Observations on the acts of Parliament, made by King James the First, King James the Second, King James the Third, King James the Fourth, King James the Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second wherein 1. It is observ'd if they be in desuetude, abrogated, limited, or enlarged, 2. The decisions relating to these acts are mention'd, 3. Some new doubts not yet decided are hinted at, 4. Parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by Sir George Mackenzie ...

King IAMES the sixth, Parl. 14.

THis Act seems very ill conceived, for it appears that wil∣ful hearers of Mass shall be executed to the death, how soon they shall be found guilty, or declared Fugitive, since no man by our Law dies upon his being Denunced Fugitive, except in the case of Treason; and wilful hearing of Mass is not Treason, even by this Act.

Observ. 2. That as this Act is conceiv'd, the wilful hearing, or concealing, is punishable by death, either by Conviction, or being denunced Fugitive before the Justice-General, or the Lords of Pri∣vy Council.

Observ. 3. That wilful hearers are only punishable, and the word wilful was added, because many go to the Mass out of curio∣sity, or may be present by accident, and in all things that con∣cern Religion, special Heresie owning and continuing, makes the

Crime ubi haerent dogmatibus suis; and therefore the Defender may purge himself by his Oath as to his intention, which cannot be otherwayes proven; and a fortiori, I think this should hold with these that are present at Conventicles, either in Fields or Houses, since these are less Crimes; for they being men of known good Principles, may go to get intelligence, or from curiosity, but it is safer to intimat this previously to some of the Kings Ser∣vants.

Observ. 4. It is generally observ'd, that all these Acts concern∣ing the Mass, were of Design ill conceiv'd by Chancellors Setons in∣fluence, as is reported, and that by them this Crime can never be prov'd, since it can only be prov'd, per socios criminis, and these cannot be admitted Witnesses; but this is a mistake, for there may be many present out of curiosity, or the apprehenders may be Witnesses, and even such as were present upon design in crimi∣nibus occultis, may be received; since when Law allows any thing, it must allow the means by which it can be prov'd; and in Here∣sie, less probation is sufficient, than in other Crimes, Clarus § He∣resie, num. 20.

BY this Act the Liferent-escheats of Papists being denunced, are declar'd to belong to the King, though ordinarly the Liferents fall to the respective Superiours; this is again renew'd to the King, Act 197 the same Parliament.

ALL Erections of annexed Property of the Temporalities of Benefices, are here declared null, except as to the Lands excepted in the Act of Annexation, 1587. which it seems must be understood, even though Dissolution proceeded; for other∣wayes there needed not an Act of Parliament, since all Dispo∣sitions of annexed Property without Dissolution, are ipso jure null; but thereafter all such Erections are for quieting the minds of His Majesties good Subjects secured and confirm'd at the Restauration of Bishops, Act 2 Par. 18 Ja. 6.

COmmon Kirks are such as belong in Common to all the Dig∣nities of a Chapter, and whereof each of them had a part of the Stipend; to which common Kirks the Chapter did not pre∣sent as Patron, but did nominat and collate; upon the first suppres∣sion of Popery they were to be conferr'd to Ministers as ordinary Benefices; and the King, or such as had Right from him, became Patron, as coming in place of the Popish Clergy: and by this Act they are ordain'd to be presented by the ordinary Patrons to Ministers who shall serve the Cure; and the reason is, because there was not then Chapters: But by the 2 Act 22 Par. Ja. 6. the saids Chapters are likewise restor'd to whatsoever Teinds, &c. which pertain'd of old to the Chapters in common.

THis Act ordaining the Escheats and Liferents of Excommunicated persons to be null, if granted to their near relations, seems su∣pers••uous, because the same was formerly Statuted in general by the 145 Act 12 Par. Ja. 6. Nor find I any difference betwixt the two Acts, save that the Escheats of other Rebels are by that Act declared null, if purchas'd by their Friends, or well-willers; and this Act declares only the Escheats of Excommunicated persons null, if granted to their Bairns, or conjunct persons, so that it seems the Escheat of an Excommunicated person could not be declared null, though Gifted to a confident person, since a confident per∣son and a conjunct are different, for Blood only makes conjunct persons, but trust makes confident persons.

VId. observ. on 83 Act 6 Par. Ja. 4.

