I thought it convenient to represent a short account and vindication of them Registers are appointed in Scotland either for real Rights for so we call all Rights and Securities of Land or for personal Obligations by which a man binds his Person but not his Estate Men sell their Land in Scotland either absolutely or under reversion If absolutely it must be either to the sellers own Superior or to a stranger If to his Superior of whom he holds his Land it is transmitted with us by an Instrument of Resignation in the hands of his Superior ad perpetuam remanentiam whereby the Propriety is consolidated with the Superiority and this Instrument must be registrat But if he sell it to a stranger then the acquirer must be seased and this Sasine must be registrat within sixty dayes Or if a man do not absolutely dispone his Estate but retain a power to redeem the same upon payment of the sum for which it is wodset or morgaged then the Paper whereby this power is allowed is called a Reversion and it must be registrat within sixty dayes also If any Heretor be suspected by his friends to be prodigal or unfit to mannage his own affairs he interdicts himself to his friends in a Paper wherein he oblieges himself to do no deed without their consent Or if a Creditor who lent his money to an Heretor find that Heretor intends to sell his Estate without paying him albeit he did lend his money in contemplation of that Estate which the borrower then had he makes an application to the supreme Judicature of the Kingdom called the Lords of the Session and from them obtains a warrand to inhibit his Debitor to sell that Estate till he be payed which Interdiction or Inhibition must be first published at the Mercat-cross where the Lands lye and then registrated within fourty dayes There are two of these Registers or publick Books one in the chief Town of the Shire and another at Edinburgh which serves for all the Shires and in either of these all these Sasings Reversions Interdictions and Inhibitions may be registrated So that when any man intends to buy Lands he goes to the Keepers of these Registers who keeps a short breviat of these in a book apart called the minute Book bearing the day when any Inhibition was presented against such a man at the instance of such a man and there he finds for a Crown what incumbrances are upon the Estate he intends to buy and if he find none he is secure for ever As to personal Bonds they need not be registrated but if the Creditor resolve to secure his Bond against lossing or if his Debitor refuse to pay his money when he calls for it then he gives in the original or principal Bond to the Register who keeps it still and gets out an Extract or Coppy of it collationed by my Lord Registers Servants and subscribed by himself or his Depute for there is a Register for Bonds in every Shire Town and Jurisdiction as well as at Edinburgh This Registration hath with us the strength of a judicial Sentence and warrands the Creditor to charge his Debitor to pay under the pain of Horning or out-lawry and if he disobey the Horning is registrated And thus every man knows in what condition his Debitor is as to his personal Estate if he begin not to keep his credit and this Register serves both for execution and information This being the state of the Registers in Scotland the usefulnesse of that institution may appear from these following reasons 1. There is nothing discourages men more from being vigilant in their employments then when they apprehend that the money which is that product by which their pains uses to be rewarded cannot be secured to their posterity for whose advantage they disquiet themselves and coil so much And thus the Common-wealth will be but lazily served Trade will be starv'd and ingenuous spirits discouraged Not is it to be imagined how purchasers will be or are induced to be at much pains and expences to improve their grounds and adorn their dwellings when the loosnesse of their right layes them open to renewed hazards nor can they enjoy with pleasure what they cannot possesse with certainty And what frail securities have such as are forced to rest upon the ingenuity of sellers who of all people are least to be trusted for such as sell Lands are either prodigals who are too vitious or distrest persons who are ordinarly under too many necessities to be believed 2. Registers are of all others the greatest security against the forging of false Papers for forgers use to conceal for some time the papers they forge Whereas the necessity of registrating them within such a time will either fright the contrivers from doing what they must expose to the light or will at least furnish such as are concerned to have the fraud detected with means which may be effectual seing it is much easier to expiscat truth whilest the witnesses are alive and all circumstances recent then after that a long interval of elapsed time hath carried away the persons and obscured the circumstances from which truth could have received any light 3. Purchasers being fully secured by the publick faith of Registers need not burden the seller with a necessity of finding surety to them for the validity of the rights sold which as it resolves still in an personal and consequently an unfixt security for the buyers so vexes very much the seller and his friends 4. The security which flowes from Registers cuts off much matter of pleading and thereby defends against those feuds and picques which last ever after amongst such as are concerned and keeps Gentlemen at home improving their Estates and Merchants and Tradsmen in their Cantors and Shops enriching the Nation 5. When men are to bestow their Daughters they are by our Registers informed and assured of the condition of those with whom they deal and by their means men are kept from giving their Daughters and their Fortunes or a considerable share thereof to Bankerupts and Cheats Likeas the Daughters are by them secured in their Joyntures and not exposed after their Husbands death to tedious suits of Law the dependance whereof draws them to publick places unfit for their Sex and the event whereof drives them to begging and misery 6. By these the price and value of Land is much raised for by how much more the purchase is certain by so much more it is worth 7. By these Heretors who are opprest by debt are relieved by the sale of their Lands upon which Buyers now adventure freely whereas if they were to rely upon the faith of the Sellers their Estates might continue unsold till the Rent of their money should eat up the Stock 8. By these Usury and unfrugal Transactions with Brockers and others are much restrained for if purchases of Lands were not secure men would rather choose to hazard their money so then upon
