—ed Nor ought his voluntary lying out to prejudge them for which cause likewise it is that they may Charge the appearand Heir to Enter and Comprise or adjudge the Predecessors Estate BY this Act it is ordain'd that fourty dayes after the Sentence of Excommunication Letters may be rais'd at His Majesties Advocats instance for Denuncing the persons Excommunicat Rebels the Process being first revis'd by the Lords of the Session but this power of the Lords of the Session being made before the Bishops were Restor'd is abrogated by the 23 Act of the 3 Sess. of this Parliament BY this Act the person from whom Goods were Stollen is to have his Goods or the value thereof restor'd to him out of the readiest of the Thiefs Goods he alwise pursuing the Thief to Sentence Observ. 1. Since this Act reserves to the Sheriff or Takers of the Thief the expence war'd out by them in taking the Thief and putting him to â—xecution It seems that they ought to be prefer'd to the Owners of the Goods though the Act sayes that he is to be pay'd out of the readiest Observ. 2. It may be doubted whether the Justices or the Judge ordinary should Restore and though the Justices have no civil Jurisdiction yet I have seen them Restore in such Cases and this is in effect an incident Jurisdiction â—b continentiam causae Observ. 3. That it has been doubted whether third parties buying the Goods though in a publick Mercat are oblig'd to restore THis Act pardoning penal Statutes seems by a mistake to except Usury for Usury is properly a Crime punishable by all Law at all times Whereas a penal Statute is properly a Statute which punishes a Delinquency that is only punishable upon some occasions by an arbitrary punishment and therefore Acts of Grace or general Indemnities Discharging the Execution of penal Statutes should no more be extended to Usury than it should be extended to Murther or Adultery and Usury is by the Act of Indemnity which is the 29 Act 3 Sess. of this Parliament excepted from that Indemnity amongst Murderers Thefts and other Crimes of that Nature and it was excepted only in this Act ad majorem cautelam because the Chancellour had then the Gift of Usury What are properly counted penal Statutes may be seen Act 9 Par. 21 Ja. 6. Where amongst other Crimes Usury is ordain'd to be punish'd and not to be pardon'd as a penal Statute and if Usury fell under penal Statutes it would very much encourage Usury for men would still expect a Discharge of it because penal Statutes are frequently Discharg'd But yet the Lords in the case betwixt the Laird of Haining and Cruick found that Usury was Discharg'd by the Act of Grace 1674. because of the special conception of that Act. BY this Act the Quots of Testaments are taken from the Commissars but upon the Restoring of Bishops this Act is abrogated by the 1 Act and 2 Sess. of this Parliament THis Act is formerly Explain'd Act 77 Par. 13 Act 10 Par. 18 Ja. 6. THis Act is formerly Explain'd in the 14 Act Par. 1 Ch. 1. BY this Act all Comprisings are to be allow'd within sixty dayes after the date thereof with Certification that if they be not allow'd and Recorded within that space a posterior Comprising first Recorded shall be prefer'd thereto and upon the 8 of June 1665. The Lords upon a Supplication ordain'd a Comprising to be allow'd
made Work and yet to encourage our own Work-men there is double Custom laid upon all Forraign made Work by the Book of Rates and ten per cent by a late Proclamation which being joyn'd with the Sea-risk that those run who bring home made Work and the Exchange pay'd for the price of it is a sufficient encouragement to our own Trades-men who because they may live cheaper may likewise work cheaper than those abroad even beside these other Encouragements THis Act in favours of Sope-work seems needless because it was comprehended under the general Act concerning Manufactories being the 40 Act of this Parliament but probably it has been thought necessary for clearing the time for which the priviledge of Manufactories was to endure as has been observ'd upon that Act. THough by this Act it be Declar'd that upon the bringing down the annualrent to six of the hundred that six is declar'd to be free of all Retention or other publick Burdens Yet subsequent Parliaments have Burdened even the annualrents with Retention and otherwise expresly contrary to this Act upon pretext that the Impositions were voluntar offers and not formally Impositions Nota. It may be doubted if the Kings Officers may not lawfully ingage for more than six per cent to get Money for publick use BY this Act it is Declar'd that all sums whereupon no Infeftments have follow'd may be arrested though they be Heretable otherwise of their own Nature and because regulariter Heretable sums are not arrestable therefore this Dispensation was necessary Albeit this Act bear only that sums whereupon no Infeftments have follow'd be arrestable and determines not if arrestments may be us'd at his instance to whom such sums