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 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 Bro∣ther and Posterity were disabled to succeed, and the Name of Ruth••••n a••olished; as is to be seen in the first three Un-printed Acts of this Parliament, and a publick day of Thanksgiving is ap∣pointed by this Act, which is yet constantly Celebrated upon the 5 of August, which was the Day upon which the Murder was to be com∣mitted.

The malice of the Fanaticks in those times is most remark∣able, who pretend that he was unjustly Forefaulted, albeit the Depositions of the Witnesses are yet extant, whereby the Traite∣rous D••sign of having contriv'd, and accordingly attempted to kill that excellent King, is prov'd by his own relations, and ma∣ny 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 Par∣liament.

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 an∣nexed;

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 Pa∣tronages in our Law, are comprehended under the word Perti∣nents, 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 hold∣ing 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 Pro∣cess it was upon debate found, that the Pursuing and Invading for doing His Highness Service, was sufficiently proven by presumpti∣ons, 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. be∣cause of the danger the Chancellour was then in from the Courti∣ours, 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; where∣as 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 Mi∣chaelmas, under the pain of Confiscation, is now innovated by the Priviledges granted to the Fishing Company, and that ve∣ry 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 there∣fore, but the same is only punish'd as a penal Statute by an arbitra∣ry punishment.

The reason why the Rivers of Tweed and Annand are excepted from this Act, is, because the killing Fish upon them prejudges on∣ly the English Fishing: but after the Union of the two Kingdoms, this exception as to these two Rivers, is also taken away by the 5 Act Par. 18 Ja. 6.

THis Act declaring the Provocker and Provocked in Duels to be punishable by Death, is Explain'd, Crim. pract. tit. Du∣els: and since fighting Duels is only declared Death by this Act, it appears that naked Provocation is not Capital; but yet even the sending of Cartals may be arbitrarly punished by the Privy Council: but Fighting is Capital, though no killing follow: and fighting by Rencounter may be punished as a Duel, though there was no formal Cartal; for by this Law all single Combats are de∣clared punishable by Death, vid. crim. pract. tit. Duels: This Act was renewed by a strict Act of Secret Council, in anno 1674.

THis Act is Explained in the Act 265. Par. 15 Ja. 6.

BY this Act it is Declared that the negligence of the Kings Offi∣cers, in Pursuing or Defending a Cause, shall not prejudge the King: and therefor competent and omitted, is never receiv∣ed against the King, though it be against private parties; and by this Act it would appear that the King may propone a Nullity of a Decreet obtained against him, even in foro before the Lords of Session, by way of Exception or Suspension, without a formal Re∣duction;

but yet Prescription runs against the King, notwith∣standing that it may be alleadged, that by this Act he cannot be prejudged by the negligence of His Officers, in not pursuing, since Prescription is a general Remedy introduced for the final quiet, both of King and People; and as to Heretage it is introduced by an Act posteriour to this Act, wherein there is no exception made in favours of the King; but the Act introducing Prescription of Moveables is prior to this Act, and so it may be the more doubted, whether Prescription of Moveables runs against the King, since by this posteriour Act it is Declared, that the negligence of His Offi∣cers in not pursuing, shall not prejudge him, nor is there so great hazard to the Lieges in their Moveables, as in their Heritage.

THe Transporting or In-bringing of forbidden or Un▪ custom∣ed Goods, that is to say, Goods that should pay Custom, without paying Custom is punishable, not only by Forefaulture of the Goods, but by Confiscation of the In-bringers whole Goods moveable; albeit by the Civil Law, ea res tantum in commissum cadit quam quis non est professus; by which Law the naked En∣try, or sola possessio, was sufficient to Defend against the Forefaul∣ture & imputandum est publicano qui non exegerit, Perez. tit. C. de vect. num. 10. both by that Law and ours, the Customers may recover the Goods un-entered, even from singular Successors who have bought the same, bona fide, for a competent price; and in that Law, Error ex∣cus'd from Confiscation: but in that case it exacted double Custom, Perez, ibid.

I have not observed any mans Moveables Escheated upon this Act.

THis Act fining such as will not Communicat once a Year, when he is thereto desired by his Pastor, is ill observed, but not in Desuetude, and therefore was renewed by Proclamation in January 1679.

Observ. That the having Rancour against their Neigh∣bour, is Declar'd no relevant excuse; and justly, because it is a fault, and so should be no Defence, & argumento hujus legis, a Fanatick having prejudice at his Minister, even though reasonable, is no legal Defence, for he should still hear.

Observ. 2. Though this Act say, That no other excuse whatsoever shall Defend; yet certainly inability to Travel, madness, &c. will Defend, and general words are still to be understood, in subjecto capaci.

THis Act is Explain'd, crim. pract. tit. Heresie.

THis Act is Explained, crim. pract. tit. Beggars and Vaga∣bonds.