enjoy the said Estate free from any debts contracted by the Earl of Annandail Though this pursuit appears clearly to be founded upon the express will of the first Disponer who as he might not have disponed so might have qualified his Disposition with any conditions he thought fit and albeit such clauses as these tend effectually to preserve illustrious families yet the Creditors of the late Earl of Annandail do alledge that though this his contracting of debt may furnish action against the Earl of Annandails Heirs for any prejudice they can sustain by his contraveening the foresaid Provision and though by vertue of this Pactum de non alienando all the persons in the tailzie were bound up from selling the saids Lands yet no paction nor provision could annull debts which were bona fide lent by them to a person who stood in the Fee Which Defence they urge by many specious reasons as first That there is nothing so contrary to the Nature of Domintum and Property as that he who is Proprietar should not have the free exercise of his Right and Property which free exercise consists in the liberty to alienat and to make use of what is his own for defraying his just debt and answering his necessar occasions and they pretend that it were most absurd and inconvenient that a person should be raised to the title and dignity of a Noble-man and should be confest by the Law to have an absolute right to an Estate and yet that though he were captive in the Turkish Gallies he should not be able to raise money for redeeming himself from that bondage and which seems yet more repugnant to the inclination and interest of the Disponer that if a Fine were imposed with assurance that if the Fine were not payed the Estate should forfeit yet the Proprietar behoved idly to stand and see the Estate sink And though an advantagious occasion offered of buying his own Superiority his multers or any such advantage yet the Heir of tailzie could not raise money for that use nay nor for alimenting himself if the Rents perish'd by war or other accidents This is to have and not to have an Estate a paralitick Property and an useless Right To allow that such a Clause in a Charter might annull all the debts contracted by him to whom it is granted were to destroy and ruine Commerce which is the very soul of a Common-wealth and which by how much it is incumbred by unexpected Clauses is by so much impared and burdened Commerce doth oftimes require speedier returns and dispatch then can allow a serious consideration of all the securities and evidents of those with whom we deal neither are these alwayes ready to be produced nor doth the Law in what relates to Commerce consider all that a Lender may do for securing himself but what is ordinarily done and it is most certain that the most exact men do not enquire into the securities of those with whom they contract in lending money and though something may be pleaded in favours of ordinary clauses which either Law Customes or Decisions have allowed yet it were extraordinarily prejudicial to Commerce to make a man forfeit his sum because he did not guard against pactum de non contrabendo debitum a paction as unsuitable to the nature of Propriety as unusal in this Kingdom and though the Legislators do in some places allow such pactions as these as is clear in Lege Majoratus in Spain yet they are made tollerable there because being introduced by a publick Law they are universally known and he who contracts with persons so prohibited there forfeits his sum because he neglects a publick Law and not because he contemns the privat prohibition of a Disponer Nor are such pactions as these to be so severely observed as necessar for preserving Noble Families and so fit for our Kingdom which subsists by these for if the nature of Propriety were to be alter'd in so high a measure as it is by this paction it could in justice only be altered by a publick Law wherein the Estates of Parliament who are with us only Judges of what is convenient for the Nation in general might declare that it were fit to turn such a paction as this into a Law and since for so many Ages the Parliament has not thought this fit nor have privat families ever introduced any such pactions till now we must either judge that these are not fit for privat families or that those understood not their own interest As to strict Law whereupon this pursute is only founded the Creditors do represent that though Lawyers have allow'd pactum de non alienando yet they have extended it no further then to annull Dispositions made contrary thereto but they never stretch'd it so far as to annull all Debts contracted by the person prohibited to dispone l. ea Lege C. de condict ob caus dat 2. Though they allow'd these prohibitions quando inductae erant à Lege à Judice aut à Testatore per ultimam voluntatem yet they did not allow so much favour to Prohibitions which are only founded super pactis viventium as is clear by Craig l. primo diages 15. Omnes terrae inquit ille in Feudum dari possunt nisi quae à Lege Judice aut Testatore in ultima voluntate dari prohibentur 3. Lawyers do not allow that such Prohibitions as these though resolutively conceived should absolutely annull all alienations made by the person prohibited except the Prohibiter reserve some Dominium and Property to himself in the thing dispon'd by vertue of which reservation he has power to quarrel all deeds done and the person to whom he dispones is because of that reservation not so absolutely in the Fee or Property as that his Disposition should be unquarrellable as is clear by Bartol and Baldus both ad l. Sancimus Cod. de reb alien non alienand where they conclude quod si is cui promissum est de non alienando reservavit sibi jus aliquod in re hypothecae vel dominij impeditur translatio aliter non etiamsi pactum adhibitum sit in ipsa traditione cum pacto resolutivo tamen non impedit dominij translationem sed illo casu alienans tenetur tantum ad interesse And therefore seing the Disponer reserved no right to himself but that the late Earl of Annandail was fully in the Fee It were against the principles even of strict Law that debts contracted by him should be annull'd as contrary to the Prohibition 4. When a person is prohibited to alienat that Prohibition is still restricted to voluntar and unnecessar alienations the design of the Disponer being to curb such of his successors as should be luxurious but not to bind them up when frugal in occasions that are necessary and advantagious and the Law is content to own such pactions in odium of such as have fed the luxury or prey'd upon the simplicity of