THough by this Act, when Manses and Gleibs are design'd out of Church-Lands only, the rest of the Heretors of Kirk-lands are to contribute for the relief of him, out of whose Lands the De∣signation is made; yet this was extended in anno 1644. by Act of Parliament, for the relief of these, out of whose Temporal Lands Designations were made, who were therein to be reliev'd by the Heretors of other Temporal Lands. I find that Lands mortifi'd to Colledges cease not thereby to be Kirk-lands; and therefore were found lyable to relief as other Kirk-lands by this Act, February 12. 1635. But Dury observes there, as the reason of the Decisi∣on, that these Kirk-lands were Feu'd by the Colledge for a small Feu-Duty; and therefore it was more just that they should have been lyable to relief, as other Kirk-lands; and so it may be yet doubted, it Kirk lands mortifi'd to Colledges, and remaining with them, would be lyable to this relief.

BY this Act no ••enesie'd person under a Prelat, may set longer Tacks than for 3 years, and a Bishop is allow'd to set Tacks of his Tiends for 19 years, and an inferiour Prelat for his Life-time, and 5 years thereafter, Act 4 Par. 22 Ja. 6. But because some thought that that Act did abrogat this Act, as if Prelats needed not the consent of the Patron to such Tacks for nineteen years, or five years respe∣ctive; therefore it is expresly declar'd by 15 Act 23 Par. Ja. 6. and even these and all other Tacks shall be null, if they be set for longer than three years, without consent of the Patron, and that the 4 Act Par. 22. did still presuppose the consent of the Patron, though it was not there exprest, which was most just, for since it is the Patrons interest▪ that the Cure be well administrat, and that he may get an able man after the Incumbents Death; it was just that nothing should have been done without his consent, and for

that reason, Clericus nee resignare nec permutare nec pensione onerare potest invito patrono; as is by the Canon Law, for by that Law, the administration belongs to the Patron, nec ab ejus dispo∣sitione anferri possunt, Can. rationis, 16. q. 7. and by that Law he was to be alimented out of the Rents of the Benefice, if he fell poor, and the person presented was to give his Oath to the Patron, for preservation of the Temporals.

This consent may be adhibite by the Patron, either before, or after the setting of the Tacks, c. 20. de jur patron▪ dubitatur; whether a Patron may lawfully authorise a Tack set in his own favours, since his accepting is equivalent to a consent, and he can∣not be author in rem suam.

Though Tacks set for longer space than three years be null by this Act; yet if they be set for longer time, they will be sustain∣ed, if the Tacks-men restrict them to three years allanerly, July 18. 1668. Johnstoun contrà Howdoun, even as though a Bond want∣ing Witnesses be null, if the same exceed an hundred pounds, yet it will be valid if restricted to an hundred pounds, and this seems to be received with us as a general principle in the interpre∣tation of all Statutes, both as to time and sums; and therefore though by the 36 Act Par. 3 Ja. 4. Tacks of the Rents of Burghs be declar'd null, if set for longer space than three years, yet by the same reason, they should be sustained, if restricted to three years.

THese Acts are Explain'd in the 36 Act 2 Par. Ja. 6.

THe design of this Act has been, as I conceive, to secure such as had intrometted with the Kings annex'd Property sum∣marly, by vertue of the 41 Act 11 Par. Ja. 2. Because it is pro∣bable the Warrand granted by that Act; was thought dubious, and somewhat severe in the Analogy of Law, vid. observ. upon that Act. A Provost is in our Law no Prelat; and therefore Tacks sett by him are null, without consent of the Patron, Hope Tit. Kirks.

THis Dissolution of the Kings annex'd Property has several specialities in it, as that it shall not extend to the setting in Feu-ferm of Castles, Forrests, Coal-heughs, and Offices, &c. But that these shall remain inseparably annex'd to the Crown; and from this it may be observ'd, that to this day, all Castles, Palaces, Woods, Parks, Forrests, Pastures, Coal-heughs, and Offices, are to remain inseparably with the Crown; and therefore except they be expresly dissolved, they fall not under Dissolution: This part of the Act is renewed by the 235 Act 15 Par. Ja. 6. This Dis∣solution is likewise only in favours of kindly Tennents, and an∣cient

Possessors, and of such as should pay their Composition betwixt and the first of August, 1595.

THis Act is Explain'd, Crim. Pract. Tit. Injuries, num. 6.

BY this Act the Duty granted by the States to the King upon Wines, is to be charg'd for by Letters of Horning; and I find by Act of Council, February 21. 1581. That a Commission is granted to the Kings Master-housholds, to break up the Doors of such Merchants, as refus'd to let the Kings Servants Taste their Wines, to the end they might chuse the best for the Kings own use, but this certainly presupposed that the King would pay for the Wines.