THis Act is Explained, crim. pract. tit. Adultery.

THis Act is but a Temporary Commission.

THis Act against slaughter of Wild-fowl, is renewed by an Act of Privy Council, June 9. 1682. years, whereby Masters of the Game are appointed for putting these Acts in Execution; though by this Act the Sheriffs, Stewarts, and the Kings ordinary Magistrats, have a particular Commission of Justiciary for this effect; and it was questioned in the time, how the Council could take away a Right establisht in them by the Parliament?

By this Act, the killing of Mure Pouts is Discharg'd before the third of July, and Partridge Pouts before the eight of September; and by that Proclamation, Mure Pouts are allow'd to be kill'd after the first of July, and Heath Pouts after the first of Au∣gust, and Partridge and Quail after the first of September; and whereas by the 109 Act Par. 7 Ja. 1. No Partridges, Plovers, Black-cocks, &c. are to be kill'd till August; this Proclamation al∣lows them to be killed from the first of July.

THis Act ordaining all English Cloath to be Seal'd by a Seal, the Form whereof is here condescended on, was thought to have been in Desuetude: but now found not to be so in anno 1666. at which time it was found, that the Customers might enter the Shops, and Seal or Confiscat what was not so Seal'd. This Sealing was formerly appointed by the 129 Act Par. 12 Ja. 6.

THis Act appoints, that no Letters of Horning shall be Direct against persons Dwelling on the other side of Dee, upon shor∣ter space than fifteen Dayes; which Act was found only to be ex∣tended to Actions before the Privy Council, but not to Charges be∣fore any other Court; because the Narrative of this Act sayes, That severals of the Lieges were drawn in inconveniencies by Charges before His Majesty and His Council; though the Rubrick and Statutory part be General; and though the reason, whereupon this is inferred, extends to all Charges, as well as Charges before the Council.

SUch as Invade any of His Majesties Subjects within a Mile to the place of His Highness Residence, or whoever resort there∣to, Armed with Jacks, or Corslets under their Coats, are to be Imprisoned for a Year, and punishable by an arbitrary fine.

Observ. That the attrocity of the Crime is much hightned from the circumstance of place, as well as time; as is likewise clear by the 173 Act Par. 13 Ja. 6.

It may be doubted, whether this Act can be extended against such as Invade Strangers? since the Act sayes only, such as invade Subjects; since the Invading of Strangers is more attrocious in it self, than the Invading of Subjects, the Crime being there aggredg∣ed by the breach of Hospitality.

It may be likewise doubted, how long a time of Residence by the King makes the Invaders punishable? and it would appear that if the Invasion be not within a mile of that which is known to be the place of the Kings ordinary Residence, that then it must be pro∣ven, that the Invader did reside there for the time.

BY this Act Sheriff-Courts should be kept in the middle of the Shire, for the ease of the people; but this is not observ'd.

OF old Pledges were taken in the Borders, that is to say, one man entered himself Prisoner for another, and bound him∣self for his appearance, person for person; but now the Peace is secured by Sureties or Cautioners, who, if they present not the person for whom they are bound, that very hour they Fore∣fault their Bonds, nor is the presenting the Prisoner afterwards sufficient; which speciality has been found necessary in Border Sure∣ties.

These Pledges were Distributed of old amongst the Nobility and Gentry, who were to be answerable for them, because we wanted then many and sure Prisons; and because they were un∣willing to receive these Pledges; therefore this Act obliges them to receive, and keep such Pledges, under the pain of two thousand merks.

It may be doubted; if Pledges may not be taken in other Crimes as well, as these relating to the Borders and High∣lands, argumento hujus legis, since this may tend much to the quiet∣ing of the Countrey; and if the Nobility may not be forc'd to keep these, for Prisons may be often so full, that Prisoners cannot otherwayes be kept; and by many Acts of Secret Council, the Nobility was before this Statute oblig'd to keep Pledges.

By the Common Law, Obsides or Pledges could only be grant∣ed, ex causa publica, sed non ex privata, Bald. in l. ob aes, C. de obl. & act, But it seems that Pledges, though for Criminal Causes, could not bind themselves to corporal punishment, quia nemo est dominus suorum membrorum licet aliter obtineat de consuetudine, ob bonum publicum, Bald. in tit. de pace Constant. §. damna in finè.

Notes

• ACT 1.
• ACT 2.
• ACT 3.
• ACT 4.
• ACT 5.
• ACT 6.
• ACT 10.
• ACT 11.
• ACT 12.
• ACT 13.
• ACT 14.
• ACT 15.
• ACT 17.
• ACT 18.
• ACT 19.
• ACT 20.
• ACT 22.
• ACT 23.
• ACT 24.
• ACT 25.
• ACT 26.
• ACT 27.
• ACT 28.