perform the same but behoved to be supported as said is by which it clearly appeares he did not any acts that were equâ—polent To his actual going abroad to the Kirk or Mercat I make no answer since our Law requires his going unsupported which cannot be alledged in this case for as going to Kirk and Mercat is an exception which takes off the reason of Death-bed so the being supported elides the exception of going to Kirk and Mercat And so unfavourable have their Reductions alwayes been in our Law that the Pursuer offering to prove supported is preferred to the Defender who offers to prove unsupportable as was found 27. July 1629. albeit regulariter the Defender is preferred to prove his own defence not needs the Pursuer debate from what cause the supportation proceeded for it cannot be known to Witnesses upon what account he was supported and that might have proceeded from infirmity as well as from the ruggednesse of the way and so this Law would in its execution and application return still to be arbitrary if Witnesses or Judges might guess at the occasion of the supportation But without debate the Pursuer contends that this priviledge of eliding a Reduction ex capite lecti being only competent to the going to Kirk and Mercat unsupported he who is supported gains not the priviledge because he fulfills not all the qualities and it is very well known that the way is ordinary Calsay and that the House and Mercat are not distant three pair and the Lord Coupar used ordinarily to walk there unsupported So that when he took support especially at a time when he designed so much to go unsupported it shewes convincingly that his infirmity though not himself remained still disobedient to all their designes and though they could force him to dispone yet they could not force him to be sound and your Lordships may easily judge that these who were at so much pains to make this Disposition subsist were not wanting to use all indeavours for carrying him over this last difficulty so that this support proceeded not from chance but from necessity Seing then your Lordships have been so rigid observers of the Law in prejudice of poor Children and poor Relicts who were unprovided I hope you will not prostitute it in favours of a stranger who had formerly gotten all the Defuncts Estate in Jointure Reward not thus the importunity of Wives and bryb not avaritious persons to trouble us at a time when we shall think all time too short to be imployed in the service of Him whom we have so much and so often offended And take not from us in one decision the protection of the Law when our judgments are frail the quiet of our Souls when we are sick and the love of our Successors when we are dead The Lords reduc'd the Disposition For the Countesse of Forth c. against E. C. EIGHTH PLEADING How far restitutions by way of Justice are prejudged by Acts of Indempnity I Might stand in the next degree of guilt to those who forfeited the Earl of Bramford if I thought that his Merit or your Lordships Loyalty needed that I should urge much the favour of his case He was a person who carried the honour of our Nation as far and as high as could be expected from the happiest Subject in much better times for after that his Merit arm'd meerly by his own Valour had rais'd him to be a General in Sweden he was chosen General in England in a War wherein all his Nation were suspected and did there actions worthy of our Praise and their Wonder But whilst he had refus'd to draw a Sword against his Country-men even whilst they were Rebels they forfeited him for fighting in a Kingdom over which they had no jurisdiction and forfeited him by His Majesties Lawes and at the pursute of His Majesties Advocat when he was hazarding his life for His Majesty by His own command and in His own presence and the very day after he had gain'd that Battel for Him which if prosecuted according to that brave Generals advice might have secured to Him that just power which those Rebels were scruing out of His hands The Earl of Forth being with His Majesty restor'd to his own his Lady and Daughter pursue such as intrometted with his Estate and insist now against E. C. who for being General to the then Estates got 40000 pounds out of the Estate of the Earl of Forth which was a part of that Sum which was due to his Lordship upon an heritable security by the Earl of Errol and his Cautioners In which Debate if I use terms which may seem indiscreet and zealous I must be paroned since I shall use none but what are forc'd upon me by that Act of Parliament by which I plead since E. C. is a person to whom I wish much success in every thing save this Debat and to whom my respects are above jealousie It is alledged for E. C. that though such as are restored against forfeitures by way of justice may by vertue of their restitution repeat all that is extant of their Estate yet they cannot repeat what money belonged to them for money being res fungibilis and naturally subject to consumption it passeth from hand to hand without bearing any impressa whereby such as intromet with it may know how it came and whose it was Nor doth the nullity of a Title in the first obtainer infer repetition of money from such as derive a right from them as may be clear'd in many instances for if money had been payed to one who obtain'd an unjust sentence from the late Usurpers yet they would not be liable in repetition after that sentence were revived and declared null If one should serve himself Heir unjustly and as Heir assign a Sum to one of his Debitors though his service were thereafter reduc'd as unjust yet could not his Assignay be oblieged to restore what he recovered by vertue of that Assignation If the Exchequer should presently gift an Escheat though the Escheat and Horning whereupon it proceeded were thereafter reduc'd yet a sum payed by vertue of that Gift when standing could not be repeated and if this Principle were not sustain'd all Commerce would be destroyed and though E. C. his Title be now â—educ'd yet it was valid the time of his intromission which is sufficient to astruct his bona fides and Lawyeâ—s even in intromâ—ssions with money which was at fiâ—st â—obbed consider only Vim illam quae intervenit tempore numerationis whereas here though the Estâ—tes did most unwarrantably and rapinously forfeit the Earl of Forth yet his money being broughâ— in to the publick Tâ—easure and confounded with their Caâ—h it ceas'd to be his and became theirs and therefoâ—e E. C. being Creditor to them as he might have taken any Precept justly from them payable out of their Treasure So might he have taken Pâ—ecepts upon his Estate which ceas'd to be his Nor can the