FRom this and many other Acts, it is observable that the Par∣liament may, and does by a general Law, annul Rights gran∣ted to privat persons, without calling them, and without the ha∣zard of the Act salvo, though any one privat mans Right cannot be declar'd null by the Parliament, without citing him.

BY this excellent Act, a Horning or Escheat following thereup∣on, cannot be taken away, and declar'd null upon acquittan∣ces and Discharges, which were alleadg'd to be prior to the Horn∣ing, so that the Escheat could not fall, the Debt being pay'd, ex∣cept the producer of the Discharge make Faith that it is of a true Date, because such Discharges with ante Dates, use to be grant∣ed by the Creditor when himself is paid.

It has been doubted whether Assigneys be bound to swear in this case, but since this is factum alienum, which they are not oblig'd to know; and if this be necessary, the Cedent by refusing to swear, may destroy the Assigney; but yet the Act of Parliament obliges indefinitly the producer of the Discharge to swear, and so it seems whether he be Cedent or Assigney, he is still bound, since his Oath is solemnly requir'd by Act of Parliament, Quaeritur, whe∣ther it can be remitted to Quakers, Anabaptists, &c. who think swearing unlawful.

THis Act giving many priviledges to the Kings Forrests, seems not communicable to all Forrests, though it be pretended that all Forrests are the Kings Forrests, it having been very or∣dinary to erect Forrests in privat mens Lands, in imitation of the Kings Forrests; but because these Erections of Forrests were ve∣ry prejudicial to Neighbours, since they might fine their Neigh∣bours, and poind their Beasts; therefore the Lords of the Sessi∣on did in July 1680. give their opinion to the Lords of Exchequer, that all such new Erections should be stopt; and it appears to me

very clearly, that all Forrests are not the Kings Forrests, by com∣paring cap. 17. leges forrestarum, which Treats of Crimes commit∣ted in the Kings Forrest, with cap. 21. which Treats of the De∣licts committed in the Forrests of Barons, and wherein they are In∣feft, cum libera forresta.

Observ. 2. That that part of the Act which ordains all that Hunt within six miles to His Majesties Castles, VVoods, Parks, or Palaces, to be fin'd in an hundred pounds, is in Desuetude; and it seems then only to be observ'd, when the King Himself Dwells in his Castles, and uses actually to Hunt in His VVoods or For∣rests; this Act bearing, To be made for His own Royal Pastime, or at least this priviledge should not be continued to Castles, or For∣rests, which the King has Dispon'd to privat Subjects.

VId. observ. on the 13 Act Par. 3 Ch. 2.

THough this Act say, That the Lords of Session were not oblig'd to sit down till nine a Clock; yet it appears clearly, that they were oblig'd to sit down at eight by the 49 Act 5 Par. Ja. 5.

IT is observable from this excellent Act, that where Evidents are not thought necessary to be kept, there is no reason to grant Certification against them, after many years; and therefore the Lords refuse oft times to grant Certification against the Grounds and VVarrands of Appryzings, such as Executions, though they cannot be produc'd after twenty or thirty years, ex paritate ra∣tionis, though the Act secures only against the not producing of Procuratories, and Instruments of Resignation, and Precepts of Seas••nes; and July 1680. Strowan contra Earl of Athol: This Act was extended to secure against the production of the Decreet of Compryzing, and Decreet whereupon it was led, albeit this extension seems dangerous, since thereby great Estates may be car∣ryed away by null Compryzings, and small Debts, which might be satisfi'd by less than a years intromission, whereas none or small prejudice can be infer'd from not producing Instruments of Resig∣nations, &c. It is observable that this priviledge 〈◊〉〈◊〉 ••ot being ob∣lig'd to produce such Papers, is only allow'd to such as are, and were in Possession for fourty years.

There is likewise in this Act a presumptio juris founded, that these from whom Lands are Appryz'd, will industriously abstract their Evidents, and therefore the Lords use to be very favourable in granting Certification against Compryzers.

THe Act salvo jure is still subjoyn'd to Parliaments, except here where it is insert in the midst of the Acts of this Parlia∣ment.

