Selected quad for the lemma: parliament_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
parliament_n	king_n	lord_n	say_a	16,658	5	7.1993	4	true

Text snippets containing the quad

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

Action at the Laird of Garthlands instance contra Sir James Ker upon this Act of Parliament did refuse to reduce an Infeftment albeit a meer Donation and made likewise by the Grand-father to his own Grand-child and that because the granter of the Infeftment was neither at the time of the granting thereof Bankrupt and non solvendo nor was he become such since neither had the Creditor done diligence for his debt and yet it might have seem'd in reason that though dispositions where there was an onerous cause might have been sustained there was no reason to allow the same priviledge in favours of confident persons for meer Donations And upon the 10. February 1665. the Lord Loure having quarrel'd the Lady Craigs Infeftment as being an additional Joynter granted betwixt Husband and Wife to his prejudice who was a Creditor and had comprised the Estate It was answered that the disponer was neither bankrupt nor insolvendo nor did the Compriser sustain any prejudice seing the Lady was content that the Lord Loure should be preferred to his Annual-rents by vertue of his Comprysing providing he would assign the Lady to his Comprising pro tanto that she might recover as much for satisfaction of her additional Joynter which answer the Lords found relevant the Apprisers prejudice being purged as said is but they ordained the Compriser not only to be admitted to have access to the comprised Lands by assignation in manner forsaid during the Legal but they likewise declared that if the Lady redeemed not within the Legal the Lands should be irredeemable and the Lady should be totally excluded which though it was but a trysting Interloquetor do's confirm the former opinion And though it may be alleadged that a Disposition being once valid when it was first granted cannot become thereafter null by the disponers becoming thereafter insolvent yet this holds not in many cases in our Law for we find that Dispositions of less then the half of Ward-Lands without consent of the Superiour become thereafter null if as much of that Barrony be thereafter disponed as will amout to more than the half But in my opinion though the rubrick of our Statutes may found a presumptive argument for explicating the Text yet it is not authoritative for the Rubrick is not read in Parliament and it is added to the Law after it is past carelesly without debate Our Soveraign Lord with advice and consent of the Estates The legislative power of Scotland consists in the Parliament that is to say the King and three Estates of Parliament and though some think it more proper in our Law to say Our Soveraign Lord and Estates of Parliament as in all the Statutes or Acts of the 18. Par. Ja 6 then to say Our Soveraign Lord with advice and consent c. yet I conceive the King Statutes and they but consent though their consent be necessary for his touching them with the Scepter and not the being voted makes them Laws and in England the King statutes with consent of Parliament and upon their supplication and therefore I understand not Craig who Diag 8. affirms Statutes to be constitutiones trium Regni ordinum cum consensu Principis for that is just to invert the statutory words of this and many other Acts. Our old Acts being all past the last day of the Parliament did not express the statuting power in every Act for in effect they were all but branches of one Act and run Item that c. and many of these Acts bear It is statute by the Parliament and the King forbids as Acts. 13. 14. 1 Par. Ja. 1. which Intimats that though the Parliament statutes suffragando consentiendo yet the King only doth statute sanciendo prohibendo Sometimes our Acts bear It is statute by the hail Parliament and sometimes It is statute and ordained without mentioning either King or Parliament sometimes also they bear the determination of Parliament without speaking of the King which was either where the King was to perform what was statuted as 23. Act Par. 1. Ja. 1. It is statute and ordained that our Soveraign Lord shall gar mend his money And by the 6 Act 3 Par. Ja. 2. The Estates has concluded that the King shall ride thorow the Realme or else when the Estates are only to grant what is statuted as in Commissions granted for uniting the two Kingdoms But I find one Statute bear the King statuting without mentioning the Estates of Parliament viz. Act 19. Sess. 1. Par. 1. Ch. 2. but this is but meer inadvertance Ratifies and confirms an Act of the Lords of Session c. This was originally an Act past by the Lords of Session when they do sit judicially at which time it is marked in their books of sederunt such and such men did sit Thus the Hebrews disigned the books of the Old Testament by the first words and thus we still mark the Laws from the first words and thus the old books of our Law are called Regiam Majestatem because they begin so His Majesty at the first institution of the Colledge of Justice did allow the Lords of Session to conclude upon sick Rules Statutes and Ordinances as shall be thought by them expedient to be observed and keeped in their manner and order of proceeding at all times as they devise conform to reason equity and justice his Grace shall ratifie and approve the same These are the words of the 43. Act 5. Par. Ja. 5. to the which Act I think this act relates but it would appear both by that Act and by the power as here repeated that the Lords of Session have only power to make orders relating to the regulation of their own house and to the forms of Process For this was indeed necessary for explication of their Jurisdiction and possibly was implyed in their very constitution without any expresse warrand arg l 2. ff de jurisdict but it seems that this general power cannot authorize them to make Statutes and Acts relating to the material distribution of Justice such as that all Writs should be null except subscribed before witnesses though they might have ordained that Papers under the hands of their own Clerks should be so subscribed for if they could make Statutes as to any thing else besides the forms of their own house there needed no Parliament for their Statutes might bind all the people in all things and yet it may be objected that by this argument the Lords of Session could not have made this Law declaring Contracts amongst the Leidges to be null that touching upon one of the fundamentals of humane society albeit they might have declared such a nullity receiveable by way of exception for that concerned only form of Process But the Answer to this is that the Lords in making this Act did not introduce jus novum a new Law but only adapted to our practice the old Roman or Civil Law which they might have followed in their decisions without making any new