Earl of Forth be said to be a loser by E. C. seing the Estates for the time would have brought it in and converted it to their own use in which case Forth would not have goâ— repetition against the persons to whom it were payed To these grounds it is my Lords replyed â—or the Earl of Forth that there is a difference stated in Law betwâ—xt restitutions by way oâ— Grace and restitutions by way oâ— Juâ—tâ—ce in restitutions by way of Grace the guilt remains though the punishment be remitted and the person forfeited is restored not to his Innocence but to his Estate and therefore he recovers only what â—s extant of his Estate But in restâ—tutions by way of Justice the Sentence forfeiting is declar'd never to have been a Sentence and therefore it can never be sustaâ—n'd as a Warrand to an◠〈◊〉 Sed comparatur juri postliminii fingitur nunquam 〈◊〉 〈◊〉 tantum restituit 〈◊〉 quanâ—um abstuliâ— injusâ—â—ia And 〈◊〉 not only what is extant but all that belonge◠〈◊〉 〈◊〉 there is restoâ—ed But Sentences foâ—â—eâ—tâ—ng may be 〈◊〉 〈◊〉 as B 〈…〉 s obseâ—ves 〈◊〉 d 〈…〉 med 〈◊〉 into 〈◊〉 as though they were â—njust yâ—t every p 〈…〉 t person was not obâ—â—egeâ— to know the injustice oâ— the â—orâ—eiture as if a man had been forfeited in a Justice-court for murder under trust or a Landed-man for theft against which sentences though the person forfeited were restored yet it might seem hard that such as intrometted by vertue of Warrands or Assignations from the Estate should be forc'd to restore all they received but others may be forfeited as the Earl of Forth was by vertue of Sentences which were no sooner pronounced then they became Treason by an execrable inversion not in the Pannel but in the Pronouncers and were not only Treason of their own nature but behoved to be acknowledged treasonable by all such as heard of them and such sure was that Sentence pronounc'd against the Earl of Forth which was against the fundamental Laws of this and all Nations and which is declared by the Act of Parliament restoring him to have been at the time it was pronounc'd an Act of Rebellion and an invasion upon his Majesties Royal Prerogative This being the state of this restitution It is my Lords answer'd to the Defence that it is defective in the aplication of all its parts For that this money was not res fungibilis appears because the Law distinguishes all Estates in mobilia quae sunt fungibilia immobilia nomina debitorum Nomina debitorum are Bonds due to the Creditor which are of a middle nature betwixt movables and immovables and these fall certainly under restitution by way of Justice even according to the Defenders own Principles for they bear the nâ—me and impressa of him to whom they belong and so the Intrometter is warned to bewar of them and that this money crav'd here to be repeated was such is very clear for it was due upon â—n heretable Bond to the Earl of Forth by the Earl of Errol and hâ—s Cautioners and came never in nor was confounded with the Publick Treasure for E. C. got a Precept upon â—t before the Publick obtain'd a Sentence for it and got a W 〈…〉 nd for that specifick sum owing by that Bond to the Earl of Forth and got payment of it from the Earl of Forths De 〈…〉 s 〈◊〉 Debitors to him so far did just Heaven allow this hast to be its own punishment As to the second member of the Defence which is founded upon his bona fides to intromet with the sum for payment of a Debt due to him he having been General at that time from an Authority then in being It is reply'd that Bona fides in the Intrometter doth not extinguish and take away the Right of the true Proprietar nam quod meum est sine facto meo à me auferri nequit And Lawyers determine that to denude a man of his Property there must be some fact of his either se obligando or delinquendo neither of which can be alledged in this case and if the Earl of Forth was never denuded then Calendar could have no Right for duo non possunt esse domini in solidum unius ejusdem rei which maxim holds still in specibus nominibus debitorum for though sometimes it may fail in numerat money the dominion whereof is for the good of Commerce sometimes transmitted by simple numeration yet it never fails in specibus seu corporibus and that money due by Bond is not of the nature of pecunia numerata is clear from l. si certus ff de legat 1. And if a Robber take away may Cloak and give it to a Stranger yet I would per rei vindicationem get it back notwithstanding of the Defenders bona fides but here there was no bona fides seing E. C. was oblieg'd to know that the Earl of Forth was injustly forfeited and that the Act of Parliament against which there is no disputing has declar'd it to have been Treason and if E. C. were pursued for opposing His Majesty at that time or for concurring to the forfeiting of the Earl of Forth he could not defend himself otherwayes then by the Act of Indempnity Ergo in the case of restitution of Forths Estate which is excepted from the Act of Indempnity That Warrand proceeding upon forfeiture cannot defend him for how is it imaginable that his bona fides which could not defend him against the losse of his own Estate shall be able to defend him against the restoring of Forths to which he had aliunde no Right There is no bona fides but where it is founded upon a Title Et ubi non subest Titulus ibi non est admittenda bona fides But so it is that E. C. his Title viz. The forfeiture of the Earl of Forth is declar'd by Parliament never to have been a Title But E. C. who was a Member of that Parliament which forfeited the Earl of Forth and General of that Army which defended them is in the same case as if two Robbers had taken a Bond from a free Liege and had given it to one of their own Society who was at least a spectator in which it is most certain that the free Liege so robbed would recover payment from him who intrometted By this unwarrantable intromission with the Earl of Forths money E. C. became his Debitor and the supervenient Act of Indempnity could no more defend E. C. against this then it could against his other Debts Indempnities are design'd to secure against the Princes Pursutes who gave them but not to ruine Innocents else were these Indempnities Acts of Injustice not of Clemency Si criminaliter caeptum judicium interventu indulgentiae scriptum est habes tamen ressamen indagationem potes de fide Scripturae civiliter quaeri l. 9. C. ad L. Cornel. de fals Amnesties are but general Remissions and so