BY this Act, Lords of the Session, Advocats, Clerks, Writers, and their Servants, nor no other Member of the Colledge of Ju∣stice, nor no Judges, Clerks, &c. of inferiour Courts, may take Assignations to Pleys, which is conform to the Civil Law, lib. 2. cod. tit. 14. ne liceat potentioribus patrocinium litigantibus praestare vel actiones in se transferre.

Nota, The Right taken by them is not declar'd null, but them∣selves only punishable, and the reason seems to be, because when they are depriv'd from being Members, the advantage they had over others, is taken away, and which advantage was the reason inductive of this Act, nor should the punishment be extended be∣yond the Cause, which is also conform to the opinion of the Civi∣lians, vid. vin select Quest. jur. cap. 1. But it may be doubted if he who takes such Assignations, should not be lyable to resound the dam∣nages which are occasion'd by taking such an Assignation, since it is a principle, that Damnage is still due where the injury is done to any man against a positive Law, though that Law ordain not Damnage and Interest to be repay'd; and in this case the taking such Assignations is declar'd unlawful, and so an injury is done against a positive Law.

2. Without this the party injur'd is not repair'd; for though the publick Interest, vel vindicta publica, be repair'd by the Depri∣vation; yet the interest of the person les'd, which is chiefly to be considered is not.

3. Deprivation is oft-times no punishment, and seldom a Com∣mensurable Punishment; for many Members of the Colledge of Justice lose nothing by Deprivation, and a Plea may be worth a great sum, and their Imployment worth nothing; whereas Dam∣nage as it is a natural, so it is a most Commensurable Punishment. Be∣cause this Act Discharges only Members of the Colledge of Justice to buy Plea's; Therefore it is still lawful for them to take Assignati∣ons to Plea's gratis, as a Donation, July 30. 1678. for as this falls not under the express prohibition of the Act; so it is no•• presumable that they will be as keen in pursuing such Processes, as these for which they have pay'd out Money; nor were it just to make the Members of the Colledge of Justice incapable of their Friends and Relations Liberality.

By this Act Advocats Servants do pretend they are Members of the Colledge of Justice, because this Act says, their Servants, and other Members.

Though this Act and the Rubrick Discharges only the buying Debateable Lands, Teinds, or Possessions, and speaks nothing of Moveables, nor even Heretable Bonds, mobilia, being ordinarly accounted vilioris naturae; yet the Lords do now ob paritatem rationis, extend this Act to such as take Assignations to Moveable Debts, or any other debateable Rights.

This Act uses to be so Interpreted, as to be extended only to the

Members of the respective Courts, who take Assignation, to Plead before the Court where they serve; and thus if an Advocat should take an assignation to a Plea, depending before an Inferiour Court, it may be urg'd that this Act should not reach them, because he has not influence before that Court; but if he should go and Plead before that Court, as an Advocat may before any Court, then the Act would reach him also.

Item, Though this Act does not speak of Procurators before In∣feriour Courts, yet the word Advocats, seems to comprehend them.

BY this Act Caution is to be found in actions of Ejections, for the violent profits; and though cautio juratoria, be ordinar∣ly sustain'd, where persons cannot find other Cautioners, yet it is not sustain'd in this case, July 17. 1630. Because this Act says, that by the proponing of these Defences against Ejections, delays are granted; therefore the Defender, either in Removings, or Ejecti∣ons, is not oblig'd to find Caution, where the Defence can be instantly verifi'd; and although it has been doubted, whether this Caution is to be found at the proponing of the Defence, or at the first Term assign'd by the Act; yet it is clear that the Caution should be found at the first Term assigned by the Act, both because this Act says, that the Caution shall be found at the first Dyet of ••i∣tis contestation; and because there must be some time given to find Caution.

Nota, That in the Brieves of Dissasine, which was the same thing of old, that Ejection is now, Caution was to be found as here by the Defender, Quon. Attach. cap. 53. num. 2.

For clearing some mistake in the Printing of my Criminals, pag. 294. my meaning was, that there may be Perjury in cautione ju∣ratoria, as for instance, if a person should Depone that he could not find Caution for the violent Profits; and yet it could be prov'd, that such a person who was very responsal, offer'd to be Caution, this I think would infer Perjury

BY this Act it is appointed, that twenty dayes after the Parlia∣ment is proclaim'd, and before it meet, four of every Estate should meet to receive Articles to be presented to the Parliament, but this is now in Desuetude; for no State can now meet, except the Burrows, and yet sometimes the King writs down to call whom He pleases to name to meet and consult previously, what Laws are fit to be made in the future Parliament.