Act of sederunt as they do in most cases where the Civil Law is founded upon equity as here and where they are not determined by either our former practice or constitutions And by the same principle both the Lords of Session and the Parliament did in this Statute declare that their said Act should extend to causes depending or to be intented whereas Statues regularly are extended only to future cases except where the Act declares what was Law formerly as in this case We may then conclude these differences betwixt these Acts of sederunt and Acts of Parliament that Acts of sederunt can only be made concerning the formes of procedure or to fix a constant decision for the future in cases which they might have so decided before their own Act and it is their prudence and our hapinesse that they should rather decide in hypothesi then in thesi But Acts of Parliament should mainly be made to regulat new substantial grounds of justice and commerce But though this power of making orders for administration of justice be properly and principally their province yet they have in this but a cumulative jurisdiction with the Parliament who may and do likewise make such orders but the Parliament ought to do so sparingly since forms are better known to the Lords of Session then to them and therefore it seems that the power of making Acts relating to forms or of regulating forms already made belongs particularly to the Lords of Session both because of ther constitution and experience The Lords have been in use not only to regulat their own Court by Acts of sederunt but they have by the same power prescribed regulations to other Courts and thus as to the Justice Court in anno 1591. years they made an Act that women and socii criminis might be received witnesses in cases of Treason and we find that they have likewise regulated inferiour Courts without any previous warrand as is clear by the 19. Act 23. Par. Ja. 6. where the Parliament ratifies an Act of Secret Councel and Session which did ordain and command that no Process should be granted before inferiour Judges on the first Summonds but upon lybelled Precepts and citations of fifteen dayes warning And in anno 1636. they made an Act of sederunt appointing that no consent of any inferiour Court should bind the consenter except it were subscribed by himself and that the assertion of the Clerk of that Court was not sufficient Nor should this extention of their power seem unwarrantable for since they may reduce the Decreets of inferiour Courts it seems most consequential that they may regulat their procedure but though the Lords of the Session pass the Bills before the Justices and advocat Causes from before that Court it may seem strange that they should have power to make Acts of sederunt for regulating that Court the jurisdictions Civil and Criminal being most distinct and different It may likewayes seem both by the former Act allowing the Lords of the Session this power and the Ratification of their Statute specified in this Act that it is necessar that all the Acts of sederunt which relate not meerly to the regulating their own forms should be ratified by the Parliament though in the interim of Parliaments these Acts should bind And yet de facto we see very many Acts of sederunt to have full vigour and force without any such confirmation Before I begin to explain the words of the Act of Parliament I shall offer this Analysis of it Either the Creditors who are defrauded are such Creditors as have done no diligence or such as have done diligence if they be such as have not done diligence then either the Dispositions quarrelled are made to conjunct persons or not if they be made to conjunct or confident persons either they are made for necessary and onerous causes or not if they be made for an necessary and onerous cause they are valid though made to conjunct or confident persons 2. If these Dispositions be made without an onerous cause then either they remain with the conjunct confident to whom they were made or not if they remain with him they are reduceable either by way of exception or reply But if any third party no way partaker of the fraud has lawfully purchast any of the Bankrupts Lands for a just and true cause then the Right is not quarrelable but the Receiver is only lyable to make the same forthcoming to the Bankrupts true Creditors 3. The fraud is probable by writ or oath of the party receiver 4. If the Creditors have done diligence by Inhibition Horning c. Then the Bankrupt cannot in prejudice of these Creditors who have done diligence dispone voluntarily any part of his Estate to defraud that diligence in favours of another concreditor who has done no diligence or posterior diligence or in favours of any interposed person to their behoof And in this part of the Act it is not considered whether the interposed person be a person conjunct or not 5. The Bankrupts the interposed persons and all such as have assisted them in advising or practising these frauds are declared infamous Conform to the Civil and Canon Law c. BEcause the Act of Parliament and Act of sederunt bear that they have in this Act followed the Civil and Canon Law We may justly assert that it were ●●t the Lords of Session understood exactly the Civil Law and that it is the great foundation of our Laws and Forms Thus we see that Robert Leslies Heirs are by the 69. Act Parl. 6. K. Ja. 5. ordained to be forefaulted for the crime of treason committed by their Father according to the Civil Law and forfaultor in absence was allow'd by the Lords of Session in Anno 1669. because it was conform to the Civil Law and falshood is ordained to be punished according to the Civil and Canon Law Act 22. Par. 5. Q. M. And that the Civil Law is our rule where our own Statutes and Customs are silent or deficient is clear from our own Lawyers as Skeen Annot. ad l. 1. R. M. c. 7. ver 2. and by Craig l. 1. Diag 2. As also from our own Historians Leslie l. 1. cap. Leg. Scotor Boet. l. 9. Hist. Camer de Scot. Doctr. l. 2. cap. 4. And the same is recorded of us by the Historians and Lawyers of other Nations as For●a● lib. 7. de gal imper Polid. lib. 1. Hist. Angl. Petr. d● amitis Geograph Europ tit di Escosse and Duck de auth jur civ lib. 2. cap. 10. And though the Romans had some customs or forms peculiar to the genious of their own Nation yet their Laws in undecided cases are of universal use And as Boet. well observes Leges Romanas à Justiniano collect as tanta ratione sermonis venustate esse ut nulla sit natio tam fera vel ab humanitate abhor●ens quae eas non fuerit admirata And K. Ja. 5. was so much in