cannot be stronger as to all crimes then a particular Remission is as to one But so it is that a particular Remission can only dispense with the Princes Interest nor doth it cut off the Pursutes of privat persons as the former Law observes very well and the Emperor in another Law tells us Nec in cujusquam injuriam beneficia tribuere moris nostri est l. 4. c. de emancip libero From these grounds your Lordships have an easie and just prospect of the answers which may be made to the instances adduced for we are not in the case of such as obtain Gifts from the present Exchequer nor Rights from Heirs once lawfully serv'd for the jurisdiction whereby these Rights are establish'd are not funditus taken away nor were the singular Successors oblieged to know the Sentences whereupon their Rights were founded to have been null as E. C. was in this case nor can this prejudge Commerce except among such as are oblieged to know the grounds of their Commerce to have been unwarrantable and Rapines and Violence sunt extra Commercium which is so far from being an absurdity that it is an advantage for this may help to stop all Commerce amongst Rebels and Usurpers and to loose these cords by which they are tyed and from this I beg leave to represent to your Lordships that by this decision you will do more to hinder Rebellion and to encourage Loyalty then Armies can do for since no man will hazard hanging and damnation by Rebellion without he be baited to it by the certain expectation of a Prey So if Rebels find that they can never be secure of any Prey so obtain'd they will certainly neither be so eager to have such as are Loyal forfeited nor so desirous to settle upon themselves Estates so rob'd As to that principle that whatever defect was in the Title here yet there was none in the numeration of the money and defects in the numeration are only objected against singular Successors It is answered that vis est vitium reale afficit rem ipsam licet transierit per mille manus And this original sin insects the whole issue for the States could not transmit a better Right then they had themselves nemo potest tribueri alteri plus juris quam ipse in se habet and Plin. lib. 3. epist. 9. informs us that Caecilius Classicus having robb'd the Province which he commanded and having payed his Creditors with the sums extorted pecuniae quas creditoribus solverat sunt revecatae But though this might be alledged where there remains still some colourable Title in the Author and where the singular successour was not oblieged to know the defect yet in this case it can never be pretended by E. C. whose Right is funditus taken away and who was at the time the mony was assign'd or was numeâ— at to him oblieged to know that defect in his Right which is now the ground of this restitution I shall not trouble your Lordships with answering those objections founded upon the Earl of Forths ratifying and homologating his own forfeiture by giving in a Petition 1647. when he was content to accept back his Heretage without these sums for it is known that Petition was not sign'd by himself nor did he ever appear before those Usurpers and what was done by his friends cannot bind him especially whilst that Usurpation continu'd under which he first suffered nor to the Act 1662. wherein some Intrometters are declared free for that Act was only conditional and upon provision that His Majesty should pay the Earl of Forths Successors 15000 Pounds Sterling out of the Fines which condition was never purified and I wish it had for that was much better then what is here expected these grounds are such upon which none but such as are ready to drown would fasten But my Lords if I needed to prepossesse you with what the Parliament designed in this restitution I might easily clear that they design'd these Intrometters should be lyable for when Duke Hamiltoun and the Earl of Errol were absolv'd as the immediat Debitors it is very well known that they were absolv'd upon expresse Provision that they should deliver to the Earl of Forths Successors such Papers as might prove the intâ—omission of these Defenders which had been unnecessar if the Intrometters had not been liable and the reason why these Debitors were absolved had been groundlesse if Intrometters had not been liable But to what purpose should the Parliament have restor'd Forth if they had not design'd the Intrometters should be liable For the Parliament knew that there was nothing else which could have been reach'd by this restitution except these moneys now pursued for and so their Justice had proved an aâ—y and empty Fanfara bringing nothing with it but the occasion of certain spending upon an uncertain expectation to avoid all which debate the Parliament have expresly ordain'd the first Debitors to produce these Papers for proving against these Intrometters who are hereby declared lyable which words are so expresse that they preclude all cavil as well as difficulty This being the nature of our Pursute and these the answers to any pretended difficulties It is humbly recommended to your Lordships to give a testimony of your hatred against those violent courses formerly practised and to teach Posterity what such invasions may expect I know well that no man has deserv'd better of His Majesty then E. C. hath of late and I hope that when you have decided against him he will heartily acquiesce to your Sentence as a furder proof of his sincere Loyalty Nec tollitur peccatum nisi restituatur oblatum I confesse that he did not yield to those impressions till they had overcome the whole Nation and that nothing but the perswasion of his being then employed in the service of his Conscience and Countrey could have with-drawn him from the service of his Prince But this can plead no further then that his Prince should pardon these escapes not that he should reward them especially to the prejudice of His faithful Friends The Lords sustain'd the Pursute and repell'd the Defences A Debate in favours of the Earl of Forth against E. C. NINTH PLEADING How far a person unjustly forfeited and restored may repeat Annual-rents from the Intrometters IF I were not my Lord Chancellor very confident of the Justice of my own Cause and of your Lordships Learning as well as Integrity I should be somewhat jealous that the learn'd discourse you have heard in favours of my L. C. might leave some impression But my Lord I think it impossible that any beside those unjust Judges who forfeited the Earl of Forth of his principal Sum would again forfeit him of his Annual-rents nor do I imagine that even those would have done it if they had not been distemper'd by their own feaverish zeal and that national fury so that if your Lordships should folow their example you should share their guilt but want their