By this Act also it seems that nothing can be presented in plain Parliament, by any of the Members of Parliament, but that eve∣ry thing must be first presented in the Articles for eviting confusi∣on, and this Act was made use of to that purpose in the Parliament, 1674. against a proposal made then for having a Commitee of grivances. To which it was then answered, that the Articles be∣ing but a Committee of Parliament, they could not restrict their

own Constituents, and this Act was rather directive than re∣strictive.

THis Act is fully Explain'd, crim. pract. tit. Jurisdiction of the Lords, num. 7.

THis Act is explain'd, crim. pract. tit. Paricide.

THis Act is formerly Explain'd, 15 Act 4 Par. Ja. 5. where Life∣renters are to find Caution.

By this Act also, a power is granted to the Magistrats of Burghs, to cause repair Burnt and Waste Lands; but yet ordinarly the Magistrats of Burrows use to give in Petitions to the Council, craving liberty to force the Heretors of such Burnt Lands, to re∣pair their Burnt Lands themselves, or else to sell their part, and when there are many small Heretors concern'd, the Council grants Warrand to the Magistrats to regulat their Venditions, though I know it hath been alleadg'd that the Council could not do this, be∣cause it was an Inversion of Property, and that this was only com∣petent to the Parliament; and yet the Council have still been in use to do so for the common good of the people, nor is any man a loser, since he may repair by himself, and if he will not, he gets his just price. This was granted to the Magistrats of Edinburgh in anno 1678. publice enim interest ne civitatis aspectus deforme∣tur & ideo constitutum est, l. 4. C. de jur. reipub. aream col∣lapsam posse a fisco distrahi si proprietarius monitus eam reficere non curaverit, vid. l. 46. ff. de dam. insect. I have seen a Decreet in anno 1636. at the Town of Edinburghs instance, against several Heretors, before the Lords of Session, for ordain∣ing the Heretors of these Houses (upon which the Trone-Church now stands) to denude themselves of their Right in favours of the Town, ob utilitatem publicam, and to appoint four for them, and four for the Town, for valuing the Lands, that the price may be pay'd accordingly.

But to prevent all such Debates, it is appointed by the 6 Act 3 Sess. Par. 1 Ch. 2. That the Magistrats of Burghs Royal shall cause cite all such as pretend Right to any such Waste or Ruinous Lands, as have not been inhabited for three years, or shall be waste and not inhabited for other three years, to Repair the saids Lands, with Certifica∣tion to them that if they do not, the Magistrats will cause value the same by certain persons to be chosen for that effect, and to sell the same; which sale shall never thereafter be quarrelled: So that it appears that after this Act, the Privy Council can grant no Warrand to sell, except in the Terms of this Act, at the least they cannot grant any such warrand to build or sell upon any privat account, or

even for beautifying the Town, but the Privy Council has since this Act, granted a Warrand to force privat Heretors to sell and accept their price, for making the Entry to the Parliament-House more large and convenient, though it it was alleadg'd that this could not otherwise be done than after three years, and in the way prescriv'd by the Act of Parliament, which has made no ex∣ception of any such case as this, and if the Council could do this, they might as well have made the Act of Parliament it self; for the power granted to Magistrats by Act of Parliament proceeds upon the same motive of publick Good.

It might likewise have been alleadged that whatever the Coun∣cil might have done in cases of absolute necessity, as if the Parlia∣ment-House had wanted an Entry altogether; yet they could not invert Property meerly for the conveniency of enlarging the Entry, beyond what formerly serv'd in our Predecessors time.

BY this Act Chiefs of Clans are not made lyable, but all Land-lords and Bailies are oblig'd to make their Men-tennents and Servants answerable to Justice, and to redress the party skaithed; which Obligation is not alternative: and therefore the Council in the case of Leith and Grant, August 1680. did find that the Land-lord was lyable for the Skaith, though he should present his men.

Notes

• ACT 193.
• ACT 194.
• ACT 195.
• ACT 196.
• ACT 197.
• ACT 198.
• ACT 199.
• ACT 200.
• ACTS 201, & 202.
• ACT 203.
• ACT 204.
• ACT 205.
• ACT 206.
• ACT 207.
• ACT 209.
• ACT 210.
• ACT 212.
• ACT 213.
• ACT 214.
• ACT 215.
• ACT 216.
• ACT 217.
• ACT 218.
• ACT 219.
• ACT 220.
• ACT 226.
• ACT 227.