are due Yet a paritate rationis this may follow THis Act is formerly Explain'd in the Act 7 Par. 1 Ja. 6. THis Act is only a Ratification of the 10 Act of the 1 Par. of Ch. 1. Save only that it is here declar'd That notwithstanding of this Act any who have gotten or shall get any new Infeftment of Superiority of Kirk-lands the same shall stand good as to such Vassals who have given their consent to the said Right of Superiority In regard that such a consent as to His Majesty is of the Nature of a Resignation of their property in favours of the said Superiour to be holden of the King But prejudice nevertheless to His Majesty of His Highness Right of Reversion of the Feu-ferm-duties and Casualities conform to the foresaid Act of Parliament 1633. The design of which Clause was to secure such Lords of Erection as had got Bonds from their Vassals holding Kirk-lands of them to continue their Vassals and not to hold of the King notwithstanding of the Act of Parliament 1633. Declaring the King to be the Superiour of all Kirk-lands and albeit the Lords did not think that the single taking of an Infeftment from a Lord of Erection did infer the consent mentioned in this Act after giving of which consent the Vassal could not return to be the Kings Vassal Yet upon the 28. of July 1669. in a case betwixt the Duke of Hamilton and Weir of Blackwood The Lords found that such a consent as this might be infer'd by presumptions shewing that the Vassal design'd to oblige himself to hold of the Lord of Erection and not of the King and in that case they found that Blackwoods Father having granted a Bond that so soon as the Duke should obtain the Superiority his Son should become his Vassal and though the Duke had not then obtain'd it yet he has since the Lands being lately dissolv'd from the Crown and though the Father was but a Tutor yet he was the person who was instrumental to settle his Son in the Right and the rest of the Vassals of that Abbacy did take their Lands expresly holden of the Duke only But in my Opinion no consent can be founded upon by this Clause of the Act of Parliament except it be a clear and express consent to hold only of the Lords of Erection and not of the King it being so much the Interest both of King and People that the Subjects should hold of the King and the Parliament 1633. having so clearly introduc'd in the favours of Vassals of Erected Church-lands that they may hold of the King it were hard to take that benefit from them without their express consent FOr understanding this Act it is fit to know that because Tiâ—â—lars of Prebendaries Chaplanries and Alterages cannot be Infest and that there is nothing standing in any Register to shew who is Titular therefore singular Successors who are Vassals could not know by whom to enter to supply which this Act provides that the Vassals of the saids Provestries Chaplanries and Alterages and others of that nature may be Infeft by the Laick Patrons holding immediatly of the King because it is easie to discover by the Registers who is Laick Patron of the Benefice since it passes by Infeftment but yet the Laick Patron is to have no advantage and so the Liferent-escheat will not fall to him as Superiour but will belong to the Titular who is true Superiour nor can the Laick Patron pursue Reduction But yet it seems that since the Vassal did Enter by him that therefore he is bound both to produce to him and that he will have right to the Emoluments of the Superiority except the Vassal can show who is the true Superiour Nota. That when the Patron presents in such Cases he needs not the consent of the Chapter or Convent of the saids Prebendaries and the Provost and Baillies are Declar'd the only undoubted Superiours where such Benefices ly within their Towns they having formerly been Patrons of these Chaplanries which ablativi absolute positi seem to import a condition and so they must prove that they were formerly Patrons ALbeit by this Act it be appointed that there shall be a Cocquet for every Ship and that there shall be fourty shilling pay'd for it Yet it was alleadg'd that a general Cocquet for a Ship was not sufficient but that every Merchant should have a special Cocquet containing specially his Goods and enumerating particularly all the kinds of these Goods Because First The design of Cocquets was to know whether the Goods belonged to Free-Traders which could not be done if the Goods and Merchants Names were not condescended on particularly Nor could it be known if His Majesties Dues were pay'd for the Goods for which the Cocquets were granted 2. It were unjust that a great Ship with Rich Wares should pay no more than a small one with courser Goods 3. By the Customs of England and other Countreys there were for these Reasons special Cocquets given for proportional Dues 4. By the 255 256 257 Acts of the 15 Par Ja. 6. The Cocquets are to contain the particular quantities of the Goods vid. observ on these Acts. THis Act is Explain'd in the 11 Act Par. 18 Ja. 6.