Annual-rent the Kingdom is alwayes the richer for though privat parties may gain by Annual-rent yet the publick Stock of the Nation is not thereby improved the one half gains there from another but neither from Forreigners and if all except Burgesses be debarr'd from Trade then the money of five parts of the Nation must lye idle or els must be lent to Merchants which is not ordinar and to force us to lend were unjust 3. By this the places in Scotland fittest for Trading are kept bound up from using the natural advantages of their situation to the great prejudice of the Nation as we see in many instances and particularly in Lews and Burroughstounesse to keep which from being Burghs the Burghs have spent a great deal of money 4. This has ruin'd many little Towns who because they were debarr'd from all priviledge of Trading were forc'd to get themselves erected in Burghs-royal and after that they were erected were forc'd to be at the expenses of keeping Prisons being Magistrats sending Commissioners to Parliaments making publick Entertainments and so did ruine themselves without any advantage to the Countrey and by this the number of Burroughs are so far encreased that it is a shame to see such mean creatures as some of them sent to our Conventions and Parliaments who notwithstanding they want both Fortunes and Breeding yet must sit as the great Legislators of the Kingdom and must have a decisive voice in what concerns the Lives Fortunes and Honour of the greatest Peers in it I design not by this to disparage all Burroughs for most are represented by most qualified persons but to tax these Laws which have forc'd many little Towns either to send none or to send such as are unfit 5. All the Countrey is ill serv'd for in some Shires there are but very mean Burghs and in these Burghs Merchants yet meaner and if these want Credit to buy and carry out our native Commodities they must lye upon the Owners hands and the Countrey wanting necessar returns such as Salt Iron and Timber must buy from very remote places 6. If two or three Merchants in better Towns conspire not to buy or sell but at rates agreed upon amongst themselves then the poor Countrey must be at their devotion and this were to grant Monopolies not only in one place but in every Shire not only as to superfluous Commodities as use is when Monopolies are granted but as to all and even the most necessar Commodities after this no man shall dare buy a Skin Wine or Sugar but a Burgesse and which is yet harder this will furnish a pretext to Burghs to oppresse all such as they envy under the notion of unfree Traders 7. His Majesties Customes will be thereby much impair'd for the fewer Traders be the lesse will be both exported and imported and whatever lessens export and import lessens doubly His Majesties Customs of the which those are two hands 8. Other Nations who understand Trade in its perfection such as Holland do allow all their Subjects to Trade without difference and it is a Maxim amongst them That many hands and many purses make a rich Trade And it imports not to say that their Common-wealth differs from ours in its Constitutions and that they have vent for their Commodities all over Europe whereas our vent is no larger then our consumption for whatever difference be in our fundamental Constitutions yet in the matter of Trade they are still the universal Standart and sure it is the advantage of our Countrey even in order to our consumption to have the priviledge of Trade in necessar Commodities extended to all for the moe importers be we will get our necessar Commodities at a lower rate and the moe exporters be our Corns Fishes c. will give the greater rates and those are the two great advantages of a Kingdom I confesse may it please your Grace that the erecting of Societies as to some Trades and at sometimes is necessar but the ordinar rule extends there no furder then that Trading to remote Nations and in rich Commodities should at first have some priviledges as to their erections for else privat Stocks would not be able to compasse it but even as to these when the Trade is once secured and becomes easie and managable then these priviledges cease with the cause from which they had their origine and therefore it is that albeit Trade with Forreigners seem'd at first above the reach of our first Traders when to sail to Spain seem'd as har'd as an East-India Voyage now doth then Trade needed some priviledges yet now when experience and encrease of money has lessened those difficulties I conceive the priviledges should expire It is known that the Bishop of Glasgow gave only his Burgh then liberty to Trade into the Shire of Argyl and that the Burgh of Edinburgh had a special priviledge of old to Trade in the Isles but that now they need these will not be debated even by themselves I confesse that all Incorporations in a Common-wealth ought to have different designs and different priviledges suitable to these designs as is pretended but it can by no clear inference be deduced from this that the sole liberty of Trading in all Commodities with Forreigners should belong to Burghs but only that they should have some Staple-goods wherein they only may Trade And we are content to allow them the exporting and importing of what is superfluous such as Wine Silks Spyces c. let all even Countrey-men have the export and import of what is necessar for their own station and employments let them export Corns Cattel c. since the having these Commodities signifies nothing without power to sell them and the liberty of importing Timber Iron Salt and these other Commodities without which they cannot live in their own station And whereas it is pretended that they are content we should export the natural product of our own Countrey providing we bring home money only for them it is conceived that this concession destroyes what is conceded for if unfree-men can only bring home money then Free-men and Burgesses may easily undersell them for few abroad buy them with ready money and money is the dearest of all returns so that these who barter Commodities for what they export may sell much sooner and cheaper if they bring home nothing in return of what they export for export by it self without import occasions great losse and the advantages of Merchandizing is ordinarily in the returns Whereas it is contended that the lesse diffuse Trade be it prospers so much the better for it may be easier govern'd according to the just rules And our old Law appointed wisely that none but Worshipfull men and men of considerable Stocks should Trade abroad that thereby poor people by running over seas might not by their necessity of selling or want of skill low the prices of what they exported and buy unskillfully at high rates what they imported and that to
Parliament I. 6. Par. 11. whereby it is declared That their part of all general Taxations shall extend to the sixth part allanerly bears no such quality nor do the Acts of Parliament bear any such onerous cause But the true reason of their bearing the sixth part of the Kingdoms Burdens is because they are intrinsecally the sixth part of the Kingdom if we look either to the number or riches of their Inhabitants and if the Burghs-Royal were accounted the sixth part of Scotland under the Reign of King Iames the first how much more great a proportion are they able to bear now when the Burghs are six times more numerous and each particular Burgh six times more rich and populous then they then were Their Riches have encreased with our Luxury and the Luxury of our Age doth far exceed what it was in that Kings time So that since now the Nobility and Gentry only toil to get money to buy from Burgesses what they import from Forreign Countries I conceive those Burghs may easily bear a sixth of our burdens since once a year they get in all our Stock And to any thinking man it may easily appear that all the money in Scotland doth once a year circulat and passe thorow the hands of Citizens for money serves only either to pay our Annual-rents or buy us necessars and that which is payed for Annual-rents is by the receivers given out to others to satisfie their present necessities and all is ultimatly employed for Food or Rayment and little money is bestowed upon Food or Rayment in Scotland except only within Burgh Since then this Priviledge doth divide Scotland in two parts since equity in it seems to oppose Law and since both parties pretend to national advantages I shall humbly move that if this illustrious Senat be unwilling to interpose in so universal a difference that this Debate should be transmitted by them to the Parliament which is the full Representative of all the Kingdom and the natural Judge of equity and convenience The Session referr'd this Case to the Parliament who extended this Priviledge to all the Lieges For the Earl of Northesk against my Lord Treasurer-Depute TWELFTH PLEADING Whether a Novo Damus secures against preceeding Casualities My Lord President IT is one of the chief advantages of our Nation in this Age that we live under a Prince who covets more the hearts of his Subjects then their Estates and who loves rather to see his Laws obey'd then to have his Advocat prevail What measure then can his fisk expect when in general all Lawyers have even under Tyrants delivered as their opinion semper contra fiscum in dubio est respondendum And since flattery or fear may encline some to favour the Princes Interest too much it is fit that Judges should be jealous of theâ—â— own spirits in such cases and should bend them rather to the other side that they may fix at last in a straightnesse The case propos'd is whether the Novo damus not expressing the casuality of Marriage specially but all Casualities in generaâ— doth by our Law â—eâ—end against the Marriage That i◠〈◊〉 I presse for my Client upon these grounds Fâ—â—st a N 〈…〉 〈◊〉 is that which the Feudâ—lists call reâ—â—vaâ—â— feudi and 〈◊〉 feudi doth import liberationem ab om 〈…〉 caducitate nay the very nature of a Disposition or Alienation doth imply a liberation from any burden with which the Disponer could affect it else he should alienat and yet retain give and not give and therefore by the civil Law he who dispon'd Land was interpreted to have dispon'd it tanquam optimum maximum free from all the Disponer could lay to its charge If any person should dispone his Land to me and should thereafter crave a Ward or Marriage as due out of these Lands tanquam debitum fundi certainly it would be an absurd pursute and I would be absolv'd nay if a Superior enter me to my Lands eo ipso I am free from all preceeding casualities nor did ever a Vassal take Discharges at his entry of any former casualities but his entry was alwayes judg'd sufficient why then should not His Majesties Vassals be in the same condition for since this is clear in other Vassals ex natura feudi there being no Statute in their favours it must be due to all Vassals for à quatenus ad omne valet consequentia and that which is natural to Few's must be inherent in all Few's The design of a Novo damus is to secure the receiver against nullities the Law thought to set this as a March-stone and let not us remove it The stile of a Novo damus in our Law which is equivalent to expresse Law is very exactly adapted to this design as may appear by all its Clauses for when His Majesty de novo dat that Chartor must be equivalent to an original Disposition and sure if these Lands had belonged to His Majesty and if he had disponed them that original Right would secure the receiver against all His Majesty could crave out of these Lands except in so far as he did expâ—â—sly reserve at the making of the Disposition nor do I see 〈◊〉 reservations of former Rights were necessar in Dispositions if these Rights were reseâ—v'd without them and if they were not cut off by the Alienation it self But not only doth this Novo damus dispone in favours of my Client the Land out of which these casualities are sought but it dispones them cum omni jure titulo interesse jurisclameo tam petitorio quam possessorio quae nos aut predicessores aut successores nostri habuimus habemus vel quovis modo habere possumus in ad dictas terras What can be more expresse for if His Majesty had any claim to or right in these Lands any manner of way he here dispones it and transfers His Right in and to my Client if His Majesty have any Right at all it must be vel jus vel interesse vel jurisclameum and if it be either of those it is dispon'd But lest it might be pretended that this Clause extended only to secure the Property which is not its only effect as I shall clear hereafter Therefore the stile of a Novo damus bears omne jus non solum quoad aliquam ejus partem sed ad omnes census firmas proficua ratione wardae purpresturae foris facturae non introitus eschetae c. vel quocunque alio jure vel titulo From which general Clause I draw these inferences first that this general Clause must seclude His Majesty since tantum valet genus quoad omnia quantum species quoad specialia Bald. consil 1. lib. 3. Gemin consil 65. l. si duo ff de administ tut And therefore since a special gift of this Marriage would have secluded the King or His Donator a general concession must do the same especially since this general was designed to secure
Land 9. By these Parents know when their Children and Kinsmen when their Relations debord and burthen their Estates and are thereby warned to check or assist them 10. By these Strangers and Forreigners are secured who resolved to match with us or to purchase amongst us for our Registers are equally faithfull to all 11. By these Commerce is very much secured for if a Merchant or ordinary transacter refuse to pay his Debts then his Bond is put in the publick Register by which the Creditor is secured of payment and the Debitor is deterred from owing too much 12. By these Registers Papers are secured against fire loss and accidents to which they are exposed whilest they are kept in privat hands Whereas after regstration nothing can destroy them but what ruines the whole Kingdom and even in that case there is still hope of recovering publick Registers as in our last revolutions In this last place I must crave leave to wonder why England hath already taken so much pains to secure against fraudulent cheating of Creditors and of Buyers as is clear from the Statutes cited by the Author if they intend not to prosecute that worthy design But as an evident mark to know whether Registers be necessary they may consider that if any man in England can for a Crown know in the space of a day the condition of these from whom he purchases then Registers are not necessary but if otherwise they are If any Lawyer in England can assure his Client that the purchase he makes is secure above all hazard then Registers are not necessary but if they cannot then Registers are necessary So that it seems England hath done too much already or else that they should do more to secure their people Yet since I only design to defend our own Law and not to impugn theirs it were impertinent for me to recommend too zealously that wherein I am not much concerned Against this so just and so necessary a Constitution founded so strongly upon reason and approved so firmly by experience the Author of the Reasons against registering Reformation hath put his invention and wit both which I confesse are very fertile upon the rack to find out and muster up some Arguments which owe their number and beauty to the unacquaintednesse of his Country-men with the model he impugns and which the Author hath beat out by too much industry to a thinnesse that is not able to bear the weight he layes upon them His first Argument is founded upon the dangers that arise from innovations wherein Legislators are not able to have a full prospect of all inconveniences which may follow But to this it may be answered that the Law of England had not deserved the honour done it by the Author nor had it swelled to its present bulk if it had not been frequently augmented by new additions And as to this project of keeping Registers England may be wise upon the hazard of their neighbours who by being first practizers have run all the risque and taken all the pains which was necessar for accomplishing so great a design The second Reason bears that by Registers the lownesse of the fortunes of such who suffered for His Majesty would be discovered and they thereby exposed to much rigour from their Creditors But this I humbly conceive proves more the contrary opinion then that for which it is adduced for as it were injust to gratifie such as have suffered for His Majesty with the liberty of preying upon such as probably lent them because they were of their principles and of devouring poor Widowes and Orphans whose necessities will doubtlesse load one day very much the consciences of such as might have secured their petty fortunes by the help of the Registers now proposed And this Argument presses no more against Registers then it doth against all those laudable and well-contrived Statutes which are already invented in England against fraudulent conveyances forgeries and impostures for Registers will not debar them from courses which are legal and honest Whereas it is in the third place urged that Commerce would be a great sufferer by Registers seing they would lay open the lownesse of mens fortunes who do now enrich the Kingdom and themselves too upon meer credit and that they would discover to Forreigners the low Estate of England at present and make every privat Estate too well known It is answered that all these inferences are drawn from the Authors unacquaintednesse with what he impungs as was formerly observed for no man is oblieged to registrat a Bond which oblieges only to pay money Nor do men registrat such except where the Debitor refuses to pay and so these Registers will not weaken Commerce nor Credit seing Commerce is not immediatly concerned in real Estates and even as to personal Estates or Money no man suffers by Registers or is concerned in them but such as have no respect to their credit and Commerce owes little to such whereas upon the other hand the fear of this will be yet a further tye upon men to pay punctually without which Commerce will soon be starv'd And by the Registers Bankerupts will be soon discovered whereby honest men who are the true Nurses of Trade will be much cherished and secured And by this answer it appears clearly that the riches of England neither personal nor real can be made known by the Registers for only the Bonds of Bankerupts are to be registrated and though all real Rights must yet the quota of the real Estate is not exprest in the papers to be registrated After the Author of that Discourse against registering Reformation found that so unanswerable advantages arise from Regâ—sters as that they could not be ballanced by the inconveniences which he laid in the other Scale he is pleased which is ordinary for such as cannot prevail by reason to reflect upon Scotland as a poor Countrey and against the Scots as an unmercifull people and to alledge that their poverty and feverity introduced those Registers and made them necessary with us but that they would never agree with the rich and tender-hearted English Which reflections deserve rather our pitty then our answer Leaving then this womanly way of arguing as unfit for the Scots who study to be Philosophers in their Writings as well as in their Humours It is humbly conceived that Registers do restrain no mans compassion for no man doth vertuously indulge his Creditor but he who knows the lownesse of his condition which he cannot without Registers Ignorance is lesse the mother of vertue then of devotion Registers prejudge only such as are Cheats and such deserve little compassion Nor are our Laws more severe against Debitors who pay not than the Laws of England for both imprison such and the only weak side in our Law is that it allows too much our Judges to suspend the payment of Debts and I never heard the English who live amongst us complain of any other defect in our Laws